Failure to disclose: unsatisfactory professional conduct

This case summary follows articles published earlier this year in the Ethics and Standards Quarterly that provide guidance on disclosure and highlight the need to respond to the regulator.

In Desacola, a recent decision in Queensland, a lawyer was found to have engaged in unsatisfactory professional conduct for failing to disclose a charge, his conviction for that charge and for failing to provide a statement setting out why he was a fit and proper person to hold a practising certificate despite the conviction. The decision of the Queensland Civil and Administrative Tribunal (Tribunal) was that the conviction demonstrated the lawyer was not a fit and proper person to remain on the Roll.

The case saw the Tribunal recommend that Mr Desacola’s name be removed from the Queensland Roll of Lawyers (s 37 Legal Profession Act 2007 (Qld) (QLD LPA)) and order Mr Desacola pay the costs of the Legal Services Commissioner (Commissioner).

Mr Desacola, charged with a serious offence and following a trial, was found guilty of “indecent treatment of a child under 16 years of age, and under 12 years of age, the offence having been committed between 28 September 2017 and 3 October 2017” (paragraph 5).

The Tribunal noted that “the conduct was described by the sentencing Judge as brazen and opportunistic. Nevertheless, the prosecutor submitted that, considering the broader scale for offending of this kind, the respondent’s conduct was towards the lower end. The conviction resulted in the imposition of a sentence of 12 months imprisonment, suspended after serving six months” (paragraph 7).

Shortly before the trial commenced, the Queensland Law Society (QLS) became aware of the charges and gave Mr Desacola several opportunities to make the notification required by the QLD LPA as well as to provide other documents relating to the charges. However, Mr Desacola was taken into custody before he could do so. As he was in custody, neither did he “give notice of the conviction, or give notice of a show cause event, or give a written statement explaining why, despite the show cause event of being convicted of a serious offence, he continued to be a fit and proper person to hold a local practising certificate” (paragraph 6).

In Desacola, the Commissioner sought a finding of professional misconduct in relation to Mr Desacola’s conviction and unsatisfactory professional conduct in relation to his failure to disclose those convictions to QLS and to provide a statement setting out why he was a fit and proper person to hold a practising certificate despite the conviction, as required by the QLD LPA.

Mr Desacola admitted the conduct. However, he said “his criminal proceedings and work obligations weighed heavily on his mind, and he did not turn his mind sufficiently to his reporting obligations, for which he expressed deep regret” (paragraph 2).  Mr Desacola also said he was physically unable to make the reports required as he was in the Brisbane Correctional Centre and, in any event, QLS was aware of the charges. Mr Desacola “also pointed out that he admitted to the allegations long before the discipline application was filed, and referred to the significant effect the conviction and sentence have had on his life, including the loss of his practising certificate, and the significant adverse publicity to which he has been subjected” (paragraph 3).

The Tribunal considered the statutory definitions of unsatisfactory professional conduct and professional misconduct in the QLD LPA, particularly that aspect of the definition of professional misconduct which includes conduct “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.” (s419(1)(b) QLD LPA).

The Tribunal noted that in Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; 97 CLR 279; [1957] ALR 620 the High Court stated “that conviction for a serious offence, even one involving imprisonment, does not automatically mean that a person is not a fit and proper person to be a legal practitioner.”

In Desacola, the Tribunal noted the similarity between the conduct in this matter and the offences committed in Law Society of South Australia v Rodda [2002] SASC 274; 83 SASR 541 (Rodda).  At paragraph 16 the Tribunal set out Doyle CJ’s comments at paragraphs 27 to 31 of Rodda as follows:

“In a case like this, where the Court’s concern is with criminal conduct unconnected with the practitioner’s profession, and with the defects of character or personality that are revealed by that conduct, issues of professional competence in the narrow sense do not arise. Nevertheless, the Court must still consider whether the conduct and the convictions affect Mr Rodda’s capacity to act as a practitioner, and how that conduct and those convictions would reflect on the legal profession were Mr Rodda permitted to remain a member of it. Two points were made in Ziems …. First, as Fullagar J said (at 290), professional misconduct will usually have ‘a much more direct bearing on the question of a man’s fitness to practise’ than personal misconduct. And, Kitto J said (at 298), while a conviction may ‘carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails’, nevertheless, there will be many kinds of convictions ‘which do not spell unfitness for the Bar …

….

