Abdul-Karim v New South Wales Bar Association (LSD) NSWADTAP 4

[2004] NSWADTAP 4

Appeal Panel - Internal

CITATION:	Abdul-Karim v New South Wales Bar Association (LSD) NSWADTAP 4 [2004] NSWADTAP 4
PARTIES:	APPELLANT Michael Saadey Abdul-Karim RESPONDENT The Council of the New South Wales Bar Association
FILE NUMBER:	039067
HEARING DATES:	26/11/2003
SUBMISSIONS CLOSED:	12/17/2003
DATE OF DECISION:	02/17/2004
DECISION UNDER APPEAL:	New South Wales Bar Association v Abdul-Karim [2003] NSWADT 152, New South Wales Bar Association v Abdul-Karim [2003] NSWADT 205
BEFORE:	Nader J QC - ADCJ (Deputy President); Macfarlan R QC - Judicial Member; Bubniuk L - Member
CATCHWORDS:	no question of law identified - Professional Misconduct - prefer own interests of those of others
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	012009, 012033
DATE OF DECISION UNDER APPEAL:	09/03/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987
CASES CITED:	Wentworth v Rogers [2002] NSWSC 709 Smith v NSW Bar Association (1992) 176 CLR 256 Smits v Roach (2002) 55 NSWLR 166
REPRESENTATION:	APPELLANT R Wilson, barrister RESPONDENT P Mahoney, barrister
ORDERS:	1. Appeal dismissed; 2. Order that the Appellant pay the Respondent’s costs of the appeal

1 This is an appeal from decisions of the Tribunal dated 25 June 2003 and 3 September 2003.

2 In the first of these decisions, the Tribunal made findings that the Barrister had been guilty of professional misconduct and unsatisfactory professional conduct. The second decision dealt with penalty. The conclusion reached by the Tribunal was that the Barrister’s name should be removed from the Roll of Barristers.

3 The background to the proceedings before the Tribunal was described by the Tribunal in paragraphs 1 to 17 of its decision. These paragraphs are set out below.

“1 Michael Saadey Abdul-Karim (the Barrister) was admitted to practice as a barrister on 2 August 1991. He commenced practice as such on 26 August 1991. He obtained an unrestricted Practising Certificate on 8 April 1994 and appears to have practised as such since that time.

2 On about 20 January 1995 Mr. Anthony Hamod (Hamod) was arrested and charged by the police and taken into custody on two counts of obtaining a benefit by deception and possessing a false instrument namely a Union Bank of Switzerland Certificate for platinum bars. On 24 August 1995 Hamod was released from custody on bail. Hamod was at all relevant times the principal person involved in a company called Hamock Investments Pty. Limited (Hamock), which company had substantial commercial interests which it was alleged had been materially damaged following Hamod's arrest and incarceration.

3 Prior to 17 October 1996 the Barrister became aware of the charges that had been levelled against Hamod and that Hamod and Hamock were intending to seek damages and compensation for malicious prosecution and false imprisonment.

4 The Barrister contacted Hamod and agreed to represent him and Hamock in both the criminal and proposed civil actions. There is a conflict in the evidence as to what was precisely discussed in relation to fees. The Tribunal shall return to this conflict later. Be that as it may, on 17 October 1996 a written costs agreement was entered into between the Barrister and Hamock, the detail of which the Tribunal will also return to. It is sufficient for present purposes to say that it expressly provided that the Barrister's usual hourly rate and court appearance charges would not apply and in substance that he was to be remunerated by 20% of the amount recovered in the proposed civil proceedings. The costs agreement, as is accepted by the Barrister, covered both the criminal and the civil proceedings.

5 As at 17 October 1996, Hamod was bankrupt. In January 1997 an application for nullification of the bankruptcy was filed. There is a dispute between the parties as to whether the Barrister on the return date of the application for nullification, namely 4 March 1997, demanded an up-front cash payment of $15,000.00 in order to continue acting for Hamod. There is also a dispute as to whether or not, and if so, to what extent, the Barrister's retainer was then terminated.

6 The next day, 5 March 1997, the Barrister and the representative of the DPP attended upon Magistrate Horler regarding the committal hearing.

