Council of the Law Society of NSW v Tran

[2010] NSWADT 127

CITATION:	Council of the Law Society of NSW v Tran [2010] NSWADT 127
DIVISION:	Legal Services Division
PARTIES:	APPLICANT The Council of the Law Society of New South Wales RESPONDENT My Yen Thi Tran
FILE NUMBER:	092039
HEARING DATES:	19 May 2010
SUBMISSIONS CLOSED:	19 May 2010
DATE OF DECISION:	28 May 2010
BEFORE:	Haylen W - J (Deputy President); Barnes M - Judicial Member; Bennett C - Non-Judicial Member
CATCHWORDS:	Solicitor - unsatisfactory professional conduct - failure to disclose previous disciplinary proceedings in Application for renewal of Practising Certificate - Instrument of Consent under s 564 of the Legal Profession Act 2004 - carelessness in completing declaration - no intention to deceive or obtain improper personal gain - reprimand - costs
LEGISLATION CITED:	Legal Profession Act 2004
REPRESENTATION:	APPLICANT L Pierotti, solicitor L Muston, solicitor , Legal Services Commissioner RESPONDENT In person
ORDERS:	1.The respondent practitioner be reprimanded 2.The respondent practitioner shall pay the costs of the applicant in the sum of $1500.

REASONS FOR DECISION

1 Ms My Yen Thi Tran was admitted to practise as a solicitor in New South Wales in October 2001 and at all relevant times was employed by the practice My.T.Nguyen, Solicitors at Cabramatta. The primary areas of practice of the firm and of Ms Tran were conveyancing and immigration law. Ms Tran was registered as a migration agent. Ms Michelle My Nguyen was the principal of the firm.

2 In December 2009, the Council of the Law Society of New South Wales ("the Council") commenced disciplinary proceedings in the Tribunal pursuant to the provisions of s 551 of the Legal Profession Act 2004 claiming that Ms Tran was guilty of unsatisfactory professional conduct in that she had made a false declaration in applications for renewal of a Practising Certificate. Similar proceedings were commenced against Ms Nguyen and that matter is the subject of a separate decision by the Tribunal. Both matters were heard together.

3 The Council sought orders that the respondent practitioner be reprimanded and pay the costs of the applicant and such other orders as the Tribunal considered appropriate. Ms Tran accepted that she had not disclosed disciplinary proceedings that had been taken against her by the Council in her Applications for renewal and had admitted that conduct during the Council's investigation of the matter.

4 Before the Tribunal the parties announced that the matter would proceed by way of Consent Orders pursuant to the provisions of s 564 of the Legal Profession Act. In the course of the hearing to consider the Consent Orders, the orders ultimately sought and agreed to were as follows:

1. That the respondent practitioner be reprimanded.

2. The respondent practitioner pay the costs of the applicant in the sum of $1,500.

5 Pursuant to the provisions of s 565(5) of the Act, the Consent Orders included a Statement of Facts whereby the respondent practitioner agreed that she had engaged in unsatisfactory professional misconduct by making a false declaration in renewal Applications for a Practising Certificate. The Particulars agreed were as follows:

PARTICULARS

1. By Application for Original Decision dated 19 November 2007 (filed 3 December 2007) the Council of the Society commenced proceedings against the Solicitor in the Administrative Decisions Tribunal ("the Society's Application").

2. By Application dated 8 May 2008 the Solicitor applied to the Society for a 2008/09 Practising Certificate ("the 2009/09 renewal Application").

3. In the 2008/09 renewal Application, relevantly, the Solicitor made the following declaration:

"I declare that the contents of this application are true and correct and that I have not been the subject of any disciplinary (professional) proceedings ... since my last application for a practising certificate ..."

4. The Society's Application, as ultimately varied, was the subject of an Instrument of Consent and ultimate determination by the Legal Services Division of the Administrative Decisions Tribunal on 10 October 2008.

5. By Application dated 15 May 2009 the Solicitor applied to the Society for a 2009/10 Practising Certificate ("the 2009/10 renewal Application").

6. In the 2009/10 renewal Application the Solicitor made the following declaration:

"I declare that the contents of this application are true and correct and that I have not been the subject of any disciplinary (professional) proceedings ... since my last application for a practising certificate ..."

7. As at 8 May 2008 and 15 May 2009 the Solicitor had, since her last respective application for a Practising Certificate, been the subject of disciplinary proceedings and her declarations to the contrary in the 2008/2009 renewal Application and the 2009/10 renewal Application were false.

6 It is apparent from the Particulars that the same disciplinary proceedings were required to be disclosed in the Application for a Practising Certificate for the 2008/2009 year and also for the 2009/2010 year. Those disciplinary proceedings were commenced in late November 2007 and concluded in mid-October 2008 by way of an Instrument of Consent whereby the respondent practitioner was reprimanded, required to undertake and successfully complete certain nominated courses and was also fined the sum of $3,000.

7 In a Statutory Declaration forwarded to the Council during the course of its investigation, the respondent practitioner explained that the 2009/2010 Application for renewal of her Practising Certificate had been overlooked until the last day for its renewal. It was the practice of her firm to pay for the renewal of Practising Certificates. The principal of the firm, Ms Nguyen, discovered their oversight and in order to have it filed within time they both hurriedly filled out the application. The respondent practitioner candidly admitted that she had made the mistake of not carefully reading all of the form and noted that the requirement for persons who were subject to professional proceedings to disclose that situation by way of amendment to the Application was a requirement in fine print that was not quickly noticeable. She described her omission as "human error" and stated that it was not the result of a deliberate attempt to make a false declaration to the Law Society. She had assumed that the Law Society would have a record of the proceedings against her as it had investigated the matter and taken it to the Tribunal. The respondent practitioner also pointed out that, in renewing her registration as a Migration Agent in April 2009, she had disclosed the disciplinary proceedings that had been taken against her by the Council.

8 In the course of submissions it was accepted on behalf of the Council that the respondent practitioner's conduct was at the very lowest range of matters that might be considered a disciplinary breach. In view of the previous proceedings and having regard to the provisions of s 540(1)(b)(iii) and the need to consider whether any other substantial complaints had been made against the respondent practitioner, the Council had formed the view that it was not appropriate for the Council to proceed pursuant to s 540(2) and reprimand the respondent practitioner. The Council considered that the appropriate course was to commence proceedings in the Tribunal. It was, however, accepted on behalf of the Council that there was no intention to mislead and there was no personal benefit sought by the respondent practitioner in failing to make the appropriate disclosure in the renewal Applications. The Tribunal accepts that description of the respondent practitioner's conduct.

9 Having regard to the evidence before it, the Tribunal is satisfied that a full hearing of this matter is not required and having regard to all the circumstances, a reprimand is an appropriate penalty. Essentially, this case demonstrates the need for practitioners to be diligent, conscientious and careful with the documents they handle during the course of their practice, especially a document so fundamental to legal practice as the Application or renewal of a Practising Certificate. Had the conduct of the respondent practitioner been designed to mislead then very much more serious consequences by way of penalty would have to be considered.

10 Pursuant to the provisions of s 564 of the Act and by consent of the parties, the Tribunal makes the following orders:

1. The respondent practitioner be reprimanded.

2. The respondent practitioner shall pay the costs of the applicant in the sum of $1500.