NSW Court of Appeal on difference between ‘professional misconduct’ and ‘unsatisfactory professional conduct’

The distinction between ‘professional misconduct’ and ‘unsatisfactory professional conduct’ is usually elusive.  Guidance from an appellate court in relation to cognate legislation is therefore valuable.  It seems that one instance of ‘incredibly sloppy’ work involving innocent false representations being made to the other side, if it is comprised of a series of closely related bits of conduct in relation to the one matter, is not what is contemplated by the words ‘substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence’.  CYX v Council of the Law Society of NSW [2009] NSWCA 430 (previously blogged here) is a decision I regard as indicating an appropriately restrictive approach to identifying ‘professional misconduct’, a finding which should carry with it the opprobrium associated with the worst professional wrongs.  The NSW Court of Appeal overturned a finding by New South Wales’s Administrative Appeals Tribunal’s of professional misconduct.

A man retained a solicitor to act in the purchase of property.  He signed the contract of sale in the solicitor’s presence, and then took it away to ‘think about it’.  The solicitor exchanged the contract with the vendor’s camp on its return, having learnt from the client that the client’s wife had signed it as co-purchaser.  The solicitor’s signature as witness remained on the document. Combined with other documents the solicitor exchanged, the impression was given to the vendor that he acted for both and had explained to each of them the contract and a waiver of entitlement to the cooling off period.  In fact he had not done so, and the wife later said her signature had been forged. According to Justice of Appeal Handley, with whom the other judges agreed, though the solicitor’s conduct was ‘incredibly sloppy’, it did not rise to the relevant part of the definition of ‘professional misconduct’, being:

‘unsatisfactory professional conduct “where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence”.’

‘Unsatisfactory professional conduct’ was defined to mean conduct:

“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”

It did not rise to ‘professional misconduct’ because, being ‘momentary and isolated lapses’, they were neither ‘substantial’ nor ‘consistent’.  Nevertheless, Justice of Appeal Handley said:

‘Although, by themselves, they were not acts of professional misconduct, repeated acts of this character would properly be characterised in that way.  Although the acts were isolated and there is no evidence that they had been repeated in other transactions the solicitor should nevertheless be publicly reprimanded for them as acts of unsatisfactory professional conduct.’

The Court of Appeal accordingly unanimously substituted for the finding of professional misconduct a finding of unsatisfactory professional conduct, a course which had been available to the Tribunal under the NSW equivalent of the Legal Profession Act, 2004 (Vic)’s s. 4.4.20.