CITATION: New South Wales Bar Association v Howen (No.2) [2008] NSWADT 252 DIVISION: Legal Services Division APPLICANT Council of the New South Wales Bar Association PARTIES: RESPONDENT Alexander Stanislaw Howen FILE NUMBER: 062009, 062011 HEARING DATES: 27 June 2008 SUBMISSIONS CLOSED: 27 June 2008 DATE OF DECISION: 4 September 2008 BEFORE: Karpin A - ADCJ (Deputy President); Macfarlan R QC - Judicial Member; Bennett C - Non-Judicial Member CATCHWORDS: Barrister – disciplinary application MATTER FOR DECISION: Penalty LEGISLATION CITED : Legal Profession Act 1987 Legal Profession Act 2004 New South Wales Bar Association v Howen [2008] NSWADT 147 New South Wales Bar Association v Howen [2008] NSWADT 148 New South Wales Bar Association v Howen (No.2) [2003] NSWADT 235 A Solicitor v Law Society of New South Wales (2003) 216 CLR CASES CITED: New South Wales Bar Association v Punch (No.3) [2008] NSWADT 146 Iverson v Qantas Airways Limited (U No 21050 of 1999) Nguyen v New South Wales Bar Association [2001] NSWADT 165 New South Wales Bar Association v Abdul-Karim [2003] NSWADT 205 The Bar Association v Murphy [2002] NSWCA 138 The Law Society of New South Wales v Foreman (1994) 34 NSWLR 34 P Mahoney SC, barrister REPRESENTATION: In person in 062011 G Craddock SC , barrister in 062009 Matter 062009: 1. Effective from 19 September 2008 the name of Alexander Stanislaw Howen to be removed from the roll of persons admitted as lawyers, which is maintained by the Supreme Court of NSW pursuant to Section 32 of the Legal Profession Act 2004 2. The respondent's practising certificate is to be cancelled on 19 September 2008 3. The respondent to pay the costs of the applicant Bar Association as agreed or assessed, in respect of the substantive hearing and the hearing on penalty ORDERS: 4. The decision of the Tribunal to be published. Matter 062011: 1. The respondent is fined $2,000 in respect of each of the two findings of professional misconduct, a total of $4,000 2. The respondent is reprimanded 3. The respondent to pay the costs of the applicant Bar Association as agreed or assessed, in respect of the substantive hearing and the hearing on penalty 4. The decision of the Tribunal to be published. REASONS FOR DECISION MATTER 062009 1 On 22 May 2008, the Tribunal handed down a decision dealing with the substantive issues in this matter. (New South Wales Bar Association v Howen [2008] NSWADT 147. ["NSWADT 147".] 2 The Tribunal made findings that the Council of the New South Wales Bar Association (the "Bar Association") had established two grounds of complaint, that: (i) The Respondent knowingly made misleading statements to the Australian Industrial Relations Commission when he appeared before Commissioner Raffaelli on 22 December 1999 in the matter of Iverson v Qantas Airways Limited (U No 21059 of 1999). (ii) The Respondent failed to advance and protect his client's interest when he appeared in the Australian Industrial Relations Commission before Commissioner Raffaelli on 22 Deecember 1999 in the matter of Iverson v Qantas Airways Limited. 3 The Tribunal found that in respect of each of those grounds of complaint the respondent was guilty of professional misconduct. MATTER 062011 4 On 22 May 2008 the Tribunal also handed down a decision in the matter of New South Wales Bar Association v Howen [2008] NSWADT 148. ["NSWADT 148"]. 5 The matters are related in that in NSWADT 148, the Bar Association alleged that the respondent failed to respond to a notice under section 152 Legal Profession Act 1987 and failed to comply with an undertaking given to the Bar Association. Both of those allegations arose from the Bar Association's investigation concerning the respondent's conduct in NSWADT 147. 6 The Tribunal made two findings of professional misconduct based upon the facts established by the Bar Association that: (i) The Respondent failed without reasonable excuse to comply with a Notice under section 152(1) Legal Profession Act 1987, dated 3 November 2003, by the date specified in the Notice, or within periods of extension of time granted for compliance by the Bar Association. (ii) The Respondent failed to comply with an undertaking given to the Bar Association on 28 October 2003 that he would respond to a Notice under section 152 Legal Profession Act 1987 within a period of 21 days from the date of service of the Notice upon his solicitors or, by implication, within periods of extension of time granted for compliance by the Bar Association. 7 The Tribunal noted that the findings of professional misconduct in NSWADT 147 were arrived at based on the general law concept of professional misconduct, a concept applicable under both the Legal Profession Act 1987 and the Legal Profession Act 2004. 8 On 27 June 2008 evidence was heard and submissions made on the issue of dispositive orders in both matters. For these purposes the evidence adduced on behalf of the Respondent was evidence in each matter. 9 Throughout the hearing of the substantive matters and the proceedings on 27 June 2008, the Respondent appeared in person in NSWADT 147, but was represented by counsel in NSWADT 148. Mr G Craddock SC appeared on 27 June 2008. Given that the same evidence on penalty was adduced in each matter, Mr Craddock substantially dealt with that evidence. 