Published on 9 November 2018

[Names used in this article are fictitious]

A law firm which did not establish and maintain “due separation” between its office and the office of an employment advocate breached rule 11.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC), the Legal Complaints Review Officer (LCRO) found in LCRO 240/2017.

The law firm, L, allowed an employment advocate, Mr Dedlock, to use a room which was separated from L’s office suite by a corridor.

“On the facts before me, separate office space was not maintained by any means that proclaimed that the businesses were separate and distinct,” the LCRO said.

“So, the public at large were in jeopardy of being led to believe that [L] and Mr [Dedlock] were associated in a meaningful way.

“That is enough to warrant a finding of a rule 11.1 breach,” the LCRO said. Rule 11.1 says that: “A lawyer must not engage in conduct that is misleading or deceptive or likely to mislead or deceive anyone on any aspect of the lawyer’s practice.”

However, not every rule breach requires a finding of unsatisfactory conduct, the LCRO said.

“In my view, [L’s] conduct took the form of breach by oversight, rather than sheer carelessness – an oversight that is unlikely to be repeated and one offering a lesson to both [L] and all other lawyers and law firms.

“I have no doubt that this process has been a wake-up call to [L] and, in my view, that suffices in all the circumstances.”

The LCRO was considering an application from Mr and Mrs Lillyvick, for review of a lawyers standards committee decision to take no further action on their complaint about L.

Mr and Mrs Lillyvick made the complaint with the aim of recovering $8,050 from L, which they paid in advance to Mr Dedlock, trading as F, for employment dispute services for Mrs Lillyvick which they say were never performed.

In their complaint, they submitted that L should be ordered to compensate them in that amount because, by permitting Mr Dedlock to use a room in or adjacent to L’s office premises that was not differentiated from those by signage or otherwise, L “let him pass as a member of their firm”.

The standards committee determined that no further action on the complaint was necessary or appropriate.

In reaching its decision, the committee noted that:

1. the F website expressly said that those involved in its business were not lawyers;
2. it was difficult to ally the complaint to any of the rules found in the RCCC;
3. looking outside the RCCC, there was no other basis for a finding that L’s conduct amounted to unsatisfactory conduct, or that L was vicariously liable for Mr Dedlock’s conduct; and
4. it did not accept that (as had been alleged) L had done anything to provide F “with a cover brand” or to create “a façade … erected for its own financial benefit, giving no thought for other possible consequences”.

In certain circumstances, the LCRO may award compensation (which Mr and Mrs Lillyvick were seeking). However, that was not appropriate when the claim “properly belongs in the court system, which is the case here,” the LCRO said.

“Although my review has taken a different route from that of the committee, I see no grounds which could persuade me to depart from the committee’s actual decision that … no further action on the complaint was necessary or appropriate.”