Tribunal Seeks Removal of Appellant's Name from Roll of Legal Practitioners

LEGAL PROFESSION COMPLAINTS COMMITTEE -v- TANG [2022] WASC 204 (17 June 2022)

The Legal Profession Complaints Committee (the Committee) applied by motion for orders that Mr Tang be removed from the roll.  The Tribunal made a recommendation that Mr Tang's name be removed from the roll of legal practitioners.  The Court, in making its orders, assessed whether or not the Tribunal erred in making its orders.

Facts:

Mr. Tang was admitted to legal practice in Western Australia on 4 September 2001. From 1 October 2002, he was the sole principal of a law firm, Tang Legal. The Tribunal found, between about 27 February 2015 and about 4 March 2015, at the time of providing legal services to TFC in respect of property development (Development), Mr. Tang engaged in professional misconduct, in that his conduct would be reasonably regarded as disgraceful or dishonourable by legal practitioners of good repute and competence and/or would justify a finding that Mr. Tang is not a fit and proper person to engage in legal practice within the meaning of s 403(1)(b) of the Legal Profession Act. Mr. Tang engaged in professional misconduct by soliciting from Mr. B, the proprietor of a consulting engineering business trading as 5R and engaged by TFC in respect of the Development (and in respect of which engagement Mr. Tang acted on behalf of TFC), a payment in the sum of $12,500 in cash (Cash Payment) for the benefit of a company controlled by his father as trustee for F Trust, the project manager for the Development. 

The second ground of professional misconduct arose out of Mr. Tang's response to the Committee in the course of its investigation of the conduct comprising the first ground of professional misconduct, following a complaint by Mr. B.  By a letter dated 30 September 2016, the Committee sought an explanation as to the circumstances in which Ms. K signed the Acknowledgement of Receipt for an amount of the $12,500 Cash Payment, and whether the Cash Payment was in fact received by the firm and if so, to explain into which account the sum was deposited and against which matter it was credited. It was found that Mr. Tang knew that the Statements were false and misleading and had the potential to mislead the Committee. Mr. Tang intended that the Committee rely on and be misled by the Statements and that the Committee thereby be obstructed in its investigation into his conduct. 

On 26 November 2021, the Legal Profession Complaints Committee (the Committee) applied by motion for orders that Mr. Tang be removed from the roll.  On 3 September 2021, the State Administrative Tribunal (the Tribunal) made orders that it make and transmit a report to this court in relation to findings of unsatisfactory professional conduct and professional misconduct it made in relation to Mr. Tang.  The Tribunal made a recommendation that Mr. Tang's name be removed from the roll of legal practitioners.  Prior to the hearing, Mr. Tang caused have filed by the Committee a notice of intention which he had signed stating that he did not intend to be heard on the hearing of the motion and did not oppose the removal of his name from the roll.  Mr. Tang did, however, appear at the hearing, did not make any submissions, but offered an apology and informed the court that he did not oppose the application.

Issue:

Whether or not the Tribunal erred in making its orders.

Applicable law:

Legal Profession Act 2008 (WA) - pursuant to which the report is to be taken as conclusive as to all facts and findings mentioned or contained in the report.

Legal Profession Complaints Committee v Oud [2019] WASC 287 - provides that the court's jurisdiction with respect to the regulation of the legal profession is not to be exercised for the purpose of punishing the practitioner concerned, but for the protection of the public and the maintenance of the reputation and standards of the legal profession.

Legal Profession Complaints Committee v Brennan [2010] WASC 198  - provides that an important object of the disciplinary function is to maintain and protect the reputation of the legal profession. 

Law Society (New South Wales) v Foreman (1994) 34 NSWLR 408 - provides that account must be taken by the court of the effect which its order will have on the understanding by the profession and the public of the standard of behaviour required of legal practitioners. 

Legal Profession Complaints Committee v Brickhill [2013] WASC 369 - provides that fitness to practice law requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges. 

Analysis:

F Trust provided project management services for the development of land owned by Mr. S and TFC.  Mr. Tang undertook all communications and correspondence with Mr. B in relation to the contract between TFC and Mr. B for the Development on behalf of TFC and F Trust.  At the time Mr. Tang solicited the secret profit or secret commission of $12,500 (being an amount equivalent to one-quarter of the contract price charged by 5R), Mr. Tang acted on behalf of TFC in negotiating the terms of the contract between 5R and TFC, including the fee of $50,000 to be paid by TFC to Mr. B.

Mr. Tang owed fiduciary obligations or duties to TFC in respect of the Development, which arose from his role in the F Trust and the F Trust's relationship with TFC (not by reason of his provision of legal services to TFC). The Tribunal took into consideration Mr. Tang's personal circumstances, including his acrimonious relationship and breakup with his first wife in 2012, the ongoing conflict over the next seven years, and the financial stress that he was under during the period 2015 to 2018. The Tribunal found that none of these circumstances provided a reasonable explanation, much less an excuse, for Mr. Tang's professional misconduct.

Conclusion:

The Court orders that the practitioner's name be removed from the roll of practitioners.

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