Council of the Law Society of New South Wales v Tsalidis (No 4)
[2012] NSWADT 230
•07 November 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Council of the Law Society of New South Wales v Tsalidis (No 4) [2012] NSWADT 230 Hearing dates: 14 and 15 August 2012 Decision date: 07 November 2012 Jurisdiction: Legal Services Division Before: M Chesterman, Deputy President
M Riordan, Judicial Member
C Bennett, Non-judicial MemberDecision: 1. The Respondent is guilty of unsatisfactory professional conduct under Grounds (i) to (iv) and professional misconduct under Ground (v).
2. For the purpose of scheduling a further hearing on the question of consequential orders, the matter is set down for directions at 9.30 a.m. on Monday 12 November 2012.
Catchwords: Solicitor - disciplinary proceedings - failure to respond to correspondence from counsel and from Legal Aid Commission - failure to attend court for listings - failure to provide material from Crown brief to counsel - breach of Tribunal order Legislation Cited: Legal Profession Act 2004 Cases Cited: Council of the Law Society of New South Wales v Tsalidis (No 2) [2010] NSWADT 297
Legal Services Commissioner v Tsalidis [2012] NSWADT 160Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant)
Charles Kiriakos Tsalidis (Respondent)Representation: Counsel
C Webster (Applicant)
P Kintomanis (Respondent)
Law Society of NSW (Applicant)
File Number(s): 122013
decision
Introduction
On 27 June 2012, the Council of the Law Society of New South Wales ('the Law Society') filed an Application in the Tribunal alleging that the Respondent, Charles Kiriakos Tsalidis, had engaged in professional misconduct and in unsatisfactory professional conduct.
The orders sought by the Law Society were as follows:-
1. The Respondent be fined.
2. The Respondent be reprimanded.
3. The Respondent is not to be permitted to hold a Principal Practising Certificate or to become a Solicitor/Director of any Incorporated Legal Practice until the expiration of 5 years cumulative practice as an employed Solicitor.
4. When the Respondent first applies to hold a Principal Practising Certificate or to become a Solicitor/Director of any Incorporated Legal Practice, after the period referred to in Order 3, any such application is to be accompanied by a report from a Psychiatrist or clinical Psychologist of the Respondent's choice and approved by the Manager for the time being of the Professional Standards Department, certifying the practitioner's medical and psychiatric fitness to practise in such capacity.
5.The Respondent pay the Applicant's costs.
6. Such other Orders as the Tribunal deems appropriate.
On 27 June 2012, the Law Society also filed an affidavit sworn on the previous day by its solicitor, Ms Anne-Marie Foord.
The Solicitor did not file a Reply or any evidence.
At the hearing of this matter before us on 14 and 15 August 2012, Ms Webster of counsel appeared for the Law Society and Mr Kintomanis of counsel for the Respondent. On the second day of the hearing, we also dealt with other proceedings that the Law Society had commenced against the Respondent (in file 122016).
We indicated that at this stage we would go no further than to receive evidence and submissions on the question whether the Respondent had engaged in professional misconduct and unsatisfactory professional conduct as alleged in the Application. The question of what consequential orders, if any, would be required would be deferred to a later hearing.
The Grounds and Particulars
In the Application, the Law Society alleged as follows:-
CHARLES KlRlAKOS TSALIDIS was guilty of professional misconduct and unsatisfactory professional conduct as set out in the following allegations:
Unsatisfactory professional conduct
Complaint by Legal Aid Commission
The Respondent:
i. Failed to respond to correspondence from Ms Healey of Counsel.
ii. Failed to attend Court for listings.
iii. Failed to provide any material from the Crown brief to Counsel.
iv. Failed to respond to correspondence from the complainant dated 28 March 2008, 14 May 2008 and 10 July 2008.
["the Legal Aid Commission complaints"]
Professional Misconduct
Breach of Tribunal orders
v. The Respondent breached Order 5 of the Orders of the Administrative Decisions Tribunal made on 14 December 2010.
["the ADT complaint"]
Particulars of Grounds of Complaint
In these Particulars:
"the Respondent" and "the Solicitor" mean CHARLES KlRlAKOS TSALIDIS.
"the Society" means the Law Society of New South Wales...
[Grounds (i) to (iv) as set out above, together with the two headings preceding them, were repeated here.]
1. By letter dated 22 March 2007 the Legal Aid Commission wrote to the Respondent informing him that Legal Aid had been extended in respect of representation in the Local Court at Wollongong defend criminal proceedings in relation to Troy Fornaciari ("Fornaciari "). The Grant did not extend to briefing counsel.
2. The Respondent received the prosecution brief in respect of Fornaciari's criminal proceedings on 30 January 2007 and on 2 February 2007.
3. On 4 July 2007 Fornaciari's sister contacted Jane E Healey of Counsel ("Ms Healey") enquiring if she would represent Fornaciari. Ms Healey advised that as he was legally aided, Fornaciari would have to wait until the Public Defender was unavailable in order for Ms Healey to have carriage of the matter.
4. By letter dated 13 July 2007 Fornaciari, who was then in custody, wrote to Ms Healey asking that she represent him, advising that a Grant of Aid had been made to the Respondent and "I'm next before Wollongong District Court on the 16-7-07 for arraignment please note my current solicitor has not discusted (sic) my case with me what so ever, so could you please contact my self and my sister to advised (sic) us on what we need to do".
5. By letters dated:
(a) 23 July 2007;
(b) 24 September 2007;
(c) 8 October 2007;
(d) 22 October 2007; and
(e) 23 November 2007
Ms Healey wrote to the Respondent.