10 For the purpose of dispositive orders, the Tribunal addresses the issues in this one decision. THE RELEVANT LEGISLATION 11 The complaints in both matters were investigated pursuant to the provisions of the Legal Profession Act 1987 ("the 1987 Act"). By virtue of Schedule 9 Clause 16 of the Legal Profession Act 2004 ("the 2004 Act") proceedings before the Tribunal were conducted pursuant to the 2004 Act. 12 Clause 16 (5) of Schedule 9 provides that the Tribunal may not make orders against the Respondent that are more onerous than those provided for under the 1987 Act. 13 Section 171C of the 1987 Act relevantly provides: (1) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct, the Tribunal may do any one or more of the following: (a) order that the name of the legal practitioner be removed from the roll of legal practitioners if the legal practitioner is guilty of professional misconduct, (b) order that the legal practitioner's practising certificate be cancelled, (c) order that a practising certificate not be issued to the legal practitioner until the end of the period specified in the order, (d) order that the legal practitioner pay a fine specified in the order, not exceeding $50,000 if the legal practitioner is guilty of professional misconduct or not exceeding $5,000 if the legal practitioner is guilty of unsatisfactory professional conduct, (e) make an order publicly reprimanding the legal practitioner or, if there are special circumstances, privately reprimanding the legal practitioner, 14 Section 562 of the 2004 Act relevantly provides: (1) Orders generally If, after it has completed a hearing under this Part in relation to a complaint against an Australian legal practitioner, the Tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the Tribunal may make such orders as it thinks fit, including any one or more of the orders specified in this section. (2) Orders requiring official implementation in this jurisdiction The Tribunal may make the following orders under this subsection: (a) an order that the name of the practitioner be removed from the local roll, (b) an order that the practitioner's local practising certificate be suspended for a specified period or cancelled, (c) an order that a local practising certificate not be issued to the practitioner before the end of a specified period, (d) an order that: (i) specified conditions be imposed on the practitioner's practising certificate issued or to be issued under this Act, and (ii) the conditions be imposed for a specified period, and (iii) specifies the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed, (e)an order reprimanding the practitioner, (4) Orders requiring compliance by practitioner The Tribunal may make the following orders under this subsection: (a) an order that the practitioner pay a fine of a specified amount, (h) an order that the practitioner undergo counselling or medical treatment or act in accordance with medical advice given to the practitioner, (j) an order that the practitioner not apply for a local practising certificate before the end of a specified period. Note. This subsection is not an exhaustive statement of orders that must be complied with by the practitioner. (7) Maximum fine The amount ordered by the Tribunal under this section to be paid by way of fines by any one Australian legal practitioner in connection with the Tribunal's findings about a complaint must not exceed in total: (a) $10,000 in the case of unsatisfactory professional conduct not amounting to professional misconduct, or (b) $75,000 in the case of professional misconduct. If the Tribunal finds that the practitioner has engaged in both professional misconduct and unsatisfactory professional conduct not amounting to professional misconduct, the amount must not exceed $75,000 in total. ORDERS SOUGHT BY THE BAR ASSOCIATION 15 In NSWADT 147, the Bar Association sought an order pursuant to section 562(2)(a) that the name of the Respondent be removed from the local roll, and that his practising certificate be cancelled. 16 In NSWADT 148 the Bar Association sought an order pursuant to section 562(4)(a) that the Respondent be fined in respect of each of the findings of professional misconduct. 17 In each case the Bar Association sought an order that the respondent pay the applicants costs. 18 The respondent graduated from Macquarie University in 1986 with a degree in Arts Law. He was admitted in 1987 and practiced as a solicitor from 1988 to 1990. He was admitted to practice as a barrister on 2 August 1991 and has practiced as a barrister since that date. EVIDENCE FOR THE RESPONDENT Medical Evidence 19 The following medical reports were received into evidence: (i) Dr Yvonne Skinner, Psychiatrist, 18 July 2003 (ii) Dr Robert Hampshire, Psychiatrist, 31 July 2003 (iii) Dr Jonathon Phillips, Psychiatrist, 26 June 2008. The latter report was obtained by the respondent who called Dr Phillips in his case. 20 Dr Phillips, an eminent consultant psychiatrist who presently holds Associate Professorships at both the University of Adelaide and James Cook University, provided a comprehensive (45 page) report and gave evidence. 21 Dr Phillips was provided with extensive documentation relevant to the proceedings instituted against the respondent, together with the reports of Dr Skinner and Dr Hampshire. 