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Legal Services Commissioner v Murphy[2016] QCAT 18

Legal Services Commissioner v Murphy[2016] QCAT 18

CITATION:

Legal Services Commissioner v Murphy [2016] QCAT 18

PARTIES:

Legal Services Commissioner

(Applicant/Appellant)

 

v

 

John Paul Murphy

(Respondent)

APPLICATION NUMBER:

OCR087-13

MATTER TYPE:

Occupational Regulation matters

HEARING DATE:

20 November 2015

HEARD AT:

Brisbane

DECISION OF:

Justice DG Thomas, President

Assisted by:

Mr Thomas Bradley QC, Legal panel member

Ms Julie Cork, Lay panel member

DELIVERED ON:

22 January 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The respondent is publicly reprimanded.
  2. The respondent is to pay a pecuniary penalty of $3,000.00.
  3. The respondent is to undertake an ethics course nominated by the Bar Association of Queensland.
  4. The respondent pay the applicant’s costs assessed on the Supreme Court Scale of costs.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – where counsel initiated a meeting with opponent’s client – where 2007 Barristers Rule requires that barristers must not deal directly with an opponent’s client unless the opponent has previously consented to the direct dealing – whether conduct unsatisfactory professional conduct or professional misconduct

Barristers Rule 2007 r 55

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32

Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498

Legal Services Commissioner v Bradshaw [2009] QCA 126

Legal Services Commissioner v Cooper [2011] QCAT 209

Legal Services Commissioner v Murphy [2015] QCAT 381

New South Wales Bar Association v Sahade (No 3) [2006] NSWADT 39

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr S McLean

 

RESPONDENT: Mr AJ Morris QC

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

  1. [1]
    Following the decision of the Tribunal delivered on 22 September 2015,[1] each party filed submissions in relation to the appropriate characterisation of the conduct (whether or not it should be categorised as unsatisfactory professional conduct or professional misconduct) and penalty.

