Law Society of New South Wales v Farr

[2009] NSWADT 108

CITATION:	Law Society of New South Wales v Farr [2009] NSWADT 108 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Clare Catherine Mary Farr
FILE NUMBER:	072002
HEARING DATES:	2 March 2009
SUBMISSIONS CLOSED:	2 March 2009
DATE OF DECISION:	14 May 2009
BEFORE:	Karpin A - ADCJ (Deputy President); Molloy G - Judicial Member; Bubniuk L - Non-Judicial Member
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Council of the Law Society of New South Wales v. Farr [2008] NSWADT 307 Law Society of New South Wales v. Foreman (No 2) (1994) 34 NSWLR 408 at 499:
REPRESENTATION:	APPLICANT L Pierotti, solicitor RESPONDENT C Bolger, barrister
ORDERS:	1. The name of Clare Catherine Mary Farr be removed from the Roll of Legal Practitioners 2. The respondent to pay the costs of the Law Society as agreed or assessed.

1 On 14 November 2008 the Tribunal delivered a decision in the substantive proceedings, finding that the respondent was guilty of professional misconduct in respect of 5 grounds of complaint. [Council of the Law Society of New South Wales v. Farr [2008] NSWADT 307].

2 On 2 March 2009 the Tribunal heard evidence from the respondent and submissions from both parties in respect of dispositive orders.

3 In finding the respondent guilty of professional misconduct, the Tribunal said:

180 The respondent belatedly conceded that she had misled the Law Society. The Tribunal holds concerns that she did not, at the time of the hearing before the Tribunal, fully appreciate the enormity of her conduct in the various matters of complaint, particularly in regard to misleading information provided by her.

181 When viewed as a course of conduct relating to a number of matters over a period of time, the Tribunal is satisfied that the facts demonstrate a consistent approach adopted by the respondent to her professional obligations, which falls far short of the standards of competence and diligence expected of legal practitioners in relation to their professional responsibilities. Her conduct demonstrates a substantial and consistent failure to reach reasonable standards of competence and diligence.

182 The Tribunal is satisfied that each of these matters of complaint are serious both standing in isolation and collectively. Each head of complaint demonstrates a consistent and substantial failure to meet the standards of competence and diligence in connection with the practice of law, which members of the public are entitled to expect from members of the profession. Each is properly designated as professional misconduct.

183 The respondent’s dealings with the Law Society demonstrate a blatant disregard for adherence to professional standards and obligations.

184 For the reasons given below [para. 190] the Tribunal will defer dealing with the medical and character evidence until such time as it considers the dispositive orders. It is, however, revealing to read the respondent’s email correspondence with Dr. Watts on 9 February 2007, when she sought his help. She refers to being “…in a bit of bother before the Administrative Decisions Tribunal.” After giving a summary of the stressors she believes affected her professional life, she refers to her feeling that the Law Society was “…just out to get me…” she concludes: “In summary I had too much on at home to do a hundred per cent to the work and wasn’t helped by the stressful sort of work I did. I need you to pull all that in a form to explain why I stuffed up. I didn’t knock off money or do anything too bad. I just wish I had someone to tell me to slow down and maybe work from home as I could never be everything that I wanted to all people.”

185 The Tribunal is concerned that the respondent failed to brief Dr. Watts with the pleadings that would have allowed him to properly assess the complaints against her, and, in the view of the Tribunal, minimised the nature and extent of those complaints.

186 The respondent’s admission in both the Hulme and Danaher matters that she hindered and delayed the investigator, constitutes a breach of section 55 (5) LPA 1987. Pursuant to section 55 (6) LPA 1987, the Tribunal finds the respondent guilty of professional misconduct in each of those matters.

187 The Tribunal is satisfied that the respondent is guilty of 5 counts of Professional Misconduct in respect of grounds A to E inclusive. As previously noted, the Tribunal is not satisfied that ground B iv has been made out and that allegation is dismissed.

4 Consequent upon the findings made by the Tribunal on the substantive issues, the respondent’s appreciation of the gravity of her conduct was clearly a primary matter of concern to the Tribunal on the question of dispositive orders.

