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Legal Services Commissioner v De Fraine[2024] QCAT 105

Legal Services Commissioner v De Fraine[2024] QCAT 105

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v De Fraine [2024] QCAT 105

PARTIES:

legal services commissioner

(applicant)

v

anthony de fraine

(respondent)

APPLICATION NO/S:

OCR 175-23

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

22 March 2024

HEARING DATE:

7 March 2024

HEARD AT:

Brisbane

DECISION OF:

Justice Williams

Assisted by:

Mr Ross Perrett, Practitioner Panel Member

Ms Patrice Lorraine McKay, Lay Panel Member

ORDERS:

  1. The Respondent is publicly reprimanded.
  2. The Respondent pay a pecuniary penalty in the sum of $2,000 to be paid within six (6) months.
  3. The Respondent pay the LSC’s costs of and incidental to the discipline application, to be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where the applicant filed a disciplinary application made under s 452 Legal Profession Act 2007 (Qld) for the Tribunal to make disciplinary orders pursuant to s 456 Legal Profession Act 2007 (Qld) – where the subject of the disciplinary proceedings is the improper use of social media by legal practitioners – where the disciplinary conduct alleged is posting entries on the social media platform Facebook which are likely to bring the profession into disrepute – where the respondent accepts his conduct is appropriately characterised as unsatisfactory professional conduct – whether the relevant conduct is properly characterised as unsatisfactory professional conduct or professional misconduct – agreed proposed sanction – whether the agreed sanction is appropriate

Australian Solicitor Conduct Rules 2012 (Qld), rr 3, 5, 9, 28

Legal Profession Act 2007 (Qld), ss 5(1), 6(1), 418, 419, 420, 423(2)(a)(i), 452, 456, 462

Adamson v Queensland Law Society Incorporated (1990) 1 Qd R 498

Legal Services Commission v De Fraine [2015] QCAT 292

Legal Services Commissioner v Bradshaw [2009] QCA 126

Legal Services Commissioner v Challen [2019] QCAT 273

Legal Services Commissioner v Laylee and Anor [2016] QCAT 237

Legal Services Commissioner v PRF [2023] QCAT 291

APPEARANCES & REPRESENTATION:

 

Applicant:

A Angeli, Legal Services Commission

Respondent:

The Respondent appeared in person.

REASONS FOR DECISION

  1. [1]
    This is a discipline application by the Legal Services Commissioner (LSC) under s 452 of the Legal Profession Act 2007 (Qld) (LP Act) for disciplinary orders pursuant to s 456 of the LP Act.  The discipline application raises a single charge against the respondent, Mr Anthony De Fraine (Respondent) of engaging in conduct which is likely to a material degree to bring the legal profession into disrepute. 
  2. [2]
    The LSC and the Respondent have agreed the relevant facts in respect of the discipline application and the hearing proceeded on the basis of a statement of agreed facts dated 6 December 2023 (SOAF),[1] together with a Joint Submission on Sanction.[2]
  3. [3]
    The Joint Submission on Sanction is on the basis that the Respondent’s conduct should be characterised as unsatisfactory professional conduct.  Further, if the Tribunal is satisfied that the Respondent has engaged in unsatisfactory professional conduct, the LSC and the Respondent submit that the following orders are appropriate in the circumstances:
    1. The Respondent be publicly reprimanded.[3]
    2. The Respondent pay a pecuniary penalty in the sum of $3,000.00[4] to be paid within six months.
  4. [4]
    The Respondent accepts that his conduct is appropriately characterised as unsatisfactory professional conduct and agrees with the proposed sanction.[5]
  5. [5]
    Accordingly, the two issues to be determined by the Tribunal are as follows:
    1. Is the Respondent’s conduct properly characterised as unsatisfactory professional conduct?
    2. What are the appropriate orders pursuant to s 456 of LP Act?

Relevant factual circumstances

  1. [6]
    The relevant factual circumstances in respect of the respondent’s conduct are set out in the SOAF.
  2. [7]
    The relevant facts include:
    1. The Respondent was admitted to the legal profession in New South Wales on 6 October 2006.
    2. At all material times, the Respondent was an Australian lawyer as defined by s 5(1) of the LP Act; held an unrestricted employee practising certificate in Queensland and was an Australian legal practitioner as defined by s 6(1) of the LP Act.[6]
    3. From on or around December 2020, the Respondent acted for Mr Cameron Cusack in relation to criminal charges brought against Mr Cusack for using a carriage service to make a threat.[7]
    4. On 9 April 2021, Mr Cusack posted photos of a dog and a boat on the social media platform Facebook stating:

“Gemma my pirate dog and my new project in the backdrop” (9 April Post).

