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Reprimanded solicitor’s hopeless appeal criticised by tribunal
An ACT tribunal said it was “incongruous” for a solicitor to appeal a 12-month suspension for altering documentation because he should have considered himself lucky he did not receive a harsher penalty.
Naomi Neilson
ACT solicitor Kai Zhang was found guilty of professional misconduct in the ACT Civil and Administrative Tribunal (ACAT) for electronically changing the names of a director and guarantor in a lease documentation drafted by Bradley Allen Love Lawyers in 2017.
Senior member Mary Brennan imposed a public reprimand, suspended his practising certificate for 12 months, told him to undertake an ethics course in that same time, and pay costs.
“The tribunal considers the practitioner’s dishonesty in 2017 and 2020 was extremely serious,” Brennan said in written reasons.
“The tribunal is mindful of the practitioner’s limited legal experience at the time of the misconduct. However, it considers the nature of his conduct in 2017 and 2020 raises such a critical and clear requirement for legal practitioners to be honest, and his inexperience is not a significant factor in assessing sanction in this case.”
At the time, Zhang had been a solicitor for four years and had held an unrestricting practising certificate for two years.
Since 2017, his practice has grown to 40 employees, and systems have been put in place to ensure more than one practitioner has reviewed a matter. Zhang said that during the course of his offending, he was a sole practitioner and had no one to support him.
In an affidavit provided during the original hearing, Zhang admitted he initially considered he had done nothing wrong and was acting in his client’s best interests, but he has come to accept the tribunal’s findings and understand his responsibilities to the legal profession.
Brennan said that while the tribunal was satisfied that Zhang had gained insight into why his conduct was so serious and had grown a support network, “this insight has come late in the piece”.
Zhang also submitted it was “difficult” to be cross-examined and considered he had not “sufficiently explained his actions, learning and work he had undertaken to develop as a practitioner”.
In response, the tribunal found that while mindful of the “discomfort and stress” of disciplinary proceedings, Zhang “appeared to be uncooperative at some points during his cross-examination … and failed to appreciate the seriousness of his conduct being examined”.
Zhang appealed Brennan’s findings on several grounds, including an alleged failure to give weight to his insights into his wrongdoing.
He submitted that instead of the 12-month suspension, he should have had his right to practice restricted to that of an employee, with conditions, for a period of six to 12 months.
In dismissing all grounds, presidential member Geoffrey McCarthy said a legal practitioner “with any semblance of insight into the importance of honesty, had they been as dishonest as the practitioner was in this case”, would have appreciated their “good fortune” in only being suspended for 12 months.
McCarthy added Zhang appealed “on a host of grounds none of which … was seriously arguable, and several times inaccurately described statements of the original tribunal”.
“What was truly incongruous was the appellant advancing as his most significant ground of appeal that the original tribunal failed to give sufficient weight to his insight into the seriousness of his misconduct,” McCarthy said in his written reasons.
“In my view, the appellant’s very bringing of the appeal, the grounds of which it was brought and the outcome he sought demonstrated to me that the appellant still has no real insight into the seriousness of his misconduct.”
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
