Law Society of New South Wales v Hovan
[2003] NSWADT 208
•09/08/2003
CITATION: Law Society of New South Wales v Hovan [2003] NSWADT 208 DIVISION: Legal Services Division PARTIES: APPLICANT
The Law Society of New South Wales
RESPONDENT
George Leslie HovanFILE NUMBER: 022012 HEARING DATES: 20/01/2003, 22/01/2003, 23/01/2003, 09/04/2003, 10/04/2003 SUBMISSIONS CLOSED: 04/10/2003 DATE OF DECISION:
09/08/2003BEFORE: Brennan JWF - Judicial Member; Barnes M - Judicial Member; O'Neill A - Member APPLICATION: Costs - Professional Misconduct - breach of s. 61 of the Legal Profession Act - Professional Misconduct - breach of s. 62 of the Legal Profession Act - Professional Misconduct - fail to appear at hearing - Professional Misconduct - fail to carry out work assigned - Professional Misconduct - fail to communicate - Professional Misconduct - fail to comply with cost assessor under s. 207 - Professional Misconduct - fail to comply with request of Inspector - Professional Misconduct - fail to comply with s. 152 Notice - Professional Misconduct - fail to disclose costs - Professional Misconduct - fail to keep accounts - Professional Misconduct - fail to pay third party - Professional Misconduct - fail to provide accounts - Professional Misconduct - fail to respond to letters - Professional Misconduct - prefer own interests to those of others MATTER FOR DECISION: Principal Matter LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: Allison v The General Council of Medical Education and Registration (1894) QBD 750, Barwick v Law Society of NSW 2000 HCA 2, Briginshaw v Briginshaw (1938) 70 CLR 336, Castle v Legal Services Commission and Anor No 2 (2000) NSWCLR 336, Colvin v Carr (1979) 1NSWLR 1, Forbes v NSW Trotting Club (1979) 143 CLR 242, Veron; ex parte Law Society of New South Wales (1966) 84 WN 136, Hodgekiss (1959) 62SR (NSW) 340, City Equitable Fire Insurance Co (1925) Ch. 407, Mayes and the Legal Profession Act [1974] 1NSWLR 19, Vickery (1930) 2Ch. 572, Kennedy v The Council of the Incorporated Law Institute of New South Wales (1940) 13 ALJR 563, Law Socity of NSW v Bannister (1993) 4LPDR 24, Law Socity of NSW v James (unreported 27 July 1978), NSW Crime Commission v Heal & Fleming (unreported Court of Appeal 14 August 1991) REPRESENTATION: APPLICANT
D Barton, solicitor
RESPONDENT
No AppearanceORDERS: 1. That the Respondent is guilty of professional misconduct.; 2. That the name of George Leslie Hovan be removed forthwith from the roll of legal practitioners.; 3. That the Respondent pay the costs of the Applicant Society of and incidental to these proceedings determined by the Tribunal in the sum of $5,000.00 such payment to be made to the Applicant Society within one (1) month of the date of this order.
REASONS FOR DECISION
Complaint
1 By information filed in the Tribunal on 15 April 2002 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 against George Leslie Hovan (“the solicitor”) a legal practitioner within the meaning of s128 of the Act the Council claimed that the practitioner, while practising as a solicitor, was guilty of professional misconduct.
2 Complaints relating to 10 different matters involving 26 allegations of misconduct were detailed and particularised in the information filed on 15 April 2002.
3 An amended information was filed without leave by the Society on 3 July 2002. Professional misconduct was again alleged and the Society detailed fifteen (15) grounds and sixty-one (61) separate allegations of misconduct. This information sought the same orders as the initial information.
4 On 10 January 2003 the Society filed a second amended information claiming professional misconduct by the solicitor. The information was also filed without leave and it listed complaints in relation to 15 matters and particularised 63 separate allegations of misconduct.
5 All three informations sought the removal from the Roll of the solicitor and an order that the solicitor pay the Society’s costs.
6 On the first day of the hearing the Society sought leave to rely on the second amended application and to further amend that application. Leave was granted on terms of notification being given to the solicitor and of notice to the solicitor or his Counsel to make such application on the adjourned hearing date as he might elect or be advised.
7 The proceedings were then adjourned and on the adjourned hearing date satisfactory evidence of compliance with the Tribunal’s directions was provided by the Society and there being no appearance by the solicitor the matter proceeded.
Non-attendance of Solicitor at hearing:
8 The solicitor did not attend the hearing and indeed there was no doubt that his failure to attend extended the length of the hearing significantly because the various technical matters required to establish the jurisdiction of the Tribunal following the proper compliance with the complaints procedure needed to be proved without any reliance on consent by the solicitor. Indeed these formal matters were often not straightforward and at various times the focus of the hearing was for a period directed at those procedural issues and not to the fundamental issues of fact relating to the conduct of the solicitor alleged in the various complaints.
