5. Standard of conduct - dishonest and disreputable conduct

1. A solicitor must not engage in conduct, in the course of legal practice or otherwise, which:
   1. demonstrates that the solicitor is not a fit and proper person to practise law; or 
   2. is likely, to a material degree to:
      1. be prejudicial to, or diminish the public confidence in, the administration of justice; or
      2. bring the profession into disrepute.

Commentary

5.1 Fit and Proper Person

Rule 5 has no Queensland equivalent in the previous Legal Profession (Solicitors) Rule 2007.

The requirement of fitness to practise is enshrined in common law and is central to the disciplinary and practising certificate provisions of the LPA.

A Queensland solicitor when applying to the Queensland Law Society for the grant or renewal of a practising certificate is required to disclose matters that may affect the applicant’s eligibility for the grant or renewal of a practising certificate or the question of whether the applicant is a fit and proper person to hold a practising certificate.¹⁰

A solicitor is required to notify and provide an explanation to the Queensland Law Society upon the happening at any time of a ‘show cause event’, being an act of insolvency or conviction for an indictable or tax offence.¹¹

The Society may refuse, amend, suspend or cancel a practising certificate if a solicitor fails to notify and explain a ‘show cause event’ or if the Society does not, following notification and explanation, consider that the solicitor is a fit and proper person to hold or continue to hold a practising certificate.¹²

The primary purpose of disciplinary proceedings is to protect the public and to maintain 'standards of professional practice': Harvey v Law Society of NSW (1975) 49 ALJR 362, 364. The crucial question is whether having regard to the circumstances, the disciplinary tribunal is any longer justified in holding out the solicitor in question as a fit and proper person to be entrusted with the important duties and grave responsibilities of a solicitor: Attorney-General v Bax [1999] 2 Qd R 9, 12 (being submissions of PA Keane QC, S-G and RW Campbell) cited with approval in Legal Services Commissioner v Wood [2012] QCAT 185, [9]. As Kitto J said in Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, 298: 

"It is not capable of more precise statement. The answer must depend upon one’s conception of the minimum standards demanded by a due recognition of the peculiar position and functions of a [lawyer] …"

In Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 the Prothonotary applied to remove from the Roll a solicitor who had been charged with and subsequently pleaded guilty to the importation of a quantity of cocaine. The solicitor had been admitted in 1987 and practised until February 2000. She had a drug addiction from about 1994. The addiction was not detected by family, friends or colleagues. She had been described as a competent and honourable person. The solicitor voluntarily ceased to practise in 2000. On pleading guilty she was sentenced to 6 months imprisonment to be released after 3 months on entering into a recognisance for 3 months. At the time of the application she was drug free. The court noted that in these situations the facts must be looked at closely. Young CJ in Equity summarised the principles as follows at [17]:

1. The onus is on the regulating agency to show that the solicitor is not a fit and proper person. It is a civil onus: Re Evatt; Ex parte NSW Bar Association (1967) 67 SR (NSW);
2. an order striking off the Roll should only be made when the probability is that the solicitor is permanently unfit to practise: Prothonotary v Richard (NSWCA 3.17.1987 per McHugh JA) and see NSW Bar Association v Maddocks (NSWCA 23.8.1988);
3. the fact that the opponent has a conviction for a serious offence is not necessarily a sufficient reason for an order striking that person off the Roll: Ziems v Prothonotary (1957) 97 CLR 279, 283; 
4. the fact of conviction and imprisonment, is, however, far from irrelevant and may be regarded as involving a degree of disgrace itself. See Ziems case at 288;
5. the court needs to consider the conduct involved in the conviction and see whether it is of such personally disgraceful character that the solicitor should not remain a member of an honourable profession: Re Weare [1893] 2 QB 439, 446; Barristers’ Board v Darveniza (2000) 112 A Crim R 48;
6. the fact that the solicitor pleaded guilty to the charge will usually be counted in their favour; NSW Bar Association v Maddocks.; 
7. conduct not occurring in the course of professional practice may demonstrate unfitness if it amounts to incompatibility with the personal qualities essential for the conduct of practice. There may not even have been any criminal conviction with respect to that conduct. This is particularly so where the conduct over a long period shows systematic non-compliance with legal and civil obligations: NSW Bar Association v Cummins (2001) 52 NSWLR 279, 289; NSW Bar Association v Somosi (2001) 48 ATR 562; 
8. the concept of good fame and character has a twofold aspect. Fame refers to a person’s reputation in the relevant community, character refers to the person’s actual nature: McBride v Walton (NSWCA 15.7.1994 per Kirby P); Clearihan v Registrar of Motor Vehicle Dealers (1994) 117 FLR 455, 459; 
9. the attitude of the professional association is that the application is of considerable significance; 
10. the question is one of present fitness, not fitness at the time of the crime: Prothonotary v Del Castillo [2001] NSWCA 75, [71].

