Law Society of New South Wales v Graham

[2004] NSWADT 213

Pending Appeal:

CITATION:	Law Society of New South Wales -v- Graham [2004] NSWADT 213
DIVISION:	Legal Services Division
PARTIES:	The Council of the Law Society of New South Wales RESPONDENT Ian Douglas Graham
FILE NUMBER:	032032
HEARING DATES:	13/04/2004 & 22/06/2004
SUBMISSIONS CLOSED:	06/22/2004
DATE OF DECISION:	09/29/2004
BEFORE:	Brennan JWF - Judicial Member; Fox R - Judicial Member; Costigan M - Non Judicial Member
APPLICATION:	Professional Misconduct - fail to lodge accountant's report with Law Society
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Allinson -v- General Council of Medical Education & Registration 1840 1QBD750 Carver -v- The Legal Profession Disciplinary Tribunal & Anor (unreported Supreme Court of NSW 27 September 1991) Kennedy -v- The Council of the Incorporated Law Institute of New South Wales (1939) 13ALJ563
REPRESENTATION:	APPLICANT L. Pierotti, solicitor RESPONDENT G Niven, barrister
ORDERS:	1. That the Information be dismissed; 2. No order as to costs.

1 By information filed in the Tribunal on 24 December 2003 the Council of the Law Society of New South Wales (“the Society”) informed the Tribunal that as a result of the Council’s investigation of complaints made under Part 10 of the Legal Profession Act 1987 (“the Act”) against Ian Douglas Graham (“the Solicitor”), a legal practitioner within the meaning of Section 128 of the Act, the Council claimed that the Solicitor, while practising as a Solicitor, was guilty of professional misconduct on the ground that the Solicitor had wilfully failed to comply with the requirements of Clause 94 (1) of the Legal Professional Regulation 2002.

2 Clause 48 of the Legal Profession Regulation 1994 (“the 1994 Regulation”) which was repealed before the date of the conduct which is the subject of the complaint provided as follows:

”1. If a solicitor received, held or disbursed money to which Section 61(1) of the Act applies at any time during the year ended 31 March that last preceded an application by the solicitor for the issue or renewal or a Practising Certificate, the solicitor must ensure that, on or before the making of the application, there is lodged with the Law Society an Accountant’s Report in respect of:
(a) each practice conducted by the solicitor as a sole practitioner; and

(b) each firm of which the solicitor was a partner, at any time during that year.

2. The Accountant’s Report is to be in or to the effect of Form 5, and is to be prepared by a registered company auditor within the meaning of the Corporations Law.

3. If the Law Society Council so requires, a solicitor must:

(a) obtain, and pay for, another report to comply with subclause (2); and

(b) forthwith, on its receipt, lodge the report with the Law Society.

4. The Law Society Council may require the report under subclause (3) to be made by a registered company auditor nominated by the Law Society Council.

5. It is sufficient compliance with this clause by a solicitor practising in partnership if one Accountant’s Report is lodged for the partnership.”

3 The Legal Profession Regulation 1994 was repealed on 1 September 2002 and on that date the Legal Professional Regulation 2002 commenced to have effect.

4 Clause 94 (1) of the Legal Professional Regulation 2002 (“the 2002 Regulation”) provides as follows:

”1. If a solicitor received, held or disbursed money to which Section 61 (1) of the Act applies at any time during the year ended 31 March that last preceded an application by the solicitor for the issue or the renewal of a practising certificate, the solicitor must ensure that, on or before the making of the application, there is lodged with the Law Society an Accountant’s Report in respect of:

(a) each practice conducted by the solicitor as a sole practitioner; and

(b) each firm of which the solicitor was a partner, at any time during that year, and


(c) each incorporated legal practice of which the solicitor was a solicitor director at any time during that year.
2. The Accountant’s Report is to be in or to the effect of Form 6, and is to be prepared by a registered company auditor within the meaning of the Corporations Act 2001 of the Commonwealth.

3. If the Law Society Council so requires, the solicitor must:

(a) Obtain, and pay for, another report that complies with subclause (2) and

(b) Forthwith, on its receipt, lodge the report with the Law Society.

4. The Law Society Council may require the report under subsection (3) to be made by a registered company auditor nominated by the Law Society Council.

5. It is sufficient compliance with this clause by a solicitor practising in partnership if one Accountant’s Report is lodged for the partnership.

