Wrongful Disclosure of Personal Information by Lawyer

In Legal Services Commissioner v PRF [2023] QCAT 291 (7 August 2023), the Queensland Civil and Administrative Tribunal (Justice Brown, assisted by Mr Ross Perrett, practitioner panel member, and Dr Julian Lamont, lay panel member) adjudicated a claim of alleged wrongful conduct by a solicitor. The respondent (PRF) acted for his daughter (KLK) in domestic and family law proceedings. Her former spouse (MDK) brought an application against KLK for a domestic violence order.  Subsequently that was withdrawn, but then KLK filed an application for interim and final parenting. PRF then sent an email to some 20 recipients – being his friends and acquaintances – which attached “some spare time reading”, informing the recipients of the application for a domestic violence order filed by MDK against KLK which was withdrawn, the fiery exchange he had with the magistrate and otherwise commenting upon the proceedings. He attached to the email an affidavit by KLK filed in MDK’s application, together with a copy of his submissions prepared for the hearing in respect of which he had sought to strike out MDK’s application. The affidavit revealed sensitive personal matters in relation to MDK and the children of the marriage. The court wrote:

…

[2]  The respondent, PRF, is an Australian legal practitioner. He was admitted as a solicitor in 2001. At all relevant times he held an unrestricted principal practising certificate and was the legal practitioner director of a law firm which ceased trading on 30 June 2022. He had been in private practice for 12 years. In addition to private practice, he has held several roles in various public service departments or agencies including in legal and quasi-legal roles. He has no previous disciplinary history.

[3]  On 27 May 2022, the Legal Services Commissioner (“LSC”) filed a disciplinary application in accordance with the Legal Profession Act 2007 (Qld) (“LPA”) charging PRF with failing to maintain reasonable standards of competence and diligence in the conduct of a matter relating to an application for a protection order against his daughter, who was also his client. The particulars of the charge include that on 1 April 2020, the respondent sent an email to some 20 recipients (identified as colleagues and friends) after an application for a domestic violence order against his daughter was withdrawn. That email disclosed the identity of a party to a proceeding and a child concerned in a proceeding contrary to the Domestic and Family Violence Protection Act 2012 (Qld) (“DFVPA”). The email also contravened s 121(1) of the Family Law Act 1975 (Cth) (“FLA”) by publishing an account of proceedings or part of proceedings that identified a party to the proceedings. The LSC contends that the respondent’s conduct constitutes unsatisfactory professional conduct and/or professional misconduct.

…

[25]  The two matters which remained the subject of dispute at the hearing, and which must be determined by this Tribunal, are:

(a) whether the respondent’s conduct constitutes unsatisfactory professional conduct or professional misconduct; and

(b) what is the appropriate sanction to be imposed.

[26]  The Tribunal adopts the two-stage process identified by the Court of Appeal in Attorney-General v Shand in considering the first matter by reference to the facts at the time of the conduct giving rise to the charge and the second matter taking into account subsequent conduct of PRF up until the hearing, particularly as to rehabilitation and reformation of character.

Characterisation of the conduct

[27]  The LPA defines “unsatisfactory professional conduct” or “professional misconduct” respectively in ss 418 and 419.

[28]  Section 418 of the LPA provides:

418  Meaning of unsatisfactory professional conduct

Unsatisfactory professional conduct includes 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.

[29]  Section 419 of the LPA provides:

419 Meaning of professional misconduct

(1) Professional misconduct includes—

(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.

(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (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 this Act or for the grant or renewal of a local practising certificate.

[30]  Pursuant to s 420(1) of the LPA, conduct consisting of a contravention of a relevant law is capable of constituting unsatisfactory professional conduct or professional misconduct.

[31]  The LSC contends that the conduct is more properly characterised as professional misconduct than unsatisfactory professional conduct, particularly given that disclosure made contrary to the terms of s 159 of the DFVPA carries a maximum penalty of two years’ imprisonment or 100 penalty units. PRF has not, however, been charged under the DFVPA. While the maximum penalty demonstrates that Parliament considers that a disclosure that would contravene the DFVPA is of such seriousness that it warrants such a maximum penalty, whether and what penalty would be imposed for a disclosure such as that made by PRF would depend on the Magistrate’s assessment of the breach and is a matter of speculation.

[32]  What the penalty attaching to the disclosure does demonstrate is that a legal practitioner acting in domestic and family violence proceedings should be aware of the serious nature of conduct and proceedings and, acting reasonably and diligently, review the DFVPA before making any disclosure. That is also the case where the practitioner makes any disclosure of a proceeding under the FLA where the practitioner is aware his client is involved in such proceedings.

