Legal Services Commissioner v Magill
[2023] QCAT 134
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- Unreported Judgment
- Legal Services Commissioner v Magill[2023] QCAT 134
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Legal Services Commissioner v Magill[2023] QCAT 134
Legal Services Commissioner v Magill[2023] QCAT 134
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Legal Services Commissioner v Magill [2023] QCAT 134 |
PARTIES: | Legal services commissioner (Applicant) v adam rayDON magill (Respondent) |
APPLICATION NO/S: | OCR032-22 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 24 April 2023 |
HEARING DATE: | 19 April 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Hon. Duncan McMeekin KC, Judicial Member Assisted by: Ms Tricia Schmidt, Practitioner Panel Member Dr Julian Lamont, Lay Panel Member |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – CRIMINAL OFFENCES – where the respondent was an experienced criminal law practitioner who was convicted of breaching bail conditions on six separate occasions – where the respondent failed to give notice to the Queensland Law Society of his convictions of breaching bail conditions within 7 days after conviction in contravention of s 57 of the Legal Profession Act 2007 (Qld) – whether the Tribunal agreed with the characterisation of conduct the subject of Charge 1 as professional misconduct and of Charges 2 and 3 as unsatisfactory professional conduct – whether an appropriate sanction was removing the respondent’s name from the roll or a lengthy suspension from being granted a practising certificate – whether the facts justified a finding that the respondent was of such a character that he should be considered as permanently unfit to practise – whether mitigating features could overcome the ignoring of the obligations inherent in the undertakings – whether the issue of character could be decided pending determination of the substantive criminal charges Australian Solicitors Conduct Rules 2012 Legal Profession Act 2007 (Qld), s 57, s 419, s 452, s 456 Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498, cited Legal Services Commissioner v Amitesh Kumar [2018] QCAT 173, considered Legal Services Commissioner v Bui [2018] QCAT 424, cited Legal Services Commissioner v Fajardo [2018] QCAT 92, considered Legal Services Commissioner v Fellows [2017] QCAT 337, considered Legal Services Commissioner v Ferguson [2021] QCAT 205, considered Legal Services Commissioner v Lee [2013] QCAT 447, considered Legal Services Commissioner v Madden (No 2) [2008] QCA 301; [2009] 1 Qd R 149, cited Legal Services Commissioner v O'Reilly [2019] QCAT 28, considered Legal Services Commissioner v Wrightway Legal [2015] QCAT 174, cited |
APPEARANCES & REPRESENTATION: | |
Applicant: | R Taylor, counsel instructed by the Legal Services Commissioner |
Respondent: | M Longhurst, counsel instructed by Roland McGrath |
REASONS FOR DECISION
- [1]This is an application under s 452 of the Legal Profession Act 2007 (Qld) (“the Act”) for disciplinary orders. The Legal Services Commissioner alleges that the respondent, Adam Magill, has been guilty of professional misconduct and unsatisfactory professional conduct. The facts are agreed. The characterisation of the conduct is agreed. The only dispute concerns the ensuing orders that should be made.
- [2]Mr Magill was an Australian lawyer as defined in the Act holding an unrestricted principal practising certificate until it was cancelled on 21 November 2019. He has not held a practising certificate since that time. Mr Magill engaged in legal practice as a legal practitioner director of the incorporated legal practice, Bell Miller Pty Ltd, trading as Lawler Magill Lawyers. Chapter 4 of the Act therefore applies to him.
- [3]The Tribunal of course must make up its own mind as to the characterisation of the conduct. But, given the agreement between the parties, the facts and our conclusions can be shortly stated.
The Charges
- [4]There are three charges. The first is the most serious, that is that on divers dates between 25 November 2018 and 25 October 2022, Mr Magill engaged in conduct which was likely to a material degree to bring the profession into disrepute, contrary to rule 5 of the Australian Solicitors Conduct Rules 2012 (“ASCR”). The particulars relate to seven convictions for breaching bail conditions on six separate occasions, which I will detail. The charge contends that this conduct in repeatedly breaching the conditions of bail, in circumstances where Mr Magill was an experienced criminal law practitioner, shows a flagrant disregard for the law and the authority of the Court.
