6 months for SA lawyer to prove he shouldn’t be struck off
A South Australian practitioner has had his appeal against disciplinary proceedings being commenced in the Supreme Court dismissed after the state’s Legal Practitioners Disciplinary Tribunal found five charges proven in a case brought by the Legal Profession Conduct Commissioner.
The practitioner, Mr Thompson, whose full name was not published by the judgment, had admitted to engaging in five separate instances of unprofessional conduct at the tribunal hearing, including that the practitioner had misled Masters of the District Court, prepared and executed affidavits knowing them to contain false and misleading information and had fabricated the contents of a client’s file.
The tribunal had found each charge proven, recommending disciplinary proceedings be commenced in the Supreme Court.
The commissioner also applied to the Supreme Court for orders that the practitioner be struck from the roll in a separate originating application.
Mr Thompson was employed as a junior lawyer with Westside Community Lawyers during the time the unprofessional conduct occurred (within the meaning of s 5 of the Legal Practitioners Act 1981 as it applied at the time), between 14 October 2010 and 15 March 2011.
He admitted to misleading a District Court Master on 14 October 2010, misleading a Master of the District Court on 25 January 2011, preparing and executing an affidavit knowing it to contain false and misleading information in February 2011, and preparing and taking an affidavit of a client, knowing it to contain false and misleading information, also in February 2011.
He also admitted to fabricating the contents of a file by recreating a letter and other pieces of correspondence, and preparing two handwritten file notes to record events which had not occurred.
Mr Thompson relied on seven grounds of appeal to the Supreme Court of South Australia, after he had previously submitted to the Tribunal that it “had the power to deal with the matter”.
The judgment also said he had resisted the commissioner’s application that the tribunal recommend disciplinary proceedings be commenced in the Supreme Court.
Appeal grounds centred around “a number of errors of law and fact in its characterisation of the nature of the conduct admitted by the practitioner,” with specific errors particularised.
The Honourable Justice Kelly, with whom Honourable Justice Nicholson and Honourable Justice Hinton agreed, did not “consider there is any substance in any of the practitioner’s complaints concerning the approach taken by the tribunal.”
“The tribunal correctly acknowledged that there are circumstances which may permit the tribunal to deal with the matter without it going to the Supreme Court,” she continued.
However, Justice Kelly said “the circumstances before the tribunal were such that it was open to the tribunal for it to be of the opinion that the facts demonstrated a lack of fitness to practise and that the disciplinary powers available to the tribunal would not meet the case.”
“Ultimately, any question of fitness to practise either at all or only under strict conditions beyond the power of the tribunal to impose is for the Supreme Court to determine.”
Dismissing the appeal, the court said in the circumstances, “the tribunal was correct to recommend that disciplinary proceedings be commenced in this court,” before turning to the commissioner’s application for the practitioner to be struck from the roll.
The LPCC relied on the findings of the tribunal to support its striking out application.
The court’s issue was “whether the unprofessional conduct of the practitioner is of such character as to require that his name be struck from the roll.”
It relied on Legal Practitioners Conduct Board v Boylen to say this requires “detailed consideration of all of the circumstances of the practitioner’s conduct,” and also considered a variety of other cases, including Prothonotary of the Supreme Court of NSW v P and Legal Practitioners Conduct Board v Clisby.
Taking everything into consideration, Justice Kelly was “of the view that on the present state of the evidence, and after giving due consideration to the seriousness of the proven conduct, this court cannot be satisfied that the practitioner is a fit and proper person to practice as a legal practitioner.”
However, she had explained, that there were “some aspects of the practitioner’s circumstances which give me cause to think that the practitioner may be deserving of a second chance.”
The first, a medical practitioner was of the opinion that the cause of conduct was attributable to Mr Thompson’s medical situation at the time, “namely his depressive condition and the stress he was working under at that time.”
Secondly, and similarly to Clisby, the court considered the fact that more than seven years had passed since the misconduct.
Since then, “the practitioner has voluntarily ceased practice,” obtaining “positions of some responsibility in alternative employment.”
It was also considered relevant that the practitioner’s conduct did relate “to only one client in respect of one particular matter.”
“On the other hand,” and unlike Clisby, Justice Kelly found it notable that there “is no evidence before this court as to the practitioner’s management of any other files for which he had responsibility, or indeed from any work colleague with whom or for whom he has ever worked.”
“The upshot of that is that this court has not heard from any independent person with or for whom the practitioner has ever worked,” the judgment continued.
The court did not hear from any independent person about Mr Thompson’s continued work performance, despite the fact he has been stably employed.
Taking everything into consideration, the court said that “ordinarily, this would lead to an order striking the practitioner’s name from the Roll of Practitioners.”
However, in this case’s exceptional circumstances, “including the practitioner’s voluntary relinquishment of his practising certificate for a period of seven years and his level of rehabilitation,” the court held out on the making of a striking off order.
In adjourning the LPCC’s application for “six months or such other period of time as may be appropriate,” the court held “the practitioner should be allowed an opportunity to address the deficiencies in his case that have been identified.”
“In particular, he should be allowed an opportunity to provide further satisfactory character references focusing on his present capacity to operate appropriately when under stress in the workplace and his present reputation for honesty and integrity in the workplace and in the wider environment.”