Council of the Law Society of New South Wales v Farr

[2008] NSWADT 307

CITATION:	Council of the Law Society of New South Wales v Farr [2008] NSWADT 307 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Clare Catherine Mary Farr
FILE NUMBER:	072002
HEARING DATES:	15 August 2007, 26 - 27 November 2007
SUBMISSIONS CLOSED:	2 July 2008
DATE OF DECISION:	14 November 2008
BEFORE:	Karpin A - ADCJ (Deputy President); Molloy G - Judicial Member; Bubniuk L - Non-Judicial Member
CATCHWORDS:	Solicitor – Disciplinary Action
LEGISLATION CITED:	Family Provision Act 1982 Legal Profession Act 1987 Legal Profession Act 2004
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Allinson v General Council of Medical Education and Registration [1840] 1 QB 750Re B [1981]2 NSWLR 327 Coe v NSW Bar Association [2000] NSWCA 13 Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563 In Re B (Children) (Fc) Asppellate Committee House of Lords [2008] UKHL 35
REPRESENTATION:	APPLICANT L Pierotti, solicitor RESPONDENT C Bolger, barrister
ORDERS:	1. The Tribunal finds that the respondent is guilty of professional misconduct in respect of each of the grounds of complaint A to E inclusive, with the exception of Biv 2. The matter is stood over to a directions hearing on 1 December 2008 at 9.30am to fix a date for further hearing and submissions on dispositive orders.

1 By Application filed 24 January 2004 the applicant, pursuant to section 551 Legal Profession Act 2004 [“LPA 2004”], seeks orders that the respondent’s name be removed from the Roll; that she pay the applicant’s costs of these proceedings, and such other order as to the Tribunal seems fit.

2 The applicant relies upon 5 counts of asserted professional misconduct.

3 A. ESTATE OF THE LATE GEORGE DANAHER

In this matter it is alleged that the respondent:

i. Failed to communicate.

ii. Failed to provide a document.

iii. Was guilty of gross delay in finalising the estate.

iv. Knowingly swore a false statutory declaration dated 6 February 2002.

v. Misled or attempted to mislead the Law Society in her statutory declaration dated 6 February 2002.

vi. Hindered, obstructed or delayed the Investigator by reason of her failure to respond to and attend to the matters raised in the Investigator’s letters dated 27 November 2003 and 20 January 2004 in breach of section 55 Legal Profession Act 1987. [“LPA 1987”].

4 B. EDWIN CUTHBERT HULME

In this matter it is alleged that the respondent:

i. Failed to transfer the file upon receipt of a signed authority.

ii. Failed to account.

iii. Hindered obstructed or delayed the Investigator by reason of her failure to respond to and attend to the matters raised in the Investigator’s letters dated 27 November 2003 and 20 January 2004 in breach of section 55 Legal Profession Act 1987.

iv. By letter erroneously dated 21 February 2000 and sent to the Law Society by facsimile on 19 May 2004, she misled or attempted to mislead the Investigator in that she advised:

“I issued an account in October 2003 and a copy of the account was forwarded to Mr. Gibson at that time.”

v. Following termination of her retainer on or about 19 February 2003, she was guilty of gross delay in submitting her memorandum of costs and disbursements and accounting to her client.

In this matter one allegation and a particular were withdrawn by the applicant at the commencement of the hearing.

5 C. TRUST ACCOUNT

It is alleged that following her re-location to Western Australia on or about 26 January 2004 the respondent delayed finalising her Trust Account.

6 D. HAWKES SALE OF 40 CARRAMAR CRESCENT, MIRANDA

The applicant alleges that the respondent:

i. Failed to provide a detailed account and report on settlement.

ii. Failed to communicate.

iii. Failed to complete her retainer which constituted unethical conduct.

7 E. ATTEMPTING TO MISLEAD THE LAW SOCIETY

The applicant alleges that the respondent attempted to mislead the Law Society on the following dates:

i. By letter dated 21 February 2000, received by the Law Society on or about 19 May 2004.

ii. By email dated 28 July 2004.

8 The applicant tendered the Application for Original Decision together with the following affidavits, all of which material was admitted without objection:

Raymond John Collins sworn 22 January2007

Neville George Charlton sworn 23 August 2006

Rowley Stewart Cuddy sworn 22 November 2006

Christopher Henry Hawkes sworn 8 December 2006

Lynette Joy Clisdell sworn 18 December 2006

Leo Sydney Gore sworn 20 December 2006

John Stuart Gibson sworn 21 December 2006

Garry Jennings sworn 21 December 2006

Jean Sayer sworn 21 December 2006

Claire Catherine Farr sworn 15 December 1999

Together with documentary evidence comprised in exhibits F1, L, M and O.

None of the applicant’s witnesses were required for cross examination.

9 The respondent relied upon the following affidavits:

Claire Catherine Farr sworn 10 August and 28 August 2007

Phillip Watts sworn 7 August 2007

Teresa Amore sworn 8 August 2007

James Antonenas sworn 9 August 2007

David Leslie Crawford sworn 29 August 2007.

10 The respondent, Dr. Watts, Ms. Amore, Mr. Crawford and Mr. Antonenas gave oral evidence.

11 A. ESTATE OF THE LATE GEORGE DANAHER

12 George Danaher (“the deceased”) died on 19 December 1996.

13 By his will the deceased named Neville George Charlton (“Charlton”) and Robyn Gat Baker (“Baker”) as his Executors and Trustees. Baker renounced probate on 1 April 1997.

14 On or about 19 February 1997 the respondent was instructed by Charlton to act in relation to the estate. Probate was granted to Charlton on 9 December 1997.

15 The net assets of the estate were approximately $1.4 million.

16 The deceased’s daughter, Baker was a beneficiary under the will.

17 Rodney Wicks (“Wicks”) was retained by Baker to act for her in relation to the estate.

18 In 1998 Wicks commenced proceedings pursuant to the Family Provision Act 1982 on his client’s behalf. The respondent acted for Charlton in those proceedings.

19 On 26 March 1999 short minutes of orders were executed in resolution of those proceedings.

20 By letter dated 20 December 1999 the respondent forwarded a cheque to Wicks in the sum of $242,294.25 by way of interim distribution. That letter advised: “A separate letter will be sent outlining the calculation of this amount.” No such letter was forthcoming.

21 By letter dated 12 January 2000 Wicks wrote to the respondent seeking the promised letter from the respondent outlining the method of calculation of the interim distribution. That did not elicit a response.

22 By letters to the respondent dated 22 November and 18 December 2000, and 8 February 2001, Wicks sought details of the administration of the estate and a copy of the final orders made on or about 26 March 1999.

