Ko v Council of the Law Society of NSW

[2011] NSWADT 211

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Ko v Council of the Law Society of NSW [2011] NSWADT 211

Hearing dates:

23 August 2011

Decision date:

23 August 2011

Jurisdiction:

Legal Services Division

Before:

M Riordan,Judicial Member
D Fairlie, Judicial Member
P Butlin , Non Judicial Member

Decision:

1.Approval is granted to Otto Stricher to employ Tsan Hung Ko (also known as Mark Ko) as a Lay Associate in his law practice to undertake work of the type detailed in this decision under Section 17 of the Legal Profession Act 2004.

2.Approval is granted for Tsan Hung Ko (also known as Mark Ko) to work as a Lay Associate in the law practice operated by Otto Stricher.

3.Each party to pay their own costs.

Catchwords:

Application for approval to work as a lay associate; Application for approval to employ person as a lay associate.

Legislation Cited:

Legal Profession Act 2004

Category:

Principal judgment

Parties:

Tsan Hung Ko (also known as Mark Ko) (Applicant)
Otto Stricher (Applicant)
Council of the Law Society of New South Wales (Respondent)

Representation:

O Stricher (Applicant)
L Pierotti (Respondent)

File Number(s):

112014

REasons for decision

1. In this matter the Tribunal considered a joint Application made by Tsan Hung Ko (also known as Mark Ko) and Otto Stricher, seeking approval to be employed as a Lay Associate in the law practice operated by Mr Stricher and approval for Mr Stricher to employ Mr Ko as a Lay Associate in his law practice, respectively.

1. The Application was not opposed by the Respondent.

1. The Tribunal considered Affidavit evidence from both Applicants and also heard oral evidence from Mr Ko. No evidence was called in rebuttal.

1. Section 17(1)(b) of the Legal Profession Act 2004 ("the Act") 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.

1. Section 17(6) of the Act further requires that a person convicted of a serious offence must not seek to become a lay associate of a law practice unless the person first informs the law practice of the conviction.

1. We are satisfied on the evidence before us that Section 17(6) of the Act has been complied with by Mr Ko. In fact, the evidence is that Mr Stricher represented Mr Ko in the proceedings that resulted in the convictions.

1. Section 18(2) of the Act provides that the Council of the Law Society of New South Wales may apply to the tribunal for an order prohibiting any law practice from employing or paying in connection with the legal practice engaged in by the law practice a convicted person if:

"(a) The Tribunal is satisfied that the person is not a fit and proper person to be employed or paid in connection with that legal practice; or

(b) The Tribunal is satisfied that the person has been guilty of conduct that - if the person were an Australian Legal Practitioner, would have constituted unsatisfactory professional conduct or professional misconduct.

1. There can be little doubt on the evidence before us that the conduct engaged in my Mr Ko, which resulted in his convictions, is conduct that - if he were an Australian Legal Practitioner, would have constituted unsatisfactory professional misconduct or professional misconduct.

1. However, the time at which we must make a determination of Mr Ko's fitness is today. In view of the evidence before us, both on Affidavit and received orally, we are comfortably satisfied that there is very little risk of Mr Ko engaging in any conduct of a like or similar nature in the future.

1. We refer to paragraph 6 of the Affidavit of Otto Stricher, which we regard as a list of the duties that Mr Stricher proposes to assign to Mr Ko if approval is granted for him to employ Mr Ko as a Lay Associate and for Mr Ko to be employed as a Lay Associate in Mr Stricher's practice.

1. We have also heard oral evidence from Mr Ko, which was elicited by Mr Stricher during re-examination, regarding the practice and procedures in place within Mr Stricher's law practice. We note that Mr Ko will not be responsible in any way for the handling of any financial affairs of either the law practice or its clients and that Mr Stricher is the sole signatory to all financial accounts. We regard this as appropriate given the circumstances in which the convictions arose.

1. We are satisfied to the required standard of proof that it is appropriate to grant approval for Otto Stricher to employ Stan Hung Ko (also known as Mark Ko) as a lay associate in his law practice provided that he conduct the duties and responsibilities proposed in paragraph 6 of Mr Stricher's Affidavit under his supervision and without giving advice independently of Mr Stricher or making any decisions relating to the law practice independently of him.

1. Therefore, the Tribunal grants approval for Otto Stricher to employ Mr Ko as a lay associate in his law practice with a view to him performing the following duties:

a) Having responsibility for technology and equipment within the office and assisting Mr Stricher with its servicing, repair and maintenance and negotiations with suppliers for the purchase of such equipment;

b) Compiling leases subject to the supervision of Mr Stricher and any legal practitioner associate whom Mr Stricher may employ, but subject at all times to Mr Stricher's instructions and final approval;

c) Compiling contracts for the sale of realty and businesses as instructed by Mr Stricher and on the proviso that they not be issued except with Mr Stricher's express approval;

d) Assisting Mr Stricher in the preparation of briefs in criminal proceedings and litigation matters; and

e) Translating and interpreting within the office.

1. We also grant approval for Tsan Huang Ko (also known as Mark Ko) to be employed as a lay associate in the law practice operated by Otto Stricher.

1. We order that each party shall pay their own costs of the proceedings.

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Decision last updated: 05 September 2011