22 Objection was taken to some inaccuracies in the history set out in Dr Phillips' report and to certain characterizations by Dr Phillips concerning issues in the case. In particular to Dr Phillips' statement that: "The central issue in the case of AH is to try to understand whether he went about his business in Mr. Iverson's case in a callous and self-serving manner, including his failure to respond to the s152 requests, or whether his obvious failings in the conduct of Mr Iverson's case had been the result of from suffering an Axis I psychiatric disorder and/or having Axis II personality dysfunction." 23 Counsel for the respondent made it clear that there was no attempt to go behind the findings of the Tribunal on the substantive issues. 24 The respondent gave Dr Phillips a history of problems he had experienced in his professional and personal life over many years. The clinical findings made by Dr Phillips in relation to the respondent's situation and reported symptoms as at the time of the report, appear to have been present at least since 1999. Those include: Fatigue, which the respondent attributes to his work and personal problems; lack of motivation to deal with issues relating to health and fitness; pessimism regarding his future, particularly his future in the legal profession; guilt and concern about his personal relationships, including concern for the stress his predicament has placed on his wife, his inability to provide emotional support to his family; lack of enjoyment in life; a sense that he has been treated unjustly, and feelings of anger concerning the actions of the Bar Association; embarrassment concerning his bankruptcy; feelings of helplessness and hopelessness, and concern that his life desires and ambitions have crumbled; persistent headaches. 25 Dr Phillips' mental state examination resulted in the following findings: The respondent was moderately depressed and somewhat anxious; he had considerable difficulty marshalling information and presenting a history that could be understood by someone else; his cognition was otherwise generally unimpaired. "He was not overtly paranoid in attitude … . He was not suffering delusions, hallucinations or other symptoms to confirm the presence of a psychotic disturbance of mind." 26 Dr Phillips interviewed the respondent's wife, Lynne Davis, and noted her information was useful, and confirmed that the respondent had been suffering psychological symptoms since at least 1999, the intensity of those symptoms dependant upon external factors. 27 Dr Phillips sets out a comprehensive resume of the material provided to him, which is taken from the 2 decisions of the Tribunal in the substantive issues together with some of the evidence before the Tribunal on hearing. It is clear that Dr Phillips went to considerable trouble to understand the complexities of the case against the respondent and his response to that case. 28 It should be noted that this passage refers to Dr Phillips' summary of the evidence and Tribunal decision, but is not a statement of any assertion made by the respondent in the course of his interviews with Dr Phillips. 29 Dr Phillips dealt with the circumstances in which the respondent consulted Dr Hampshire for the purposes of a forensic psychiatric report dated 31 July 2003, and was assessed by Dr Skinner her report dated 18 July 2003, on behalf of the applicant Bar Association in relation to proceedings which resulted in two findings of failure to comply with section 152 Notices, then before the Administrative Decisions Tribunal (New South Wales Bar Association (No.2) v Howen [2003] NSWADT 235). 30 Dr Hampshire's opinion was that: "Mr Howen suffered an Adjustment Disorder with severely depressed mood and episodic Panic Attacks. This illness probably arose around 1994 and continued through to probably mid 1998. This was severe. It was not treated. It subsided partially in 1998 and early 1999, but then worsened again. Over the following years he developed a number of the symptoms of Post Traumatic Stress Disorder (PTSD), the stressor being what he saw as his almost life and death struggles with the Bar Association. His Adjustment Disorder with Depressed Mood and Agitation has not fully settled and his PTSD, though far less severe than it was 18 months ago, is still present. "I believe that much of his behaviour that has brought him before the Bar Association in this current hearing can be accounted for by his Axis I psychiatric diagnosis of Adjustment Disorder with Anxiety, Depression and PTSD. He also undoubtedly has characterlogical traits to his personality structure, which have augmented his Axis I diagnosis, causing more difficulties for himself and further problems in managing his external life events." 31 Dr Hampshire opined that the respondent was in need of ongoing assessment and treatment including psycho therapy and possible anti depressant medication. He noted that the respondent, despite his high intelligence "in some ways … is an insightless man". 32 Dr Skinner reported that the respondent was not suffering from Post Traumatic Stress Disorder, nor did she think that he required psychiatric or psychological treatment at that time. She considered that his failure to deal with issues raised by the Bar Association had more to do with personality factors rather than an underlying psychiatric disorder or psychological problems. Rather she said: "He has personality traits that render him particularly sensitive to criticism, and the psychological defence mechanisms that are part of his personality structure cause him to react to criticism with extreme anger. As personality factors are deeply ingrained and enduring, Mr Howen would be prone to develop a similar problem in the future if he is faced with significant stress. If he has suffered from depression during the relevant period, he would be prone to suffer from episodes of depression in similar circumstances in the future." 