Law Society of New South Wales v Davis
[2000] NSWADT 38
•04/05/2000
CITATION: Law Society of New South Wales -v- Davis [2000] NSWADT 38 DIVISION: Legal Services Division PARTIES: APPLICANT
RESPONDENT
Council of the Law Society of New South Wales
Anthony Martin DavisFILE NUMBER: 9816 HEARING DATES: 19/10/99, 08/12/99 SUBMISSIONS CLOSED: 01/20/2000 DATE OF DECISION:
04/05/2000BEFORE: Turner RF - Judicial Member; McDonell I - Judicial Member; APPLICATION: Professional Misconduct - mislead Investigator - Professional Misconduct - mislead Law Society/Bar Association/LSC - Unsatisfactory Professional Conduct - mislead Investigator - Unsatisfactory Professional Conduct - mislead Law Society/Bar Association/LSC MATTER FOR DECISION: Principal matter LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: REPRESENTATION: P Boyd, solicitor
R S Cuddy, solicitorORDERS: 1. The Respondent is found guilty of unsatisfactory professional conduct - s127(2) Legal Profession Act 1987.; 2. The Respondent pay a fine of $3,000.00.; 3. The Respondent pay the costs of the Applicant of and incidental to these proceedings.
Reasons for Decision
1 The Council of the Law Society of NSW informed the Tribunal by an Information filed on 4 May 1998 that as a result of the Council’s investigation of complaints made under Part 10 of the Legal Profession Act 1987 against Anthony Martin Davis, a legal practitioner within the meaning of s128 of the Act, the Council claims that the solicitor was guilty of professional misconduct on the grounds that:
2 The charges arose from two letters the solicitor addressed to the Law Society and the practitioner’s reply. The first dated 12 May 1989 headed, “Certification of satisfactory completion of 12 months approved practice” which purported to support the certification of Jaswant Khera’s completion of employment as a solicitor by Mr Davis.
· The legal practitioner endeavoured to mislead the Law Society.
· The legal practitioner endeavoured to mislead the investigator appointed by the Law Society.
3 The second dated 29 July 1993 in reply to a letter from the Law Society in answer to a request from the Respondent solicitor for a resumè of Khera’s employment.
4 The matter came before the Tribunal on Tuesday, 19 October 1999. It became apparent that the Respondent was inexperienced in proceedings in the courtroom. The matter was adjourned to allow him to obtain representation by a solicitor. This representative appeared and conducted his client’s case until it was adjourned until Wednesday, 8 December 1999 and subsequently.
5 Davis was admitted on 17 September 1971 and in his one man suburban practice he specialised in a niche area of the law dealing with commercial contracts, distribution and direct selling on the delivery of services based on independent contractors.
6 He employed Jaswant Khera on 1 February 1988, who was admitted to practice on 3 July 1987. Khera had a restricted practising certificate needing twelve months supervised experience before qualifying for a certificate of satisfactory approved practice.
7 In his Affidavit, Davis states that when employing Khera he made him aware that he was negotiating a sale of his practice and that he could not offer him permanent employment as the future of staffing and location was unclear.
8 Davis alleges he terminated Khera’s employment as at 30 June 1988 creating some acrimony. An agreement was said to have been made whereby:
9 Khera's restricted practising certificate would have been subject to conditions as referred to on the certificate itself:
· The clients’ files would remain with Davis.
· Khera could visit the office and inspect the files of the clients he had introduced and he would be free to take these files to any new legal employer.
· Khera would no longer be an employee but work as an independent contractor and would receive no remuneration from 1 July 1988 in the nature of wage or salary but only commission on completed matters.
"This certificate is issued subject to the conditions listed on the front of the certificate and explained on the back."
10 Presumably the conditions included a requirement for the employment to be under the supervision of another solicitor who held a full practising certificate and that "the holder of the restricted practising certificate is not entitled to act as a solicitor on the record or charge costs for legal work, or practise other than as an employee".
11 Davis alleged that Khera’s employment with him was for five months, from 1 February 1988 until 30 June 1988, leaving Khera a need to find employment with another solicitor for seven months to qualify for a certificate of twelve months approved practice. Davis further states that in April/May 1989 all remaining introduced files were closed and taken from his office. Khera states that he was employed by Davis as a solicitor from 1 February 1988 until 20 June 1989.
12 Davis further states:
“From 1 July 88 I gave no directions and made no requirements on Mr Khera in any connection with the introduced legal files or his time save as expressed above to request assistance with information or interpretation where this was necessary for the continuing assistance to those introduced clients. He and I exchanged notes about clients he introduced and had access to these files in my office - he occasionally drafted documents.”
