Double Bay Law Pty Ltd. t/a & Legal & Howard Hilton v Council of the Law Society of NSW
[2013] NSWADT 182
•14 August 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Double Bay Law Pty Ltd. t/a & Legal & Howard Hilton v Council of the Law Society of NSW [2013] NSWADT 182 Hearing dates: 11 April, 2013 Decision date: 14 August 2013 Jurisdiction: Legal Services Division Before: S Hale, Judicial Member
M Riordan, Judicial Member
R Fitzgerald, Non-Judicial MemberDecision: Pursuant to the Legal Profession Act, 2004 Section 17, the Tribunal approves the employment of Howard Hilton in the practice of the First Applicant upon the following conditions:
1. Mr. Hilton is to be supervised by Mr. Darian Iacono (the Solicitor) at all times. If the Solicitor is absent from the law practice for more than 3 consecutive days, the supervision is to be undertaken by another suitably qualified solicitor who is employed by the Solicitor's law practice, provided that the other Solicitor is given a copy of these conditions. In the absence of such an arrangement, Mr. Hilton's employment is suspended until the Solicitor returns to the law practice.
2. Mr. Hilton is not to have access to or be a signatory to any account conducted with any financial institution by the Solicitor in the course of his practice.
3. No written material drafted by Mr. Hilton is to be dispatched from the Solicitor's office without prior approval of the Solicitor, except for routine correspondence that is within the scope of duties of a lay associate that contains no legal advice or opinion.
4. Any written material leaving the Solicitor's practice under the name or signature of Mr. Hilton shall also include under Mr. Hilton's name the words 'Lay Associate'
5. Mr. Hilton is not to receive for his own account any money from any client or potential client of the Solicitor in relation to services performed or to be performed. Mr. Hilton may collect fees as is usual on account of the Solicitor's law practice from clients.
6. Any attendance by Mr. Hilton on clients of the Solicitor's Law Practice shall be restricted to discussions of matters that are within the ambit of his employment as a lay associate, including the taking of instructions about factual matters. Such attendance may take place in the absence of a solicitor of the Solicitor's Law Practice, but only if the client has been informed that Mr. Hilton is a lay associate and not a solicitor.
7. Mr. Hilton is not to hold himself out or represent himself as being a local lawyer or a legal practitioner.
8. Mr. Hilton is not to tender legal advice to any clients of the Solicitor's Law Practice, but may provide legal comment to those within the Solicitor's Law Practice.
9. Any business card or other form of identification of Mr. Hilton identifying him with the Solicitor's Law Practice must clearly include on its face the words 'Lay Associate'.
10. Mr. Hilton is not to have a key or other means of entry to any office from which the solicitor carries on legal practice and may not attend such office or offices unless a solicitor or other employee of the Solicitor's Law Practice is also on the premises.
11. The remuneration of Mr. Hilton shall be by way of stipulated salary or hourly rate or by way of bonus payments that the Solicitor deems appropriate from time to time.
12. Prior to commencement of his employment, the Solicitor and Mr. Hilton shall inform the Law Society in writing that they personally understand these conditions and provide the Society with a signed undertaking that they will abide by any conditions made by the Tribunal that relate to them.
13. If Mr. Hilton ceases to be employed by the Solicitor, the Solicitor must advise the Manager, Professional Standards Department of the Law Society that Mr. Hilton is no longer employed.
14. The scope of Mr. Hilton's duties as a lay associate are to include, but are not limited to, attending Courts or Tribunals to appear at directions hearing or simple mentions, if a court grants leave to do so upon being advised that Mr. Hilton is a lay associate, and briefing counsel in relation to factual matters.
Catchwords: Application for approval to employ person as a lay associate Legislation Cited: Legal Profession Act 2004 Cases Cited: Dawson v. The Law Society of New South Wales (unreported)
Dezarnaulds and Warn v. Law Society [1995] 5 LPDR 9
Miedzinski v. Council of the Law Society of NSW [2007] NSW ADT 268
Hegney v. Law Society of New South Wales [2008] NSWADT 150
La Fontaine v. Law Society [2006] NSWADT244
Law Society v. Bannister (1993) 4 LPDR 24)Category: Principal judgment Parties: Double Bay Law Pty Ltd. t/a & Legal & Howard Hilton (Applicant)
Council of the Law Society of NSW (Respondent)Representation: Counsel
D Bennett QC and M Gaven (Applicants)
Double Bay Pty Ltd t/as &Legal (Applicant)
Council of the Law Society of NSW (Respondent)
File Number(s): 122036
reasons for decision
INTRODUCTION:
Howard Hilton ('Mr. Hilton'), a former Solicitor admitted to practice on 26 August, 1966, was convicted of conspiring to bribe a Minister in October, 1986 and was sentenced to 9 years imprisonment with a 6 year non parole period. The sentence was reduced to 6 years with a 4 year non parole period by the Court of Criminal Appeal in 1987.