His Honour did not demur from the following ten propositions put forward by counsel for the solicitor:

1. absence of prior disciplinary record;
2. absence of motive for personal enrichment;
3. genuine remorse;
4. honesty and co-operation with the authorities after detection;
5. the offences being unrelated to the practice of law in that the addiction had not impacted on her professional duties and had not resulted in harm to her clients or other people;
6. the ignominy of having suffered a criminal conviction and the deterrent element;
7. the absence of premeditation with respect to the commission of the crime;
8. evidence of the good character;
9. voluntary self-imposed suspension from practice; and
10. convincing evidence of rehabilitation.

The solicitor also proffered an undertaking to accept the attachment to any practising certificate of any reasonable conditions to the effect that she undergo regular drug testing and report the results periodically to the Law Society. The court considered that the solicitor was a fit and proper person to remain on the Roll.

Determining whether or not a lawyer is a fit and proper person requires consideration of ‘the whole position with meticulous care’: A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253, 266. In this case a solicitor pleaded guilty to four counts of aggravated indecent assault of persons under the age of 16 years. He was convicted and sentenced to 3 months imprisonment. On appeal the sentence was reduced to an order to be of good behaviour for 3 years. Some years later he was subject to further similar charges. The Society notified the solicitor it was considering disciplinary charges with respect to the four admitted offences. Before the disciplinary hearing was held, the solicitor was found guilty of the further charges and sentenced to two years imprisonment. These convictions were quashed on appeal. The Society applied for an order that the solicitor’s name be removed from the Roll on the ground that the conduct which was the subject of the four admitted offences was professional misconduct. The solicitor filed an affidavit in those proceedings disclosing the further convictions and the successful appeal. The Society contended that the solicitor was not a fit and proper person for the further reason that he had failed to disclose to the Society the further pending charges when the solicitor knew that the Society was considering whether disciplinary action should be taken in respect of the original charges. The NSW Court of Appeal found the conduct comprising the four admitted offences and the failure to disclose to the Society the two further convictions at a time that the solicitor was aware that the Society was actively considering whether to take disciplinary action each constituted professional misconduct. The Court of Appeal also found by reason of the combined effect of the misconduct and the nondisclosure, the solicitor was not a fit and proper person to be a legal practitioner. The High Court granted the solicitor special leave to appeal. The High Court, held, inter alia, that when the solicitor was aware the Society was considering disciplinary action for conduct which was the subject of the first convictions, frankness required him to inform the Society of the further convictions and sentences for similar offences, even if he regarded them as unjust and hoped they would be set aside on appeal, and his failure to inform the Society was professional misconduct. In determining whether a solicitor was a fit and proper person to be a legal practitioner it was held that it was correct to consider the combined significance of the misconduct which was the subject of the first convictions and the separate conduct constituted by the subsequent lack of candour to the Society. However, the High Court held that the Court of Appeal gave insufficient weight to the isolated nature of the admitted offences and the subjective case made on behalf of the solicitor. The court held that the appropriate order was that the solicitor should be suspended for five years.

