Tribunal says significant mitigating factors supported a rehabilitation-focused approach
The Lawyers and Conveyancers Disciplinary Tribunal has censured a former lawyer for misconduct in a civil litigation matter after he failed to report to his client properly and agreed to an “unless” order without instructions, resulting in the client’s claim being struck out.
The tribunal found that the lawyer’s conduct amounted to misconduct but decided not to impose a fine because of significant mitigating factors. It censured him, ordered him to pay costs and permanently suppressed his name, the Law Society reported.
The lawyer, a senior practitioner, acted for a client in civil litigation. Although he had significant legal experience, he lacked familiarity with the discovery process under the High Court Rules. The tribunal heard that past experiences and psychological sequelae from other events left him unable to seek assistance from colleagues at his firm.
The lawyer failed to report properly to his client and acted without instructions when he agreed to an “unless” order. The order resulted in the court striking out the claim. He also unintentionally misled the court when he indicated that he had instructions to agree to the order.
His firm promptly rectified the matter for the client. The lawyer accepted responsibility for his conduct and acknowledged that he had engaged in serious misconduct.
The tribunal found that the conduct was out of character and that the lawyer had otherwise been a highly competent and committed practitioner.
He immediately accepted responsibility, self-reported to the Law Society and stepped away from legal practice. He also sought professional help to address the underlying issues. The tribunal considered those steps significant because they reassured it that the conduct would not be repeated if he returned to practice.
The tribunal also considered the personal impact of the misconduct. It noted that his “remorse and regret were palpable”. It described the case as a cautionary tale about the need to pay attention to mental health and engage in productive rather than avoidant coping mechanisms.
The tribunal determined that the conduct would ordinarily warrant a fine in the broad range of $6,000 to $10,000. However, it decided that the mitigating circumstances made a fine unnecessary. It placed particular weight on the fact that the lawyer had been out of the workforce for two years and had health issues.
The tribunal declined to prohibit him from practising on his own account unless authorised to do so. Instead, it censured him and ordered him to pay costs.
The tribunal also made a permanent name suppression order. It said the significant mitigating factors supported a rehabilitation-focused approach to the disciplinary proceedings.