Mr. Hilton served jail time of 2 years and 9 months being released on 4 August, 1989. He received the statutory 1/3rd remission for ordinary good behaviour plus he received an additional 2 days per month remission for exemplary conduct.
Mr. Hilton's name was removed from the Roll by Order of the Supreme Court of New South Wales on 27 June, 1988.
Following his release from jail, Mr. Hilton found employment within the insurance industry but subsequently and gradually created a small finance brokerage firm called Lexicon Financial Services which he currently operates. Lexicon carries out commercial lending work involving Mr. Hilton liaising and negotiating with lawyers and other professionals. In his earlier professional life, Mr. Hilton had conducted a large conveyancing practice which had enabled him to gain experience in matters of borrowing and lending.
Mr. Darian Iacono, solicitor, and sole shareholder and director of a law practice known as Double Bay Pty Ltd. t/as '& Legal' ('the Law Practice') has known Mr. Hilton for approximately 8 years in both a professional and personal capacity. Mr Iacono is fully aware of Mr. Hilton's impugned conduct but in his dealings with Mr Hilton has found him to be of good character.
Mr. Iacono wishes to employ Mr. Hilton in his legal practice as a 'lay associate'. The proposed employment will entail Mr. Hilton working under the supervision of Mr. Iacono in the areas of commercial transactions, property transactions and litigation. Mr. Hilton, being a disqualified and convicted person is prohibited from being employed in a law practice without the approval of this Tribunal.
THE APPLICATION
The formal Application before the Tribunal is made by Double Bay Law Pty Ltd. T/as & Legal ('the law practice') and Howard Hilton.
The Order sought is that Howard Hilton be allowed to be an employee of Double Bay Law Pty Ltd. t/a & Legal as a 'lay associate'.
The Application relies upon the grounds that Mr. Hilton has been of good character since his release from prison, that he has always acted ethically in his interactions with the Law Practice and with clients of the Law Practice, that he would be an asset to the Law Practice and that he is willing to undertake a Graduate Certificate in Professional Legal Practice Solicitors Training Course through the University of Technology, Sydney should the Application be successful. The Application is supported by 23 referees, many of whom are current senior members of the legal profession.
The Application is opposed by the Council of the Law Society of New South Wales ('the Respondent') although the Respondent takes no issue with the Law Practice as the proposed Employer or with Mr. Iacono as the proposed Supervisor.
THE LAW RELATING TO THE PROPOSED APPLICATION
Section 4 of the Legal Profession Act, 2004 relevantly provides:
'Disqualified person' means any of the following persons whether the thing that has happened to the person happened before or after the commencement of this definition:
(a) A person whose name has (whether or not at his or her own request) been removed from an Australian roll and who has not subsequently been admitted or re-admitted to the legal profession under this Act or a corresponding law.....
'serious offence' means an offence whether committed in or outside this jurisdiction that is:
(a) An indictable offence against a law of the Commonwealth or any jurisdiction (whether or not the offence is or maybe dealt with summarily)....'
Section 17(3) of the Legal Profession Act, 2004 provides, relevantly, that a law practice must not have a lay associate whom any principal or legal practitioner associate of the law practice knows to be a person who has been convicted of a serious offence, unless the associate is approved by the Tribunal.
It is common ground that Mr. Hilton is both a disqualified person and a person who has been convicted of a serious offence within the meaning of S. 4 of the Act and is therefore prohibited from working in a law practice unless his prospective employer has obtained the approval of this Tribunal pursuant to S.17(3).
CASE FOR THE APPLICANTS
Counsel for the Applicants moved on a Statutory Declaration of Mr. Hilton dated 11 December, 2012, together with a Statutory Declaration of the proposed employer, Mr. Iacono dated 11 December, 2012. Both gave oral evidence. Counsel also tendered 23 testimonials in support of the Application.
In his Statutory Declaration Mr Hilton says:
"120. I am now nearly 70 years old but am fit and reasonably vigorous. I seek to be readmitted because I miss the law and the life. I feel that I still have something to contribute and because I would enjoy the chance to again practice. Probably I would practice in the areas with which I am familiar which are criminal law and advocacy and perhaps some commercial work as I have become accustomed to this in my years of finance broking.