6. It is sufficient compliance with this clause by a solicitor practising as a solicitor director of an incorporated legal practice if one account is lodged for the incorporated legal practice.”

5 The Information lodged with the Tribunal related to the Solicitor’s failure to lodge on or before making his application for renewal of his Practising Certificate for the year commencing 1 July 2003 the required Accountant’s Report in accordance with the 2002 Regulation.

6 The failure to lodge the report on or before lodging his renewal application was admitted by the Solicitor.

7 Evidence was led by the Society, which was not contested, in relation to the Solicitor’s failure in the previous year to lodge with the Society the required Accountant’s Report on or before his making application for renewal of his Practising Certificate for the year commencing 1 July 2002 in breach of the 1994 Regulation. The report was lodged late, but before 2 August 2002.

8 The Solicitor’s application for renewal of his Practising Certificate for the year commencing 1 July 2003 was lodged and received by the Society on 5 May 2003.

9 On 23 June 2003 the Chief Trust Account Inspector of the Society wrote to the Solicitor. The Inspector’s letter pointed out that the report had not been received and stated, inter alia:

“The Accountant’s Report is required to be lodged in accordance with Clause 94(1) of the Legal Profession Regulation 2002. The Law Society Council in accordance with Section 30 of the Legal Profession Act is unable to issue a Practising Certificate until the required information as prescribed by the Regulation has been received.

Will you please forward the Accountant’s Report as a matter of urgency. In the event the report is not received, the matter will be considered by the Law Society Council at the Council meeting to be held on 17 July 2003.”

10 On 8 July 2003 the Manager of the Professional Standards of the Society wrote to the Solicitor. The letter referred to the Inspector’s letter of 23 June 2003 and to the failure of the Solicitor to lodge the required Accountant’s Report. The letter also stated:

“The Chief Trust Account Inspector has advised that you have not complied with your obligation in regard to the lodgement of an Accountant’s Report. I also note that your 2002 Accountant’s Report was received after 30 June 2002 and I attach a copy of my letter dated 2 August 2002 for your information.

The Council of the Law Society will be asked to consider your entitlement to renew your Practising Certificate and the need to appoint a Manager to your practice, pursuant to Section 114B of the Act at its meeting of 17 July 2003.

Would you please comply with one of the following options prior to 5 p.m. Thursday 16 July 2003:

1. In the event of your having already forwarded the report, please send me a copy so that further action is stayed; or

2. Submit a properly completed Accountant’s Report together with a full and frank explanation for its delay; or

3. Provide such written submissions as you may wish as to why the application for the renewal of your Practising Certificate should not be refused and a Manager appointed to your practice;

4. In the event that you lodge the Accountant’s Report prior to 5 p.m. 16 July 2003, please provide such written submissions as you may wish as to why the Council should not appoint an investigator to your affairs pursuant to Section 55 Legal Profession Act.

Please note that the Regulation does not provide for an extension of time in which an Accountant’s Report is to be lodged.”

11 The Manager, Professional Standards, of the Society wrote once more to the Solicitor by letter dated 11 July 2003. The terms of the letter are, in the view of the Tribunal, most significant in the proper determination of the information, so the text is quoted in full, omitting formal parts:

“I refer to my previous correspondence in relation to your failure to provide an Accountant’s Report as prescribed by Clause 94(1) of the Legal Profession Regulation 2002.

Your failure to provide the above report will be considered by the Council of the Society when it meets on Thursday 17 July 2003.

Aside from having to consider whether it should take any further action in relation to your failure it will also have to consider any subsequent issuing to you of a Practising Certificate for the year ended 30 June 2004.

I am writing to advise you that when it meets, Council will have recommended to it that, in the event of a Practising Certificate being issued, it be subject to the following conditions:

1. The Solicitor, within twenty-eight days after the end of each calendar month, is to provide to the Inspection and Investigation Department of the Law Society of New South Wales [“the Society”] and to the Manager of the Professional Standards Department of the Society [“the Manager”] for scrutiny a copy of his trial balance statement disclosing each account in his trust ledger effective as at the end of such month to which that trial balance relates, together with copies of those trust account records upon which such trial balance statement has been prepared including, but not limited to, bank reconciliation, bank statements, bank control accounts or cash book balance.

