Bribery of Queensland mines minister … Solicitor not fit and proper to practice, but sufficiently fit and proper to stay on the jam roll … The case of a high flying lawyer and banana bending businessman whose wax wings melted … Lawyer who said he never wanted to practice again can now reapply after five years … Sohini Mehta reports 

Harold Warner Shand, the respondent in Legal Services Commissioner v Shand, was admitted as a solicitor in Queensland in 1975. Between 1977 and 1997 he successively served as a partner of three major law firms.  

In 1988, he became a director of the mining start-up Jellinbah Resources Pty Ltd, for which served as CEO from 1997 to 2003. 

While CEO of Jellinbah in April 2002, and under direction from the company’s owner-director Jim Gorman, Shand signed a company cheque of $60,000 to Nuttall, the then Queensland Minister for Mines. 

Nuttall eventually received the honour of being handed what was at the time the longest jail term for political corruption in Australia.

Shand in 2011 was convicted under s.442BA(b) of the Criminal Code for his corrupt payment and sentenced to 15 months imprisonment, which was suspended after four months.  

In the present case, Shand accepted the tribunal’s finding of professional misconduct, but contested the Legal Services Commissioner’s submission that he should be struck off the jam roll.

Shand’s admission did not hasten the tribunal’s decision-making. 

By s.419(1)(b) of the Legal Profession Act 2007 (Qld), in order to make a finding of professional misconduct it is necessary that the conduct would “justify a finding that the practitioner is not a fit and proper person to engage in legal practice”.  

Dr F. Ian Curtis – Shand’s psychiatrist and longstanding friend – tendered a report on the issue whether the respondent “is currently a fit and proper person to be recognised as a practising solicitor in Queensland”. 

The report confirms that Shand underwent a period of significant depression, particularly around the period when he was charged and tried. Curtis characterised Shand’s behaviour as “an isolated event in the life of a person of otherwise outstanding good character”.

Thomas was, however, unconvinced by Curtis’ attempt to locate a milder form of this depression in the period when Shand committed the offence. 

He describes this as having been caused by the respondent’s loss of position and recognition as CEO of Jellinbah. Thomas said: 

“However, on the material before me, his loss of that position occurred subsequently to the offending conduct. I therefore do not propose to take into account any psychiatric mitigation for the conduct in question, and note that the respondent did not rely on it or suggest to the Tribunal that it should be taken into account on that basis.” 

Given the seriousness of participation in corruption within the government, the tribunal was satisfied that Shand engaged in professional misconduct.

The tribunal has “untrammelled” discretion to make any order – including one to strike Shand’s name of the legal practitioners’ roll. 

This meant that the tribunal’s finding that Shand is not currently fit and proper to engage in legal practice does not warrant a conclusion that he is not fit to remain on the roll.

Though many of the decided cases do not make a distinction between rights to enrolment and rights to practice, Thomas said they still provide benchmarks for the type of conduct that will justify a striking from the roll.

The benchmark, it turns out, is peculiarly high. One criterion established in the NSW Court of Appeal decision of Prothonotary v P is “an order striking off the roll should only be made when the probability is that the solicitor is permanently unfit to practise”. 

This was considered in Howard Hilton’s case, a NSW solicitor who was struck off for bribing the prison’s minister Rex Jackson. Nearly, 30 years later Hilton applied for readmission, but the NSW Supreme Court rejected his application, finding that his conduct was so serious that he still could not be regarded as a member of the legal community.   

Also considering the importance of sufficient qualification and good character in the admission of members to the legal profession, Thomas highlighted the uncontradicted observations of Shand’s sentencing judge, Griffin DCJ: 

Thomas’ impression of Shand was sympathetic:  

“The overall picture is that of a person with a blameless, indeed meritorious legal career for 22 years, followed by a period of business activity during which he made a serious transgression, followed by a period of 14 years of blameless conduct during which he took his punishment, endured disgrace, saw his family suffer, and got on with his life to the best of his ability.” 

With mention to Shand’s interest in the disciplinary administration of the rugby union code and impressive list of personal references, Thomas found the former high-flyer is not permanently unfit to practise.

Instead, he considered a suspension from practice to establish a sufficient deterrent effect and public disapproval of Shand’s misconduct. 

Shand had indicated in early 2012 that he has no desire ever to practise again, and offered an undertaking to the tribunal never to reapply for a practising certificate. 

It was not examined if he engaged in legal practice since ceasing his consultancy role with Corrs Chamber Westgarth in favour of a business career in 1999. 

Thomas was careful not to enforce Shand’s lifelong undertaking for fear that it would appear as though the respondent was “buying out” part of his sanction, and ordered a further five years should elapse before Shand can begin to consider applying for a practising certificate. 

“It is preferable in this case that the Tribunal take responsibility for the imposition of the entire sanction that it thinks appropriate at this point. I do not for a moment think that the respondent’s offer was made other than in good faith, but can see potential future difficulties and complications if such an undertaking were received and taken into account in determination of the level of sanction.”