7 On 10 March 1997, the committal hearing was due to commence before Magistrate Horler and there was discussion before the Magistrate about the termination of the Barrister's retainer. The matter was stood down in the list for a short period of time and there was discussion between the Barrister, Hamod and the solicitor, Mr. McEncroe, as a result of which and on certain conditions, Hamod gave instructions to the Barrister and Mr. McEncroe to continue to act for him. The matter was stood over until the 17 March 1997 when the committal hearing began. The case was adjourned part-heard on 27 March 1997.

8 On 3 June 1997, the prosecution case concluded and the Magistrate gave certain indications about whether or not she would find a prima facie case and if so, on what grounds. It is alleged that on this day the Barrister pressured Hamod to plead guilty to a lesser charge. The allegation is strenuously denied by the Barrister.

9 On 4 June 1997, Hamod allegedly terminated the Barrister's retainer. There is a dispute about whether this occurred.

10 The committal proceedings were stood over until 13 August 1997. Between 5 June 1997 and 2 July 1997 the Barrister wrote to Hamod several letters about the future conduct of the proceedings. In one of the letters the Barrister sought payment of his costs in the sum of $56,500.00.

11 On 13 August 1997, Hamod had obtained legal aid and Mr. P. Finch of Counsel appeared for him. The committal hearing eventually concluded on 28 March 1998, although there were a number of adjournments in the interim. A subpoena to produce documents dated 18 March 1998 and returnable 24 March 1998 was served on the Barrister. He did not attend in answer to the subpoena and he did not produce the documents.

12 On 3 April 1998, Magistrate Horler found the client not guilty and dismissed the charges and indicated that the matter was appropriate for an award of costs in Hamod's favour.

13 On 15 June, the costs application was heard by Magistrate Horler. Mr. Finch appeared on behalf of Hamod. The Barrister and Mr. McEncroe were in court and there is a dispute on the evidence as to what documents, if any, were handed to the Magistrate on that day for the purposes of quantification of Hamod's costs and, in particular, whether a bill of costs from the Barrister was so handed up. Ultimately, on 30 July, Magistrate Horler granted Hamod a certificate of costs in the sum of $98,489.00. There is an issue as to what sum, if any, was included in this certificate as representing the costs of the Barrister.

14 Between July 1998 and 28 October 1998, the Barrister corresponded with the NSW Attorney-General's Department seeking to obtain from it a cheque in payment of his fees.

15 On 11 November 1998, the Barrister forwarded a letter to Greg Walsh & Co, Solicitors, (who instructed Mr. Finch) enclosing a copy of his undated bill in itemised form in the total sum of $52,690.00 ” (note paragraph 10 amount is $56,500) “allegedly representing his costs for appearing in the committal proceedings. On the same day, a copy of this letter and bill was faxed by Greg Walsh & Co to Hamod. It is said by Hamod that this was the first time he had received any itemised bill of costs from the Barrister.

16 On 8 December 1998, Hamod personally attended the Attorney-General's Department and picked up his cheque for costs. Upon learning this, the Barrister gave instructions for proceedings to be commenced in the Supreme Court in the Equity Division restraining the client dealing with the money. On 10 February 1999, Justice Young dismissed the proceedings and in the course of doing so made observations concerning the legality and enforceability of the costs agreement of 17 October 1996 and otherwise the Barrister's entitlement to the sum of $52,690.00 claimed by him.

17 On 24 March 1999, the Barrister filed a summons for the assessment of his costs in the criminal proceedings and in certain other matters which he had handled for Hamod. On 20 April 1999 the Supreme Court referred the application to Mr. P. Brewster, Costs Assessor.”

4 The grounds contained in the two Informations filed in relation to the Barrister are dealt with below. Where applicable, the relevant grounds of appeal are discussed.

PROCEEDINGS 012009

Ground 1 - The Costs Agreement

5 In paragraphs 57 to 62 of its first decision, the Tribunal made serious findings against the Barrister including that the written Costs Agreement of 17 October 1996 was illegal and that the Barrister was aware of the relevant legislative prohibition at the time the Agreement was made. It also found that there was present “an element of unfair dealing and avarice” on the part of the Barrister.