2. The Solicitor’s practice is to be subject to quarterly inspection by a Solicitor nominated by the Manager. That Solicitor so appointed shall report to the Manager after each of the inspections the cost of which is to be borne by the Solicitor.

As the above conditions are not of the kind referred to in the Legal Profession Act, Section 33(1)(d) of the Act requires that your agreement to the placing of such conditions on any Practising Certificate issued to you be obtained.

In order that Council can be informed of your consent or otherwise [and thus determine its position] please sign and date the enclosed copy of this letter, making the appropriate notation on the note at the foot thereof.

Your reply no later than 5 p.m. on Tuesday 15 July 2003 is required.”

12 The Solicitor replied by letter dated 15 July 2003 advising that the Accountant’s Report would be sent by fax the following day, which it was, and its receipt on 16 July 2003 is recorded by the Society. The Solicitor’s letter gave an explanation as to the delay, submitted that he should be allowed to continue in practice and consented to the two conditions proposed by the Society to be placed on the issue of Practising Certificate to him whilst submitting that Condition 2, as detailed by the Council, was an unnecessary imposition. The Solicitor placed determination of those issues in the hands of the Council and the Council subsequently imposed both conditions.

13 Notwithstanding the lodgement of the Accountant’s Report before the meeting on 17 July 2003 as nominated by the Society and the acceptance by the Solicitor of conditions on the issuing of his Practising Certificate being conditions which the Society had expressly asserted required the Solicitor’s consent under the Act, the Society notified the Solicitor by letter dated 25 July 2003 that it had resolved to make a complaint against him pursuant to Section 134 of the Act. The letter required a written response with supporting documents within fourteen days to enable the Professional Conduct Committee to “fairly consider this matter”.

14 The Society followed this up with a reminder letter of 12 August 2003 and then a further letter of 3 October 2003 advising of resolutions of the Professional Conduct Committee of 2 October 2003. Those resolutions were to the effect that the Solicitor be informed:

i. The Complaint in the opinion of the Committee involved issues of professional misconduct and the Solicitor was invited to make submissions on those issues within fourteen days.

ii. That subject to any submissions by the Solicitor the Committee should resolve that it is satisfied that there is a reasonable likelihood that the Solicitor will be found guilty by the Tribunal and that proceedings be instituted alleging professional misconduct in that the Solicitor had wilfully failed to comply with the requirements of Clause 94(1).

The letter further indicated that subject to any submissions that Orders to be sought be that:
a) The Solicitor be publicly reprimanded;

b) The Solicitor be fined; and

c) The Solicitor pay the Society’s costs.

The letter further advised that the Complaint was to be placed on the Committee’s agenda as soon as possible after the expiration of fourteen (14) days from the date of the letter. The letter concluded that in the absence of any further submissions, the Committee would reconsider the Complaint on the information then available.

15 The Solicitor replied on 13 October 2003 to the Society’s letter of 3 October 2003. Clearly, the Solicitor totally misunderstood the letter of 3 October which related to the proposed Complaint of professional misconduct arising out of a wilful non-compliance with Clause 94(1) because the Solicitor addressed in his letter not the foreshadowed Complaint, but his delay in forwarding the Trial Balance Statement for his Trust Account for the period ended 31 August 2003 by 28 September 2003. The Solicitor further addressed in that reply the issue of having his Practising Certificate cancelled or suspended.

16 While the Solicitor’s letter of 13 October 2003 was annexed to the principal Affidavit filed on behalf of the Society in support of the information, there appears to have been no response made to that letter by the Society and on 11 December 2004 the Society advised the Solicitor of its resolution of the same date that the Committee was satisfied there was a reasonable likelihood that the Solicitor would be found guilty by the Tribunal of professional misconduct and that proceedings would be instituted under Section 155(2) alleging wilful failure to comply with Clause 94(1). The letter gave the Society’s reasons for the decision as:

“1. The Solicitor failed to lodge, within the prescribed time, an Accountant’s Report for the 2001-2 year and was subsequently written to on 2 August 2002 and advised, in part, that

‘At the meeting of the Council of the Law Society held on Thursday, 18 July 2002 it was resolved, inter alia, that you be advised that the Council considered your failure to be serious and that you be warned against similar failure in the future. Council further determined to record the fact that this warning has been given.

