Lawyer makes “incomprehensible” claim of hours worked in a rush to get a full practising certificate … Finding of professional misconduct upheld … Solicitor swore he packed two years of supervised practice into seven months … 17.5 hours a day … Failed defamation case against Legal Services Commissioner … Naaman Zhou reports 

A young lawyer has lost his appeal against a finding of professional misconduct after he made a false declaration in order to more speedily obtain a full practising certificate. 

Quan Pham was admitted in February 2011, but did not obtain a practising certificate. In November that year he started working for Collins Street law shop Kabo Lawyers. 

In February 2012 he obtained a practising certificate, which contained a standard condition that he complete two years of supervised legal practice.  

In August, Pham applied to the Legal Services Board to have the supervisory condition removed from his ticket. He made a statutory declaration that he had been employed at Kabo since November 2011, and that in that period he worked an additional 76 hours a week, or 328 days of supervised employment. 

In other words, in about seven months he had completed legal work constituting two years’ worth of supervised practice.  

The board rejected his application and referred him to the Legal Services Commissioner. The commissioner alleged that Pham had not been employed as a solicitor from November, but rather as administrative staff. He had only worked as a solicitor from February, and even then he had inflated the hours worked.

In his initial statutory declaration, Pham told the board that Kabo Lawyers had promised they would arrange his practising certificate and that in the meantime, between November and February, he could engage in legal practice under supervision. He said:  

“[After] 3 months past and I had not received my practising certificate so I asked and they told me that they may have forgotten (I guessed that things were a bit disorganised because at the time there was a new office manager).” 

Pham said he then applied for the certificate himself and received it in four days.  

“I don’t think I should be penalised in this situation and ask that my supervised period start from 24 November 2011 because I was genuinely reliant on my employer as I was new to this whole application process.” 

As for the hours, his declaration said, “the hours stated here is not an exaggeration, my time at Kabo Lawyers was very demanding”. 

However, managing partner Konfir Kabo swore a statutory declaration that when Pham was taken on in November, he only performed administrative tasks. After he was granted his certificate in February was he given his first legal file. 

Kabo further declared he believed the claimed hours to be unbelievable: 

“It was ‘incomprehensible’ that the applicant would have worked on average 17.5 hours per day, seven days per week, particularly as he only worked on one complete file during that time.” 

The tribunal preferred the evidence of Kabo, finding Pham guilty of professional misconduct.  

On his first try, Pham appealed to the Supreme Court on four grounds. 

The first was that he was actually being charged with perjury, not misconduct, and thus the tribunal had no jurisdiction. Justice Kevin Bell rejected this, pointing out that “alleged misconduct by lawyers may give rise to both criminal consequences and disciplinary consequences”.  

Bell also similarly dismissed the other three claims, which were that the tribunal failed to provide adequate reasoning, that the findings were not open on the available evidence and had denied Pham procedural fairness. 

Pham then applied on three grounds for leave to the Court of Appeal: 

It did not require the judge to deal with each and every argument that could have arisen. 

They also rejected the argument that Pham had been denied procedural fairness: 

“The applicant only faced limited and very specific allegations. He was able fully to, and did, address the issue of penalty, in relation to those allegations.” 

The majority also upheld the trial judge’s dismissal of Pham’s submission that his misconduct was private, rather than connected with legal practice.  

“At the risk of repetition the plain facts are that the applicant made the statutory declaration in his capacity as a legal practitioner … [it was] sufficiently connected with legal practice so as to constitute professional misconduct by him … 

… we do not consider that any of the grounds, relied on in the application for leave to appeal, have a real prospect of success. Accordingly we would refuse the applicant leave to appeal on any of those grounds.”   

Anthony Cavanough AJA thought otherwise. He would have granted leave, allowed the appeal, set aside the decision of the tribunal and remit the matter for a further hearing affording to law. 

He arrived at this view for two reasons:  

“First, I accept the applicant’s contention that the tribunal’s decision involved implicit findings that he acted dishonestly in making two of the statements contained in his statutory declaration; and I also accept his contention that, because of the particular manner in which the charges against him were expressed and presented by the Legal Services Commissioner, those findings were beyond the power of the tribunal, or alternatively the making of them involved a denial of procedural fairness to the applicant.

The tribunal’s decision of 22 December 2014, involving as it did those findings of dishonesty, cannot be permitted to stand in view of the way in which the case was presented by the commissioner before the tribunal, and in view of a series of submissions later made by the Commissioner … However, in my view, none of this would disentitle the commissioner from pleading and presenting the case against the applicant differently at a rehearing or fresh hearing, including, if the commissioner were so advised, by squarely making an allegation or allegations of dishonesty. 

Secondly, I accept the applicant’s contention that the tribunal’s omission to conduct a two-stage hearing, that is to say, its omission to make a decision on liability first and then to conduct a hearing on penalty, involved a denial of procedural fairness to the applicant.” 

In August this year, Justice Andrew Keogh summarily dismissed Pham’s defamation action against the Legal Services Commissioner.  

The commissioner published the VCAT findings on the Legal Services Board and Commissioner website under the heading “False declaration plus creative accounting equals professional misconduct”. 

Pham pleaded nine defamatory imputations, including:  

Keogh said:  

“In my view the plaintiff’s analysis requires that the phrase ‘creative accounting’ be taken out of context of both the title and the content of the publication … 

It is clear from the title and content of the publication that the creative accounting referred to in the title, taken together with the false declaration, led to the finding of professional misconduct.”