LEGAL PRACTICE TRIBUNAL

Transcription

1 LEGAL PRACTICE TRIBUNAL CITATION: Legal Services Commissioner v Krebs [2009] LPT 11 PARTIES: FILE NO: 4878 of 2008 PROCEEDING: LEGAL SERVICES COMMISSIONER (applicant) v BRADLEY PAUL KREBS (respondent) Discipline application DELIVERED ON: 17 April 2009 DELIVERED AT: Supreme Court, Brisbane HEARING DATE: 5 December 2008, 20 February 2009 JUDGE: PRACTITIONER PANEL MEMBER: LAY PANEL MEMBER: FINDING AND ORDERS: Wilson J Mr M Woods Dr J Lamont 1. The Tribunal finds the respondent guilty of unsatisfactory professional conduct in respect of the criminal law proceedings R v Geoffrey John Sheppard. 2. Upon the respondent undertaking to pay $1,900 to Geoffrey Sheppard of c/- 33 Gehrke Road, Gladstone, Qld 4680, the Tribunal orders (a) that the respondent be publicly reprimanded in respect of that conduct; (b) that the respondent pay a penalty of $2,500; (c) that the respondent pay the applicant's costs of this proceeding to be agreed, or in the absence of agreement to be assessed by Hickey and Garrett on the Supreme Court scale. CATCHWORDS: PROFESSIONS AND TRADES LAWYERS SOLICITOR AND CLIENT DUTIES AND LIABILITIES TO CLIENT PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT where respondent was a solicitor practising in Queensland where respondent acted for an 18 year old youth charged with doing grievous bodily harm to another where respondent

2 2 COUNSEL: SOLICITORS: failed to obtain a full proof of evidence from the client where respondent failed to brief Counsel with proper or detailed instructions where respondent failed to reconsider the appropriateness of the defence of putting the Crown to proof where respondent failed to advise the client of the availability of and likelihood of success of the defence of self defence where respondent failed to advise the client as to tactical considerations that applied when deciding whether or not to give and/or call evidence where respondent failed to take instructions from the client where respondent failed to advise the client of his right to seek an adjournment of the trial while instructions were taken where client convicted where conviction set aside on appeal and new trial ordered where charge subsequently dropped where respondent charged with unsatisfactory professional conduct arising out of his conduct of the matter where respondent admits the charge sanction public reprimand where client was paid all but $3,800 of amount expended on legal fees out of Appeal Costs Fund where respondent undertook to pay client $1,900 where in separate disciplinary proceeding barrister was ordered to repay fee on brief of $2,500 where respondent an employed solicitor remunerated in part by bonus where respondent ordered to pay penalty of $2,500 costs Appeal Costs Fund Act 1973 (Qld) Legal Profession Act 2007 (Qld), ss 423, 456, 466, 467 Legal Profession Act 2004 (Qld), s 244 Davy-Chiesman v Davy-Chiesman [1984] Fam 48, cited Legal Services Commissioner v Baker (No 2) [2006] 2 Qd R 249, cited Legal Services Commissioner v Anderson [2009] LPT 001, cited Legal Services Commissioner v Voll [2008] QCA 293, cited R v Basha (1989) 39 A Crim R 337, cited R v Nudd (2006) 225 ALR 161, cited R v Sheppard [2005] QCA 235, cited Smith v NSW Bar Association (1992) 176 CLR 256, cited PJ Davis SC for the applicant DJ Murray (on 5 December 2008), FW Redmond (on 20 February 2009) for the respondent Legal Services Commission for the applicant Fisher Dore Lawyers (on 20 February 2009) for the respondent [1] Wilson J: The respondent, who is a solicitor, acted for Geoffrey John Sheppard, an 18 year old youth charged with doing grievous bodily harm to another. This discipline application has arisen out of his conduct of that matter.