9 The conduct of the solicitor in relation to his involvement in the hearing is a little reminiscent of the approach of the respondent solicitor in re Veron; ex parte Law Society of New South Wales (1966) 84 WN 136. In Veron, the solicitor sought effectively to sit on the sidelines. In this matter the solicitor took refuge in convoluted letters and ultimately a fax to the Tribunal to which reference is made below. Perhaps it is timely to remind the profession once more of its obligations in relation to conduct complaints and in particular to the words of the Full Court in Veron’s case at 141:
10 The Solicitor in this matter chose not to attend the Tribunal on any of the five days on which these proceedings were heard. At the commencement of the hearing the Tribunal had before it a facsimile from the solicitor addressed to the Tribunal dated 17 January 2003. The facsimile made a number of statements or assertions relevant to the proceedings including:
The Act has changed, the procedure has changed and the name of the Tribunal empowered to deal with these complaints has changed many times but, in essence, while the tempo of communications has increased, so much indeed remains the same.
“The jurisdiction is a special one and it is not open to the respondent when called upon to show cause, as an officer of the court, to lie by and engage in a battle of tactics as was the case here, and to endeavour to meet the charges by mere argument. We are well aware that if a solicitor is called upon to show cause he may do so in several ways. He may:
(a) argue that the material before the court discloses no evidence of misconduct;
(b) argue that the facts adduced in evidence do not warrant a finding of misconduct;
(c) meet the situation by a denial or explanation, in either case upon oath, of the truth or of the significance of the facts deposed to.
It is the last alternative in the main with which the respondent was faced here. Yet, as we have said, no denial or explanation was forthcoming, the respondent having sought what refuge was available in argument from the Bar Table.”
11 Of particular importance at the commencement of the hearing were the final two paragraphs of the respondent’s letter which read:
i. That the solicitor had closed his practice and ceased to work as a solicitor about 14 October 2002 and had notified the Society of this;
ii. The solicitor had advised the Society he would consent “to the making of a general order if necessary that my name be removed from the Roll”;
iii. That Counsel had advised the Society and the Tribunal of the solicitor’s intention to cease practice.
iv. That the solicitor’s purpose of closing the practice and ceasing to work as a solicitor was to avoid the Society carrying on with the Tribunal proceedings.
v. That the solicitor thought that he had explained each and every matter in relation to the allegations raised in a satisfactory manner.
vi. That solicitor wished to save time and money.
vii. That the solicitor lacked the financial ability to obtain legal representation and did not wish to act for himself.
viii. That the solicitor disputed that any conduct complained of was “wilful”.
12 In addition to seeking leave to rely upon the Amended Information of 10 January 2003 the Society also sought to further amend that 10 January 2003 information by changing references to the Section of the Legal Profession Act relied upon in 9 instances and by making consequential amendments to the particulars by correcting the references recited in the particulars so that the references were to be read as Section 61(1) (b) rather than as pleaded in the 10 January 2003 document as Section 62(2) (a). The Tribunal was concerned at the consequence of that amendment in that its impact was to alter the complaint to one in relation to those particular matters to complaints which if established constituted professional misconduct under the Act. The Tribunal was assured that the solicitor had previously received a copy of Ms Sayer’s report but decided to grant the leave sought by the Law Society including the amendments raised on that first day and to adjourn the proceedings until Wednesday 21 January 2003. The Society was directed to notify the solicitor by express post and also by letter hand-delivered to the Post Office where his correspondence had disclosed a PO Box number. The letters to advise the solicitor of the further hearing date were required to draw the attention of the solicitor or his Counsel to the possibility of making such application as he elected or was advised, failing any such application that the matter would proceed to be heard on the adjourned date. The Society was required to draw to the solicitor’s attention that the information as ultimately amended resulted in certain conduct if established as wilful constituting professional misconduct by statute which was not the automatic consequence of the prior pleading. It should be stressed that the various complaints in relation to alleged breaches of s61 and s62 of the Legal Profession Act are references to those sections as they were worded at the time the alleged offences occurred. Subsequent amendments to the Act have made some paragraphs in these reasons for decision appear inappropriate unless one has a copy of the section as they applied at the time of the alleged misconduct. This situation was not without its problems for the Tribunal.
“I do note the Society has now served a further Amended Information with amendments of such a nature that they would require further consideration. That further consideration would, of course, require time. I also note from the letter from Mr Barton that a document from Ms Sayers was also to be provided but that was not included in the letter. I leave the matter in the hands of the Tribunal. I would not object in any event if there was an order to remove my name from the Roll. I would, though, object as to any order for costs. I have said I had consented to the relevant order some time ago and it would have obviated the necessity for the matter of the current proceedings and therefore I do not consider that the Society could seek costs.”