[33]  In submitting that the Tribunal should find that the respondent engaged in professional misconduct, the LSC contends the conduct of PRF is more serious than the conduct in the cases of Legal Services Commissioner v Orchard (“Orchard”)3 and Legal Services Commissioner v Cooper (“Cooper”),4 where both cases resulted in a finding of unsatisfactory professional conduct. The Tribunal considers that PRF’s conduct is in some respects as serious as that involved in those cases but not more serious so as to warrant a finding of professional misconduct.

[34]  In Orchard, the Judicial Member of the Tribunal in the original decision described the document sent by the solicitor concerned as involving:5

risqué descriptions of their sexual encounters, and of the daughters allegedly provocative conduct … much of it seems directed against the mother and to be an attempt to embarrass her and to induce her to withdraw her complaint.

And further:

… it is a scandalous document which goes considerably beyond the limits of a proper defence. It contains highly embarrassing and gratuitously graphic descriptions of what the teacher alleges to have been the details of his past relationship with her. It contains a clear threat to defame her by publication of such material to outsiders, which is of particular concern.

[35]  The Judicial Member considered the conduct to be so serious that “… there appeared, in his view, to be a prima facie case of retaliation against or intimidating a witness under s 119B(1) of the Criminal Code Act 1899”.6 He said:7

“he evidence seems capable of showing that the teacher made a threat to cause detriment to a witness, or a member of the family of a witness, for the purpose of retaliation or intimidation, because of something unlawfully done by the witness.

[36]  The LSC appealed a finding of unsatisfactory professional conduct and sought a finding of professional misconduct. That was rejected upon appeal. The Tribunal referred to other cases including Cooper and observed that:8

In both LSC v Winning and LSC v Cooper this Tribunal considered conduct which involved the use of offensive or insulting language in communications in connection with the practice of law. In Winning the practitioner on several occasions used grossly offensive and obscene language in conversations with other practitioners. In Cooper the lawyer wrote two letters to another solicitor on behalf of his client which were insulting, and personally offensive. In both instances a finding of unsatisfactory professional conduct (where relevant to the charges in this matter), rather than professional misconduct, was made.

A closer parallel can be found in LSC v O’Connor in which the practitioner had written a letter on behalf of his client (also a lawyer) to a former client who had made a complaint to the Legal Services Commissioner, and demanded an apology and withdrawal of the complaint upon the threat of proceedings for defamation, with substantial compensation. The Tribunal held that sending the letter demonstrated a lack of judgement because the practitioner ought to have been aware, and advised his client of, the relevant legislation and the statutory duty of the solicitor who was the subject of the complaint to cooperate and assist reasonably with the investigation process; and, made a finding of unsatisfactory professional conduct.

Mr Orchard made much the same kind of mistake. He sent off a document produced by his client without reflecting fully upon its content, or the consequences. Rule 28 of the Solicitors Rule provides that a solicitor must not, in any communication with another person make any statement that is calculated to mislead or intimidate the other person, or make any statement that is abusive, offensive or insulting. (footnotes omitted)

[37]  While the email in the present case was sent to 20 recipients, the context of the conduct was not, as it was in Orchard and to a lesser extent in Cooper, the making of serious and in some respects scandalous and offensive allegations to intimidate and extract a particular outcome from the recipient in relation to the proceedings involved. In this case, while the respondent signed the email off in his professional capacity, he was writing to friends and colleagues after the application under the DFVPA had been withdrawn. While PRF describes his conduct in his affidavit as “reaching out”, its content is more in the nature of his seeking to vent in respect of what he considered to be an injustice and update the recipients as to what had been going on in his life. While the LSC questions how the email could be said to be reaching out, it was written while the respondent was self-isolating as a result of COVID-19 and after the application under the DFVPA had been withdrawn, consistent with the email being designed to make contact with others. The conduct in this case was not, on the basis of the evidence before the Tribunal, calculated to achieve any outcome or intimidate MDK into any sort of agreement.

[38]  Although PRF was not purporting to act on behalf of a client in sending the email, the respondent, like the respondent in Orchard, sent the email without reflecting fully upon its content or its consequences, particularly under the relevant legislation. Wrongful disclosure of domestic violence proceedings can have serious consequences, particularly for those involved. While the disclosure was a serious matter and could result in a criminal charge under the DFVPA, the conduct was not more serious than that in Orchard, particularly having regard to the Judicial Member’s characterisation of the content of the communication as prima facie constituting a criminal offence by the solicitor’s client.

[39]  It was however a dereliction of professional duty in relaying the contents of the email to friends and colleagues in the context of highly sensitive and personal matters. In particular, attaching the affidavit material and submissions as to his daughter and grandchildren’s circumstances and submissions made in relation to MDK was on any view improper. The respondent gave no consideration to the effect of that conduct upon MDK or his grandchildren. The email contained personal information about MDK and his partner in the context of a family law dispute with considerable acrimony which could only serve to inflame the situation further in circumstances where MDK could not defend himself.