23 By letter dated 12 February 2001, the respondent advised, inter alia,

“As to the short minutes they have been sent to you separately by DX.”

24 By letter dated 20 March 2001, Wicks advised the respondent that the Short Minutes had not been received.

25 On 9 August 2001, the respondent wrote to Wicks advising that:

“The Estate accountants are presently calculating the final payout and preparing the final tax return and a final payout should occur in the next few weeks.”

26 Following enquiries from the Law Society, the respondent provided a statutory declaration dated 6 February 2002 which in part stated:

“2. To the best of my knowledge I believe I did supply a copy of the Orders filed to Aubrey Brown Partners as I recall searching for the orders in the very large files. That firm wrote and asked for a copy of the Orders and I unwittingly sent an unsealed copy of the orders, I was later requested to supply a sealed copy and arranged for my secretary to forward a copy. I cannot locate a duplicate of my letter sending the orders to Aubrey Brown Partners but I believe it was sent because at the time I was preparing to move office, I was busy with various hearings and my secretary was an invaluable help to me. If it has not been received I will arrange to send another copy immediately.

“…3. The accountants for the estate of Chris Macryannis & Co.

…

“ I agree that there have been unnecessary delays in the finalisation of this estate but say that completion is near. The final estate return has been prepared and I have an appointment with the accountant next week to go over the final return and division of the remaining (small) funds. I regret having the delays and will apologise to Aubrey Brown Partners.”

27 The Orders recording the agreement of 26 March 1999 were finally entered by the Supreme Court on 20 February 2002, a delay of almost 3 years.

28 The respondent admits that as at 6 February 2002, she did not have an appointment with the accountants.

29 The unchallenged evidence of the accountant having carriage of the matter, Garry Jennings, in his affidavit sworn 21 December 2006, is that he did not have an appointment with the respondent at any time during 2002. Nor was he ever instructed by the respondent to calculate any final tax return or division of the funds remaining in the Danaher Estate. [Ex.”J”].

30 On 12 June 2002, the accountants, Chris MacRyannis & Associates wrote to the Law Society advising:

“Our role in the estate was to take instructions from the solicitor, summarise the income and expenditure from her files and prepare and lodge Income tax returns for Mr Danaher for the period 1/7/96 to 19/12/96 and for the estate for the periods 19/12/96 to 30/6/97, for the years ended 30th June 1998 and 30th June 1999 and for the period 01/070/99 to 12/12/99.

“We were also asked to calculate interim accounts to be distributed to the beneficiaries in accordance with proportions supplied by Mrs. Farr.

“This work was finalised on 26th September, 2000 when we forwarded notices of assessment for each of the above returns to Mrs. C. Farr.”

31 On 17 July 2003, pursuant to the provisions of section 55 LPA1987, the Council of the Law Society of New South Wales, appointed Rowley Stuart Cuddy (“the Investigator”), to investigate the respondent’s affairs.

32 As at 19 August 2003, the respondent had not prepared and reconciled estate accounts; finalised the payment of tax and costs, nor made a final distribution of the estate.

33 In October 2003 the respondent received income tax assessments from the estate accountants for the years 2001,2002, and 2003. Pursuant to those assessments, tax in the sum of $608.00 was required to be paid. As at April 2004, that payment had not been made by the respondent.

34 On 27 November 2003 the Investigator wrote to the respondent noting, inter alia:

“You have been served with my report in this matter.

In the report there were various matters which had not been finalised and I draw these to your attention:-

1. Estate Danaher…copies of the estate accounts and tax returns, and your costing and final distributions calculations should be provided to me.

“It would be in your personal best interest to have these matters resolved as soon as possible so that I can publish a further report before the matter is considered by the Professional Conduct Committee or, if it resolves to refer you, before the reference.

“Please give me an up to date report on these outstanding issues.”

35 On 20 January 2004, the Investigator again wrote to the respondent:

“On 27 November 2003 I wrote to you reminding you that there were four matters requiring attention by you as identified in my first substantial report.

…I have received no response.

“I attach a copy of my earlier letter. You should be aware of the following:-

“3. Under the section of the LPA under which I was appointed, you are obliged to assist the investigation – subsection 55(6) provides that failure to provide information or hindering obstructing or delaying and (sic) investigation can be contravention of the Act and be professional misconduct.

I will permit a further 21 days for you to attend to the matters raised in the attached letter. If that is not done I will furnish a further report alleging a breach of section 55 of the Act.

Please in your own interests finalise or at least explain the outstanding issues.”

36 On 19 May 2004 the respondent faxed a letter, bearing date 21 February 2000, to the Investigator, which contained the following:

“I understand from Mr. Jennings that he has discussed the matter with you. I… have always found him to be extremely competent and good at complex work, albeit slow. I have asked Mr. Jennings how the reconciliation was progressing and we differ in what was expected of him. He informed me that he wasn’t preparing the statement and that I hadn’t asked him to do it. This is not the case as I recall ordering the work to be done and I had only just sent him bank statements so he could complete the work. It seemed an inexpensive way out of my dilemma.

“Mr. Jennings has done returns for the past several years for the estate and last year I asked him to prepare a reconciliation of monies received by way of income, capital and expenses in order to be able to show the executor. We discussed the concept of a reconciliation…he didn’t have the time to prepare it…and it would be hugely expensive. We discussed…having a shortened form prepared…that would costs in the vicinity of $800 and I asked him to organise this to be done poste haste. Today I spoke with Mr. Jennings and his recollection of our conversation differed and he didn’t think he had to prepare such a report.

“As per your recent request I have sent you a cheque for the balance of monies held in my trust account and I confirm that all tax has been paid.”

37 By her amended reply filed on 15 August 2007, the respondent admitted that she was guilty of professional misconduct in respect of the following:

A. Estate of the Late George Danaher:

i. Failure to communicate.

ii. Failure to provide document

iii. Gross delay

iv. Admitted swearing statutory declaration on 6 February 2002 but denied she did so knowing it was false.

v. Admitted the information in the statutory declaration was misleading.

vi. Admitted hindering, obstructing or delaying the Investigator.

38 In respect to allegations i-iii, in her affidavit sworn 10 August 2007, the respondent acknowledges that she caused delays in the finalisation of the estate and did not respond promptly or “in some cases at all to the letters and telephone messages from Aubrey Brown Partners. I found it difficult to confront the problems.”

39 In the same affidavit the respondent admits in relation to allegation vi. that by doing nothing she “…exacerbated the problem and caused more delay, frustration and inconvenience to my client and the beneficiaries. This was the wrong approach and I apologise and am sorry for my failure to act.” She expresses embarrassment about her conduct and does not seek to make excuses concerning her failure to respond.