121. The question must be asked as to whether I can be 'trusted'. This is for others to judge. However, I have never been involved with the wrongful handling of money. The circumstances leading to the offence for which I was convicted are unlikely to again occur and in any event even if they did I simply am not interested in that sort of thing. I was interested only once and in fairly unusual circumstances and I think it highly improbable that I would again offend in this or any other way.
122. In my post law life as a broker I believe that I have behaved decently, honestly and honourably and I see no reason to change that pattern should I have the privilege of again practising the law.
123. Mr Darian Iacono of & Legal of Double Bay, a friend of mine, has kindly offered to supervise me and John Hajje a lawyer who used to be my clerk has offered to assist also. I imagine that initially I would be doing junior work, attending conferences, instructing counsel and generally relearning the trade. I would hope that after 12-18 months I will apply for admission as a solicitor.
124. I have made enquiry at UTS and there is a Graduate Diploma in Legal Studies that seems very useful and that commences next year and can be done part time over 2 semesters. I intend to do that course.
125. I attach a schedule of referees from people I have dealt with personally and professionally over the last 23 years".
In his oral evidence, Mr Hilton said his understanding of the type of work he would carry out for the Law Practice would be work of a commercial nature, property transactions and research, essentially being office work.
When asked what his understanding of the expression "lay associate" meant, Mr Hilton described his role as that 'of an assistant, like an articled clerk, working under the supervision of the solicitor' and 'that he was hopeful he could have some input into preparing briefs for counsel, attending conferences in the company of Mr. Iacono and generally re-learning the trade.' He said that originally he envisaged making the application on the basis of readmission but changed his mind, however, if his application was successful, he indicated that at some stage in the future, he would consider applying for readmission to practice as a solicitor. He acknowledged, however, that the instant application was one for employment as a lay associate and not relevant to readmission as a solicitor.
Mr Hilton explained it was his intention to complete the UTS course referred to above which is run over two semesters and which he had commenced but then ceased to await the outcome of this application. He explained that the course was expensive, $13,000 to $14,000 for each semester and that he did not wish to incur such expense unless he knew that he would be able to receive the benefit of the course by being employed as a lay associate in accordance with the Application.
Mr Hilton said that if he was given the opportunity to work as a lay associate in the industry, he would accept whatever conditions the Tribunal imposed on him and would be extraordinarily careful not to breach any of the conditions.
Mr. Iacono, in his Statutory Declaration, stated that he has known Mr Hilton for approximately 7-8 years and has always found him to be of good character. Initially their relationship was merely of a professional nature however, as the years had passed, it had also become a personal relationship including social occasions involving their respective wives. Mr Iacono stated that in the numerous dealings he has had with Mr Hilton, Mr Hilton had always ensured that the parties to the various dealings in which he was involved as broker, were aware of his transgression.
Mr Iacono stated that he had need for a lay associate to assist in various commercial transactions, property transactions and litigation and believes that Mr Hilton's experience as a mortgage broker and a former solicitor would make him appropriate for the role. He stated in his view, Mr. Hilton's regret of his past actions and expressions of remorse were sincere and that Mr. Hilton would be an asset to his firm and to the profession.
In oral evidence, Mr Iacono explained to the Tribunal that his Practice was a broad one covering all areas except for family law, crime and personal injuries. Currently, he employs a senior solicitor and is looking to replace a junior solicitor. Recently, he had contracted to take over another law firm with three senior solicitors plus two senior paralegals and is looking to acquire a further law firm. He is the holder of an unrestricted practising certificate.
Mr Iacono said that once his takeovers are completed he would have qualified staff with experience of over 40 years in the profession and the reason for the takeovers was to put in place a succession plan for his retirement.
Mr Iacono said the type of work he would expect Mr Hilton to assist him with included sitting in on conferences with clients, research, the preparation of documents including drafting Affidavits and briefs to counsel. He said that he had found Mr. Hilton to be very good at finding defects in documents.
When asked by the Tribunal what his understanding of the duties of a lay associate were and how he proposed to supervise Mr Hilton given that currently he is the only person in the Law Practice with an unrestricted practising certificate, Mr. Iacono said that he saw Mr Hilton's role in the nature of a "shadow" who could assist him in various ways and by way of example advised the Tribunal that he was intending to purchase a large holding of tenements in Western Australia which would require a data room full of documents to be inspected which could take 2 to 3 weeks and that Mr. Hilton would be the ideal person to undertake this task.
In relation to supervision, Mr. Iacono understood that if he were not present in the office, then Mr. Hilton would not be able to have access to the office unless other appropriate arrangements could be made.
