A former Brisbane principal who acted for both parties in a property transaction has been fined $5000, after making “ludicrous” claims as to the impact of such a fine on his financial situation.
On 3 July in the Queensland Civil and Administrative Tribunal, the practitioner was found to have engaged in unsatisfactory professional conduct over his conflict of interest and failure to advise in the conveyancing transaction more than six years ago.
At that time, Judicial Member Duncan McMeekin KC ordered a rethink of the $5000 fine proposed by the Legal Services Commissioner (LSC), saying the tribunal had “serious concerns” about its adequacy and ordering the parties to make submissions on the suitability of the sanction in light of his reasons.
After considering those submissions, in an on-the-papers decision delivered on Monday, Member McMeekin ordered that the practitioner be fined, publicly reprimanded and pay the LSC’s costs.
The practitioner’s submissions consisted of two applications: for a non-publication order as to his financial situation; and for an exceptional order that there be a nominal fine or no fine imposed, and that he not pay the LSC’s costs, or that any costs order be stayed indefinitely or for at least 12 months pending insolvency.
In her submissions, the Commissioner maintained her position on the agreed sanction and fine, stating there was “a real difficulty” in “reconciling the concept of conciliating or compromising a disciplinary matter, particularly when the primary objects of the Act are protecting the public and maintaining the standards of the legal profession” and where there were instructive disciplinary decisions.
The practitioner submitted that he was in debt, that his household expenses effectively exhausted his personal disposable income, and that he was facing bankruptcy.
He submitted that if the usual costs order were made, he would face “a permanent, lifelong debt trap that cannot be resolved through insolvency”, and an order would be futile in any case.
Member McMeekin said the lawyer “greatly overstates his case”.
“The fundamental submission appears to be that adding to his plight with the burden of a pecuniary fine of $5000 will be ‘catastrophic’, ‘punitive’, ‘inequitable’, ‘contrary to the interests (of) justice’ and ‘an extra-curial punishment on innocent minor dependants’,” he said.
“These claims are ludicrous. In the context of his debts, and they are long-standing and many multiples of this fine, the additional amount is hardly of significance.
“Further, he argues in essence that the expenses he incurs leaves him nothing left to pay the pecuniary fine.
“He has an income that many in the community would consider to be substantial.
“With respect again, it may be that he will need to alter his lifestyle and that of his family, and his expectations of his retirement needs, all of which are detailed, in order to meet the fine imposed.”
Member McMeekin said considerations of financial hardship were of little, if any, relevance to the appropriate fine.
He said the tribunal accepted the Commissioner’s submissions that the protective purpose of the Act required general rather than specific deterrence, and so the tribunal should focus not on the lawyer’s financial situation but on case law and the lawyer’s conduct.
He said the practitioner’s remaining submission, that the making of the order was futile, was “simply wrong”.
“The fact that the fine will survive the respondent declaring bankruptcy, means that the order is not futile in the sense that (the practitioner) will be exposed to the liability for many years,” he said.
“Nor is it futile in the sense that the making of the order will send a message to the community and the profession.
“Quite apart from those considerations there is no authority cited to support the claim that the imposition of a pecuniary fine in this disciplinary context, or the proper level of it, ought to be influenced by considerations of alleged futility.”
Member McMeekin said in relation to costs, the Commissioner brought the proceedings to further the interests of the administration of justice and for public protection, which were compelling reasons for a costs order.
He added that an order for an indeterminate stay of the costs order would be tantamount to no order at all, and entirely inappropriate where there were no exceptional circumstances.
There was also no evidence to show that the alternative of a minimum 12-month stay would result in any different effect on the practitioner’s position of debt, he said.
He ordered the practitioner to pay the fine within 28 days.
He also ordered that the practitioner’s evidence of his financial situation be marked confidential and not inspected without tribunal permission.
Read the decision here.
Share this article