40 In relation to allegation ii: The respondent in her evidence conceded that in response to a request from Aubrey Brown & Partners for a copy of the orders, she sent an unsealed copy of short minutes of orders. Further, that at the time of her statutory declaration of 6 February 2002 a sealed copy of those orders had still not been obtained from the Supreme Court despite her assertion that “…to the best of my knowledge I believe I did supply a copy of the Orders to Aubrey Brown Partners as I recall searching for the orders in the very large files. …I unwittingly sent an unsealed copy…I was later requested to supply a sealed copy and arranged for my secretary to send to forward a copy. I cannot locate a duplicate of my letter sending the orders to Aubrey Brown Partners.”

41 In evidence the respondent conceded that the orders were entered on 20 February 2002, a fortnight after she swore that she had sent a sealed copy of the orders to Aubrey Brown & Partners.

42 The respondent in evidence agreed with the proposition that:

“Q. So your answer to the complaint is I thought I sent the sealed orders and what I thought sealed orders meant was the orders that had been handed up. Is that a fair summary?

A. That’s right, yes, that’s a fair summary.”

43 In evidence the respondent agreed she had never sent the sealed orders, and there had been a delay of “…a couple of years.” in entering those orders.

44 The respondent’s affidavit evidence in relation to allegation iv above is:

“I admit that I swore a statutory declaration on 6 February 2002 but deny that I did so knowing it was false. I admit that at the time of swearing the statutory declaration I had not made an appointment with the estate accountant to go over the final return and the division of the remaining funds. When the statutory declaration was drafted I discussed making these arrangements and it was my intention to make an appointment with the estate accountant. The statutory declaration was provided to me about 1 week after I gave instructions for the drafting of same. I did not properly read the document before swearing it. I was careless in not properly reviewing the statutory declaration before swearing it and I admit that it contained false information.”

45 As to ground v the respondent in her reply said: “I admit that the information in the statutory declaration was misleading and I refer to my reply set out…above.”

46 In her affidavit sworn 10 August 2007, the respondent says:

“I accept and admit the matters of fact and law raised in the Application with respect to this matter.” [Ex.2 paragraph 31.]

47 Her explanation concerning the misleading statutory declaration is to the effect that the document was dictated by her solicitor whilst she was present in his office; she received the statutory declaration approximately a week later, and did not check it for accuracy before signing it.

48 In evidence before the Tribunal, the respondent admitted that at the time of swearing the statutory declaration she knew that she had not made an appointment with Mr. Jennings. She was asked:

“Q. So you deliberately declared a declaration saying to the effect you’d done something when you hadn’t done it?

A. Yes, I…”

[T1.63.49]

49 It was put to the respondent that this was not a mistake:

“Q What I am putting to you is there was never any mistake, you did it deliberately. It’s as simple as that…Your evidence is ‘I hadn’t made the appointment, I knew I hadn’t made the appointment, I declared it.’ That’s not a mistake is it?

A. Well, I suppose when you put it that way, no, it’s not a mistake.”

50 In her amended Reply the respondent denied that the statutory declaration of 6 February 2002 “was knowingly false”. However, in evidence she conceded that at the time she knew that she had not done the things she alleged she had.

51 In relation to the Danaher matter, whilst admitting the heads of complaint, the respondent, in her affidavit sworn 10 August 2007, and in her evidence, sought to explain her conduct on the grounds that she accepted a matter that was beyond her competence. She conceded in evidence: “…he deserved better…But at the time I didn’t know how to offload him.” She explained that she had done probate matters previously that were simpler and did not know how to deal with the complexities of this particular probate.

52 The respondent did not seek to excuse her failures to communicate, to respond to correspondence and telephone calls, or her delay in dealing with matters.

53 In relation to the failure to file the Short Minutes of Orders in the Danaher matter, the respondent admits that the delay was inexcusable. It is, however, submitted that the respondent “misunderstood” the requirement to have those orders formally taken out in the Court.

54 The Tribunal accepts, albeit with some surprise, that the respondent may have been ignorant about the processes required to obtain a sealed copy of the Short Minutes. That does not, however, excuse or explain her failure over a lengthy period, to inform herself adequately of the means whereby a sealed copy could be obtained, nor her continuing failure to attend to a simple procedural matter.

55 In evidence the respondent admitted that as at the time she swore the statutory declaration on 6 February 2002, she knew that she had not sent sealed copies of the Short Minutes of Orders to Aubrey Brown; she had not prepared the final return for the Danaher matter, and had not arranged an appointment with the estate accountants.

56 The respondent conceded that she had delayed the Investigator. She put forward as explanation in her affidavit and in evidence, that she was overcome by a combination of overwork, the demands occasioned by her family relocation to Perth, and her ignorance of the law in relation to some aspects of the matters she was handling.

57 The Tribunal accepts that at the time of giving instructions to her solicitor, it may well have been the respondent’s intention to make an appointment with Mr. Jennings. That, however, is not the issue. Both at the time she gave her instructions to her solicitor, and at the time of signing the statutory declaration, the respondent had not made an appointment with Mr. Jennings, and knew that she had not made an appointment.

58 The Tribunal finds that as at the time the respondent swore her statutory declaration on 6 February 2002, it was, to her knowledge, false to declare that she had made an appointment with Mr. Jennings.

59 The Tribunal is satisfied that each of the allegations in relation to the Estate of Danaher have been proved to the requisite standard.

60 B. EDWIN CUTHBERT HULME

61 By her reply filed 15 August 2007 the respondent admits that she:

i. Failed to transfer the file.

ii. Failed to account.

iii. Hindered, obstructed or delayed the investigator.

iv. The respondent denies that she misled or attempted to mislead the investigator by her letter of 19 May 2004 (incorrectly dated 20 February 2000), on the basis that she thought she had sent her final memorandum of costs and disbursements in the matter in October 2003. She admits that she failed to take reasonable steps “to check that the invoice dated September 2003 had been sent” as she failed to inquire from the intended recipient or to look at the file.

v. She admits gross delay.

62 In December 1999 Mr. Hulme instructed the respondent to act for him in 2 matters: a dispute with Robin Schaecken concerning a property at 20 Pinetree Avenue Mt. Pleasant (the “Mount Pleasant property”); and a dispute with Benjamin and Daniel Schaecken concerning a property at 59 Wrench St. Kingswood. (the “Kingswood property”).

