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- Unreported Judgment
Legal Services Commissioner v Foster  QCAT 101
Legal Services Commissioner
Emily Louise Foster
Occupational regulation matters
On the papers
Justice DG Thomas, President
Mrs Joanne Collins, Legal panel member
Dr Margaret Steinberg, Lay panel member
14 June 2016
PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – OTHER MATTERS – where the respondent was charged with providing a false academic record in the course of her application for employment and making false statements to the employer and the Queensland Law Society – where the respondent alleged that she did not know the academic record was false – where the respondent concedes her behaviour was reckless – where mitigating factors exist – whether the respondent’s conduct amounts to unsatisfactory professional conduct – nature of appropriate sanction
Legal Profession Act 2007 (Qld) ss 418, 419
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32
Uniform Civil Procedure Rules 1999 (Qld)
Legal Services Commissioner v Busch  QCAT 165
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
- The Legal Services Commissioner asserts that the following charges constitute professional misconduct:
Charge 1 – provide false record
- On 4 May 2012, Ms Foster provided a false academic record to Ms Emma Scott.
Charge 2 – make false statement
- On 9 May 2012, Ms Foster made a false statement to Ms Scott in the course of her application for employment.
Charge 3 – make false statement
- On 11 May 2012, Ms Foster made a false statement to Ms Scott in the course of her application for employment.
Charge 4 – make false statement
- On 28 May 2012, Ms Foster made a false statement to Ms Scott in the course of her application for employment.
Charge 5 – make false statement
- On 28 May 2012, Ms Foster made a false statement to the Legal Services Commissioner.
- Ms Foster applied for employment with Porter Davies, Lawyers. For that purpose, she was interviewed by Ms Emma Scott, a Senior Associate at Porter Davies, and provided a record of her university results to Ms Scott. The record falsely stated her results in a number of subjects.
- The provision of this document is a subject of charge 1.
- Within a few days (on 9 May 2012) Ms Foster supplied her official academic transcript from the university.
- Various statements were made about the circumstances in which the first record had been supplied and the reasons for the differences between the two documents. These statements were the subject of charges 2, 3, 4 and 5 which concerned allegations that false statements had been made.
- The parties filed affidavits including an affidavit by Ms Foster and an affidavit by Ms Scott. These affidavits revealed divergence concerning some of the evidence, especially evidence which might have suggested that Ms Foster submitted the first academic record, knowing it to be misleading.
- The parties prepared a Statement of Agreed Facts, which left important aspects of the evidence still in dispute.
- Despite this divergence in evidence (and submissions being made by each party regarding the evidence), the parties requested that the matter be heard “on the papers”.
- Subsequent to the first “on the papers” hearing, the Tribunal raised these evidentiary issues with the parties. In that context, the parties again requested that the matter be determined “on the papers”, and made further submissions.
- Ms Foster swore an affidavit, which dealt with the circumstances under which the misleading information was provided to Ms Scott.
- Ms Foster swears that:
- She had kept two documents, one which contained her personal estimates of her university results and a second which contained her official grades compiled from copying and pasting from QUT Virtual when these results were released at the end of each semester.
- The document which had been provided to Ms Scott was the first of the documents. She did not cross-reference the documents, as she had no reason to think there would be a variance.
- At the time of the provision of the first document, she was under extreme stress due to her job and her health and this effected the clarity of her thought processes.
- She did not intend to provide an inaccurate academic record nor did she know she had provided an inaccurate record.
- That evidence by Ms Foster was not tested in an oral hearing, for example, by way of cross-examination. Rather, the Commissioner opted for a hearing on the papers, with submissions having been made.
- In the circumstances, based on the evidence by Ms Foster, the Tribunal finds that:
- The information provided by Ms Foster falsely stated Ms Foster’s academic marks in a number of subjects.
- Ms Foster did not intend to provide an incorrect academic record nor was Ms Foster aware that an incorrect record was being provided.
- Whilst saying that she had no knowledge of the incorrect academic record, Ms Foster conceded that her actions were reckless. She says:
- She made a reckless mistake when she supplied the incorrect academic record.