  1. The Respondent posted a response to the 9 April Post which was viewable by members of the public other than Mr Cusack as follows:

“We have to keep young Cameron out of trouble….he’s had a run of bad luck.”

“I know mate, he is a client.  I had call on my way home from work. D’s from Cairns CIB at his house.  Any of Cameron’s Cairns mates go check on him please.  D’s took his phone.’”

  1. On 28 April 2021, Mr Cusack posted a photo on Facebook of himself in a suit holding a beer, which was accompanied by the following caption:

“Baiiiiiiiil, no jail today mother lickers.

Adjurned 19 May” (28 April Post).

  1. Further to the 28 April Post, the following comments were exchanged on Facebook between the Respondent and Mr Cusack, which were viewable by members of the public:

“Respondent:  10 years maximum sentence for 2nd offence…bro you too pretty for jail. You’re not going to jail on my watch. In the hoods where I’ve run people know DeFraine keeps all the boys out of jail. Ms [Redacted][8] has a summary trial to experience. I’m looking forward to that.

Mr Cusack: I’m looking forward to some justice and consequences shown for the shit thrown at me. Like still don’t know how it’s in the child’s best interest to grow up confused as to why their father is serving a 10yr jail sentence, to be raised without a Dad (which i see as child abuse). Doesn’t matter, even if I did get locked away (which won’t be happening), my children will grow and will be smart enough to understand the reasons behind everything. Some people need to ask themselves, do they “really” love their kids? Or do they just love the drama and using their children as a weapon!

Respondent: “Can’t live without you in their life…”

  1. [8]
    It is also agreed that by posting the comments referred to at (e) and (g) above on the social media platform Facebook (Facebook Posts), the Respondent engaged in conduct which is likely to a material degree to bring the profession into disrepute, contrary to Rule 5.1.2 of the Australian Solicitor Conduct Rules 2012 (ASCR).

Characterisation of unsatisfactory professional conduct or professional misconduct

  1. [9]
    Sections 418, 419 and 420 of the LP Act state as follows:

“418 Meaning of unsatisfactory professional conduct

Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law 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.

419 Meaning of professional misconduct

  1. Professional misconduct includes—
  1. unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and
  1. conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
  1. For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.

420 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct

  1. The following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct—
  1. conduct consisting of a contravention of a relevant law, whether the conduct happened before or after the commencement of this section;

Note—

Under the Acts Interpretation Act 1954, section 7, and the Statutory Instruments Act 1992, section 7, a contravention in relation to this Act would include a contravention of a regulation or legal profession rules and a contravention in relation to a previous Act would include a contravention of a legal profession rule under the Legal Profession Act 2004.

  1. charging of excessive legal costs in connection with the practice of law;
  2. conduct for which there is a conviction for—
  1. a serious offence; or
  1. a tax offence; or
  1. an offence involving dishonesty;
  1. conduct of an Australian legal practitioner as or in becoming an insolvent under administration;
  2. conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act;
  3. conduct of an Australian legal practitioner in failing to comply with an order of a disciplinary body made under this Act or an order of a corresponding disciplinary body made under a corresponding law, including a failure to pay wholly or partly a fine imposed under this Act or a corresponding law;
  4. conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law.
  1. Also, conduct that happened before the commencement of this subsection that, at the time it happened, consisted of a contravention of a relevant law or a corresponding law is capable of constituting unsatisfactory professional conduct or professional misconduct.
  2. This section does not limit section 418 or 419.”
  1. [10]
    In considering the conduct, it is relevant that pursuant to s 420(1)(a) of the LP Act, conduct consisting of a contravention of a relevant law,[9] which includes the ASCR,[10] is conduct capable of constituting unsatisfactory professional conduct or professional misconduct. 
  2. [11]
    As identified above, the LSC and the Respondent agree that the Respondent contravened Rule 5.1.2 of the ASCR by the Facebook Posts.  Accordingly, the conduct is capable of constituting unsatisfactory professional conduct or professional misconduct. 
  3. [12]
    Rule 5 of the ASCR states as follows:

“Dishonest and disreputable conduct

5.1 A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to:

5.1.1 be prejudicial to, or diminish the public confidence in, the administration of justice; or

5.1.2 bring the profession into disrepute.”

  1. [13]
    The single charge in relation to the Respondent’s conduct is a breach of Rule 5.1.2 of the ASCR.
  2. [14]
    There are other rules in the ASCR which may be relevant to the conduct being currently considered.  These include Rules 3, 9 and 28 which state as follows:

“3. Paramount duty to the court and the administration of justice

3.1 A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.

…

9. Confidentiality

9.1 A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client’s engagement to any person who is not:

9.1.1 a solicitor who is a partner, principal, director, or employee of a solicitor’s law practice; or

9.1.2 a barrister or an employee of, or a person otherwise engaged by, the solicitors law practice or by an associated entity for the purposes of delivering or administering legal services in relation to the client, EXCEPT as permitted in Rule 9.2.