- [5]The remaining two charges are that Mr Magill on a number of occasions failed to give notice to the Law Society of his conviction of an offence, namely breaching bail conditions, within seven days after he was convicted in contravention of s 57 of the Act.
The various breaches of bail conditions
- [6]On 21 October 2018, Mr Magill was arrested and charged with five offences involving fraud, money laundering and falsifying a document. He was granted bail subject to conditions. Those substantive charges are yet to be dealt with.
- [7]On 24 October 2018, Mr Magill signed a bail undertaking. Bail was granted on his undertaking to comply with certain conditions which included not contacting or communicating with various persons (“the prohibited persons”).
- [8]On 26 November 2018, at a hearing in the Magistrates Court the bail condition was varied to permit incidental contact with a number of those persons and in so far as is relevant to the first breach “that may arise by virtue of appearing in the same court”.
- [9]After the hearing, but before signing a fresh undertaking reflecting the changed conditions, Mr Magill contacted one of the persons, a barrister, named in the bail conditions. He did so by telephoning and texting the individual. The phone call went unanswered. The bail conditions made clear that such communications or attempted communications were prohibited by the conditions. The text communication itself was not of significance: “I’m allowed to talk to you now.” “You sure?”.
- [10]The following day he was arrested and charged with breaching his bail conditions. Mr Magill pleaded not guilty but on 3 June 2019 was convicted, following a hearing on 4 April before the Chief Magistrate, and fined $1,200, with no conviction being recorded. The Chief Magistrate held that the original bail condition (allowing no contact) remained in place until a fresh undertaking was signed but nonetheless observed:
“…It is impossible to accept the defendant, an experienced solicitor, notwithstanding the evidence of the doctor as to his mental state, could not be aware that he was precluded from contacting the barristers excepted (sic) in the limited conditions referred to in the varied bail.”
- [11]Mr Magill led evidence from a psychiatrist, Dr Taylor, as to his mental state at the time of the offending. Chief Magistrate Rinaudo (as his Honour then was) made it clear that Dr Taylor’s evidence of the stress “…was not sufficient to take away from the fact that you did understand the bail conditions.”
- [12]Mr Magill has since faced five further charges of breaching his bail conditions and was convicted on his own plea of all five. On 18 February 2019, he went to a Lexus dealership to purchase a vehicle with a person he was prohibited from contacting “except for the provision and administration of the business of Lawler Magill”. He then went to a restaurant, had lunch, and went on to a bar with that person.
- [13]Between 29 March and 1 April 2019, Mr Magill attended at a bar owned by one of the prohibited persons and while there had contact with the owner and another prohibited person resulting in two charges. On 28 June and 6 July 2019, Mr Magill again attended at the same bar and spoke with the owner, who was still a prohibited person, resulting in two further charges.
- [14]On 1 August 2019, Mr Magill pleaded guilty to all five charges and was fined various amounts from $1,800 to $2,800 totalling in all $12,400. The transcript of the sentencing shows that no excuse or explanation was proffered to the court, save perhaps that the presence of the owner of the bar was not necessarily to be expected, an excuse that did not impress the Magistrate. Convictions were recorded in relation only to the last two charges in time, those that post-dated the conviction of 3 June 2019. An appeal to the District Court against that recording of convictions was dismissed. The learned sentencing Magistrate rightly observed that the charges that followed the decision of the Chief Magistrate on 3 June were the most serious observing “…that it was not reasonable that you be mistaken about the bail conditions, given that you are a solicitor of many years standing with a successful criminal law practice…who knows what these things mean”. The learned Magistrate also commented:
“I also take into account however the continued offending and the demonstration by that of a flagrant disregard for the authority of the Court and the law.”
- [15]Mr Magill failed to notify the QLS of these various convictions until 4 September 2019. In his response Mr Magill contended that he had given instructions to his solicitor to notify the QLS in a timely way. No independent evidence is led to support that claim, for example by affidavit from the solicitor who is said to have failed in his duty, and the fact notification was made on the 4th September by Mr Magill – long after the seven day period had expired - goes some way to disproving it. Mr Magill does not persist in the claim.
