Precedent set for disciplinary decision-makers following lawyer’s bullying complaints
A decision scrutinising the date a Legal Profession Act was repealed, the implications of an email, and the bullying allegations against lawyers have set a new precedent for what a disciplinary complaints officer must do before a decision is considered finalised.
The complex matter concerned complaints made by solicitor Jillian Saint against solicitor Arina Mundy and counsel Bernard Standish, who both represented Ms Saint in Magistrates Court proceedings.
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Ms Saint alleged that prior to May 2021, the two ignored her instructions about terminating the retainer, failed to provide certain advice, bullied her, and failed to prepare her for trial.
The Legal Profession Complaints Committee’s officer engaged in “mental consideration” and concluded the first two allegations should be dismissed and the second two found to be without substance.
This consideration was made on 30 June 2022, but letters were not sent to Ms Saint and the respondents until 4 July 2022.
In the meantime, the Legal Profession Act 2008 (WA) was repealed and replaced by the Legal Profession Uniform Law Application Act 2022.
On 29 July 2022, Ms Saint applied for a review of the Complaints Committee’s decision to dismiss under the new Application Act.
What followed in the recent judgment was consideration by Judge Henry Jackson, deputy president of the State Administrative Tribunal, into when the complaint officer’s decision was made and why it meant the tribunal had no jurisdiction to determine the application.
Judge Jackson, along with senior member Dr Rebecca Wilson and member Ross Povey, first determined the decision to dismiss had been made under the original Legal Profession Act, regardless of whether it was made before or after the act was repealed.
This was so because the Legal Profession Act “was still in force” and, even if the decision was made after the 1 July 2022 repeal date, the Legal Profession Complaints Committee’s power of “investigation and determination continued to have operation”.
“The question here, however, is not so much the source of the power under which the [Complaint Committee’s] decision was made, as when the [Complaint Committee] made that decision,” they noted.
The Legal Profession Complaints Committee argued there was no jurisdiction because the decision was made on 4 July, adding that although he had “formulated a decision” prior to the repeal, it was not communicated to the parties until the 4 July date.
The tribunal relied on an email sent by the complaints officer to several other staff members on 30 June, which asked them to review a draft letter and send it to the parties if there were no changes.
Judge Jackson and the other members said this step “did not put his decision to dismiss the complaint beyond recall”, and therefore, they could not consider the decision finalised on the date of the email.
“Indeed, the email to staff very much contained within it the possibility that the [complaints officer] would engage in further consideration of the matter should the staff’s review of his draft letter to [Ms Saint] give rise to the need to do so,” the tribunal found.
Judge Jackson said even if they were wrong about the analysis of the email, “they clearly evidence the [complaint officer’s] intention that some further time would pass before the letter would be sent”.
“Within that time, we find (and this is the critical point), the [complaint officer] was entirely within his rights and powers to instruct the staff not to send the email so he could reconsider the matter.
“That is, had any staff raised a concern with the decision … or had [the complaints officer] otherwise had cause to reconsider the matter, we find he could have revisited and remade the decision at any time.
“As such, in our view, the decision was not made on 30 June 2022. Rather, it was not made until the letters were sent out,” they found.
The application for review was dismissed as the tribunal lacked jurisdiction to determine the issue.