Council of the Law Society of NSW v Tsalidis (No 5)

[2012] NSWADT 231

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Council of the Law Society of NSW v Tsalidis (No 5) [2012] NSWADT 231

Hearing dates:

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 Member

Decision:

1. The Respondent is guilty of unsatisfactory professional conduct.

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 have trust records externally examined

Legislation Cited:

Legal Profession Act 2004
Legal Profession Regulation 2005

Cases Cited:

Legal Services Commissioner v Tsalidis [2012] NSWADT 160

Category:

Principal judgment

Parties:

Council of the Law Society of New South Wales (Applicant)
Charles Kiriakos Tsalidis (Respondent)

Representation:

C Webster (Applicant)
P Kintomanis (Respondent)
Council of the Law Society of NSW (Applicant)

File Number(s):

122016

decision

Introduction

1. On 26 July 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 ('the Solicitor'), had engaged in unsatisfactory professional conduct, on the ground that he had failed to comply with section 274 of the Legal Profession Act 2004 (hereafter 'the Act').

1. Subsection (1) of this section imposes a requirement of external examination, at least once in each financial year, of the trust records of law practices. It is to this provision within section 274 that the Application referred.

1. 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.

1. On 26 July 2012, the Law Society also filed an affidavit sworn on the previous day by its solicitor, Ms Anne-Marie Foord.

1. The Solicitor did not file a Reply, or any evidence.

1. At the hearing of this matter before us on 15 August 2012, Ms Webster of counsel appeared for the Law Society and Mr Kintomanis of counsel for the Solicitor. At this hearing, we also dealt with other proceedings that the Law Society had commenced against the Solicitor (in file 122013).

1. We indicated that at this stage we would go no further than to receive evidence and submissions on the question whether the Solicitor had engaged in 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.

1. Ms Foord's affidavit was tendered and admitted, along with a statutory declaration dated 2 April 2012 that the Solicitor had sent to the Law Society. Ms Webster also handed up a Chronology prepared by the Law Society.

1. Ms Foord's affidavit contained a statement to the effect that according to the Law Society's records the Solicitor had been admitted to practise on 22 December 1982.

1. Mr Kintomanis did not tender any evidence relating to the questions being dealt with at the hearing. Equally, he made no submissions. He advised us that the Solicitor admitted the matters alleged in the Application and did not oppose a finding of unsatisfactory professional conduct.

The Grounds and Particulars

1. In the Application, the Law Society alleged as follows:-

CHARLES KlRlAKOS TSALIDIS was guilty of unsatisfactory professional conduct as set out in the following allegation:

Unsatisfactory professional conduct

Failure to comply with Section 274 of the Legal Profession Act, 2004.

Particulars of Grounds of Complaint

In these Particulars:

"the Solicitor" means CHARLES KlRlAKOS TSALIDIS.

"the Society" means the Law Society of New South Wales

1. The Solicitor was the principal of the Law Practice known as Charles K Tsalidis ["the Law Practice"].

2. The Law Practice conducted a Trust Account during the 12 months ended 31 March 2009.

3. The 2009 External Examiner's Report for the period 1 April 2008 to 31 March 2009 was required to be lodged with the Law Society by 31 May 2009.

4. The Law practice failed to lodge with the Law Society by 31 May 2009 (i) a Law Practice Declaration; (ii) a Trust Money Statement; and (iii) External Examiner's Report, for the year ending 31 March 2009 ("the Reports").

5. By letter dated 17 June 2009 Mr John Mitchell, Chief Trust Account Investigator and Supervisor ["Mr Mitchell"], wrote to the Solicitor advising that the Reports had not been received and requesting that the matter be given immediate attention. The Solicitor did not respond to Mr Mitchell's letter.

6. By letter dated 8 July 2009 Mr Mitchell again wrote to the Solicitor advising that the Reports had not been received and requesting that the matter be given immediate attention. The Solicitor did not respond.

7. On 3 August 2009 the Solicitor provided the Reports to the Law Society.

Discussion and conclusions

1. Section 274(1) of the Act states: 'A law practice must at least once in each financial year have its trust records externally examined by an external examiner appointed in accordance with the regulations.' Under section 277(2) and (3), the external examination is to be carried out in accordance with the regulations, which may provide for the procedures to be followed and the form and content of the examiner's report. In clause 95 of the Legal Profession Regulation 2005, authority is given to the Law Society to approve the form and content of this report.

1. The form approved by the Law Society for the relevant period in this case included the following statement at the top of the first page: 'To be lodged with the Law Society by 31 May 2009.' This had the effect of ensuring that the Society would receive the report at the time when, pursuant to sections 43 and 47 of the Act and clause 12(2) of the regulations, it was considering applications for renewals of practising certificates.

1. We are satisfied that, as admitted by the Solicitor, he contravened his obligations under section 274(1) of the Act in relation to the external examination of the trust records of his law practice.

1. Under section 498(1)(a), a contravention of the Act is 'capable of being unsatisfactory professional conduct or professional misconduct'.

1. The single contravention in this instance is not serious enough to be characterised as professional misconduct. We accept the Law Society's submission that we should make a finding of unsatisfactory professional conduct.

1. 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 122013) instituted by the Law Society against the Solicitor. 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 Solicitor was found to have engaged in professional misconduct.

1. 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.

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Decision last updated: 07 November 2012