Ethics & Standards Quarterly: recent significant decisions

Council of the New South Wales Bar Association v de Robillard [2022] NSWCATOD 122

Decision Published: 20 October 2022

View the decision on NSW Case Law here:

On 28 September 2022, the New South Wales Civil and Administrative Tribunal (Tribunal) made orders, in interlocutory proceedings that Council of New South Wales Bar Association (Bar Council) commenced against Mr Christian Roger de Robillard:

• requiring Mr de Robillard to communicate solely with the Bar Council’s solicitors, as opposed to members of the Bar Council, in relation to the conduct which was the subject of disciplinary proceedings that the Bar Council commenced against Mr de Robillard, until the matter has been finalised; and
• requiring Mr de Robillard to pay the Bar Council’s costs of the interlocutory application.

The Tribunal held that it has an implied and express power to make the above interlocutory orders. With respect to whether the Tribunal should exercise that power, the Tribunal held (at [71]-[74]):

“From my reading of the correspondence … it is clear to me that the reader of those emails …  will be given the impression, by the content of the emails, that Mr de Robillard is seeking to impose upon them an obligation to intervene in various situations, including, specifically, in relation to this matter, in the Council’s conduct of its case and perhaps also in the conduct of and giving of instructions to the Council’s solicitors and barristers. This has the potential to have an adverse impact upon the proceedings of the Tribunal by interfering with the Council’s conduct of its case. This undermines the just, quick and cheap resolution of the real issues in the matter. The source of information concerning the conduct of the proceedings and the source of advice concerning the conduct of the proceedings for the Council should be its solicitors and counsel, not the respondent.

The impression which may be given to a reader of Mr de Robillard’s emails in CEM-1 that he is seeking to impose an obligation upon members of the Council to intervene in his interests in the Council’s conduct of the substantive matter may well be experienced by a reader of those emails as harassment.

The potential of Mr de Robillard’s correspondence in CEM-1, including the correspondence to which Dr Higgins SC is copied in, to increase the workload of Hicksons Lawyers and counsel for the Council is obvious. The potential for that increase in workload to increase the quantum of legal costs incurred in the Council’s case is also obvious. This also runs counter to s 36 of the CAT Act. Mr de Robillard submitted that there is no proof that this effect will be realised, and speculated that Hicksons Lawyers might be working on a retainer. I note that there is no evidence as to any retainer. In any event, the potential for the quantum of legal costs to be increased is sufficient. The matter should not be conducted in such a way as to generate unnecessary work for Hicksons Lawyers or for counsel.

An interlocutory order restricting Mr de Robillard’s communication with the members of the Council is warranted.”

Victorian Legal Services Commissioner v Dolphin (Legal Practice) [2022] VCAT 1333

Decision Published: 1 December 2022

On 1 December 2022, the Victorian Civil and Administrative Tribunal (Tribunal) published its decision in disciplinary proceedings that the Victorian Legal Services Commissioner (Commissioner) commenced against Ms Glenys Dolphin.

The Tribunal found Ms Dolphin, who had acted for a client in relation to a probate matter, engaged in professional misconduct on the basis that, on numerous occasions, Ms Dolphin:

• failed to act honestly and fairly in her client’s best interests and maintain her client’s confidence;
• disclosed confidential information about the probate matter to her client’s social worker and treating psychiatrist;
• failed to act in the best interests of her client in the probate matter;
• failed to avoid compromising her integrity and professional independence; and
• failed to follow her client’s lawful, proper and competent instructions.

The Tribunal made orders:

• issuing Ms Dolphin with a reprimand; and
• requiring Ms Dolphin to pay the applicant’s costs of the proceeding in the sum of $25,000.00.