13 On the resumption of the hearing the Tribunal was satisfied from Affidavits tendered that the directions had been complied with by the Society. There was no appearance on that day by the solicitor or anyone on his behalf nor was there any subsequent appearance nor did the Tribunal receive any further communication from the solicitor. The matter accordingly proceeded ex parte.
14 The Tribunal has reviewed the processes undertaken in relation to the investigation and notification of complaints. The Tribunal was satisfied from the evidence that the solicitor had due notice of the amendments to the information on 10 January 2003 and that he was afforded procedural fairness on 20 January 2003 by being invited to make such application in relation to the further hearing as he was advised. If the solicitor wanted more time to consider his position that option was open to him but no such application was made.
15 Mr Barton very properly drew the Tribunal’s attention to the fact that the Society could not locate a letter to the solicitor advising him of the decision to institute proceedings with respect to the complaint which was notified to him on 26 November 2001. The decision was taken at a meeting of the Society’s Conduct Committee on 6 June 2002. Ultimately this aspect proceeded on the basis that it could only be assumed that a letter notifying the solicitor of the decision had not been sent.
16 Section 171J of the Act is in the following terms:
17 The effect of a finding adverse to the Society by the Tribunal on these matters would be to result in the dismissal of the last 5 complaints and some parts of the earlier 10 complaints.
1. The Council or the Commissioner must cause the decision in respect to a complaint together with the reasons for a decision, to be notified in writing to the complainant and to the legal practitioner against whom the complaint was made.
2. In the case of a decision of a Council to dismiss a complaint or reprimand the legal practitioner, the right of the complainant to apply to the Commissioner for a review of the decision must also be included in the notice to the complainant.
3. The notice to a complainant is not required under this section if a complaint was made by the Commissioner or a Council.
18 In Barwick -v- Law Society of NSW 2000 HCA2 the Society failed to follow the procedures required in relation to the institution of the proceedings in the Tribunal. The High Court held that the substantial departure from those procedures entitled the practitioner to an order for prohibition on the basis that the Tribunal’s jurisdiction had not been properly and regularly invoked. The majority Judgment of Gleeson CJ, Gordon and McHugh J states at 53:
19 In the course of the investigation by the Society the High Court found that there were delays over some years in the investigative process but that ultimately in relation to each of two complaints there was a resolution of complaint being initiated followed immediately by a resolution that an information be laid.
“Not every departure from the procedures laid down by Part 10 and, in particular, Division 5 will result in a lack of jurisdiction under Section 167. However, one of the purposes of the legislation is to bring about the result that before the matter comes to the Tribunal it will have been the subject of a complaint which has been the subject of an investigation monitored by the Commissioner and considered and dealt with by a Council or the Commissioner under Section 155.”
20 The initiation of a complaint involves investigation so that there is an overall process to be gone through before the information can be laid. Ultimately the High Court held that there was in the circumstances of Barwick “such a departure from the requirements of division 5 as to deprive the Tribunal of jurisdiction” (supra at 63).
21 In this matter Mr Barton for the Society submitted that Section 171J could be complied with at any time. The Tribunal is not sympathetic to that view, but the Section has to be seen in the context of the scheme of the legislation and in particular in relation to Sections 148, 152 and 155 of the Act. The legislation is designed to ensure that the practitioner receives natural justice in the provision to the practitioner of reasons for the decision to lay the information being given to the practitioner prior to an information being filed so that the practitioner has an opportunity to satisfy the Council that the complaint had not been established. Simpson J in Castle -v- Legal Services Commission & anor [No. 2] 2000 NSWSC 336 said:
22 In considering these matters the Tribunal has concluded that if there was a denial of natural justice in the failure to notify the reasons to the solicitor that would need to be established and if established the act would be void rather than voidable. The circumstances of this matter and the extent of communication with the solicitor through the stages before the information was laid and the notices to him of the hearing and the efforts made to involve him in the proceedings should he so elect clearly make it inappropriate for the Tribunal effectively on its own motion to determine that the later amendments to the initial information are void and so decline to consider those allegations on their merits.
