Queensland Law Society

Legal Services Commissioner v LJ McDonald [2018] QCAT 82

Legal Services Commissioner v LJ McDonald [2018] QCAT 82

Catchwords

Professions and trades – lawyers – complaints and discipline – professional misconduct and unsatisfactory conduct – other matters

Background

The respondent was admitted in 1998.

In 2013, the respondent self-referred himself to the applicant (Legal Services Commissioner) for disciplinary investigation and voluntarily surrendered his practising certificate.[1]

At the time of the relevant conduct, the respondent was a supervising partner at a “top tier Brisbane law firm”.[2]

The applicant alleged that the respondent “systematically forged (by adding false hours) 914 electronic timesheet entries submitted by legal staff under his supervision with the intended and practical effect of overcharging.”[3]

The respondent overcharged 23 clients a cumulative total of $515,000 over 18 months,[4] including one client being overcharged $136,415.[5] The respondent admitted each allegation in the disciplinary application,[6] and therefore acknowledged his fraudulent intent.[7] All overcharged clients were fully refunded (with interest) by the respondent’s firm.[8]

Issue

The applicant applied for an order recommending the removal of the respondent’s name from the local roll of legal practitioners.[9] The Tribunal had to determine whether the respondent’s actions warranted his name being removed from the roll. 

Issues considered

The Tribunal described the increased billing time as “disgraceful, dishonourable, and disreputable”, and a “gross breach of the fundamental fiduciary duties of honesty and undivided loyalty”.[10]

The Tribunal thus found that the respondent’s conduct amounted to professional misconduct.[11]

A “separate and more complex inquiry” [12] for the Tribunal was whether the respondent was unfit to practise law, and whether this unfitness warrants removal from the roll.

The Tribunal noted that respondents appearing before it in occupational disciplinal matters frequently attribute their conduct to “severe personal and work pressure, fatigue, depression and personality disorders”. However, the Tribunal stated that “unlike plants, bad behaviour for humans is a matter of free choice with each of us held fully accountable (personally and professionally) for the natural consequences.”[13] The Tribunal thus stated that “it is incumbent on a practitioner to have an effective strategy for adequately coping with [the practice of law’s] heavy demands”.[14]

The appropriate disciplinary penalty depended upon whether the respondent could be found to be unsuitable for legal practice.[15] In regards to making such a finding, “character and capacity of a practitioner are the decisive considerations”.[16] The respondent’s conduct may imply permanent unfitness but the Tribunal noted that a person may be unfit without being permanently so.[17]

Public perception and public protection are also relevant to determining the disciplinary order.[18] The Tribunal stated that “overlooking or underestimating slippage in the ethical standards, will eventually, as surely as dripping water wears away a stone, erode the dignity, reputation and credibility of the profession in the public eye and, in turn, diminish faith in the integrity of the legal system in general.[19]

However, the Tribunal cannot be “held hostage to the presumed sense of community outrage”.[20] The Tribunal held that “ending the career of a talented, hardworking and highly productive lawyer is too high a price to pay for public appeasement”.[21] Given that the jurisdiction of the Tribunal, which the applicant had invoked, exists for the public’s protection, it may be in the public’s economic interest that “the skills of talented people who have undergone years of rigorous training” are utilised.[22]

The Tribunal was reasonably satisfied that the respondent demonstrated “a full understanding of, as well as the willingness and ability to always abide by, the high standards the law requires of a solicitor when performing professional obligations in the future”.[23] The Tribunal found the respondent to be “now very different from the person he was when he [engaged in misconduct] both in terms of his mental health and, more significantly, his moral character”.[24]

The Tribunal held that the “fair and reasonable outcome for all involved” would be to make the following orders:

  1. the respondent to be publicly reprimanded for professional misconduct;
  2. the respondent pay a $20,000 fine;
  3. the respondent be prohibited from applying for, or obtaining, a principal practising certificate for 5 years after being granted an employee practising certificate; and
  4. the respondent pay the applicant’s costs on the standard basis.[25]

 

Harry Lee

Ethics Clerk

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



[1] Legal Services Commissioner v McDonald [2018] QCAT 82, [2].

[2] Ibid [2].

[3] Ibid [12].

[4] Ibid [12].

[5] Ibid [13].

[6] Ibid [12].

[7] Ibid [15].

[8] Ibid [17].

[9] Ibid [1].

[10] Ibid [17].

[11] Ibid [19].

[12] Ibid [20]-[21].

[13] Ibid [34].

[14] Ibid [35].

[15] Ibid [45]; Legal Services Commissioner v Madden [2008] QCA 301.

[16] Ibid [46].

[17] Ibid [95]; Re B [1981] 2 NSWLR 372, 381.

[18] Ibid [50]-[52].

[19] Ibid [53]; Prothonotary of the Supreme Court of New South Wales v Pangallo (1993) 67 A Crim R 77, 79.

[20] Ibid [54]; New South Wales Bar Association v Harman [1999] NSWCA 404.

[21] Ibid [110].

[22] Ibid [111]; Law Society of New South Wales v Foreman (No. 2) (1994) 34 NSWLR 408, 419 per Kirby P.

[23] Ibid [97].

[24] Ibid [99]; Prothonotary of the Supreme Court of New South Wales v Fitzsimons [2012] NSWSC 260 [67] per Adams J.

[25] Ibid [112].