Council of the Law Society of New South Wales v Sheehan (No 2)

[2010] NSWADT 135

CITATION:	Council of the Law Society of New South Wales v Sheehan (No 2) [2010] NSWADT 135
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Marshall Sheehan
FILE NUMBER:	092007
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	12 May 2010
DATE OF DECISION:	4 June 2010
BEFORE:	Chesterman M - Deputy President; Mullane G - Judicial Member; Hayes E - Non-Judicial Member
CATCHWORDS:	Professional misconduct –solicitor—penalties for failure to comply with notice by investigator
LEGISLATION CITED:	Legal Profession Act 1987 Legal Profession Act 2004
CASES CITED:	Council of the Law Society of New South Wales v Cunningham [2003] NSWADT 138 Council of the Law Society of New South Wakes v Sheehan [2010] NSWADT 83 Council of the Law Society of New South Wales v Treanor [2009] NSWADT 115 Council of the New South Wales Bar Association v Howen [2003] NSWADT 117 Council of the New South Wales Bar Association v Howen (No 2) [2003] NSWADT 235 Law Society of New South Wales v Knudsen (No 2) [2006] NSWADT 245 Legal Services Commissioner v Knudsen [2000] NSWADT 62 Legal Services Commissioner v Sheehan (Legal Practice) [2009] VCAT 1446
REPRESENTATION:	APPLICANT C A Webster, barrister RESPONDENT In person
ORDERS:	1. The Tribunal recommends to the Law Institute of Victoria that the practising certificate of Marshall Sheehan be suspended until he complies with the requirements of a Notice, dated 13 November 2007, that was issued by an investigator appointed by the Law Society of New South Wales and served on him pursuant to section 660 of the Legal Profession Act 2004. 2. Marshall Sheehan is fined $4,000 3. Marshall Sheehan is publicly reprimanded 4. Marshall Sheehan is to pay the costs of the Council of the Law Society of New South Wales in these proceedings, such costs to be as agreed or as assessed by a costs assessor.

REASONS FOR DECISION

1 In a decision delivered on 6 April 2010 (Council of the Law Society of New South Wakes v Sheehan [2010] NSWADT 83), we found the Respondent guilty of professional misconduct. In 2005 the Law Society of New South Wales appointed an investigator, who was a member of its Professional Standards Department, to investigate complaints against him by former clients. In November 2007, in accordance with section 660 of the Legal Profession Act 2004, he was notified in writing by the investigator that he was required to produce to her within 21 days a specified file (relating to one of the matters in which a client had raised a complaint) or, if he was unable to comply with that requirement, to provide a statutory declaration stating the reasons. The Notice was dated 13 November 2007. He did not produce the file and he did not provide a statutory declaration. That situation has continued.

2 The Applicant in these proceedings seeks orders that the Respondent be fined and publicly reprimanded, that he pay the Applicant’s costs of the proceedings, and that the Tribunal recommend to the Law Institute of Victoria that his practising certificate be suspended until he complies with the section 660 Notice.

3 Our orders of 6 April gave the Applicant until 21 April 2010 to file submissions in support of the orders the Applicant sought and gave the Respondent until 12 May 2010 to file submissions in response. The Applicant’s submissions were filed on 19 April. No submissions have been filed by the Respondent.

Other matters considered in deciding what orders should be made

4 We made adverse findings in our reasons of 6 April 2010 about the credit of the Respondent, but the complaint against him is not of dishonesty or deception. That matter is generally not relevant to the decision as to what orders should be made.

5 There have been no prior disciplinary findings against the Respondent in this jurisdiction.

6 However, on 24 July 2009 the Victorian Civil and Administrative Tribunal Civil Division found the Respondent guilty, on his own admission, of four instances of professional misconduct (see Legal Services Commissioner v Sheehan (Legal Practice) [2009] VCAT 1446). The offences arose during investigation by the Legal Services Commissioner of complaints about the practitioner in 2008. Two of these were instances where he failed to comply, within the required time, with the request of the Legal Services Commissioner to provide a full written explanation of his conduct in response to complaints by or on behalf of clients.

7 The other two instances arose from a complaint by a solicitor (the Respondent’s former employer) that he had stolen files. One was non-compliance with a request of the Legal Services Commissioner for further information and documentation, and the other was non-compliance with a request by the Commissioner to provide a statutory declaration. By the time of the hearing the Respondent had complied with all of the Commissioner’s requests. He was fined $750 in respect of each instance of professional misconduct and ordered to pay $7,093 for the costs of the Legal Services Commissioner.

8 The relevance of the proceedings described in paragraphs [6] and [7] and their outcome in deciding the orders to be made in these proceedings is limited because the professional misconduct with which the present proceedings are concerned occurred before those four instances. However, it is relevant that even after the orders made on 24 July 2009, the Respondent did not provide to the Law Society of New South Wales the file or statutory declaration required by the Notice dated 13 November 2007.

