Professional Misconduct – overcharging and untruthfulness


Legal Services Commissioner v Dempsey (No. 2) [2009] LPT 23

The Tribunal recommended Mr Dempsey be removed from the roll of legal practitioners in Queensland and pay compensation to Rafaela Oats in the sum of $17,232.72.

The Tribunal made findings as follows:

[3] The Tribunal is of the view that Mr Dempsey was not “a fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor.”  In the Tribunal’s view he remains unfit.

[6] The Tribunal has also taken into account that Mr Dempsey gave untruthful evidence before the Tribunal. It is of course a very serious matter when the view is taken that a legal practitioner has not told the truth on oath. As Ipp JA said in Davison v Council of New South Wales Bar Association [2007] NSWCA 227 at [118]: “There is ample authority to the effect that untruthfulness in giving evidence in disciplinary proceedings may be taken into account in considering what order should be made: see Barwick v Council of the Law Society of New South Wales [2004] NSW CA 32 and the authorities therein referred to at [105].”

[7] The courts, fellow practitioners and clients cannot have confidence in a legal practitioner who has been untruthful on oath. A person who has been found guilty of the counts of professional misconduct and unsatisfactory professional conduct alleged in this matter and displayed such dishonesty on the disciplinary hearing is not a fit and proper person to be entrusted with the duties and responsibilities of a legal practitioner and the Tribunal recommends that his name be removed from the roll under s 456(2) of the 2007 Act.

[8] The Tribunal was minded to order a stay of this order for 21 days to enable an orderly transition of the practice and to protect the interests of Mr Dempsey’s existing clients. However, Mr Dempsey failed to be fully candid with the Tribunal and further information relevant to the Tribunal’s determination was disclosed by Mr Dempsey’s counsel after the further hearing with regard to penalty. The Tribunal has no confidence in a practitioner who has failed to be fully candid in these circumstances and so will not grant a stay. It would not be in the interests of his clients for a stay of the Tribunal’s orders to be granted.

Brisbane Barrister – David Cormack





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