6 These findings are not the subject of any ground of appeal.

Ground 2 - Failure to disclose

7 In paragraphs 63 to 66 of its first decision, the Tribunal found breaches by the Barrister of obligations of disclosure and of the Legal Profession Act1987 (NSW) and that these constituted unsatisfactory professional conduct. There is no ground of appeal relating to them.

Ground 3 - False and misleading affidavit sworn in Supreme Court proceedings

8 In paragraphs 67 and 68, the Tribunal found that the relevant affidavit was false and misleading and that the Barrister’s conduct amounted to professional misconduct.

9 Ground 1 of the Amended Notice of Appeal challenges these findings. The submissions filed in support of it dealt with the four respects in which the affidavit was found to be false and misleading:

a) Assertion as to continuity of retainer

There was evidence that the Barrister’s retainer was terminated on 4 March 1997 although reinstated on or about 10 March 1997 (see paragraph 92 of the Tribunal’s decision). Accordingly, there was evidence before the Tribunal capable of supporting the Tribunal’s finding that the complaint was made good. There was therefore no error of law by the Tribunal.

b) Rendering of fees

In our view, it was open to the Tribunal to find that the reference made by the Barrister in his affidavit to the rendering of fees was misleading in light of the omission of reference to the matters referred to in the second portion of paragraph 22 of the Tribunal’s decision. Again, there was therefore no error of law.

c) The progress of the committal proceedings

It was open to the Tribunal to take the view that what the Barrister said in his affidavit about the state of the committal proceedings at the close of the prosecution’s evidence was misleading in light of the Barrister’s failure to refer to Magistrate Horler’s proposed finding of a prima facie case on one ground (see the third portion of paragraph 22 of the Tribunal’s decision). Again, there was no error of law.

d) Appearance on 15 June 1998

It was open to the Tribunal to take the view that the Barrister’s affidavit was misleading in not making clear the capacity in which the Barrister attended court on 15 June 1998 (see the fourth portion of paragraph 22 of the Tribunal’s decision).

10 In our view, the Barrister has accordingly not shown any error of law in respect of the findings concerning his affidavit which was filed in the Equity Division. Furthermore, having examined the findings and also the submissions that have been made by the Barrister on appeal, we are not persuaded that there is any reason to grant leave under section 113(2) of the Administrative Decisions Tribunal Act 1997 (NSW) to extend the appeal to a review of the merits of the findings.

Ground 4 – Inappropriate commencement of Supreme Court proceedings

11 It was open to the Tribunal to take the view that in light of the existence of the written Costs Agreement and the fact that circumstances had not occurred which would have entitled the Barrister to payment of fees under that Agreement, the Barrister was not entitled to render any bill to the client, let alone commence proceedings for recovery of the amount in the bill.

12 It is no answer to the Tribunal’s findings to say that Young J in the Equity proceedings contemplated the possibility of a future quantum meruit claim. The proceedings before Young J could not, and were not sought to, be justified on this basis. The Barrister’s own counsel recognized at the hearing before Young J that a quantum meruit claim could only be pursued after acceptance by the client or assessment by a Cost Assessor of a bill in taxable form (Judgment of Young J, para 22 and Legal Profession Act 1987 sections 182 and 199 and following). This had not occurred.

13 Again, we do not consider that the Tribunal made any error of law.

Ground 5 - False and misleading representations to Mr Brewster

14 The Tribunal’s findings of professional misconduct in respect of this ground are challenged by ground 3 of the Amended Notice of Appeal.

15 In our opinion, there was evidence capable of justifying the Tribunal’s findings that what was put to Mr Brewster was false or misleading in three respects.

16 First, it was open to the Tribunal to find that the letter of 20 June 1997 was effectively a demand for payment and not what could fairly be understood as a bill of costs. Secondly, it was open to the Tribunal to take the view that the reference to the written Costs Agreement was misleading when no mention was made of the findings of Young J concerning its unenforceability. Thirdly, the Tribunal found as a matter of fact and in a way that was open on the evidence that “If hourly rates were discussed between the Barrister and Hamod such discussion was not in terms of the Barrister being able to charge” the hourly rates referred to (para 75). This finding formed a proper basis for the conclusion that the Barrister’s statement to the Costs Assessor that “at the time I accepted the brief verbal disclosures regarding the hourly and daily rates were made” was false and misleading.

