-
SEMINAR 10 SPEAKING NOTES 1. Aim of Disciplinary Proceedings
Against Lawyers
a. Primary aim is protective
- The main purpose served by disciplinary proceedings against
lawyers
is to protect members of the public from misconduct by
lawyers
rather than punish them (Wentworth)
- Protective function is a recognition of the social value in
the
availability of the services provided to the public, combined
with an
understanding of the vulnerability of many who require such
services
(Meakes)
- A lawyer-defendant in a disciplinary matter must co–operate
reasonably in the process and avoid an unduly combative approach,
and behaviour inconsistent with this duty may impact on the
appropriate disciplinary response (Hannebery)
- The lawyer’s fitness to practise is to be determined at the
time of the hearing, from which it follows that events that have
occurred after the alleged misconduct can influence a finding of
whether the lawyer is presently unfit to practise law (Goold)
b. Other aims of disciplinary proceedings
- A secondary aim of professional disciplinary proceedings is as
a means
to safeguard the reputation of the profession (Westbrook)
- A disciplinary sanction may therefore deter other lawyers
from
engaging in the impugned conduct (‘general deterrence’), and
also
deter the lawyer disciplined (‘specific deterrence’)
(Ciampa)
c. Punitive aspect of disciplinary function
- Professional disciplinary proceedings may generate an outcome
that
is punitive in effect, albeit chiefly by linking deterrence to
the central
protective aim (Sahade)
-
- A ‘punitive response’ shows the grave view the court or
tribunal takes
of the misconduct; a failure to mark its censure and disapproval
via a
punitive response in the case of grave misconduct may be viewed
by
the public as almost tacit approval (Boylen)
d. Compensatory aspect of disciplinary function
- Generally speaking, disciplinary proceedings have not been a
vehicle
through which a remedy can accrue to an individual injured by
a
lawyer’s improper conduct; civil processes between lawyers and
their
clients fulfil this function (Wakeling)
- The relevant regulatory body and disciplinary tribunal in New
South
Wales has the power to direct a lawyer to pay compensation to
a
person who has suffered as a result of the lawyer’s misconduct
(see
Legal Profession Act 2004 (NSW) Pt 4.9)
2. Meaning of ‘Misconduct’ in the Context of Professional
Discipline Against Lawyers
a. Concepts of misconduct under statute
- A distinction is made between ‘professional misconduct’
and
‘unsatisfactory professional conduct’
- ‘Unsatisfactory professional conduct’ is defined to include a
lawyer’s
conduct occurring in connection with the practice of law that
falls
short of the standard of competence and diligence that a member
of
the public is entitled to expect of a reasonably competent
lawyer
(Legal Profession Act 2004 (NSW) s 496)
- ‘Professional misconduct’ includes unsatisfactory
professional
conduct where it involves a substantial or consistent failure to
reach
or maintain a reasonable standard of competence and diligence,
and
conduct whether or not happening in connection with the practice
of
law that would justify a finding that the lawyer is not a fit
and proper
person to engage in legal practice (Legal Profession Act 2004
(NSW) s
497)
- The following can be unsatisfactory professional conduct
or
professional misconduct (see further Legal Profession Act 2004
(NSW)
s 498(1)):
-
i. conduct consisting of a contravention of the legal
profession legislation, regulations or rules;
ii. charging of excessive legal costs in connection with the
practice of law;
iii. conduct in relation to which there is a conviction for a
serious offence, a tax offence or an offence involving
dishonesty;
iv. conduct in failing to comply with an order of a professional
or disciplinary body;
v. conduct in failing to comply with a compensation order
3. Disciplinary Orders Against Lawyers
a. Generally
- The court, whether pursuant to its statutory appeal or
inherent
jurisdiction may make a wide variety of disciplinary orders,
including
orders:
i. orders striking off (McCaffery)
ii. suspending (Nicholson)
iii. reprimanding (Bhandari); or
iv. fining an errant lawyer (Re LF Heydon)
b. Striking off
- Striking off (also variously termed ‘removal’ or ‘disbarment’)
is the
most serious professional sanction and is appropriate where
the
tribunal or court finds the lawyer not to be a fit and proper
person to
remain a member of the profession (Re Davis)
- Although most commonly utilised where the findings reveal a
lack of
honesty and integrity, striking off may be used even in the