In relation to the interviewing of clients by Mr. Hilton, Mr Iacono was asked what would be the nature of Mr Hilton's role? Mr. Iacono responded that mostly, Mr Hilton would be taking notes or working with a client to prepare evidence given that his insight into the preparation of evidence would be very useful. Also in relation to any financial transactions which the clients of the Law Practice wished to enter into, Mr. Hilton's experience of lending and related transactions would be most useful.
In answer to a question from the Tribunal as to how Mr Hilton would be introduced to clients, he responded "as my assistant" and advised that his costs disclosure document names each of the professional and other staff including their roles. In answer to a further question from the Tribunal about how would he would be introduced to persons other than clients, Mr Iacono said he would be bound by the Tribunal's orders in this regard.
CASE FOR THE RESPONDENT
As set out above, the Respondent opposes the Application and relied on an Affidavit sworn on 4 March, 2013 by Anne-Marie Foord, Manager of the Professional Standards Department, Law Society of New South Wales which set out the relevant resolution being:
"...... that the Society opposes the Application filed 17 December 2012 by Mr Darian Iacono, Solicitor Director of the ILP Double Bay Law and principal of the law firm & Legal to employ Mr Howard Hilton, a former solicitor whose name was removed from the Roll by Order of the Supreme Court dated 27 June 1988".
The Affidavit also annexed copies of sentencing remarks of Caruthers J, of the Supreme Court of New South Wales Criminal Division on 10 November, 1986 in the matter of Regina v. Keith Godfrey Harris, Howard Hilton and Morres George; Roden J of the Supreme Court of New South Wales Criminal Division on 2 September, 1987 in the matter of Regina v. Rex Frederick Jackson and Fayez Hakim, Matter No 0101/9/85, of Street C J, Yeldham and Findlay JJ in the matter of Regina v Morres George, Keith Godfrey Harris and Howard Hilton, Sup Ct NSW CCA Nos. 410, 411 and 408 of 1986, 27 May and 19 June, 1987; and Kirby P in the matter of The Prothonotary of the Supreme Court of New South Wales v. Hilton Sup Ct NSW CA No. 239 of 1988, 27 June, 1988.
Ms. Groenwegen, for the Law Society, submitted there was no issue with the First Applicant as the proposed employer or with the Solicitor as the proposed supervisor. Nor was there any issue as to the type of work a lay associate could carry out. The opposition to the Application related to the protection of the public and whether that mandate could be honoured if permission was granted to Mr. Hilton to work in a law practice albeit as a lay associate. In other words, would that fact bring the integrity of the profession into disrepute and have an adverse impact on the confidence the public reposes in the profession?
In support of the Law Society's position, Ms. Groenwegen, drew the Tribunal's attention to the unreported decision Edouard Dezarnaulds & Stephen Wawn v. The Law Society of New South Wales, Supreme Court of New South Wales 27 June, 1995, cited in Miedzinski v Council of the Law Society of NSW [2007] NSW ADT 268 ['Miedzinski'] at paragraph 21, Acting Justice Spender said:
'There are obvious public interests which are to be served, and which must be taken account of. These interests include:
I the protection of the public
Ii the standing of the legal profession and the standards that are required of it
Iii Affording those who are disqualified, or have been found guilty of indictable offences, the chance of rehabilitation and getting paid work in the profession.
Further, in Miedzinski, the review panel at paragraph 45 stated:
'Protection of the public is paramount in such an application. It is also essential to take into account the necessity to maintain the integrity and standing of the profession. Although (the applicant) does not seek reinstatement to the roll, it is proposed that he be employed in the legal profession. Accordingly, the Tribunal must be satisfied that neither the public interest nor the integrity of the profession will be damaged by granting him the right to assume a recognised position in the legal profession, albeit at the lower end of the scale.'
It is important to note that Ms. Groenwegan, did not seek to cross examine or challenge either of Mr. Hilton or Mr. Iacono's evidence nor the testimony of the 23 referees.
SUBMISSIONS
Mr. Bennett's submissions for the Second Respondent can be summarised as follows:
35.1 The seriousness of the original offence cannot be overestimated and Mr. Hilton accepts that fact.
35.2 The offence took place over 30 years ago and Mr. Hilton's conduct since has been unblemished. His conduct before the offence took place was also unblemished.
35.3 He has demonstrated contrition in his own evidence and to others as evidenced in the many character references supporting Mr Hilton's Application and the Tribunal should have no difficulty in satisfying itself in that regard.
35.4 There was no challenge to the evidence of either Mr. Hilton or Mr. Iacono by the Law Society.
35.5 Mr. Hilton concedes his knowledge of the law needs to be updated and stands ready to undertake the necessary courses in accordance with his admission acceptance by the University of Technology.
