Lawyer Misleading Client and Court as to Appeal Progress Found Guilty of Professional Misconduct

In Legal Services and Complaints Committee and Kelly [2024] WASAT 125 ( 22 November 2024), a practitioner from West Australia, Phillip Kelly, failed to file Appeal Notices within time for a client who sought to appeal two related motor vehicle convictions.  Over the following 2 years Mr Kelly misled the client as to the progress of the appeals, failed to respond to court correspondence, failed to comply with court orders, misled the court in practitioner affidavits, and misled the court in the client’s affidavits and at the hearing of the appeals.  There were 10 separate grounds alleging professional misconduct including undue delay, incompetence and failures of communication involving dishonesty and discourtesy. 

The Western Australia State Administrative Tribunal (WASAT) comprised of Deputy President Judge Henry Jackson, Senior Member Dr Michelle Evans-Bonner and Member Ross Povey found Mr Kelly guilty of one count of unsatisfactory professional conduct and nine counts of professional misconduct.

The Tribunal considered the statutory regime and legal principles from paragraph [28]:

28. This matter was commenced by the LSCC’s referral to the Tribunal per s 428(1) of the Legal Profession Act 2008 (WA) (LP Act). 
29. By s 438(1) the Tribunal is provided with ‘jurisdiction to make a finding that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct’.
30. Sections 402 and 403 defined ‘unsatisfactory professional conduct’ and ‘professional misconduct’ respectively:

unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring 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 includes —

1. unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
2. conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring 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.

31. These statutory definitions are not exhaustive and the common law test of professional misconduct, as enunciated in Kyle, [Kyle v Legal Practitioners’ Complaints Committee [1999] WASCA 115 at [61]] and set out immediately below [from Legal Profession Complaints Committee v Lourey [2022] WASCA 114 at [197]] continues to apply.

[professional misconduct includes] conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence.  The first limb of this summary includes, but is not confined to, conduct which occurs in the course of legal practice.  The other limb necessarily relates to conduct in the course of legal practice because of the reference to “professional conduct”.

The Tribunal then considered each of the 10 grounds of complaint, each involving a slightly different combination of the different tests for professional misconduct.

Mr Kelly claimed the delay in filing the Appeal Notices was because whilst the Notices had to be filed in April 2017 and were not filed until 28 February 2018, he was not instructed until September 2017.  Consideration was given to when Mr Kelly was first instructed and the contact the client made and attempted to make with Mr Kelly and his employing firm, GTC.  At [57] the Tribunal rejected the suggestion that Mr Kelly was not instructed to progress the client’s appeals from 12 April 2017 as evidence to the contrary was considerable.  The Tribunal found from [70]:

70. In our view, the client’s subsequent attempts to contact Mr Kelly to progress the Appeals, including explaining to the GTC staff member who took the message on 18 May 2017, is persuasive evidence in support of the LSCC’s allegation that the client had instructed Mr Kelly on 12 April 2017.
71. To the extent that Mr Kelly may have not been clear in that regard at the conclusion of that meeting, the subsequent phone calls from the client put him on notice that he may have been wrong in that regard.
72. That is, we are satisfied and we find that Mr Kelly knew that the client had instructed him at the conclusion of the 12 April 2017 meeting.  If we are wrong, by no later than 18 May 2017 (and, more likely, 20 April 2017) he was recklessly indifferent as to that fact.

And from [96]:

96. The delays were not caused by the client and we do not accept that others within GTC ought to be attributed with any blame either.  The client made several efforts (at least) to follow up Mr Kelly and responded promptly when asked to do so.
97. For these reasons we find that Mr Kelly neglected and delayed progressing the client’s appeals over a period of nearly 11 months.  That is a very lengthy period of time given the statutory timeframe.  But even if we are wrong as to when Mr Kelly was instructed, the delay is still approximately 5 months, which is still a very lengthy period of time in the circumstances.
98. We also find that there is no justification for the delay.  There is no merit in his attempt to shift the focus to the office manager and PLT students and no other attempt was made to explain, let alone excuse, the delay. In that regard we note that the delay occurred in circumstances where:

1. Mr Kelly was aware of the statutory time limits when he first met the client in April 2017;
2. the client made several attempts (at least) to follow up Mr Kelly throughout the period of delay and was prompt when asked to attend to matters;
3. Ms TA appears to have acted promptly when asked to obtain Prosecution Notices and transcripts;
4. the Appeal Notices were filed without any supporting affidavit evidence or the Prosecution Notices and transcripts.

99. For these reasons, we are satisfied and we find that the delay in commencing the appeals amounts to professional misconduct because it was conduct that:

1. substantially fell 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: s 403(1)(a);
2. ‘to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence’: the second limb of Kyle; and
3. ‘would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence’: first limb of Kyle.

In relation to the allegation that false affidavits were sworn, the Tribunal considered the cases of Guidice v Legal Profession Complaints Committee [2014] WASCA 115 at [8] and Fidock v Legal Profession Complaints Committee [2013] and found at [237]:

237. There is no doubt that the making of deliberately false representations to a court, including by preparing a deliberately false affidavit to be sworn by another person, is a matter of considerable gravity.