5 In her affidavit filed on 6 February 2009, the respondent expressed her desire to remain upon the Roll of Legal Practitioners. She noted that more than 4 years had elapsed since her last practicing certificate expired on 1 July 2004, during which time she had ample opportunity to reflect upon her shortcomings as a practitioner. She averred that she would not forget the lessons she had learned from the present proceedings.

6 The respondent referred to the matters that she believed had adversely impacted upon her capacity to adequately fulfil her professional obligations. She acknowledged delay in handling matters and failure to communicate with clients saying: “I attribute those failures in part to my own unwillingness or failure to acknowledge my workload and ability to properly prioritise and attend to some of my work.”

7 The respondent noted that as a sole practitioner she felt that she did not have anyone to turn to for support.

8 In cross examination on 2 March 2009, the following questions and answers appear:

Q. Thank you. Ms Farr, you took a position in the tribunal, in the documents you filed and in your evidence, is it not, that you had stuffed up, to use the colloquial term and not more? Is that a fair summation?

A. Are you we talking about one - are you referring to this specific event of the statutory declaration or the totality of everything?

Q. No, we’re talking about the totality of your evidence. Is it fair to suggest that your position in the tribunal was that, as a combination of a number of matters, you stuffed up, you failed to give proper attention to matters and no more?

A. I would say that, yes, I failed in some areas, yes, I would say.[p25 ]

9 In oral evidence, the respondent made some concessions concerning the nature of her conduct. The Tribunal was, nonetheless, left with a strong impression from her evidence both in the substantive and dispositive proceedings, that the respondent substantially attributes her professional misconduct to the difficulties under which she was practising, including her responsibilities as a mother, the illness of one of her children, the move to Western Australia, her inability to turn away potential clients, and lack of peer support.

10 The Tribunal accepts that all of the above may have played a part in the respondent’s professional misconduct. Those stressors, however, taken singly or together, cannot satisfactorily explain or excuse the conduct of the respondent, which the Tribunal finds to have been calculated and persistent.

11 It was submitted on behalf of the respondent that she did not seek to excuse her conduct, and accepted that it fell short of the standard expected of a member of the profession by her peers and by the public.

12 The Tribunal formed the view that the respondent failed to appreciate the gravity of her conduct, and substantially sought to explain her failings by reference to the matters set out in para 9 above.

13 The Tribunal understands that stress in a practitioner’s personal life may, on occasion, be reflected in their professional performance. That cannot, however, explain or excuse a pattern of behaviour over several years, nor the nature of some of that behaviour, for example, knowingly swearing a false affidavit.

14 The misconduct the Tribunal found proved against the respondent in one or more matters of complaint may be summarised as:

Failure to communicate; failure to provide a document; gross delay; knowingly swearing a false statutory declaration; misleading or attempting to mislead the Law Society in a statutory declaration; hindering, obstructing or delaying the Investigator in breach of section 55 Legal Profession Act 1987; failing to transfer a file upon receipt of a signed authority; failing to account; gross delay in submitting a memorandum of her costs following termination of her retainer; delay in finalising her Trust Account; failing to provide a detailed account and report on settlement; failing to complete her retainer; attempting to mislead the Law Society in email and letters.

15 The respondent has a history of matters that have been the subject of complaint as follows:

(i) April 1999 the respondent was reprimanded following findings in respect of a complaint that she: failed to provide documentation; failed to communicate with the complainant; failed to advise the complainant regarding progress of her matter.

(ii) August 1998 the respondent was reprimanded for failure to respond to a complaint between 7 July 1997 and 10 July 1998.

(iii) The respondent was reprimanded in November 2001 following a finding that she failed to check a section 149 Certificate as to zoning and failed to advise her client that the land would not be sewered.

(iv) On 12 November 2003 the Administrative Decisions Tribunal found the respondent had failed to comply with a Notice pursuant to Section 152 Legal Profession Act 1987. The respondent was publicly reprimanded and ordered to pay the Law Society’s costs.

(v) April 1999 the Legal services Commissioner [LSC] issued a reprimand to the respondent following a determination that she had failed to comply with an oral undertaking to the Deputy Legal Services Commissioner to reply to correspondence from the LSC within a specified time.

16 On 6 February 2009 the respondent filed an affidavit to be considered in determining the dispositive orders to be made by the Tribunal. She did not deal with the history of complaints set out in the affidavit of Raymond John Collins filed on 3 December 2008.