35.6 His employment in the finance broking industry is without blemish.
Of relevance to 'contrition', the Tribunal notes the following statements by Mr. Hilton as contained in his Statutory Declaration:
'100 In terms of what has happened I am extremely remorseful and upset with myself. I have been prevented from doing what I did well and loved doing. I have lost a very large amount of money from my income as a very successful lawyer and have had to work at doing things which I did not much enjoy and at a far lower level of competence than I worked as a lawyer. Moreover, I disgraced myself and damaged all those whom I loved and who loved me.
101. I have had a long time to think about all of this. At the time of the offence I had perhaps the biggest criminal law practice in Sydney and was a man in full strength at the top of my game. This has all gone, thrown away by me in an act of criminal folly for which I think I have paid a very heavy price.
Wrongdoing
102. Although I was uncertain about Jackson received any and certainly all of the $10,000 and even now on balance don't think he did, I admit to being indifferent as to that matter and certainly acquiescing in the possibility that he would obtain the funds. I entered into an agreement or conspiracy whereby I was aware that he might well obtain the funds and in return assist my clients. I turned a 'blind eye' to the consequences of what I did. I accept the jury was entitled to find me guilty of conspiracy. I realise that it should not have happened, that what I did was wrongful and illegal. I compounded that behaviour by not owning it at the trial. I have committed no other wrongful acts.
103. Whilst I was in prison the Law Society appointed a receiver to my practice. The Law Society were of course obliged to investigate. I had before going to prison separated from Keddie and started a new practice in Darlinghurst. My books were vetted and no irregularities were found and indeed no one has suggested that I took or wrongly dealt with any monies entrusted to me at any time. On my release the Law Soc required my to pay its costs none the less and I paid them then about $8,000 which I could ill afford.
104. On 1 July, 1988 my name was removed from the roll of Solicitors. This clearly was an appropriate action by the Law Society.'
In addition to his own admission of contrition, the testimonials placed before the Tribunal in support of the Application show that each of the referees was fully informed about the matters that led to Mr. Hilton's incarceration and removal from the roll of legal practitioners and accept, without reservation, his contrition to be genuine. The referees can be categorised into those supplied by solicitors, barristers and other professionals who knew Mr. Hilton professionally prior to his incarceration and post incarceration and those supplied by solicitors and other professionals who have known him for a much shorter period and with whom he has made acquaintance through his broking business and other interests since his release from jail.
Those referees who knew Mr. Hilton prior to his fall from grace, have followed his progress since his release from jail, and have found him to be truly remorseful and consider him to be a person who should be given another opportunity to practice law. By way of example, Mr. John Sharpe, Barrister states 'while I had difficulty at the time understanding Howard's motivation in his dealings with Mr. Jackson, given my contact with him prior to that time, I have spoken with Howard over the years, and believe that not only were his actions an aberration, but that he recognised such actions to have been wrong in every way and for which he was rightly punished. Since his release from prison in 1989, I have had regular social contact with Howard, his wife and daughter. On a number of occasions, I have discussed many legal problems, and Howard has demonstrated not only a good grasp of law, but also an appropriate appreciation of the role of a Solicitor acting for clients. Howard has acted as a finance broker, and as far as I am aware has properly conducted himself in every way. I am not aware of any financial irregularity or wrongful handling of money in his care or trust.
I believe that Howard is honest, and I have no hesitation in recommending him as a proper person to be admitted as a Legal Practitioner, either as a solicitor or barrister.' In other words, I am content and happy to welcome Howard back as a fellow practitioner. Howard would be a proper person to again practice the profession of Law.'
A further example is the testimony of Mr. Bruce T. Stratton, retired QC who was instructed by Mr. Hilton over many years and who says that without exception, Mr. Hilton conducted himself 'in a thoroughly professional and honest manner. He was a hard worker and extremely competent in all of the matters we had together and apart from the matter which resulted in him serving a prison sentence, I know of no other matter that would damage his reputation as a person or as a solicitor. Since his release from prison in 1989, I know that he has worked for most of that time as a finance broker and as far as I am aware there has not been any illegality or suggestion of financial irregularity or wrongful handling of moneys in his care or trust. Mr. Hilton obviously made a devastating error of judgment. In my opinion he has learnt from that as he is not the type of person who would offend again in that or any other way. As I stated earlier, I am now retired but were I still in practice, I would be happy to welcome him back as a fellow practitioner...'
