Lawyer Dealt with for Failing to Provide PC Urine Samples

Justice Martin Burns assisted by Ms Bradfield and Dr Dann of the Queensland Civil and Administrative Tribunal (QCAT) recently considered the case of a solicitor failing to undertake urine testing pursuant to an undertaking to the Tribunal in Legal Services Commissioner v Cullen [2024] QCAT 412.

The matter involved disciplinary proceedings in relation to a 34-year-old legal practitioner, Mr Cullen, who had worked as an employed solicitor for 2 and a half years before commencing practice on his own account, having obtained an unrestricted principal level practising certificate.  In 2019 Mr Cullen was charged with possession of a small quantity of cocaine.  He pleaded guilty in the Brisbane Magistrates Court and was ordered to perform 80 hours of unpaid community service work.  No conviction was recorded, and he completed his community service in June 2020.

Disciplinary action proceeded subsequently and on 30 October 2020 the application was heard before Justice Daubney, the then president of the Tribunal.

The Tribunal found Mr Cullen had engaged in unsatisfactory professional conduct.  Mr Cullen was publicly reprimanded and ordered to pay costs.  The orders were founded on a written undertaking given by Mr Cullen as follows:

“At the time Mr Cullen applies for renewal of his practising certificate in 2021 and 2022, he undertakes to provide supporting documentary evidence that he has as from 30 October 2020:

(a) maintained ongoing counselling at least quarterly with a registered psychologist or psychiatrist; and

(b) has provided urine samples clear of unlawful drugs on at least a quarterly basis through a pathology practice.” 

The Tribunal observed that the requirements of the undertaking were:

“… not to be effectively imposed on the respondent by way of punishment; rather, they are supportive of him in his ongoing development as a member of the profession, and more importantly are designed to be protective of the public, his fellow professionals and the court in terms of their dealings with the respondent and his broader engagement in the profession.”  

Mr Cullen made application to the Queensland Law Society in May 2021 for the renewal of his 2021/2022 practising certificate and did not provide any supporting documentary evidence in compliance with paragraph (b) of his undertaking.  Mr Cullen proffered explanations for his failure which the Tribunal considered.

The Commissioner did not allege that the failure on the part of Mr Cullen to comply with the terms of his undertaking was motivated by a desire, for example, to conceal ongoing drug use.  Quite the contrary, the unchallenged evidence was that Mr Cullen remained abstinent throughout.  The Commissioner did allege however that Mr Cullen’s breach was deliberate and, for that reason, sufficient to constitute professional misconduct.  Further the Commissioner contended that there were “concerns with integrity” of Mr Cullen’s explanation for breaching the undertaking.

In order to make a disciplinary order under s 456 of the Legal Profession Act 2007 (Qld) (Act), the Tribunal must first be satisfied that the practitioner engaged in unsatisfactory professional conduct or professional misconduct.

[3] Before there is jurisdiction to make a disciplinary order under s 456 of the Act, the Tribunal must first be satisfied that the practitioner engaged in unsatisfactory professional conduct or professional misconduct. That requires consideration of the proven conduct in light of the statutory definitions of those expressions in ss 418 and 419 of the Act respectively as well as the common law test. 

[4] Unsatisfactory professional conduct is defined by s 418 of the Act to include “conduct of an Australian legal practitioner happening in connection with the practice of law 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”.  Professional misconduct is defined to include “(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence and (b) conduct of an Australian legal practitioner, 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”: s 419(1). Further, for a finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in s 419(1), regard “may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under [the] Act or for the grant or renewal of a local practising certificate”: s 419(2).

[5] That said, it is well-established that disciplinary penalties are not imposed as punishment; they are imposed for the protection of the community. Accordingly, in determining what order the Tribunal might make, regard should primarily be had to that purpose as well as the maintenance of proper professional standards. As to that, the question of Mr Cullen’s fitness to remain a solicitor is to be ascertained as at the date of the hearing rather than at the date of the conduct the subject of the charges.  

[6] Importantly, an order recommending the removal of the name of a practitioner from the local roll should only be made when the probability is that the practitioner is permanently unfit to practise. This test of “probable permanent unfitness” is “a way of identifying that the character of the practitioner is so indelibly marked by the misconduct that he cannot be regarded as a fit and proper person to be upon the roll”. As to this, the following observations made by Thomas JA (with whom McMurdo P and White J agreed) in Barristers’ Board v Darveniza are apposite:

“Generally speaking the quality most likely to result in striking off is conduct which undermines the trustworthiness of the practitioner, or which suggests a lack of integrity or that the practitioner cannot be trusted to deal fairly within the system in which he or she practises.”

The Tribunal found as follows:

[50] Ordinarily such incompatibility between versions on a key feature would give cause to doubt Mr Cullen’s credit but, as has been touched on now more than once, that is more than likely the product of attempts at reconstruction rather than deliberate untruthfulness. Certainly, before such an adverse finding could be made, the Tribunal would require a high degree of satisfaction that Mr Cullen lied in his evidence on this point, but the Tribunal is not persuaded this was the case.

[52] It is the view of the Tribunal that Mr Cullen’s conduct (including his inaction) over the whole of the period in question, as serious as it is, should nonetheless be seen as the unfortunate product of the degree to which his life was in tumult rather than as necessarily revealing of a defect of character of the kind discussed in Barristers’ Board v Darveniza and Attorney-General of the State of Queensland v Legal Services Commissioner & Anor; Legal Services Commissioner v Shand.

The full case can be read here.