33 Dr Skinner noted that the respondent had consulted a psychologist, Mr Wilson in 2001 after suffering a panic attack. He had six sessions with the psychologist. In 2002, he consulted another psychologist, Mr Goldman, with whom he had 21 sessions. The latter was arranged through the Bar Care Program. The respondent reported that he did not feel that either of these treatments had assisted him. 34 In Dr Phillips' opinion: "… he will be shown to have developed a chronic middle-grade depression spectrum disorder, with considerable variation in intensity, beginning at least by 1999 and probably earlier. The disorder continues. Diagnostically AH suffers from a dysthymic disorder DSM IV TR 300.4. The disorder has been pervasive and at most times of intensity sufficient to interfere with the smooth conduct of his life in all domains." 35 Dr Phillips set out the symptoms suffered by the respondent that identified him as meeting the criteria for dysthymic disorder. 36 Dr Phillips, as did Dr Hampshire and Dr Skinner, found the respondent's wife, Ms Davis, to be a reliable source of information concerning the respondent's history and symptoms over the relevant years. He noted that that she identified matters that "suggest strongly … that AH has a personality trait dysfunction." 37 Dr Philips noted that Dr Hampshire and Dr Skinner agreed that the respondent was not psychologically stable at the time they assessed him in 2003. He observed that he had some uncertainty as to how Dr. Skinner arrived at her opinion that the respondent's personality difficulties were not likely to impact on his practise as a barrister. 38 Dr Phillips did not agree with Dr Hampshire's opinion that the respondent was suffering from Post Traumatic Stress Disorder. Dr Skinner was of the same view as Dr Phillips on this issue. 39 Based upon those reports and information from the respondent and his wife, Dr Phillips was of the opinion that the respondent has suffered from moderately severe dysthymia probably since the mid 1990's. 40 Dr Phillips then dealt with the "overlap between the psychological problems of Mr Howen and Mr Iverson." He noted a similarity of psychological symptoms between the two men. He accepted that the respondent was genuinely concerned about his client, but that his professional decision making was distorted by a tendency to over-empathise with the client through the process of "projective identification", which would make it unlikely the respondent was able to think rationally and objectively about his client's depression or his capacity to give instructions. 41 Dr Phillips then dealt with the relationship between psychiatric disorder and impaired professional performance. "Depressive disorder of any type, dysthymic disorder included, will be a highly disabling experience. There are emotional, physical and cognitive symptoms of varying periodicity and intensity which will interfere with the life of the depressed person in all domains, including the professional domain, Typically the person suffering from a depressed spectrum disorder will have trouble marshalling and weighing thoughts and choosing appropriate actions (particularly in the professional setting). Additionally the person with depression spectrum disorder will procrastinate and fail to complete tasks (particularly in the professional setting). The person … will adopt a number of defence mechanisms to try to maintain the equilibrium of his/her life, but with such mechanisms not uncommonly adding to the problem rather than reducing the problem. "It is highly likely that AH has been incapacitated in his professional life from at least 1990 … as a consequence of failing to properly identify his chronic depressive pathology and not having undertaken comprehensive treatment by a psychiatrist. "Further AH has a personality trait dysfunction which has led him to adopt a number of psychological mechanisms in an attempt to control his problems … AH has been in a state of relative denial about his mental health problems for the better part of a decade. AH has effectively hidden his psychological problems from himself and has shown comparatively little motivation to address matters either linked with his underlying Axis I psychiatric disorder (dysthymia) or his Axis II personality trait dysfunction (excessive tendency to intellectualise, to project and to deny). …. "The prognosis for AH will be poor if he remains untreated." 42 In Dr Phillips' opinion the respondent's prognosis would improve significantly were he to make good use of psychiatric treatment. In his opinion, the respondent's untreated depression spectrum disorder explained his failure to meet critical deadlines, maintain file notes, and to respond in a timely manner to requests made of him in his professional life. 43 In evidence, Dr Phillips gave as his opinion that a treatment regime for the respondent would require a psychiatrist skilled in the psychotherapy of depression and equally well skilled in the treatment of personality trait dysfunction. He also felt that there was likely a need for the issue of chemical therapy to be considered. He thought that the respondent would initially require weekly or second weekly therapy for the better part of a year. He felt that such a period would be required to allow an expert psychotherapist to help the respondent gain some insight into his personality traits. 