6. The Respondent did not respond to Ms Healey's letters.
7. The Respondent forwarded to Ms Healey a Brief to appear and to advise generally in respect of Fornaciari's matter Ms Healey on 21 November 2007.
8. The Respondent did not provide any material from the prosecution brief to Ms Healey.
9. Fornaciari's matter was listed in the District Court at Wollongong on:
(a) 24 September 2007,
(b) 12 November 2007,
(c) 23 November 2007; and
(d) 12 December 2007.
10. The Respondent did not attend on behalf of his client Fornaciari on any of those occasions.
11. By letter dated 14 January 2008 to the Legal Aid Commission of NSW ("the Commission") Ms Healey complained to the Commission about the Respondent.
12. The Commission wrote to the Respondent by letters dated:
(a) 28 March 2008;
(b) 14 May 2008 and
(c) 10 July 2008
informing him of Ms Healey's correspondence and seeking, within a time stated in each letter, a response from the Respondent.
13. The Respondent did not respond to the Commission's letters.
14. The Legal Services Commissioner referred to the Society for investigation a complaint made by the Commission about the Respondent.
15. By letter dated 14 October 2008 the Society referred the complaints made by the Commission to the Respondent and requested his response within 14 days. No response was received from the Respondent.
16. By letter dated 8 December 2008 the Society wrote to the Respondent reminding him that his response to the Society's letter of 14 October 2008 had not been received and informing him that failing receipt of it within seven days, a Notice pursuant to s 660 of the Legal Profession Act 2004 ("LPA 2004") would be served. No response was received from the Respondent.
17. By letter dated 17 February 2009 the Society wrote to the Respondent reminding him that his response to the complaints had not been received, informing him of some further matters which arisen during the course of the Society's investigation and informing him that failing receipt of his response to the complaints within seven days, a s.660 Notice would be issued. No response was received from the Respondent.
18. Under cover of the Society's letter of 18 March 2009 the Respondent was issued with a Notice dated the same date ("the Notice").
19. The Notice was personally served on the Respondent on 25 March 2009. The Notice required compliance within 21 days of service. The Respondent did not comply with the Notice.
20. On 23 April 2009 the Professional Conduct Committee of the Society ("the Committee"), pursuant to s.504 of the LPA 2004, made complaints against the Respondent regarding his failure to respond to the Notice.
21. On I7 September 2009 the Committee resolved, relevantly, to commence proceedings before the Administrative Decisions Tribunal. Proceedings No 092033 were commenced in the Tribunal on 11 December 2009.
22. During the course of the proceedings the Respondent provided to the Society an Affidavit dated 25 June 2010 in partial response to the complaints.
23. The Tribunal delivered its Decision in the proceedings on 14 December 2010. The Tribunal found the Respondent guilty of professional misconduct, fined and reprimanded him and made various other orders.
24. By letter dated 22 February 2012 from the Society to the Respondent, the Respondent was informed of the Committee's resolutions of 16 February 2012 dismissing certain of the complaints made by the Commission and that, subject to the Respondent's submissions, if any, the Committee was then minded to refer the Respondent's conduct in respect of the Legal Aid Commission complaints to the Tribunal for hearing and inviting him to make such submissions as he might wish. The Respondent did not respond to the invitation in this letter...
[Ground (v) as set out above, together with the two headings preceding it, was repeated here]
25. The orders made on 14 December 2010 by the Tribunal referred to in paragraph 23 above included order 5, in the following terms:
"The Solicitor shall cause a report of Mr Backen, and if appropriate the aforesaid certificate, to be provided to the Council of the Law Society (''the Council") immediately after 30 June 201 1. If the course of treatment continues after that date, then the Respondent shall cause a further reporf and the aforesaid certificate of Mr Backen to be provided to the Council at the time of completion of the course of treatment."
26. By letter dated 5 August 2011the Society wrote to the Respondent, relevantly, as follows:
"Further, under orders (4) and (5), you must provide a report by Mr RW Backen evidencing your consultations and treatment on a monthly basis until Mr Backen certifies that the course of treatment necessary to restore you to full health is complete.
Please provide this report in compliance with these orders immediately."
27. On 11 August 2011 in a telephone conversation between Mr Pierotti of the Society and the Respondent, the Respondent assured Mr Pierotti that he would let him have the report of Mr Backen by the following week.
28. By letter dated 29 September 2011 the Society wrote to counsel for the Respondent, Mr Kintominas, relevantly, as follows:
"I confirm our telephone conversation on 27 September 2011. In that conversation, I referred to Mr Tsalidis' conversation on 11 August 2011 with Mr Pierotti of this office (when Mr Tsalidis assured Mr Pierotti he would let him have the report of Mr Backen by the following week) and I advised you that no such report has been received. I confirm your advice to me that, subject to Mr Tsalidis' instructions, you would let me have the report 'by the end of next week' (that is, as I understand it, by close of business on Friday 7 October 2011). You indicated you would advise me further on 28 September 2011.
I did not hear from you on 28 September 2011 and therefore assume that you will, by close of business on Friday 7 October 2011, let me have the medical report of Mr Backen. If this assumption is incorrect please advise me urgently."
29. Mr Kintominas did not respond, having been hospitalised around 8/9 October 2011.
30. By letter dated 18 October 2011 the Society wrote to the Respondent, relevantly, as follows:
"I refer to the Decision of the Administrative Decisions Tribunal on 14 December 2010, and specifically order (5). A copy of the Decision is attached.
In compliance with order (5), please immediately provide the report(s) and appropriate certificate (if any)."
A copy of the letter was sent to counsel for the Respondent, Mr Smallbone. There was no response to the Society's correspondence.