17 Ground 4 of the Amended Notice of Appeal challenges the finding of the Tribunal made in paragraph 73 of its decision that the application by the Barrister for assessment of costs ought never to have been made.

18 It is apparent from the last sentence of paragraph 73 of the decision that the gravamen of the finding was that the application was made in circumstances where the findings of Young J were not disclosed to the Cost Assessor. The view that this was professional misconduct was open on the evidence. The fact that it is conceivable that the Barrister might have been able to make a claim on a quantum meruit basis (Wentworth v Rogers [2002] NSWSC 709 but compare Smits v Roach (2002) 55 NSWLR 166) does not remove the impropriety of the Barrister applying as he did without informing the Assessor of the findings of Young J.

Ground 6 - The claim for the lien

19 This is the subject of ground 4 of the Amended Notice of Appeal.

20 Despite repeated requests, the Barrister refused, upon the basis that the Barrister’s fees had not been paid, to hand over documents to which the client was otherwise entitled. However, the Barrister had entered into a written Costs Agreement with Hamock which covered all work done for Hamod and Hamock and he knew that events had not occurred which would have entitled him to payment under that Agreement. By that Agreement, the Barrister specifically agreed that his “usual hourly rate and court appearance charges” would not apply.

21 The fact that two years later, the judgment of Young J raised the possibility that the Barrister might have had a claim on a quantum meruit in light of the unenforceability of the written Costs Agreement does not affect the impropriety of what the Barrister did in 1997. It was not a case of the Barrister in 1997 recognising the unenforceability of the Costs Agreement and asserting a claim to a quantum meruit but, rather, of him taking advantage of an opportunity to attempt to extract fees to which he must have known he was not entitled. The basis of the Barrister’s claim to a lien was only, as the Tribunal put it, that “he thought that the client would in due course win the civil case”. This basis for claiming the lien was quite unjustified.

22 The Tribunal’s finding of professional misconduct was accordingly open to it.

Ground 7 - Demand for cash

23 The Tribunal found established the complaint that the Barrister had demanded from Hamod a cash payment for the continuation of his representation in both the criminal and bankruptcy proceedings. This conduct occurred in the face of the Barrister’s knowledge that he had agreed to represent Hamod on the fee basis referred to in the written Costs Agreement and that that Agreement did not entitle him to payment of $15,000, or any other sum, at that time.

24 The determination of this ground turned largely on findings of credit concerning the evidence of the Barrister and of Hamod.

25 There is no specific ground of appeal relating to this finding as to the demand for cash although the general complaint referred to in Ground 7 of the Amended Notice of Appeal as to the credit issue extends to the finding. That complaint will be referred to below.

Ground 8 - Refusal to respond to a subpoena

26 This is the subject of ground 10 in the Amended Notice of Appeal.

27 In paragraph 84 of its decision, the Tribunal found that the Barrister’s conduct as described in paragraph 83 constituted professional misconduct. That view was in our opinion one which was open to the Tribunal. The matters put on behalf of the Barrister in paragraphs 54 and 55 of his written submissions dated 21 October 2003 did not justify the Barrister engaging in the misleading conduct found against him.

PROCEEDINGS 0122033

Ground 1 - Misleading correspondence

28 The findings under this head are challenged in ground 6 of the Amended Notice of Appeal.

29 The Tribunal found that the Barrister should have disclosed to the Attorney-General’s Department that there was a dispute as to payment of his fees and that no memorandum had been rendered to the client.

30 In the submissions filed on his behalf on appeal, the Barrister referred to various letters from him to the Attorney-General’s Department and to the Clerk of the Local Court (paras 35 to 38 of submissions dated 21 October 2003). Whilst those letters do disclose that there had been a “questioning” of the Barrister’s fees and an unwillingness to pay them, they did not disclose that “Hamod was contending that the Barrister was not entitled to charge any fees because of the terms of the written Costs Agreement”. This was a highly material matter.

31 It was contended on behalf of the Barrister on appeal that it was “available to the Tribunal to find that the Appellant assumed prior to 11 November 1997 that Hamod had received a copy of his memorandum of fees” (para 40 of submissions dated 21 October 2003). However, it is not, and could not, be contended that only one possible finding in this respect was open to the Tribunal. In these circumstances, there was no error of law on the part of the Tribunal in concluding that the Barrister was guilty of unsatisfactory professional conduct in not disclosing that no memorandum had been rendered to the client before 11 November 1998.

