A principal has been fined, publicly reprimanded and barred from obtaining a practising certificate for 12 months for professional misconduct in a disciplinary first in Queensland.
The principal and legal practitioner director was charged with failing to exercise ‘appropriate forensic judgment called for’ by filing an affidavit on behalf of a client that included explicit and sensitive material.
The practitioner was acting for the respondent to an application for a protection order under the Domestic and Family Violence Protection Act 2012 (Qld). In preparing an affidavit on behalf of his client he attached photographs depicting the applicant naked.
In its decision the Tribunal accepted that the placing of the material before the court was a legitimate forensic purpose under Rule 17.1 of the Australian Solicitors Conduct Rules, however, the method adopted for the provision of the evidence was at issue.
“All that was required was to inform the court that there would be a necessity to tender sensitive material and to seek directions how best to do so,” the Tribunal said in its decision.
“The filing of the affidavit, even in the relatively closed environment of the court involved in such applications, necessarily required publication to the applicant seeking a protection order, and others required by their duties to deal with the affidavit. Given the principal objects of the DFVP Act include the safety, protection and well-being of those who fear or experience domestic violence and to minimise disruption to their lives the very act of filing the explicit images within the affidavit potentially involved an act of domestic violence itself. Hence the need for forensic judgment in this difficult area.”1
In characterising the charge as professional misconduct, the Tribunal considered a similar Canadian case2, and also a recent publication of the Law Society of New South Wales entitled Tendering Sensitive or Intimate Images in Family Law Matters3 that was published subsequently.
The Tribunal concluded that the use of such images in the domestic violence arena is especially fraught “given the emphasis in the legislation of protection, respect and wellbeing of the person who may well be the subject of domestic violence.”
“There was a serious failure here of reaching the standards expected in exercising one’s forensic judgment. We consider that the conduct here ‘involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence’ and hence the correct characterisation is of professional misconduct under s 419(1)(a) of the Act.”4
The Tribunal observed that the practitioner held a “genuine, and indeed accurate, belief that evidence of the sensitive images had a legitimate forensic value” however he failed to appreciate the forensic judgment involved in how to proceed.
“In mitigation, he can plead that he was not assisted with any independent resource to guide his conduct.”5
Given the novel nature of the charge the Tribunal specifically referred to the guidance offered in the Law Society of New South Wales’ publication though noted it is not authoritative and judgment remains to be exercised.
The respondent also faced five other charges, including three of failure to lodge an external examiner’s report for the firm and failing to comply with the terms of an undertaking he gave to QLS, and then supplying information to QLS in relation to that undertaking which he knew to be false.
The Tribunal noted the practitioner has expressed his deep regret and remorse at his conduct, and that he “made no attempt to place blame for his conduct on anyone or thing apart from himself. He co-operated with the Commissioner once he accepted that his defence of charge six was misguided.”
“In our judgment he has done all that he can to rehabilitate himself.”
The Tribunal made the following orders:
a) the respondent is to be publicly reprimanded;
b) the respondent pay a pecuniary penalty of $7,000;
c) the respondent is not to be granted a practising certificate of any kind for a period of 12 months from the date of this order;
d) prior to any application for a practising certificate, the respondent must compete, at his own expense, the Queensland Law Society Legal Ethics Course;
e) the respondent is not to be granted a principal practising certificate for a period of two years after first being granted a practising certificate;
f) the respondent must complete, at his at his own expense, the Queensland Law Society’s Practice Management Course in the 12 months prior to any application for a principal practising certificate;
g) the respondent must include a copy of the Tribunal’s orders and reasons, together with evidence of completing the Queensland Law Society Legal Ethics Course and the Queensland Law Society’s Practice Management Course when the respondent first re-applies for a principal practising certificate; and
h) the respondent pay the Commissioner’s costs of and incidental to the discipline application such costs to be agreed or assessed in the manner in which costs would be assessed if the matter were in the Supreme Court of Queensland assessed on the standard basis.
Legal Services Commissioner v Donnelly [2025] QCAT 516
- Legal Services Commissioner v Donnelly [2025] QCAT 516, [13]-[14]. ↩︎
- (Hearing Committee, R Anderson QC et al, 1 April 2021) (‘Re Karen Herrington’). ↩︎
- Family Law Committee, The Law Society of New South Wales Tendering Sensitive or Intimate Images in Family Law Matters (2025), 2. ↩︎
- Legal Services Commissioner v Donnelly [2025] QCAT 516, [30]. ↩︎
- Ibid, [41]. ↩︎
Practitioners that find themselves confronted with novel ethical situations are able to seek legal ethics and practice support guidance and education from the QLS Ethics and Practice Centre.
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