44 The failure of the respondent to seek treatment following the assessments by both Dr Skinner and Dr Hampshire in 2003, that he required treatment, and having regard to the view of the 2003 Tribunal urging the respondent in his own interests and those of his clients to take that professional advice to heart and act upon it, was raised with Dr Phillips, together with the fact of the respondent's termination of treatment from two psychologists, Mr Wilson and Mr Goldman. 45 Dr Phillips acknowledged that the respondent's failure to pursue treatment following the 2003 assessments and proceedings was a cause for concern saying: "… one has to be concerned about the fact that Mr Howen didn't take advice from two experienced psychiatrists in 2003." "… you would expect … a very intelligent man to spend some time thinking about his personal dilemma and at least, considering the possibility that he may have underlying psychological problems of one form or another which are getting in the way." 46 The 2003 proceedings ( NSW Bar Association v Howen (No 2) [2003] NSWADT 235) arose from the failure of the respondent to comply with section 152 notices. 47 In giving a decision on penalty, the Tribunal took into account evidence of Dr Hampshire and Dr Skinner. The Tribunal identified two issues to be answered if the respondent's misconduct was wholly or partly influenced by psychological factors: "(i) Did those factors reduce the culpability that one would have attributed to the Respondent's conduct in the absence of such factors? In short, did they reduce his responsibility for the conduct? (ii) Do those factors still exist and if so, can the possible effects of those factors be controlled so that any risk of the Respondent re-offending is removed or reduced to an acceptable level?" 48 The Tribunal answered each of those questions in the affirmative, and said: "The general thrust of all of the expert evidence is that Mr Howen is capable of avoiding similar conduct in the future but that, to ensure this, he should continue with therapy and/or counselling." [paragraph 17] "We think it very important in his own interests as well as those of his clients that he should take the professional advice to heart and act upon it"[paragraph 19] 49 This Tribunal accepts that the respondent's failure to pursue treatment, despite the wisdom of the 2003 Tribunal, may be substantially attributable to the combination of his Axis I and Axis II conditions. The inescapable fact is, however, that the respondent continued to act in a manner at times consistent with that which brought him before the earlier Tribunal and did not take steps to address his underlying psychological issues. 50 The Tribunal accepts that the respondent's Axis I and Axis II conditions were a factor in his misconduct. The Tribunal does not, however, have any confidence that the possible effects of those factors can be controlled so that any risk of the respondent re-offending is removed or reduced to an acceptable level. 51 In the face of that conduct, it is not open to this Tribunal to give the respondent a further opportunity to seek medical help whilst remaining in practice. To do so would represent a failure to protect the interests of the public. 52 The Tribunal has considered whether it would be possible to impose "a regime of orders that adequately protect the community interest," as was urged on behalf of the respondent. That option is not available. For the reasons already given, the Tribunal could have no confidence that the respondent would be compliant with such a regime, even if it were possible to fashion acceptable and workable conditions. Evidence of the respondent and his wife 53 In his affidavit sworn 27 June 2008 the respondent stated that he found the findings of Dr Phillips to be challenging but also a relief, in that it allowed him to understand what had been affecting him for a long time. He asserted that he intends to take up Dr Phillips' treatment recommendations as he is concerned for his mental and physical health, and will undertake treatment whatever the final results of the current proceedings. He acknowledges that were he permitted to practise, he would have to accept a regime of treatment and supervision. 54 As set out in the Tribunal's decision on the substantive issues in NSWADT 147, the respondent's initial reaction to the complaints against him in that matter, was denial of any wrongdoing. The Tribunal noted the later emergence of concessions and admissions by the respondent. 55 In his Amended Reply filed on 15 October 2007, the respondent admitted that the AIRC was misled by his statements to Commissioner Raffaeilli, but denied that conduct was intentional. He also admitted a partial failure to advance his client's interests at that time, although he denied that arose from an intention to prefer his own interests over those of his client. 56 In his affidavit sworn 5 September 2007, the respondent, whilst stating that he deeply regretted that the AIRC was misled about "aspects of Mr Iverson's situation", continued: "I did not intend to do so. I did not set out to mislead ….I found his conduct very difficult. Nothing had prepared me for such a client." 