- [16]On 9 April 2020, Mr Magill entered into a further bail undertaking on this occasion before the Supreme Court. The conditions then imposed were more onerous. Among other conditions Mr Magill was required to be at his bail address between 10.00 pm and 5.00 am unless he had the prior written permission of the Director of Public Prosecutions and further that he not enter the “Safe Night Precincts of Fortitude Valley and the Central Business District as defined by legislation” between those hours.
- [17]On 24 October 2022, Mr Magill was charged and subsequently convicted on his plea of guilty of breaching those conditions of his bail. The facts placed before the Magistrate included that Mr Magill had entered Superfly disco which was located within the Safe Night Precinct at around 8.30 to 9.00 pm and was found there by a liquor unit at 12.42 am on a Saturday. In an affidavit Mr Magill deposes that he was socialising with friends, that about 12.40am he checked his phone and noticed the time, gathered his belongings, left the venue and went home. On sentence his counsel submitted that “it was brought to his attention, the issue of bail”, I assume by the liquor unit, and he then checked “his clock” and realised his situation.
- [18]On sentence Mr Magill’s counsel submitted that he was allowed to be at the venue until 11.00 pm. It is not apparent why that submission was thought to be sound. There had been an earlier approach to the DPP to vary the hours of curfew which had not been advanced or agreed to. The next day Mr Magill voluntarily surrendered himself to police, spent time in the watchhouse cells, appeared and was convicted and fined $1,500.
- [19]It is relevant to observe that before becoming a solicitor Mr Magill was a police officer and presumably trained in such matters as the importance of bail undertakings.
- [20]The Commissioner submits that it is relevant to take into account events that transpired subsequent to the offending conduct. On 21 November 2019 the QLS cancelled Mr Magill’s practising certificate on the basis that he was not a fit and proper person to hold the certificate pursuant to s 61(2) of the Act. Mr Magill applied to this Tribunal both to stay and to review that decision but both applications were refused.[1]
- [21]The Commissioner stressed the observations made in those two decisions:
- (a)In the stay decision, Daubney J determined there was "no doubt" that the respondent's "repeated flouting" of the terms of his undertakings was sufficient to give rise to serious concerns about essential elements of a legal practitioner's character, trustworthiness and respect for the law. His Honour posed the question: “If a solicitor breaks a promise, what confidence can the Court, the rest of the profession and the public at large have in the probity of the person as a legal practitioner?”
- (b)In the review decision, it was noted by the Tribunal that: "A person who repeatedly breaches promises which have been solemnly given is not a person in whom the judiciary, the profession, and the public can have confidence as a legal practitioner".
- (a)
Characterisation of the Conduct
- [22]It is necessary next to characterise the conduct – is it merely unsatisfactory professional conduct or professional misconduct? The parties are now agreed that the conduct particularised in Charge 1 amounts to professional misconduct and the conduct particularised in Charges 2 and 3 amounts to unsatisfactory professional conduct. We agree with that characterisation. Mr Magill was initially minded to argue that his conduct was merely unsatisfactory professional conduct but his eventual concession was rightly made.
- [23]Undertakings by practitioners are of the utmost importance. In Legal Services Commissioner v Wrightway Legal [2015] QCAT 174 at [26] this Tribunal stated:
“The ability to rely upon a legal practitioner’s undertaking is of utmost importance. It is central to dealings with legal practitioners. Because of its importance, noncompliance with the clear terms of an undertaking involves a substantial failure to reach or maintain a reasonable standard of competence and diligence and so amounts to professional misconduct as that term is described in s 419 of the Legal Profession Act.”
- [24]See also Legal Services Commissioner v Bui [2018] QCAT 424 at [16].
- [25]When those undertakings are between the Crown and the citizen and relate to restrictions on conduct put in place to ensure the proper administration of the criminal law they arguably assume even greater importance.
- [26]Mr Magill was not deterred from flouting the bail undertakings despite his obvious knowledge of them, particularly given the charge brought the day after his first undertaking, despite the seriousness of those undertakings which even if his long experience in the law both as a solicitor and police officer had not taught him, ought to have been brought home to him by the decision of the Chief Magistrate, and later the District Court on his appeal, and despite the imposition of substantial fines on 3 June 2019 and 1 August 2019.