31. On 20 October 2011 the Committee made the ADT complaint.
32. Under cover of a letter dated 20 October 2011 from the Society to the Respondent, the Society advised him of the ADT complaint and requested his response. A copy of the letter was sent to Mr Smallbone. There was no response to the Society's correspondence.
33. By letter dated 14 November 2011 the Society wrote to the Respondent, and again requested his response. A copy of the letter was sent to Mr Smallbone. There was no response to the Society's correspondence.
34. On 6 December 2011 an Information Notice pursuant to s.61 of the LPA 2004 was forwarded to the Respondent advising him that in view of the apparent contravention of the Tribunal's orders a ground existed to suspend his practising certificate and inviting his submissions. No submissions were received in response to the lnformation Notice within the time specified, 14 December 2011.
35. On 15 December 2011 the Council of the Society suspended the Respondent's practising certificate and appointed a manager to his practice.
36. Under cover of a letter dated 20 December 2011the Respondent forwarded to the Society a copy of an unsigned report by Mr R Backen dated 29 November 2011. The report was marked "DRAFT REPORT ONLY".
37. By letter dated 20 December 2011 the Society wrote to the Respondent, relevantly, as follows:
"Having regard to the matters raised in the Information Notice dated 6 December 2011, the fact that the report is an unsigned draft, you have not explained your failure to comply with the Tribunal's Order other than by your statement that the delay in procuring the report "was caused in part by Mr Bracken going on holidays" and that you have not explained why you failed to respond to the Society's numerous communications as set out in the said Notice..."
38. Under cover of a letter dated 17 January 2012 the Respondent forwarded to the Society a copy of a report by Mr R Backen dated 16 January 2012.
39. By letter dated 30 January 2012 the Society wrote to the Australian lawyer, relevantly, as follows:
"In your letter to the Society dated 20 December 2011 you explained your failure to comply by stating that the delay in procuring the report "was caused in part by Mr Bracken going on holidays" and you did not explain why you failed to respond to the Society's numerous communications as set out in the Notice pursuant to section 61 of the Legal Profession Act, 2004 ("the Notice").
In your letter under reply you advise of your "...regret that this report was not served earlier, but in mitigation of this I note and rely on the matters set out by Mr Backen in the final paragraph of his report, namely that during August 2011 his father died and this had an impact on his practice. I contacted Mr Backen's office after receiving the first correspondence of the Law Society and ascertained that his father had died, and chose not to press him, as I was reluctant to hound him (and understood from his receptionist that he was on leave for several weeks)."
In considering this submission I note that:
Order 5 required you to cause a report of Mr Backen to be provided to the Council of the Law Society immediately after 30 June 2011. Mr Backen's father passed away on 16 August 2011, that is, 6 weeks after the date on which you were required to provide his report to the Council. In any event Mr Backen's report was not made until 16 January 2012.
You have not explained why you failed to respond to the Society's numerous communications as set out in the Notice. The personal family circumstances which you describe did not commence until 10 December 2011.
Further, you have not explained your apparent failure to comply with order 7..."
There was no response to the Society's correspondence.
40. By letter dated 30 March 2012 from the Society to the Respondent, the Respondent was informed of the Committee's resolution of 29 March 2012 that, subject to the Respondent's submissions, if any, the Committee was then minded to refer the Respondent's conduct in respect of the ADT complaint to the Tribunal for hearing and inviting him to make such submissions as he might wish. The Respondent did not respond to the invitation in this letter.
Hereafter, we will identify the numbered paragraphs of these Particulars with the letter 'P'.
Towards the end of the hearing, Ms Webster advised us that the Law Society withdrew the matter stated in P9(a).
It is apparent that Grounds (i) to (iv) all relate to different aspects of the Respondent's behaviour in relation to criminal proceedings taking place in Wollongong during 2007, in which he received a grant from the complainant, the Legal Aid Commission, to act for the accused. These four Grounds will therefore be considered in conjunction.
Ground (v) involves an entirely separate matter, namely his alleged breach of an order made by this Tribunal on 4 December 2010. The complainant was the Law Society.
The evidence regarding Grounds (i) to (iv)
The principal documentary evidence tendered by the Law Society on the matters raised in these four Grounds comprised Ms Foord's affidavit sworn on 26 June 2012, a copy of a statutory declaration made by the Respondent on 28 June 2010 (with the jurat missing), and an affidavit sworn on 23 July 2012 by Ms Jane Healey of counsel. During the hearing, Ms Healey was cross-examined.
No documentary evidence was tendered on behalf of the Respondent, but he gave oral evidence and was cross-examined. In his examination in chief, he asserted the truth of his statutory declaration of 28 June 2010 (hereafter referred to as the Respondent's 'Declaration'). His Declaration gave answers to the questions contained in the Notice under section 660 of the Legal Practice Act 2004 ('the Act') that had been served on him on 25 March 2009 (see P18 and P19). He also asserted the truth of an affidavit, also sworn on 28 June 2010, on which he had relied in previous Tribunal proceedings stemming from his non-compliance with this Notice (see P22). A copy of this affidavit was annexed to Ms Foord's affidavit.
The allegations relating to these four Grounds are those in P1 to P13, subject to the deletion of P9(a). Ms Webster identified as follows the paragraphs of direct relevance for each Ground: for Ground (i), P5 and P6; for Ground (ii), P9(b), (c) and (d) and P10; for Ground (iii), P7 and P8; and for Ground (iv), P12 and P13.
The Respondent did not deny any of these allegations. In his own evidence and through the cross-examination of Ms Healey, he sought instead to prove additional matters to support an argument that his conduct as alleged in relation to Grounds (i), (ii) and (iii) did not amount to unsatisfactory professional conduct. With regard to Ground (iv), he admitted that unsatisfactory professional conduct had been made out.