57 The Tribunal finds that the respondent's concessions and admissions fall short of the frank and unequivocal acknowledgement of his wrongdoing that would persuade the Tribunal that he has arrived at the point where he can be said to have expressed frank and open remorse and contrition for his professional misconduct. 58 The respondent sets out in his affidavit the many difficulties he has faced over the past years, including his disputes with the Bar Association leading to appearances before the Administrative Decisions Tribunal; his financial difficulties including bankruptcy and the loss of his chambers and home; his elderly mother's illness and his brother's recent illness; his workload and the difficulties associated with maintaining his practice whilst also dealing with his disputes with the Bar Association and other personal litigation; and finally his concern about the effect of these accumulated matters on his marital relationship. 59 The respondent's wife, Ms. Lynne Davis swore an affidavit on 27 June 2008. She and the respondent have been in a relationship since 1984 and married in 1990. She sets out her observations of the respondent over the years, and his response to various stressors in his life. The Tribunal accepts Ms. Davis' evidence. Each of the psychiatrists who have spoken with her over the past few years, have found her a reliable and helpful historian regarding her husband's mental condition, and responses to the stressors in his life. Character evidence 60 The respondent placed before the Tribunal a substantial body of character references furnished by members of the profession, both barristers and solicitors, and by other members of standing in the community who have known the respondent in various capacities. All the referees were made aware of the findings against the respondent made by this Tribunal on the substantive issues. 61 In summary those references attest to a hard working and meticulous member of the profession who is courteous and cooperative with other members of the profession, and with other persons with whom he has contact either on a personal level or in the course of his other interests, such as his membership of a political party. He is said to be both professional and caring when dealing with clients; careful and conscientious in the preparation of chamber work; and to have displayed exceptional advocacy skills and ethical standards. 62 Those character references were not challenged and the Tribunal accepts those opinions based upon the referees personal knowledge of the respondent, most of whom have known him for many years. 63 The Tribunal also takes into account the evidence of Ms Davis relating to the respondent's devotion to his legal practice, and his caring attitude towards his clients that she has observed over the past 24 years. 64 The Tribunal accepts that the respondent regards the law as his vocation and one which is his passion in life. 65 The applicant seeks an order that the respondent's name be removed from the roll of legal practitioners. The applicant bears the onus of establishing that the respondent is not a fit and proper person to remain upon the roll. 66 The question of fitness is a matter to be determined at the present time. (A Solicitor v Law Society of New South Wales (2003) 216 CLR 253 at [21] and [31]. 67 The seriousness of the respondent's conduct before the AIRC in 1999 demonstrates that he was not then a fit and proper person to remain a legal practitioner. 68 Four findings of professional misconduct have been made against the respondent, relating to his conduct in 1999 and 2003. 69 The respondent's professional misconduct in 2003 relating to a Section 152 Notice, would not lead to a finding that he is not a fit and proper person to remain a legal practitioner. 70 The Tribunal must consider whether the applicant Bar Association has proved that the deficiencies of character and trustworthiness that characterised the respondent's conduct before the AIRC in December 1999 have not abated or been remedied in the intervening years, thus rendering him unfit to remain a legal practitioner. 71 As the Tribunal pointed out in New South Wales Bar Association v Punch (No.3) [2008] NSWADT 146 the mere fact that a considerable period of time has elapsed without any further complaint or finding of similar misconduct by the respondent, is not evidence that the respondent, at the present time, can be trusted not to engage in similar conduct at some future time. 72 Some part of the delay in bringing the matter to hearing, must be attributed to the failure of the respondent to comply with directions of the Tribunal on numerous occasions, together with his failure to prepare for the March 2007 hearing, which was vacated on his application. Those failures were not, however, the sole cause of the considerable lapse of time since the misconduct occurred, and are not taken into account by the Tribunal in determining its final orders. 73 The findings of professional misconduct made against the respondent in relation to his conduct before the Australian Industrial Relations Commission in the matter of Iverson v Qantas Airways Limited (U No 21050 of 1999) are of the utmost gravity. It is essential for the orderly conduct of matters before courts and tribunals, that those bodies be able to repose complete confidence in the candour and honesty of members of the legal profession appearing before them. That is a fundamental requirement imposed upon members of the profession. 