absence of
misconduct, such as in respect of a lawyer who suffers mental
illness
or loss of faculties by reason of age (Re a Solicitor)
-
- It should not be assumed that a finding of professional
misconduct of
itself justifies striking off (Costello)
- Whether or not removal from the roll is ordered depends on
the
gravity of the misconduct, and whether, most commonly because
of
lack of honesty or integrity, the need for public protection
and
preservation of the reputation of the profession necessitates
striking
off (Re a Medical Practitioner)
c. Suspension
- An order for suspension is premised on a view that at the
termination
of the period of suspension the lawyer will no longer be unfit
to
practise because, subject to any limitation imposed on the issue
of a
practising certificate, his or her name remains on the roll and
he or
she may resume practice (McNamara)
- Suspension can be ordered where a lawyer has fallen below the
high
standards expected of them but not in such a way as to indicate
that
he or she lacks the qualities of character and trustworthiness
that are
the necessary attributes of a person entrusted with the
responsibilities of a lawyer (Re a Practitioner)
- Suspension will not ordinarily be an appropriate sanction
where a
lawyer has repeatedly behaved dishonestly (Bax)
- Suspension will be a more likely disciplinary response where,
though
the misconduct is serious, it has not involved any dishonesty on
the
lawyer’s own part (Clough)
- An order suspending a lawyer from practice may be
appropriate
where it is made long after the misconduct that demonstrated
unfitness occurred and a meritorious degree of
rehabilitation
extending over the interval between misconduct and the hearing
of
the case has been shown (Jauncey)
- Suspension may be a suitable disciplinary response where the
lawyer
suffers some temporary physical ailment or mental irrationality,
in
circumstances where there is a reasonable prognosis that,
with
appropriate treatment or supervision, the lawyer is likely,
within a
finite time, to be fit to practise (Re Mack)
-
- Suspension may also be appropriate during a period of
imprisonment
for a reason that is not sufficient to justify striking off, as
it would be
detrimental to the public’s confidence in the administration of
justice
were a lawyer permitted to practise from gaol (Ziems)
d. Reprimand
- A reprimand as a disciplinary response is usually confined to
findings
of professional misconduct or, more likely, unsatisfactory
professional
conduct, that are insufficiently serious to merit suspension or
striking
off (Westbrook)
- Being reprimanded on its own does not oust any practise
rights,
however, it remains a serious matter, as it marks the disgrace
of a
member of an honourable profession inherent in the
misconduct
(Hinde)
- A court or tribunal is more inclined to reprimand a lawyer
where not
only is his or her misconduct not marked by any tinge of
dishonesty,
but is isolated in nature and entirely out of character, as
supported by
evidence as to the lawyer’s good character (Chamberlain)
4. Factors Impacting Disciplinary Orders Against Lawyers
a. In addition to the basic nature of the misconduct, the
following factors are
relevant when determining what disciplinary response should
ensue:
- Frequency of misconduct and prior misconduct findings
(Nicholson)
- Lawyer’s age and professional experience (Chamberlain)
- Lawyer’s attitude (Kerin)
- Lawyer’s (lack of) appreciation of wrongdoing (Westbrook)
- Testimonials and opinions by third parties (Re Robb)
- Medical condition or addiction (Wakeling)
- Pressure and stressors (Murphy)
-
- Loss suffered by others as a result of misconduct (Starky)
- Loss already suffered by lawyer as a result of misconduct
(Re
Maidment)
5. Disciplinary Procedures Against Lawyers
a. General Principles
- The onus of proving misconduct lies on the party alleging it,
namely,
the relevant regulatory or professional body or other
complainant
who has standing (Westbrook)
- The cases make reference to a standard variously described as
a ‘high
degree of satisfaction’, ‘comfortably and confidently
satisfied’, ‘very
sure’ and, most commonly, ‘reasonable satisfaction’
(Briginshaw)
- Although clearly not the criminal standard, it may be more
exacting
than the ordinary civil standard, such that the degree of
satisfaction
required rests on the gravity of the alleged misconduct (Re a
Barrister
and Solicitor)
- Requirements of procedural fairness are superimposed on
the
statutory framework by the general law, and so may extend
beyond
the specific requirements of the statute (Legal Profession Act
2004
(NSW) s 591)