- Her lack of knowledge about the inaccuracy of the record was “a result of my recklessness and carelessness”.
Characterisation of the conduct
- Unsatisfactory professional conduct includes conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
- Professional misconduct includes unsatisfactory professional conduct if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence.
- Plainly, Ms Foster’s actions fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. Her conduct amounts, at the least, to unsatisfactory professional conduct.
- The Legal Services Commissioner submits that the conduct should be regarded as professional misconduct and advances the following reasons:
- Ms Foster concedes that her conduct was reckless. This is an appropriate concession.
- Ms Foster must have known that her true academic results were readily accessible by her at the time that she first purported to provide her academic results to Ms Scott.
- Ms Foster must have known it would have been a simple matter to check the accuracy of the document she first submitted to Ms Scott.
- Ms Foster must have known that the document she first submitted would not necessarily accurately reflect her results because the document recorded her expected results and she must have realised that when she received her actual results that they did not reflect her expectations.
- Ms Foster concedes that her conduct involved a lack of competence and diligence.
- The failure was “substantial” so as to characterise the failure as professional misconduct because it involved recklessness. This was more than mere carelessness or negligence.
- Although not as serious as deliberate falsity, conduct connected with the practice of law involving recklessness as to the truth is significant enough to warrant its characterisation as a “substantial” failure of competence and diligence.
- In response, Ms Foster submits that, whilst her actions could be construed as either professional misconduct or unsatisfactory professional conduct, considering all the circumstances it would be reasonable to find that the conduct would more closely resemble unsatisfactory professional conduct rather than professional misconduct. Ms Foster does not advance any reason why this conclusion should follow.
- Truth and honesty in dealing with other practitioners and clients is a core responsibility for legal practitioners and a central basis upon which the profession operates.
- Had there been a finding that Ms Foster submitted a document which she knew to be misleading (and untruthful) her conduct would, without doubt, have amounted to professional misconduct and a question would have arisen as to her suitability to remain on the Roll of Practitioners.
- In this case, no such finding has been made, and each side supports that conclusion.
- As has been submitted by the Commissioner and is conceded by Ms Foster, Ms Foster was reckless in her actions. That does not necessarily mean that she was reckless as to the truth. Ms Foster’s evidence (which has not been the subject of cross-examination) was that she believed the contents in the first document were true and, conversely, had no reason to believe that there were any inaccuracies in the document.
- She made an error and was reckless about the circumstances in which the document was submitted. She was not reckless with the truth.
- The error was not repeated or consistent – the conduct all related to one particular event.
- In those circumstances, the Tribunal concludes that the conduct was not sufficiently substantial to warrant it being categorised as professional misconduct but rather should be categorised as unsatisfactory professional conduct.
- Ms Foster should understand that she is nevertheless very much on notice now that if such conduct were to be repeated in the future a different, and more serious, outcome would likely follow.
- The Commissioner correctly concedes that there are significant mitigating factors, which render it open to the Tribunal to conclude that removal from the Roll is not warranted. These include the fact that Ms Foster was relatively young and a junior member of the profession at the time of the conduct and has demonstrated contrition in her affidavit filed in the proceedings.
- There are many examples of the fact that Ms Foster has demonstrated contrition. The statements made in her affidavit include:
“I apologise for emailing the document to (Ms Scott). I should have been, and in the future I will be more careful when emailing or providing important documents.
I now understand that the only document that is appropriate to provide is an electronic copy obtained from the university. Once again, this will not be a mistake I’ll make again as I am now aware of the process of obtaining electronic copy of my record and the importance of providing such a document.
I deeply regret and I am sincerely apologetic for making such a reckless mistake that resulted in me representing myself inaccurately.
I made a mistake by not doing this and for this I apologise.
I never intended to provide an incorrect and inaccurate academic transcript, however I can see that I did. I deeply and genuinely apologise for mistakenly representing my university results inaccurately… I will take great care when providing such important documents. When I do not know how to obtain an official document or an appropriate copy I will seek the advice and assistance of a more knowledgeable entity or person.