With respect to the finding of professional misconduct, the Tribunal held (at [85]-[88]):

“Two unauthorised emails provide the foundation of Charge 2. The first email was sent to Mr. Hill’s social worker Ms. Warner. It contained an observation in relation to certain aspects of Mr. Hill’s capacity and a fear Mrs. Dolphin had for her own safety if Mr. Hill was released and felt aggrieved (presumably by actions undertaken by Mrs. Dolphin). The second email was sent to Mr. Hill’s treating [psychiatrist], Dr. Ventura. The email sent to Dr. Ventura contained observations about Mr. Hill’s capacity. The email expressed a fear that Mr. Hill may ‘turn on’ Mrs. Dolphin if things go wrong. In the email Mrs. Dolphin postulates a view that she doubts whether Mr. Hill ‘will ever be a socially acceptable person’. Both emails were sent without instructions. The emails expressed opinions which could not fairly be regarded as being in the interest of Mr. Hill. These emails were certainly in breach of rules 1.1 and 3.1 of the PCPR. Whilst being in breach of the rules, the actions of Mrs. Dolphin in sending these two unauthorised emails was conduct, having regard to the principles in Webb’s case, which constituted substantial failure to reach or maintain a reasonable standard of competence and diligence. Professional misconduct is established in relation to this charge.

Charge 4 relates to correspondence from Mrs. Dolphin to Mr. Hill which is misleading in nature. After Mr. Hill had received an invoice for legal fees dated 21st July 2014, he questioned the charges contained therein in respect of communications with Ms. Warner and Dr. Ventura. He complained that those communications had not been authorised. In response Mrs. Dolphin suggested that the communications were inert. Mrs. Dolphin further suggested that Mr. Hill was not entitled to receive a copy of the communication with Dr. Ventura because the communication was confidential. In response to a further request Mrs. Dolphin suggested to Mr. Hill that he had received all the communications and repeated her assertion that the communications with Dr. Ventura were the subject of legal professional privilege. Mr. Hill did not authorise the sending of the two emails which form the subject matter of Charge 2. When Mr. Hill sought to obtain copies of those emails and further information, his request was met with a series of misleading responses which failed to adequately respond to his request and, moreover, did not provide the requested information. This conduct was in breach of Rule 1.1 of PCPR and, having regard to the principles in Webb’s case, involved a consistent failure to reach or maintain a reasonable standard of competence and diligence. Professional misconduct regarding Charge 4 is therefore established.

Charge 6 concerns further unauthorised communications and the payment of trust funds without authority. Mrs. Dolphin agreed to pay an amount in respect to the legal fees incurred by the brother of Mr. Hill from estate funds held in trust by her. Not only did she lack the instructions to make such a payment, but there must also be considerable doubt as to whether there was any legal basis which created a liability for the estate to pay the legal expenses of Mr. Hill’s brother. Moreover, Charge 6 relates to correspondence to Mr. Hill’s new solicitor and also to his brother’s solicitor expressing an unsubstantiated opinion of Mrs. Dolphin that Mr. Hill lacked capacity to continue to act as an executor and that an application ought to be made to the Supreme Court to remove him as executor. Mrs. Dolphin did not have instructions to pay the legal fees of Mr. Hill’s brother, nor did she have any authorisation whatsoever from Mr. Hill to express her views in relation to his capacity to continue as an executor such that an application should be made to the court to seek his removal. Those statements are clearly contrary to the interests of Mr. Hill. There can be no doubt that by making the payment for Mr. Hill’s brothers legal fees and expressing a view as to Mr. Hill’s lack of capacity that Mrs. Dolphin breached her obligations under rules 1.1 and 3.1 of PCPR It was also conduct, having regard to the principles in Webb’s case, which was a substantial failure to meet the requisite standard of competence and diligence. Professional misconduct is established regarding this charge.

Mr. Hill provided Mrs. Dolphin with clear instructions that her retainer had been terminated and the file was to be transferred to his new solicitors Bay Legal. Not only were these instructions received directly from Mr. Hill but also from his solicitors Bay Legal. In breach of her professional obligations Mrs. Dolphin failed to cease work on the matter and failed to deliver the file to the new solicitor. Mrs. Dolphin may have formed a view that Mr. Hill lacked capacity to terminate her services thus justifying, in her mind, her decision not to comply with this request. However, when she received a doctor’s report establishing Mr. Hill’s capacity she should have ceased all work and delivered the file without delay. She was in no position to make a determination as to Mr. Hill’s capacity and, in reality, had continued to act in the matter. Mr. Hill had provided instructions to his new solicitors. The solicitors had no doubt about his capacity. The solicitors provided medical evidence to Mrs. Dolphin regarding his capacity. The question of his capacity was without question. Mrs. Dolphin should have complied with the request. Her opinion of Mr. Hill’s capacity was unsubstantiated. There can be no clearer instance of professional misconduct. Mrs. Dolphin received instructions from a client to cease work and transfer a file but failed to do so because of her personal unqualified view of her client’s lack of capacity. Furthermore, Mrs. Dolphin, continued to work on the file despite her retainer having been terminated. She claimed that she was apparently directed by advice from the Legal Practitioners Liability Committee (LPLC). She took the unusual step of commencing proceedings in the Supreme Court being proceeding SCI/2015 No.1733 (the Supreme Court Proceeding) seeking orders in relation to the funds she held in her trust account. The Supreme Court Proceeding was not required having regard to my assessment of the agreed facts. Charge 8 is well founded. There has been a breach of rule 1.1 of the PCPR for the period up to and including 30 June 2015 and a breach of  rules 4.1.1,4.1.4 and 8.1 the LPULR for the period after 1 July 2015. In addition as there has been substantial failure to meet the requisite standard of competence and diligence. It is clear that professional misconduct is established concerning Charge 8.”