- Natural justice requires that the lawyer be apprised in clear
and
precise terms, before the hearing, of the nature and particulars
of the
case he or she is facing (Re Evatt)
- Hearings before a relevant body or tribunal be conducted in
public
unless the body or tribunal determines otherwise in the
interests of
justice (Legal Profession Act 2004 (NSW) s 560)
- Participants in disciplinary proceedings are generally
entitled to legal
representation (Administrative Decisions Tribunal Act 1997 s
71(1))
- The rules of evidence apply to non-court disciplinary
proceedings
(Legal Profession Act 2004 (NSW) s 558)
-
- The discretion vested by statute in the relevant
professional
disciplinary body or tribunal as to the award of costs,
including the
costs of investigating the conduct that led to the finding, is
ordinarily
exercised against a lawyer found to have behaved
unprofessionally
(Legal Profession Act 2004 (NSW) s 566(1))
- A lawyer who succeeds on the merits cannot necessarily be
assured of
receiving costs, as statute in some jurisdictions premises a
costs order
in favour of the lawyer on ‘special circumstances’ (Legal
Profession
Act 2004 (NSW) s 566(3))
- Costs may be ordered against a lawyer if the sole or principal
reason
the proceedings were instituted was a failure to co-operate with
the
relevant body, or for any other reason such an order is
warranted
(Legal Profession Act 2004 (NSW) s 566(2))
- Statute requires relevant bodies to publicise disciplinary
action taken
against a lawyer, and to keep a register of that action
available for
public inspection (Legal Profession Act 2004 (NSW) s 577)
- Lawyers are, more generally, also obliged to assist an inquiry
into
their own professional conduct (Johns)
6. Disciplinary Procedures Against Lawyers in New South
Wales
a. Complaints
- Any person may make a written complaint concerning the
professional conduct of a lawyer to the Legal Services
Commissioner
(the ‘Commissioner’) (Legal Profession Act 2004 (NSW) ss
503-505)
- The Commissioner’s main functions in the disciplinary process
are to
receive and investigate complaints regarding the conduct of
lawyers,
as well as review the decisions of the Law Society Council or
Bar
Council (s 688(1) of the Legal Profession Act 2004 (NSW))
- He or she may summarily dismiss a complaint that is
frivolous,
vexatious, misconceived, lacking in substance or
insufficiently
particularised (s 511(1)(b) of the Legal Profession Act 2004
(NSW))
-
- A complaint made more than three years after the conduct
in
question cannot be dealt with unless a determination is made
that it
is fair and just to deal with it having regard to the delay and
the
reasons for it, or it involves an allegation of professional
misconduct
and it is in the public interest to deal with it (s 506 of the
Legal
Profession Act 2004 (NSW))
b. Investigation by Commissioner or a council
- The Legal Services Commissioner (the ‘Commissioner’) may
investigate a complaint, or may take over a Bar Council’s or
Law
Society Council’s investigation (Legal Profession Act 2004 (NSW)
s
526(1))
- If the Commissioner or council believes there is a
reasonable
likelihood that the lawyer will be found guilty of
unsatisfactory
professional conduct or professional misconduct,
disciplinary
proceedings must be instituted in the Administrative
Decisions
Tribunal (the ‘Tribunal’) (s 537(2) of the Legal Profession Act
2004
(NSW))
- If the Commissioner or council believes that the lawyer is
reasonably
likely to be found guilty by the Tribunal of unsatisfactory
professional
conduct but not professional misconduct, the lawyer may instead
be
reprimanded, or the complaint dismissed, if the lawyer is
generally
competent and diligent in taking into account any other
substantiated
complaints made against her or him (Legal Profession Act 2004
(NSW)
s 540(1), 540(2))
c. Mediation
- Either the Legal Services Commissioner (the ‘Commissioner’) or
a
council may refer a consumer dispute to mediation (Legal
Profession
Act 2004 (NSW) s 515(2))
- A ‘consumer dispute’ is a dispute about conduct of a lawyer to
the
extent that it does not involve an issue of unsatisfactory
professional
conduct or professional misconduct (s 514 of the Legal
Profession Act
2004 (NSW))
-
- A client who is given a bill of costs may refer a costs
dispute about
that bill to the Commissioner or a council for mediation if the
amount
is less than the prescribed amount and no application has been
made
for the assessment of the whole or part of the bill (s 336(1),
336(4) of
the Legal Profession Act 2004 (NSW) (the prescribed amount
being
$10,000)
d. Review of council decision
