QCAT refuses ‘lay associate’ role for disqualified practitioner

In Evans v Queensland Law Society,¹ the Queensland Civil and Administrative Tribunal dismissed an application by a disqualified practitioner to be employed as a lay associate of a law practice that he was formerly the principal of.

The tribunal found the application posed an unacceptable risk to the public and to the standing of the profession.

Facts

Mr David Evans was made bankrupt in 2021. This was a show cause event. His bankruptcy came about to a significant degree because of his failure to meet obligations to the Tax Office and to employees of his sole practice, with debts of over $1.6 million.

The Executive Committee of the Queensland Law Society determined that Mr Evans had not shown he was a fit and proper person to hold a practising certificate and refused his application to renew his practising certificate.

Mr Evans did not challenge this decision. However, four days after receiving the decision, he applied to be employed as a lay associate of the incorporated legal practice Gold Coast City Solicitors Pty Ltd (GCCS). He had been the sole principal of GCCS prior to his bankruptcy and an employed solicitor of GCCS following his bankruptcy.

Issues

There were four crucial aspects to the application which required determination: Mr Evans’ character; the true nature of the role envisaged for him; the capacity of the principal, Mr Williams, to enforce strict conditions surrounding Mr Evans’ involvement in GCCS; and whether the imposition of the proposed conditions and undertakings would meet the Society’s legitimate concerns.

Mr Evans’ character

The findings made against Mr Evans by the Executive Committee, on his application to renew his practising certificate, were compelling and showed his conduct to be egregious.²

He had repeatedly breached, over an eight-year period, his professional obligations as principal of a law practice to ensure that the statutory fiscal liabilities of the law practice – to pay tax and make compulsory superannuation contributions – were met.

He had preferred his own interests over those of his creditors and employees, failed to demonstrate candour and honesty in his dealings with employees and the Society, and failed to show respect for the law.

Envisaged role as lay associate

At a time when Mr Evans supposedly had no control over GCCS, it was inferred that he orchestrated changes of ownership of the law practice and he remained in effective control of GCCS, at least until Mr Williams’ appointment as principal.

The short period of time that elapsed between learning of his disqualification and the making of the application was also relevant. These factors made it difficult for the tribunal to avoid an inference that, while notionally disqualified, Mr Evans planned to continue “in the same practice with the same clients, doing precisely what to keep those clients remaining quite obscure”.³

Mr Williams had advised the Society that by reason of Mr Evans’ 26 years’ experience since admission and his strong presence at the law practice, revenue would reduce over 50% if he did not continue.

However, the tribunal was doubtful that many practices could or would claim that revenue would reduce by 50% if they changed the employee that performed largely back-room duties.

The tribunal further observed that a reduction in the profits of GCCS was not relevant to the application to the tribunal and so far as the intended duties of Mr Evans were disclosed, it was difficult to see how they could result in saving the business of the law practice.

Inexperience of principal

The tribunal acknowledged Mr Williams’ relative lack of experience in the law. In addition to his responsibilities as principal of GCCS, he operated his own practice Williams-Solicitors with 88 open files.

The tribunal found there was a legitimate concern as to Mr Williams’ capacity to manage both practices and supervise Mr Evans while not breaching the undertakings that constrain Mr Evans’ ability to engage in legal practice.

The tribunal found that Mr Evans would no doubt possess knowledge and skill that Mr Williams did not, and Mr Williams would therefore be required to “resist the very human urge to use the resource sitting next to him” when grappling with legal problems that may be novel, complex and sometimes, under severe time pressure.⁴ Here, the tribunal had little comfort that he would be up to the task.

Communication with the tribunal

Concerns regarding the suitability of the proposed arrangements were heightened by Mr Evans’ direct correspondence to the tribunal, after the hearing, without the consent of the Society.

Mr Evans’ raised objection to the use of the term ‘law clerk’ and instead wanted to use the term ‘lay associate’ for his proposed role at GCCS. The tribunal had observed during the hearing that members of the public would not likely have any idea what the term ‘lay associate’ means. This correspondence only added to the tribunal’s concern as to precisely what role was envisaged for Mr Evans and how he would be presented to clients.

Significantly, Mr Evans acted as a solicitor might, despite assuring the tribunal that he would not do so as a lay associate. Mr Evans advanced legal argument, apologised on behalf of counsel and responded to the opponent, albeit ignoring the conduct rules in the process.⁵

Counsel for Mr Evans submitted that Mr Williams had directed Mr Evans to send an email directly to the tribunal because Mr Williams perceived some urgency in dealing with matters raised.

The tribunal found this direction to be inexplicable, as there was no urgency that could have justified a departure from the ethical obligations of both sides in the proceedings.⁶

This involved a serious error of judgement by Mr Williams.⁷ When under time pressure, he did not turn to counsel, the obvious person to involve, or send the email himself, but called on Mr Evans who was effectively a lay client. The tribunal raised concerns that this would not be the last time there would be such confluence of factors if Mr Evans was employed at the practice.

Conclusion

The tribunal found the application posed unacceptable risk to the public and to the standing profession.

The combination of three matters identified at the outset lay at the heart of the problem – Mr Evans’ character as disclosed by his conduct, the role envisaged for him, and the inexperience of the principal.⁸

The imposition of the proposed conditions and undertakings would not adequately address these concerns. The tribunal confirmed the decision of the Society and dismissed the application.

Amy Bewley is a Queensland Law Society Senior Solicitor, Regulation. Sarah Millar is a law clerk at the Queensland Law Society Ethics and Practice Centre.

Footnotes
¹ Evans v Queensland Law Society [2022] QCAT 284.
² Ibid [31].
³ Ibid [40].
⁴ Ibid [54].
⁵ Ibid [63].
⁶ Ibid [60].
⁷ Ibid [63].
⁸ Ibid [73].