17 Whilst the Tribunal is of the view that it would have been appropriate for her to deal with those matters in her affidavit, the Tribunal accepts her explanation that she was aware that material would be placed before the Tribunal by the applicant and that she would be asked about those matters in evidence.

18 These prior matters substantially occurred during the same period as those before the Tribunal. The Tribunal is, however, concerned about the pattern of complaints and findings made against the respondent by the Professional Conduct Committee of the Law Society, and by the Legal Services Commissioner. Those complaints and findings do not appear to have impacted upon the respondent such as to make her take greater care in the performance of her professional responsibilities.

19 The Tribunal notes a similarity of exculpatory explanations given by the respondent in relation to those complaints. For example in relation to her failure to comply with a section 152 notice, the respondent wrote to the Professional Conduct Committee of the Law Society on 23 January 2003, in the following terms:

“I was upset when I received the notice….I intended to reply to it myself and not to dictate my response to my secretary (as I was embarrassed) but I got caught up in the general running of the office. I did start on a response to the notice, but I remembered the incorrect date in which to reply to it – when I was informed that I hadn’t complied with it – I believed I still had time – but I obviously didn’t.

“ I was very upset with knowing what the ramification was and that I would have to explain matters to the Conduct Committee and I can only say that I developed a phobia of the file and procrastinated tidying up that very loose end.”

The respondent referred to the demands of her domestic routine combined with managing her professional life.

20 The respondent noted in her letter of explanation to the Law Society, that in December 2002 she decided to reduce her workload and work from home. She wrote:

“ I feel at peace with my situation and things are working well so far and I am referring work that I don’t feel I should do to another solicitor. I have learned to say ‘no’… I was in a rut and couldn’t find a way to fix the problem but I am confident that now I have. I want to clear up all loose ends and to finalise all outstanding complaints.”

21 Finally the respondent said:

“I was upset when I got the notice and quickly recorded the date but remembered the wrong date. When it was drawn to my attention I felt helpless and powerless and upset with the prospect of getting into trouble. I just seized up. …I never intended not to comply with the notice, I had mostly prepared a reply but felt in a real bind when I was told that I had missed the deadline.”

22 Whilst some of the matters found proved against the respondent relate to periods prior to December 2002, others do not. Thus, it appears to the Tribunal that despite her assertions to the Conduct Committee, the respondent continued to experience similar problems, and to give similar reasons for her failures.

23 The Tribunal is also troubled by the respondent’s failure to disclose to her last employer in a legal office, that the reason she could not be admitted as a solicitor in Western Australia was because these proceedings were on foot. She was only employed as a clerk, however, in the opinion of the Tribunal, the evasive reasons she provided to her employer regarding her failure to be admitted in Western Australia, are not to her credit, and display a less than frank attitude. Further, it must be inferred from the respondent’s evidence that her employer was under the misapprehension that the respondent was in a position to seek admission should it suit her to do so. That was not the situation.

24 The respondent filed affidavits of character evidence from James Antonenas and David Crawford, solicitors, and a former client, Teresa Amore, each of whom were required for cross examination.

25 The Tribunal accepts the evidence of M/s Amore concerning her experience as a client of the respondent. It is, however, unfortunate that in obtaining a glowing reference from M/s Amore, the respondent failed to inform her of the gravity of the complaints against her which were subsequently found proved.

26 James Antonenas has known the respondent since 1985. He was contacted by the respondent by email seeking a character reference. That email refers to her problems in the following terms:

“Towards the end of my practice in Sydney there are a couple of files I took too long with…I got a letter from the Society which I couldn’t deal with because I was so busy… it sort of snowballed…I basically started to ignore the Society…. I didn’t knock off any money or anything like that… Most of the allegations I do not dispute, however the Society takes a very heavy handed view of things and wants me struck off.”

27 Mr Antonenas, very properly, advised the respondent that he would need to see a copy of the complaints before the Administrative Decisions Tribunal before providing her with a reference. He received that material and an explanation from the respondent which differs in an important respect from her subsequent admission that she knowingly swore a false statutory declaration. Nonetheless, when informed of that fact, Mr Antonenas’ evidence was that his opinion that the respondent is a fit and proper person to remain upon the roll was not altered by that matter.

