Council of the Law Society of the Australian Capital Territory v Legal Practitioner (Mamdouh Elmaraazey) (Occupational Discipline)
[2009] ACAT 29
•7 September 2009
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY v THE LEGAL PRACTITIONER (Mamdouh Elmaraazey) (Occupational Discipline) [2009] ACAT 29
LP 10 of 2008
Catchwords: OCCUPATIONAL DISCIPLINE – LEGAL PROFESSION –Legal Profession (Solicitors) Rules 2007 – failure to respond when required – professional misconduct – trust account irregularities – failure to provide information to investigators
Legal Profession Act 2006 (ACT), s419
ACT Civil and Administrative Tribunal Act 2008 (ACT)
ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009 (ACT)
Legal Profession (Solicitors) Rules 2006 (ACT)Briginshaw v Briginshaw (1938) 60 CLR 336
RE Nelson (1991) 106 ACTR 1
The Law Society of the Australian Capital Territory v Gates [2006] ACTSC 126
Tribunal: Mr B Loftus Member, Presiding
Mr R Watch Member
Ms D LucasMember
Date of Orders: 7 September 2009
Date of Reasons for Decision: 7 September 2009
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) LP 10 of 2008
BETWEEN:
COUNCIL OF THE LAW SOCIETY OF
THE Australian Capital
Territory
Applicant
AND:
MAMDOUH ELMARAAZEY
Respondent
Tribunal: Mr B Loftus Member, Presiding
Mr R Watch Member
Ms D LucasMember
DATE: 7 September 2009
ORDER
Being satisfied that Mamdouh Elmaraazey is guilty of professional misconduct the Tribunal orders that –
1. He be and is hereby reprimanded.
2. The reprimand be made public.
3. His unrestricted practising certificate is suspended for a period of 12 months and is not to be renewed until after he has undertaken and successfully completed the trust accounts module with a pass mark of at least 75% of the Australian National University Legal Workshop Graduate Diploma of Legal Practice. During this period he may apply for a restricted practising certificate for the purpose of practising in employment under the holder of an unrestricted practising certificate.
4. The respondent solicitor is to pay the Law Society’s costs on a solicitor client basis at the Supreme Court scale, as agreed between the parties or failing such agreement as taxed by the Supreme Court’s taxing officer in accordance with the rules of that Court.
5. The non-publication order previously made by President Crebbin on 13 February 2009 is discharged.
6. The names of any complainants and any evidence which might tend to identify them are not to be published.
…………………………….
Brian Loftus
Presiding Member
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) LP 10 of 2008
BETWEEN:
COUNCIL OF THE LAW SOCIETY OF
THE Australian Capital
Territory
Applicant
AND:
MAMDOUH ELMARAAZEY
Respondent
REASONS FOR DECISION
This matter comes before the Tribunal as a result of a Notice of Complaint (“application”) dated 3 December 2008 brought under Section 419 of the Legal Profession Act 2006 (“the Act”) against the Respondent Practitioner (“solicitor”).[1]
[1] This decision was previously anonymised and cited as Council of the Law Society of the Australian Capital Territory v Legal Practitioner [2009] ACAT 29 pursuant to section 423A of the Legal Profession Act 2006. As the appeal period has ended, the practitioner has now been identified in the citation of this decision. The reasons for decision otherwise remain unchanged from the date of publication.
Although the application was filed prior to the commencement of the ACT Civil and Administrative Tribunal Act 2008 there was no issue raised by the parties and it was also the view of the Tribunal that the Tribunal had jurisdiction to hear this matter.
The Law Society was given leave to file in the Tribunal an amended application. The amendments were minor and are as follows:
(a) Ground 10 on page 11 was correctly renumbered to Ground 9.
(b)Ground 10 on page 12 of the application was amended by the addition of the words “into his general trust account”, these words having been inadvertently omitted in the original.
For ease of reference annexed to these Reasons is a copy of the Law Society’s application as amended. The Law Society does not press Grounds 4, 11 and 12.