3 3 [2] The respondent has been charged with professional misconduct or in the alternative unsatisfactory professional conduct as follows When acting for Mr Geoffrey Sheppard in respect of criminal law proceedings R v Geoffrey John Sheppard, the respondent failed to maintain reasonable standards of competence or diligence. Particulars 1.1 In breach of his duty as a Solicitor the respondent during the conduct of the proceedings: (a) (b) (c) Failed to obtain a full a proof of evidence from the client; Failed to brief Counsel with proper or detailed instructions; Failed to reconsider the appropriateness of the defence of putting the Crown to proof ; (d) Failed to advise the client of the availability of and likelihood of success of the defence of self defence; (e) (f) Failed to advise the client as to tactical considerations that applied when deciding whether or not to give and/or call evidence. Failed to take instructions from the client which would have placed the respondent in a position to advise as to the availability of, and likelihood of success of, the defence of self-defence; (g) Failed to advise the client of his right to seek an adjournment of the trial while instructions were taken and the availability of, and likelihood of success of, the defence of self-defence was investigated. 1 [3] At the hearing senior counsel for the applicant did not seek a finding of professional misconduct. [4] The respondent admits the charge of unsatisfactory professional conduct Amended discipline application filed 20 February Transcript of proceedings on 5 December 2008, p 1.5.

4 4 The facts [5] The respondent was admitted to practise on 10 March 1997, after completing a Bachelor of Laws degree at the Queensland University of Technology and being articled to a member of the firm VAJ Byrne & Co in Gladstone. 3 He was employed by that firm as a solicitor for the next 10 years and then took up a position with another firm. He has a current practising certificate and has not previously had any adverse disciplinary finding made against him. [6] On 28 May 2004 Mr Sheppard instructed the respondent to act for him in relation to two criminal charges he was then facing the first of doing grievous bodily harm to Matthew Nally and the other of assault occasioning bodily harm to Eric Fluerty. Ultimately only the grievous bodily harm charge went to trial. On 13 October 2004 Mr Sheppard was found guilty by a jury, and remanded in custody pending sentence. One week later he was sentenced to 12 months imprisonment to be served by way of an intensive correction order. On 28 June 2005 the Court of Appeal set aside the conviction and ordered a retrial. Ultimately the charge was withdrawn by the Director of Public Prosecutions in November [7] Mr Sheppard and his father met with the respondent for an hour on 28 May The respondent made a file note of his instructions. 4 Mr Sheppard was alleged to have been involved in two fights at a night club in Gladstone on 1 February 2004, one involving Mr Nally and the other Mr Fluerty. He admitted being involved in the first, but denied involvement in the second. The respondent s file note includes the following Complainant involved in grievous bodily harm charge was known to client. Had had words at nightclub. Outside nightclub Complainant had invited client to fight and shaped up to him. Client had taken pre-emptive strike punching him to face. This was the end of the incident... Client suggested perhaps denying involvement in either incidents [sic]. Informed client did not consider this to be prudent course to take. Considered had valid defences of consent or self defence to fight he was involved in. Allegation of grievous bodily harm related to purported broken jaw. Client suspected Complainant may have been involved in another altercation on same evening. Client had been informed that a witness had been paid or coerced into implicating client in both assaults. 3 4 Statement of Agreed Facts and Documents (Court Document no 20), para 1; affidavit of respondent filed 6 February 2009 (Court Document no 34), para 2, 3, 5. Annexure 1 to Statement of Agreed Facts and Documents, pp 2 3.

