Queensland Law Society

Legal Services Commissioner v XBT [2018] QCAT 64

Legal Services Commissioner v XBT [2018] QCAT 64

Catch words

Complaints and discipline – disciplinary proceedings – professional misconduct and unsatisfactory professional conduct – falsification of documents threatening letters – mental health as a mitigating circumstance.

Executive summary

The Legal Services Commissioner (‘the applicant’) brought four charges against XBT (‘the respondent’):

  • one charge of false witnessing;
  • one charge of disreputable conduct; and
  • two charges of non-compliance with regulatory information.

Orders made:

  1. the respondent is publicly reprimanded;
  2. the respondent is ordered to pay a fine of $750;
  3. the respondent is ordered to pay the applicant’s assessed costs under the Queensland Civil and Administrative Tribunal rules by equal monthly instalments over a period of three years; and
  4. the application for non-publication is refused.

Background

The applicant alleges:

  • the respondent prepared and then witnessed a signature on a title transfer declaration asserting the complainant had been provided with a copy of the document by registered mail when, in fact, he had not been. The declaration was then lodged and acted upon without being corrected;[1]
  • the respondent made emailed remarks about a third party which was unbecoming of a solicitor and likely to bring the profession into disrepute;[2]
  • the respondent failed to comply with two statutory notices issued by the Queensland Law Society requiring her to provide information and an explanation of complaints under investigation.[3]

The respondent was suffering severe depression at the time of the alleged conduct.[4]

The respondent’s treating psychiatrist described the respondent as ‘…cognitively impaired with no energy or volition and medically unable to comply with even the most basic instructions/orders’.[5]

The respondent admits the allegations to each charge and admits they are capable of constituting a category of prescribed conduct.[6]

The matter was heard and determined on the papers without the attendance of either party.

Issues

  1. Does the mental state of the respondent at the time of the alleged conduct in any way mitigate the charges?
  2. Does the prescribed conduct engaged in by the respondent amount to professional misconduct or unprofessional conduct?

Issues Considered

In relation to issue one, the Tribunal held mental illness does not alter the objective character of the conduct or the protective purpose of disciplinary proceedings.[7]

The Tribunal noted there exists a ‘natural reticence to allow mental illness to excuse … dishonest conduct … as it is unlikely to deprive a person of the ability to appreciate the wrongfulness of her or his behaviour’.[8]

The Tribunal concluded there was insufficient evidence or justification to enquire into the respondent’s liability by reference to her capacity to act dishonestly or without a reasonable excuse.[9]

Accordingly, the Tribunal found the respondent had engaged in the prescribed conduct.[10]

In relation to issue two, the Tribunal considered the respondent’s honesty and integrity, courtesy and civility, and candour and cooperation.

Upon consideration, the Tribunal found the respondent’s conduct amounted to a ‘serious professional indiscretion’. Therefore, public reprimand was necessary to deter similar future conduct by other practitioners and to express the Tribunal’s disapproval of such conduct.[11]

Accordingly, the Tribunal found the respondent’s conduct in relation to one charge of disreputable conduct amounted to unsatisfactory professional conduct, and the respondent’s conduct in relation to the other three charges amounted to professional misconduct.[12]

 

Liam O’Shaughnessy

Ethics Clerk


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



[1] Legal Services Commissioner v XBT [2018] QCAT 64, [3].

[2] Ibid [4].

[3] Ibid [5].

[4] Ibid [6].

[5] Ibid.

[6] Ibid [2].

[7] Ibid [7].

[8] Ibid [7], citing G E Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 5th ed, 2013) 762, [23.145].

[9] Legal Services Commissioner v XBT [2018] QCAT 64, [12].

[10] Ibid [13].

[11] Ibid [21].

[12] Ibid [24].