Of the nine charges that are pressed all relate to the failure on the part of the solicitor between 2005 and about 2006 to comply with his trust accounting obligations as set out in the Legal Profession Act 2006 (ACT) and the Legal Profession (Solicitors) Rules 2006 (ACT) of the ACT Law Society, with the exception of Ground 1. Ground 1 charges a failure to provide a detailed account of costs when requested. The solicitor admits all of the allegations contained in the Grounds of Complaint that are now pressed by the Law Society in these proceedings. This early admission saved considerable time and the upshot was that, while it was necessary for the Law Society formally to adduce evidence to prove the allegations pressed, in reality the hearing proceeded more on the basis of relevance as to whether and if so what sanction should be imposed.
The solicitor’s Counsel conceded further that the conduct of the solicitor was capable of constituting professional misconduct, although naturally he urged upon the Tribunal that it should find that his client’s behaviour amounted to the lesser characterisation of unsatisfactory professional conduct.
The solicitor was first issued with an unrestricted practising certificate by the Law Society in September 2004. He continues to hold that certificate and continues to practice as a sole practitioner under the name Mamdouh Elmaraazey. Following complaints by clients, the Council of the Law Society on 20 June 2006 appointed Gary James Murphy a registered company auditor of Duesburys Nexia as an investigator to investigate the affairs of the respondent solicitor. Mr Murphy provided a report of his investigation on 30 March 2007. The solicitor responded in writing dated 14 June 2007 to the comments of Mr Murphy and on 19 May 2008 the Council of the Law Society reappointed Mr Murphy to further investigate the affairs of the solicitor.
On 18 June 2007 the Council of the Law Society renewed the solicitor’s unrestricted practising certificate but imposed statutory conditions that he, at his own expense, have his trust account and records relating thereto audited and reported upon on a monthly basis. This was done and continued until
3 December 2008 when the Society resolved to remove the monthly audit and reporting conditions.
The solicitor’s Counsel urged, properly in the view of the Tribunal, that it should be inferred from the removal of the monthly audit and reporting conditions that the solicitor was then following proper trust account practice and complying with all rules and regulations relating to the keeping of trust accounts and to his general account. However that is not the end of it. While it is true that he complied with the rules and regulations governing the proper keeping of trust accounts, that is not to say that he would continue to do so once the close overseeing and reporting conditions were removed, notwithstanding that he did seek the advice of two senior practitioners in the restructuring of his practice.
The Tribunal found the solicitor’s evidence to be most unsatisfactory. Not only was he confrontational under cross examination but he was evasive and obfuscatory. At one point (T33 17-35) it became necessary for the presiding member to remind him of his obligation to answer questions responsively.
He argued with Counsel in cross examination and repeatedly failed to respond to questions put to him. It was the view of the Tribunal, having observed his demeanour and his command of the English language, that he understood perfectly well what was being asked of him. His Counsel submitted that he was confused because English was not his native tongue. The Tribunal does not accept that. His command and use of the English language was of a high standard. He appeared to us to have a complete understanding of what was being asked but he chose not to answer.
Of particular concern were his answers to questions put at T31-38, 41-43, 45-47 and 54-55.
The delay of the Law Society in bringing the complaint is regrettable and to some extent was a matter for consideration in favour of the solicitor, the answers he gave in cross examination concerning his payment of $4,000.00 into his wife’s Visa account, rather than into trust as it should have been, and his reasons given for not producing the said account to Mr Murphy when requested by him, are of particular concern. These seem to the Tribunal to demonstrate that he has not yet learnt his lesson and is not yet aware, or else he is uncaring, of the rules and regulations governing the keeping of trust accounts. To see the matter in perspective it is necessary to quote a small portion of his cross examination at T55 16-45.
Mr Elmaraazey, the question was it doesn’t justify paying the money directly into your wife’s Visa card account, does it?----Why not? It’s the culture you see, we’re Egyptians and that’s how we live, you see.
What, your account’s her account?---No, I didn’t say that I said look if she put some money to spend on our family I cannot turn a blind eye when what she was spending - - - -
And yet despite this obvious closeness and share of burdens you weren’t prepared to take steps to have that Visa account provided to Mr Murphy, were you?----I did and she said no.
What steps did you take?---I did talk to my wife about it and- - -
What did you say - - -?---I told her that there is a request about your Visa account and I need to provide those accounts and she said no. Do you want to know why? Do you want to know why?