“I do not think that Barwick is authority for so bold a proposition as the claimant now advances. The High Court was not there considering whether a conclusion that, where the jurisdiction of the Tribunal has been irregularly invoked, by reason of a denial of procedural fairness or otherwise, remedies of the kind here being sought are deprived of their essentially discretionary character or are pre-determined regardless of the considerations that would ordinarily attend a claim for such remedies. A similar response must be given in relation to the two other authorities on which the claimant relied for the proposition that a finding of a denial of procedural fairness can only have one outcome - ironically enough, Colvin -v- Carr (1979) 1NSWLR1 was one such authority. There the Privy Council said:
Simpson J. further went on to quote from the Judgment of Aickin J (with whom Stephen J. agreed) in Forbes -v- NSW Trotting Club Limited (1979) 143CLR 242 at 277 :
“This argument led necessarily into the difficult area of what is void and what is voidable, as to which some confusion exists in the authorities. Their Lordships’ opinion would be, if it became necessary to fix upon one or other of these expressions, that a decision made contrary to natural justice is void, but that, until it is so declared by a competent body or Court, it may have some effect, or existence, in law. This condition might better be expressed by saying that the decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent. So to hold would be wholly unreal.”
“That which is done without compliance with applicable principles of natural justice, in circumstances where the relevant authority is obliged to comply with such principles, is not to be regarded as void ab initio so that what purports to be an act done is totally ineffective for all purposes. Such an act is valid and operative unless and until duly challenged but upon such challenge being upheld it is void, not merely from the time of a decision to that effect by a Court, but from its inception. Thus though it is merely voidable, when it is declared to be contrary to natural justice the consequence is that it is deemed to have been void ab initio. Accordingly it does not follow from the fact that an act is done without compliance with the principles of natural justice that it must be regarded as no act as well and supportable (if at all) as an effective act only on some other basis.”
23 This jurisdictional issue was flagged during the hearing as one for consideration subsequently by the Tribunal. The matter had been listed originally for four days and the solicitor was clearly not prepared to take a role in the proceedings. The Tribunal determined that it was not appropriate in the Tribunal to adjourn the proceedings for some time while it effectively made a ruling on the jurisdictional issue which had not been raised by the solicitor who was the subject of the complaint.
24 The Tribunal finds following Carson (supra) that the circumstances of this matter do not warrant the Tribunal of its own motion determining whether the amendments to the information are void and so refusing to consider the additional grounds of complaint on their merits. The various complaints are quite separate although at times similar and frequently depend on the same fact situation.
25 The Tribunal has however considered the issues of both findings and outcome on the basis that its finding in relation to the s171J ruling is correct and secondly on the basis that the ruling was incorrect.
The first complaint – re Legal Services Commissioner – Complaint dated 24 February 1999:
26 Under this heading there were two separate complaints namely:
27 The relevant parts of s207 are in the following terms:
i. The solicitor failed to comply with two notices in writing under section 207(1) of the Legal Profession Act; and
ii. The solicitor failed to comply with two notices in writing under section 207(2) of the Legal Profession Act.
28 There is no issue on the evidence before the Tribunal that the four notices in all were issued and there really can be no issue either that they were not in fact received by the solicitor. The cost assessor, Mr McNally, in a letter to the Legal Services Commission dated 17 February 1999 said:
1 The costs assessor may, by notice in writing, require a person (including the applicant, the barrister or solicitor concerned, or any other barrister, solicitor or client) to produce any relevant documents of or held by the person in respect to the matter
2 The costs assessor may, by any such notice, require further particulars to be furnished by the applicant, barrister, solicitor, client or other person as to instructions given to, or work done by, the barrister or solicitor or any other legal practitioner in respect of the matter and as to the basis on which costs were ascertained.
4. A notice under this section is to specify the period within which the notice is to be complied with.
5. If a person fails, without reasonable excuse, to comply with a notice under this section, the costs assessor may decline to deal with the application or may continue to deal with the application on the basis of information provided.
6. A barrister or solicitor who fails, without reasonable excuse, to comply with a notice under this section is guilty of professional misconduct.”
29 The primary evidence simply fails to satisfy the requirements of the section. This is a statutory requirement and notice must be served and it must be reasonable notice. There is, rather than proof of service, proof of non-service. These two complaints are dismissed.
“On 19 May 1998 I forwarded to the practitioner cost assessor’s notice and enclosed with that notice the two notices dated 19 May 1998 pursuant to Section 207(1) and 207(2) of the Legal Profession Act. On 19 May 1998 I forwarded a cost assessor’s notice to the client together with a notice of the same date pursuant to Section 297(2) of the Act, this letter and notice was returned to me from the dead letter office .”
The second complaint – The matter of Narayan:
30 In this complaint there are eight allegations of misconduct by the solicitor. The Tribunal considers it appropriate, in all the circumstances to deal separately with firstly the first three grounds of complaint and any finding or conduct arising from those facts involving complaints that are not affected by the section 171(J) ruling and then secondly the remaining five grounds of complaint and the findings (if any) arising where the Tribunal’s ruling has been to admit those additional or amended complaints for determination.
