A Free Access Website

Michael Murray’s on-going commentary on issues in corporate and personal insolvency law and related policy and law reform, in Australia and internationally. Given the scope of insolvency, this extends to business, consumer and professional conduct, and ethics, governance and regulation, criminal, tax, environmental and administrative law, and the courts and government.

 

“a sad (but regrettably not uncommon) occurrence in contemporary professional life”.

“The personal circumstances of DDQ offer a sad (but regrettably not uncommon) occurrence in contemporary professional life”.

A disciplinary tribunal dealt with the circumstances of DDQ – a solicitor who had practised successfully since 2008 but with a “difficult and arduous” workload, his mental health declined and he left legal practice in 2012. He became estranged from his family and friends, was homeless and became dependent upon alcohol, amphetamines and cocaine. 

He was treated in hospital and subsequently in residential rehabilitation. The stress of him then being sued under a guarantee for $2 million led to him voluntarily going bankrupt, in 2014. He was also encouraged to do this to lessen the stress associated with the proceeding. His recovery from his addiction stabilised and he began to attend to his personal affairs and relationships. He was reunited with his family and friends and had his sons living with him.

He delayed getting back in to legal practice until his health improved and by 2015 he soon became very busy. He employed one solicitor and one support person, and his evidence was that he felt

“as though everything is going really well. I have currently struck the right balance between work, family and my recovery. Whilst my practice is very busy, I have learnt to manage my stress levels ensuring that it will not negatively impact on my mental health.”

He offers regular presentations on drug and alcohol dependence to sufferers in his area.

His disciplinary failing?

His failing, for which he was brought before the Tribunal, was that he forgot to notify the Law Society he was bankrupt, a “show cause” event under the then law. This was professional misconduct.

As the Tribunal said, the well-established principle is that disciplinary proceedings are concerned with the protection of the public rather than punishment of the practitioner. That concept extends beyond the practitioner concerned, to the protection of the public from similar defaults and misconduct by other practitioners: Law Society of NSW v Walsh [1998] NSWCA 185.

But a Tribunal can consider the nature of the practitioner’s misconduct. Conduct directly impacting upon a client, such as improper trust account dealing or other acts of dishonesty, are very different from conduct that is an inadvertent breach of a statutory obligation that has no impact upon a client and involves no moral turpitude or breach of any community norm.

The outcome

A reprimand was appropriate. 

And his name was not to be recorded on the register.  Ordinarily, the conduct of disciplinary proceedings and the orders made should be open to public scrutiny. This serves a purpose of disciplinary proceedings.

But as the Appeal Panel observed in Law Society of New South Wales v CQS [2016] NSWCATOD 100 at [5]:

“…there remains a real risk that stereotypical negative attitudes may hinder the employment by firms or engagement by clients of lawyers who have mental health conditions such as depression or bipolar disorder.”

Hence, the Tribunal’s reasons and orders, framed so as to avoid the practitioner being identified,

“enables our decision to serve the educative role that is one of the important purposes served by proceedings for disciplinary orders”.

See Council of the Law Society of NSW v DDQ [2017] NSWCATOD 123, 14 August 2017.

Trustees and liquidators

Such obligations apply in many licensed professions. Under the Corporations Act, s 35-1 Schedule 2, liquidator must notify ASIC if they become “an insolvent under administration” or even if a bankruptcy notice is issued against them. They must do this within 5 business days after they could reasonably be expected to be aware. A failure to comply can lead to disciplinary proceedings.  There is a general discretion that might be applied not to put the name of the liquidator on the Register where illness is involved.  The same applies to trustees in bankruptcy under the Bankruptcy Act.

Share on facebook
Share on google
Share on twitter
Share on linkedin

Leave a Reply

Your email address will not be published. Required fields are marked *

Latest

Popular

Featured

Stay Up To Date With Murrays Legal Commentary

Subscribe now