Legal Services Commissioner v JL Dingwall  QCAT 76
20 April 2017
Legal Services Commissioner v JL Dingwall  QCAT 76
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT – where respondent failed to progress three client matters causing delay – where respondent made false representations in relation to the progress of three client matters – where respondent subsequently removed false representations from client file entries to reflect the actual progress in those matters and informed employer – where respondent was a junior lawyer of 5 to 6 years post-admission experience – where little to no supervision offered by firm – whether respondent’s actions misleading and dishonest – whether whole of respondent’s conduct amounts to professional misconduct – whether respondent a fit and proper person – whether imposition of a fine is an appropriate order.
The Legal Services Commissioner (‘the Applicant’) brought 6 charges against D (‘the Respondent’) in relation to three different matters. The Applicant alleged 3 charges of false representations, 2 charges of delay and failure to advance a client’s actions, and 1 charge of delay and failure to advance a client’s matter. The Respondent admitted to all of these allegations.
The Queensland Civil and Administrative Tribunal (‘the Tribunal’) made the following orders:
- The Respondent be publicly reprimanded.
- The Respondent be ordered to pay a fine in the sum of $2,000.00.
- After obtaining an employee level practising certificate, the Respondent work under the supervision of another legal practitioner who holds a Principal level practising certificate.
- The Respondent be prohibited from applying for or obtaining a certificate to practise as a Principal for a period of 3 years after obtaining an employee level practising certificate.
- In the absence of an agreement within 30 days, the Respondent pay the Applicant’s costs to be assessed on the standard basis on the Supreme Court Scale under the Uniform Civil Procedure Rules 1999 (Qld) in the manner that the costs would be assessed were the matter in the Supreme Court of Queensland.
At various stages between September 2012 and September 2013, the Respondent had taken over the conduct of three matters previously managed by other colleagues who were on leave.
In the three matters, there was no “handover” or memorandum to inform her of the current status of the file. She felt she was expected to take the files without question regardless of her workload. At the time it was difficult for the Respondent to know who her immediate supervisor within the firm was because of the various areas of law in which she was practising. The firm had no formal risk management plan, no practice-wide diary system, checklists or structured written policy specifying the regularity of communication with clients during the course of matters.
During the course of a year, the Respondent made false representations to the clients about the progress of the three matters and failed to advance them.
In September 2013, the Respondent informed her supervising partner of all the relevant facts, including her dishonesty. The Respondent then proceeded to remove the false representations that she had entered on all copies of the client files. She subsequently resigned from the firm.
The Respondent has since been diagnosed, and successfully treated for her anxiety disorder and mood deficit, which had been exacerbated by the work conditions at her previous firm according to her clinical psychologist.
The Tribunal had to decide whether the Respondent’s conduct amounted to unsatisfactory professional conduct or professional misconduct.
In considering the question of professional misconduct, Thomas J formulated the test as follows: “the test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.”
The Tribunal stated that, for a solicitor to fulfil the duty of competence owed to clients, instructions should not be accepted unless the solicitor is “confident” that they will be able to “provide prompt and efficient service to the client”.
The Tribunal noted that workloads may temporarily become less manageable, but in such circumstances a solicitor must be “candid, honest and open in communications with clients about delays” and the steps which the practitioner proposes to take to rectify the temporary overload.
Where a client loses rights as a result of the solicitor’s neglect (such as a limitation period being allowed to expire), the conduct is “more likely to be regarded as professional misconduct”.
In this case, the Respondent’s delays did not result in a loss of rights, in that limitation periods had not expired, but her dishonest and misleading communications to her clients undermined the fundamental basis of trust which “underpins” the relationship between solicitor and client.
The Court accepted the Respondent’s explanation that she had removed the misrepresentations from the client files in order to assist colleagues who would be taking over the files, rather than to conceal her conduct. Attempted concealment would have been antithetical to the Respondent giving her employer the full details of the delays and dishonesty.
However, the Tribunal viewed the Respondent’s conduct as a whole as professional misconduct.
The Tribunal concluded that the Respondent’s conduct was not such as to lead to a finding that she was not a fit and proper person to engage in legal practice. The Respondent was permitted to continue her employment as a solicitor at a new firm due to the Respondent’s successful psychological treatment, and the new firm’s “team environment”, “direct input on all files by her employer”, “regular meetings” and “support and supervision”. The Tribunal also noted the following:
- the Respondent had no other complaint made about her conduct as a solicitor
- the Respondent has never had any criminal convictions
- the Respondent’s current employer is supportive of her and pending the outcome of these proceedings intends to employ her as a solicitor
- at an early time, the Respondent admitted her dishonesty by approaching her supervisor
- the Respondent co-operated with the Queensland Law Society and the Applicant
- the Respondent is remorseful in her conduct and believes that she has gained insight into her wrongdoing.
As approved by Grace van Baarle, Manager, Ethics Solicitor, QLS Ethics Centre
 Legal Services Commissioner v Dingwall  QCAT 76, .