- Where a council decides to dismiss a complaint, to simply
reprimand
the lawyer, or to omit from the allegations particularised
in
information before the Administrative Decisions Tribunal matter
that
was originally part of the complaint, the complainant may apply
to the
Legal Services Commissioner (the ‘Commissioner’) for a review of
the
decision (Legal Profession Act 2004 (NSW) s 543(1))
- Having conducted the review, the Commissioner may confirm
the
council’s decision, refer the matter to mediation, reinvestigate
the
complaint, investigate any part of the complaint omitted from
the
allegations in the information laid by the council, reprimand
the
lawyer, make a compensation order against the lawyer, or
institute
proceedings in the tribunal against the lawyer (s 545(1) of the
Legal
Profession Act 2004 (NSW))
e. Administrative Decisions Tribunal
- The Administrative Decisions Tribunal must conduct a hearing
into
any complaint in proceedings instituted before it by the Legal
Services
Commissioner (the ‘Commissioner’) or council (Legal Profession
Act
2004 (NSW) ss 551(1), 553)
- If it finds the lawyer guilty of professional misconduct
or
unsatisfactory professional conduct, it may make orders
including
striking off, suspension, fine, reprimand, payment of
compensation,
or cancellation of practising certificate (ss 562 and 571(2) of
the Legal
Profession Act 2004 (NSW))
- A decision of the Tribunal may be appealed to the Supreme
Court by
way of rehearing (s 729A(1), 729A(2) of the Legal Profession Act
2004
(NSW))
-
- No appeal lies against Tribunal decisions made on an
interlocutory
basis, with the parties’ consent, or as to costs, except with
the court’s
leave (s 729A(4) of the Legal Profession Act 2004 (NSW))
7. Discipline for Misconduct in the Course of Legal Practice
a. False or Misleading Statements or Impressions Made by
Lawyers
- Where it is proven that the lawyer knowingly misled a court,
such a
finding is one of dishonesty that strikes at the heart of the
judicial
process, and so it is not unusual for a lawyer against whom such
a
finding is made to be struck off from practice (Re Sawley)
- A finding of recklessness as opposed to knowledge, though,
may
influence the severity of the disciplinary sanction
(McElvenny)
- The case law evinces various examples of lawyers who have
knowingly
been parties to the presentation of false affidavits to the
court, and
almost invariably this has generated a striking off order
(Elman)
- To attempt to suborn a witness or bribe a participant in the
court
process is redolent of dishonesty and disregard for the curial
process,
and so amounts to professional misconduct ordinarily
establishing
unfitness to practice (Kennedy)
- The making of knowingly or recklessly false statements,
whether
written or oral, by a lawyer to third parties, such as other
lawyers or
even to a client, is prima facie evidence of misconduct
(Dennis)
- The case law emphasises the importance of being entirely frank
with
communications with the relevant professional or regulatory
body,
and its officers, and that corresponding so as to mislead that
body
may be misconduct (McNamara)
- The forgery of a document, whether for the purposes of
presenting it
to the court or a professional or regulatory body, or for any
other
purpose, is clearly misconduct, as it goes to the heart of a
lawyer’s
obligations (Stanoevski)
b. Fiduciary Breaches Made by Lawyers
-
- The fraudulent misappropriation of money received on behalf
of
another person (collectively termed ‘trust money’) is
clearly
professional misconduct (Moulton)
- Technical breaches of trust account requirements that involve
no
element of dishonesty, such as an isolated failure to pay
money
directly into a trust account or a failure to account, may not
justify
suspension or disbarment, although they may attract a
restriction on
the lawyer’s practising certificate and/or the fulfilment of
additional
educational requirements (Lee)
- A lawyer who borrows money from a client without the client’s
fully
informed consent commits a fiduciary breach, and is likely to
commit
professional misconduct in so doing (Harvey)
- As part of the fiduciary proscriptions, a lawyer must avoid a
situation
where he or she concurrently represents more than one client
with
conflicting interests. Such conflicting interests are capable
of
generating professional disciplinary consequences (Zaicos)
c. Misconduct in Relation to Fee Charging by Lawyers
- Independent of statutory prescriptions, the courts have
recognised
that the charging of grossly excessive costs by a lawyer may
amount
to professional misconduct (Re Veron)