9 With that factor there are other circumstances that together make this non-compliance serious. The Respondent raised with the Law Society Professional Standards Department a bogus argument that the legal requirements for him to be given written notice had not been satisfied. His non-compliance has continued for more than two and a half years, and particularly since the Respondent was served with the application in these proceedings in May last year. The Respondent has offered no co-operation with the Law Society. He has expressed no contrition. At the hearing before us in February he said he could comply with the notice within 24 hours. He has still not provided the file or a statutory declaration.

10 We take into account that the main purpose of the provisions of section 660 and the other investigatory provisions is to ensure the prompt and efficient investigation of complaints against practitioners in order to promote a high standard of legal services to clients. Another subsidiary purpose is to protect the reputation of practitioners generally and protect the reputation of individual practitioners against whom false or trivial complaints are made. The Tribunal has often emphasised the purposes and importance of section 660 notices (and their predecessors, notices under section 152 of the Legal Profession Act 1987) and the seriousness of non-compliance (see e.g. Council of the New South Wales Bar Association v Howen [2003] NSWADT 117 at [26] and [40] and Council of the New South Wales Bar Association v Howen (No 2) [2003] NSWADT 235 at [23])

11 The misconduct of the Respondent has frustrated the investigation of the client’s complaint for more than two and a half years. This has no doubt reflected poorly on the system for investigation of complaints and supervision of the profession.

Relevant law

12 Subsection 562(1) of the Legal Profession Act 2004 provides that once the Tribunal has found an Australian legal practitioner guilty of professional misconduct, it ‘may make such orders as it thinks fit, including any one or more of the orders specified in this section’.

13 The orders listed in subsection 562(2) include an order reprimanding the practitioner. The orders requiring implementation in another jurisdiction are listed in subsection 562(3) and include an order recommending that the practitioner’s interstate practising certificate be suspended for a specified period. The orders requiring compliance by a practitioner are listed in subsection 562(4) and include an order for the practitioner to pay a fine. Subsection 562(7) provides that the maximum fine for professional misconduct is $75,000.

14 Subsection 566(1) provides that where the Tribunal finds that a practitioner has engaged in professional misconduct, it must order the practitioner to pay the costs of the Applicant Council ‘unless the Tribunal is satisfied that exceptional circumstances exist’.

15 We have considered Legal Services Commissioner v Knudsen [2000] NSWADT 62 at [25], where the Tribunal discussed various decisions in which a practitioner was found to have failed to comply with a notice under the corresponding provision, section 152, of the Legal Profession Act 1987, and public reprimands and fines were imposed. Generally there was a public reprimand and the range of fines was up to $8,000. We have also considered the Tribunal/s decision of Council of the Law Society of New South Wales v Cunnigham [2003] NSWADT 138 at [13], where the Tribunal referred to six prior decisions of the Tribunal relating to non-compliance with a section 152 notice. A fine was imposed in each one of these cases. The range of fines was $1,000 to $4,500.

16 In Law Society of New South Wales v Knudsen (No2) [2006] NSWADT 245 the exercise was repeated and the Tribunal fined the practitioner $8,000. The practitioner had not complied with a section 152 notice and had previously been dealt with on two other occasions in the preceding eight years for non-compliance with other such notices.

Reprimand

17 We find that because of the reasons set out above, particularly those in paragraphs [9] to [11], the Respondent should be publicly reprimanded.

Fine

18 Taking into account inflation since the fines considered in the Tribunal decisions referred to in paragraphs [15 – 16] above and the findings as to the seriousness of this misconduct, we find that the Respondent should be fined $4,000.

Recommendation to the Law Institute of Victoria

19 Given our findings above and our earlier findings as to the history of the matter since the service of the section 660 Notice, we believe that the Respondent, even if fined and reprimanded for his misconduct, will not provide the file or the required statutory declaration unless his practising certificate is suspended until he complies.

20 In Council of the Law Society of New South Wales v Treanor [2009] NSWADT 115 the Tribunal ordered that the practitioner, who was not then the holder of a practising certificate, not be issued with a further practising certificate until he complied with section 660 notices that were the subject of the proceedings.

21 We therefore conclude that the Tribunal should recommend to the Law Institute of Victoria that the Respondent’s practising certificate be suspended until such time as he provides the relevant file or the statutory declaration.

Costs

22 The Respondent has made no submission against a costs order. The evidence does not disclose any exceptional circumstance that would require us to displace the usual requirement of subsection 566(1) of the Legal Profession Act 2004 that the Respondent pay the costs of the Applicant Council.

23 Accordingly there should be an order for the Respondent to pay the costs of the Applicant.