[40]  The respondent’s legal representatives submit that in the particular circumstances of the present case, the conduct is properly characterised as unsatisfactory professional conduct not professional misconduct.

[41]  PRF has given evidence as to his personal circumstances at the time, including an oppressive workload, the stress of relocating from Canberra to Brisbane, and being in self-isolation and isolated from his family. He describes himself as having had poor mental health, in the sense of feeling depressed and worried for his daughter and angry at MDK’s behaviour. Those matters do not excuse his behaviour but demonstrate that his decision-making was affected by a number of matters at the time.

[42]  PRF’s professional judgment is best characterised as being clouded by emotion, external stressors and lack of independence, in failing to consider the effect of such disclosure on MDK as well as his own daughter and grandchildren and without ensuring that such disclosure could be made within the terms of the applicable legislation. In failing to consider whether such disclosure was appropriate and legally permissible, the conduct in question undoubtedly falls short of the standard of competence and diligence that a member of the public is entitled to expect from a reasonably competent practitioner.

[43]  The disclosure in contravention of the DFVPA is the most serious aspect of PRF’s behaviour. While there was also disclosure in breach of the FLA, the LSC accepted it was in the nature of a technical breach.

[44]  There was no challenge by the LSC to PRF’s evidence that the breach was inadvertent, in circumstances where he did not know that his conduct would amount to a breach of legislation. The fact that the proceedings were connected with domestic violence and family law proceedings, which are obviously areas of law requiring acknowledged protection for those involved and for confidentiality to be maintained, supports the fact that PRF should have known or made himself familiar with the provisions of the DFVPA and FLA prior to sending the email, even though the application under the DFVPA had been withdrawn. The disclosure under the DFVPA was made after the application was withdrawn and the proceeding was no longer on foot.

[45]  While PRF’s conduct was unprofessional in circumstances where he should have been aware of the prohibitions on such disclosure under the relevant legislation, it was not in the circumstances described above conduct of a level that violated or fell short to a substantial degree the standard of professional conduct observed or approved by members of the profession of good repute and competency.9

Appropriate sanction

[46]  The primary role of the proceedings is protective in nature, not punitive.10 The Tribunal should primarily have regard to the protection of the public and maintenance of proper professional standards.11 Personal and general deterrence are relevant to the protection of the public.12

[47]  In New South Wales Bar Association v Cummins, the NSW Court of Appeal recognised four interrelated interests of the client, fellow practitioners, the judiciary and the public which may be affected by a legal practitioner’s conduct and which reflect the requirements of the highest standard of integrity of the legal profession.13

[48]  The LSC submits the appropriate sanction in relation to the respondent’s conduct is:

(a)  a public reprimand;

(b)  a pecuniary penalty of $1,500; and

(c)  that the respondent undertake a course in relation to domestic violence.

[49]  The respondent does not contest the sanctions sought. Although the respondent originally challenged the undertaking of a course in relation to domestic violence, upon clarification that the course the LSC proposed is one appropriate for legal professionals, which is completed online and educative of the nature of domestic violence proceedings including the need for confidentiality, his legal representatives informed the Tribunal that he no longer contested an order that he undertake such a course and at the time of the hearing had already enrolled in the course. Notwithstanding the respondent is not presently engaged in private practice, given the nature of the charge, such a course would be appropriate for PRF.

[50]  The appropriate sanction is a matter for the Tribunal. The Tribunal has broad powers to make orders contained in s 456(2) of the LPA which it considers appropriate having found that a practitioner has engaged in unsatisfactory professional conduct.

[51]  In considering the appropriate sanction to be imposed, in addition to the nature of the conduct found to be established and the circumstances in which it occurred discussed above, the Tribunal also has regard to the following matters:

(a)  the respondent has not been previously disciplined by the Tribunal and has not been the subject of subsequent complaints;

(b)  the conduct of the respondent had a considerable impact upon MDK, who provided an affidavit deposing to the fact that PRF’s conduct has caused him considerable distress and anxiety;

(c)  while there was a gap of some months, the respondent took steps to address his conduct and MDK’s requests in relation to his conduct by:

(i)  sending a follow-up email to the 20 recipients of the original email, stating he should not have sent the email and that it contained private and confidential information, albeit that he sought to raise circumstances to place his conduct in a context to soften his culpability; and

(ii)  sending an apology email to MDK, albeit one year after the events in question.14  While the apology could have been more expansive, the Tribunal accepts it was genuine.