9.2 A solicitor may disclose confidential client information if:

9.2.1 the client expressly or impliedly authorises disclosure;

9.2.2 the solicitor is permitted or is compelled by law to disclose;

9.2.3 the solicitor discloses the information in a confidential setting, for the sole purpose of obtaining advice in connection with the solicitor’s legal or ethical obligations;

9.2.4 the solicitor discloses the information for the sole purpose of avoiding the probable commission of a serious criminal offence;

9.2.5 the solicitor discloses the information for the purpose of preventing imminent serious physical harm to the client or to other persons; or

9.2.6 the information is disclosed to the insurer of the solicitor, law practice or associated entity.

…

28 . Public comment during current proceedings

28.1 A solicitor must not publish or take steps towards the publication of any material concerning the current proceedings which may prejudice a fair trial or the administration of justice.”

  1. [15]
    The ASCR are sufficiently broad to cover conduct involving statements on social media, as well as traditional media.
  2. [16]
    The LSC confirmed in oral submissions that possible contraventions of Rules 3, 9 and 28 were considered and may in certain circumstances be relevant to the proper characterisation of conduct involving publishing information and comments on social media.  However, the charge was framed as a breach of Rule 5.1.2 taking into account all of the facts and circumstances, including the response provided by the respondent.
  3. [17]
    The Queensland Law Society (QLS) has released Guidance Statement No. 24 in relation to ‘Ethical considerations on the use of social media and law practice websites’ (Guidance Statement).  This was released on 23 August 2021, which post-dates the subject conduct.  However, the Guidance Statement does provide some assistance. 
  4. [18]
    The Guidance Statement discusses the practical ethical issues which arise and also provides some suggested “good practice” in respect of these issues and avoiding potential “pitfalls”. The Guidance Statement includes the following:

“The unique characteristics of social media have transformed the way in which solicitors interact with clients, colleagues, courts and the community … Practitioners need to be aware of the risks involved in the use of social media, and the higher standard expected of officers of the court when engaging on social media platforms (whether that engagement is in connection with their practice or is done in a personal capacity, and regardless of whether or not a pseudonym/avatar is used).[11]

3. Issues

3.1 Ethical duties apply

Due to the potential of anonymity, social media users sometimes act as if they are unregulated in their use and may feel the usual rules do not apply.

Regardless of the platform used, the jurisdiction in which it is hosted or the ability to anonymise a user’s identity, solicitors remain beholden to their ethical duties in the same way that they are in any other forum.  A solicitor must not use social networking sites at any time (whether during or outside work hours) to discriminate, harass, bully or victimise employees, clients or contractors of the solicitor.  Breaches of duties which occur on social media platforms or cyber-space are punishable in the same way as breaches which occur in the physical world.[12]

3.2 Officer of the Court

As officers of the court, solicitors have less leeway than laypeople when utilising social media.  While social media generally involves a less formal and more robust level of engagement, solicitors remain officers of the court even when engaging on such platforms and should refrain from adopting a lower standard of conduct.

3.3 Reputational risk

Practitioners should bear in mind that messages and comments posted on social media platforms may remain accessible for the life of the platform, and often longer.  They can be shared or screen-shotted; once posted, such comments are difficult if not impossible to control.

Colleagues, clients, potential clients and even members of the bench may become aware of comments and posts made by practitioners.  The possibility for reputational damage, to a firm, individual practitioner, or indeed the profession as a whole is real and not remote.

3.4 Contempt/disrepute

Social media activity has no exemption from the laws of contempt or the duty to avoid bringing the profession into disrepute.  Practitioners should refrain from providing any running commentary or comment on social media in relation to active files, whether before the court or otherwise.

3.5 Confidentiality

The duty to maintain client confidentiality extends to activity on social media, and practitioners should be aware of the fact that confidentiality can be breached more easily when using social media.  For lawyers, the very act of updating their status or tweeting their own or their clients’ whereabouts can result in a breach of this duty.

Prior to any social media activity, lawyers should consider whether or not they are divulging sufficient information to breach client confidentiality. For example there are seemingly innocent posts such as:

  • tweeting a photo of a solicitor and client outside a magistrate’s court, on the day of the criminal court sittings, with the comment ‘great result today!’;
  • a solicitor posting their joy at securing a particular client; 
  • a post about an important meeting, with a photo of the building in which the meeting is taking place;
  • a photo of a client with a solicitor at a social event, whether or not that event is hosted by the solicitor.