In Legal Services Commissioner v Richardson (No. 2) [2009] QLPT 26 one of the charges was that the solicitor obtained certificates of title without his client's instructions, thereby breaching his retainer. Further, he used his powers under an Enduring Power of Attorney dishonestly to obtain the certificates of title thereby breaching his duties under the Powers of Attorney Act 1998 (Qld). The Tribunal found that with respect to this charge the solicitor “acted both improperly and dishonestly in failing to make full disclosure and seek instructions from his clients because he knew that if he did the clients would instruct him not to do what he proposed to do in furtherance of his own interests against the interests of his client [5]. The final charge related to repeated acts of deceit and incompetence by the solicitor with respect to the conduct of civil litigation for clients. The solicitor had made an error in not making note of the date of a directions hearing and failing to inform his clients, he then embarked on a course of concealment. The Tribunal found that these charges of misconduct involved dishonesty and deceitfulness. The solicitor was held to "[lack] the necessary attributes required of a legal practitioner" [11] and his name was ordered to be removed from the Roll.

In Attorney-General v Bax [1999] 2 Qd R 9, 20 Pincus JA held that "dishonesty, like other forms of misbehaviour, has grades of seriousness."

5.1.1 Grounds for finding a breach of Rule 5

In considering potential contraventions of Rule 5, regard may be had to matters that would determine whether a person is a fit and proper person to hold a practising certificate: LPA s 419(2). These include contraventions of the law or any disciplinary orders, failures to pay relevant levies or insurances, or “other matters the Commission thinks are appropriate”: LPA s 46. Dishonest, deceitful, misleading and fraudulent conduct. A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253.¹³ See above for a discussion of this case.

A breach of the criminal law. Convictions for a 'serious offence', a 'tax offence' or an offence involving dishonesty may amount to unsatisfactory professional conduct or professional misconduct: LPA s 420(1). The seriousness of a breach of the criminal law must call into question the solicitor’s willingness and ability to obey the law: Legal Services Board v McGrath (No 2) [2010] VSC 332, [14] – [16]. Warren CJ added that 'any suggestion that crimes committed at arm’s length, such as those which involve child pornography, can be considered of lesser seriousness in deciding upon an individual's fitness to remain on the Roll should be the subject of intense scrutiny'.¹⁴

Lack of competence. Incompetence that would diminish public confidence in the administration of justice or bring the profession into disrepute may be a breach of Rule 5 as well as Rule 4.1.3. In Legal Practitioners Board v Kerin [2006] SASC 393 the Full Court of the Supreme Court of South Australia had regard to a practitioner’s conduct which included breaching client confidence, acting against the interests of his client, acting against instructions, the sending of threatening and abusive letters to his client, filing a pleading containing defamatory and embarrassing material, inter alia. The court concluded that "The totality of the circumstances… indicates that the practitioner lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibility of a legal practitioner" [28].

Incompetence extends to a medical condition that so impairs a practitioner that they are unable to deliver legal services competently, diligently and promptly. The issue is not one of blame, but the protection of the public.

Factors bearing on the seriousness of the breach. If there has been potentially disreputable conduct, the courts will consider its connection with the practice or responsibilities of a solicitor, its moral blameworthiness, its persistence and the level of remorse. Each will have a bearing on whether a finding of unsatisfactory professional conduct or professional misconduct is made.

Connection to practice. Conduct in the course of practice has a 'much more direct bearing of a man's fitness to practise than [personal misconduct]': Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279, 290. However, personal misconduct may influence the court's assessment if the conduct is ‘so connected’ to the practice of law as to amount to professional misconduct: A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253. 

