Council of the Law Society of NSW v Carbone (No 2)

[2009] NSWADT 321

CITATION:	Council of the Law Society of NSW v Carbone (No 2) [2009] NSWADT 321
DIVISION:	Legal Services Division
PARTIES:	Applicant: Council of the Law Society of New South Wales Respondent: Domenic Carbone
FILE NUMBER:	072024
HEARING DATES:	3 April 2009
SUBMISSIONS CLOSED:	3 April 2009
EXTEMPORE DECISION DATE:	3 April 2009
BEFORE:	Brennan J - Judicial Member; Riordan M - Judicial Member; Tingle J - Non-Judicial Member
MATTER FOR DECISION:	Penalty
LEGISLATION CITED:	Legal Profession Act 1987 Legal Profession Act 2004
CASES CITED:	Law Society v Cass [2006] NSWADT 152; Law Society v Shalovsky [2008] NSWADT 14; The Legal Services Commissioner v Tsolakis [2000] NSWADT 21
REPRESENTATION:	Applicant Representative: Mr Boyd Respondent Representative: Mr Williams
ORDERS:	1) The Tribunal reprimands the solicitor following the findings of professional misconduct and unsatisfactory professional conduct against him. 2) Being orders the solicitor to pay by 30 June 2009 a fine in the sum of $2000 and orders in default of such payment, the solicitor’s practising certificate be suspended until he makes such payment. 3) The Tribunal orders the solicitor to pay the Law Society’s costs in these proceedings agreed in the sum of $5000 includes GST, payable on or before 2 October 2009.4) The Tribunal directs the registry to provide the Legal Services Commissioner with sufficient information to enable the Commissioner to exercise his powers and functions in respect of the registry of disciplinary action required to be kept under part 4(10) of the Legal Profession Act 2004.

REASONS FOR DECISION

1 In this matter the Tribunal published its reasons for decision on 30 January 2009. The Society alleges the solicitor is guilty of five counts of professional misconduct and three counts of unsatisfactory professional conduct. Following a three day hearing, the Tribunal determined that it was satisfied that one ground of professional misconduct and two grounds of unsatisfactory professional conduct had been established against the solicitor. The remaining complaints were dismissed and the matter stood over for submissions in relation to the appropriate orders to be made. In consequence of its finding it came for hearing for that purpose today.

2 The finding of professional misconduct by the solicitor related to failure by the solicitor to comply with a notice issued under section 152 of the Legal Profession Act 1987. The notice was served on the solicitor on 28 September 2005 and in response, the solicitor provided a statutory declaration made on 17 October 2005. The solicitor, in his letter of 5 July 2006 to the Society, set out a schedule of twelve further documents which he enclosed. Further documents were provided by the solicitor on 13 November 2006 and the Tribunal was unable to determine whether this constituted full compliance with the notice. The facts are detailed in paragraphs 37 to 53 of the reasons for decision.

3 The solicitor initially made a partial compliance with the notice but it is clear that this did not include the files which were covered by the notice. The first finding of unsatisfactory professional conduct was in relation to the solicitor’s failure to communicate with his clients and new solicitors. The findings, on this complaint, are detailed in paragraphs 54 to 64 of the Tribunal’s reasons for decision on 30 January 2009. The conduct related to the failure of the solicitor to respond to communications from the new solicitors for the client which the solicitor endeavoured unsuccessfully to categorise as “a matter of courtesy”.

4 The Tribunal found that he had clear duty to respond promptly to the correspondence involved in this complaint and to address the issues raised with clarity. The relevant findings of unsatisfactory professional conduct relate to the solicitor’s failure to transfer the file to the client’s new solicitors and is referred to in detailed in the reasons for decision in paragraphs 65 to 69. The Tribunal found that no claim for lien was properly raised and that all material times the solicitor was willing to release the file upon payment on account of photocopying charges of $1500 and undertaking to pay any additional charges incurred.

5 The solicitor and the Society have submitted a document dated today and signed by the legal representatives providing for orders in terms of which I will read later. The Tribunal has considered the submissions of both parties in support of the orders being made and the terms involved. In particular, the Tribunal was referred to three cases as being Law Society v Cass [2006] NSWADT 152; the Law Society v Shalovsky [2008] NSWADT 14; The Legal Services v Tsolakis [2000] NSWADT 21. Cass’ case was a section 152 matter where a reprimand and a cost order resulted with no fine. The Tribunal took into account medical evidence in determining that no fine was appropriate.

6 There is no such medical evidence in this matter and there are, in addition to the 152 finding here, two additional findings of unsatisfactory professional conduct. In Shalovsky the solicitor was reprimanded and ordered to pay costs and, if seeking a practising certificate, to first successfully undertake a risk management course. The findings in Shalovsky related to section 152 notices only but it is not considered to be of great assistance to the Tribunal in this matter. In Tsolakis, the only complaint referred to a section 152 notice. The Commissioner sought a fine, the Tribunal having taken into account of the nature of the complaint, the character evidence and the change in attitude of the solicitor, found that the matter could be dealt with appropriately by a public reprimand and a cost order.

7 It is perhaps convenient to paraphrase, if not quote fully, from paragraph 18 of Shalovsky in relation to the orders that are appropriate. “The duty of the Tribunal is protective and not punitive. The orders proposed need to protect the public and the solicitor as well as providing sufficient warning to the profession of the importance of co-operation with professional regulators as instanced by the obligation to comply promptly with a notice from a regulator”, which in this case, of course, was the Society.

8 The Tribunal finds the total of three findings against the solicitor makes the imposition of a fine, coupled with a public reprimand and cost order to be appropriate. The costs which have been agreed between the parties it is submitted, represent approximately one third of the Society’s overall costs and the Tribunal finds that this is an appropriate manner of dealing with the costs issue. The Tribunal has considered the material before it and finds that the orders sought by both parties represent a fair and appropriate resolution of proceedings in all the circumstances. In view of the public reprimand involved and the terms of section 252(8) and (9) of the Legal Profession Act 2004 the Tribunal finds that it is appropriate to give a direction, the orders and the direction and accordingly are in the following terms:

1) The Tribunal reprimands the solicitor following the findings of professional misconduct and unsatisfactory professional conduct against him.

2) Being orders the solicitor to pay by 30 June 2009 a fine in the sum of $2000 and orders in default of such payment, the solicitor’s practising certificate be suspended until he makes such payment.

3) The Tribunal orders the solicitor to pay the Law Society’s costs in these proceedings agreed in the sum of $5000 includes GST, payable on or before 2 October 2009.

4) The Tribunal directs the registry to provide the Legal Services Commissioner with sufficient information to enable the Commissioner to exercise his powers and functions in respect of the registry of disciplinary action required to be kept under part 4(10) of the Legal Profession Act 2004.