Queensland Law Society

Attorney-General of the State of Queensland v Legal Services Commissioner & Anor; Legal Services Commissioner v HW Shand [2018] QCA 66

Attorney-General of the State of Queensland v Legal Services Commissioner & Anor; Legal Services Commissioner v HW Shand [2018] QCA 66

Catchwords

Disciplinary proceedings – fit and proper person – appeal from the Queensland Civil and Administrative Tribunal – removal from Roll of Solicitors

Executive summary

The Attorney-General of the State of Queensland and the Legal Services Commissioner (‘the appellants’) appealed a decision of the Queensland Civil and Administrative Tribunal (‘the Tribunal’), contending the Tribunal erred in not recommending the respondent’s name be removed from the Roll of Solicitors.

Orders made:

  1. the appeal be allowed;
  2. order 2 of the decision of the Queensland Civil and Administrative Tribunal dated 12 May 2017 be set aside; and 
  3. the name of the respondent be removed from the Roll of Solicitors in Queensland.[1]

Background

In 2002 the respondent made a corrupt payment to a Minister of the Crown, consequently committing an offence under s 442BA Criminal Code (Qld). In 2011, after trial in the District Court, the respondent was convicted and sentenced to a term of 15 months imprisonment, suspended after four months.

In response to the respondent’s conduct, the Legal Services Commissioner applied to the Tribunal for a disciplinary order against him. The respondent conceded his criminal conduct amounted to professional misconduct.

The Tribunal subsequently found the respondent had engaged in professional misconduct, ordering the respondent not be granted a local practising certificate before the expiry of five years from the date of the order.[2]

The appellants appealed against the Tribunal’s decision, each contending the Tribunal erred in not recommending the respondent’s name be struck from the Roll.[3]

Issue

Should the respondent’s name be removed from the Roll of Solicitors in Queensland?

Issues considered

The Court “understood” the Tribunal’s reasoning to have been that although the respondent was “currently unfit to practise” at the time of the disciplinary hearing, at the time of the offence the respondent was not “permanently unfit to practise”.[4] In light of this understanding, the Court found the Tribunal’s reasoning to mean the respondent was then unfit, but it was not probable he would remain so. The Court did note that the “evidentiary basis for such finding is not immediately apparent”.[5]

It is well established that the purpose of s 456 Legal Profession Act 2007 (Qld) (‘LPA’) is not to punish the respondent, but to protect the public.[6] By restricting the respondent’s practising certificate, the public is immediately protected from the risks to which those who would encounter an unfit person would be exposed.[7]

Notwithstanding this, the Court observed that the removal of the name of an unfit practitioner from the Roll serves the interests of the public in more extensive ways as it “extends beyond protection against further default by the particular practitioner to protection against similar defaults by other practitioners”[8] and assures confidence in the community that only fit and proper persons are able to practise as lawyers.[9]

The Court noted that having regard to the wider purposes of the powers under s 456 LPA, it was necessary to preserve the good standing of the legal profession and of the Roll and the Court’s endorsement of the fitness of those enrolled. [10] The Court found the practitioner having been shown “not to be a fit and proper person to be a legal practitioner” should have his name removed from the Roll of Solicitors.[11]

 

Liam O’Shaughnessy

Ethics Clerk

As approved by Grace van Baarle, Manager, Ethics Solicitor, QLS Ethics Centre



[1] Attorney-General of the State of Queensland v Legal Services Commissioner & Anor; Legal Services Commissioner v Shand [2018] QCA 66 [67].

[2] Legal Services Commissioner v Shand [2017] QCAT 159.

[3] Attorney-General of the State of Queensland v Legal Services Commissioner & Anor; Legal Services Commissioner v Shand [2018] QCA 66 [6].

[4] Ibid [51].

[5] Ibid.

[6] Ibid [52].

[7] Ibid [53].

[8] Ibid [54].

[9] Ibid [55].

[10] Ibid [58].

[11] Ibid [61].