31 The first three grounds are:
32 In relation to the first matter, the complainant was a sister of a client of the solicitor and she held Power of Attorney from the client. The complainant and her father paid moneys to the solicitor on account of legal costs of the client. The father of the client paid the solicitor the sum of $2,000.00 in August 1998 and the complainant paid the solicitor amounts totalling $22,000.00 by three separate payments, the first being made on 29 July 1998 and the last on 19 March 1999.
i. The solicitor failed to provide accounts;
ii. The solicitor failed to disclose costs;
iii. The solicitor failed to respond to correspondence.
33 On 2 June 1999 the complainant wrote to the solicitor requesting an accounting for all funds received and on 22 July 1999 advised the solicitor again that no itemised accounts had been received and repeated her request for an accounting. As at 29 September 1999 the solicitor had failed to provide an accounting.
34 On 2 June 1999 the solicitor’s instructions were completed. One might be excused for expecting the response to the complainant’s letter of 2 June 1999 to be the provision by the solicitor of the detailed itemised account requested to the complainant at her then temporary Merrylands address. The solicitor instead sent a costs agreement after the trial had concluded to his client at an address in Macquarie Fields. This is a convoluted document which appears on one page to relate to sentence and on another page to the hearing AND sentence. That was an extraordinary response, bearing in mind that his client was in gaol. The Tribunal is satisfied that the solicitor’s letter dated 8 June 1999 was in response to the complainant’s letter of 2 June 1999.
35 In date sequence however the 8 June 1999 letter was preceded by a document entitled “Memorandum of Costs and Disbursements – Sex Assault” dated 7 June 1999 which Ms. Sayer extracted from the solicitor’s files. It is addressed to “Mr Steven Salesh Narayan Wellington, NZ.” The client was in gaol, so if the account was sent to him at that address it was indeed an exercise in futility. There is no reference to the request for an itemised account made 5 days earlier. The memorandum lists in the briefest terms 19 specific items for which a lump sum of $7085.00 costs were charged by the solicitor. In other matters involving this solicitor the Tribunal looked at the responses of the solicitor. Those responses in general were convoluted and evasive and rather than bring some clarification to an issue the responses often clouded the issues generally. The solicitor’s response to the Narayan issues on 7 September 2000 is annexed to the Affidavit of Raymond John Collins sworn 4 February 2003 and this, which illustrates the solicitor’s general approach, is as follows:
36 It is timely to recall that this is the response of a sole practitioner to the report of Ms Sayer on her investigation of his affairs pursuant to her appointment under s55 of the Legal Profession Act .
“Steven Salash Narayan. The writer recalls this matter quite clearly. After an initial conference with Mr Narayan an amount of $2,000.00 was placed into trust by his father. The writer does not recall why a Costs Agreement was not raised at that time however Steven Narayan was well aware of our rates of charges. The writer recalls doing work on behalf of the client and then calling for a bill to be issued and sent out and that the moneys in trust were eventually credited to our general account. The writer finds the lack of evidence here quite unusual as the arrangement was that once we had expended the $2,000.00 we would be put in funds for the balance of the proceedings which we obviously were. There is no other account that moneys would be credited to, not just in this matter but any other. We will need to carefully go through the accounts and also discuss this matter with Mrs Hovan as she was in the accounts section at that time. We do note that Mr. Narayan has not paid into our office moneys for the balance of the trial which went on where counsel was paid (Ms S Kluss and Mr K Coory). Again the yellow plastic folder will need to be located for this matter and verification of the issuing of bills.”
37 Ms Sayer had clearly pointed out in her report the complaints raised by Ms Narayan Kam including “his failure to provide an itemised account”. She reported that the original of the copy letter 15 September 1999 (from the solicitor’s file) which referred to various invoices being enclosed, was not received by the complainant. The solicitor did not take the opportunity of addressing any of these issues when responding to Ms Sayer’s report.
38 These are straightforward matters on which the solicitor could, had he chosen, have given evidence. The only evidence before the Tribunal clearly supports the complaint that the solicitor failed to supply an itemised account where obliged to do so. The Tribunal accepts the evidence. The finding which the Tribunal makes is that this complaint is established. The solicitor was obliged to provide accounts and he failed to do so. His failure amounts in the circumstances to professional misconduct.
39 The second complaint in Narayan is that the solicitor failed to disclose costs.
40 The evidence on this complaint is simple. The solicitor faced with sworn evidence of his client and his sister did not to provide evidence to the Tribunal. The evidence then is that there was no disclosure of costs until a costs agreement then only relevant to the remaining issue of sentence was sent to the client in New Zealand on 8 June 1999 when the client was in gaol in Australia. Over $20,000 had been received by the solicitor before 8 June 1999 and been transferred to the solicitor’s Office account. The obligation to disclose costs is detailed in s175. It must be in writing (s179). A failure to disclose is capable in terms of s182 (4) of amounting to professional misconduct or unsatisfactory professional conduct but it does not of itself amount to a breach of the Act.