(d)  relevant to the prospect of the conduct reoccurring is the fact that it occurred in circumstances where the respondent was subject to personal and work stressors. While the LSC contends that the respondent did not appear to seek any professional treatment or support for the difficulties he was experiencing, which could increase the risk of such conduct occurring again when stressed, the need for professional assistance, although it may have been helpful, is not established. This is particularly so given there were a number of factors converging at the one time, namely: the matter involved his daughter who he was worried about; the email refers to him having worked 22 extra hours on top of his normal workload in circumstances where his workload was excessive at the time; PRF was transitioning himself and his team to working from home; he relocated from Canberra to Brisbane; and he had stressors in his own personal life apart from his daughter which contributed to his social isolation. PRF’s conduct since that time is consistent with him having accepted that he breached his obligations once he had the benefit of legal advice, where he has demonstrated remorse. He is no longer in private practice. In the circumstances, the Tribunal considers that the respondent’s conduct is not indicative of an ongoing vulnerability and there would appear to be a relatively low risk of that being the case;

(e)  the respondent’s judgment and conduct was coloured by his relationship with his daughter, who he had raised substantially on his own and who he wished to defend and protect;

(f)  the respondent has expressed remorse and shame for his conduct and that these proceedings have had an impact upon him; and

(g)  the respondent has stated he has reflected on his behaviour and practice as a legal practitioner as a result of this proceeding and realises and understands that the email was entirely inappropriate, indicating some insight into his conduct.

[52]  In the present case, the need for the protection of the community is relatively low. The Tribunal accepts that the respondent did not breach the legislation deliberately and with knowledge he was acting in contravention of the legislation. He did have some personal and work circumstances impacting on his decision-making and was self- isolating. He has since taken some steps to redress his conduct through his emails to the recipients and MDK and has been co-operative with the LSC throughout. Given his previous history and the circumstances of the present case, the risk of the conduct reoccurring is low.

[53]  While the LSC made some criticisms of the respondent’s email to the recipients as to his improper disclosure and the Tribunal has carefully considered the submissions made by the LSC, it considers he sent the email genuinely seeking to redress his conduct.

[54]  Given the penalties imposed in Orchard and Cooper, an order that the respondent pay a pecuniary penalty is appropriate.

[55]  The question of a public reprimand raised issues, given the fact that it could be in breach of the Order of this Tribunal made on 30 September 2022. The Tribunal considered whether to vary that order to permit the publication of the respondent’s identity. However, given the effectiveness of the public reprimand was of questionable utility in the absence of reasons, the Tribunal determined that a public reprimand was appropriate to serve as a general deterrent to others albeit using pseudonyms should be used to protect the identities of those the subject of the relevant proceedings. Given the connection of PRF to those individuals, it was considered that naming him would risk disclosing their identity in connection with the proceedings and in those circumstances the respondent’s name should not be used. A public reprimand still serves to denounce the conduct in which PRF was involved and deter others.

[56]  While the Tribunal originally questioned the undertaking of domestic violence training as an appropriate sanction when PRF was not a perpetrator of domestic violence, the course identified by the LSC is one which it considers appropriate for PRF to undertake, so he appreciates the importance of maintaining confidentiality of the persons protected by the DFVPA and FLA and checking legislation for such provisions in the future.

[57]  Pursuant to s 462 of the LPA, the Tribunal must make an order for costs unless it is satisfied that exceptional circumstances exist. It is accepted by the respondent that it is appropriate that a costs order be made in the LSC’s favour.

[58]  In the circumstances the appropriate sanctions that should be imposed upon the respondent for his conduct are:

Orders

[59]  The orders of the Tribunal are:

(i)  the respondent’s conduct the subject of charge 1 amounts to unsatisfactory professional conduct;

(ii)  the respondent is publicly reprimanded;

(iii)  the respondent pay a pecuniary penalty of $1,500; and

(iv)  the respondent undertake the domestic and family violence education course nominated by the LSC at hearing, or if that course is discontinued an equivalent course to be nominated by the LSC, and upon completion provide evidence of completion to the LSC; and

(v)  the respondent pay the LSC’s costs.

(emphasis added)

3 [2012] QCAT 583 .

4 [2011] QCAT 209 .

5 [2012] QCAT 583 at [7] and [8] .

6 [2012] QCAT 583 at [9] .

7 [2012] QCAT 583 at [9] .

8 [2012] QCAT 583 at [15] –[17] .

9 Adamson v Queensland Law Society Incorporated (1990) 1 Qd R 498 at 507 .

10 Legal Services Commissioner v Madden (No 2) [2008] QCA 301 at [122] .

11 Ibid.

12 Attorney-General v Bax (1999) 2 Qd R 9 at 22 .

13 52 NSWLR 279 at [20] .

14 While MDK questions the level of apology, and the reference to the respondent self-isolating, the respondent has sworn to not knowing that he was contravening the relevant legislation and while the confinement direction was not issued until the day after the email was sent, that does not belie the fact the respondent was self-isolating.

The full decision can be found here:  https://archive.sclqld.org.au/qjudgment/2023/QCAT23-291.pdf