Another referee, Peter Wise of the firm Wise Legal who has known Mr. Hilton since 1990 and has regular business dealings with him and occasional social outings says, 'On numerous occasions, Mr. Hilton has mentioned his incarceration and the effect it had on him. He has expressed to me how stupid and naive he was to participate in the criminal activity, the anguish and embarrassment he has felt and he has also expressed remorse on a number of times. These admissions and expressions of remorse were made to me years before Mr. Hilton informed me that he wished to apply to be re-admitted as a solicitor and have been repeated since. I am of the view that Mr. Hilton has learned (the hard way) the error of his ways. He is now in all respects that I have observed him to be a responsible, respectable and decent person. Over 25 years have now passed since his self-confessed stupidity and I believe that Mr. Hilton should be given another opportunity to practice the honourable profession of law.'
Mr. Richard Arnold, Chartered Accountant, of Arnold & Co. has known Mr. Hilton for over 40 years both as his accountant and as a good friend. He says, 'Howard is a hardworking man and was an outstandingly successful solicitor practising mainly at the criminal bar. He also built up a large workers compensation and third party practices in his offices at Redfern. When the news of the Jackson affair became known, I was entirely surprised as Howard was not in my estimation a man inclined to this sort of behaviour. However, it was unfortunately true and Howard committed this gross error of judgment. I also know from having discussed this matter with Howard, how much it has all affected him and his family. He lost his standing in the community, his pre-eminent position in his field and went to prison for nearly three years. His immediate family including his aged parents all suffered the same, humiliation and financial deprivation this caused. I have never heard anyone speak of Howard's business reputation except in favourable terms and my own experience in business dealings with him is the same.
I have as an employee, partner and principal of various accountancy firms had the opportunity to observe his business practices which have always been exemplary.
I have also on occasions enjoyed social contact with him, his wife and daughter and consider him to be an admirable husband and father.
In the 25 years he has been released Howard has worked hard and honestly to make a living and I admire him for these efforts. He had to start all over again at the age of 46. I also believe that Howard made no financial reward from his actions in conspiring to have his clients released and did not seek any reward. This is no excuse but it is some sort of mitigation to my mind. I believe that his application to rejoin his old profession although it must be carefully considered ought to be supported. He has made an error many many years ago and has paid a high price.'
Mr. Mark Lacey, Partner at Hickey Lawyers who has known Mr. Hilton for in excess of 7 years having met him in a professional capacity as a finance broker and sometime lender and who has accepted instructions from him and clients referred by him to document loan transactions (some quite complex) and to assist in loan recovery action says 'In the course of my dealings with Howard over the term of our association, Howard has demonstrated substantial commercial acumen and intelligence. He is articulate and consistently demonstrates a steely determination to advocate for and preserve the interest of the lender clients.
Above all else in all of his dealings with me and my firm I have never had reason to question Howard's integrity. He has also demonstrated virtues of compassion and empathy in his dealings with junior lawyers in my office.
I am aware of the background facts to Howard's conviction and imprisonment in 1986 which ultimately lead to him being struck from the role of Solicitors in 1988. Notwithstanding these events, given my dealings with Howard over the past seven years I believe he is a fit and proper person to again practice the honourable profession of law.'
The Tribunal notes that all 23 testimonials were given on the basis that Mr. Hilton was applying to be re-admitted to practice as a Solicitor which is not the Application before us, however, it is in our view a powerful endorsement of Mr. Hilton and his attributes/qualities as at the date of this hearing.
Ms. Groenewegen's submissions for the Law Society were to the following effect:
44.1 there is no place in the profession for those whose conduct undermines the institutions and principals on which the profession depends and that Mr. Hilton must now demonstrate that he is a different person to the one who offended so badly as to be sent to prison for a significant length of time;
44.2 that whilst Mr. Hilton's evidence demonstrates an insightful discourse into his criminality and the effect it has had upon himself and those he loves, there is nothing in his evidence to suggest that his remorse and thoughts about consequences extended then or extend now beyond his inner circle: not to his peers in the profession, not to the community whose faith and confidence in the justice system, the legal profession and in its public officials was put at risk. If the character flaw that led Mr. Hilton to commit this crime was the promotion of his own selfish interests, without thought to the wider community, then on his evidence, that character flaw has not altered. The lapse of time has been ineffectual;
44.3 that members of the public generally loathe shifty and unfair practices that may include corruption or an attempt to corrupt. The extensive media coverage of the latest ICAC enquiry into allegations of corruption of a government minister indicates how shocked and appalled members of the community are by this alleged conduct;
44.4 the case is not all about whether Mr. Hilton is subjectively competent and so entitled to work in a law practice as a lay associate. This case is about whether objectively, today, public confidence in the legal profession and the administration of justice in our democracy, and the reputation of the legal profession, will be diminished by allowing Mr. Hilton to work in a law practice and the view of the Respondent is that the Applicants have not satisfied the onus of proving that Mr. Hilton was a changed person such that his employment as a lay associate would not put at risk the public and/or the profession.