41 The solicitor’s financial records show the first payment was received by him on 29 July 1998 and his own records show invoices raised from 9 October 1998 onwards. This is not an urgent case that had to be undertaken on an emergency basis where disclosure might be briefly delayed. The file had a currency of about 9 months before any costs agreement or disclosure was prepared. The Tribunal is satisfied that this costs agreement was the solicitor’s reaction to the request for an itemised bill from the complainant. He did not face the issue but rather took a course of action which the Tribunal is satisfied was designed to cause confusion and deflect attention from his own misconduct both in relation to costs disclosure and the earlier improper transfer of costs from his Trust account. In the circumstances the breach is serious and viewed in the context of the solicitor’s conduct in relation to this particular complainant, the Tribunal finds his failure to disclose costs constitutes professional misconduct.
42 The next complaint was in terms “the solicitor failed to respond to correspondence”. This complaint related to the complainant’s letters on behalf of her brother dated 2 June 1999 and 22 July 1999. The complainant deposes that the solicitor’s response of 6 August 1999 had not been received by her from the solicitor but rather that she received a copy of the letter with the Law Society’s letter of 27 March 2000. The letter of August 6 1999 is a detailed one. This is a copy of that letter on letterhead from the solicitor’s file which appears to have been his practice to file such photocopies. The existence of the letter and the absence of other supporting material other than the fact that the letter was not received by the complainant leaves the Tribunal unable to make a positive finding on the evidence and accordingly this complaint is dismissed.
43 The next complaint is that the solicitor wilfully breached Section 61 in failing to account for trust money.
44 There is clear evidence that on or soon after 5 August 1998 the client’s father paid the solicitor $2,000.00 in respect of the costs of his son’s representation. Mr Narayan Senior deposed to the solicitor saying to him in relation to the sum of $2,000.00 “pay that to the cashier” which Mr Narayan did. He further deposes that the cashier did not give him a receipt and he then said to the solicitor words to the effect of “I would like a receipt”. He said that he deposes that the solicitor then said, “It will be posted to you.” The Tribunal accepts the father’s evidence that the solicitor’s representation of the son depended upon the payment and that the payment was made in the circumstances described. The solicitors explanation was simply the $2,000.00 was placed in trust by the firm and this was not so. The solicitor was on the evidence directly involved. Maughan J in Vicory 1931 CH 572 quoted from the Court of Appeal in re City Equitable Fire Insurance Co 1925 CH 407 in relation to “wilful performance” know that “a person is not guilty of wilful neglect or default unless he is conscious that, in doing the act which is complained of or omitting to do the act which it is said he ought to have done, he is committing a breach of his duty, was recklessly careless whether it is a breach of his duty or not”.
45 The Tribunal is satisfied that an intentional breach by the solicitor of Section 61 in relation to the payment of $2,000 by the client’s father is established. It was serious and it was wilful. The solicitor’s conduct constitutes professional misconduct.
46 The fifth of the Narayan complaints is that the solicitor transferred money from his trust account to his office account on account of costs and disbursements prior to issuing bills of costs to the client and without authority in wilful breach of Section 61 of the Legal Profession Act. It is clear from Ms Sayer’s report the solicitor failed to provide Bills of costs until after the complainant wrote to him on 2 June 1999. Again, that evidence is not challenged before the Tribunal. The solicitor transferred moneys in the Narayan matter on 9 October 1998, 11 March 1999 and 7 June 1999 and these transfers are not supported by any authority or any bill before transfer. The acts involved in these transfers are totally improper and wilful. The Tribunal finds that this fifth complaint is established and it also constitutes professional misconduct.
47 The next ground is that the solicitor failed to keep accounting records in relation to trust moneys received pursuant to Section 61(1)(a) so as to disclose at all times the true position in relation to those trust moneys in wilful breach of s62(1).
48 The Tribunal accepts that the $2,000.00 was paid by Mr Shiu Narayan and not banked to the trust account. This evidence establishes the complaint and the same finding that that the conduct was wilful is made based on the evidence on the clear involvement of the solicitor in the events as already detailed in the findings on the fourth Narayan complaint. This misconduct is in terms of s62 professional misconduct. It is a finding not based on a separate fact situation but another consequence under the Act of a particular act of misconduct.