Grounds 2, 3, 4 and 5 - Appearing when retainer had been terminated, appearance on the costs argument, inducements for a possible plea and conflict of interest

32 The Tribunal found that the first of these matters constituted unsatisfactory professional conduct, that there was neither professional misconduct nor unsatisfactory professional conduct in respect of the second and that there was professional misconduct by the Barrister in respect of the third and fourth.

33 There are no specific grounds of the Notice of Appeal which challenge such adverse findings as were made in respect of these matters.

34 However, Grounds 7, 8 and 9 of the Amended Notice of Appeal which are dealt with below are of a general nature and constitute indirect challenges.

Amended Notice of Appeal Ground 7

35 In the written submissions filed on his behalf on appeal (paragraphs 45 and 46), the Barrister submits that there were two matters which underpinned the Tribunal’s findings on credit, that these have been shown to be misconceived and that it is therefore open to the Appeal Panel to reconsider the findings on credit.

36 The two underpinning matters referred to were the allegedly false and misleading affidavit sworn by the Barrister in the Equity proceedings and the allegedly false and misleading statements made by the Barrister to Mr Brewster, the Cost Assessor.

37 For the reasons we have given above, we however consider that the findings on these matters were open to the Tribunal and thus disclosed no error of law.

38 Accordingly, we do not accept the submission that two significant matters underpinning the Tribunal’s findings on credit have been shown to be without foundation.

39 Circumstances which would warrant reconsideration of the Tribunal’s findings as to credit accordingly do not exist.

40 In the context of the submissions referred to above, it was also submitted on behalf of the Barrister that the demand for $15,000 in cash found to have been made by the Barrister did not constitute professional misconduct. In our view, it was open to the Tribunal to take the view that it did constitute professional misconduct.

Amended Notice of Appeal Grounds 8 and 9 - refusal to admit affidavit material into evidence and failure to take into account other matters handled for Hamod by the Barrister

41 No specific submissions were put by the Barrister in support of these grounds of appeal. Accordingly, they are taken to have been not pursued.

CONCLUSIONS AS TO GROUNDS OF APPEAL

42 For the reasons we have given above, we do not consider that any error of law on the part of the Tribunal has been shown.

43 Furthermore, having considered the written and oral submissions made on behalf of the Barrister, we are not persuaded that this is a case in which leave should be granted for the appeal to extend to a review of the merits of the Tribunal’s decision.

GROUNDS OF APPEAL 3, 4, 6 AND 10

44 The Appeal Panel’s decision as to whether to grant leave to include these grounds in the Notice of Appeal was reserved at the hearing.

45 As we have considered those grounds on their merits and found that they are not made out, it is convenient to proceed upon the basis that leave to include them as grounds of appeal is granted.

PENALTY

46 The Barrister has contended that the Tribunal’s findings as to penalty appearing in its decision dated 3 September 2003 should be disturbed.

47 The findings made against the Barrister were however of a very serious character and were numerous. We do not consider that the Tribunal has made any error of law or that there is a basis for a grant of leave to review the merits of this aspect of the Tribunal’s decisions.

48 We should not be taken as necessarily endorsing the taking into account by the Tribunal in paragraph 12 of its decision of 3 September 2003 on penalty of the matters concerning credit referred to in that paragraph (see in relation to this issue: Smith v NSW Bar Association (1992) 176 CLR 256). In our view the conclusions on penalty reached by the Tribunal were fully justified even if the matters referred to in that paragraph are excluded from consideration.

LEAVE TO ADDUCE FURTHER EVIDENCE

49 At the hearing of this appeal, the Barrister sought leave to read affidavits of Mr Gross QC of 14 October and 26 November 2003, of the Barrister himself of 13 October 2003 and of Mr Ziad Naef of 10 October 2003.

50 We have considered the contents of the affidavits and reject the application for leave to read them upon the basis that, apart from any other ground that may be available, the affidavits, if read, would not make any difference to the outcome of the appeal.

DECISION

51 For the reasons above, the appeal of the Barrister is dismissed and he is ordered to pay the costs of the NSW Bar Association of the appeal.