74 The respondent deliberately misled the AIRC as to the reasons why Mr Iverson's application had not been brought within the statutory time limit. As the NSW Supreme Court said in Nguyen v NSW Bar Association [2001] NSWADT 165: "Deliberately and knowingly filing with the court false information intending the court to act upon it establishes the respondent lacks the necessary character for the duties of a barrister and is wholly unfit to be a barrister in NSW." 75 The respondent in seeking to conceal his own dilatory behaviour, deliberately preferred his own interests to those of his client. Such conduct is not consistent with the obligations and duties imposed upon a member of the legal profession. It is conduct of the utmost gravity. It breaches the duty of honesty and candour owed to the courts by members of the legal profession, which includes a duty to neither mislead the court by untruthful statements, nor to conceal relevant facts from the court. 76 The respondent's conduct constituted a grievous breach of those fundamental principles. 77 As the Tribunal said in New South Wales Bar Association v Abdul-Karim [2003] NSWADT 205: It is trite law that the jurisdiction of this Tribunal in disciplinary matters is exercised to protect the public and not to punish the practitioner. It is a jurisdiction which has to be exercised bearing in mind the high standards required of legal practitioners in the practice of their profession. As has recently been said by Giles J in The Bar Association v Murphy [2002] NSWCA 138 (28 June 2002) at paragraph 113: "The (high) standards are required because the relationship between the legal practitioner and the client, between legal practitioners and between legal practitioner and court is one of trust in the performance of professional functions, because there must be confidence in the public and in those engaged in the administration of justice that legal practitioners will properly perform those functions." 6 In the oft quoted passage in The Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Giles AJA said: "The jurisdiction of the Tribunal and of this Court in disciplinary matters is exercised to protect the public, not to punish the solicitor. The object of protection of the public may required that a legal practitioner be removed from the roll, be suspended from practice, or only be permitted to practice under particular circumstances, where the practitioner is not fit to be held out to be entrusted, at all, for a time, or without qualification, with the heavy responsibilities attendant upon the office. The public is protected by ensuring that those unfit to practice do not continue to hold themselves out as fit to practice. But the object of protection of the public also includes deterring others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues whose practice in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrents is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with." 78 The protection of the public is an issue of paramount importance in the decision to be arrived at by this Tribunal. 79 The Tribunal is satisfied that the respondent is suffering from a pervasive moderately severe dysthymic disorder, and has suffered from that condition throughout the relevant period, and probably from at least 1990. This depressive disorder has adversely affected his capacity to function in his professional capacity. The Tribunal accepts Dr Phillips' assessment that it is highly likely that the respondent has been incapacitated in his professional life as a consequence of failing to properly identify his chronic depressive pathology and not having undertaken comprehensive treatment with a psychiatrist. 80 The Tribunal is further satisfied that the respondent suffers from a personality trait dysfunction which has exacerbated his condition in that is has caused him to maintain a state of denial about his mental health problems, and a lack of motivation to deal with them. 81 Despite problems in his professional life leading to disciplinary proceedings being brought against him over a number of years, the respondent has demonstrated little motivation to deal with his Axis I and Axis II conditions. The respondent has failed to take up opportunities to address his problems and pursue available treatment for these disabling conditions. He has remained remarkably lacking in insight as Dr Hampshire assessed him to be in 2003. 82 The Tribunal does not doubt the sincerity of the respondent's assertions in his affidavit sworn 27 June 2008, that he is grateful for the manner in which Dr Phillips' has explained aspects of his psychological functioning. Nor does the Tribunal doubt the sincerity of his stated intention to take up Dr Phillips' treatment recommendations. Nonetheless, given the respondent's history of poor compliance with mental health assessment and treatment, the Tribunal remains in doubt as to whether or not the respondent will follow through the necessary treatment plan. 83 In light of the respondent's failure to address these conditions after being furnished with the opinions of two well recognised psychiatrists in 2003, and in the face of the views expressed by the 2003 Tribunal as to the desirability of these problems being addressed, the Tribunal cannot be satisfied that the respondent will undertake and persist with the treatment recommended by Dr Phillips. The Tribunal is satisfied that without such treatment the respondent's prognosis is poor. 84 The respondent is presently not a fit and proper person to remain on the roll of legal practitioners. 