The evidence substantiated and also supplemented the content of P1 to P13. In the ensuing discussion of relevant aspects of it, all dates are in 2007 unless otherwise indicated.
In cross-examination, Ms Healey stated that during the conversation on 4 July with Mr Fornaciari's sister described in P3, she was told that Mr Fornaciari was dissatisfied with the performance of the solicitor who had been assigned to him under his grant of legal aid. She denied (a) being told the name of this solicitor and (b) believing at this stage that she might take over Mr Fornaciari's case on a direct access basis.
In a letter dated 5 July to Mr Fornaciari, Ms Healey wrote that during her conversation with his sister, she had been told that he had been charged with 'Aggravated Take and Detain with Intent x 2' and 'Inflicting GBH with Intent' and that 'Legal Aid' was currently acting for him. She then wrote: 'If you would like me to appear at this stage of the proceedings you would need engage (sic) a private solicitor who would then brief me as Legal Aid are unlikely to transfer the matter.' She gave the names of three solicitors (not including the Respondent), stating that she 'would recommend' any of them. She suggested also that if he were to 'remain with Legal Aid' and his matter was listed for trial, Legal Aid might well brief her if the Public Defender was unavailable, adding 'You may well wish to discuss this with your solicitor at Legal Aid.' She indicated her willingness to reduce her fees to 'the equivalent of Legal Aid rates' and concluded by stating that if he wished to have her briefed he should sign and return an enclosed letter of authority.
Mr Fornaciari's letter of 13 July to Ms Healey relevantly included the passage quoted in P4, the name of the Respondent as his solicitor under the grant of legal aid and a statement that he would like to be represented by her but was unsure about how to arrange this.
Ms Healey's letter of 23 July to the Respondent (P5(a)) included the following statements: (a) she understood that he was acting for Mr Fornaciari on a grant of legal aid in 'serious indictable offences'; (b) she anticipated that at some stage the Respondent would brief counsel if the Public Defender was not available; (c) she thought it appropriate that in this event the Respondent should brief her in accordance with Mr Fornaciari's instructions; (d) if this occurred, she would be willing to offer her services on a legally aided basis; (e) she would like him to obtain a 'Non-Acceptance of Brief Form' from the Public Defender as soon as possible; (f) she considered it appropriate that she should appear with them at the arraignment of Mr Fornaciari scheduled for 13 August, so that they could 'conference the client together'; and (g) she was sending a copy of this letter to Mr Fornaciari.
With this letter of 23 July to the Respondent, Ms Healey enclosed a copy of Mr Fornaciari's letter of 13 July to herself, but not a copy of her letter to him dated 5 July.
As alleged in P6, the Respondent did not reply to this letter of 23 July from Ms Healey. In his Declaration, he stated that in his view there was nothing in it requiring a written response, that he found it 'more efficient' to communicate with barristers in person or by telephone and that he 'regularly bumped into' Ms Healey at the Wollongong courthouse.
Ms Healey stated in her affidavit that, according to her recollection, (a) the Respondent was not present at the hearing at the District Court on 13 August at which Mr Fornaciari was arraigned, (b) being herself at the Court on that day but not yet instructed by Mr Fornaciari, she mentioned the case for him on an amicus basis, and (c) according to her memory the matter was adjourned to 24 September.
In his Declaration, however, the Respondent said that he did appear for Mr Fornaciari on 13 August, having previously conferred with him in the Court cells, and that the arraignment was adjourned to 3 September.
A copy of a letter dated 15 August from the Respondent to Mr Fornaciari, which the Law Society tendered, confirms his testimony on this particular matter. We accept this testimony in preference to that given by Ms Healey.
This letter also contained a statement that Mr Fornaciari, during the conference in the cells, instructed the Respondent to brief Ms Healey if the Public Defender proved not to be available. Annexed to the letter was a copy of Ms Healey's letter of 23 July to the Respondent.
In a handwritten file note dated 3 September, the Respondent recorded a further adjournment of Mr Fornaciari's case to 24 September, accompanied by a statement in capital letters that no further adjournments would be granted, and the following phrase under the heading 'Conference in Ct Cells': 'CKT to negotiate lesser offences!!' A copy of this file note was annexed to the Respondent's Declaration.
At the hearing on 24 September, the Respondent did not appear for Mr Fornaciari. His explanation for this in his Declaration was that previously Ms Healey had offered 'eagerly' to 'take care of the arraignment' and had shown herself to be 'very keen to get involved in the matter'. During cross-examination and re-examination, however, he appeared to have significant doubts about the accuracy of this evidence.
Ms Healey testified that she never agreed with the Respondent that she would appear for Mr Fornaciari on the arraignment. She stated in her affidavit that on 24 September she was again at the Court to deal with other matters and that again she appeared on an amicus basis because the Respondent was not present. She explained to the Court that she expected that he would appear for Mr Fornaciari and that she herself did not hold a brief, but that the client had written to her directly and asked her to act for him. According to her evidence, the presiding judge, Conlon DCJ, directed a court officer to try to locate the Respondent, but the officer's attempts were unsuccessful.
Because the Law Society, during the hearing, withdrew the allegation contained in P9(a), we do not have to resolve this conflict of testimony. By virtue of this amendment to the Particulars, the Society no longer maintains that the Respondent's absence from the hearing on 24 September constituted a breach of his professional obligations that we should take into account when determining its claim of unsatisfactory professional conduct under Ground (ii).
At the arraignment, Ms Healey entered pleas of not guilty to the charges laid against Mr Fornaciari. The trial of these charges and of charges laid against a co-accused was stood over 26 November, with an estimate of 6-7 days, and the matter was listed for mention on 12 November to confirm readiness.
