A former sole practitioner in the Australian Capital Territory has been relieved of having to pay costs for appeal proceedings with respect to disciplinary proceedings that he faced.
Referred to as ‘Practitioner S’, the man has been caught up with allegations of professional misconduct by the Council of the ACT Law Society for seven years. On appeal in August 2017, S was found to have engaged in unsatisfactory conduct.
However, almost two years prior, the lawyer had offered to accept a finding of unsatisfactory professional conduct in October 2015.
Last month the ACT Civil & Administrative Tribunal (ACAT) made a decision concerning costs for the appeal proceedings.
The tribunal found that there were exceptional circumstances that applied to the matter, adding that the law society was partly responsible for “extreme delays” in the original disciplinary action against S.
The tribunal went on to find that S was responsible for costs of the original proceedings, acknowledging that the law society was statutorily required to make the application, where it was open for a finding of professional misconduct to be made.
“The proceedings have had an extremely negative impact on the practitioner economically by loss of employability and costs incurred in defending the matter. There has been a heavy emotional toll,” the decision read.
The tribunal later went on to add that on appeal, the Council of the Law Society unsuccessfully maintained its position, despite knowing that there had been an error with respect to an issue about duty of fidelity.
“While we agree with the Council that it must do its duty irrespective of the personal toll it might have on the practitioner, the toll here was exceptional and out of all proportion to his misdeeds,” the tribunal said.
“Additionally, while not decisive, the Council lost. When added to the extreme delay not only up until it was dealt with by the Tribunal but the additional time needed to complete the appeal, we think the circumstances of the appeal become exceptional.”
Counsel appearing on behalf of the embattled lawyer had told the tribunal that three months prior to the disciplinary proceedings, S had transferred his entire practice and 26 staff to another firm. With the transition, S incurred a debt of $106,000 to pay for staff entitlements.
While there was no consideration made for the transfer, S took on a salaried partner role at the new firm and expected to carry on his practice as usual.
Just four days after the disciplinary decision was handed down on 4 July 2016, S’s position at the new firm was terminated.
Then, after handing in his practising certificate, it took another four weeks before S was granted a restricted certificate in its place -- rendering him effectively unable to work for nearly a month.
S submitted to the tribunal that the matter (which involved an impugned invoice totalling less than $7,000) had been “hanging over the practitioner’s head for seven years”. The point was further made that the whole disciplinary “episode” had an enormous financial, reputational and emotional cost on S and had “virtually destroyed him”.
The tribunal also heard he sought treatment for clinical depression by reason of the circumstances surrounding this matter. In the appeal decision, it also recognised that the toll of the kind experienced by the S in throughout the action was not to be unexpected as a consequence of disciplinary proceedings.
“Here the impact on the practitioner was substantial and out of proportion to the nature of the complaint. It is such that it warrants the emotional language in the submissions of his counsel. The events surrounding his loss of partnership are indeed unfortunate.
“We are asked to infer that they are in part at least, if not completely, as a result of the decision of the Tribunal which we have found was incorrect in respect of the reliance on the duty of fidelity and the categorisation of the nature of the conduct,” the tribunal said.
“Nonetheless, the latter decision was open to it and the Council was required to initiate the proceedings.”
Counsel for S submitted that the practitioner had offered to accept the finding of unsatisfactory conduct and has been vindicated on appeal. The barrister also said that S could not rescue his lost partnership but was picking himself up.
“It was submitted that ‘in the exceptional circumstances of this case’ to impose upon the practitioner the full costs of the hearing below would be harsh and unfair in the extreme,” the tribunal said.
The tribunal went on to consider the arguments put by the Council of the Law Society, including the submission that these matters of hardship had already been considered at the original proceedings.
“The Council submitted that there were no exceptional circumstances; further the hardship matters now referenced had been considered by the original Tribunal and it would be wrong to allow this to be re-agitated now.”
“The Council also suggested the assertion that the experience has destroyed the practitioner was special pleading. We understand that to mean that while the behaviour found was wrong the practitioner should not be dealt with on that basis because of his hardship.”
On appeal, two of four issues raised by S were determined in his favour. While it remained the case that S was found to have breached his duty of good faith, the tribunal said that the duty of fidelity should not have been relied on at first instance.
The tribunal also determined that S’s conduct, viewed as a whole, was unsatisfactory conduct – not professional misconduct.
“This was the point argued for by the practitioner and resulted in an overall success in reversing the finding made by the Tribunal. The practitioner says that was the whole point of the appeal,” the tribunal said.