63 The respondent commenced proceedings in the Supreme Court of NSW on behalf of Mr. Hulme.

64 In about July 2000 the Kingswood property was sold by B. and D. Schaecken.

65 On or about 26 July 2000 a portion of the proceeds of that sale in the sum of $118,048.31 was deposited in a Commonwealth Bank Cash Management Call Account, controlled by the respondent. [the “controlled money”].

66 On 14 February 2003, Mr. Hulme lodged a complaint with the Legal Services Commissioner concerning the respondent’s handling of the Supreme Court proceedings.

67 On or about 19 February 2003, Mr. Hulme executed an authority addressed to the respondent which was in the following terms:

“I authorise and direct you to send all documents, files, deeds and papers you are holding on my behalf to Mr. John S Gibson Solicitor, DX 8008 Penrith. .

In particular I want the file relating to the proceedings involving Ms. Schackenden (sic) sent as soon as possible.”

68 That authority was forwarded to the respondent under cover of a letter dated 19 February 2003 from Mr. Gibson advising the respondent that he had instructions from Mr. Hulme to take over conduct of his matters in accordance with the authority and requesting to know “how much money of Mr Hulme’s are you holding.”

69 On or about 31 July 2003 the Court file in relation to the above Supreme Court proceedings was closed and marked “inactive.”

70 By letter dated 27 November 2003, the Investigator wrote to the respondent pointing out that she had still not finalised matters identified in his report. In relation to the Hulme matters he wrote:

“ You should provide evidence that the file has been transferred to Mr. Gibson solicitor, that you have retired as trustee and that the controlled money has been paid to Mr Gibson.”

71 On 5 December 2003 the Law Society wrote to the respondent relevantly as follows:

“ Kindly provide evidence within 14 days of the date of this letter, that you have complied with point 3 of Mr. Cuddy’s letter and that the moneys have been paid to Mr Gibson and the file transferred.”

72 On 20 January 2004 the Investigator again wrote to the respondent:

“On 27 November 2003 I wrote to you reminding you that there were four matters requiring attention by you as identified in my first substantial report.

Since then I have received no response.

Please in your own interests finalise or at least explain the outstanding issues.”

73 On or about 26 January 2004, the respondent, with her family, relocated to Western Australia.

74 On 18 May 2004 the respondent sent an email to Mr Gibson in the following terms:

“late last year I wrote to you enclosing our account and regarding the matter generally. I have not heard anything more from you since you wrote to me enclosing an authority. I have not chased the matter up as I have been too busy.

As I believe that you continue to act for Mr. Hulme, and since it is my intention to hand over the file and the controlled money to you – I propose closing the controlled monies today and forwarding to you a cheque for the entire proceeds. If you wish I can directly deposit the funds into your trust account – please let me have those details.

I still need your undertaking as to the payment of my costs as set out in my earlier letter.

Please advise.”

75 On 19 May 2004, the respondent sent a facsimile letter (wrongly dated 21 February 2000) to the Investigator, informing him that she had sent an account to Mr. Gibson in October 2003; that she had heard nothing from him since receiving Mr. Hulme’s authority; and that she had sought an undertaking regarding her costs prior to handing over the file. She further advised that she had, on that day, closed the controlled money account and was holding a cheque for the entire proceeds which she would deposit to Mr. Gibson’s account as soon as he provided his bank details.

76 On 19 May 2004 Mr. Gibson sent an email to the respondent referring to the above email to the Investigator and advising that he had received no correspondence before or since his letter to her of 19 February 2003; the only accounts received were those addressed to Mr. Hulme, and that Mr. Hulme believed he had paid the respondent’s costs and counsels fees.

77 On the same date the respondent emailed Mr. Gibson advising that she was holding a cheque for “…around $128,000.” She asserted that monies paid by Mr. Hulme had been used for various purposes and “…that a very small amount was paid in fees. …Fees in the vicinity of $26k remain due.”

78 On or about 20 May 2004 the Kingswood Property dispute was settled. As a result, Mr. Hulme became entitled to the majority of the funds from the controlled money account.

79 On 20 May 2004 Mr. Gibson advised the respondent by email of the details of his Trust Account and that:

“We are not authorised to pay your costs out of these monies unless there is a costs agreement with an itemised account or your costs are assessed…we cannot see how a bill for $26,000.00 can be justified, especially since you allowed the application to be struck out.”

80 On the same date the respondent replied to Mr. Gibson, in part as follows:

“The monies which I hold are controlled monies – they are held on behalf of each of Daniel and Benjamin and Robbie Schaeken AND Mr. Hulme. They are not available for distribution. If I forward the funds to you you must hold them on this basis. Please confirm that you will do this.”

81 By letter dated 5 July 2004, the Investigator forwarded to Mr. Gibson a copy of the respondent’s bill of costs dated 8 September 2003.

82 On 26 October 2004 Mr. Gibson wrote to the Law Society complaining that Mr. Hulme was concerned about the controlled monies which were still held by the respondent; her bill of costs had been sent to him via Mr. Cuddy, and that his client did not agree to pay the amount claimed “…especially as some of the items were in effect social visits… and the rate per hour was not quoted.”

83 By letter dated 23 November 2004, from Mr. Gibson, Mr. Hulme complained that the respondent had failed to account. That complaint was made known to the respondent by letter dated 14 December 2004. She did not respond to that correspondence.

84 In response to an inquiry from the Trust Account Inspector, Mr. Gore, on 14 December 2004, the Commonwealth Bank advised that a cheque made payable to John Gibson in the sum of $128,246.26 had been drawn from the account of Kirkpatrick Farr & Associates, and that the cheque had not been presented.

85 The above cheque was not delivered to Mr. Gibson

86 The respondent did not renew her practising certificate after 1 July 2004.

87 On 21 January 2005, by Order of the Supreme Court of New South Wales, Jean Sayer was appointed Receiver [“the Receiver”] of all property of the respondent.

88 The Receiver paid the sum of $128,246.26 to Mr. Gibson.

89 In her affidavit sworn 10 August 207, the respondent admits the matters of fact and law contained in the application in relation to this head of complaint. She does not quibble with the allegations in grounds i-iii or v. In relation to ground iv, whilst admitting that the Investigator was misled by her statement on 19 May 2004 concerning the issue of her account, she says “…at the time I made the statement I did not do so intentionally.”

90 She says further:

“…I have no evidence to show that I did send the bill at that time other than my recollection that it was sent. Mr. Gibson says that the bill was not received.”

91 The Tribunal is satisfied that the respondent’s assertion to the Law Society on 19 May 2004 that she had sent an account to Mr. Gibson in October 2003, was, at best, careless and unprofessional. By her own admission she made no attempt to check her file or locate a copy of the account or covering letter. Nor did she make any attempt to contact Mr. Gibson to ascertain whether or not he had received the account. At the time of swearing her affidavit of 10 August 2007, she was still unable to produce the covering letter she alleged accompanied the memorandum of fees.

