A Gold Coast principal convicted of serious drug offences will be allowed to return to practise, after the disciplinary tribunal deemed he was substantially rehabilitated and not permanently unfit to practise.
In a Queensland Civil and Administrative Tribunal (QCAT) decision published on Friday, Justice Martin Burns said although the offending in 2020 was “grave” and “reprehensible”, it was committed by a drug-dependent person with undiagnosed disorders, who had almost completely rehabilitated in the years since.
Justice Burns said there was no issue that the conduct constituted professional misconduct but that a strike-off sought by the Legal Services Commissioner was not warranted.
He instead made several orders, including that the practitioner was not to be granted a local practising certificate before 21 December this year, and that he could not apply for a principal practising certificate until 21 December 2031, or until he had practiced as an employed solicitor for five years (whichever was the later).
He also ordered that the practitioner’s next application for a practising certificate must include two psychiatrist reports as to the practitioner’s mental health and ability to practise, as well as a negative hair follicle drug test.
Between January and July 2020, the practitioner committed five offences of possessing dangerous drugs. In August 2023, he pleaded guilty to all charges, for which he was fined $2500 and received a three-month prison sentence, suspended for an operational period of 12 months.
At the time of the convictions, the practitioner was a principal of a Southport firm. His practising certificate was subsequently cancelled by the Queensland Law Society from 21 December 2023.
The offences were detected by a Crime and Corruption Commission investigation, which included a surveillance device installed in the practitioner’s home, and the execution of a search warrant there.
The most serious charge involved the practitioner driving a client – whom the practitioner had just represented in the Brisbane Supreme Court at a sentence hearing for drug possession – to a drug dealer’s address where the client collected cocaine and the practitioner consumed some in the car.
At the QCAT hearing, the practitioner accepted that he knew the client was sourcing cocaine from the dealer’s address, and that by driving the client there, he facilitated that procurement.
He also accepted that he did not counsel his client against commissioning that offence, and that before they arrived at the address, he formed the intention to use some of the drug to be supplied.
“The respondent’s conduct in these respects therefore went well beyond fleeting opportunism,” Justice Burns said.
“It was brazenly contemptuous conduct involving a series of deliberate choices to facilitate his client’s procurement of cocaine and to consume a portion of the drug with him.
“Of course, this all occurred a relatively short period of time after representing the client in the Supreme Court for drug offending, and having heard his client being afforded the indulgence of immediate parole, a fundamental condition of which would have been that he does not commit an offence.”
Justice Burns said all charges involved serious criminal offending by an officer of the court, but this conduct was directly connected to practice as a lawyer.
“When it is also appreciated that such conduct was engaged in by an experienced criminal lawyer and principal of a firm, the propositions that it was likely to a material degree to bring the profession into disrepute and, to a material degree, diminish public confidence in the administration of justice can scarcely be doubted,” he said.
He said at the time of the offences, the practitioner was a drug-dependent person suffering from a substance abuse disorder, but that “the respondent’s judgment was very much impaired by what turned out to be quite serious, but undiagnosed and untreated, medical conditions”.
“After his arrest the respondent sought and obtained proper medical and other assistance, and by the time of the hearing had devoted almost five years to a sustained course of rehabilitation,” he said.
Justice Burns said that by the time of the hearing, this rehabilitation was substantially complete. He said the practitioner had been working in construction and doing voluntary community work in the years since the convictions.
“Importantly, the respondent developed an appropriate degree of insight into his offending, and the damage it occasioned to the reputation and standing of the legal profession. He was genuinely remorseful,” he said.
In assessing the option to recommend that the practitioner’s name be removed from the roll, Justice Burns said whether the practitioner was “permanently unfit to practise” should be determined closely with the protective purposes of the Legal Profession Act 2007 (Qld).
The LSC submitted that the practitioner’s conduct was of such a character as to mark him as permanently unfit to practise, so his name should be removed from the roll.
“The Commissioner pointed, with force, to the gravity of that conduct – that the respondent, an experienced criminal practitioner who had that morning represented his client and heard him afforded immediate parole, deliberately facilitated his client’s procurement of cocaine and consumed a portion of it with him – and to some of the evidence he gave to the tribunal to the effect that he ordinarily exercised control over his use of the drug and did not use it when working as a solicitor,” Justice Burns said.
“This evidence, it was submitted, showed the offending to have been quite deliberate and not the product of, for example, some irresistible compulsion.”
He said the tribunal accepted the conduct was a grave departure from the standards required of a legal practitioner, that the practitioner himself accepted it was reprehensible, and that at the time of the offending, the practitioner was “plainly not a fit and proper person to engage in legal practice”.
However, the LSC had not established the practitioner was permanently unfit to practise, and the practitioner had demonstrated his fitness to remain on the roll, Justice Burns said.
He said the offending had to be understood “as the conduct of a drug-dependent person whose judgment was grossly impaired by his use of cocaine, and whose use of that drug was causally connected to serious underlying conditions that were at that time undiagnosed and untreated”.
“That does not in any way excuse his conduct, but it explains it, and it bears materially on what the conduct reveals of the respondent’s underlying character,” he said.
“Grave and deliberate as it was, the conduct of 18 May 2020 was not, in these circumstances, the mark of a character fundamentally and permanently at odds with the requirements of legal practice.
“The long experience of the courts at all levels is that drug addiction manifests in myriad different ways, with the symptoms so manifested varying in their combination and intensity from case to case.
“It would therefore be quite wrong to seek to make something of a self-reported capacity for work without a full understanding of the complete picture which, here, was only revealed after the events in question.
“A law degree affords no immunity from the ravages of drug addiction any more than it can remedy the underlying disorders which, hidden from view, were significant contributors to the development of the respondent’s dependence on cocaine.”
Justice Burns said in short, the disorders at the root of the offending had been successfully addressed.
“Without in any way minimising the seriousness of his professional misconduct, it is neither necessary nor appropriate to recommend the removal of (the practitioner’s) name from the local roll,” he said.
Orders were also made that the practitioner be publicly reprimanded, and that he pay the LSC’s costs.
Read the decision here.
QLS members can learn about substance misuse in the profession via an on-demand recording.
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