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To protect the public and uphold the reputation of the profession, a tribunal has recommended that a Queensland family lawyer be removed from the roll, finding that lesser penalties for his historic misconduct have not had their “intended effect”.
Warren Lance Rosen engaged in two counts of professional misconduct and two counts of unsatisfactory professional conduct, the Queensland Civil and Administrative Tribunal (QCAT) determined in a decision published on Tuesday, 18 August.
The conduct spanned a failure to comply with an order, a breach of his duty to be honest and courteous, a costs disclosure mishap, and a breach of his obligation to be open and frank with the legal regulator.
In coming to its decision, QCAT considered past disciplinary action taken against Rosen, which included two unsatisfactory professional conduct findings and one of professional misconduct. The latter concerned Rosen’s failure to disclose relevant factual matters on an ex parte application he made in the Magistrates Court.
“The respondent has a quite unsatisfactory disciplinary history.
“It demonstrates a failure, in several different contexts, to recognise and comply with his professional obligations.
“The respondent’s history indicates that orders which were intended to be educative, and to provide some personal deterrence, have not had their intended effect,” Justice Peter Lyons KC, with panel members Richard Barnes and Keith Revell, said.
This history was extensively covered in the first charge, which accused Rosen of a failure to comply with an October 2020 order by the Legal Practice Committee to complete an ethics course.
Although Rosen completed the course component, he did not complete the examination and insisted via email to the Legal Services Commission he was “not required to complete the exam” because he had already been assessed in a previous ethics course.
That previous course was part of an earlier disciplinary penalty.
Justice Lyons said repetition “could hardly provide a basis for thinking that the order did not require him to repeat the examination”.
“If anything, his experience from the 2016 order would have supported the view that he was required to undertake the examination.
“His statement in response is no more than a baseless assertion, and does not provide support for the view that the respondent may have believed the committee’s order did not require him to undertake the examination.”
The next charge related to an affidavit Rosen prepared for a client as part of her application for a domestic violence protection order. Claims this affidavit was late, disclosed details that should have been confidential, and contained errors was dismissed by the tribunal.
After the affidavit was criticised by counsel, Rosen responded: “Suffice it to say that our client’s affidavit was prepared by our client.”
It was unclear how the client came to be aware of this response, but her concern prompted Rosen to correct the record.
“The only conclusion reasonably open on the evidence is that his earlier statement was untrue, to his knowledge,” Justice Lyons said.
While it was “not easy to see this conduct as a failure in competence and diligence”, Justice Lyons said Rosen did not take issue with its inclusion in charge three, and, in turn, that it amounted to either professional misconduct or unsatisfactory professional conduct.
Billing of this client without a costs disclosure was the subject of the next charge.
In April 2020, the client received a bill of $240. This was increased in a May 2020 invoice to the amount of $1,131.32, and then again to the amount of $4,042.41 in an August 2020 invoice.
Ultimately, Rosen claimed a total of $7,766.
Under the Legal Profession Regulation 2017 (Qld), Rosen would have been exempted from the disclosure requirements only if it was not likely that the costs would have exceeded $1,500.
However, by at least the May invoice, he was aware that counsel fees would have approached $3,000. In these circumstances, Rosen could “not have truthfully said” he was unaware the costs would exceed the $1,500 limit until the conclusion of the matter.
“A solicitor in practice in Queensland in 2020 must have been constantly aware of the obligation to make costs disclosure, and the limited circumstances in which that obligation did not apply.
“The respondent’s failure to give costs disclosure in this case reflects at least a relatively high level of indifference to his professional obligations, and indeed a willingness to ignore them,” Justice Lyons said.
The final charge related to Rosen’s action against the client in Wynnum Magistrates Court for unpaid fees. The magistrate gave judgment in his favour but decreased the amount owed to $3,883.30.
His communications with the Legal Services Commission on what occurred during this hearing amounted to a failure to “furnish a full and accurate account of the solicitor’s conduct when responding to a requirement of a regulatory authority for comments or information in relation to the solicitor’s conduct”.