- Charging of excessive legal costs in connection with the
practice of
law is capable of being unsatisfactory professional conduct
or
professional misconduct (Legal Profession Act 2004 (NSW) s
466(1)(b))
- Whether or not overcharging amounts to professional misconduct
or
unsatisfactory professional conduct, and the appropriate
disciplinary
response, depends largely on the degree and frequency of the
overcharging (Lardner)
- In each case, the relevant inquiry is whether the lawyer has
charged
fees grossly exceeding those that would be charged by lawyers
of
good repute and competency (Re Melvey)
- Factors that inform this inquiry include the amount at which
the costs
in question was or would be likely be assessed, the difficulty
of the
-
case, the novelty or complexity of the legal issues, the
experience of
the lawyer, the quality of his or her work, the amount of time
spent
on the matter; the responsibility involved, the amount or value
of the
subject matter in issue, and any costs agreement that has
been
entered into (D’Alessandro)
- Overcharging is aggravated where clients are heavily dependent
on
the lawyer, whether because of their knowledge and/or
circumstances (Roche)
- That a costs agreement is a ‘no win no fee’ agreement has
the
capacity, however, to raise the level of fee at which the
epithet ‘gross
overcharging’ attaches (Roche)
d. Neglect or Delay by Lawyers
- Omissions by a lawyer to properly supervise his or her
employees or,
in some cases, be vigilant to the activities of his or her
partners, may
amount to professional misconduct or unsatisfactory
professional
conduct (Re Johnston)
- A court or disciplinary tribunal will be inclined towards a
more severe
disciplinary order where a principal attempts to shift the blame
for his
or her own failure to properly supervise an employee, and/or
where
the lack of supervision has occurred against a history of
previous
unprofessional conduct (Tunn)
- A single instance of delay will not ordinarily justify
suspension or
striking off (Mellifont)
- Gross neglect and delay, particularly involving a pattern of
gross
neglect and delay, can constitute professional misconduct as it
brings
the profession into serious disrepute (Re Moseley)
- A failure to respond (whether within a reasonable time or at
all), or to
adequately respond, to inquiries from the relevant professional
or
regulatory body is clearly unprofessional and capable of
attracting a
disciplinary sanction (Veghelyi)
e. Other Forms of Misconduct in the Course of Legal Practice
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i. Breach of undertaking
Lawyer’s failure to fulfil an undertaking given to
another lawyer may form the basis for disciplinary
proceedings, and may, depending on the
circumstances, amount to either professional
misconduct or unsatisfactory professional conduct
(Gregory)
ii. Misconduct in dealings affecting other lawyers or third
parties
Actively exploiting an opposing lawyer’s error
Breaching the ‘no contact’ rule
The use of offensive language in communications
Making unsubstantiated complaints against other
lawyers
Engaging in discrimination, harassment or workplace bullying
iii. Disrespect to the court or its authority
Disrespect to the court can amount to professional
misconduct or unsatisfactory professional conduct
(Costello)
iv. Making unsupported allegations
It is a breach of a lawyer’s duty to the court to make
unsupported personal attacks or allegations against
another person in the course of practice
Such behaviour may amount to unsatisfactory
professional conduct or professional misconduct
(Clyne)
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v. Breach of client confidentiality
The importance of confidentiality to the lawyer-client
relationship dictates that an unauthorised disclosure of
information derived in the course of a retainer can
generate professional disciplinary consequences (Legal
Services Commissioner)
8. Discipline for Misconduct Outside the Course of Legal
Practice
a. Conviction of Lawyers for Offence in a Personal Capacity
- Merely because the general law and the legal profession
legislation
speaks of ‘professional misconduct’ does not mean that the
conduct
of a lawyer outside his or her legal practice cannot impact on
his or
her professional status, a point recognised both pursuant to
the
court’s inherent jurisdiction to discipline lawyers (Re Davis)
and by the
definition of ‘professional misconduct’ in the legal
profession
legislation (Legal Profession Act 2004 (NSW) s 497)
- Conduct by a lawyer that is unrelated to his or her
professional
practice can amount to professional misconduct if it manifests