Submissions

  1. [2]
    The Legal Services Commissioner submitted as follows:
    1. The primary role of disciplinary proceedings is to protect the public.
    2. It is the public who have the interest in the efficient administration of justice and so requirements of standards, such as rule 55 of the 2007 Barristers Rule, (rule 55’) are important.
    3. The standard of the profession is to have no direct dealings with the opponent’s client and if this were to occur, in the exceptional case, it was found by the Tribunal that the practitioner must approach the opponent in a full and frank and honest way, informing his opponent of what is intended and seeking consent against that background.  By doing this, the client is not deprived of the benefit of advice as to the invitation to attend and meet directly.[2]
    4. It should be concluded that the practitioner’s conduct fell substantially short of the standard required for a number of reasons, which include:
    1. Mr Murphy was aware of the existence of rule 55 prior to the meeting with Mr Farrah.
    2. Despite this knowledge, Mr Murphy made a deliberate decision to contact his opponent, fully appreciating that the object of his meeting was to try and influence the client to settle the litigation.
    3. Mr Murphy sought to influence the client to settle the case by making a number of statements to him about legal matters associated with the likely outcome of the trial.
    1. The Tribunal should find that Mr Murphy’s conduct fell short, by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession.
    2. Based upon the authority of Adamson v Queensland Law Society Incorporated,[3] the Tribunal should conclude that Mr Murphy’s conduct amounted to professional misconduct.
    3. The breach was intentional and involved substantial costs and outlays for Mr Farrah in the Tasmanian proceedings.
    4. The Tribunal should take into account the way in which Mr Murphy defended the charge and his lack of remorse displayed before the Tribunal.
    5. The construction of rule 55 which was advanced by Mr Murphy demonstrates poor insight into his own conduct when compared with the high standards required to maintain the confidence of the public and the public’s interests in the administration of justice.  The construction advanced by Mr Murphy in his instructions to Mr Morris QC does him no credit.[4] The defence involved a contention (rejected by the Tribunal) that Mr Williams’ integrity should be doubted and this involved intense cross examination. 
    6. Overall, in the manner in which the charge was defended, Mr Murphy demonstrated little or no insight into the high standards kept by the profession which plainly involved refraining from direct contact with the opponent’s client without first obtaining consent. He demonstrated contempt for that standard.[5]
    7. In the circumstances, serious penalties should be imposed, namely a public reprimand and a penalty in the range of $4,000.00 to $6,000.00.[6]
  2. [3]
    Submissions filed on behalf of Mr Murphy outline the following:
    1. Mr Murphy readily (and properly) conceded many of the facts referred to in the notice of referral, but did not concede the allegations concerning lack of consent.[7] 
    2. The state of the evidence in relation to the question of knowledge was inconclusive and so, in those circumstances, it was acceptable for Mr Murphy to have challenged that evidence including actively cross examining Mr Williams. This cross-examination was entirely proper such that it should not be used adversely to Mr Murphy.[8]  Moreover, all decisions regarding the way in which Mr Williams was cross-examined were made by counsel for Mr Murphy and not Mr Murphy himself.
    3. The relevant rule 55 has not previously been the subject of judicial or quasi-judicial consideration and the requirements outlined by the Tribunal do not appear on the face of the rule.[9] In those circumstances, it was quite reasonable for Mr Murphy to construe the rule otherwise than was found by the Tribunal. 
    4. That is not to say that Mr Murphy should not have contacted Mr Williams for other reasons, nor that it was proper for him not to do so, but merely to say that a reasonable, albeit mistaken, construction of the rule did not require him to do so.[10]
    5. As it happened, Mr Farrer was not deprived of the opportunity to take legal advice regarding the matters put by Mr Murphy. At the conclusion of the meeting he indicated that he intended to seek his solicitors’ advice as to any offer that eventuated.[11]
    6. The Supreme Court of Tasmania did not find that Mr Murphy knew there had been no consent.[12] Rather, the evidence would suggest his acknowledgment was that the meeting with Mr Farrah was wrong if there had been no consent and, as a matter of prudence, Mr Murphy ought to have checked with Mr Williams beforehand.[13] 
    7. Mr Murphy expressed deep remorse on a number of occasions and remains remorseful.
    8. Mr Murphy knows, and admitted he knew, that conduct in breach of rule 55 was wrong and unprofessional, and he apologised to Mr Williams shortly after the events in question.
    9. The case was peculiar in nature which should lead to a penalty at the lowest end of the scale.
    10. A very severe penalty is not required to deter other members of the profession from conduct similar to that which was alleged. The conduct is extremely rare. The only reported case in Queensland is Legal Services Commissioner v Bradshaw (‘Bradshaw’).[14]
    11. Mr Bradshaw was found guilty of unsatisfactory professional conduct, publicly reprimanded and ordered to undergo a course of professional development. There was no monetary penalty.
    12. Mr Murphy’s conduct falls far short of Mr Bradshaw’s conduct so the penalty ought to be far less.[15]
    13. As to personal deterrence, there is clearly no possibility of Mr Murphy repeating the offence.
    14. Mr Murphy has been admitted for 18 years and has never had another complaint made against him with an impeccable reputation for honesty and probity. The Bar Association has referred pro bono matters to him on a number of occasions. 
    15. He has suffered public humiliation and is liable for a cost bill of some $18,000.00 under orders made in the proceedings in Tasmania. The Tribunal should make a finding of unsatisfactory professional conduct and the penalty (for “sentencing parity” with Bradshaw) should be a private reprimand coupled with, perhaps, a professional ethics course.

Disposition of the matter

  1. [4]
    Disciplinary proceedings are taken in the public interest and the aim of disciplinary proceedings is to protect the public. The public interest is served by the enforcement of professional standards. Standards such as rule 55 are particularly important as they define safeguards which ensure that clients are always allowed the opportunity to have the benefit of legal advice and cannot be put under pressure from opposing lawyers.
  2. [5]
    It follows that the protection of the client which is contemplated by rule 55 of the 2007 Barristers Rule is crucial. It is an important aspect of the protection of the public.
  3. [6]
    Mr Murphy made the deliberate decision to embark upon the course which he did. Mr Murphy was in regular communication with his opponent at around the relevant time. It would have been easy for him to refer to the proposed meeting in the communications which took place by email and, equally, to make telephone contact about such an important matter. He deliberately decided not to do these things.
  4. [7]
    In terms of the standard described by Thomas J in Adamson v Queensland Law Society Incorporated,[16] the conduct of Mr Murphy falls short, by a substantial degree, of the standard of professional conduct observed and approved by members of the profession and so amounts to professional misconduct.
  5. [8]
    In relation to the way in which the proceedings were conducted, the Tribunal takes into account (as Mr Murphy submitted) that Mr Murphy was acting under advice from counsel. This includes the decision to question the credit of Mr Williams and the extent to which Mr Williams was cross-examined. However, the construction of rule 55 in his instructions to Mr Morris QC does him little credit.  It was not reasonable to construe the rule as not requiring him to seek Mr William’s consent before contacting Mr William’s client.[17] Mr Murphy misses the point of the rule when he submits that, Mr Farrer was not deprived of the opportunity to take legal advice after their meeting regarding the matters he put to Mr Farrer.  Indeed, there was no suggestion that Mr Murphy’s offer could not have been accepted by Mr Farrer on the spot.
  6. [9]
    As it happened, the client, Mr Farrer, did not accept the settlement offer put to him by Mr Murphy, instead suggesting Mr Murphy put the offer to his solicitors. That outcome occurred because of the approach taken by the client. Mr Murphy could not have known that such an outcome would eventuate at the time he made the direct approach. In addition, the conduct of Mr Murphy deprived the client of the benefit of advice as to the invitation to attend the meeting with Mr Murphy.
  7. [10]
    Private reprimands are appropriate in circumstances where there is a need to deter the practitioner personally.[18] Mr Murphy submits that, as to deterring him personally, there is clearly no possibility of his repeating the offence.[19]  Therefore, a private reprimand is not appropriate. 
  8. [11]
    However, the need to deter practitioners from embarking upon conduct of this type is important. The only reported case is that referred to by Mr Murphy of Bradshaw. The fact that there are few decided cases dealing with the matter does not mean that a strong message should not be sent to practitioners that conduct of this type is not acceptable. This aim can be achieved by imposing a public reprimand and a fine.
  9. [12]
    That Mr Murphy is liable for a costs order made by the Supreme Court in the proceedings in Tasmania is not relevant to the question of general deterrence. It is a merely another personal consequence of Mr Murphy’s aberrant behaviour due to its effect upon the proceedings in that Court.
  10. [13]
    It was not disputed that Mr Murphy has been admitted for approximately 18 years without another complaint against him with a strong reputation for honesty and probity. The Bar Association has referred pro bono matters to him on a number of occasions. The Tribunal takes these matters into account.

