Law Society of New South Wales v Cass

[2006] NSWADT 152

CITATION:	Law Society of New South Wales v Cass [2006] NSWADT 152
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT David Anthony Cass
FILE NUMBER:	062003
HEARING DATES:	4/05/2006
SUBMISSIONS CLOSED:	05/04/2006
DATE OF DECISION:	05/24/2006
BEFORE:	Vass CB -Judicial Member; Cox R - Judicial Member; Klika D - Non Judicial Member
CATCHWORDS:	Professional Misconduct - fail to comply with s. 152 Notice
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987 Legal Profession Act 2004
REPRESENTATION:	APPLICANT P Boyd, solicitor RESPONDENT In person
ORDERS:	1. The Solicitor is publicly reprimanded; 2. The Solicitor pay the costs of the Applicant as agreed or assessed

1 The Disciplinary Application is brought by the Council of the Law Society of New South Wales (the Law Society) against David Anthony Cass (the Solicitor) and the application alleges that the Solicitor failed to comply with a notice pursuant to Section 152 of the Legal Profession Act 1987 (the Act).

2 The Law Society relied upon the affidavit of Raymond John Collins sworn on 31 January 2006. That affidavit was tendered without objection from the Solicitor. That affidavit establishes that:

a) A notice under Section 152 of the Act was served on 12 July 2004 upon the Solicitor. Under the terms of the section in the Act, the Solicitor had 21 days in which to comply with the notice or to provide a statutory declaration setting out his reasons for any inability to do so.

b) The Solicitor did not comply with requirements of the notice nor did he provide a statutory declaration within the time required and as a result, at its meeting on 21 October 2004, the Professional Conduct Committee of the Law Society (the Committee) resolved that a complaint be made against the Solicitor for his failure to comply with the notice.

c) Letters were written to the Solicitor by the Law Society on 26 October 2004, 18 November 2004 and 10 December 2004, each of which letters noted that the Solicitor had not responded to the notice.

d) The Solicitor on 15 December 2004 sent a statutory declaration to the Law Society which indicated that he would need to find a number of files in order to comply with the notice and that he would need about 4 weeks to properly complete the reply and sought an extension out to 14 January 2005.

e) The Law Society responded on 15 December 2004 indicating that the Committee would consider deferring the matter at its meeting scheduled for the following day and then later on 10 January 2005, the Solicitor was informed that the matter would be considered by the Committee at its meeting on 20 January 2005. The Tribunal notes that no formal extension of time was given to the Solicitor to comply with the notice.

f) On 13 January 2005, the Solicitor sent a statutory declaration to the Law Society. That statutory declaration indicated that the Solicitor had been searching for papers in his office and that he believed that he had located all the material he would need to complete a report, and he sought an extension of time until 21 January 2005.

g) The Law Society by letter dated 14 January 2005, indicated to the Solicitor that it was likely a further complaint would be made against him on 20 January 2005.

h) At its meeting on 20 January 2005, the Committee resolved, in part, that a further complaint be made against the Solicitor.

i) By letter dated 2 February 2005, the Law Society informed the Solicitor of the fresh complaint and went on to note that:

“Despite your assurances that a response to the Section 152 notice would be provided to the Society by 21 January 2005, no such response has been received.”
j) The Law Society wrote to the Solicitor again on 18 May 2005, 31 May 2005 and 1 June 2005, and on 1 June 2005 the Solicitor forwarded to the Law Society a response which said in part:
“Although the response sought cannot be provided by 2 June 2005, it will be completed as soon as practicable and forwarded to you in the next few days.”
k) On 2 June 2005, the Committee of the Law Society resolved to the effect that the issues of alleged professional misconduct be put to the Solicitor and he be advised that subject to any submissions from him, it would refer his conduct to the Administrative Decisions Tribunal.

l) On 14 December 2005, the Solicitor sent to the Law Society a letter along with a draft of a statutory declaration. The letter indicated that the Solicitor needed files in order to complete the statutory declaration and that those files were located in boxes in the back of his office and that he would need some time to go through those boxes, locate the files and complete the declaration.

3 The Solicitor provided a statutory declaration dated 28 February 2006 to the Law Society which was his effort to answer the various questions contained in the Section 152 notice. The Solicitor also filed with the Tribunal on 1 May 2006, an affidavit and in that affidavit he states that when he drafted and swore the declaration which is dated 28 February 2006, he could not find the file and his evidence before the Tribunal was that the files or file are lost.

4 The Solicitor carried out the search for the file during the month of December 2005 and it is clear that when he could not locate the file, and considered it lost, he should then have immediately notified the Law Society that the file was lost and immediately provided the statutory declaration.

5 The application by the Law Society sought an order that the Solicitor comply with the terms of the Section 152 notice within 7 days of the decision of this Tribunal and at the conclusion of the Hearing, Mr Boyd who appeared for the Law Society, did not seek an order in those terms. He conceded that as the Solicitor could not find the file, then the Solicitor has answered the notice to the best of his ability.

6 The Law Society also tendered an affidavit by Jeffrey David Edwards sworn on 12 July 2004 which established that the Section 152 notice was served upon the Solicitor also on 12 July 2004.

7 Section 152 of the Act provides that:

“A Legal Practitioner who, without reasonable excuse, fails to comply with such a requirement is guilty of professional misconduct.”

8 The Tribunal finds that the Solicitor did fail to respond to the Section 152 notice served upon on him on 12 July 2004 and also failed to provide any reasonable excuse and the Tribunal therefore further finds that the Solicitor is guilty of professional misconduct.

9 The Solicitor is 47 years of age and is married but has no children. He has been practising as a solicitor since he was admitted on 23 December 1985.

10 The Solicitor says in an affidavit filed on 29 March 2006 that he has been aware since 2001 that he had a problem which was affecting his life and his work. At that time he states he began to have more frequent episodes of what he thought of as “black moods” or “gloom”. He goes on to state that by mid 2005 his life was at a complete standstill in all respects, both personal and professional. He says that he seemed unable to do anything and so in July 2005 he made a decision to seek medical help. The Solicitors doctor referred the Solicitor to Dr Hayman, a consultant psychiatrist, and Dr Hayman has been treating the Solicitor since 17 December 2005 on a weekly basis. A report by Dr Hayman dated 12 March 2006 is annexed to the Affidavit filed on 29 March 2006. Dr Hayman’s report indicates that he has diagnosed the Solicitor as suffering from a Obsessive Compulsive Disorder with secondary depression of mood. He says:

“The effect of his disorder has been that he has become increasingly immobilised in recent years by procrastination and avoidance associated with obsessional thinking and ritualistic behaviour. As a result, he has had increasing difficulty in meeting the usual demands, particularly administrative, of his practice.”

11 The Doctor goes on to say that the Solicitor is responding well to cognitive behavioural strategies and he anticipates that the solicitor will continue to make a full recovery. The Tribunal takes into account the report of Dr Hayman in not imposing a fine upon the Solicitor for his failure to comply with the Section 152 notice which this Tribunal regards as being a very serious matter.

12 The Tribunal orders:

1. The Solicitor is publicly reprimanded; and

2. The Solicitor pay the costs of Applicant as agreed or assessed.