PRINCIPLES
In the case of Hegney v Law Society of New South Wales [2008] NSWADT 150, the Tribunal canvassed at length a number of decisions on the principles to be applied in this type of application and the Tribunal accepts that those authorities and the principles arising therefrom are applicable to the exercise of our discretion in this Application.
A useful summary of the principles is set out in La Fontaine v. Law Society [2006] NSW ADT 244 quoting Acting Justice Spender in Camille Eduoard Dezarnaulds and Stephen Wawn v. The Law Society of New South Wales, (unreported Supreme Court 27 June, 1995):
46.1 The discretion is entirely general. No attempt has been made to circumscribe it by reference to particular matters, or to impose any particular threshold test which must be satisfied;
46.2 There are no time limits. Theoretically, the practitioner who was struck-off could apply the next day to become an associate of a legal firm;
46.3 Those guilty of indictable offences, or who have been guilty of the most extreme offences against the proper conduct of their profession and have been disqualified for such reasons, are equally able to make an application to become an associate;
46.4 There are three levels of associateship. This is important, as it is apparent that the legislature had clearly in mind that a person who might be appropriate for one level of associateship, might not be appropriately permitted to occupy another level of associateship;
46.5 There are obvious public interests which are to be served, and which must be taken account of. These interests include:
(i) the protection of the public.
(ii) the standing of the legal profession and the standards that are required of it.
46.6 Affording those who are disqualified, or have been found guilty of indictable offences, the chance of rehabilitation and getting paid work in the profession;
46.7 Whilst the standing of the profession in the public eye is of great importance, and the need to maintain the integrity of the profession is of equal importance, as has been emphasised time and time again by the courts (and recently by the Court of Appeal in Law Society of New South Wales v Bannister (1993) 4 LPDR 24) and must be taken account of, it is necessary to bear in mind that an associate is not a legal practitioner, and depending on the particular level of associateship, may be in a position which is really no more than that of a clerk to or employee of a legal firm. One does not, as it were, translate the requirements demanded of practising members of the profession, to those who are applying to become associates. This is of course perfectly plain as the statute is dealing with situations where, a person has been disqualified from legal practice, or may never have been qualified but would otherwise be debarred from acting as an associate because of conviction for an indictable offence.
The Court of Appeal in Dawson v. Law Society (No 590 of 1988) 21/12/89 makes the point that each case depends upon its own particular facts as adduced by the parties and the impression that the Tribunal forms of the person who seeks to employ the struck off practitioner, and the struck off practitioner and there is no presumption of permanent removal if the facts point to rehabilitation. At [10] the Court of Appeal said:
'there is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance, under whatever conditions and after whatever time, the Court considers appropriate. This Court has full power to protect the public by imposing appropriate conditions relating to such matters as limitations on practice or preconditions to refresher legal education.'
TRIBUNAL'S OPINION
The Tribunal is satisfied that each of the persons who supported Mr. Hilton's application, were fully informed about the matters that led to his incarceration and removal from the roll of legal practitioners. Each of them gave their testimony on the basis that he was a fit and proper person to rejoin the profession and that he had expressed remorse for his actions which was accepted as genuine. Whilst the Application before us is not one to rejoin the profession, the fact that each of the referees was prepared to support such an application is testament to Mr. Hilton's re-building of his life following his incarceration. As previously pointed out, none of the referees were challenged by the Respondent nor either of the Applicants.
In relation to the Respondent's submission that on an objective test (which of course is the correct test) public confidence in the legal profession would be eroded if Mr. Hilton were to be allowed to be employed as a lay associate, the Tribunal rejects that submission. The Tribunal appreciates that recent publicity surrounding the ICAC investigation into the conduct of a NSW Minister of the Crown has once again bought to the fore the public's concern with maintaining the highest of standards within our institutions and professions but the adverse publicity surrounding that investigation should not be a determining factor in this case. Our task is to consider the evidence before us and determine whether we are comfortably satisfied that Mr. Hilton is now a person in whom trust can be placed such that he can once again participate in the legal profession albeit in a diminished capacity with no risk to the public. We are satisfied that he is.