Lack of remorse. A lack of remorse over the offence, or ‘lack of ethical insight’ into its nature or a failure to understand the error of their ways itself demonstrates their unfitness to belong to the profession. The failure to understand the impropriety of conduct may be a factor of very great importance: The Legal Practitioners Complaints Committee v Lashansky [2007] WASC 211, [35]; NSW Bar Association v Evatt (1968) 117 CLR 177, 183-184. A conviction in which there has been disdain for the victims of the crime ‘will raise a serious concern about a practitioner’s professional and moral fitness to remain an officer of the court’: Legal Services Board v McGrath (No 2) [2010] VSC 332.¹⁵ 

Moral blameworthiness. In Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 the practitioner had been convicted of vehicular manslaughter and sentenced to two years imprisonment with hard labour. Evidence had been led at the trial that at the relevant time the practitioner was under the influence of alcohol. The practitioner had denied this maintaining that he was suffering from shock and concussion as a result of an assault about an hour prior to the accident. Kitto J observed:

"The conviction is of an offence the seriousness of which no one could doubt. But the reason for regarding it as serious is not, I think, a reason which goes to the propriety of the barrister's continuing a member of his profession. The conviction relates to an isolated occasion… it does not warrant any conclusion as to the man’s general behaviour or inherent qualities… It does not indicate a tendency to vice or violence, or any lack of probity. It has neither connexion with nor significance for any professional function": at 299.

Persistent conduct. In NSW Bar Association v Evatt (1968) 117 CLR 177 a barrister was found guilty of professional misconduct in that he actively assisted in and facilitated a systematic course of action whereby two solicitors charged extortionate and grossly excessive sums as costs to clients and that in so acting he charged fees which were excessive and which he knew would be paid from the amounts so charged by the solicitors. The court held:

"The facts proved and found demonstrated unfitness to be a member of the Bar – not some isolated or passing departure from proper professional standards…" (p183).

See also Attorney-General v Bax [1999] 2 Qd R 9.

Previous disciplinary proceedings. In Legal Practitioners Conduct Board v Le Poidevin (2001) 83 SASR 443 the practitioner had been previously suspended from the right to practise for 2 years. Whilst suspended the practitioner engaged in practice without holding a practising certificate. The practitioner also ignored statutory notices to respond to the Society. The Tribunal found the practitioner guilty of unprofessional conduct. The Board applied to the Full Court of the Supreme Court of South Australia for the removal of the practitioner from the Roll. Doyle CJ said:

“The conduct of the defendant absent any explanation suggests that he has no regard at all for his obligation as a practitioner. He is not to be punished twice for the same matter but when the present matters are viewed in the context of the earlier findings of unprofessional conduct it suggests to me the defendant is no longer fit to remain a practitioner of this court”: at 446.

Medical conditions. A finding that the solicitor's misconduct was the result of a medical condition would not avoid the imposition of a disciplinary penalty if the condition were ongoing because the primary issue is the protection of the public and ensuring confidence in the administration of justice: Legal Practitioners Conduct Board v Phillips (2002) SASR 467; Legal Practitioners Conduct Board v Thomson (2009) SASC 149. However, if the conduct occurred during a period when the solicitor was affected by a temporary medical condition, then that would be taken into account when deciding whether or not the solicitor was fit to practise, because it is fitness to practise at the time of the hearing, not the time of the disciplinary offence, which is relevant.

10 s 50(2) LPA (Qld).

11 s 67 LPA (Qld) and Schedule 2 LPA (Qld). 12 s 69 LPA (Qld).

12 s 69 LPA (Qld).

13 Other examples are: Clough v Queensland Law Society Inc; A-G v Clough [2000] QCA 254; Legal Services Commissioner v Wherry [2009] LPT 22; Legal Services Commissioner v Chadwick [2009] QLPT 16; Legal Services Commissioner v Richardson (No 2) [2009] QLPT 26; Legal Practitioners Conduct Board v Lind [2011] SASCFC 104; Legal Practitioners Board v Kerin [2006] SASC 393; cf Attorney-General and Minister for Justice (Qld) v Priddle [2002] QCA 297.

14 Considered in: Legal Services Commissioner v CBD [2012] QCA 69, [18].

15 See also: The Law Society of South Australia v McKerlie [2008] SASC 222; Law Society of New South Wales v Moulton [1981] 2 NSWLR 736, 740-741, 742-743 (Hope JA, Reynolds JA agreeing), 754 (Hutley JA).