5 5 [8] The respondent asked Mr Sheppard to provide him with a written version of events, but he never did so. [9] On 21 June 2004 the respondent represented Mr Sheppard when the matter was mentioned before a Magistrate. The police prosecutor supplied a copy of the police brief and photographs, which the respondent sent to his client for perusal and comment. The respondent discussed the contents of the police brief with Mr Sheppard, although the extent of that discussion is not clear. 5 The respondent appeared on another mention before a Magistrate on 2 July 2004, and subsequently at the committal on 27 August [10] Before the committal commenced, the respondent had a meeting with Mr Sheppard in which he explained the purpose of the committal and procedures to be followed, as well as tactics associated with cross-examination of witnesses. The respondent cross-examined the complainants Mr Nally and Mr Fluerty and the witness Mr Ball. At the conclusion of the hearing Mr Sheppard was committed for trial in the District Court at Gladstone. 6 [11] The respondent has deposed I thought that the cross-examination highlighted weaknesses in the Crown case and supported defending the matter on an identification basis. 7 He obtained a transcript of the committal hearing, but did not take any specific instructions from Mr Sheppard about it. 8 He has deposed On reflection I realise that I approached the matter in a manner that was too single minded and over confident after the committal hearing. I expected that the Crown would withdraw the charges and the matter would not proceed to a trial. 9 [12] The District Court was scheduled to sit in Gladstone for two weeks commencing on Monday 11 October 2004 with a running list of criminal proceedings. On 7 October 2004 the respondent prepared instructions to Mr Polley of counsel to appear on the trial, which he estimated would be reached either late in the first week or the second week of the sittings. Relevantly, he instructed counsel "The offence involving Nally relates to an allegation that our client has king hit him outside a local nightclub, Players. Nally has no recollection of events. There were no witnesses. Our client admits that he struck Nally in self-defence. He denies the allegation that he See file note 1 July 2004, p 15 of Annexure 1 to Statement of Agreed Facts and Documents. Contrast with affidavit of respondent filed 6 February 2009, para 21. See file note 27 August 2004, p 21 of Annexure 1 to Statement of Agreed Facts and Documents. Affidavit of respondent filed 6 February 2009, para 24. Transcript of proceedings on 20 February 2009, p Affidavit of respondent filed 6 February 2009, para 25.

6 6 later made comments confessing his involvement. This evidence comes from a single witness Michael Ball (an associate of the complainants). Each of the complainants and Ball appear to have been highly intoxicated. A Committal with cross-examination was held in the Magistrates Court at Gladstone on 27th August The complainants and the witness were questioned. They were vague and contradictory in their evidence. Vastly differing versions of events were given. It is likely that our client and his associate would be unimpressive witnesses. The most preferable course may be to merely put the Crown to its proof rather than our client giving evidence or calling evidence from his associate. Overall it is our view that the case against our client is very weak. The only evidence against our client in relation to the Grievous bodily harm is the alleged admission to Ball. This is not even heard by Nally. Ball did not repeat the comment when given an opportunity to describe events at the Committal albeit it is referred to in his statement and apparently he is maintaining the comment was made. This is in the context of the events occurring after they have been involved in what seems to be a very heavy drinking session and Nally suggesting that our client and a group of others were punching and hitting them when Ball says this did not happen. 10 Mr Krebs had not taken a statement from Mr Sheppard; he told counsel "Our client is to be arraigned in the District Court at Gladstone on 11 th October A conference with the client could be held immediately prior to or following the arraignment." 11 [13] When Mr Sheppard was arraigned on 11 October 2004, he pleaded "Not guilty". As sometimes happens on circuit, matters ahead of Mr Sheppard's on the Court list did not proceed to trial, and his matter was called on earlier than had been expected. On 12 October the respondent was advised by the DPP's Office that the trial was to commence the next day - when Mr Polley was unavailable. The respondent had Instructions to Counsel 7 October 2004, pp of Annexure 1 to Statement of Agreed Facts and Documents. Instructions to Counsel 7 October 2004, p 46 of Annexure 1 to Statement of Agreed Facts and Documents.