After the arraignment, Ms Healey held a conference with Mr Fornaciari in the cells. Shortly after that, she saw the Respondent entering the courthouse. They then had a conversation in which she strongly criticised his failure to appear at the arraignment, along with other aspects of his conduct of Mr Fornaciari's defence, and asked him to send her a complete copy of the police brief of evidence (hereafter 'the Brief of Evidence') in the proceedings.
According to Ms Healey's account of this conversation, she spoke firmly but calmly, but the Respondent was 'angry'. The Respondent maintained in his Declaration that she 'appeared to be furious' and that when he tried to deny her allegations against him, she 'glared' at him and walked away. In cross-examination, he described the conversation as 'an exchange of words'.
In the letter of 24 September to the Respondent referred to in P5(b), Ms Healey described her appearance at the arraignment on an amicus basis, the direction by Conlon DCJ to the court officer to try to locate the Respondent and the outcome of the arraignment (including the dates for the hearing and the mention to confirm readiness). She stated that during her conference with Mr Fornaciari in the cells, he told her 'a number of things', which caused her to be concerned and formed the basis for the criticisms that she had made of the Respondent during their conversation at the court house. 'For the record', she then summarised these criticisms.
This summary included assertions to the following effect: (a) the Respondent, when conferring with Mr Fornaciari, had asked him why he would want to brief Ms Healey and had described counsel for the co-accused as 'untrustworthy' (in relation to which Ms Healey commented that she believed this to be 'defamatory'); (b) the Respondent had failed to apply for bail as instructed and had not visited Mr Fornaciari in gaol; and (c) despite requests from both Ms Healey and Mr Fornaciari, the Respondent had not sent him a complete copy of the Brief of Evidence.
In her letter, Ms Healey then noted that during her meeting with the Respondent on 24 September he 'denied most of these allegations'. She concluded by saying that if the Public Defender proved to be unable to appear, the Respondent should 'promptly' send her a copy of 'the brief' and suggesting that since the charges were 'subject partly to standard non parole periods', counsel should be present at any conferences with Mr Fornaciari regarding negotiations with the DPP. She enclosed with this letter a copy of her earlier letter (dated 23 July) to the Respondent.
The Respondent did not state or suggest that Ms Healey's summary of what she said to him at the courthouse was inaccurate. As alleged in P6, he did not reply to her letter of 24 September. In his Declaration, he said that he formed the view that it did not require a response and that it would be 'pointless' to rebuke her on account of her 'discourteous and rude attitude'. In his affidavit of 28 June 2010, tendered in the earlier Tribunal proceedings, he stated that he was 'furious' when he received her letter.
With her letter of 8 October to the Respondent (see P5(b)), Ms Healey enclosed a letter, with enclosures, that she had received that day from Mr Fornaciari. This letter from him contained some observations about his case. The enclosures chiefly comprised correspondence seemingly intended to support an application for bail.
In her letter to the Respondent, Ms Healey stated that she had not 'had the courtesy of a written reply' to any of her letters to him in this matter. She asked to be advised at his earliest convenience of 'what is happening', including particularly as to whether he had contacted the 'Public Defenders' and whether they would be available to take the case. She concluded by saying that as the trial was listed for 26 November, 'Mr Fornaciari's representation should be attended to promptly'.
As alleged in P6, the Respondent did not reply to this letter of 8 October. He said in his Declaration that he formed the view that it 'did not require a response'.
With her letter of 22 October to the Respondent (see P5(c)), Ms Healey enclosed two further letters (dated 5 and 16 October) that she had received earlier that day from Mr Fornaciari. In these letters, Mr Fornaciari stated that he had still not received a complete copy of the Brief of Evidence and made critical comments about the Respondent's conduct of his defence, including that the Respondent was 'ignoring' him and was 'not taking it seriously'.
In her letter to the Respondent, Ms Healey observed that she had still not 'had the courtesy of a written reply' to any of her letters to him in this matter, adding that she had written to him on 23 July, 24 September and 8 October. She characterised his failure to reply as 'somewhat surprising', given the content of the letters, and pointed out that his client was 'making some very worrying complaints' about his conduct of the defence. She then said that she would 'allow' the Respondent a period of one week within which to advise her in writing what was happening with Mr Fornaciari's representation, that time was 'of the essence' if the defence was to be properly prepared and that if she did not receive a response she would 'advise Mr Fornaciari of his avenues of complaint'.
As alleged in P6, the Respondent did not reply to this letter of 22 October. He did not provide any explanation for this in his Declaration, since there was no question relating specifically to this letter in the section 660 Notice. In his cross-examination, he was not asked about his failure to reply.
It is not clear from the evidence whether Mr Fornaciari's case was mentioned on 12 November, in accordance with the Court's directions on 24 September. The Respondent did not deny the allegations in P9(b) and P10 that such a hearing did occur and that he did not attend.
In his Declaration, he gave the following reasons for not attending on this and subsequent occasions: (a) at their meeting at the Court on 24 September, it became obvious that she was treating him 'as a subordinate who could be chastised rather than a solicitor who was instructing her'; (b) at the same time, she 'assumed control of the proceedings with little or any input' from him; (c) he felt he could 'no longer continue in a professional relationship with her in the matter'; (d) unless the matter went to trial, in which event he would have been present to instruct her, he regarded his presence as 'unnecessary and likely to result in more unpleasant confrontations'; and (e) that in any event, she did not complain about his non-attendance or indicate that she required him to be present. The Respondent added that he had not considered it necessary to explain his absence to the Court, because Ms Healey attended every one of the hearings.