- [27]To compound matters there is a complete absence of any semblance of reasonable explanation, particularly so in respect of the last such breach. There was some evidence before the Chief Magistrate of Mr Magill’s mental state in 2018 and the stress he experienced on the bringing of the serious substantive charges against him but that could hardly explain these repeated breaches. The Chief Magistrate did not think it excused the breach he dealt with. There is no psychiatric evidence relevant to the later breaches.
- [28]All this demonstrates a flouting of the law, a disdain for the undertakings given, and hence an unfitness to engage in legal practice (see s 419(1)(b) of the Act), or is fairly described as conduct that “falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency”: Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498 per Thomas J at 507. The conduct was likely to bring the profession into disrepute as the Commissioner alleges. We find that Mr Magill is guilty of professional misconduct.
- [29]The conduct the subject of Charges 2 and 3 is not as serious, and can be considered as unsatisfactory professional conduct, but still deserving of sanction.
What orders should be made?
- [30]I turn then to the substantive dispute. What orders are appropriate? The Commissioner submits that Mr Magill’s name should be removed from the roll. Mr Magill submits that a lengthy suspension is appropriate.
- [31]What is in issue is whether the facts justify a finding that Mr Magill now is of such a character that he should be considered as permanently unfit to practise. No element of punishment is involved in the decision. The primary concern is the protection of the public and of the profession: see Legal Services Commissioner v Madden (No 2) [2008] QCA 301 at [122]; [2009] 1 Qd R 149 at 186. There is a deterrent element. The question is to be answered in the light of present circumstances not as at the time of the offending.
- [32]Mr Longhurst, who appeared for Mr Magill, advanced two principal submissions. The first is that the evidence did not demonstrate that Mr Magill is of such a character that he should be considered as permanently unfit to practise. Allied with that is the submission that there are many decided cases involving far more serious conduct than that alleged here where the practitioner was suspended rather than declared permanently unfit to practise. Reference was made to Legal Services Commissioner v Ferguson [2021] QCAT 205; Legal Services Commissioner v Lee [2013] QCAT 447; Legal Services Commissioner v Shand [2017] QCAT 159; Legal Services Commissioner v Fellows [2017] QCAT 337; Legal Services Commissioner v Fajardo [2018] QCAT 92; and Legal Services Commissioner v Amitesh Kumar [2018] QCAT 173.
- [33]The second submission was that this is not the time that judgement should be made. That latter submission was made in the context that the substantive criminal charges are still to be determined, they will be determined over the next year or two, and if acquitted it would be a hard thing for Mr Magill to find himself permanently unable to practise for a series of not overly serious breaches of bail undertakings. Mr Longhurst stressed the public perception, in those circumstances, and given the substantial punishment that Mr Magill has received already, would not be such as to be of concern to this Tribunal.
- [34]As to the assessment of character Mr Longhurst put at the forefront of his submissions an argument that, the last of the breaches – involving the nightclub and breach of curfew – should not be seen as demonstrating a flagrant flouting of the law, but rather it involved an unintentional breach, perhaps reckless, but not demonstrating an indelible mark on Mr Magill’s character justifying the very serious step of removal from the roll.
- [35]Mr Longhurst was right to concentrate on that last breach as it is most concerning. The breach occurred on the night of 23 October and into the early hours of 24 October 2022. The relevant bail conditions had been in place since April 2020, that is for over two years. A curfew of that type – both as to time and place – is not easily overlooked or forgotten. While Mr Magill led no evidence of his habits those constraints could not but have been major limitations on his life.
- [36]The excuse that Mr Magill simply overlooked the time is scarcely credible. As he entered the precinct – forbidden to him after 10.00 pm – he surely had in mind that his time there was very limited – perhaps to no more than a half hour. There is no evidence at all to show that Mr Magill had any reason to think that the curfew had been extended by agreement with the DPP. Mr Magill has not revealed when he arrived at the nightclub nor how he planned to get back to his bail address. The information provided to the Magistrate was that he arrived between 8.30 and 9.00 pm. If he arrived at around that time and needed to leave time to obtain transport and drive to his bail address to arrive there before 10.00pm he could not have had much more time than a half hour to an hour in the club. Yet he remained there nearly four hours later.