7 7 difficulty in finding counsel to conduct the defence at such short notice. One of the counsel he approached suggested he contact Mr Rennie Anderson of counsel, who agreed to appear at the trial. [14] The respondent had not met Mr Anderson before, and unbeknown to him, this was to be Mr Anderson s first jury trial. The respondent delivered the brief to Mr Anderson in Gladstone that afternoon, when they discussed the case for about 30 minutes. 12 [15] The next morning the respondent met with Mr Anderson, who said that late on the afternoon before, the Crown Prosecutor had provided him with a statement by a new witness Anthony Stenner, a work colleague of Mr Sheppard. 13 Mr Stenner s evidence was that one day at work Mr Sheppard had admitted that he was the person who had inflicted the injury on Mr Nally. The respondent has deposed 44 I was not alerted by Mr Anderson as to the existence of the fresh evidence in the form of the statement from the witness Stenner until the morning of the trial. As a result I did not have long to absorb the ramifications of the Stenner evidence. I told Mr. Anderson that the difficulties Mr. Stenner presented might be overcome through cross-examination of Mr. Stenner and that the original plan of an identification trial could be maintained. 45 Mr Anderson did not voice a different opinion. I regret if Mr Anderson misunderstood my position on the matter or felt constrained to run the trial in the manner he did as consequence of the instructions in the brief or my discussions with him. 46 Mr. Sheppard and his father then joined us. 14 [16] Then there was a conference attended by Mr Sheppard, his father, the respondent and Mr Anderson. The respondent has deposed 47 Mr. Anderson did not state to Mr. Sheppard or me that the only options as he saw it were for Mr. Sheppard to either plead guilty or give evidence. 48 Mr. Anderson asked Mr. Sheppard to read the statement of the witness Stenner. Mr. Anderson asked Mr. Sheppard about the conversation he was alleged to have held with Mr. Stenner. Mr. Sheppard provided only limited instructions. He said that Mr. Stenner was employed at the same workplace but that he was in a different section such that he did not encounter Mr. Stenner File note 12 October 2004, p 55 of Annexure 1 to Statement of Agreed Facts and Documents; Affidavit of respondent filed 6 February 2009, para In Legal Services Commissioner v Anderson [2009] LPT 001, Mr Anderson recalled giving the respondent a copy of the Stenner statement when they met on the afternoon of 12 October See Legal Services Commissioner v Anderson [2009] LPT 001 at para 10. Affidavit of respondent filed 6 February 2009, para

8 8 very often. Mr Sheppard conceded that he may have had some short discussion with Mr. Stenner about the complainant but could not recall what words were exchanged. 49 I accept that I may have done more of the talking in the conference with Mr. Sheppard before the trial than Mr Anderson. From my recollection this only occurred because Mr Anderson was fairly softly spoken. I do not consider that I hindered or obstructed Mr Anderson in any way from obtaining information from Mr. Sheppard. 51 There was a discussion about an adjournment. I expressed the view that the trial ought to proceed. 52 From my memory the issue of Mr. Sheppard giving evidence was raised but not discussed in as much detail as I had previously discussed with Mr. Sheppard. Mr. Sheppard did not express a strong willingness to give evidence. 53 Mr Anderson did not advise me that he had any concerns about the way in which he would be conducting the trial or that he needed more time with Mr. Sheppard to obtain instructions or consider the matter. 15 [17] According to both Mr Sheppard and his father the respondent did most of the talking at the conference. 16 According to Mr Sheppard, - 9. Rennie Anderson said that he had read the case and that I should consider pleading guilty because I had done it and I would not get as big a sentence. I said yes well I told you it was in self defence. I ve told you the whole story. 10. Brad Krebs kept going on about go in there, say you are not guilty, we won't call any witnesses, walk in/walk out. I said okay we'll go that way. I thought he's a solicitor, I'm not. He should know best. 11. There was no explanation as to why they did not want to pursue the self defence issue. Brad Krebs said (referring to the identification issue) that's the only way to run this case'. Rennie Anderson was there for the whole of the conference, During the conference Brad Krebs did most of the talking Affidavit of respondent filed 6 February 2009, para 47 49, Affidavit of Geoffrey John Sheppard filed 13 November 2008 (Court Document no 16), para 11; affidavit of Barry John Sheppard filed 13 November 2008 (Court Document no 15), para 14.