92 The respondent admits grounds 1,2,3 & 5. She denies ground 4.

93 The respondent asserts that she sent a memorandum of fees to Mr. Gibson in October 2003, 8 months after she received the signed authority from her client that she transfer the file to Mr. Gibson. The respondent is unable to produce any evidence of her asserted letter to Mr. Gibson sending him the memorandum of fees in October 2003. She relied upon her recollection that she did so.

94 The Tribunal accepts the unchallenged evidence that Mr. Gibson did not receive the respondent’s memorandum of fees allegedly sent in October 2003. However, the Tribunal cannot determine whether or not the memorandum of fees was prepared and forwarded at that time. In those circumstances, the respondent is entitled to the benefit of the doubt and the Tribunal makes no findings against the respondent on this ground.

95 The totality of the evidence including the respondent’s assertion to Mr. Gibson that her fees were “…in the vicinity of 26k” when seeking an undertaking from him as to payment of her costs, leaves the Tribunal in doubt as to whether a bill had been prepared or sent in October 2003. Whilst the Tribunal finds that Mr. Gibson did not receive an account at that time, it cannot be satisfied that no bill of costs had been prepared and forwarded by the respondent, despite the absence of supporting evidence.

96 The Tribunal finds that each of the allegations i-iii & v in relation to the Hulme matter have been proved to the requisite standard. Allegation iv not being proved to the satisfaction of the Tribunal, is dismissed.

97 C. TRUST ACCOUNT

98 On or about 26 January 2004 the respondent moved to Western Australia.

99 On 26 February 2004, she wrote to the Law Society advising of that move, and that she had transferred “…many of my current files to…Rowley and Ross including all deed packets. I have only current a few family law matters which I will continue with and otherwise will be recovering fees due to me for the other files. I am in the process of closing my trust account.”

100 By letter of 10 March 2004, the Law Society Investigator, Mr. Gore advised the respondent that he had been allocated to complete the final inspection of Kirkpatrick Farr & Associates, and sought the following information:

“1. The Firm’s last Accountant’s Report recorded that the firm held controlled money accounts. Please advise if any controlled money accounts are currently held by the firm and if not whether these funds were disbursed or transferred to another firm.

2. Has the firm’s trust account been closed. If not, please forward to me copies of the last bank reconciliation , bank statement and trial balance.”

101 By letter dated 16 March 2004, The Commonwealth Bank advised the Law Society that as at 13 March 2004, the subject trust account had a balance of $27,403.85.

102 By 10 May 2004 the balance stood at $64,607.69

103 As previously noted, the respondent did not hold a Practising Certificate after 1 July 2004.

104 Efforts by Mr. Gore to have the respondent contact him proved unsuccessful. Apart from leaving a message on the answering service of Kirkpatrick Farr & Associates, he wrote to her at all her known addresses including that which she had provided as her Western Australian address.

105 The respondent admits that she is guilty of delay in finalising her Trust account and that she is guilty of professional misconduct in this regard.

106 In her affidavit sworn 10 August 2007, the respondent denies any recollection of receiving a letter from Mr. Gore, and can recall only one telephone message which she says did not identify the caller beyond the name which meant nothing to her.

107 Mr. Gore’s evidence was unchallenged. The Tribunal is satisfied that he made every reasonable endeavour to contact the respondent as set out in his affidavit sworn 20 December 2006. The respondent assertion that she recalls only one telephone message is inexplicable in light of the efforts made by Mr. Gore to bring the matter to her attention. The possible explanations are that either the respondent’s recollection is seriously flawed; or she made no attempt to check the various avenues of mail or telephone messages at the relevant time; or that her evidence on this issue is unreliable.

108 In evidence the respondent’s explanation for the increased activity in her Trust account after February when she had assured the Law Society that she was closing it down, was the result of 2 conveyancing transactions, one for her husband and one for a friend. She conceded, however, that after her practising certificate expired on 30 June 2004, she still had not finalised and closed her trust account.

109 The respondent asserted that she could not close the account as there were 2 outstanding cheques and she could not locate a cheque book. Activity continued on the trust account up to 20 August 2004. [Ex “L”] It was ultimately finalised by the Receiver following her appointment on 21 January 2005. Thus any activity on the account between 30 June 2004 and 20 August 2004, was activity conducted by the respondent who did not hold a practising certificate after 30 June 2004.

110 The respondent admits the delay in finalising her Trust account.

111 It is not alleged that there was any dishonesty or impropriety in her dealings with her trust account.

112 The Tribunal accepts the evidence in relation to the activity in the trust account post 30 June 2004.

113 The Tribunal finds that the respondent adopted a casual, unprofessional attitude towards her responsibilities in relation to finalising her trust account as at 30 June 2004 after which date she no longer held a practicing certificate. The Tribunal finds that this exemplified an attitude that coloured the respondent’s activities in relation to the matters of complaint generally. The respondent’s evidence suggests that she had little concern about the finalisation of her trust account, and made little or no effort to comply with her obligations once she ceased to hold a practising certificate. Similarly the Tribunal is satisfied that the respondent made little effort to maintain contact with the Law Society regarding this issue.

114 The Tribunal is satisfied that the respondent delayed in finalising her trust account as alleged by the Law Society.

115 D. HAWKES SALE OF 40 CARRAMAR CRESCENT, MIRANDA

116 On or about 17 March 2003, Mr. Hawkes (“Hawkes”) entered into an Exclusive Agency agreement with an estate agent (“the agent”) for the sale of the above property (“the property”).

117 On or about 24 April 2003, Hawkes retained the respondent to act for him on the sale.

118 Contracts for sale in the sum of $457,000 were exchanged in April 2003.

119 A deposit of $41,142.50 was paid in two instalments to the agent as stakeholder. As at 24 April 2003 the full amount was held in the agent’s trust account.

120 Settlement of the sale occurred on 11 August 2003, on which day Hawkes telephoned the respondent but did not receive a reply.

121 On or about 13 August 2003 the agent received from the purchaser’s solicitor an order on the agent directing the agent to deduct from the deposit a sum of $700.00 to be paid to the purchasers for cleaning expenses, and to pay the balance to Hawkes.

122 By letter of the same date to the agent, the respondent confirmed those directions and concluded “…and forward to (sic) the balance of funds to us.”

123 By letter dated 13 August 2003, the agent forwarded to the respondent a cheque in favour of Hawkes in the sum of $27,875, being the balance of the deposit monies.

