Homer mysteriously appears in consent orders … A long way from Springfield … Country solicitor turns on client with complaint to judge, asking for a reconsideration of the orders granted … Client’s interest … Confidentiality … Nick Bonyhady reports
NCAT was not satisfied that the solicitor, from Erina in regional NSW, had drafted the agreement referencing the donut-loving character but did find that she had breached her client’s confidentiality by complaining about the client to the presiding judge.
The client, “Susan”, whose real name is suppressed as she was a party in a family law matter, retained solicitor, Denise Elizabeth King, to represent her in January 2012. Susan wanted to take her child overseas for several months with her new partner and the child’s father initially did not want them to go.
After negotiations, the father agreed to let his daughter accompany her mother overseas for eight months in 2013.
At that point, things went awry.
When King and the father spoke to the judicial officer to confirm the consent orders, the dates that were specified in the final order were incorrect, being for a shorter period than eight months.
The father also said that he wanted the child placed on the Airport Watch List (police check children on the list to determine whether they are allowed to leave the country).
Susan identified the error in the dates and told King, but the father refused to agree to any changes.
King sent Susan a bill for $1,330 – substantially more than the $285 the solicitor had estimated as the cost to draft the orders and have them signed in chambers.
After further negotiations between the parties – but not King – the father agreed to let Susan and her child go overseas. Susan’s partner sent King the agreed terms for her to incorporate into an agreement, and said he would look at King’s invoice, “but not before you do your job properly”.
Susan’s partner, with whom she was proposing to travel overseas, had a number of reasons to complain about the initial consent orders. The orders appeared “to have been copied from a form which had been produced by another firm of solicitors” and contained names of parties “which had not been deleted when the author had obviously sought to use the form as a precedent”.
“Homer Simpson” appeared as a third party – a long way from Springfield, USA.
King vehemently denied that she had copied the orders from another firm or included Simpson’s name among other non-parties. In later correspondence, she included the document she said she had created, which NCAT described as being in the “normal form”.
Ultimately, NCAT held that it was “not persuaded to the Briginshaw standard that the documents … containing references to other parties including Homer Simpson were in fact created by [King]”.
However, NCAT was “comfortably satisfied” that King had engaged in professional misconduct.
As Susan and her partner continued to refuse to pay King’s bill, the solicitor became more insistent, saying she would withhold the new consent orders until she was paid.
While Susan and the child’s father resolved the matter among themselves, King threatened to begin debt recovery proceedings. “Please stop this now, it is unwarranted!”, Susan replied in an email to King on 3 October 3, 2012.
King did not stop. She threatened Susan with a defamation action and emailed the judge saying it was “important that His Honour and the court are informed of the defamatory and outrageous allegations that have been made against me”.
Later that same day, King wrote to Susan that she was “inclined to ask the [judicial officer] to reconsider allowing you to go to the UK for eight months because of the way you are behaving and will do so tomorrow”.
King followed through on her threat that evening, writing to the court, “I believe that it may be appropriate for His Honour to reconsider the orders he has made in the light of deception of my former client (with a reference to her name) who clearly cannot be trusted”.
The tribunal members found King’s explanation that she had been under severe stress from an array of sources insufficient to justify her conduct.
As for King’s claim that she was merely seeking to do her duty to the court and inform the judge about the nature of her client’s conduct, the tribunal held:
“Viewed objectively there must be serious doubt whether [the client’s conduct] constituted deceit and a lack of trust which would somehow impact upon the validity of the decision to make orders permitting the client to take the child out of Australia.”
Ultimately, in the tribunal’s view, King had acted in a threatening manner and breached her duty to act in her client’s interests and retain the confidence of their communications.
As there was no evidence that King had expressed “insight, contrition or remorse” for her actions, the tribunal determined that “misconduct of this kind might continue into the future.” And with that, she was off the roll.