49 The seventh Narayan ground of complaint is that the solicitor failed to keep accounting records in relation to trust moneys in a manner enabling the moneys to be conveniently and properly audited in wilful breach of Section 62(2) of the Act. Inevitably the trust account cannot be properly audited if trust moneys are not deposited into it. This complaint is made out from the evidence of the failure to deposit into the Trust account the payment of $2,000 from the client’s father received on account of costs and fees. The failure made proper audit impossible. The failure to deposit the moneys was wilful and so the inevitable failure to keep accounting records able to be audited within the meaning of the section is also wilful. The Tribunal finds that this ground is established and that it constitutes professional misconduct. It is not a separate act of misconduct based on its own set of facts but yet another statutory consequence of a single act.
50 The eighth and last ground of complaint arising out of the Narayan matter is that the solicitor failed to hold trust moneys in accordance with the regulations in wilful breach of Section 61(1)(b). The evidence before the Tribunal in relation to regulation 31 under which file copies of statements of account of trust moneys are required to be kept is that these copies were not kept. In relation to regulation 32 trust moneys were clearly received and subsequently withdrawn improperly. There was no costs disclosure and moneys were transferred without an outline bill being presented in breach of regulation 32. Regulation 33 was breached by the failure to deposit the client’s father’s cheque for $2,000.00 into the trust account. The complaint on these facts is established and the Tribunal finds in the circumstances that the breaches are wilful and constitute professional misconduct.
Summary:
51 Of the three original grounds of complaint the Tribunal has found two complaints established and that these constitute professional misconduct. In relation to the remaining five counts all have been established to the Tribunal’s satisfaction and each constitutes professional misconduct. The Tribunal has made it clear that in relation to this client as indeed it will be seen subsequently in the examination of each complaint that many of the complaints are based on the same action so that one event may give rise to three complaints and three findings of professional misconduct. The outcome is a lot of repetition and while no doubt the Society in adopting this course seeks to ensure that a finding of professional misconduct is made in relation to the particular behaviour where multiple findings of professional misconduct are made on the one fact situation, it will count in the Tribunal’s final determination of outcome as one act of misconduct despite it having given rise to three findings of professional misconduct.
Third Complaint – Law Society:
52 There are two grounds under this heading. Firstly that the solicitor failed to respond to numerous requests by Trust Account inspector and secondly that the solicitor was discourteous.
53 The Society tendered Affidavits from a Trust account inspector and an Administration Office of the Society. On 13 January 1999 and 14 October 1999 Charles Quagliata, a Trust Account inspector of the Law Society attended the office of the solicitor for the purpose of carrying out a trust account inspection. The inspector issued a report on each occasion and both reports required a reply from the solicitor. The two reports raised a number of issues some of which were dealt with by the solicitor over a period of time and some of which remained unresolved.
54 The evidence clearly was that on the inspections some of the files of the solicitor did not contain the appropriate authorities to pay moneys or accounts or supporting documentation to verify that a payment from the solicitor’s Trust account was authorised. The inspector’s evidence included a review as at 24 April 2000 of the responses then outstanding from the solicitor. The evidence of the inspector which is unchallenged is that there was no further or later response. The outstanding issues included:
55 The evidence of the failure to respond is not challenged and the complaint is clearly established.
(A) The continuing failure of the solicitor to provide in one matter (Green) verification of expenses for airfares and accommodation in the sum of $2,000.00 paid 31 May 1999;
(B) The solicitor’s failure to provide accounts for three payments of $700.00, $1,110.80 and $589.20 respectively all within 5 days of each other in May 1999 (Cooper);
(C) An apparent $2,000 over-payment of Counsel’s fees in one matter (Bayeh);
(D) The absence of a fee agreement and of correspondence regarding title deeds being security for costs in another matter (Ristevski);
(E) The solicitor’s failure to respond to confirm correction had been made to his system to avoid repetition of the duplication of charges (Wong);
(F) The solicitor failed to acknowledge that he had taken $300 from Trust before a bill had been raised and that steps had been taken to correct these procedures in future. The moneys were withdrawn from the Trust account on 30 January 1998 and the bill raised on 6 March 1998.
56 The Solicitor has a clear duty under s55(3) to, inter alia, give required access to documents and provide information as required in relation to his records accounts and affairs. He has failed to do this despite appropriate reminders. The Failure to comply with the Trust account inspector’s proper request is established and the non-compliance is by virtue of Section 55(6) professional misconduct and the Tribunal so finds. Insofar as the complaint referred to discourteous conduct, the Tribunal finds that there is evidence of discourtesy in the solicitor’s failure to respond but that these facts do not justify a second complaint and so that second complaint is dismissed.
The Fourth Complaint:
57 The fourth complaint alleges that the solicitor failed to comply with two notices issued under s152 of the Act without reasonable cause.
58 In the course of the hearing, the first of these complaints was withdrawn by the Society pursuant to leave granted by the Tribunal. The Society submitted that the notice was simply not specific enough to sustain the complaint.
