Legal discipline and the model paedophile

If there were such a thing as a model paedophile, the respondent in Legal Services Commissioner v Ferguson [2021] QCAT 205, a gentleman in his early 60s, might be it.  He had psychiatric ill health and other life difficulties and turned to booze and porn, a small fraction of which was child pornography.  (No one suggested that his collection of presumably legal non-child porn was relevant in any way to his fitness to practice.)

The porn which was the subject of the criminal prosecution was accessed in 2018 and 2019.  By downloading it from a peer to peer service, he facilitated others’ viewing of the same material, so his conduct was not entirely passive. There was, however, ‘clear and convincing evidence of insight, remorse and rehabilitation’.  He had cooperated fully with the criminal law process and the disciplinary process, and voluntarily sought treatment.

In late 2019, the criminal law handed him an 18 month suspended sentence which had presumably expired without incident at the time of QCAT’s decision, though not at the time of the hearing which was, remarkably, given that it was a plea, five months earlier in February of this year.

The respondent notified his conviction to the Law Society, which many a solicitor fails to do, unaware of the obligation.  In May 2020, the Law Society cancelled his practising certificate and told him not to bother trying for another one for two years, i.e. until May 2022.  There was no challenge to this administrative action.

The other day, unrepresented, he pleaded guilty to a charge of professional misconduct brought by the Legal Services Commissioner, ‘namely that his convictions in the District Court for the serious offences constituted professional misconduct or unsatisfactory professional conduct.’  That’s the first oddity about this case: being convicted is not conduct of the practitioner, and since he pleaded guilty, one might think that he did the right thing vis-a-vis the criminal process, but perhaps that’s a bit semantic.

Then QCAT, constituted by Justice Daubney and two others, had to work out what to do with him.  Generally speaking, there is a reluctance to allow persons serving terms of imprisonment to practise whilst ‘imprisoned’, but QCAT went further.  What the Legal Services Commissioner asked the Tribunal to do is not apparent from the reasons; nor what the respondent submitted an appropriate sanction would be.

The Tribunal recorded, as always, that the purpose of the disciplinary prosecution was protective and not punitive, and recognised that the cases say that ‘Convictions for, or arising out of, child pornography offences are not prima facie evidence that a person is not a fit and proper person … even an individual convicted for the sexual abuse of minors can, albeit in a very small number of conceivable circumstances, remain a fit and proper person to practise law in this country.’

Then, unusually, it expressly found that there was no utility in striking him off for the purpose of protecting the public and there was no ‘worthwhile deterrent element in this case’.

Then the Tribunal concluded:

‘That being said, the gravity of the Respondent’s offending should be reflected in an appropriate sanction.  As was said in [Legal Services Commissioner v Woodman [2017] QCAT 385 at [49]]:

The respondent’s offences were serious and distasteful enough to require a significant period of disqualification or suspension from practice.  It is desirable to signify the seriousness with which such conduct is regarded, and to enable rehabilitation to take place, and to maintain public confidence in the profession.

Having regard to the circumstances of this case, the time which has elapsed since the offending, and the demonstrated efforts to undergo rehabilitation, the Tribunal considers that the appropriate sanction is a suspension for three years from the date of the Respondent’s conviction for the subject offences.’

Woodman had engaged in conduct beyond consuming child pornography.  He had groomed a child and used the internet to procure a child.

The Tribunal ordered the respondent not be granted a practising certificate for a period of 3 years from the date of conviction, i.e. until November 2022, extending by 6 months the prohibition imposed by the Law Society when it cancelled his practising certificate, but without expressly considering why the Law Society’s evaluation of the date when it was anticipated suspension would   no longer be appropriate was wrong.  Presumably the respondent had held a practising certificate and practised during that 3 year period, so it is a bit of an odd order, but again, perhaps that’s a bit semantic.

Why protection of the public required the practitioner not to practise for six months (or indeed at all) beyond the Law Society had told him not to practise is not really apparent from the reasons though.  The implication is that the reputation of the profession required a three year non-practise period, but clearly the Law Society did not think so.  And would the public really look askance at the profession if it did not require a  model paedophile like the respondent who had been dealt with by the criminal law and served his sentence, to stand out of the profession for a further period in addition to copping a finding of misconduct, a costs order and a reprimand, especially where there was no recorded assertion by the prosecution that rehabilitation was incomplete, and no finding to that effect?  Quite possibly, I suppose, but I would like to know how the reasoning goes for that conclusion.

The finding of professional misconduct which empowered the Tribunal to make the penal orders it made proceeded according to the following logic:

1.  Professional misconduct was defined by a provision which said conviction for a serious offence is conduct which is capable of constituting professional misconduct.

2. The test for infamous conduct in a professional respect in Allinson v General Council of Medical Education & Registration [1894] 1 QB 750 (conduct which would be reasonably regarded as disgraceful or dishonourable by other members of the profession of good repute and competency) was without doubt satisfied.

3. Accordingly, the conduct was conduct which would justify a finding that the practitioner was not a fit and proper person to engage in legal practice.

Now, one might think the provision referred to in the first step in the exercise to be a waste of ink, unless one of its messages is that conviction of a solicitor for a serious offence will not necessarily amount to professional misconduct for a solicitor. Never could that be more so than when the conduct was entirely within the private life of the practitioner, entirely unconnected with his professional life. Why this consumption of pornography fell within the class of serious offences which do amount to professional misconduct is not apparent from the reasons.

Secondly, the Allinson test is nowadays used as the test for professional misconduct at common law, and cannot be satisfied by a finding of personal misconduct in the sense of conduct unconnected with legal practice, or so I argue by reference to a High Court case which seems never to be cited when it needs to be.  And I note that Professor Dal Pont in Lawyer Discipline (2019) seems to agree, at [2.20].  If I am right, then the Allinson test was inapposite.

Thirdly, it does not follow at all from a finding of professional misconduct at common law that a solicitor is not fit to engage in legal practice, as evidenced by the many findings of such misconduct which do not result in any interference with the right to practice.


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