28 David Crawford, solicitor, has known the respondent for more than 12 years. The respondent sought a reference from him about 2 months prior to the hearing of the complaint. He was provided with a copy of the complaint and received an explanatory email from the respondent which he read onto the record and which substantially attributes her failures to overwork and errors of judgment or recollection.

29 All three of those character witnesses refer to the respondent as a competent, hard working Family Law practitioner who was trustworthy in her dealings with other practitioners and displayed a caring attitude towards her clients. Each of them had some awareness of the demands of her domestic life. The Tribunal accepts the evidence of those witnesses, which must, however, be given such weight as is appropriate having regard to the circumstances in which they gained their knowledge and experience of the respondent.

30 On 9 February 2007 the respondent contacted Dr. Philip Watts, Clinical Psychologist requesting a report “to explain how her life circumstances had impacted upon her legal practice.”

31 The report of Dr Watts, dated 31 July 2007 was admitted into evidence. At the time of providing that report Dr Watts had not seen the complaints filed by the applicant. Dr Watts formed the view that the respondent had experienced a stable upbringing although she had an “over-developed sense of responsibility” as the eldest child in a large family. In his opinion the respondent is an intelligent capable woman showing mild symptoms of anxiety and depression and moderate symptoms related to trauma. He advised that the respondent would benefit from regular therapy from a psychologist over a 1-2 year period.

32 At the time of giving evidence before the Tribunal, Dr Watts had still not read all the material relating to the complaints against the respondent. He had received emails from the respondent that referred to her being “in a bit of bother before the Administrative Decisions Tribunal… In summary I had too much on at home to do a hundred percent to the work and wasn’t helped by the stressful sort of work I did. I need you to put all that in a form to explain why I stuffed up. I didn’t knock off money or do anything too bad.”

33 It is clear from the totality of Dr Watts’ report and evidence that he relied essentially on the respondent’s version of events and her exculpatory reasoning.

34 Dr Watts referred to the respondent’s “avoidance or a delay in dealing with issues which … almost seems characteristic of her conduct” [T.41.8]

35 In essence, Dr Watts expressed the opinion that she would require to undergo treatment in order to avoid the risk of exhibiting similar behaviour under the stress of professional life.

36 The respondent did not seek treatment from Dr Watts following his report. She attributes her failure to do so to financial constraints. However, she referred to the loss of her employment in early 2008 as giving rise to financial hardship, whilst Dr. Watts report became available in July 2007.

37 The Tribunal is of the opinion that the respondent essentially sought the assistance of Dr Watts to reinforce her exculpatory explanation for her misconduct. The Tribunal is not persuaded that the respondent recognises the issues identified by Dr Watts that would suggest she remains at risk of engaging in similar behaviour in the future. Despite his recommendation that she undergo treatment she has not done so. The Tribunal does not accept that she was totally unable to pursue treatment with either Dr Watts or another psychologist in order to address the psychological matters asserted to underly her misconduct.

38 The practice of law frequently gives rise to stressful situations. It is essential that a practitioner recognise that fact, and if such stressors have impacted on the practitioner resulting in professional failures or transgressions, it is incumbent upon a practitioner who wishes to remain upon the Roll, to take steps to ensure that such stressors can be dealt with appropriately in the future. Despite Dr Watts recommendation, the respondent has taken no steps to obtain treatment.

39 The Tribunal is sympathetic to the reality that a practitioner with a busy professional life together with a somewhat onerous personal life, may well feel stressed at times. However, as Mahoney JA, as he then was, said in Law Society of New South Wales v. Foreman (No 2) (1994) 34 NSWLR 408 at 499: “character is tested not by what one does in good times but in bad”

40 The stressors experienced by the respondent were not outside the experience of many legal practitioners. Whilst they no doubt impacted adversely on the respondent’s capacity to manage her professional life, her failure to recognise and deal with them renders her unfit to remain upon the Roll. Her explanations given variously over the years to the Law Society, the Tribunal, Dr Watts, and her character referees, all treat her experiences as a busy practitioner with a demanding home life, including the serious illness of a child, as being outside the experience of other practitioners. That is not the case.

