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Reprimanded lawyer accuses ACT Law Council of being ‘vindictive’
During a hearing to determine a costs order, a solicitor found guilty of professional misconduct for knowingly misleading a tribunal and leaving his client unrepresented has accused the ACT Law Society Council of being “vindictive” in its twice failed attempts to have his name removed from the roll of legal practitioners.
Naomi Neilson
In 2019, the unnamed practitioner was reprimanded, ordered to pay costs and had his practising certificate suspended until 2025 unless he met certain conditions, despite the ACT Law Society Council seeking to have his name struck from the roll. In an appeal, the council again attempted and failed to remove his name.
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The conduct that led to the discipline included lying to the Administrative Appeals Tribunal about a doctor’s appointment that would prevent him from appearing. In an attempt to have his client also dismissed, he advised that the client terminate his services. The tribunal did not allow this, and the client appeared unrepresented.
In a hearing to determine costs of the council’s appeal, the practitioner argued that he should either have a costs order against the council or there should not be a costs order at all given “exceptional circumstances”. The council submitted that it should only pay costs in a situation in which the practitioner was not found guilty.
The practitioner told the ACT Civil and Administrative Tribunal (ACAT) that the penalties imposed in the original tribunal were “on the harsh side” but that by the council seeking a harsher penalty, it acted “vindictively” with the aim of “punishing him” by seeking the “ultimate penalty of removal from the roll of practitioners”. He argued that as the appeal failed, the unsuccessful party should meet the costs.
He also submitted that after a mediation prior to the original hearing, he withdrew an application to renew his practising certificate as a matter of compromise and “in a gesture of good faith”. He said the council could have continued to negotiate had it not been for the “now demonstrated motivation to punish” the practitioner.
ACAT took into consideration a number of contributing factors on all three hearings, including the practitioners’ poor mental health. While the practitioner never sought to excuse his conduct on this ground, and the tribunal ruled it should not affect its decisions on penalty, it considered this in relation to the costs order.
“In our view, the practitioners’ mental health issues, the fact that these can be treated, but that litigation and costs orders can be a stressor for them, contribute to the exceptional circumstances in this case,” the tribunal wrote in its judgement. “[These factors] are not unique or unprecedented or very rare, [and] indeed instances of depression are disproportionately high in lawyers.”
ACAT also considered the practitioner’s financial hardships and took into account that he could not find work for almost three months after he lost his job. In the end, he had to accept any employment he could find to ease his financial difficulties.
In addition, despite the financial difficulty he was in, he was ordered to pay the council’s “very significant” costs in the sum of $335,000 for the original hearing. He is now in “total financial ruin”, he submitted, and income he derives from employment “is barely enough to support my family and meet mortgage repayments”.
“We accept that the law sets the bar quite high, but we are satisfied that a costs order on this appeal would result in (or compound) exceptional financial hardship for the practitioner,” ACAT found, ruling that no costs order should be made.
The entire judgement can be found on AustLII: Council of the Law Society of the Australian Capital Territory v LP 201920 (No 2) (Appeal) [2021] ACAT 51.