No further action is to be taken regarding your failure to provide the 2002 Accountant’s Report, but any failure to provide the same in accordance with the Act and Regulation in future may lead to the refusal to issue you with a Practising Certificate.’

2. Notwithstanding the correspondence to the Solicitor in August 2002, the Solicitor again failed to comply with the requirement imposed by Clause 94(1) of the Legal Profession Regulation 2002.”

17 The letter in respect of that non-compliance was clearly in terms that no further action would be taken but that any future failure “ may lead to the refusal to issue you with a Practising Certificate” [the emphasis is that of the Tribunal]. This was a warning but it was a warning of possible consequence of a regulatory or licensing nature in the event non-compliance occurred again and not a disciplinary consequence.

18 Professional misconduct and unsatisfactory professional conduct are both the subject of non-exclusive definitions in Section 127 of the Act. The relevant portions of the section are:

“(1) For the purposes of this Part ‘professional misconduct’ includes:
(a) unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence, or

(b) conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a "legal practitioner" is not of good fame and character or is not a fit and proper person to remain on the roll of "legal practitioners", or

(c) conduct that is declared to be professional misconduct by any provision of this Act, or

(d) a contravention of a provision of this Act or the "regulations" being a contravention that is declared by the "regulations" to be professional misconduct”.

(2) For the purposes of this Part:
“ “unsatisfactory professional conduct” includes conduct (whether consisting of an act or omission) occurring in connection with the practice of law that 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” ”.
19 Section 127 (1)(c) the Act confirms that specific to be “statutory” professional misconduct. (e.g. Section 61(1) and (2) by virtue of Section 61(8) where the contravention is wilful; 62(1)(2) and (3) under the terms of Section 62(4) where the contravention is wilful; Section 152(1) by virtue of Section 152(4) where the failure is without reasonable excuse and Section 207(1) by virtue of Section 207(6) where the failure is without reasonable excuse.)

20 The obligation to comply with Clause 94(1) of the Legal Profession Regulation 2002 is clear. Equally clear is the fact that neither the Act nor the Regulation expressly specifies the category of conduct into which a failure to comply may fall.

21 On behalf of the Society it was submitted that the definition in the Act of unsatisfactory professional conduct and, indeed, the concept itself which by definition is open-ended, is conduct that one associates with a Solicitor/client relationship. It was submitted that unsatisfactory professional conduct incorporated an element of consumer protection. Conduct of the variety involved in this complaint was, it was submitted, more properly described as a breach of professional responsibility or obligation and constituted professional misconduct and could as such, not be unsatisfactory professional conduct.

22 In support of its contentions that the Solicitor’s conduct can only amount to professional misconduct, and not unsatisfactory professional conduct, the Society relied in part upon the comments in F. Riley “The New South Wales Solicitors’ Manual” at 35, 695.5 et seq. which the Society submitted supported a concept that unsatisfactory professional conduct had a consumer component. Riley at 35,695.10 asserts in relation to the definition of unsatisfactory professional conduct that “the conduct described by the definition appears to refer mainly to the relationship of legal practitioner and client.” The Tribunal is of the view that the word “mainly” is very significant in the learned author’s examination of the definition and does not support the Society’s submission that this solicitor’s conduct can only amount to professional misconduct and not unsatisfactory professional conduct.

23 The second reading speech of the original Bill on 29 April 1987 referred to a two-tiered level of misconduct of serious professional misconduct and minor professional misconduct. The Bill was amended and in the second reading speech of 18 November 1987, the Attorney General referred to “minor professional misconduct, or unsatisfactory professional conduct as it will now be known”. Clearly, the Act defines specific conduct as professional misconduct. Such conduct whether by act or omission incorporates defined ingredients which have to be established to produce a finding of professional misconduct. There are, however, other acts or omissions where it is necessary to assess a number of different facts and circumstances to determine whether the act or omissions constitute professional misconduct or unsatisfactory professional misconduct.