At a hearing on 19 November, Ms Healey appeared for Mr Fornaciari. The Respondent did not attend. Following negotiations between Ms Healey and counsel appearing for the Crown, a new indictment, containing two counts of Robbery, was presented against Mr Fornaciari. A 'Form 1 document' was also signed containing a charge of Assault Occasioning Actual Bodily Harm. Mr Fornaciari entered guilty pleas to both counts of the indictment. Bail was not applied for. The hearing on 26 November was vacated, a pre-sentence report was ordered and the matter was stood over to 12 December for hearing on sentence.
The Respondent did not deny the allegations in P9(c) and P10 that a hearing of Mr Fornaciari's case occurred on 23 November and that he did not attend. The evidence showed however that although a hearing, which we have just described, took place on 19 November, there was no hearing on 23 November. Because of this error in the Particulars, we do not take into account the Respondent's failure to attend the hearing of 19 November.
According to evidence given by the Respondent in re-examination, he was informed 'a few days before' 21 November that the Public Defender would not be available for Mr Fornaciari's trial. Shortly after this, he decided that he should brief Ms Healey.
On or about 21 November, as stated in P7, the Respondent sent to Ms Healey a Brief to Appear at Hearing and to Advise Generally (hereafter 'the Brief to Appear'). This Brief included the following statement: 'I confirm that Counsel has already obtained a copy of the Brief of Evidence.' In a covering letter, also dated 21 November, the Respondent that he was 'belatedly' enclosing the Brief to Appear and apologised for 'the inconvenience' caused by his 'delayed service of this essential document'.
With regard to the allegation in P8 that the Respondent 'did not provide any material from' the Brief of Evidence to Ms Healey, the Respondent stated as follows in his Declaration: (a) he received a copy of this Brief 'on 30.01.07 and on 02.02.07'; (b) at some time before 24 September, he agreed with Ms Healey to send a copy of it to her; (c) he came to entertain 'misgivings' about briefing her because he thought it would be 'unorthodox'; (d) he became 'increasingly uncomfortable' because she 'continued to pester' him; (e) he 'hoped that the looming dilemma would be resolved by a Public Defender being available'; (f) in fact, he 'did not provide her with copies of any part of the Brief of Evidence'; and (g) despite claims by Mr Fornaciari to the contrary, he did however give a copy of this Brief to Mr Fornaciari.
In support of this last assertion, the Respondent annexed to his Declaration copies of letters from him to Mr Fornaciari dated 1 February and 7 February. These letters respectively included statements that a copy of the 'Police Brief of Evidence' and a copy of two additional statements by police witnesses were enclosed. Having regard to these letters and to the fact that Mr Fornaciari was not called as a witness, we accept the Respondent's testimony on this point.
When asked in cross-examination whether he sent a copy of the Brief of Evidence to Ms Healey along with the Brief to Appear dated 21 November, the Respondent's reply was to the effect that it was 'hard to imagine' that he did not do this. But when his statement on this matter in the Brief to Appear - i.e. that 'Counsel has already obtained a copy of the Brief of Evidence' - was drawn to his attention, he said that it suggested that the latter Brief did not in fact accompany the former Brief and that he had no independent recall of it doing so.
In re-examination, the Respondent claimed that at the time when Ms Healey told him, during their meeting at Wollongong Court, that she had held a conference with Mr Fornaciari, she must have also told him that she had obtained a copy of the Brief of Evidence. He therefore assumed that there was no need to send her another copy on 21 November, together with the Brief to Appear. Mr Kintomanis, in the course of his submissions, pointed out that Ms Healey, after receiving the Brief to Appear, did not write back to him to ask for the Brief of Evidence.
In her affidavit, Ms Healey stated that she did not receive from the Respondent, either in conjunction with the Brief to Appear or at any other time, any material forming part of the Brief of Evidence. She added that she did not obtain a copy of the Brief of Evidence from any other source, but that she had 'been able to look at the Crown or co-accused's copy at Court'.
These statements were not challenged during her cross-examination. It was however put to her that copies of the Brief of Evidence were freely available. She replied that she in fact borrowed a copy from counsel for the co-accused and that the Director of Public Prosecutions would have given her one if she had so requested.
In our judgment, the foregoing evidence establishes the allegation in P8. Ms Healey's unequivocal testimony in support of this allegation was not challenged in cross-examination. On the other hand, the Respondent's evidence relating to it was distinctly unsatisfactory. Having admitted it in his Declaration, he tried to withdraw this admission during cross-examination. He then realised that the version of events that he was offering - according to which the Brief of Evidence went to Ms Healey together with the Brief to Appear - contradicted what he had written in the latter Brief. During re-examination, he offered yet another explanation: i.e., that at an earlier time Ms Healey 'must have told him' that she had a copy of the Brief of Evidence.
In her letter of 23 November to the Respondent (see P5(e)), Ms Healey described what had happened at the hearing on 19 November. She added that she had prepared draft Agreed Facts and had forwarded them to the Crown. She enclosed a copy of this document, along with copies of the new indictment and the 'Form 1'. Her letter concluded with a request to the Respondent to 'organise some references for Mr Fornaciari to be tendered on sentence'.
As alleged in P6, the Respondent did not reply to this letter. In addition, according to his Declaration, he did not respond in any way to the request made at the end of the letter. He explained this by saying that Ms Healey already had 'the 2 references which were to be tendered on sentence', adding that she had obtained them 'without reference to me'. He identified these as references of which she had sent copies to him in her letter of 8 October, while retaining the originals.
During cross-examination, the Respondent said that he told Mr Fornaciari during a conference in the Court cells that references would be required, but did not arrange any conferences with witnesses who might assist. He acknowledged that it was appropriate that a solicitor should carry out this task, but claimed that because of the breakdown of relations between him and Ms Healey there were good reasons why he could not have been expected to attend to it.
