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Perth lawyer guilty of professional misconduct for affidavit mishap
A Perth lawyer was hit with a $23,000 fine for carelessly affirming an affidavit despite a senior associate’s concerns.
Naomi Neilson
Martin Lawrence Bennett, a lawyer with almost 50 years of experience, was found to have engaged in two counts of professional misconduct and one of unsatisfactory conduct by the Western Australian State Administrative Tribunal (WASAT) earlier this week.
Before the affidavit was affirmed, a senior associate at the same firm questioned whether the information could be used.
Bennett said it could because he “genuinely, but mistakenly” believed the affidavit was being used for a purpose covered by the orders.
However, in reaching that view, he did not carry out research to confirm this, had no reasonable grounds for the belief, and did not bring an application to vary the tribunal’s orders.
Bennett and the Legal Services and Complaints Commission (LSCC) agreed to settle the matter on the position that Bennett was grossly careless in his conduct, rather than reckless, because the failing was that “he did not do what he should have done”.
“That is, the parties appear to have agreed that the gravamen of the practitioner’s conduct was his failure to take steps, such as to cause the understanding of research, in order to confirm his honestly held, but mistaken, belief as to the state of the law,” the tribunal found.
Although Jackson and the members agreed to settle the matter on the parties’ orders, he said it was still open “to infer the practitioner had a conscious disregard for the correctness of his view of the law”.
The tribunal added that to move forward with the affidavit despite the senior associate’s concerns and without further research “would seem to us, amounts to a conscious disregard of the risk”.
“The practitioner is a very experienced litigator,” they said.
“It seems quite remarkable to suggest that the practitioner did not even acknowledge the possibility that he was wrong in his view when the senior associate presented him with her concerns.
“Nevertheless, while we have considerable misgivings in doing so, we have determined to accept the parties’ agreed view.”
Bennett was found to have engaged in the second count of professional misconduct by writing to the Western Australian Attorney-General to request his intervention in relation to a charitable trust connected to the family of a client.
The LSCC told the tribunal the letter made use of and referred to information that had not been tendered in court.
In August 2019, Bennett engaged in unsatisfactory professional conduct by failing to “clearly and fully explain” a matter relevant to a tribunal’s consideration of an application to vary orders.
In addition to the $23,000 fine, Bennett was reprimanded and ordered to pay costs fixed in the sum of $12,500.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