the
presence or absence of qualities that are incompatible with,
or
essential for, the conduct of practice (Cummins)
- Because the inquiry in a disciplinary matter differs from that
in a
criminal trial, that a lawyer has already been punished
criminally for
the offence does not obviate disciplinary proceedings, although
it may
impact on the appropriate penalty (Re a Practitioner)
- In disciplining a lawyer who has already been the subject of
a
conviction for the events that have prompted the
disciplinary
proceedings, the court is concerned with what the proven acts of
the
lawyer reveal about his or her fitness and propriety to remain
a
member of the profession (Ziems)
- A conviction involving dishonesty is identified as capable of
being
unsatisfactory professional conduct or professional misconduct
(Legal
Profession Act 2004 (NSW) s 498(1)(c))
-
- A lawyer who is convicted for dishonesty outside his or her
practice is
unlikely to escape a severe disciplinary response (such as
striking off
or suspension) (Re a Practitioner)
- Conviction for a tax offence is capable of being
unsatisfactory
professional conduct or professional misconduct (Legal
Profession Act
2004 (NSW) s 498(1)(c))
- Convictions for tax offences do not always render the lawyer
unfit to
practice, as the circumstances surrounding the events giving
rise to
the convictions, including the lawyer’s attitude to his or her
tax
obligations generally, are relevant to the disciplinary response
(Cain)
- Lawyers who have been convicted of drug trafficking almost
invariably
in so doing display a lack of fitness to practise, and so are
ordinarily
struck off (Hill)
- Where the conviction arises not out of trafficking, but
personal use
and possession, the disciplinary response may be a more lenient
one,
depending on the circumstances and on the court or
tribunal’s
satisfaction that the addiction has been addressed, via
conditions on
the lawyer’s practising certificate (Re Quick)
- In circumstances where the court or tribunal is satisfied that
the drug
possession or use does not represent a sustained course of
conduct,
and the risk of recurrence has been adequately addressed, there
may
be no need to impose conditions on the lawyer’s practice,
although
this does not prejudice the need for a disciplinary response
(Bull)
- As a general principle, a conviction for a serious sex
offence, and
certainly multiple convictions for sex offences, dictate that
the
lawyer-defendant is unfit to practise law (McKerlie)
- Sexual offending against children, in particular, is
inconsistent with a
continued entitlement to practise law, such that even
relatively
‘minor’ offences in this context are likely to generate a
striking off
order, although this is not necessarily always the case
(Rodda)
b. Personal Misconduct of Lawyers Not Sounding in a Criminal
Conviction
-
- Proven dishonesty in non-professional dealings, even if not
leading to
conviction in a criminal court, is likely to be viewed as
inconsistent
with the prerequisites expected of a lawyer, as it reflects a
lack of
appreciation for the honour of the profession and, as such,
ordinarily
dictates unfitness to practise (Bolton)
- A lawyer who knowingly gives false evidence, even though not
in the
course of legal practice, will be treated severely in a
disciplinary forum
(Maddocks)
- The position is otherwise where the misleading or false
statements
are not made knowingly but due to mistake or oversight (Law
Society
of Tasmania)
- A lawyer who repeatedly flouts his or her civic duties to pay
tax
reveals a lack of integrity and little respect for the law that
he or she
as a professional is sworn to uphold (Cummins)
- Lawyers whose failure to meet tax obligations is not driven by
an
attempt to favour their own financial interests ahead of their
civic
duty and/or are explainable by apathy and unforeseen
circumstance,
may avoid being struck off (Murphy)
- The conduct of a lawyer as or in becoming an insolvent
under
administration, or in becoming disqualified from managing or
being
involved in the management of any corporation under the
Corporations Act 2001 (Cth), is branded as capable of being
unsatisfactory professional conduct or professional misconduct
(Legal
Profession Act 2004 (NSW) s 498(1)(d), 498(1)(e))
- A failure to fulfil the terms of a person’s bankruptcy, which
may
require him or her to make contributions to the
trustee-in-bankruptcy
or a specific creditor (such as the Australian Taxation Office)
out of
income derived during the period of bankruptcy, may generate
a
disciplinary consequence (Legal Profession Act 2004 (NSW) s
498(1)(d), 498(1)(e))