But the offences are of a kind that damage the ability of Mr Rodda to maintain the relationship with other members of the profession that is an essential aspect of being a practitioner. Other practitioners would not readily place trust and confidence in a practitioner who has committed such a serious offence. Another practitioner could not assume that Mr Rodda accepts the high standard of conduct which membership of the legal profession requires. In the words of Dixon CJ in his dissenting judgment in Ziems (at 285-286), Mr Rodda could not ‘command the confidence and respect’ of the Court or of his fellow practitioners.

More significantly, the offences indicate that Mr Rodda lacks qualities that are essential for the conduct of legal practice. The offences involve a serious breach of the law, even though they might be regarded as impulsive and isolated. … That being so, Mr Rodda cannot be regarded as a person in whom clients, especially vulnerable persons, could place their complete trust. Nor could he command the respect of clients.

There is another factor. The reputation and standing of the legal profession in the public eye are important. Public confidence and trust in the legal profession is important to the effective functioning of the profession. That confidence and trust rest in part on the reputation and standing of the profession. The public could not view with respect, and have complete confidence in, a person with such serious and recent convictions. Were the Court to continue to hold Mr Rodda out as a fit and proper person to remain a member of the profession, the standing of the profession as a whole would suffer. The public would rightly doubt the standards of a profession which permitted a person who has recently committed such serious offences to remain one of its members.

…

For those reasons I am satisfied that the offences amount to professional misconduct. In the alternative, and the result is the same, I am satisfied that the offences are such that Mr Rodda is not a fit and proper person to remain a legal practitioner.”

In Desacola, the Tribunal considered that the conduct of Mr Desacola was ‘reprehensible” and, although it had no connection with legal practice, noted at paragraph 20 that Mr Desacola’s conduct was:

“likely to have an adverse impact on the reputation and standing of the legal profession, a matter of some importance. The acceptance in the profession of a person who had committed such an offence recently may lead the public to doubt its standards. For that reason, it seems to me correct to conclude that the conduct, and subsequent conviction, demonstrates that the respondent is not a fit and proper person to be a legal practitioner.”

At paragraph 22, the Tribunal said that whilst Mr Desacola had made “no clear expression … of regret for his conduct and remorse”, he had taken responsibility for his conduct, he had not committed any similar offences, he accepted the allegations made against him, he co-operated with the proceedings brought by the Commissioner and appeared in person at the hearing. The Tribunal noted that:

“These are promising signs, but fall short of showing sufficient rehabilitation to overcome the effect of the initial conduct and conviction. At this stage, it is considered he is not a fit and proper person to engage in legal practice. Accordingly the conduct the subject of Charge 1 should be found to be professional misconduct.”

In relation to the failure to disclose the charges and convictions, the Tribunal stated that:

“In correspondence, the respondent stated that he understood he was only obliged to report matters having potential to affect his conduct as a legal professional.  It is troubling that he did not understand his reporting obligations. However he went to say that if he is incorrect in his analysis, he fully accepted the dereliction in his reporting duty. This matter is considered to be one of some seriousness, because of the ongoing failure to report. In the case of the other allegations, they occurred in the shadow of his trial and imprisonment. These failures are also serious, though less concerning. Charges 2 to 5 each warrant finding that the respondent engaged in unsatisfactory professional conduct, as sought by the applicant, and not contested by the respondent.”

Desacola is an important reminder of the need to comply with the obligations of disclosure under the Legal Profession Uniform Law (NSW) and an important reminder of the impact a conviction for a serious offence may have on a solicitor’s ongoing fitness to engage in legal practice.