Victorian Legal Services Commissioner v Sandbach (Legal Practice) [2022] VCAT 1477

Decision Published: 22 December 2022

On 22 December 2022, the Victorian Civil and Administrative Tribunal (Tribunal) published its decision in disciplinary proceedings that the Victorian Legal Services Commissioner (Commissioner) commenced against barrister, Mr Alan Walter Sandbach.

The matter arises out of Mr Sandbach’s conduct in liquidation proceedings where he had appeared for a client who was ultimately unsuccessful and was now required to pay the costs of the opposing party (Opposing Party).

The Commissioner alleged that Mr Sandbach engaged in professional misconduct on the basis that, on multiple occasions, Mr Sandbach made allegations against the solicitor for the Opposing Party that he produced false or fraudulent documents:

• without reasonable grounds to believe that there was available material to support and give proper basis to the allegation; and
• without instructions from the client that the client wished to have the allegation made after Mr Sandbach had advised the client of the possible consequences for both the client and the matter if the allegation was not substantiated.

Following a contested hearing, the Tribunal made the following determinations:

• A finding that, on the balance of probabilities, Mr Sandbach is guilty of professional misconduct within the meaning of both ss 297(1)(a) and 298(b) of the Legal Profession Uniform Law (Vic) (Finding).
• In light of the Finding, the matter is to be progressed to a hearing on penalty, at which time the Commissioner’s application for costs will be decided.

With respect to a finding of professional misconduct, the Tribunal held (at [131]-[138]):

“…in my view the conduct of the Respondent was both substantial and consistent.

The conduct was consistent, in that the allegation was repeated beyond a mere incidental or minor repetition. In fact, the allegation was repeated on at least 10 occasions. At least 6 times at the 30 June mention, at least twice at the 20 July mention, and at least twice at the CPA Hearing.

Moreover, the Respondent continued to repeat the allegations after the considerable warnings given by Gourlay JR.

Gourlay JR very clearly stated to the Respondent that the allegation of fraud was “made on a basis without any evidence”, “absolutely contrary to the Bar Rules”, and “outrageous”.  Despite these warnings, which would indicate to any reasonable practitioner a need to proceed with caution, the Respondent did not yield or curtail his conduct. This adds greatly to the seriousness of the conduct, to the point that it becomes ‘substantial’. It demonstrates a blatant disrespect, not only for the Complainant as the Respondent’s fellow legal practitioner, but ultimately a disrespect for the Court. This strikes at the heart of the duties of a legal practitioner as an officer of the Court and is, most certainly, substantial.

Adding to this is the fact that the Respondent repeated the allegation despite the affidavits of Alan Mathieson (see above at [103]).

The fact that Efthim AsJ commented on the unsubstantiated and inappropriate nature of the allegation, in his 27 June 2017 decision on the CPA Application, also demonstrates the substantial and egregious nature of the Respondent’s conduct ….

In Rees v Bailey Aluminium Products Pty Ltd, it was expressed that unsubstantiated allegations which relate to fraud should be treated with the utmost concern. As put by the Court of Appeal: “An allegation of fraud, when there is no factual basis for it, constitutes a serious dereliction of duty and misconduct by counsel.”

This is the level of concern invoked by the Respondent’s behaviour in this case. The conduct was substantial and consistent and amounts to professional misconduct.”

