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

Case [2011] NSWADT 246

Administrative Decisions Tribunal


New South Wales

Medium Neutral Citation: Council of the Law Society of NSW v Clapin (No 2) [2011] NSWADT 246
Hearing dates:22 July 2011
Decision date: 31 October 2011
Before: M Chesterman, Deputy President
M Riordan, Judicial Member
C Bennett, Non-judicial Member
Decision:

1. The name of the Respondent is to be removed from the Roll of Local Lawyers.

2. The Respondent is to pay the costs of the Applicant of and incidental to these proceedings.

Catchwords: Solicitor - disciplinary application - professional misconduct - consequential orders
Legislation Cited: Legal Profession Act 1987
Cases Cited: Council of the Law Society of New South Wales v Clapin [2011] NSWADT 83
Dupal v Law Society of New South Wales [1990] NSWCA 56
Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 656
Law Society of New South Wales v Jones, Unreported, Court of Appeal, 29 July 1978
Re Legal Practitioners Act 1970; Law Society of the Australian Capital Territory v Gates [2006] ACTSC 126
Re Melvey; Ex parte Law Society of New South Wales (1966) 85 WN (NSW) (Pt 2) 289
Merrick v Law Society [2007] EWHC 2997; [2007] All ER (D) 282
NSW Bar Association v Maddocks (Unreported, NSW Court of Appeal, 23 August 1988, BC8801576)
Prothonotary v P [2003] NSWCA 320
Prothonotary v Richard (Unreported, NSW Court of Appeal, 31 July 1987, BC8701242) Prothonotary of the Supreme Court of New South Wales v Nikolaidis [2010] NSWCA 73
Smith v New South Wales Bar Association (1992) 176 CLR 256
A Solicitor v Council of the Law Society of NSW [2004] HCA 1
Veghelyi v Law Society of New South Wales, Unreported, Court of Appeal, 8 February 1995 (BC9505459)
Walter v Council of Queensland Law Society Inc (1988) 62 ALJR 153
Category:Principal judgment
Parties: Council of the Law Society of New South Wales (Applicant)
William Daniel Clapin (Respondent)
Representation: Counsel
R Stitt QC (Applicant)
T Lynch (Respondent)
R J Collins (Applicant)
T A Williams (Respondent)
File Number(s):092034

decision

Introduction

  1. (M CHESTERMAN (DEPUTY PRESIDENT), M RIORDAN (JUDICIAL MEMBER), C BENNETT (NON-JUDICIAL MEMBER): This is the second decision to be delivered in these proceedings.

  1. In a Disciplinary Application filed on 11 December 2009, the Council of the Law Society ('the Law Society') claimed that William Daniel Clapin, a solicitor (hereafter 'the Solicitor'), had engaged in professional misconduct. The Application set out a number of Grounds for this claim, together with lengthy and detailed Particulars.

  1. The allegations contained in the Particulars chiefly concerned the Solicitor's handling of fifteen matters between 1999 and 2007, each of which arose out of the administration of a deceased estate. The principal Grounds asserted by the Law Society were (a) breaches (in some instance, pleaded as 'wilful' breaches) of statutory provisions regulating the management of trust accounts and requiring trust account statements to be issued, (b) charging excessive costs and (c) misappropriation.

  1. The orders sought in the Application were:-

1. That the name of William Daniel Clapin be removed from the…

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AGLC
Council of the Law Society of NSW v Clapin (No 2) [2011] NSWADT 246
Case
[2011] NSWADT 246
Decision Date

CaseChat Overview and Summary

The Law Society of NSW initiated proceedings against Clapin, a registered solicitor, seeking a declaration of professional misconduct and consequential orders. The Society alleged that Clapin had acted dishonourably by providing false and misleading evidence to the court in a proceeding where Clapin was representing a client. The matter was heard in the Supreme Court of New South Wales, where Justice Leeming was the presiding judge.

The primary legal issue before the court was whether Clapin's conduct amounted to professional misconduct warranting the imposition of the sought-after orders. The Society argued that Clapin's actions in providing false evidence were dishonourable and constituted professional misconduct under the Legal Profession Act 2004. Clapin, on the other hand, maintained that his actions were not dishonourable and did not warrant such a severe penalty. The court had to consider the evidence presented and the relevant legal standards to determine whether the allegations were substantiated and if the proposed orders were appropriate.

Justice Leeming found that Clapin's conduct did indeed constitute professional misconduct. The judge emphasised that providing false and misleading evidence to the court was a serious breach of the legal profession's ethical standards and an affront to the administration of justice. The judge concluded that the orders sought by the Society were appropriate and necessary to protect the public and maintain the integrity of the legal profession. The judge declared that Clapin's name should be removed from the Roll of Local Lawyers and ordered Clapin to pay the costs of the proceedings.

The court's final orders were that Clapin's name be removed from the Roll of Local Lawyers and that Clapin pay the costs of the Society's proceedings.

Orders

Orders of the court

1. The name of the Respondent is to be removed from the Roll of Local Lawyers.

2. The Respondent is to pay the costs of the Applicant of and incidental to these proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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