85 It is not possible for this Tribunal to arrive at any view as to whether or not at some future time he may become a fit and proper person to be restored to the roll of legal practitioners. 86 The evidence of Dr Phillips' suggests that the respondent's prognosis will improve significantly if he makes good use of the available psychiatric help and undertakes the course of treatment recommended by Dr Phillips. 87 Whether or not he might be adjudged at some time in the future, a fit and proper person to be restored to the roll of legal practitioners, is a matter which will have to be determined when and if the respondent makes such an application. 88 Re: NSWADT 147: 89 The Tribunal has considered the various options available to it, but having regard to the gravity of the respondent's conduct before the AIRC; his failure to unequivocally acknowledge his professional misconduct, and his failure to take steps since 2003 to deal with his underlying psychological problems, the Tribunal has determined that the only appropriate order is that the respondent's name be removed from the roll of legal practitioners, and cancellation of his practising certificate. 90 Re: NSWADT 148: 91 The applicant urged the imposition of a substantial fine in respect of each of the findings made against the respondent. 92 In NSW Bar Association v Howen (No.2) NSWADT 235 the Tribunal whilst noting that failure to comply with a Section Notice was not a trivial matter, said: "We think the respondent in his present state of mind is resolved not to offend in a similar way in the future." 93 If the respondent had so resolved at that time, he did not sustain that resolution. The repetition of such behaviour would, in the ordinary course, call for the imposition of a substantial fine, the maximum amount of which would be $50,000 pursuant to Section 171C (1)(d) of the 1987 Act. 94 In determining to impose a modest fine and public reprimand upon the respondent, the Tribunal has taken into account the orders proposed in NSWADT 147 striking the respondent from the roll and thus depriving him of the capacity to pursue his living in the profession. Regard has also been had to evidence of his apparently parlous financial position, and the effect his psychological condition has had upon his functioning in the relevant period and continuing. 95 In all the circumstances the Tribunal proposes to impose a fine of $2,000 in respect of each finding of professional misconduct. Previous Disciplinary Actions against the Respondent 96 The following previous disciplinary matters against the respondent are relevant to the question of penalty: i. 1 August 2001. Leech complaint. Findings of failure to draft documents, confer with client, attend Court mentions, and reply to client communications. The respondent was reprimanded by the President of the Bar Association. ii. 13 November 2002. The respondent delayed notification of an act of bankruptcy pursuant to his failure to comply with a bankruptcy notice. On 13 March 2003, pursuant to the provisions of section 38FB Legal Profession Act 1987 an indefinite suspension of the respondent's practising certificate was imposed. The respondent appealed to the Supreme Court on 20 March and the suspension was lifted. On 3 April 2003 The Legal Services Commissioner determined that the respondent was a fit and proper person to hold a practising certificate. iii. 24 October 2003. 2 findings of professional misconduct arising from failures to comply with Section 152 Notices. The respondent was publicly reprimanded by the Administrative Decisions Tribunal. NSW Bar Association v Howen (No.2) [2003] NSWADT 235. iv. 24 October 2003. A finding of unsatisfactory professional conduct arising from failures to provide chamber work, return a brief, and communicate with instructing solicitors. The Administrative Decisions Tribunal administered a public reprimand. NSW Bar Association v Howen (No.2) [2003] NSWADT 235. Orders Matter 062009 New South Wales Bar Association v Howen [2008] NSWADT 147 1. The name of Alexander Stanislaw Howen to be removed from the roll of persons admitted as lawyers, which is maintained by the Supreme Court of NSW pursuant to Section 32 of the Legal Profession Act 2004 2. The respondent's practising certificate is to be cancelled on 19 September 2008 3. The respondent to pay the costs of the applicant Bar Association as agreed or assessed, in respect of the substantive hearing and the hearing on penalty 4. The decision of the Tribunal to be published. Matter 062011 New South Wales Bar Association v Howen [2008] NSWADT 148 1. The respondent is fined $2,000 in respect of each of the two findings of professional misconduct, a total of $4,000 2. The respondent is reprimanded 3. The respondent to pay the costs of the applicant Bar Association as agreed or assessed, in respect of the substantive hearing and the hearing on penalty 4. The decision of the Tribunal to be published. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.