Each of these scenarios could result in a breach of confidentiality, by revealing the client, the nature of the work being done or through telegraphing a client’s likely intent. While a client can authorise such disclosures by providing their informed consent beforehand, great caution is advised, especially when acting for clients who may not be able to fully comprehend or appreciate the consequences of giving consent. Photos of clients should never be posted without their express consent.”

  1. [19]
    Whilst the Guidance Statement is not binding, the consideration of the ethical issues is consistent with current authority and recognised principles. The relevant ethical principles are those set out in the ASCR, including those summarised above. 
  2. [20]
    The Tribunal has previously dealt with disciplinary applications involving conduct where comments and material were published to an identified email group.[13] However, the specific issue of the improper use of social media by legal practitioners has not previously been the subject of disciplinary proceedings before this Tribunal.[14]
  3. [21]
    Here, the Facebook Posts were publicly available.[15]  The LSC was able to access and take screenshots of the Facebook Posts following receipt of a complaint on 7 May 2021.[16]  The complaint identifies that the Facebook Posts were publicly available and other people, in addition to the complainant, were also aware of the Facebook Posts and had commented on the conduct.[17]
  4. [22]
    In determining whether the relevant conduct amounts to unsatisfactory professional conduct or professional misconduct, reference is made to a number of cases in respect of general principles to assist in the analysis.
  5. [23]
    The decision of Legal Services Commissioner v Laylee and Anor [2016] QCAT 237, states the test required to establish unsatisfactory professional conduct as follows:

“The test required to determine whether conduct is unsatisfactory professional conduct is such that the relevant ‘falling short’ does not embrace all cases of error but must be sufficiently substantial.  There must be an appreciable departure from the standard for the conduct to be unsatisfactory professional conduct.  An isolated instance, not involving unethical conduct, and more in the nature of conduct which might give rise to an assertion of negligence, is less likely to amount to unsatisfactory professional conduct.  Serious, or repeated instances, are more likely to amount to unsatisfactory professional conduct or professional misconduct.”[18]

  1. [24]
    Further, in Legal Services Commissioner v Bradshaw [2009] QCA 126, McMurdo P at [54] considered what must be demonstrated by the applicant to establish whether conduct falls within the statutory definition of unsatisfactory professional conduct and stated as follows:

“In establishing whether conduct is unsatisfactory professional conduct, the Commissioner is not required to prove what a member of the public expects of a reasonably competent Australian legal practitioner.  This is not something easily capable of direct proof.  But in any case, s 418 refers to what ‘a member of the public is entitled to expect of a reasonably competent Australian legal practitioner’.  This is a standard to be determined by the tribunal after considering all the relevant circumstances pertaining in each case.”

  1. [25]
    Further reference is also made to the test for professional conduct described by Thomas J in Adamson v Queensland Law Society Incorporated (1990) 1 Qd R 498 as follows:

“The test to be applied is whether the conduct violates or 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.”

  1. [26]
    In the factual circumstances of this case, it is submitted that the conduct does not involve a substantial or consistent failure, nor does the conduct violate or fall short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency, such as to be characterised as professional misconduct.  That is not to say, however, that misuse of social media may not amount to professional misconduct in certain circumstances. 
  2. [27]
    The LSC submits that the Respondent’s conduct should be characterised as unprofessional conduct as the Facebook Posts were made in the following circumstances:
    1. They were made whilst the Respondent was an Australian legal practitioner.
    2. They were made in connection with the practice of law as they referenced the Respondent acting for a client in relation to a criminal law matter and include specific details about the matter.
    3. They 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.
  3. [28]
    Further, it is also contended that members of the public are entitled to expect that a reasonably competent Australian legal practitioner would not:
    1. Publicly name clients on social media websites such as Facebook;
    2. Make known to a client’s social media network that he or she is the subject of criminal proceedings;
    3. Make unprofessional comments in relation to keeping “the boys” out of jail;
    4. Discuss specific details in relation to a client’s criminal law matter on social media, particularly the involvement of the Criminal Investigation Branch; and
    5. Make a post on social media which identifies the client’s ex-partner who “has a summary trial to experience”, which the Respondent is “looking forward to”.
  4. [29]
    The particular factual circumstances support a conclusion that the conduct arises out of a single failure to recognise that the relevant Facebook Posts fell short of the requisite standard expected of a reasonable competent Australian legal practitioner.[19] While the Facebook Posts were made over a period of more than two weeks and are not a single isolated occurrence, the conduct is not properly characterised as a “consistent” failure for the purposes of the conduct amounting to professional misconduct. 
  5. [30]
    Further, the Respondent’s decision to provide a running commentary on social media in relation to an active current legal matter before the court, demonstrates a lack of professionalism and also a lack of understanding of his ongoing duties as an officer of the court. 
  6. [31]
    As indicated previously, the Respondent concedes that his conduct constitutes unsatisfactory professional conduct. 
  7. [32]
    The Tribunal finds that:
    1. The Respondent was an Australian legal practitioner when he made the Facebook Posts.
    2. The Facebook Posts were made in connection with the practice of law on the basis of the references to:
      1. the Respondent acting for a client in relation to a criminal law matter; and
      2. specific details about the criminal law matter.
    3. The Facebook Posts 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, in that members of the public are entitled to expect that a reasonably competent Australian legal practitioner would not:
      1. Publicly name clients on social media;
      2. Make known to a client’s social media network that he or she is the subject of criminal proceedings;
      3. Make unprofessional comments in relation to keeping “the boys” out of jail;
      4. Discuss specific details in relation to a client’s criminal law matter on social media, particularly the involvement of the Criminal Investigation Branch; and
      5. Make a post on social media which publicly identifies the client’s ex-partner who “has a summary trial to experience”, which the Respondent is “looking forward to”.[20]
    4. These are matters which are likely to a material degree to bring the profession into disrepute.
  8. [33]
    Accordingly, the Tribunal finds that the Respondent’s conduct, identified in respect of the charge in the discipline application, constitutes unsatisfactory professional conduct.