124 On 26,27,28, and 29 August, Hawkes telephoned the respondent. He did not receive a reply.

125 On 29 August 2003, the sum of $409,114.51 was deposited to the credit of Hawkes account with the Commonwealth Bank.

126 Between 4 and 12 September 2003, Hawkes telephoned the respondent on 5 occasions without eliciting a response.

127 On 22 October 2003 Hawkes wrote to the respondent seeking a “statement of fees”, and raising 7 questions to which he sought replies.

128 On 18 November 2003 Hawkes again wrote to the respondent informing her that on the advice of the Legal Service Commissioner he was asking for a statement of fees and for answers to other questions he had raised regarding financial matters relating to the transaction and seeking documentation to complete his records.

129 By letter dated 18 January 2004 the respondent wrote to Hawkes as follows:

“Our letter to you of 6th December 2003 has been returned by Australia Post.

“Please let us know if this letter reaches you.”

130 On 11 February 2004 Hawkes laid a complaint with the Legal Services Commissioner.

131 On or about 29 March 2004 an employee of the agent (“Clisdell”) telephoned the respondent’s office. She was advised the respondent was not available and left a message informing her that the balance of deposit cheque had not been presented, and requesting that the respondent return the call. She did not.

132 The following day Clisdell again telephoned the respondent’s office seeking a response from the respondent which was not forthcoming.

133 On 31 March Clisdell spoke to the respondent who advised that she would chase Hawkes for an address and that she was moving to Western Australia.

134 On 11 and 20 May, and 9 July 2004 Clisdell sent emails to the respondent asking for Hawkes’ address. No reply was received.

135 On 15 July 2004 Clisdell contacted Hawkes by telephone.

136 As at 22 July 2004 the agent’s letter to the solicitor dated 13 August 2003, had not been returned to the agent by Australia Post. As at that date the cheque in favour of Hawkes for the balance of purchase money had not been presented. A further cheque to Hawkes was drawn by the agent and paid directly to Hawkes.

137 The respondent admits each of the allegations, and that she is guilty of professional misconduct in her conduct of this matter.

138 The respondent admits “…the matters of fact and law raised in the Application with respect to this matter.” She admits that she failed to provide a detailed account and report on settlement; failed to communicate with the client; and failed to complete the retainer.

139 The respondent conceded that this was a “…normal matter it’s just that I got too busy at the time…I didn’t do something in a timely manner …it just became bigger than Ben Hur. There was nothing unusual about that transaction.”

140 The respondent said in evidence that Mr. Hawkes was “entitled to complain.” The Tribunal does not consider that it is necessary to resolve the dispute as to whether she meant that entitlement stemmed from her mismanagement of Mr. Hawkes affairs, or whether she was merely referring to his right to lay a complaint against her. The Tribunal is satisfied that Mr. Hawkes had both rights.

141 The respondent admits each of the grounds of complaint in this matter. Her explanation as previously stated is that she was too busy to give adequate attention to the matter, and once she realised she had a problem, she compounded it by failing to return her client’s telephone calls and failing to complete her retainer.

142 The Tribunal is satisfied that the respondent neglected to deal with the matter and her client in an ethical manner, and failed in her duty in respect of each of the grounds alleged. The Tribunal does not accept that her workload or family commitments provide an excuse for her failures in dealing appropriately with this matter.

143 The Tribunal is satisfied that the respondent failed to provide a detailed account and report on settlement; failed to communicate with the client; and failed to complete her retainer, which constituted unethical conduct.

144 E. ATTEMPTING TO MISLEAD LAW SOCIETY

145 By letter dated 5 April 2004, the Law Society wrote to the respondent enquiring, inter alia, as to the whereabouts of her files, deed packets, and certain accounting records.

146 By letter dated 21 February 2000, received by the Society on or about 19 May 2004 the respondent replied to that letter relevantly as follows:

“1. I do not have any current files.

2. The only files transferred to Rowley and Ross are:
a. …

…..

d. Foldi

….”

147 On 6 July 2004 the Society forwarded to the respondent an email regarding the Foldi matter as follows:

“I have dictated a letter to you regarding a fresh complaint by Ms Julie Foldi.

The lady seeks the return of all her papers previously left with you. Additionally she seeks the return of $490.32 paid for professional costs as nothing appears to have been done.

Messres Rowley & Ross have advised you that Ms Foldi needs to speak with you but to date you have not responded.

The matter will proceed as a formal investigation….”

148 On 28 July 2004 the respondent advised the Society by email that she had sent the Foldi file to Rowley & Ross “…but there isn’t much in it as I never had instructions to file any application or to liaise with Mr. (sic) Foldi.”

149 By letter dated 1 September 2004, Messrs Rowley & Ross advised the Society that emails had been sent to the respondent on 7, 12, 13, 17 and 24 May 2004, variously requesting the Foldi file, a response or information. No reply was forthcoming. On 27 August 2004 they again emailed the respondent seeking a response, which elicited an answer emailed the same day:

“I faxed off docs to you recently and pointed out that I hadn’t received any reply from the super company. What more do you want?”

On the same date Rowley & Ross advised the respondent by email that they had received nothing from her and requested that she resend the fax.

Later that day Rowley & Ross received a facsimile from the respondent which included a facsimile printout sheet dated 11 August 2004. Messrs. Rowley & Ross asserted, however, that they did not believe they had received any relevant documents at that time.

150 The respondent admits that her email of 28 July 2004 to the Society was misleading and provides this explanation:

“I admit that my email of 28 July 2004 to the Society was misleading. The file had not been sent when the email was sent. I intended to send the file at the time I sent the email. The file was not sent until 11 August 2004. When my letter of 19 May 2004 (incorrectly dated 21 February 2000) was sent to the Society it was my honest belief that I had given the Foldi file to Rowley and Ross before leaving Sydney. I did not check my files that I had moved from Perth to Sydney until later when I received the email from the Society dated 6 July 2004 regarding the fresh complaint by Ms. Foldi. On discovering the Foldi file I sent the email dated 28 July 2004 to the Society.

151 In further explanation she says:

“My statement to the Law Society in my letter of 19 May 2004 that I had transferred the file was made honestly and I certainly had no reason to mislead the Society or to hang onto the file. My statement was made on about 19 May 2004 and it was on 4 April 2004 when all of my … files were delivered to me in …Perth. I had not sorted through all my boxes of files when I made that statement.

89. I acknowledge that I received the email from the Society dated 6 July 2004. This prompted me to look for the Foldi file. I located the file round about 28 July 2004 and then responded to the Society that I had sent the file to Rowley and Ross. I had not sent the file at that stage but it was the next thing I intended to do…I accept that I forgot to attend to this. When I realised my oversight I sent the file by facsimile on 11 August 2004 to Rowley and Ross.

