The Northern Territory Supreme Court has dismissed an appeal by solicitor Asha McLaren against a finding of professional misconduct by the Legal Practitioners Disciplinary Tribunal.
In 2003, the Darwin solicitor had, apparently on behalf of the Uniting Church, made complaints to the Law Society against big NT law shop Cridlands MB and the firm’s lawyers – Alison Maynard and Karen Christopher as well as partner Richard Giles, a former Prez of the NT Law Society.
At the time, the church was leasing out its premises for a Woolworths supermarket development and it suspected that Cridlands, its long-standing lawyers in the territory, had a conflict of interest because it also acted for a property developer with involvement in a rival Coles supermarket project.
McLaren wrote to the NT Law Society alleging that Cridlands had a conflict of interest, which it had not disclosed to the church, and had breached its ethical duties under the Professional Conduct Rules.
The complaint was particularised with 57 numbered paragraphs and read like an angry statement of claim.
She said Cridlands had used and passed on confidential and commercially sensitive information gained as a legal representative of the church to help its developer client to the detriment of the church’s interests.
A few months later Ms McLaren in correspondence with the Law Society further alleged that the three Cridlands solicitors had sought to obtain financial advantage for themselves and their other clients at the expense of the Uniting Church.
Cridlands denied it had done anything wrong.
The complaint was eventually resolved by mediation.
Cridlands wrote a letter of apology to the church and maintained it did not breach any legal or professional duty.
The apology appears to be related to the fact Cridlands also represented Woolworths in a dispute with the church over the transfer of a liquor licence to a new site.
But the firm said it was embarrassed by the creation of a document, “that may have given the appearance that Cridlands had advised parties other than the church in relation to the lease”.
Counsel, who had been retained by the Law Society to investigate the allegations and to conduct the mediation, found McLaren’s allegations unsubstantiated and recommended that she be asked to explain herself.
The Law Society took her to the Disciplinary Tribunal, alleging she made groundless claims of serious and wilful professional misconduct against the Cridlands’ people.
She was charged with acting contrary to the requirements in the professional rules to only make allegations or suggestions under privilege against a person that are reasonably justified by the material available (rule 17.21); and not to prepare any court document alleging criminality, fraud or other serious misconduct unless believing on reasonable grounds that factual material already available provides a proper basis for the allegation if it is made in a pleading (rule 12.1).
McLaren did not give evidence or call witnesses at the hearings.
As to whether she was acting on proper instructions in sending her original complaint letter, the tribunal wasn’t sure if the presence of the church’s seal and two signatures from church officials meant it had authorised all the contents of the letter. In the end, the tribunal decided it did not.
It was “moderately clear” to the tribunal that:
“The respondent’s husband, Mr John McLaren, the chairman of the [Uniting Church] property trust, was interested in making the complaint.
There are entries in the respondent’s file that she was taking instructions from John McLaren… Without the evidence of John McLaren or the respondent on this question, the tribunal cannot be sure whether the instructions of John McLaren carried the authority of the Uniting Church or the property trust.”
She was hit with a $19,500 fine, ordered to complete an ethics course provided by the NSW College of Law (and obtain a mark of at least 75 percent), and to apologise to the three Cridlands’ lawyers.
McLaren appealed to the Supreme Court, mostly on procedural grounds.
Her counsel argued the Law Society’s case had become muddled and that the parties had thereby presented different cases to the tribunal that were like “ships passing in the night”.
In the unanimous judgment upholding the professional misconduct finding and the penalty, Chief Justice Brian Martin whimsically responded:
“This was not a case of ships passing in the night. It was a case of the practitioner in her slow and leaky vessel endeavouring unsuccessfully to slip past the opposing ship in order to avoid being sunk by its heavy fire.”
The Supreme Court did however overturn the tribunal on the issue of whether McLaren was acting without authority from the church in lodging the complaint about Cridlands’ apparent conflict of interest.
The court found the tribunal had erred and reversed the onus of proof. A signed letter with the church seal was sufficient to show McLaren had authority to lodge a complaint about conflict of interest on the Church’s behalf.
However, there was no evidence from the church records showing it thought Cridlands had done the beastly things alleged by McLaren.
The findings of professional misconduct and the penalty were ordered to stand:
“The practitioner was aware that she was making allegations of very serious breaches of ethical conduct and, notwithstanding the known absence of evidentiary material … she continued to maintain those allegations and declined to withdraw them.”
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According to reports in the Murdoch tissues an Asha McLaren had a brush with fame when her cat was eaten by a python:
Ms McLaren told the reporter:
“It wasn’t a very nice feeling to think that this happened in our backyard.”
However, she had better luck in this case brought by a disgruntled client.