Appropriate orders under s 456 of the LP Act

  1. [34]
    Having made the finding as to unsatisfactory professional conduct, the discretion in s 456 of the LP Act arises.
  2. [35]
    Section 456 of the LP Act states:

“456 Decisions of tribunal about an Australian legal practitioner

  1. If, after the tribunal has completed a hearing of a discipline application in relation to a complaint or an investigation matter against an Australian legal practitioner, the tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the tribunal may make any order as it thinks fit, including any 1 or more of the orders stated in this section.
  2. The tribunal may, under this subsection, make 1 or more of the following in a way it considers appropriate—
  1. an order recommending that the name of the Australian legal practitioner be removed from the local roll;
  2. an order that the practitioner’s local practising certificate be suspended for a stated period or cancelled;
  3. an order that a local practising certificate not be granted to the practitioner before the end of a stated period;
  4. an order that—
  1. imposes stated conditions on the practitioner’s practising certificate granted or to be issued under this Act; and
  1. imposes the conditions for a stated period; and
  1. specifies the time, if any, after which the practitioner may apply to the tribunal for the conditions to be amended or removed;
  1. an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner;
  2. an order that no law practice in this jurisdiction may, for a period stated in the order of not more than 5 years—
  1. employ or continue to employ the practitioner in a law practice in this jurisdiction; or
  1. employ or continue to employ the practitioner in this jurisdiction unless the conditions of employment are subject to conditions stated in the order.
  1. The tribunal may, under this subsection, make 1 or more of the following—
  1. an order recommending that the name of the Australian legal practitioner be removed under a corresponding law from an interstate roll;
  2. an order recommending that the practitioner’s interstate practising certificate be suspended for a stated period or cancelled under a corresponding law;
  3. an order recommending that an interstate practising certificate not be, under a corresponding law, granted to the practitioner until the end of a stated period;
  4. an order recommending—
  1. that stated conditions be imposed on the practitioner’s interstate practising certificate; and
  1. that the conditions be imposed for a stated period; and
  1. a stated time, if any, after which the practitioner may apply to the tribunal for the conditions to be amended or removed.
  1. The tribunal may, under this subsection, make 1 or more of the following—
  1. an order that the Australian legal practitioner pay a penalty of a stated amount, not more than $100,000;
  2. a compensation order;
  3. an order that the practitioner undertake and complete a stated course of further legal education;
  4. an order that, for a stated period, the practitioner engage in legal practice under supervision as stated in the order;
  5. an order that the practitioner do or refrain from doing something in connection with the practitioner engaging in legal practice;
  6. an order that the practitioner stop accepting instructions as a public notary in relation to notarial services;
  7. an order that engaging in legal practice by the practitioner is to be managed for a stated period in a stated way or subject to stated conditions;
  8. an order that engaging in legal practice by the practitioner is to be subject to periodic inspection by a person nominated by the relevant regulatory authority for a stated period;
  9. an order that the practitioner seek advice from a stated person in relation to the practitioner’s management of engaging in legal practice;
  10. an order that the practitioner must not apply for a local practising certificate for a stated period.
  1. To remove any doubt, it is declared that the tribunal may make any number of orders mentioned in any or all of subsections (2), (3) and (4).
  2. Also, the tribunal may make ancillary orders, including an order for payment by the Australian legal practitioner of expenses associated with orders under subsection (4), as assessed in or under the order or as agreed.
  3. The tribunal may find a person has engaged in unsatisfactory professional conduct even though the discipline application alleged professional misconduct.”
  1. [36]
    The discretion to make any order the Tribunal thinks fit is a wide discretion and is exercised primarily in the protection of the public.[21] Principles of personal and general deterrence are also relevant.[22]
  2. [37]
    The maintenance and enforcement of proper standards in the profession is a further aim.  Accordingly, it is relevant to consider the need to deter other practitioners from engaging in similar conduct and also to protect the public by enforcing standards upon which the public can rely.[23]
  3. [38]
    In the particular circumstances of this case, the objectives in arriving at the appropriate sanction are:
    1. To maintain and enforce proper standards in the profession;
    2. Personal deterrence for the Respondent; and
    3. General deterrence by reminding practitioners that as officers of the court, they must exercise vigilance when using social media.
  4. [39]
    An order publicly reprimanding the practitioner may be imposed pursuant to s 456(2)(e) of the LP Act.  The Respondent concedes that a public reprimand is an appropriate order.
  5. [40]
    The impact of a public reprimand has been recognised previously by the Tribunal.  In Legal Services Commissioner v Challen [2019] QCAT 273, the Tribunal said:

“[39] First, there will be an order that the respondent be publicly reprimanded. The respondent conceded that this was an appropriate order in this case. The impact of such an order being made cannot be understated, particularly when it is made against a practitioner of significant seniority and an otherwise unblemished professional record. As this Tribunal has previously said:[24]

 The making of a public reprimand is a serious step by the Tribunal and not one which should be taken or regarded lightly. The public reprimand is and will continue to be a permanent public blemish on the respondent’s professional record. It is and will continue to stand as a permanent reminder to the respondent, to the profession and to the public at large that there are adverse personal consequences when one engages in professional misconduct of this kind.”

  1. [41]
    In the current case, an order that the Respondent be publicly reprimanded is appropriate. 
  2. [42]
    Section 456(4)(a) of the LP Act provides that the Tribunal may make “an order that the Australian legal practitioner pay a penalty of a stated amount, not more than $100,000.”  This provides the basis for the proposed order that the Respondent pay a pecuniary penalty. 
  3. [43]
    The payment of a pecuniary penalty is directed at general deterrence rather than as a punishment. 
  4. [44]
    The Respondent has previously been the subject of disciplinary proceedings in Legal Services Commission v De Fraine [2015] QCAT 292, where two charges were brought in respect of the Respondent engaging in legal practice without being the holder of a practising certificate.  The conduct was found to be professional misconduct and the Respondent was publicly reprimanded and required to pay a pecuniary penalty of $500.
  5. [45]
    The Respondent’s prior disciplinary history is relevant to the sanction to the extent that it may be relevant to the considerations as to ensuring the protection of the public. 
  6. [46]
    The Respondent has cooperated in relation to the disciplinary application and there is evidence that he has cooperated throughout the process and admitted to the conduct at an early stage of the investigation.[25] Further, the Respondent appears to “appreciate[s] his shortcomings” and has shown remorse, as was also confirmed by his oral submissions at the hearing.
  7. [47]
    Additionally, the Respondent has indicated that he no longer intends to practice law and will be focusing on his family.[26] This intention not to practice law was confirmed at the hearing. In light of this, the LSC submits that the Respondent’s conduct in the particular circumstances of this case does not warrant a restrictive or onerous order to protect the public.
  8. [48]
    The LSC originally sought a pecuniary penalty in the range of $2,500 to $5,000.[27] The Joint Submission on Sanction submits that a pecuniary penalty of $3,000 is appropriate, with the Respondent having six months to pay.[28] It is submitted that the amount is appropriate considering the totality of the sanction and the mitigating circumstances. 
  9. [49]
    At the hearing, the Tribunal referred the LSC to the decision in Legal Services Commissioner v PRF [2023] QCAT 291 where the Tribunal ordered that the respondent pay a pecuniary penalty of $1,500[29] in respect of one charge amounting to unsatisfactory professional conduct. 
  10. [50]
    The charge was failing to maintain reasonable standards of competence and diligence in the conduct of a matter relating to an application for a protection order against the respondent’s daughter, who was also his client. The conduct involved an email sent to 20 recipients:
    1. disclosing the identity of a party to a proceeding and a child contrary to the Domestic Violence and Family Protection Act 2012 (Qld); and
    2. publishing an account of proceedings or part of proceedings that identified a party to the proceedings contrary to s 121(1) of the Family Law Act 1975 (Cth).
  11. [51]
    The Tribunal accepted that:[30]
    1. The respondent’s contraventions of the legislation were not deliberate and were not done with knowledge that he was acting in contravention of the legislation. 
    2. The respondent also had some matters which were impacting his decision-making at the time.
    3. He had no previous disciplinary history.
    4. He co-operated with the LSC throughout.
    5. He apologised and showed remorse.
    6. The risk of the conduct reoccurring was low.
  12. [52]
    Similar considerations arise here.[31]  The Respondent also referred to “some matters which were impacting on his decision-making at the time” in his response to the LSC including overconsumption of alcohol as a coping mechanism, the impact of the special needs of his daughter and a diagnosis of Post Traumatic Stress Disorder.[32] The Respondent has also shown remorse and acknowledged in oral submissions that he is deeply ashamed and has brought “shame on his family”.
  13. [53]
    The Respondent requested six months to pay the pecuniary penalty and at the hearing outlined his regular expenses.  As he is currently assisting with his daughter’s special needs rather than working as a legal practitioner, the financial impact of any pecuniary penalty in these circumstances has a greater impact on the Respondent.
  14. [54]
    Both personal and general deterrence are relevant considerations.  However, in all the current circumstances:
    1. the risk of the conduct reoccurring is low;
    2. the need for the protection of the community is also low; and
    3. the need for personal deterrence is also relatively low.[33]
  15. [55]
    The LSC submitted that a pecuniary penalty of less than $3,000 may not be sufficient general deterrence: that is, to deter other legal practitioners from engaging in similar conduct.  Ultimately, the LSC accepts that the amount of the pecuniary penalty is within the discretion of the Tribunal.
  16. [56]
    As a consequence of the risks identified above and that the Respondent is not currently working, or intending to work in the future, as a legal practitioner, this matter is to be determined in those particular circumstances.  Similar conduct by a legal practitioner who continues to work as a legal practitioner, for example, may give rise to other considerations impacting the appropriate penalty.[34]
  17. [57]
    In all of the circumstances:
    1. The Tribunal is not satisfied that the particular circumstances and the totality of the orders warrants the imposition of a pecuniary penalty as proposed in the Joint Submission on Sanction.
    2. The Tribunal is satisfied that the particular circumstances[35] and the totality of the orders warrants the imposition of a pecuniary penalty in the amount of $2,000.
    3. It is appropriate that the Respondent have six months to pay the pecuniary penalty.
  18. [58]
    An order that a legal practitioner must undertake a course such as a QLS remedial ethics course may be ordered pursuant to s 456(4)(c) of the LP Act.  Such an order is directed at both the protection of the public and maintaining professional standards and may be appropriate in respect of conduct such as that contained in the current charge.
  19. [59]
    However, given that the Respondent has indicated that he is not currently practising as a lawyer and does not intend to practice as a lawyer in the future, there is little or no utility in, or need for, such an order in all of the circumstances.

