Law Society of New South Wales v Graham
[2005] NSWADT 114
•05/25/2005
CITATION: Law Society of New South Wales v Graham [2005] NSWADT 114 DIVISION: Legal Services Division PARTIES: APPLICANT
The Council of the Law Society of New South Wales
RESPONDENT
Ian Douglas GrahamFILE NUMBER: 042031 HEARING DATES: 02/02/2005 SUBMISSIONS CLOSED: 02/02/2005 DATE OF DECISION:
05/25/2005BEFORE: Hale S - Judicial Member; Cox R - Judicial Member; Costigan M - Non Judicial Member APPLICATION: Professional Misconduct - fail to comply with s. 152 Notice MATTER FOR DECISION: Principal matter LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: Law Society of NSW v Foreman 1994 34 NSWLR 408 REPRESENTATION: APPLICANT
L Pierotti, solicitor
RESPONDENT
R Killalea, counselORDERS: 1. The Legal Practitioner be publicly reprimanded; 2. The Legal Practitioner pay a fine of $2,500.00 within three (3) months; 3. The Legal Practitioner pay the costs of the Council of the Law Society agreed at $1,000.00.
1 The Legal Practitioner has been in practice for 20 years having been admitted in July 1985. He comes before this Tribunal for two breaches of Section 152 of the Legal Profession Act 1987.
2 The relevant parts of Section 152 (omitting reference to interstate legal practitioners) for the purpose of these complaints are as follows:
- S152 (1) For the purpose of investigating a complaint, a Council or the Commissioner may, by notice in writing served on any legal practitioner require the legal practitioner to do any one or more of the following:
- (a) to provide written information, by a date specified in the notice, and to verify the information by statutory declaration,
(b) to produce, at a time and place specified in the notice, any document (or a copy of any document) specified in the notice,
(c) to otherwise assist in, or co-operate with, the investigation of the complaint in a specified manner.
(4) A legal practitioner who, without reasonable excuse, fails to comply with such a requirement is guilty of professional misconduct.
3 On 21 October 2003 a Manager was appointed to the Solicitor’s practice pursuant to S114B of the Legal Profession Act 1987.
4 In the course of the investigation by the Law Society following the appointment of a Manager, a letter was forwarded to the Solicitor on 18 December 2003 seeking information in relation to trust account compliance. There was no response by the Solicitor.
5 A second letter was forwarded to the Solicitor by the Law Society on 16 January, 2004. There was no response by the Solicitor.
6 A third letter was forwarded to the Solicitor by the Law Society on 11 March 2004. Still, there was no response by the Solicitor.
7 On 29 April 2004 the Professionals Standards Committee of the Law Society by delegated authority resolved that a Notice pursuant to Section 152 of the Legal Profession Act 1987 be issued (‘the first Notice’). That Notice was personally served on the Solicitor on 8 May 2004 and required compliance by 23 May 2004. The Solicitor failed to comply with the First Notice.
8 At about the same time that the Law Society was investigating the Solicitor in relation to his Trust Account, a member of the Bar made a complaint against the Solicitor which complaint was referred by the Legal Services Commissioner of NSW to the Law Society for investigation.
9 By letter dated 4 February 2004 the Solicitor was advised of the complaint by Counsel and was asked to respond within 14 days. The Solicitor failed to respond.
10 By letter dated 1 March 2004 the Solicitor was again asked for his response to the complaint by Counsel. The Solicitor did not respond.
11 On 29 April 2004 the Professional Standards Committee of the Law Society by delegated authority resolved that a Notice pursuant to Section 152 of the Legal Profession Act 1987 be issued (‘the second Notice’).
12 On 8 May 2004 the Solicitor was personally served with the Second Notice requiring compliance by 23 May 2004. The Solicitor failed to comply with the Second Notice.
13 The Solicitor did not respond to either of the Notices until 1 December 2004.
14 The Solicitor admitted the grounds of the two complaints and the circumstances relied upon in support and did not offer any evidence by way of reasonable excuse. In the circumstances, there was no dispute the Solicitor was guilty of professional misconduct in accordance with S.152 (4) of the said Act.
15 By way of mitigation, the Solicitor said he had been under considerable stress as a result of the closure of his firm and the move to another firm (which subsequently relocated offices from the suburbs to the city) as well as his involvement in major litigation with Westpac which he was running on behalf of a client in part on a contingency basis all of which had put severe strains on his practice.
16 The Tribunal notes that the closure of the Solicitor’s firm and his move to the other firm took place some 6 months prior to the First and Second Notices being served upon him.
17 In the view of the Tribunal, the correspondence and Notices sent to the Solicitor by the Law Society showed quite clearly that more than enough opportunities were given to the Solicitor to respond yet it was not until 1 December 2004 that the Solicitor elected to do so.
18 In his oral evidence, the Solicitor was contrite and said he had no excuse to offer for not responding and that it was a ‘huge’ mistake and one he would not make again.
19 The Tribunal formally finds that the Solicitor is guilty of professional misconduct in relation to each of the two complaints made against him.
20 When a finding of professional misconduct is made, the primary duty of the Tribunal is protection, rather than punishment [See Mahony JA in Law Society of NSW v Foreman 1994 34 NSWLR 408].
21 Section 171C(2) of the Legal Profession Act 1987 provides a wide range of orders which the Tribunal can make and both Advocates for the parties submitted that a public reprimand and fine were appropriate in the circumstances.
22 The Tribunal having considered the evidence and a number of decisions in similar cases is of the view that a fine and public reprimand are appropriate in the circumstances, such fine being at the lower end of the scale to take account of the Solicitor’s past good record, his contrition which the Tribunal believes is genuine and the financial burden of the legal costs of these proceedings including payment of the Law Society’s costs.
23 The Tribunal therefore orders:
- 1. That the legal practitioner be publicly reprimanded;
2. That the legal practitioner be fined the sum of $2,500.00 payable within three months of the date of these orders;
3. That the legal practitioner pay the costs of the Law Society in the sum of $1,000 as agreed.
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