For conduct that included attaching explicit images in an affidavit without taking steps to ensure confidentiality, a Queensland solicitor has been publicly reprimanded, ordered not to apply for a practising certificate for 12 months, and told to complete further education.
Queensland Civil and Administrative Tribunal’s (QCAT) judicial member Duncan McMeekin KC has found Mark Raymond Donnelly, former principal and director of Donnelly Group, engaged in professional misconduct and unsatisfactory professional conduct.
The former charge partly related to Donnelly’s failure to exercise appropriate forensic judgment by including photographs that depicted a person naked, including their genitals and buttocks.
The person had applied for a protection order under the Domestic and Family Violence Protection Act 2012 (DFVP).
While the material did serve a legitimate forensic purpose, QCAT set out that Donnelly should have taken measures to limit or redact the sensitive material; protect or ensure its confidentiality; or refer to the sensitive material without annexing the explicit images.
“All that was required was to inform the court that there would be a necessity to tender sensitive material and to seek directions [on] how best to do so,” McMeekin included in his written reasons.
“Given the principal objects of the DFVP Act include the safety, protection and wellbeing of those who fear or experience domestic violence and to minimise disruption to their lives, the very act of filing the explicit images within the affidavit potentially involved an act of domestic violence itself.
“Hence the need for forensic judgment in this difficult area.”
Professional misconduct was also found in respect of Donnelly’s failure to comply with an undertaking to complete five continuing professional development (CPD) units in the core area of practice management and business skills.
The undertaking was made after the Queensland Law Society expressed concern about his fitness to continue practising.
In December 2021, the deadline Donnelly agreed to, he sent a letter notifying that he had completed the units. However, one of the webinars was cancelled, and one was not available until the following February.
The unsatisfactory professional conduct arose from Donnelly’s failure to lodge an external examiner’s report in 2020, 2021, and 2022 by the required date. The reports were 97 days, 16 days, and 65 days late, respectively, and no excuses were provided.
McMeekin, along with panel members Ross Perrett and Keith Revell, said Donnelly had acted responsibly for some years before this offence but suffered from certain physical impairments due to his service in the Royal Australian Air Force during the 1990s.
Donnelly also had “significant” problems with debt at the time.
His practising certificate was cancelled in April 2023, and Donnelly accepts that Queensland Law Society had no option then but to do so.
“Donnelly makes no attempt to place blame for his conduct on anyone or thing apart from himself … In our judgment, he has done all that he can to rehabilitate himself,” the members said.
In addition to the reprimand, the two-year restriction on his practising certificate and the ethics course, Donnelly was given a $7,000 pecuniary penalty, ordered to complete a practice management course, and restricted from applying for a principal practising certificate for two years.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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