Victorian Legal Services Board v Jensen [2022] VSC 603

Decision Published: 13 October 2022

On 3 August 2022, the Supreme Court of Victoria (Supreme Court) published its decision in respect of liability for proceedings that the Victorian Legal Services Board (Board) commenced against Mr Dennis Jensen and his corporations, Common Law Resolutions Pty Ltd and JTA Corporation Pty Ltd (Victorian Legal Services Board v Jensen [2022] VSC 430).

In the proceedings, the Board alleged that Mr Jensen, who has never been admitted to legal practice, was guilty of contempt on the basis Mr Jensen breached an injunction restraining him from engaging in legal practice including, in particular, providing legal advice in relation to disputes, proceedings or potential proceedings and from drawing documents on behalf of, or as agents of litigants, including pleadings, affidavits and submissions.

The Supreme Court found Mr Jensen had breached the injunction on the basis that, Mr Jensen provided the parents of a person accused of rape advice in relation to proceedings or potential proceedings and drafted documents on behalf of, or as agents of litigants, including affidavits, pertaining to their son’s defence of serious criminal charges.

On 13 October 2022, the Supreme Court published its decision in respect of penalty and made orders:

• declaring that Mr Jensen is convicted of criminal contempt of court;
• sentencing Mr Jensen to 3 months’ imprisonment, wholly suspended for a period of 12 months; and
• requiring Mr Jensen pay the Board’s costs to be assessed on an indemnity basis.

The Supreme Court held (at [47]-[53]):

“I find that Mr Jensen’s contempt was contumacious. He had a direct intention to disobey the injunction in order to advance his ‘theories’ with no reasonable belief that his conduct could be justified. There was clear evidence that leaves me with no doubt that he bore an obstinate resistance to authority that was co-incidental to seeking to ‘help’ the parents. This was a criminal contempt. The purpose of these proceedings is not to coerce Mr Jensen to comply with Garde J’s injunction. The breach has taken place, and is incapable of remedy. Mr Jensen claims he will not breach it again. The purpose is to punish for a past contempt to vindicate the administration of justice, and not primarily to force compliance with an order.

Mr Jensen’s breach was deliberate in that, in breaching the injunction, he deliberately encouraged the parents to breach the IVO against their son. As noted in the contempt reasons, the parents asked Mr Jensen more than once whether the proposed action of sending affidavits to the complainant directly would breach the IVO. He responded, ‘[w]e can deal with the orders by destroying the Mag Court later. Don’t worry about the IVO’s;’[29] and ‘[a]ny issues with the Police or the court we can handle it very easy because we can nullify and void both entities. Please don’t stress we have your back. This is an easy one for us. Today we took out the High Court with a case “just for fun” LOL’.[30] A perverse or obstinate resistance to authority, first evident in 2018 before Garde J, remains clearly on display.

This was no accidental breach of the injunction nor could it be described as casual. Mr Jensen was evidently trying to get around the purpose and spirit of the injunction so that he could give advice of a legal nature to the parents, or (on his last version) facilitate or transmit advice and legal documents to the parents from another person whom he was well aware was not a qualified lawyer. His disclaimer that he was not a qualified lawyer and that he could only accept a donation instead of a fee, were (unsuccessful) attempts to overcome the technical terms of the order.[31]

Put differently, Mr Jensen could not have had a reasonable belief that he was not in breach of the injunction. I am satisfied beyond reasonable doubt that the breach was wilful.[32]

have already found that Mr Jensen’s conduct imperilled the due administration of justice.[33]

There is a need to deter Mr Jensen and others from repeating this contempt. A punitive aim is warranted to vindicate the authority of the court and bring home to Mr Jensen and others the importance of complying with court orders and of not engaging in unqualified legal practice. Mr Jensen now has an extensive history of such practice and it is important to protect the public from him and those who would follow him. General deterrence is, in the circumstances, an important sentencing objective deserving of weight in my deliberations.

As noted, the principal aim for punishing contempt is to preserve the orderly administration of justice with the purpose of specific deterrence, general deterrence and denunciation, taking into account the nature and circumstances of the contempt, the actual consequences and the effect on the administration of justice, the contemnor’s personal circumstances and financial means, his culpability, reasons for his conduct, need for deterrence and whether he has exhibited contrition and made a full and ample apology.”