Costs

  1. [60]
    Section 462(1) of the LP Act states:

“462 Costs

  1. A disciplinary body must make an order requiring a person whom it has found to have engaged in prescribed conduct to pay costs, including costs of the commissioner and the complainant, unless the disciplinary body is satisfied exceptional circumstances exist.”
  1. [61]
    No exceptional circumstances are identified that would justify any departure from an order in accordance with s 462(1) of the LP Act. 
  2. [62]
    Accordingly, the Tribunal is satisfied that it is appropriate to order that the Respondent pay the LSC’s costs of and incidental to the disciplinary application to be assessed. 
  3. [63]
    For the purpose of s 462(5)(b) of the LP Act, it is appropriate that costs be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland.

Orders

  1. [64]
    For the reasons stated above, the Tribunal orders that:
  1. The Respondent is publicly reprimanded.
  2. The Respondent pay a pecuniary penalty in the sum of $2,000 to be paid within six (6) months.
  3. The Respondent pay the LSC’s costs of and incidental to the discipline application, to be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland.

Footnotes

[1]Hearing Book (HB) pp. 62-64.

[2]HB pp. 65-66.

[3]Pursuant to s 456(2)(e) of the LP Act.

[4]Pursuant to s 456(4)(a) of the LP Act.

[5]Joint Submission on Sanction dated 31 January 2024.

[6]The conduct may have occurred partly in Queensland and partly in New South Wales.  Pursuant to s 423(2)(a)(i) of the LP Act, the LSC consents to the conduct being dealt with under the LP Act.  (HB 46).  Further, pursuant to Clause 14 of Schedule 3 of the Uniform Law, to the extent that any of the Respondent’s conduct has occurred in New South Wales, the Legal Services Commissioner of New South Wales consents to the conduct of the Respondent being dealt with under the LP Act, being a corresponding law as defined in s 4(a) of the Legal Profession Uniform Regulations 2015 (NSW).  Pursuant to Clause 14(3), the consent is unconditional. (HB pp. 47-48).

[7]Relevantly, a threat to kill.

[8]The original comments on the 28 April Post named the individual by surname. 

[9]The term “relevant law” is defined in Schedule 2 of the LP Act to mean “this Act” and see also s 1 of the LP Act.