- [37]As he went to go out that evening he could not but have been aware that his time out for the evening was heavily circumscribed. No evidence is advanced as to what procedure he had put in place to remind himself of the time or of the need to head home. Presumably Mr Magill made no such arrangements. As the night wore on it is inconceivable that Mr Magill was not conscious of the passage of substantial time, and of the fact of his location in a place forbidden to him after 10.00 pm. The advent of the liquor unit is said to have brought home to him his obligations. We are quite satisfied that those obligations could not but have been at the forefront of his mind from the moment he left home. We are comfortably satisfied that Mr Magill was once again flouting his bail conditions, as he had done many times before. He had not learnt from his many fines, the adverse judgments he received from the Chief Magistrate and the District Court, nor the comments made by Justice Daubney and the Magistrates indicating the very serious nature of his continued breaches and how those breaches reflected on his character.
- [38]That is not to diminish the seriousness of the earlier breaches. Effectively no explanation was offered to the presiding Magistrate as to why the 2019 breaches occurred. As the sentencing Magistrate said, the continuing breaches showed a “flagrant disregard for the authority of the Court and the law”.
- [39]As well, the Commissioner points to what it is submitted are some worrying aspects of Mr Magill’s responses which suggests a failure to accept the seriousness of his conduct. At one time there was a reference to “purported breaches” when there could not have been any doubt at all about them. There have been differing explanations for his conduct provided at different times to Courts and the Commissioner. The last breach occurred after service of these disciplinary proceedings in February 2022. One would think that an application seeking that Mr Magill’s name be removed from the roll would provide additional impetus to comply with the bail conditions. The Commissioner submits that the genuineness of the expressions of remorse and shame contained in Mr Magill’s affidavit of 23 January 2023 are called into question given the expression of similar sentiments in the affidavit of 30 June 2022, affirmed only months before the last of the breaches.
- [40]As well, it is an odd feature of the case that the two early breaches in 2019 took place before the trial commenced before the Chief Magistrate on 4 April and so far as the evidence shows were not disclosed. Mr Magill must have known when contesting that initial breach that he had twice more breached his bail conditions albeit that the authorities had not yet caught up with him. He was under no obligation to reveal those breaches and perhaps thought that they would not be discovered but again that approach says something of his character.
- [41]Finally, while Mr Magill has every right to pursue his right to plead not guilty to charges brought and appeal decisions made, and seek review of decisions, the exercise of those rights involves an inherent rejection of the appropriateness of the charge or decision – and a non-acceptance of the nature of the conduct in the first instance or the seriousness of the later breaches. Expressions of remorse and acceptance do not sit well with the exercise of those rights.
- [42]It is against that background that we consider the submissions that can be made in Mr Magill’s favour. He had last breached bail conditions in July 2019, so for over three years, up until the last of the breaches, he had complied successfully with those conditions and for over two years those conditions were quite onerous. They included wearing a tracking device. We were informed that he has either paid all the fines imposed or in respect of the last of those fines is paying it off in a timely way. He has not otherwise had any disciplinary proceedings against him. There is no evidence that any breach of bail involved inappropriate communications to potential witnesses which is presumably the purpose behind the bail conditions. So, none of the breaches were at the serious end of the scale. There was some independent evidence of at least an element of mental vulnerability brought on by stress and inappropriate alcohol consumption in the early stages. He sought psychiatric treatment at an early stage – discontinued during 2020 – and reduced his consumption of alcohol which had been a feature of his life in 2018, and which may have then impacted on his judgement. Mr Magill has maintained full-time employment in marketing and property development for three years. He has co-operated by agreeing with the statement of facts advanced by the Commissioner and indeed by eventually agreeing on nearly every issue.
- [43]In our view these mitigating features cannot overcome the compelling force of the repeated and deliberate ignoring of the obligations inherent in the undertakings. Mr Magill has time and again treated the undertakings with scant regard. The peripheral matters to which the Commissioner points, some much more so than others, tend to reinforce the view that by his actions Mr Magill has demonstrated that he does not regard these many breaches as serious as they are.