9 9 15. On the morning of the trial, as we were sitting in a conference room outside the court room, Brad Krebs said to me they'll ask you whether you want to give evidence and you just say no and nothing more then sit down. He did not take any signed instructions from me. I said why don't you want me to give evidence and tell my story? Brad Krebs said if you give evidence you'll stuff up and something will go wrong. 17 The respondent and Mr Anderson showed him the statement by Mr Stenner; he denied making the alleged admission. [18] According to Mr Sheppard's father - 17 We talked further about Stenner s statement. Brad Krebs said we can adjourn it [the trial] if you want to. I said that statement of Stenner s means nothing because it s untrue, it s false. I said to Brad Krebs said well I think everyone s here today we re alright to go we might as well go through with it. 18 [19] When the case was called on, there was a Basha inquiry 19 in relation to Mr Stenner s evidence. The respondent has deposed 55 During a break after the inquiry Mr. Sheppard's father expressed some concern about the cross-examination of Mr. Stenner. I discussed this with Mr Anderson. I indicated that there would need to be some ground made with the witness and that this may be achieved through more vigorous crossexamination. Mr Anderson appeared to agree. He did not inform me that he was going to adopt a softly-softly approach to the cross-examination or not put to the witness that there had been no confession. 56 The trial then proceeded. By the close of the Crown case I had grave doubts that Mr. Sheppard had any prospects of acquittal. Given the way in which the trial was conducted I did not consider that Mr. Sheppard should have given or called evidence then. 20 [20] The trial commenced. Mr Nally, Mr Ball and Mr Stenner gave evidence. Mr Sheppard's instructions had always been that he had struck Mr Nally, and so counsel could not assert to the contrary. The strategy of "putting the Crown to proof" may well have resulted in an acquittal but for the Stenner evidence. Both Mr Nally and Mr Ball were intoxicated on the night in question and neither saw Mr Sheppard at the moment of the assault. The event had taken place in the early hours of the morning, while it was still dark and many people were leaving the nightclub at the Affidavit of Geoffrey John Sheppard filed 13 November 2008, para 9 11, 15. Affidavit of Barry John Sheppard filed 13 November 2008, para 17. R v Basha (1989) 39 A Crim R 337. Affidavit of respondent filed 6 February 2009, para

10 10 same time. Mr Nally gave evidence of Mr Sheppard's having threatened him about a year earlier, but agreed there had been no recent contact between them. 21 But the Crown case was considerably strengthened by the Stenner evidence, and it should have been apparent to Mr Anderson and the respondent that the conduct of the defence case had to incorporate a challenge to the Stenner evidence and/or an explanation for the assault. On the appeal Mr Sheppard gave detailed evidence of being bullied by a group of older men including Mr Nally and Mr Stenner. And his instructions had always been that he had acted in self-defence. Counsel was not in a position to advance either of these issues because he had not been provided with a statement by Mr Sheppard or anyone else. In the circumstances it was hardly surprising that the jury returned a "Guilty" verdict. Unsatisfactory professional conduct [21] The respondent accepts that he was guilty of unsatisfactory professional conduct in that (a) he ought to have taken a full proof of evidence from Mr Sheppard; (b) he ought to have provided proper and detailed instructions to Mr Anderson; (c) he ought to have evaluated the evidence of the new witness Mr Stenner and advised the client that successful defence of the charge was unlikely unless he gave evidence denying the confession allegedly made to Mr Stenner; (d) he ought to have appreciated that the client had previously raised self-defence as a justification for the assault; (e) he ought to have taken instructions from the client (even if that could only be done on the morning of the trial) as to the circumstances of the assault and any circumstances in which it was allegedly justified by self-defence; (f) upon receipt of proper instructions from the client (such as those deposed to by Mr Sheppard before the Court of Appeal): (i) he ought to have advised the client fully on the likelihood of success of such a defence; (ii) he ought to have advised the client fully as to tactics which should be employed at the trial including his giving evidence on the issue of self-defence; and 21 See the discussion by PD McMurdo J in the Court of Appeal: R v Sheppard [2005] QCA 235 at para 31.