41 The Tribunal has come to the view that the respondent has failed to recognise and acknowledge that her conduct is serious and incompatible with her professional responsibilities. She appears to excuse herself on the basis of the stressors referred to, but seems unable to accept the gravity of her conduct. Nor does she appear to seriously appreciate that in failing to address those psychological issues, she leaves the Tribunal unable to find other than that she is not a fit and proper person to remain upon the Roll of Legal Practitioners.

42 The obligation placed upon the Tribunal is to protect the interests of the public. It is not a punitive role, nor is the respondent deserving of punishment. The Tribunal accepts that, in accordance with the evidence from her referees, she demonstrated a capacity for hard work and dedication to her profession. Thus it is all the more tragic that she has found it impossible to fully recognise the gravity of her wrongful conduct. Consequently she has taken no steps to remedy the behaviour that brought her before the Tribunal.

43 The duty of the Tribunal is not only to arrive at orders that will deter the respondent from similar conduct in the future, but to inform other practitioners so that they may avoid falling into the same misconduct.

44 The respondent has been found guilty of a number of matters of professional misconduct. Those matters occurred some time ago. The questions to be answered by the Tribunal are whether those offences of misconduct, would, at the time they were committed, have lead to a finding that the respondent was not fit to be a member of the profession. If the Tribunal so finds, having regard to the time that has elapsed, it is incumbent upon the Tribunal to determine whether, in the intervening period, the respondent has addressed her wrongdoing and made changes that would lead the Tribunal to find that she is now a person in whom the public and the profession can repose trust and confidence, such that despite her proven misconduct, she should be permitted to remain upon the Roll.

45 In finding the respondent guilty of a number of counts of professional misconduct, the Tribunal found that her conduct demonstrated a “…blatant disregard for adherence to professional standards and obligations.” [para 183].

46 The Tribunal is satisfied that at the relevant period, the respondent’s conduct was such that she was not a fit and proper person to remain upon the Roll of Legal Practitioners.

47 The Tribunal has considered whether, having regard to her evidence, and the totality of the evidence before the Tribunal, she could now be regarded as a fit and proper person to remain upon the Roll. The Tribunal is unable to find that the respondent has taken the necessary steps to rehabilitate herself in order to demonstrate that she is now a fit and proper person to remain upon the Roll of Legal Practitioners.

48 Some support for a result that would permit the respondent to now return to work is sought to be gained from the evidence of Dr. Watts that “…in a perfect world from a therapists point of view,…my recommendations would be along the lines of start work but have the treatment continuing parallel because is you’re trying to treat someone for the issues like stress, if they are not in a stressful environment it’s very hard to treat it.”

49 On the whole of Dr. Watts evidence it could not be said that he recommended that a return to work and recommencement as a legal practitioner should ideally be undertaken in parallel, but rather, treatment should ideally be continued [emphasis added] in parallel.

50 The Tribunal has determined that there are no orders that could be fashioned, [for example a period of suspension], that would permit the respondent to remain upon the Roll. Until such time as the respondent acknowledges the underlying cause of her misconduct, takes responsibility for that misconduct, and takes steps to remedy that cause, she remains a person who is not fit to be held out to the public, or other members of the profession, as a person in whom trust can be reposed.

51 The Tribunal accepts that in the period following her admission in 1984, until she first came under adverse notice in 1998, the respondent conducted her professional life without attracting any formal complaint. The character evidence adduced on her behalf is persuasive that the respondent was a competent and caring legal practitioner, particularly in the field of Family Law.

52 The Tribunal hopes that the outcome of these proceedings will cause the respondent to re-evaluate her behaviour and seek assistance to fit herself to be returned to the Roll at some future time. That, however, is a matter entirely within her control. Unless and until she takes steps to rehabilitate herself, she will remain not a fit and proper person to be re-admitted to the legal profession.

ORDERS:

1. The name of Clare Catherine Mary Farr be removed from the Roll of Legal Practitioners.

2. The respondent to pay the costs of the Law Society as agreed or assessed.

27/05/2009	-	Typographical error in respondent name, Tangey should be Tangney - Paragraph(s) Coversheet and Order 1
16/06/2009	-	Respondent name amended - Paragraph(s) Coversheet and orders