Letter 12 May 1989 to the Law Society
13 Davis on this date sent a letter to the Law Society produced by computer on his then letterhead headed, “Certification of Satisfactory Completion of 12 Months Approved Practice”. It consists of two and a part pages plus a further two pages of a form setting out fields of practice and designated fields of the same. This form is answered by placing ticks in the boxes provided - some 60 boxes. The second page of the letter sets out 24 areas of law and fields of practice which the Applicant is required to state the percentage of his or her time spent in each field. This was done. In the 60 boxes, 32 were ticked.14 Davis admitted preparing and signing the letter and the accompanying form. His signature is on the letter once and twice on the form. In all, it would take a significant time to complete the letter plus the forms and the information required. Khera also signed the form in the space between Davis’ two signatures.
15 Davis in his submissions states that this letter was “provided in support of Mr Khera’s application to remove the restriction on employed practice”. Further, “I recall signing a letter he prepared in mid 1989”. "If I was asked to certify for three months as to Khera, I would not have done so.".
16 At the time Mr Khera’s employment finished, on 30 June 1988, I did not give him anything in the nature of a reference.
Letter of 29 July 1993 to the Law Society
17 Khera states his employment with Davis was from 1 February 1988 to 30 June 1989.18 Davis states that he became aware that Khera had not disclosed his employment with him when seeking employment or partnership with two other solicitors. When searching for records, Davis could not find them.. He then contacted the Law Society on or about 1 July 1993 and made a request for copies of any employment records he may have furnished relating to Mr Khera. These were given in a letter to Davis from the Law Society on 9 July 1993. Davis replied to that letter of 29 July 1993 and in his reply he indicated:
19 The Respondent submits that from the pleadings and evidence of the Respondent, the Tribunal can conclude:
“1. We have no record of the documents you have forwarded to us, nor any recollection of ever seeing the same.
2. It is quite impossible that I would have voluntarily signed a letter on May 12 1989 stating a person was employed by me who had left 12 months earlier.
3. The signature on the documents is either not mine, or if it is mine it was obtained by trickery as I would not have willingly signed such documents.
4. These matters only came to my attention when I spoke recently to two previous partners of Mr Khera, both of whom have commenced legal proceedings against him and both of whom stated Mr Khera informed them he was employed by our firm for 15 months.”
Practitioners Affidavit filed 12 November 1999
20 The practitioner has conceded in cross-examination that the representation to the Law Society was for the purpose of providing partial evidence towards securing for Khera a removal of his 12 months supervised practice.
(a) that if it finds he signed the letter of 12 May 1989, he did so carelessly or recklessly; or
(b) the letter he understood he signed to the Society was in different form to that actually lodged with it.
21 That in the allegations made against the solicitor, no complaint is made against the solicitor that there was any endeavouring to mislead or misleading of the Society by the issue of the letter of 12 May 1989.
22 Further, that the Society confirmed immediately proceeding the adjournment of the matter for the purpose of making written submissions that the essential allegations of endeavouring to mislead are based on further particular 5 on page 4 of the information and material filed with it. These allegations relate to material in the 29 July 1993 letter as being untrue and not of the 12 May 1989 material being untrue.
23 Further, that the 1993 letter, as far as it relates to Khera’s employment, confirmed that it is accurate insofar as that employment extended only from February to June 1988.
24 Further, that the allegation that the letter was not signed other than voluntarily is a matter that can not be established on the evidence to the necessary standard against the Respondent.
25 That the case against the Respondent depends essentially upon the evidence of the investigator and the statements made to him by Mr Davis. At its highest, the evidence against Mr Davis is to the effect that he cannot concede that he would have signed the 12 May 1989 letter voluntarily because it contained at lease two material misrepresentations of which he was aware at the time and subsequently.
26 The fact that the issue was not raised until four years after the letter had been sent to the Society and with the passage of time Davis concedes that it may have been possible that the 1989 letter was not carefully enough reviewed before it was signed.
27 It may be a finding or an understanding of the Tribunal, but it is not an allegation of misconduct made against the practitioner in these proceedings.
28 It is submitted that with respect to Mr Davis’ Affidavit, that the evidence concerning the remuneration and termination of Khera’s employment has not been challenged. Further, that no public harm emanated from the 1989 letter.
29 The Society says the information in the solicitor’s letter of 12 May 1989 to the Society was basically correct at the time the solicitor signed the said letter which he did so willingly. There was no basis for the solicitor to later disown the letter and make the assertions contained in the fifth and sixth paragraphs of his letter of 29 July 1993. The only logical explanation is that by these assertions the solicitor was endeavouring to mislead the Society.