I understand that honesty is core to an integral in the legal profession. Whilst I never sought to purposefully act dishonestly I can see that I made a mistake which resulted in me representing myself inaccurately. I deeply regret and apologise for my actions that occurred on 4 May 2012 and in the following days and weeks. I ask that you accept this apology with the sincerity with which I give it.”
- It is well established that the purpose of sanctions in this jurisdiction is to protect the public, rather than punish the practitioner.
- In the circumstances, there is no evidence, which would lead to the conclusion that Ms Foster is not a fit and proper person to remain on the Roll of Practitioners. Moreover, the protective objects of the disciplinary regime do not warrant removal of her name from the Roll.
- The Commissioner submits that, as the conduct involves professional misconduct characterised as reckless falsity, a reprimand is warranted. Ms Foster agrees that a reprimand is warranted and refers to the authority of Legal Services Commissioner v Busch (‘Busch’).
- The Commissioner also submits that a condition might be added to the respondent’s registration requiring her to undertake an ethics course.
- Whilst not specifically addressing this question, Ms Foster submits that, in all the circumstances, a public reprimand and payment of the Commissioner’s costs as proposed by the Commissioner would be sufficient to satisfy general and personal deterrence.
- In all the circumstances, particularly as Ms Foster was reckless in relation to her approach concerning the submission of the document, the Tribunal considers that satisfactory completion of an ethics course is necessary for the protection of the public.
- In the circumstances, the Tribunal orders that:
- The practitioner be publicly reprimanded.
- The practitioner attend, and successfully complete, the QLS Legal Ethics Course within 18 months of the date of this order.
- Upon a finding of unsatisfactory professional conduct, the Tribunal must make an order requiring the practitioner to pay costs unless the Tribunal is satisfied that exceptional circumstances exist.
- The Commissioner has sought an order that the respondent pay the Commissioner’s costs on the basis that no exceptional circumstances exist.
- Ms Foster refers to the case of Busch, where an order was made that the Commissioner’s costs be paid and fixed in the amount of $750.00.
- Ms Foster does not suggest any basis upon which the costs might be fixed in this case. Given that costs must be fixed by reference to the necessary work undertaken, costs agreed or fixed in one case may have little relevance to subsequent cases. It is impossible to conclude whether they are relevant without reference to the work completed in each case. Therefore, it is not possible to fix the costs.
- The Tribunal notes the Ms Foster also submitted that a cost order as proposed by the Commissioner would seem appropriate.
- In the circumstances, no information has been provided on the basis which it is possible for the Tribunal to fix the costs, and so the Tribunal orders that the respondent pay the applicant’s costs assessed on a standard basis, on the Supreme Court Scale under the Uniform Civil Procedure Rules 1999 (Qld) in the manner that the costs would be assessed were the matter in the Supreme Court of Queensland.
Liberty to apply
- The Legal Services Commission shall, during the period of 18 months from the date of the order in these proceedings, have liberty to apply for further orders in these proceedings, including an order varying the orders made based on the compliance by Ms Foster with the requirement regarding satisfactory completion of the QLS Legal Ethics Course.
Affidavit of Emily Louise Foster sworn 6 July 2015.
Submissions on behalf of the applicant, filed 31 March 2016.
Ibid, paragraph 3.
Legal Profession Act 2007 (Qld) s 418.
Ibid, s 419.
Affidavit of Emily Louise Foster sworn 6 July 2015 heading charge 4, “make false statement”.
Submissions on behalf of the applicant, filed 31 March 2016, paragraph 3.
Submissions on behalf of the respondent, filed 20 April 2016, paragraph 5.
Submissions on behalf of the applicant, filed 31 March 2016, paragraph 6.
 QCAT 165.
Submissions on behalf of the applicant, filed 31 March 2016, paragraph 7.
Submissions on behalf of the respondent filed 20 April 2016, paragraph 11.
Legal Profession Act 2007 (Qld) s 462(1).
Submissions on behalf of the respondent filed 20 April 2016, paragraph 10.
Ibid, paragraph 11.
- Published Case Name:
Legal Services Commissioner v Emily Louise Foster
- Shortened Case Name:
Legal Services Commissioner v Foster
 QCAT 101
14 Jun 2016