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A former president of the WA Criminal Lawyers’ Association has been reprimanded and fined $20,000 for his failure to deliver a written opinion over a four-year period.
Anthony Gerard Elliott, a barrister with Francis Burt Chambers, accepted that his failure to provide a written opinion to a client with respect to a potential conviction and sentencing appeal amounted to professional misconduct.
Elliott has practised in the field of criminal law for over 30 years, during which he also served eight years as president of the Criminal Lawyers’ Association of Western Australia.
His misconduct “fell short, substantially and consistently, of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer”, according to the agreed facts filed with the State Administrative Tribunal of Western Australia (WASAT) on 1 September.
The client’s solicitor requested the written opinion in June 2021, following which a Legal Aid grant was assigned to Elliott.
The opinion was to provide prospects of success for an appeal of a May 2021 conviction and sentencing to seven and a half years behind bars on four drug-related offences.
Despite a number of attempts to contact him about the written opinion – including eight to 15 calls from the solicitor, the client, and the client’s niece – Elliott failed to provide one.
In March 2023, about two and a half years into the client’s imprisonment, he wrote to the solicitor to complain Elliott “lost interest in even looking at my case”.
“I’m really needing to hear the words one way or another, if it’s from you that’s fine by me, I just want to get on with this s--t life I’m living knowing where I stand,” the client said.
During this time, the solicitor was representing the client on an application by the state of Western Australia that he was a drug trafficker, which would allow for the confiscation of his property.
The solicitor regularly communicated with the Office of the Director of Public Prosecutions, requesting further time for Elliott to “finalise his opinion” on the appeal.
Legal Aid reassigned the grant of aid in August 2024.
Elliott’s failure to provide the opinion “had the potential to render the client’s appeal rights (if any) nugatory, or of reduced utility, given that, by 31 July 2024, the client had already served approximately four years of his sentence”.
The agreed facts also touched on findings by the Court of Appeal of Western Australia in November 2018 that Elliott provided inadequate advice to his client, put forward a defence case “that no competent counsel would have formulated or put”, and made certain concessions without the client’s instructions.
Elliott was reprimanded and fined $12,500 in March 2024.
The agreed facts also acknowledged there were “only short periods” when Elliott was not in court between the offending period, given the nature of his criminal law work.
Nevertheless, he “maintained a belief during this period that he would be able to eventually complete the opinion” and, as a result, did not request that Legal Aid reallocate the grant.
Elliott now accepts “he ought to have done so”.
He continues to make “valuable contributions” to the profession, including his regular acceptance of Legal Aid briefs and presenting accredited continuing professional development sessions.