24 Bearing in mind that the conduct in this matter which was the subject of complaint is not professional misconduct as defined in the Statute, it is useful to reflect upon the words of Lopez LJ in Allinson -v- General Council of Medical Education & Registration 18401QB750 where His Lordship said:

“If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful and dishonourable by his professional brethren of good repute and competency, then it is open for the General Medical Council to say that he has been guilty of ‘infamous conduct in a professional respect’."
This oft quoted statement has been applied in Australia many times as an appropriate test as to whether some particular conduct of a legal practitioner amounts to professional misconduct.
25 The need for the assessment of particular conduct albeit well before the commencement of the Act was pointed out by the High Court in Kennedy -v- The Council of the Incorporated Law Institute of New South Wales (1939) 13ALJ563 where Rich J. said:
“….. a charge of misconduct as relating to a solicitor need not fall within the legal definition of wrong doing. It need not amount to an offence under the Law. It was enough that it amounted to grave impropriety affecting his professional character and was indicative of a failure either to understand or practise the precepts of honesty or fair dealing in relation to the Courts, his clients or the public. The particular transaction the subject of the charge must be judged as a whole and the conclusion whether it be tokened unfitness to be held out by the Court as a member of a profession in whom confidence could be placed, or on the other hand, although a lapse of propriety, was not inconsistent with general professional fitness and habitual adherence to moral standards, was to be reached by a general survey of the whole transaction.”
26 Clearly, the type of conduct referred to in both Allinson & Kennedy (supra) being “ reasonably regarded as disgraceful and dishonourable” or amounting “ to grave impropriety affecting his professional character” involved most serious matter.

27 The conduct complained of in relation to the Solicitor in this matter is properly in the view of this Tribunal regarded as administrative failure by the Solicitor. The Tribunal does not mean in any way to treat the failure as trivial but considers the “administration” designation helpful in examining the quality of the conduct. The provision of a proper Accountant’s Certificate was a pre-condition of the renewal of the Solicitor’s Practising Certificate. The Solicitor had a duty to supply that Certificate, just as the Society had a duty to require provision of that Certificate in satisfactory form before renewing the Solicitor’s Practising Certificate.

28 The Society in its submissions placed weight upon the words of Clark JA in Carver -v- The Legal Profession Disciplinary Tribunal & Anor (Unreported 27 September 1991) where His Honour said:

“The Law Society are very good judges of what is professional misconduct by a Solicitor, just as the General Medical Council are very good judges of what are (sic) misconduct as a medical man.”
29 Clearly, His Honour’s comments reflect that the decision of the Society to lodge an information is the result of careful consideration, but the determination of the nature of the conduct remains a matter for the Tribunal or the Court in the light of the evidence brought in support of and in opposition to the complaint. The Tribunal notes and has carefully considered the Society’s claim as detailed in the information but ultimately the Tribunal, of course, has to make its own determination of the nature of the conduct referred to in the complaint.

30 It was agreed in submissions that no complaint similar to the complaint in this matter had previously been determined by the Tribunal, though we were referred to decisions in four different matters of the Solicitor’s Disciplinary Tribunal in England and five decisions of the Queensland Tribunal. All of these matters either involved or included complaints relating to the failure to lodge with the regulatory authority an Accountant’s Report in relation to the practitioner’s Trust Account. The Tribunal found it worthwhile to consider these decisions. Ultimately the Tribunal has concluded that these decisions are based on different legislation and deal with different facts and circumstances, and do not ultimately assist the Tribunal in its determination of this matter.

31 The Tribunal has concluded that the Solicitor’s failure to comply with the Regulation does not amount to professional misconduct. The conduct complained of is a failure to comply with an administrative obligation. The Tribunal finds that in the absence of a declaration in the Regulations pursuant to s127 (1)(d) the Solicitor’s omission is not of the grave nature that could come within the serious professional misconduct level of the two-tiered level of misconduct introduced in the Legal Profession Act 1987. There is no all-embracing definition of professional misconduct but clearly from the two descriptions quoted above from Allinson and Kennedy, professional misconduct involves gravity which is absent in this matter where part of an administrative obligation has been breached. However, in the view of the Tribunal a finding of unsatisfactory professional conduct remains open to it.

32 Section 127(2) describes some kinds of misconduct which are included in unsatisfactory professional conduct but clearly there are other forms of misconduct which fall under this heading. By way of example, conduct that falls short of the “substantial or consistent failure” test referred to in Section 127 (1) (a) and conduct that is not declared (within the meaning of Section 127 (1) (c)) may constitute unsatisfactory professional conduct. Substantial reliance appears to have been placed by the Society upon the fact that the Solicitor had been late in the lodgement of his 2002 Accountant’s Report. The letter of 2 August 2002, already referred to, expressly contained a warning that a similar failure in the future may lead to the refusal to issue a Practising Certificate. The procedure is then clearly viewed as administrative and, while the consequences of the failure to issue a certificate result, inter alia, in the Solicitor not being able to practise until a certificate is issued, there is no mention or reference to disciplinary action and, indeed, the Tribunal finds it is proper to conclude that the decision to take no further action in 2002 and give a warning was within the realm of administration rather than discipline.