Ms Healey said in her affidavit that because the Respondent did not organise any references she did so herself. In cross-examination, she stated that she would have appreciated his assistance.
As alleged in P9(d) and P10, the Respondent did not attend the sentencing hearing on 12 December. In his Declaration, the reasons that he gave for not attending were those given for not attending the hearing on 12 November. They are outlined above at [45].
In cross-examination, Ms Healey maintained that at the time of the sentencing hearing (December 2007) she would have expected that a solicitor instructing her would be present at a sentencing hearing. But she acknowledged that it was not always necessary.
On 17 December, Ms Healey wrote to the Respondent to report that at the hearing on 12 December Mr Fornaciari was sentenced to a non-parole period of 15 months and an additional term of two years.
In cross-examination, she claimed that the overall outcome of the work that she had undertaken for him had been 'magnificent'.
We conclude this review of the evidence relating to Grounds (i) to (iii) by recording that the Respondent and Ms Healey expressed conflicting opinions on the question whether relations between them after their confrontation on 24 September had become so hostile that they could no longer work together effectively. As already indicated, the Respondent, at several points in his Declaration, claimed that, as far as he was concerned, this situation had been reached. In cross-examination, however, he admitted that he never expressed this opinion to her, either in a letter or by telephone. Ms Healey, on the other hand, maintained that at that time she did not believe that their relationship had irretrievably broken down.
As alleged in P13, the Respondent did not respond to the Legal Aid Commission's letters listed in P12. In his Declaration, he stated that the reasons for this were that he regarded Ms Healey's attitude towards him as 'unprofessional, discourteous and outrageous' and that he was 'appalled that she had the effrontery to complain to the Legal Aid Commission'.
Submissions on Grounds (i) to (iv)
In relatively brief submissions on behalf of the Law Society, Ms Webster argued that while there was obviously a dispute between the Respondent and Ms Healey, there were no grounds for inferring that she tried to take over the Fornaciari matter from him. In so arguing, Ms Webster referred to the contents of Ms Healey's letters of 13 July, 8 October and 22 October 2007 to the Respondent and to the fact that Ms Healey enclosed correspondence received from Mr Fornaciari with the latter two letters.
Ms Webster maintained that, even allowing for the conflict that had arisen between them, the Respondent was obliged, as a matter of professional conduct, to reply to Ms Healey's letters. He was also obliged, she said, to provide explanations to the Court for his failure to attend hearings. It was not sufficient just to claim that Ms Healey was acting for Mr Fornaciari on a direct access basis.
The principal arguments advanced by Mr Kintomanis can be summarised as follows:-
(a) Ms Healey's assertion that she did not find out from Ms Goodwin that Mr Fornaciari's solicitor under the grant of legal aid was the Respondent was not credible.
(b) The Respondent did not need to answer Ms Healey's letter of 23 July 2007 because (i) he had seen her at the Court and (ii) she was not yet briefed, but was merely presuming that she would be briefed.
(c) Ms Healey's letter of 24 September 2007 to the Respondent was 'inflammatory', showing that she had 'taken a set against him' from the beginning. Indeed, as the Respondent said in his Declaration, Ms Healey assumed control of the case and treated him as 'a subordinate who should be chastised'. For these reasons, and because also he was obviously a 'conflict avoider', it could not be unsatisfactory professional conduct on his part to decide not to reply to the letter.
(d) The same considerations applied to the three later letters to which the Respondent did not reply.
(e) The Respondent could not be blamed for being slow to brief Ms Healey because he had to wait until he knew that the Public Defender was unavailable.
(f) In cases such as these there were usually multiple copies of police briefs of evidence. There was therefore no point in the Respondent giving one to Ms Healey. Furthermore, Ms Healey, after receiving the Brief to Appear on or soon after 21 November 2007, did not write back and ask the Respondent for a copy of the Brief of Evidence.
(g) The first of the two hearings that the Respondent relevantly failed to attend, that of 12 November 2007, was only a hearing to confirm readiness for trial.
(h) The second of these hearings occurred after the Respondent had been advised that pleas of guilty to reduced charges had been accepted. There was accordingly no need for him to attend this hearing.
(i) Because of the breakdown in relations and since also the Respondent knew that Ms Healey had copies of the references for Mr Fornaciari, there was therefore no point in the Respondent's becoming involved in the task of obtaining referees.
Mr Kintomanis made no submission regarding Ground (iv).
Conclusions on Grounds (i) to (iv)
In our opinion, the Respondent's conduct alleged under Grounds (i) to (iii) fell short of 'the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner'. It therefore amounted to unsatisfactory professional conduct under section 496 of the Act.
This conclusion is principally based on the fact that the Respondent neither supplied to Mr Fornaciari the professional services that he needed in order to respond adequately to the charges laid against him nor provided to Ms Healey the information and the documentary material that she needed in order to supply these services.
After the hearing on 13 August, the only steps that the Respondent took to assist Mr Fornaciari were (a) to ascertain that the Public Defender would not be available for the trial and (b) to send a short Brief to Appear to Ms Healey.
Irrespective of whether, as he alleged, the reasons why he did not attend the hearing on 24 September were that Ms Healey had agreed to do this, and that she was making it clear that she wanted to take over the whole case in accordance with Mr Fornaciari's wishes, he was still obliged, by virtue of his position as a solicitor providing assistance to Mr Fornaciari under a grant of legal aid, to perform a small number of simple tasks. At some stage, and at the very latest at the time (21 November) when he briefed Ms Healey, he should have provided her with an essential document (the Brief of Evidence) that she requested more than once and obviously needed. The fact that ultimately she was able to obtain sufficient access to this document by other means did not relieve him of this obligation. He should have attended the hearings on 12 November and 12 December or notified her, giving reasons, that he would not be attending. He should have answered the questions in her letters of 8 and 22 October as to the availability of the Public Defender. Finally, he should have organised references for the sentencing hearing in accordance with the request in her letter of 23 November, or notified her, giving reasons, that he did not believe this to be a task that he should have to fulfil.