11 11 (g) he ought to have advised the client of his right to apply to have the trial adjourned, even if that involved empanelling the jury and then having the judge stand the matter over until after lunch, so that proper instructions could taken. 22 Comment [22] The coalescence of three factors the trial being called on earlier than had been expected, the late change of counsel and the late receipt of a statement from the Crown precipitated the botched conduct of the defence. But each was an exigency of practice not uncommonly encountered. The respondent had had four and a half months in which to prepare the case adequately. In a case such as this, where the client s instructions were that he had assaulted the complainant, but that he had done so in selfdefence, he should at least have taken a full proof of evidence from the client and briefed counsel with it. 23 [23] The respondent s professional responsibility did not cease when counsel was retained; he had a continuing duty to apply his own professional judgment to the case, and to confer with counsel and the client in a meaningful and constructive way. 24 [24] He should have discussed with counsel and the client the effect of the Stenner evidence and the defences that were potentially available, what steps would have to be taken to run them (including seeking an adjournment to allow a full proof of evidence to be taken) and the inherent risks (including the risk that the jury would reject the client s evidence). It was not for him to dictate to counsel and the client how the trial was to be conducted. Nor was it for him blindly to accept counsel s advice: if he disagreed with counsel, he ought to have told the client he disagreed and why. The client was entitled to receive the considered advice of both his counsel and his solicitor before giving them his instructions. If the client continued to maintain that he had struck the complainant in self-defence, and, despite being warned of the risks, wanted selfdefence to be ventilated at the trial, then it ought to have been - so long as it was arguable on the view of the facts most favourable to him. 25 [25] The ramifications of non-fulfilment of that responsibility were particularly acute in this case, where it was on the eve of trial that counsel was briefed and a new witness statement was obtained. The respondent s conduct fell short of the standard of competence and diligence the public is entitled to expect of a reasonably competent solicitor Summary of Facts filed 5 December 2008 (Court Document no 23), para 14. R v Nudd (2006) 225 ALR 161 at 189 para [107] per Kirby J. Davy-Chiesman v Davy-Chiesman [1984] Fam 48 at 64 66; S Corones, N Stobbs and M Thomas Professional Responsibility and Legal Ethics in Queensland, Thomson Reuters (2008), para Cf. Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683 at 689 per Davies JA. See definition of unsatisfactory professional conduct : Legal Profession Act 2007 (Qld), s 423; Legal Profession Act 2004 (Qld), s 244.

12 12 Sanction [26] The Tribunal has wide power to make any order it sees fit where it finds a practitioner guilty of unsatisfactory professional conduct. There is a long but non-exhaustive list of possible orders in s 456 of the Legal Profession Act 2007 (Qld). The power is to be exercised for the protection of the public, rather than to punish the practitioner. 27 [27] Until quite recently, the respondent demonstrated a disturbing lack of insight into his own shortcomings in the conduct of the defence, and sought to cast all the blame on counsel. This was obvious in his dealings with Mr Sheppard s family following his being remanded in custody and in his dealings with Mr Sheppard himself after his release. When they expressed their clear dissatisfaction with the standard of representation that had been afforded to Mr Sheppard and made adverse comments about counsel, the respondent did not acknowledge his own part in the debacle. 28 He disavowed fault in his responses to investigations by the Legal Services Commission 29 and to a draft charge which the applicant made available to him before this discipline application was filed. 30 [28] However, the respondent conceded that he was guilty of unsatisfactory professional conduct in a Summary of Facts which he and the applicant signed and which was filed by leave on the first day of the hearing. He showed contrition and remorse in his affidavit filed by leave on 6 February an indication of the salutary effect of the whole saga, including this discipline application. He deposed to having adopted different work practices. 64 I acknowledge that it is actually an essential element of the preparation for a trial that a statement is taken, that written instructions are obtained and the client kept fully informed and involved in tactical decision-making. In addition to these aspects I have also adopted the practices of making notes when an account of events is obtained from a client and ensuring that more detail is contained in my contemporaneous file notes made of attendances. 65 To my memory I have been involved in the preparation of two or three criminal trials in the District Court since the relevant matter. In each case I ensured that detailed written version of events were obtained from the client and included in the brief to Counsel and that written instructions were taken and tactical Legal Services Commissioner v Voll [2008] QCA 293 at [7]; Legal Services Commissioner v Baker (No 2) [2006] 2 Qd R 249 at 267; Smith v NSW Bar Association (1992) 176 CLR 256 at 270 per Deane J. See files notes 21 October 2004, p 86 of Annexure 1 to Statement of Agreed Facts and Documents; 22 October 2004, p 89 of Annexure 1 to Statement of Agreed Facts and Documents and 28 October 2004, p 96 of Annexure 1 to Statement of Agreed Facts and Documents, and transcript of proceedings on 20 February 2009, p See Annexure 11 to Statement of Agreed Facts and Documents, 28 August 2006, pp See Annexure 12 to Statement of Agreed Facts and Documents, 23 November 2007, pp