33 The Society’s further letter of 23 June 2003 continued to deal with this matter as one of compliance within the realm of the administration of the Society’s regulatory or licensing function, rather than within its disciplinary function. The Report was requested “as a matter of urgency” and if the Report was not received by the Society, the matter “will be considered by the Law Society Council at the Council meeting to be held on 17 July 2003”. It is common ground that the report was indeed lodged before 17 July 2003.

34 The letter of 8 July said nothing of any disciplinary action. It provides three options to the Solicitor:

“1. In the event of you having already forwarded the report please sent me a copy so that further action is stayed; OR

2. Submit a properly completed Accountant’s Report together with a full and frank explanation for its delay; OR

3. Provide such written submissions as you may wish as to why the application for renewal of your practising certificate should not be refused and a manager appointed to your practice.”

The letter further provides:

4. In the event that you lodge the Accountant’s Report prior to 5pm 16 July 2003, please provide such written submissions as you may wish as to why the Council should not appoint an investigator to your affairs, pursuant to Section 55 Legal Profession Act.”

35 The letter of 11 July detailed conditions that would be recommended to the Council if a Practising Certificate was issued. A reply was sought by 15 July and this was provided by the Solicitor with an acceptance of the conditions that had been proposed and some explanation of the delay. By the time of the meeting on 17 July the Solicitor had complied with the Society’s requirements. These letters from the Society should be seen in the context of the Society being the regulatory authority for compliance with the licensing provisions of the Act in the context where its requirements, as detailed in the correspondence, were requirements of an administrative nature.

36 The Practising Certificate of the Solicitor was renewed and the Solicitor of his own volition merged his practice with another firm in November 2003. He sought and obtained a limited Practising Certificate as an employee. At the time of the hearing, he remained an employed solicitor.

37 The evidence is that the first assertion by the Society that the Solicitor’s failure to lodge the Accountant’s Report in accordance with the terms of Clause 94(1) may have a disciplinary consequence was set out in the letter of 25 July 2003 from the Society after he had consented to the conditions on the issue of his Practising Certificate.

38 The Solicitor’s obligation to lodge an Accountant’s Report is clear and the Solicitor did not comply with that requirement on lodging his Application for Renewal of his Practising Certificate for the 2002/2003 year, which invoked no disciplinary action, nor threat of disciplinary action. For the reasons already detailed the Tribunal finds that that default does not meet the tests that would justify contemplating a finding of professional misconduct. The matter was dealt with by the Society as a licensing issue until after the Accountant’s Report was lodged on 16 July 2003. The Society effectively set a deadline for the lodgement of the Accountant’s Report before its meeting on 17 July 2003 and this deadline was met. The Society’s correspondence proposed conditions on the issue of the Solicitor’s Practising Certificate that would be recommended to the Council of the Society and these conditions were promptly accepted by the Solicitor. The Solicitor did not comply with the timing requirements of Clause 94(1) but the Tribunal takes the view that it is proper to take into account the subsequent requirements of the Society and the Solicitor’s compliance with those requirements and the consequences of non-compliance outlined in both 2002 and 2003 by the Society. Until 25 July 2003 the Solicitor’s failure to comply with Clause 94(1) when applying for renewal of his Practising Certificate had on two occasions been dealt with by the Society as an administrative or licensing issue capable of being remedied. The Tribunal is not comfortably satisfied that the Solicitor’s conduct in the context of the events as they have been detailed is sufficient to justify a finding of unsatisfactory professional conduct in this matter and accordingly the information is dismissed.

39 Section 171(E)(1) of the Act is in the following terms:

“171E (1) The "tribunal" may make orders requiring a "legal practitioner" whom it has found guilty of unsatisfactory professional conduct or professional misconduct to pay "costs" (including the "costs" of the "commissioner", the appropriate "council" and the complainant).”

40 In consequence of the information having been dismissed the application for costs made by the Society is also dismissed.