Mr Elmaraazey, what else did you do?---And then she said, “I’m not going to give you that account because when I was in hospital after my surgery and you requested an extension to answer a complaint for just two weeks they said no. And they should not treat us like dogs because if you would have told anyone that my dog needs treatment they should have allowed that extension for two weeks”. So here it is here we go.
I see so that was the reason she gave for not providing the Visa account?---That’s her personal account.
Notwithstanding the fact that $4000 had been paid from a client of yours straight into it, is that right?---So what?
It appears to the Tribunal from his cross examination that the solicitor cannot yet be entrusted to keep his trust account in a proper manner and in accordance with the Act and Professional Conduct Rules. The solicitor demonstrated a cavalier attitude to his obligations of frankness and candour to a Law Society investigator. The Tribunal also finds that he displayed the same cavalier attitude to the keeping of his trust account and still “does not get it”. The Tribunal is comfortably satisfied on the basis of Briginshaw v Briginshaw (1938) 60 CLR 336 that the solicitor has been guilty of professional misconduct.
The Tribunal has considered closely the evidence provided by the Law Society and notes that the solicitor admits those charges which are still pressed – this is a concession which goes in his favour and that also has been considered.
In RE Nelson (1991) 106 ACTR 1 the Supreme Court considered that “habitual failure to comply with usual and proper procedures is capable of constituting misconduct by a solicitor.”
In The Law Society of the Australian Capital Territory v Gates [2006] ACTSC 126 (“Gates”) the Court found that “a persistent and egregious failure to comply with trust account regulations and more importantly to properly deal with trust account funds” constituted professional misconduct, even where no defalcation or dishonesty was involved.
In Gates the Supreme Court suspended the practitioner for a year and in that case there does not appear to have been the “aggressive defiance and implausible and public false denials and excuses that characterised Mr Elmaraazey’s approach”, as it was put by the Counsel for the Law Society in written submissions. Having observed the conduct of the solicitor during cross examination at the hearing, the Tribunal agrees with this characterisation.
The offences are serious. The Tribunal has a duty to act in protection of the public as well as to impose sanctions that are appropriate as general and specific deterrents.
The Tribunal is of the view that the solicitor should not be allowed to practice as a principal of a firm or on his own account for at least a year and not until he has demonstrated a knowledge and understanding of the keeping of trust accounts and a willingness to comply with the Act and Professional Conduct Rules relating thereto.
Accordingly the Tribunal finds as follows -
Being satisfied that Mamdouh Elmaraazey is guilty of professional misconduct the Tribunal orders that –
1. He be and is hereby reprimanded.
2. The reprimand be made public.
3. His unrestricted practising certificate is suspended for a period of 12 months and is not to be renewed until after he has undertaken and successfully completed the trust accounts module with a pass mark of at least 75% of the Australian National University Legal Workshop Graduate Diploma of Legal Practice. During this period he may apply for a restricted practising certificate for the purpose of practising in employment under the holder of an unrestricted practising certificate.
4. He is to pay the Law Society’s costs on a solicitor client basis at the Supreme Court scale, as agreed between the parties or failing such agreement as taxed by the Supreme Court’s taxing officer in accordance with the rules of that Court.
5. The non-publication order previously made by President Crebbin on 13 February 2009 is discharged.
6. The names of any complainants and any evidence which might tend to identify them are not to be published.
The Tribunal notes that the time between the commission of the admitted offences by the solicitor and the filing of the application by the Law Society was approximately 3 years. This is, absent some reason that has not been disclosed to the Tribunal, far too long.
…………………………….
Brian Loftus
Presiding Member
ANNEXURE A
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: LP 08/10
APPLICANT: COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY
RESPONDENT: THE LEGAL PRACTITIONER
COUNSEL APPEARING: APPLICANT: MR BEAUMOUNT
RESPONDENT: MR LIVINGSTON
SOLICITORS: APPLICANT: MR PHELPS
RESPONDENT:
OTHER: APPLICANT:
RESPONDENT: SELF
TRIBUNAL MEMBER/S: MR B LOFTUS
MR R WATCH
MS D LUCAS
DATE/S OF HEARING: 8 JULY 2009 PLACE: CANBERRA
DATE/S OF DECISION: 7 SEPTEMBER 2009 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
1
3
4