As was alleged under Grounds (i) to (iii) and established by the evidence, the Respondent did none of these things.
The person at risk because of this behaviour of the Respondent was Mr Fornaciari. At no stage, on our assessment of the evidence, did the Respondent appear to realise this or, if he did realise it, to act accordingly. His counsel's submission that because he was a 'conflict avoider' his failure to reply to Ms Healey's letters was justifiable graphically demonstrates this. Even if he resented and was hurt by her criticisms of him at their meeting on 24 September and in her letter of that date, his duty to his client required him either to continue to act on the client's behalf or to take appropriate steps to ensure that Ms Healey was well placed to do so effectively. He failed in this duty.
We wish to add the following important observation. Many of the questions put by Mr Kintomanis to Ms Healey in cross-examination appeared to be designed to demonstrate that she, to put it bluntly, 'muscled in' on the Respondent's retainer by Mr Fornaciari. The purpose of asking these questions appears to have been to provide support for an argument that the impropriety of this conduct on her part justified any failure by the Respondent to assist Mr Fornaciari's cause in the ways that we have described.
This argument is entirely without merit. It follows that, as we pointed out at the hearing, the relevant parts of Ms Healey's cross-examination had no significance for the matters to be determined by us. Many of the questions to which we refer were put to her in an aggressive manner. We will simply state here that this should not have occurred.
We further observe that nothing emerging from this cross-examination gave grounds for thinking that Ms Healey's conduct was unprofessional in any way.
We agree with Ms Webster that, as Mr Kintomanis conceded, the conduct of the Respondent alleged under Ground (iv) amounted to unsatisfactory professional conduct.
Ground (v): breach of Tribunal orders
The Particulars setting out the essence of the Law Society's case under this Ground are P25 to P33 and P36 to P38.
The Respondent admitted all the allegations contained in these Particulars. They are substantiated in material annexed to Ms Foord's affidavit. This material shows that although the Tribunal, on 14 December 2010, ordered the Respondent to cause a report by a consultant psychologist treating him, Mr Backen, to be provided to the Law Society 'immediately after 30 June 2011', no such report was provided until 17 January 2012. A 'draft report' was provided on 20 December 2011, but it was unsigned.
The decision in which the Tribunal made the order (quoted in P25) that the Respondent breached is reported as Council of the Law Society of New South Wales v Tsalidis (No 2) [2010] NSWADT 297. This order, together with orders that the Respondent should be reprimanded and fined, was made by way of 'penalty' under section 562 of the Act, following a finding of professional misconduct.
In her submissions, Ms Webster drew our attention to paragraph [56] of this decision, in which the Tribunal indicated that the terms of the order were in fact proposed by the Respondent's counsel in the proceedings.
Ms Webster emphasised that the matters relied on by the Respondent as reasons why Mr Backen's report did not reach the Law Society until more than six months after the due date (see P39) occurred significantly later than this date. She submitted that even though some of the delay was attributable to the death of Mr Backen's father, which occurred on 16 August 2011, there was no reasonable excuse for the Respondent's failure to comply with the order on or before the stipulated date.
Section 498(1)(g) of the Act states that a contravention of an order made by the Tribunal is 'capable of being unsatisfactory professional conduct or professional misconduct'. Ms Webster argued that in view of the period of time during which the Respondent was in breach and the absence of any reasonable explanation for the delay, we should make a finding of professional misconduct.
Mr Kintomanis submitted that if the death of Mr Backen's father had not occurred on 16 August 2011, the likelihood was that the report would have been available during that month, or soon afterwards, and that a delay of only about two months would have given grounds for a finding of unsatisfactory professional conduct, at most. It followed, he said, that this was the correct characterisation for the Respondent's breach of the order.
At the conclusion of his report, Mr Backen in fact referred to his father's death, stating that it 'impacted on my contact with Mr Tsalidis and responding to the Law Society' and constituted 'an added complication to Mr Tsalidis' circumstances and my opportunity to complete the report and liaise with Mr Tsalidis in the last 3-4 months'.
We are not persuaded by this submission, which relies on speculation as to the actual effect of the death of Mr Backen's father on the completion of the report. It must be assumed that the Respondent could have obtained and tendered a short statement by Mr Backen supplying further information on this specific question. He did not do so.
An insufficiently explained delay of this magnitude in complying with an order by the Tribunal, made under section 562 of the Act following a finding of professional misconduct, must also in our opinion be regarded as professional misconduct. We accordingly make a finding to this effect in relation to Ground (v) of the Application.
The question of what order or orders by way of 'penalty', if any, should be made under section 562 of the Act remains to be determined at a further hearing. In accordance with an approach foreshadowed at the hearing on 7 June 2012, this hearing is to be joined with the hearing relating to 'penalty' in three other matters. Two of these derive from disciplinary applications (in files 112028 and 122016) instituted by the Law Society against the Respondent. The third derives from a disciplinary application (in file 112024) instituted by the Legal Services Commissioner. It is already the subject of a decision (Legal Services Commissioner v Tsalidis [2012] NSWADT 160) in which the Respondent was found to have engaged in professional misconduct.
We accordingly direct as follows. For the purpose of scheduling a further hearing on the question of consequential orders, the matter is set down for directions at 9.30 a.m. on Monday 12 November 2012.
**********
Decision last updated: 07 November 2012
3
2
1