30 Davis was the only person who gave evidence from the witness box. The Law Society in its further particulars at paragraph 5 stated Mr Khera was not dismissed by the legal practitioner but rather remained in the employ of the legal practitioner until June 1989 or thereabouts.
· The 12 May 1989 letter was sent some eleven years ago.
· The 29 July 1993 letter was sent some seven years ago.
· The issue was not raised some four years after this letter.
31 In evidence Davis was questioned:
32 Later:
Q: I put it to you, were it not for this letter of 12 May 1989 having been written in the first place, your present predicament would not have occurred?
A: Yes, the letter of 29 July, that has caused the present predicament, yes.
Q: 29 July?
A: This is the letter, here is the one that I wrote when I thought there was something wrong, yes.
33 In relation to commissions paid to Khera in answer to questions asked of him by his counsel.
Q: What do you say the position was at that date of May 1989?
A: That he was not an employee of my firm.
Q: But there was a connection between you and Mr Khera as at that date?
A: Yes, there was indeed.
34 Further The Law Society counsel:
Q: That shows the amounts paid in that period to various people and that one of them is Khera Jaswant. Can you tell the Tribunal what date is shown there and what amount was paid?
A: It shows 26 June 1989 and the total commission of $2,400 had been paid for that year.
35 In the submissions by Davis on facts, evidence and penalty of the Law Society notes that both limbs of the complaint use the rather curious word “endeavoured” and do not allege actual misleading. It is alleged that by virtue of the July 1993 letter the practitioner provided misleading evidence to the Society and by giving similar evidence and facts also to the Investigator, Mr Holmes.
A: The letter suggested that he was employed by me for 18 months and my memory was that he was employed by me for only a short period. That is why I wrote to the Law Society. I was concerned that it was wrong.
Q: You say you wrote to the Law Society because you were concerned it was wrong?
A: Correct.
Q: There wasn’t another motive in you writing to the Law Society?
A: I was concerned about the other solicitors who had come to see me with similar problems and I felt I should assist them as well.
36 It is alleged that he is guilty of professional misconduct and should be punished by a heavy fine and the ordering of the payment of costs.
37 The essential question is, is one or both of the 1989 and 1993 letters to the Society incorrect? The Respondent says that it is clear that there were two errors in relation to the 1989 letter, namely:
38 The Tribunal is asked to accept Davis’ evidence that he employed Khera from 1 February 1988 until 30 June 1988. Thereafter Khera’s connection with Davis was in accordance with their agreement with Khera that he would no longer be an employee but was as an independent contractor and would receive no remuneration from 1 July 1988 in the nature of a wage or salary but only commission on completed matters.
1. That it expressed employment for a period of 15 months; and
2. That it expressed the view that Khera was employed by him at that time.
39 In the Society’s original further particulars at clause 5 the allegation is made:
“Mr Khera was not dismissed by the legal practitioner but rather remained in the employ of the legal practitioner until June 1989 or thereabouts.”
40 Law Society questions Davis:41 In cross examination David agreed the Law Society had written to him following receipt of his letter of 12 May 1989 inquiring as to its contents. In particular relating to the scope of his practise as he had submitted in the approved practice application.
Q: What aspects of the letter do you say are not true?
A: The dates.
Q: Which dates are they?
A: The letter suggested that he was employed by me for 18 months and my memory was that he was employed by me for only a short period. That’s why I wrote to the Law Society. I was concerned it was wrong.
42 His reply of 26 July 1989 became exhibit 3.
43 In his letter of 29 July 1993 he sought to distance himself from the letter of 12 May 1988 and the form and certificate signed by him.
44 The Tribunal considers the evidence as shown in the letters of 12 May 1989 and particularly of 29 July 1993 falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.
45 It is the Tribunal’s opinion that the facts as we have found them proved are not sufficiently serious to warrant a finding of professional misconduct.
46 However, the conduct of the legal practitioner leaves a great deal to be desired and falls within the category of unsatisfactory professional conduct. We make a finding against the practitioner accordingly.
47 The practitioner cannot resist an order for costs, although the Law Society has not succeeded on the more serious charge of professional misconduct. The conduct of the practitioner is such that the proceedings were properly brought and there has been a finding against him. The Society is entitled to its costs.
48 The Society has asked that a monetary penalty be imposed upon the practitioner. We are all of the opinion that such a penalty is warranted.
49 The Tribunal makes the following orders:
1. The Respondent is found guilty of unsatisfactory professional conduct - s127(2) Legal Profession Act 1987.
2. The Respondent pay a fine of $3,000.00.
3. The Respondent pay the costs of the Applicant of and incidental to these proceedings.
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