And from [293] the Tribunal found as follows:

293. In the light of those facts and circumstances, we infer that Mr Kelly deliberately sought to mislead the client by both omission and positive statement to imply that a hearing had taken place on 22 March 2019 which he had attended and made argument, and which would be continued at an adjourned hearing on 2 April 2019.
294. As we have noted with respect to Grounds 3 and 4 above, ‘honesty and integrity are essential characteristics expected of a legal practitioner’, and Mr Kelly was not honest in his 24 March 2019 communication with the client.
295. In Legal Profession Complaints Committee and Bower [2017] WASAT 47 at 21 the Tribunal held:

Depending on the circumstances, a practitioner who breaches his or her duty of honesty to a client by providing information or making a statement to a client which is false or misleading may constitute professional misconduct.  The likelihood of a finding of professional misconduct is increased when the practitioner provides information or makes a statement to a client to conceal the practitioner’s own default or that of the firm for which he or she is responsible.

296. For the above reasons, we are satisfied and find that Mr Kelly’s conduct, in deliberately misleading the client in this manner, occurred for the purpose of concealing his own failings and to protect the money already paid into trust. 

The Tribunal considered the allegations that Mr Kelly had engaged in unsatisfactory professional conduct in his representation of the client and the conduct of the Appeals with respect to the inadequacy of the grounds of appeal, the inadequacy of the evidence presented in support of the applications for an extension of time in which to start the Appeals and the inadequacy of the evidence presented in support of the applications.  The Tribunal was ultimately satisfied that Mr Kelly applied for spent conviction orders for the client without preparing or adducing any adequate evidence in support thereof.

A further ground of complaint alleged by the Legal Services and Complaints Committee (LSCC) was that Mr Kelly failed to respond or respond adequately to a request for submissions, such that the LSCC eventually issued a summons to provide written information.  Mr Kelly did provide a letter in response which was summarised by the Tribunal at [416]:

416. By way of summary (and at the risk of unnecessary repetition) Mr Kelly again responded to each paragraph, providing some more detail:

1. As to para 1, he repeated his admission that he had delayed in filing the Appeal Notices but said that, although he met the client on 12 April 2017, he was not formally instructed until 7 September 2017;
2. As to para 2, he asserted that the Appeal Notices ‘did specify a ground of appeal’ although he acknowledged an imperfect recollection. In doing so he did not address the alleged failure to specify a ground of appeal within s 8 of the CA Act;
3. As to para 3, he admitted that he had filed the Appeal Notices without an application for the extension of time but said that it was not unusual to do so. He also agreed that the transcripts and Prosecution Notices were not filed with the Appeal Notices but blamed delays on excessive delegation of tasks in the GTC office to PLT students;
4. His response to each of paras 4 to 12 and 18 was an admission to the ‘substance of the allegation’ and a repeat of his previous complaint about ‘excessive delegation’ to PLT students;
5. To para 13 (failing to respond to Tottle J’s Associate regarding the failure to file submissions) he said that he did not have the conduct of the client’s file on 22 February 2019.  To paras 14 – 16 (failing to file the appellant’s submissions, and failure to serve the affidavit and the submissions, respectively) he said ‘likewise’;
6. To para 17, he said that he had missed the hearing on 19 March 2019 because GTC administration staff had not diarised it for him;
7. His response to para 19 (failing to provide sufficient/adequate evidence in support of the appeals) refers to the state of the file ‘[u]pon learning of the impending hearing on 2 April 2019’, which he says didn’t allow him ‘adequate time to draft any affidavit material, nor character references’. Of course, those tasks should have been carried out well prior to that point and, indeed, the affidavits which were the subject of criticism by Tottle J had been filed in June 2018;
8. As to para 20, which alleged that the appeals had no reasonable prospects of success, he gave a spirited defence of his expertise in spent conviction matters;
9. Finally, as to the allegation that he had misled Tottle J on 2 April 2019, he said that if his statement to the Court was inaccurate, ‘it was not wilfully uttered’ and reflected his ‘physical condition on the day’; and
10. He ended the letter by agreeing that there were unacceptable delays in progressing the appeals, for which he ultimately accepted responsibility but again referred to the ‘culture’ within GTC which included heavy workloads.

The Tribunal found that Mr Kelly’s letter of response of 7 September 2021, above, failed to provide such facts and explanations as would allow the LSCC to properly consider the matters referred to in its 9 July 2020 letter which was then ‘picked up’ by the Summons. 

Ultimately, the Tribunal concluded at [432]:

432. For the reasons outlined above, we are satisfied, and we have found, that Mr Kelly engaged in:

1. unsatisfactory professional conduct within the meaning of s 402 of the LP Act with respect to Ground 8;
2. professional misconduct within the meaning of s 403(1)(a) of the LP Act and both limbs of Kyle with respect to Grounds 1, 2, 5 and 10; and
3. professional misconduct within the meaning of s 403(1)(b) of the LP Act and both limbs of Kyle with respect to Grounds 3, 4, 6, 7 and 9.

There is yet to be a hearing as to penalty and costs.

The reasons for the decision of the Tribunal can be found here.