90. I admit that my email of 28 July 2004 was misleading. I had not (sic) the file but intended to – I responded to the Society in anticipation of my next act. I admit that I caused further delay in sending the file for which I apologise.”

152 The respondent in evidence asserted that she did not read the emails sent by Rowley and Ross. She conceded that she had opened her email box, but that she had not read all the emails. Her evidence on this point is at best confusing. On the one hand she asserts that she had large numbers of emails coming in so that she was overburdened with them. On the other she asserts that little was happening. Ultimately the respondent conceded “…I don’t deny that Rowley and Ross would have sent those prior ones, I just don’t recall them.” [T2. 34. 27-29]

153 The respondent agreed that she would have received all the emails sent by Rowley and Ross not later than 18th May when there is evidence that she used her email for other purposes.

154 The Tribunal finds it difficult to accept that, even assuming that the first date upon which she was able to access her emails for some time was 18 May 2004, the respondent took no steps to inform herself concerning the practice related emails in her mail box. Further, it is difficult to accept that in writing to the Law Society by letter dated erroneously 21 February 2000, sent 19 May 2004, that she did not take the precaution of checking her emails. That situation was unchanged as at her email to the Law Society of 28 July 2004. Ultimately the file was sent on 27 August 2004.

155 The Tribunal finds that the respondent’s conduct in relation to her correspondence with the Law Society regarding the Foldi file was both incompetent and lacking in the care and diligence expected of a member of the legal profession.

156 The respondent’s case is that in relation to the letter sent to the Law Society on 19 May 2004 (incorrectly dated 21 February 2000), she honestly believed she had transferred the Foldi file to Rowley & Ross, but admits that she had not opened all the file boxes that had been transferred to Western Australia at that time.

157 Nor, however, had she made any direct inquiry of Rowley & Ross, despite the fact that that she had received emails from that firm dated 7,12.13 and 17 May 2004 requesting the Foldi file. She was, accordingly, unable to be positive that she was not in possession of the file. She merely held an unsubstantiated belief that she was not in possession of the file.

158 The incontrovertible evidence is that the respondent accessed her emails at the latest on 18 May 2004 at a time when by her own admission there was little happening in relation to her practice. In evidence she referred to the “…whole heap of emails sitting in my box…I probably didn’t read the whole of them because there would’ve been hundreds.”

159 In summary, when writing to the Law Society on 19 May 2004, the respondent relied upon a recollection that the Foldi file had been one of a number transferred to Rowley & Ross, but made no attempt to check either the file boxes in her possession nor to read the emails in her box even to the extent, apparently, of taking the trouble to identify those relating to her professional life and opening them.

160 The Tribunal is of the view that the respondent behaved with reckless disregard for her professional responsibilities in writing to the Law Society on 19 May 2004, asserting that she had transferred the file to Rowley & Ross. She did not hold an honest and reasonable belief that the transfer had been effected. At best she had a vague idea she had sent the file, but in all the circumstances, she did not hold a reasonable belief that she had done so.

161 The respondent admits that when she received further correspondence from the Law Society on 6 July 2004, she was prompted to check her file boxes. She admits that her letter to the Law Society dated 28 July 2004 asserting that the file had been sent to Rowley & Ross was misleading, as the file was, to her knowledge, in her possession.

162 The Tribunal is not persuaded that the respondent faxed the contents of the file to Rowley & Ross on 11 August 2004. She ultimately sent the file on 27 August 2004.

163 Once again the respondent relies upon her intention to do that which she asserted had already been done. The Tribunal is not persuaded that it is in any way to the respondent’s credit, as submitted, that she sent the file to Rowley & Ross on 27 August 2004 “…without further prompting.”

164 The Tribunal finds that as at 28 July the respondent knew that she had not sent the Foldi file to Rowley & Ross. Her asserted intention at that time is a totally inadequate explanation for her unequivocal statement to the Law Society on that date that she had sent the file to Rowley & Ross. That statement, to the knowledge of the respondent, misrepresented the true state of affairs. Namely, that the file was still in her possession and had not been sent to Rowley & Ross.

165 The Tribunal finds that the respondent attempted to mislead the Law Society in her letter dated 21 February 2000 which was received by the Law Society on or about 19 May 2004, and in her email dated 28 July 2004.

166 The Tribunal is satisfied to the requisite standard that the respondent attempted to mislead the Law Society on each of the above occasions and finds this ground of complaint established.

The Law

167 The complaints the subject matter of these proceedings all arose prior to the coming into force of the LPA 2004 which commenced on 1 October 2005. Thus they fall to be determined under the provisions of LPA 1987. The proceedings before the Tribunal were conducted pursuant to Schedule 9 Clause 16 LPA 2004.

168 The applicant seeks findings that the respondent is guilty of professional misconduct which is defined in section 127 LPA1987 as follows:

(1) For the purposes of this Part, professional misconduct includes:

(a) unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence, or

(b) conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners, or

(b1) (Repealed)

(c) conduct that is declared to be professional misconduct by any provision of this Act, or

(d) a contravention of a provision of this Act or the regulations, being a contravention that is declared by the regulations to be professional misconduct.

(2) For the purposes of this Part:

unsatisfactory professional conduct includes conduct (whether consisting of an act or omission) 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 legal practitioner.

169 Section 497 LPA2004 defines professional misconduct thus:

(1) For the purposes of this Act:

professional misconduct includes:

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and

(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.

170 Section 55 LPA 1987 relevantly provides:

(1) The Law Society may, by instrument signed by the President or 2 members of the Law Society Council, appoint:

(a) one or more trust account inspectors to inspect, either generally or in a particular case, accounts kept under Part 6 by or on behalf of solicitors or to investigate (subject to Part 3B) the affairs, or specified affairs, of a solicitor or solicitors, and

(b) an investigator to investigate the affairs, or specified affairs, of a solicitor or solicitors,

and any such trust account inspector or investigator shall provide the Law Society Council with a report on each inspection or investigation carried out.

(5) A person shall not hinder, obstruct or delay a trust account inspector or an investigator in the exercise of his or her functions.

(6) A solicitor or locally registered foreign lawyer who contravenes subsection (3) or (5) is, whether or not convicted for the contravention, guilty of professional misconduct.

171 When dealing with matters arising under LPA 1987, the Tribunal may not make any determination or order that is more onerous than could have been made under that act. (paragraph 16, Schedule 9 LPA 2004).

