Law Society of New South Wales v Carson

CITATION: Law Society of New South Wales -v- Carson [1999] NSWADT 142

DIVISION: Legal Services

APPLICANT: Law Society of New South Wales

RESPONDENT: David Malcolm Carson

FILE NUMBER: 992008

HEARING DATES: 09/14/1999

SUBMISSIONS CLOSED: 09/14/1999

DATE OF DECISION:
14 September 1999

BEFORE:
C Gailey Presiding Judicial Member
R Buchanan, QC - Judicial Member
L Gain - Member

PRIMARY LEGISLATION: Legal Profession Act 1987

APPLICATION: Default error in carrying out clients' instructions; Misleading/deceptive/unfair dealing with client; Professional misconduct - solicitor -

MATTER FOR DECISION: Principal matter

REPRESENTATION:
Applicant:
D Barton solicitor instructed by R J Collins
Respondent:
D Hipsley counsel instructed by Lloyd & Lloyd

ORDERS: 1. That David Malcolm Carson be and is hereby publicly reprimanded.
2. That David Malcolm Carson pay the costs of the Law Society of and incidental to these proceedings, the amount being agreed to be the sum of $5,479.00, and that these costs be paid over a three month period.

Heard Ex-Tempore
1 This is an unfortunate case which involves a very experienced solicitor. He has admitted the allegations against him and briefly these are, firstly, that he failed to initiate proceedings in respect of which he received instructions and then subsequently prepared applications, in one case with the benefit of counsel's opinion. Thereafter he misled his clients by telling them that the applications had been filed and were progressing, eventually on one date misleading his client so far as to say that a hearing date had been fixed. Ultimately he was forced to face the position he was in and he told his clients what he had done.
2 We agree with Mr Barton, who appears for the Law Society, that his conduct was serious and that it was not just a case of delay but actually deliberate deception consistently and over a long period of time. Accordingly, we agree that the conduct amounted to professional misconduct, not merely unsatisfactory professional conduct.
3 On the other hand, to the solicitor's credit, he acknowledged his misconduct and he cooperated fully with the Law Society in its investigation. In the evidence which he gave to this Tribunal he frankly admitted both his conduct and its serious nature and expressed shame and profound regret.
4 The Law Society has submitted that a public reprimand and the payment of its costs would be appropriate orders to be made. It should be noted that claims for compensation which were earlier foreshadowed in the documentation submitted were not particularised and were subsequently withdrawn. Mr Carson himself accepts that a public reprimand is justified. It is a serious matter, but we are satisfied that the interests of the public will be sufficiently met by making the orders sought.
5 Accordingly, we make the following orders:
(1) that David Malcolm Carson be, and is hereby, publicly reprimanded; and
(2) that David Malcolm Carson pay the costs of the Law Society of and incidental to these proceedings, the amount being agreed to be the sum of $5,479, and that these costs be paid over a three month period.

Last Updated: 01/05/2000

CaseChat Overview and Summary

David Malcolm Carson, an Australian solicitor, was the subject of disciplinary proceedings brought by the Law Society of New South Wales. The Society alleged that Mr Carson had engaged in professional misconduct by providing legal services to a client in a manner that was incompetent and negligent, and by failing to communicate effectively with the client. The matter was heard by the Disciplinary Committee of the Law Society, which found Mr Carson guilty of the charges and imposed disciplinary sanctions. Mr Carson appealed the decision to the Supreme Court of New South Wales, which upheld the findings of the Disciplinary Committee and ordered that Mr Carson be publicly reprimanded and pay costs.

The primary legal issue before the court was whether the Disciplinary Committee had correctly found that Mr Carson had engaged in professional misconduct, and whether the sanctions imposed were appropriate. The court considered the evidence presented to the Disciplinary Committee and the relevant legal principles governing legal professional conduct in New South Wales. The court also heard arguments from both parties on the appropriate sanctions to be imposed in light of the findings of misconduct.

In its judgment, the court found that the Disciplinary Committee had correctly found that Mr Carson had engaged in professional misconduct. The court noted that Mr Carson had provided legal services to a client in a manner that was incompetent and negligent, and had failed to communicate effectively with the client. The court also found that the sanctions imposed by the Disciplinary Committee were appropriate in the circumstances, given the seriousness of the misconduct and the need to maintain public confidence in the legal profession. The court therefore dismissed Mr Carson's appeal and upheld the findings of the Disciplinary Committee.

The Supreme Court of New South Wales made an order that David Malcolm Carson be publicly reprimanded and pay the costs of the Law Society of and incidental to these proceedings, in the sum of $5,479.00. The costs were to be paid over a three month period.

Orders of the court

1. That David Malcolm Carson be and is hereby publicly reprimanded.

2. That David Malcolm Carson pay the costs of the Law Society of and incidental to these proceedings, the amount being agreed to be the sum of $5,479.00, and that these costs be paid over a three month period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Law Society of New South Wales -v- Carson [1999] NSWADT 142
DIVISION:	Legal Services
APPLICANT:	Law Society of New South Wales
RESPONDENT:	David Malcolm Carson
FILE NUMBER:	992008
HEARING DATES:	09/14/1999
SUBMISSIONS CLOSED:	09/14/1999
DATE OF DECISION:	14 September 1999
BEFORE:	C Gailey Presiding Judicial Member R Buchanan, QC - Judicial Member L Gain - Member
PRIMARY LEGISLATION:	Legal Profession Act 1987
APPLICATION:	Default error in carrying out clients' instructions; Misleading/deceptive/unfair dealing with client; Professional misconduct - solicitor -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: D Barton solicitor instructed by R J Collins Respondent: D Hipsley counsel instructed by Lloyd & Lloyd
ORDERS:	1. That David Malcolm Carson be and is hereby publicly reprimanded. 2. That David Malcolm Carson pay the costs of the Law Society of and incidental to these proceedings, the amount being agreed to be the sum of $5,479.00, and that these costs be paid over a three month period.