13 13 options explained to the client in relation to the significant issues. 31 [29] Since June 2007 the respondent has been employed by another firm, where his workload has been primarily in family law. He hopes to become a principal of the firm. 32 [30] A separate discipline proceeding was taken against the barrister, Mr Anderson. On 28 January 2009 the Tribunal found him guilty of unsatisfactory professional conduct, and ordered (a) that he be publicly reprimanded; (b) that he pay $1,900 to Mr Sheppard as compensation; (c) that he pay $2,500 to the Legal Practitioner Interest on Trust Accounts Fund; (d) that he pay the applicant s costs of the proceeding agreed in the sum of $2, The respondent s unsatisfactory professional conduct was of similar gravity, and should be met with no less a sanction. [31] The respondent should be publicly reprimanded in respect of his conduct. 34 [32] Mr Sheppard paid the firm VAJ Byrne & Co for the conduct of the trial in October 2004 and another firm for the conduct of the appeal. The costs were substantial. An amount representing all but $3,800 of those costs was ultimately paid out of the Appeal Costs Fund. 35 The $1,900 which Mr Anderson was ordered to pay by way of compensation represented half of the shortfall. The present respondent should meet the other half. To overcome doubt about the Tribunal s power to make a compensation order against an individual solicitor who was an employee of a firm, 36 the respondent has undertaken to pay $1,900 to Mr Sheppard. [33] The Tribunal considered that Mr Anderson should not be allowed to retain his fee on brief, which was $2,500. The amount he was ordered to pay the Legal Practitioner Interest on Trust Accounts Fund was equivalent to that. [34] The respondent was a more experienced practitioner than Mr Anderson. 37 His remuneration package as an employed solicitor included a bonus calculated by reference to the fees he earned for the firm. 38 The Tribunal cannot assess the extent, if any, to which the bonus he received was inflated by fees he earned for the firm in Affidavit of respondent filed 6 February 2009, para Affidavit of respondent filed 6 February 2009, para Legal Services Commissioner v Anderson [2009] LPT 001. Legal Profession Act 2007 (Qld), s 456(2)(e). See Appeal Costs Fund Act 1973 (Qld). Legal Profession Act 2007 (Qld), ss 456(4), ; transcript on 5 December 2008, pp See Legal Services Commissioner v Anderson [2009] LPT 001 at paras 4, Transcript of proceedings on 20 February 2009, p 1.23.

14 14 defending Mr Sheppard. The Tribunal considers that in all the circumstances the respondent should pay a penalty of $2, [35] It is a matter for concern that the respondent did not receive any specific guidance in relation to the preparation of criminal trials during his articles of clerkship or after his admission to practise. 40 The Tribunal has power to order a practitioner to undertake and complete a stated course of further legal education, 41 and the respondent has expressed his willingness to do so. 42 However, the applicant was unable to nominate any course to be conducted by the Queensland Law Society Inc. or anyone else which would provide training specifically in the preparation of criminal defences. This, too, is a matter for concern. Costs [36] The respondent should pay the applicant s costs of the disciplinary proceeding to be agreed, or in the absence of agreement to be assessed by Hickey and Garrett on the Supreme Court scale. Finding and orders [37] The Tribunal finds the respondent guilty of unsatisfactory professional conduct in respect of the criminal law proceedings R v Geoffrey John Sheppard. [38] Upon the respondent undertaking to pay $1,900 to Mr Geoffrey Sheppard of c/- 33 Gehrke Road, Gladstone, Qld 4680, the Tribunal orders (a) that the respondent be publicly reprimanded in respect of that conduct; (b) that the respondent pay a penalty of $2,500; (c) that the respondent pay the applicant s costs of this proceeding to be agreed, or in the absence of agreement to be assessed by Hickey and Garrett on the Supreme Court scale Legal Profession Act 2007 (Qld), s 456(4)(a). Affidavit of respondent filed 6 November 2009, para 6; transcript of proceedings on 20 February 2009, pp It is not known whether such training is included in the syllabus of any of the Practical Legal Training courses which have replaced articles: if it is not, it should be. Legal Profession Act 2007 (Qld), s 456(4)(c). Transcript of proceedings on 20 February 2009, p 1.23.