Costs

  1. [14]
    Upon a finding of professional misconduct, the Tribunal must make an order requiring the respondent to pay costs including the cost of the Legal Services Commissioner and the complainant unless the Tribunal is satisfied that exceptional circumstances exist.[20]
  2. [15]
    In this case, the Tribunal is satisfied that no exceptional circumstances exist.
  3. [16]
    It is ordered that the respondent pay the applicant’s costs assessed on the Supreme Court scale.

Order

  1. [17]
    The Tribunal orders that:
    1. (1)
      The respondent is publicly reprimanded.
    2. (2)
      There be a pecuniary penalty in the sum of $3,000.00.
    3. (3)
      The respondent undertake an ethics course nominated by the Bar Association of Queensland.
    4. (4)
      The respondent pay the applicant’s costs assessed on the Supreme Court Scale of cost.

Footnotes

[1] Legal Services Commissioner v Murphy [2015] QCAT 381.

[2] Ibid at [51] and [52].

[3] [1990] 1 Qd R 498 at 507.

[4] Submissions on behalf of the applicant filed 2 October 2015, paragraph 23.

[5] Submissions on behalf of the applicant filed 2 October 2015, paragraph 25.

[6] Ibid, paragraph 18(b).

[7] Submissions on behalf of the respondent filed 27 October 2015, paragraph 3.

[8] Ibid, paragraph 36.

[9] Ibid, paragraph 40-41.

[10] Ibid, paragraph 42.

[11] Ibid, paragraph 45.

[12] Ibid, paragraphs 46-53.

[13] Ibid, paragraph 53.

[14] [2009] QCA 126.

[15] Submissions on behalf of the respondent filed 27 October 2015, paragraph 64(h).

[16] [1990] 1 Qd R 498.

[17] Ibid, paragraph 42.

[18] Legal Services Commissioner v Cooper [2011] QCAT 209 at [17]; New South Wales Bar Association v Sahade (No 3) [2006] NSWADT 39 at [128].

[19] Submissions on behalf of the respondent filed 27 October 2015, paragraph 65.

[20] S 462(1) Legal Profession Act 2007.

Close

Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v John Paul Murphy

  • Shortened Case Name:

    Legal Services Commissioner v Murphy

  • MNC:

    [2016] QCAT 18

  • Court:

    QCAT

  • Judge(s):

    Thomas P

  • Date:

    22 Jan 2016

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2015] QCAT 38122 Sep 2015Disciplinary proceedings instituted by the Legal Services Commissioner against Mr John Murphy; determination made that Mr Murphy's conduct was in breach of r 55 of the Barristers Rules 2007: Thomas J (assisted by T Bradley QC and Ms Cork).
Primary Judgment[2016] QCAT 1822 Jan 2016Form of sanction and costs: Thomas J (assisted by T Bradley QC and Ms Cork).
Notice of Appeal FiledFile Number: Appeal 1831/1619 Feb 2016-
Appeal Discontinued (QCA)File Number: Appeal 1831/1622 Jul 2016Appeal dismissed by consent.

Appeal Status

Appeal Discontinued (QCA)

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