[10]Section 420(1)(a) of the LP Act includes a note that a contravention in relation to the LP Act, includes a contravention of a regulation or legal profession rules. 

[11]Richard Miles Esq, PC 2018/0372/D5 (The Bar Tribunals & Adjudication Service, HH Michael Topolski QC, 18 November 2019).

[12]Richard Miles Esq, PC 2018/0372/D5 (The Bar Tribunals & Adjudication Service, HH Michael Topolski QC, 18 November 2019).

[13]For example, Legal Services Commissioner v PRF [2023] QCAT 291.

[14]Also, the LSC has been unable to find any decisions of Tribunals in other Australian jurisdictions that are of assistance.

[15]The issue of a social media post to a closed group does not arise on the facts.

[16]HB p. 22 at [9] and pp. 29-34.

[17]HB pp. 27-28.

[18]Thomas J at [43].

[19]Legal Services Commissioner v Cass [2023] QCAT 320 at [32].

[20]This statement may be interpreted as intimidatory.

[21]Legal Services Commissioner v Madden (No. 2) [2009] 1 Qd R 149 at [122].

[22]Attorney-General v Bax [1999] 2 Qd R 9, 22.

[23]Legal Services Commissioner v Wrightway Legal [2015] QCAT 174 at [28].

[24]Legal Services Commissioner v Brown [2018] QCAT 263 at [42].

[25]Affidavit of Thea Johnson filed 28 October 2023, exhibit ‘TMJ-1’, pp. 15-19.

[26]Affidavit of Thea Johnson filed 28 October 2023, exhibit ‘TMJ-1’, p. 23.

[27]HB p. 12; LSC’s submissions dated 10 January 2024 at [48(b)].

[28]HB p. 65; Joint Submission on Sanction dated 31 January 2024.

[29]Orders were also made for a public reprimand and the respondent undertaking a domestic and family violence education course nominated by the LSC.

[30]Legal Services Commissioner v PRF [2023] QCAT 291 at [52].

[31]The risk of the conduct reoccurring is low as the Respondent is no longer in legal practice and has cooperated with the LSC.  He has insight into his conduct and “appreciate[s] his shortcoming”:  HB p. 11 at [45].

[32]HB pp. 42-44.

[33]Given the Respondent’s current financial circumstances of living off his partner’s income, any pecuniary penalty will operate as personal deterrence.

[34]And overall total sanction.

[35]Including the mitigating and financial circumstances of the Respondent.

Close

Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v De Fraine

  • Shortened Case Name:

    Legal Services Commissioner v De Fraine

  • MNC:

    [2024] QCAT 105

  • Court:

    QCAT

  • Judge(s):

    Justice Williams

  • Date:

    22 Mar 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Adamson v Queensland Law Society Incorporated[1990] 1 Qd R 498; [1989] QSCFC 145
2 citations
Jump To
Cite 1 - [1990] 1 Qd R 498
Cite 2 - [1990] 1 Qd R 498
Attorney-General v Bax [1999] 2 Qd R 9
1 citation
Jump To
Cite 1 - [1999] 2 Qd R 9
Legal Services Commissioner v Bradshaw [2009] QCA 126
2 citations
Jump To
Cite 1 - [2009] QCA 126
Cite 2 - [2009] QCA 126
Legal Services Commissioner v Brown [2018] QCAT 263
1 citation
Jump To
Cite 1 - [2018] QCAT 263
Legal Services Commissioner v Cass [2023] QCAT 320
1 citation
Jump To
Cite 1 - [2023] QCAT 320
Legal Services Commissioner v De Fraine [2015] QCAT 292
2 citations
Jump To
Cite 1 - [2015] QCAT 292
Cite 2 - [2015] QCAT 292
Legal Services Commissioner v Laylee [2016] QCAT 237
2 citations
Jump To
Cite 1 - [2016] QCAT 237
Cite 2 - [2016] QCAT 237
Legal Services Commissioner v Madden (No 2)[2009] 1 Qd R 149; [2008] QCA 301
1 citation
Jump To
Cite 1 - [2009] 1 Qd R 149
Legal Services Commissioner v Peter Leslie Challen [2019] QCAT 273
2 citations
Jump To
Cite 1 - [2019] QCAT 273
Cite 2 - [2019] QCAT 273
Legal Services Commissioner v PRF [2023] QCAT 291
4 citations
Jump To
Cite 1 - [2023] QCAT 291
Cite 2 - [2023] QCAT 291
Cite 3 - [2023] QCAT 291
Cite 4 - [2023] QCAT 291
Legal Services Commissioner v Wrightway Legal [2015] QCAT 174
1 citation
Jump To
Cite 1 - [2015] QCAT 174

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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