A Brisbane solicitor is facing a raft of sanctions after she breached an undertaking to the Queensland Law Society.
The practitioner applied for a principal practising certificate (PPC) on 12 March and 19 May 2021, in contravention of the undertaking she gave to the QLS on 21 June 2019.
In the Queensland Civil and Administrative Tribunal (QCAT) yesterday, the Legal Services Commission (LSC) alleged she had engaged in professional misconduct, and proposed sanctions including a public reprimand and ethics training.
QLS had cancelled her PPC in April 2019, granting her an employee practising certificate (EPC) on the condition she did not apply for another PPC before 1 July 2021.
“The starting point for the tribunal is that the breach of an undertaking is generally treated a serious contravention and one that often results in findings of professional misconduct,” LSC counsel submitted.
“That is particularly so when the undertaking is given to a professional body, and it’s especially serious when the undertaking, as in this case, is required to be given the Law Society as a condition precedent, effectively, to be a solicitor to resume or continue in practice.”
The LSC submitted the practitioner’s conduct constituted professional misconduct, under Section 419 of the Legal Profession Act 2007 (Qld), because it involved a substantial failure to reach or keep a reasonable standard of competence and diligence.
The solicitor’s counsel submitted the conduct should be characterised as neither unsatisfactory professional conduct nor professional misconduct, and that none of the conduct should result in disciplinary action against her.
They submitted their client had simply overlooked her undertaking and applied for a PPC in error.
The LSC’s counsel responded that the meaning of the undertaking was clear and had no ambiguity, and emails between the practitioner and the QLS show she properly understood the undertaking.
They also pointed to the solicitor’s conduct during the proceedings, which included a failed application to have part of the discipline application struck out in October last year.
“The tribunal will recall at one stage the respondent has accepted much of the conduct alleged against her, and that is apparent from her affidavit,” they said.
“Her position then changed substantially. There was an application to strike out certain aspects of the discipline application. That was refused. The respondent subsequently amended her response to deny certain aspects of the charges, and in the most recent round of submissions, the respondent has again changed her position on charges.
“Specifically she now contends that the first breach of the undertaking should not be characterised as either professional misconduct or unsatisfactory professional conduct.”
They said the practitioner’s conduct during the proceeding did not demonstrate an understanding or appreciation of the seriousness of the conduct, nor insight into her errant behaviour.
The LSC proposed sanctions included a public reprimand; a prohibition on applying for or obtaining a PPC for two years; completion of a QLS ethics course and practice management course; and evidence of completion of these courses to be included in any application for a PPC.
Justice Williams highlighted the fact the undertaking was a condition precedent to the issue of the solicitor’s EPC, and said the second charge could be considered more serious because the conduct occurred in light of a reminder of the existence of the undertaking and its seriousness.
“It might be that your client overlooked the date but it was in the context of something that should have been front of mind and very prominent because it governed her very ability to undertake legal work at all,” she told the solicitor’s counsel.
“The condition crystallised when the Law Society issued the employee certificate on the basis that the undertaking was given. That PC wouldn’t have been given but for the condition being fulfilled in the undertaking…”
Justice Williams said the issue was of the “utmost seriousness” and went “to the very heart of regulating the profession”, with a practising certificate being “more than just a leave pass”.
She reserved her decision.
Read about the case here.
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