It can be easy to fall foul of the legal professional conduct rules, particularly when it comes to complex tasks like managing client money via trust and office accounts. This is evident in the number and frequency of lawyers who are suspended or struck off from the Roll of Legal Practitioners every year.
Helping lawyers understand how to fulfil the profession’s requirements of being a ‘fit and proper person’ and avoid any findings of professional misconduct or unsatisfactory professional conduct is part of the College of Law’s mandatory CPD bundle. The College has compiled a helpful guide to meeting these professional requirements, with recent examples of lawyers who have failed to meet these requirements.
What is unsatisfactory professional conduct?
Lawyers may be disciplined for either ‘unsatisfactory professional conduct’ or ‘professional misconduct’. Under the Legal Profession Uniform Law (NSW) 2014 (‘LPUL’), unsatisfactory professional conduct has been defined as "conduct (whether consisting of an act or omission) occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer".
According to the Office of the Legal Services Commissioner, such conduct can include:
- Threatening or abusive behaviour
- Failure to comply with an undertaking
- Poor advice and representation
- Serious delay
- Non-disclosure of costs
- Minor breach of the Solicitors Conduct or Practice Rules or confidentiality
Case Study: Threatening behaviour and deriding clients
A regional solicitor was engaged to prepare parenting arrangements. In this case, unsatisfactory professional conduct included: failing to catch an error of dates, disadvantaging the client, who sought to take her daughter overseas for an extended period, and negligent preparation of documents (documents clearly included names of irrelevant parties, including Homer Simpson).
Once these errors were brought to the solicitor’s attention, the solicitor demanded immediate payment, refusing to send the sealed orders until payment was made. The solicitor then threatened to ask the judicial officer to reconsider allowing the client’s extended trip “because of the way you are behaving” and accused the client of “telling lies.”
The client then made a complaint to the Legal Services Commissioner. While the solicitor vehemently denied the complaint, the Tribunal ruled that the solicitor had failed to maintain a reasonable standard of competence or diligence that the public might expect of a reasonably competent solicitor and removed the solicitor from the Roll of Legal Practitioners.
What is professional misconduct?
Under the LPUL, professional misconduct is defined as either "unsatisfactory professional conduct which involves a substantial or consistent failure to reach or maintain a reasonable standard or competence and diligence or conduct happening in connection with the practice of law or otherwise that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice".
According to the Office of the Legal Services Commissioner, such conduct can include:
- Gross overcharging
- Conflicts of interest
- Acting contrary to instructions
- Misleading or dishonest conduct in or outside court
- Misappropriation of trust money
Case Study: Misuse of trust funds
Trust accounting can be complicated at the best times, as one solicitor found out. Suffering the effects of a failed marriage, terminally ill parent, and ill-fated venture into a trucking business and property development, the solicitor had argued they were unable to give full attention to the firm’s daily operations.
Unfortunately, this resulted in a failure to keep a client trust ledger for a matter, failure to appropriately hold trust money, misappropriation of ‘various sums of money’ (though these sums were repaid) and use of trust money to purchase a boarding house in the name of company for which the solicitor had an interest.
The solicitor was removed from the Roll of Practitioners, with the Tribunal unsatisfied that the solicitor possessed the requisite knowledge to maintain trust money strictly in accordance with legal and fiduciary obligations.
Case Study: 15 charges of professional misconduct
Recently, one solicitor was found guilty of fifteen charges of professional misconduct, all of which involved acts of dishonesty. The solicitor sent multiple false emails, made false representations, dishonestly created a false liquor license to be supplied to another person, and engaged in ‘file deceptions.’
In total, twenty-eight charges of professional misconduct were brought against the solicitor concerning acts over a fifteen-month period. The Tribunal regarded the solicitor’s conduct as involving ‘systemic dishonesty’, involving the deception of his employer, his clients, solicitors acting for other parties and regulatory authority.
Such conduct went beyond the mere ‘lapse in judgement’ or ‘stupid mistake’ that the solicitor alleged, and these understatements reflected the fact that the solicitor did not fully understand the seriousness of his crimes nor did it give the Tribunal confidence that the dishonesty would not recur.
The solicitor was reprimanded and is ineligible to apply for or be granted a new practising certificate before 11 October 2023.
What is a ‘fit and proper person?’
Determining what meets the criteria of being a ‘fit and proper person’ is notoriously elusive.
Broadly, any matter that may adversely reflect on a person’s fame or character or bring into question a person’s fitness to practise should be disclosed to the legal profession’s governing body as part of an application to become a solicitor.
Matters which involve dishonesty, a disregard for the law, or indicate a material risk of harm to consumers of legal services are likely to result in a failure to meet the criteria. This might involve criminal convictions, driving offences, infringement offences, social security or tax payment issues, academic or general misconduct, insolvency, offences concerning the administration of justice (e.g. contempt of court), or contravention of a disciplinary order.
Case Study: Failure to be a ‘fit and proper person’
Recently, a solicitor who was also involved union management was found guilty of using union credit cards to purchase escort services, restaurant meals and other personal expenses. The solicitor was subsequently fined $80,050, in addition to compensation of $378,180 payable to the union.
The solicitor was then charged with professional misconduct and failing to be a fit and proper person.
The solicitor was removed from the Roll of Legal Practitioners. The Court of Appeal, which heard the case, found little evidence to suggest the solicitor had demonstrated any insight into the serious deficiencies revealed by the conduct or undergone a reformation of character to fulfil the criteria of being a fit and proper person.
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