172 The applicant submits that the Tribunal will be comfortably satisfied in accordance with the test laid down in Briginshaw v Briginshaw (1938) 60 CLR 336, that the respondent is guilty of the conduct alleged and that such conduct constitutes professional misconduct.

173 The Tribunal has noted with interest the recent decision of the House of Lords in In Re B (Children) (Fc) Appellate Committee House of Lords [2008] UKHL 35. Having regard to the respondent’s admissions and the strength of the evidentiary material in this case, the Tribunal does not feel bound to consider the application of the decision.

174 The general law concept of professional misconduct emerges from a long line of well known cases. Lopes LJ in Allinson v. General Council of Medical Education and Registration [1840] 1 QB 750 said:

“If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would reasonably be regarded as disgraceful ad dishonourable by his professional brethren of good repute and competency, then it is open to the General Medical Council to say that he has been guilty of ‘infamous conduct in a professional respect’.”

175 The High Court in Kennedy v. The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563:

“…a charge of misconduct as relating to a solicitor need not fall within any legal definition of wrong doing. It need not amount to an offence under the law. It was enough that it amounted to grave impropriety affecting his professional character and was indicative of a failure either to understand or practise the precepts of honesty or fair dealing in relating to the courts, his clients or the public. The particular transaction the subject of the charge must be judged as a whole and the conclusion whether it betokened unfitness to be held out by the court as a member of a profession in whom confidence would be placed, or on the other hand, although a lapse from propriety, was not inconsistent with general professional fitness and habitual adherence to moral standards, was to be reached by a general survey of the whole transaction.”

176 The respondent admits that she knowingly swore a false a false statutory declaration asserting that she had done something that she knew she had not. Whilst that action can arguably be distinguished from the situation in Coe v. NSW Bar Association [2000] NSWCA 13, it raises a similar issue.

177 In Coe, in proceedings before the Family Court of Australia, to which Coe was a party, he swore an affidavit which he knew to be false in a material particular, in that he grossly understated his income. The Court of Appeal, in dismissing Coe’s appeal against the decision of the Administrative Decisions Tribunal to remove Coe’s name from the roll of legal practitioners, approved the words of Moffitt P. in Re B [1981]2 NSWLR 327:

“It is of the utmost importance that this Court can order its procedures and give its decisions in the confidence that the barristers appearing before it, will not mislead it, will conduct themselves in accordance with the law and discharge their duty even when not subject to scrutiny”.

178 Professional bodies such as the Law Society and the Bar Association, in dealing with members of the profession, should be able to repose such confidence in its members, that it may be assumed that information provided to those professional bodies will not be misleading.

179 A member of the profession who provides misleading information to their professional body in the course of investigation or inquiry, must be regarded, prima facie, as a person who cannot be relied upon to discharge their professional duty to be truthful at all times in the conduct of their professional life.

180 The respondent belatedly conceded that she had misled the Law Society. The Tribunal holds concerns that she did not, at the time of the hearing before the Tribunal, fully appreciate the enormity of her conduct in the various matters of complaint, particularly in regard to misleading information provided by her.

181 When viewed as a course of conduct relating to a number of matters over a period of time, the Tribunal is satisfied that the facts demonstrate a consistent approach adopted by the respondent to her professional obligations, which falls far short of the standards of competence and diligence expected of legal practitioners in relation to their professional responsibilities. Her conduct demonstrates a substantial and consistent failure to reach reasonable standards of competence and diligence.

182 The Tribunal is satisfied that each of these matters of complaint are serious both standing in isolation and collectively. Each head of complaint demonstrates a consistent and substantial failure to meet the standards of competence and diligence in connection with the practice of law, which members of the public are entitled to expect from members of the profession. Each is properly designated as professional misconduct.

183 The respondent’s dealings with the Law Society demonstrate a blatant disregard for adherence to professional standards and obligations.

184 For the reasons given below [para. 190] the Tribunal will defer dealing with the medical and character evidence until such time as it considers the dispositive orders. It is, however, revealing to read the respondent’s email correspondence with Dr. Watts on 9 February 2007, when she sought his help. She refers to being “…in a bit of bother before the Administrative Decisions Tribunal.” After giving a summary of the stressors she believes affected her professional life, she refers to her feeling that the Law Society was “…just out to get me…” she concludes: “In summary I had too much on at home to do a hundred per cent to the work and wasn’t helped by the stressful sort of work I did. I need you to pull all that in a form to explain why I stuffed up. I didn’t knock off money or do anything too bad. I just wish I had someone to tell me to slow down and maybe work from home as I could never be everything that I wanted to all people.”

185 The Tribunal is concerned that the respondent failed to brief Dr. Watts with the pleadings that would have allowed him to properly assess the complaints against her, and, in the view of the Tribunal, minimised the nature and extent of those complaints.

186 The respondent’s admission in both the Hulme and Danaher matters that she hindered and delayed the investigator, constitutes a breach of section 55 (5) LPA 1987. Pursuant to section 55 (6) LPA 1987, the Tribunal finds the respondent guilty of professional misconduct in each of those matters.

187 The Tribunal is satisfied that the respondent is guilty of 5 counts of Professional Misconduct in respect of grounds A to E inclusive. As previously noted, the Tribunal is not satisfied that ground B iv has been made out and that allegation is dismissed.

Character and Medical Evidence

188 This matter was adjourned for a decision on the substantive issues as to whether or not the grounds of complaint were proved on the evidence, and, if so proved, whether or not any or all of the matters constituted professional misconduct. The issue of dispositive orders was to be determined after further hearing, and any further submissions from each of the parties. It was agreed that the respondent would be entitled to give any further evidence on the issue of final orders, by telephone linkup from Western Australia.

189 The medical evidence adduced from Dr. Watts, and the evidence of character from James Antonenas, and David Crawford, solicitors, and Teresa Amore, a former client of the respondent’s, was not relied upon on the issue of whether or not the respondent’s conduct amounted to professional misconduct. In those circumstances, the Tribunal deems it inappropriate to deal with that evidence in this decision limited to findings as to the matters proved against the respondent and the issue of professional misconduct or unsatisfactory professional conduct. That evidence will be dealt with following any further evidence or submissions relating to appropriate dispositive orders.

ORDERS

190 The Tribunal finds that the respondent is guilty of professional misconduct in respect of each of the grounds of complaint A to E inclusive, with the exception of Biv.

191 The matter is stood over to a directions hearing on 1 December 2008 at 9.30am to fix a date for further hearing and submissions on dispositive orders.

27/05/2009	-	Typographical error, respondent name Tangey should be Tangney - Paragraph(s) Coversheet
16/06/2009	-	Amendment to Respondent name - Paragraph(s) Coversheet