Queensland Law Society

Legal Services Commissioner v RJ Gould [2016] QCAT 533

Legal Services Commissioner v RJ Gould [2016] QCAT 533

LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – where the respondent was charged with misleading his client, misleading the Queensland Law Society and failing to supervise his employee – where the applicant charged the respondent with failing to maintain standards of competence and diligence by not advancing his client’s matter in a timely fashion – where the Commissioner alleged that the respondent misled the client by falsely telling them the opposing counsel was delaying

Background Facts

The Applicant alleges five charges of professional misconduct and/or unsatisfactory professional misconduct due to complaints from two clients of the Respondent:

Client D

There was an inordinate delay in the progress of Client D’s matter.[1] The Respondent subsequently informed Client D that this delay was related to the defendant’s solicitors which the Applicant alleges was misleading.[2] The Respondent alleges that he communicated to Queensland Law Society (‘QLS’) that he had fully informed Client D of his workload and inexperience in the relevant practice area, and that Client D had made a fully informed decision to continue being represented by the Respondent which the Applicant asserts was misleading.[3]

Client S

The Respondent failed to exercise full time supervision of a solicitor (‘P’) and a conveyancing clerk (‘H’) in the conveyance of Client S.[4] The Respondent informed QLS that he believed that P held a current unrestricted practising certificate though he had noted in a prior email to P that she only held a restricted practising certificate.[5]

Issues

The issues to be determined by the Tribunal were whether the Respondent had:

  • failed to maintain reasonable standards of competence and diligence in relation to Client D’s matter;
  • misled Client D;
  • failed to exercise reasonable supervision in relation to Client S’s matter; and 
  • misled QLS.

The Tribunal had to determine whether the Respondent’s conduct amounted to unsatisfactory professional conduct or the more serious category of professional misconduct.[6] If the conduct is part of a pattern of conduct, it is likely that it will constitute the more serious characterisation of professional misconduct.[7]

Issues Discussed

Duty to conduct matter in a timely and efficient manner

A solicitor has the duty to ensure a matter is conducted in a timely and efficient way.[8] The Tribunal noted that it is thus not acceptable for a solicitor to be completely reliant upon counsel when briefed because both solicitor and barrister owe independent duties to the client.[9] If a solicitor is unfamiliar with an area of law such that they are unable to discharge their duties, the solicitor should not accept instructions in such a matter.[10] The Respondent’s conduct in relation to the delay in Client D’s matter was “over a lengthy period of time” but did not result in the client being deprived of his rights. The Tribunal held that this conduct amounted to unsatisfactory professional conduct.

Duty not to mislead

The Respondent misled Client D by attributing the delay in the matter to the defendant’s solicitors.[11] Whether or not the Respondent was actually awaiting advice from counsel does not alter the inveracity of claiming that the opposing solicitors caused the delay.[12] The solicitor-client relationship is founded on trust. There must therefore be open and truthful communication. Where the solicitor encounters difficulties, the solicitor ought to enable the client to give informed instructions in their best interests. The Respondent having thus misled Client D amounted to conduct which falls substantially short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.[13]

Adequate supervision

A solicitor has a duty to supervise their employed staff. The extent of this duty depends upon how experienced the staff member is. Given that P had a restricted practising certificate, the Respondent owed a high level of supervision, a duty which the Respondent failed to discharge.[14] The Tribunal further found that employing a senior solicitor in a management role does not absolve a principal of their duty to supervise.[15] The Respondent’s failure to fully supervise thus amounted to unsatisfactory professional conduct.[16]

Honesty

A solicitor must be honest in their dealings with both the regulator (Applicant) and their professional associations such as QLS.[17] Although the Respondent denied having misled QLS in relation to informing Client D of his expertise and workload limitations, his admitted failure to keep adequate records is itself a failure to maintain the expected standard of competence and diligence.[18] In relation to informing QLS of his belief that P was holding a current unrestricted practising certificate, the Respondent misled QLS by, at the least, not paying proper attention to the duty of honesty and candour owed to QLS.[19] The Respondent’s reckless conduct thus amounted to professional misconduct.[20]

Overall, the Tribunal held that the Respondent’s conduct fell short to a substantial degree of the standard of professional conduct observed or approved by members of good repute and competency.[21]

Sanction

The Tribunal reiterated that a “significant consideration as to sanction is the deterrent effect”[22] and the primary purpose of disciplinary proceedings is not to punish the practitioner but to protect the public.[23] A public reprimand was thus imposed.[24]

The Tribunal noted the factual similarities with Legal Services Commissioner v Smith[25] and thus imposed a $6,000 fine.[26]

As the explanation which the Respondent gave for his conduct bears similarity with his current position,[27] the Tribunal ordered the Respondent to engage the services of a person (G) to provide advice regarding appropriate management systems within his practice, to ensure the Respondent’s conduct meets the standard of competence and diligence expected of a reasonably competent legal practitioner.[28] The Respondent could thereby retain his principal level practising certificate provided that he comply with the nine conditions referred to in the Tribunal’s order to engage G.[29]

 

Harry Lee

Ethics Clerk

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



[1] Legal Services Commissioner v Gould [2016] QCAT 533, [16].

[2] Ibid [19].

[3] Ibid [23].

[4] Ibid [31].

[5] Ibid [35].

[6] Ibid [38].

[7] Ibid [39].

[8] Ibid [41].

[9] Ibid [42].

[10] Ibid [43].

[11] Ibid [44].

[12] Ibid [45]-[46].

[13] Ibid [47].

[14] Ibid [52].

[15] Ibid [53].

[16] Ibid [54].

[17] Ibid [48].

[18] Ibid [49].

[19] Ibid [50].

[20] Ibid [51].

[21] Ibid [55].

[22] Ibid [75].

[23] Ibid [74].

[24] Ibid [76].

[25] [2014] QCAT 518.

[26] Legal Services Commissioner v Gould [2016] QCAT 533, [77]-[79].

[27] Ibid [80]-[81].

[28] Ibid [82]-[83].

[29] Ibid [86].