- [44]Turning to the authorities it is certainly accurate to say that some of the cases involve serious criminal offending – and more serious than that here. But every case has its own features and not a great deal is gained by comparing matters. Nor is this Tribunal bound in some way by decision of other tribunals. Nonetheless I will make some observations.
- [45]I assume that the reference to Shand is in error as it was reversed on appeal: Attorney-General (Qld) v Legal Services Commissioner [2018] QCA 66.
- [46]Lee and Fellows involved repeated breaches of tax obligations without an intention to defraud the revenue. Mr Fellows had demonstrated good character over the very long delay of five years whist the matter came to be heard. Mr Magill patently has not. Alan Wilson J commented in Lee that the failure to file returns was not calculated or deliberate. I would not consider the conduct in either case to be anywhere near as serious as the repeated breaching of undertakings to a Court.
- [47]Similarly, Fajardo could hardly be said to be worse conduct. The practitioner there swore a false declaration in response to an investigation report – he claimed to have spoken to the presiding judge on an appeal, the issue being investigated being his competence in conducting that appeal. The point was of little consequence. Most of the criticisms of the practitioner were found not to be soundly based, that is, he had substantial success on the primary issues. He had retired from practise and was an aged pensioner with no intent to again practise. The case is nowhere near as serious as this one.
- [48]Ferguson involved the possession of child exploitation material. The offence was certainly serious. But there compelling evidence was led of personal problems and of a psychiatric condition. His expressions of great remorse were accepted. The mitigating features were far stronger than here.
- [49]Kumar and Legal Services Commissioner v O'Reilly [2019] QCAT 28 were each misappropriation cases and arguably involved more serious conduct. However the personal mitigating factors in each case were far stronger than here. Both had made full reparation.
- [50]In Kumar the practitioner made what was described as a single egregious error of judgement when under manifest pressure and in the context of psychological problems. There was full co-operation with the authorities both in respect of the criminal charges and the disciplinary matter. The practitioner had been of exemplary character in the five year period between the offending conduct and the disciplinary hearing. Numerous practitioners, including his former partners, spoke of his good character. The Commissioner joined in the application to invoke suspension rather than striking off.
- [51]In O'Reilly there was again psychiatric evidence of a mental illness explaining what was uncharacteristic conduct. Expressions of remorse were accepted as genuine and there was a finding of rehabilitation. Mr Magill cannot claim so much.
- [52]We are far from persuaded that any of those cases compel a sympathetic approach here.
- [53]Turning to the second submission – that this is not the time to decide the issue of character. The pending criminal charges are yet to be decided and are an unusual feature of cases of this type. Usually, the disciplinary decisions await the outcome of the substantive criminal charges. That is so, presumably, because usually lawyers abide their bail conditions. We of course make no assumptions about the validity of the criminal charges. They provide the background and context but no more. True it is that Mr Magill might feel aggrieved if he is acquitted of the substantive charges and yet has lost his right to practise for failing to comply with conditions that would never have been imposed but for those hypothetically false allegations. But the submission ignores the fundamental point that Mr Magill’s conduct in respect of the bail conditions reveals his character, and it is that character we must assess.
- [54]We have come to the view, fully cognisant of the great significance this decision will have for Mr Magill, that Mr Magill now is of such a character that he should be considered as permanently unfit to practise. Repeated flagrant flouting of the law compels that conclusion. The observations of Daubney J made in the stay and review decisions earlier mentioned apply with even greater force now.
- [55]Accordingly, the orders of the Tribunal are as follows:
- In respect of Charge 1 there is a finding that the Respondent engaged in professional misconduct.
- In respect of Charges 2 and 3 there is a finding that the Respondent engaged in unsatisfactory professional conduct.
- Pursuant to s 456(2)(a) of the Legal Profession Act 2007 (Qld), the Tribunal recommends that the name of Adam Raydon Magill be removed from the roll of legal practitioners in Queensland.
- The Respondent shall pay the Applicant’s costs of and incidental to the discipline application, such costs to be assessed as if this were a matter before the Supreme Court of Queensland.
Footnotes
[1] See Magill v Queensland Law Society Inc [2019] QCAT 392 and Magill v Queensland Law Society Inc (No 2) [2020] QCAT 226.