Mr. Hilton was forthright in giving his oral evidence and the Tribunal accepts that he understands the gravity of his conduct that brought him undone, that he has demonstrated contrition and if given the opportunity to work as a lay associate within the legal profession will value that opportunity. His record since release from prison is unblemished and he is considered to be a person of worth by those professionals with whom he has come into contact during his 'post prison' business life. He has picked up the pieces of his life by choosing to re-enter the work force in an area of practice which involved him in daily contact with members of the profession from which he had been removed not knowing whether he would be shunned by former colleagues or otherwise. He has made a success of it as proved by the evidence provided to this Tribunal. He has shown courage in this undertaking in the view of the Tribunal by demonstrating a moral strength that deserted him all those years ago.
In our view, taking into account all of the evidence and having regard to the appropriate conditions that should be imposed, Mr. Hilton, is a person about whom we are comfortably satisfied can be employed as a law associate in the offices of the Applicant. We have formed the clear opinion that such employment would not pose a risk to the public nor a risk to the profession and such employment is consistent with the principles that we have adverted to in these Reasons.
The only question is what conditions should be imposed upon him. We have been provided with submissions on behalf of the First Applicant and the Respondent which were similar in substance for the most part. We have taken note of those submissions together with relevant decisions of this Tribunal of similar cases. In determining appropriate conditions, we have been mindful of striking a balance between protecting the public whilst at the same time allowing Mr. Hilton to use his expertise and skills for the benefit of the clients of the Law Practice.
ORDERS
Pursuant to the Legal Profession Act, 2004 Section 17, the Tribunal approves the employment of Howard Hilton in the practice of the First Applicant upon the following conditions:
53.1 Mr. Hilton is to be supervised by Mr. Darian Iacono (the Solicitor) at all times. If the Solicitor is absent from the law practice for more than 3 consecutive days, the supervision is to be undertaken by another suitably qualified solicitor who is employed by the Solicitor's law practice, provided that the other Solicitor is given a copy of these conditions. In the absence of such an arrangement, Mr. Hilton's employment is suspended until the Solicitor returns to the law practice.
53.2 Mr. Hilton is not to have access to or be a signatory to any account conducted with any financial institution by the Solicitor in the course of his practice.
53.3 No written material drafted by Mr. Hilton is to be dispatched from the Solicitor's office without prior approval of the Solicitor, except for routine correspondence that is within the scope of duties of a lay associate that contains no legal advice or opinion.
53.4 Any written material leaving the Solicitor's practice under the name or signature of Mr. Hilton shall also include under Mr. Hilton's name the words 'Lay Associate'
53.5 Mr. Hilton is not to receive for his own account any money from any client or potential client of the Solicitor in relation to services performed or to be performed. Mr.Hilton may collect fees as is usual on account of the Solicitor's law practice from clients.
53.6 Any attendance by Mr. Hilton on clients of the Solicitor's Law Practice shall be restricted to discussions of matters that are within the ambit of his employment as a lay associate, including the taking of instructions about factual matters. Such attendance may take place in the absence of a solicitor of the Solicitor's Law Practice, but only if the client has been informed that Mr. Hilton is a lay associate and not a solicitor.
53.7 Mr. Hilton is not to hold himself out or represent himself as being a local lawyer or a legal practitioner.
53.8 Mr. Hilton is not to tender legal advice to any clients of the Solicitor's Law Practice, but may provide legal comment to those within the Solicitor's Law Practice.
53.9 Any business card or other form of identification of Mr. Hilton identifying him with the Solicitor's Law Practice must clearly include on its face the words 'Lay Associate'.
53.10 Mr. Hilton is not to have a key or other means of entry to any office from which the solicitor carries on legal practice and may not attend such office or offices unless a solicitor or other employee of the Solicitor's Law Practice is also on the premises.
53.11 The remuneration of Mr. Hilton shall be by way of stipulated salary or hourly rate or by way of bonus payments that the Solicitor deems appropriate from time to time.
53.12 Prior to commencement of his employment, the Solicitor and Mr. Hilton shall inform the Law Society in writing that they personally understand these conditions and provide the Society with a signed undertaking that they will abide by any conditions made by the Tribunal that relate to them.
53.13 If Mr. Hilton ceases to be employed by the Solicitor, the Solicitor must advise the Manager, Professional Standards Department of the Law Society that Mr. Hilton is no longer employed.
53.14 The scope of Mr. Hilton's duties as a lay associate are to include, but are not limited to, attending Courts or Tribunals to appear at directions hearing or simple mentions, if a court grants leave to do so upon being advised that Mr. Hilton is a lay associate and briefing counsel in relation to factual matters.
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
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Amendment : coversheet inclusion of counsel name and order
Decision last updated: 14 August 2013
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