59 The second complaint related to a notice served on the solicitor on 14 February 2000 by the Society.
60 Under s152 the Council is able to require their legal practitioner to do any one or more of the following:
61 Section 152(3) provides that:
(A) 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 the specified manner.
62 While s152 (4) states that:
“A requirement under this section is to be notified in writing to the legal practitioner and is to specify reasonable time for compliance.”
63 In the view of the Tribunal the answer to this notice lies in the notice dated 10 February 2000. This requires the legal practitioner:
“A legal practitioner who, without reasonable excuse, fails to comply with a requirement is guilty of professional misconduct”.
64 The Tribunal takes the view that the requirement of a verified response to the notice within eighteen days of the notice being issued is simply not a reasonable time for compliance. Indeed, the Society’s further resolution that the solicitor provide a statutory declaration by 6 March 2000 stating his reasons if he is unable to comply with the resolution which is in effect the notice is consistent with the Tribunal’s view. This complaint is dismissed on that basis.
(a) To assist in, or co-operate with the investigation of the complaint of Maureen Narayan-Ram against George Hovan in the manner specified in Schedule 1 hereto. The solicitor’s response to this Notice, verified by statutory declaration, is to be provided to the Manager of the Professional Standards Department, Law Society of New South Wales by the 28 February 2000;
SCHEDULE 1
(1) The solicitor is to provide a response to the Society’s letter to him dated 9 November 1999, clearly addressing the following allegations raised by the complaint of Maureen Narayan-Ram:(2) The solicitor is to provide a response to the Society’s letters to him dated 17 November 1999 and clearly addressing the following questions raised by Mr Ray Collins of the Society:
1. Failure to provide itemised account.
2. Failure to disclose costs.
3. Failure to respond to correspondence.
(3) The solicitor is to provide the documents requested in the Society’s letters to him dated 17 November 1999 and 20 January 2000 as follows:
(a) Do you agree that you failed to provide itemised accounts. If the answer is no, are the annexures to your letter of 11 November 1999 the only accounts which you have forwarded. Please advise the dates upon which each of the accounts is said to have been forwarded to the addressee. Did you receive any correspondence from the addressees in relation to the accounts which you forwarded.
(b) Do you deny that you failed to disclose costs. If the answer is yes, please advise the basis of your disclosure, a copy of the costs agreement, the circumstances in which the costs agreement came into existence, details of the conversations which you had with your client or the complainant with regard to your costs.
(c) Do you deny that you failed to respond to the complainant’s correspondence. If you do so deny please supply copies of correspondence which you answered or give details of telephone conversations which you may have had with the complainant in answer to the correspondence.
FURTHER RESOLVED that if the legal practitioner is unable to comply with the preceding resolution, he must provide a statutory declaration to the Manager of the Professional Standards Department, Law Society of New South Wales by the 6th day of March 2000 stating the reasons for his inability to comply with this resolution.
(a) A copy of the trust account ledger which you opened with regard to the client, Steven Narayan or any other trust account ledger into which funds were received for payment in respect of the matter of Steven Narayan.
(b) Copies of the invoices of Mr Coorey and Ms Kluss.
(c) A copy of your receipt for $2,000.00 referred to in the body of Mrs Narayan-Ram’s letter and the invoice relative thereto.
The Fifth Complaint – di Cola:
65 The fifth set of complaints related to misconduct alleged in relation to the conduct of matters for a client, Mr di Cola, by the solicitor.
66 There are eight grounds in relation to this matter, the first four of which were original complaints and the remaining grounds were amended or inserted in January 2003.
67 The complaints are:
68 The evidence in this matter included material provided by Mr di Cola (“the client”), Ms Sayer and Mr Raymond Collins. The evidence established that the solicitor represented the client in a criminal matter and that in a period of a little over twelve months the client paid to the solicitor $12,630.00 by a series of eleven payments, eight of which were payments of cash made at a Court while two larger payments by cheque were paid to the Trust account. Some of the cash payments were made to the solicitor, other payments to an employee of the solicitor. The client requested the solicitor to provide him with a statement of account for moneys paid by letter of 5 July 1999 and again on 23 February 2000 he requested the solicitor to provide him with a copy of the Trust account. The Tribunal is satisfied that these were proper requests by the client which the solicitor failed to deal with.
A The solicitor failed to provide a statement of account;
B The solicitor failed to issue receipts;
C The solicitor failed to refund payments when no trial occurred;
D The solicitor failed to communicate with the complainant adequately;
E The solicitor transferred moneys from the Trust account to his office account on account of costs and disbursements prior to issuing bills of costs to the client and without authority in wilful breach of s61 of the Legal Profession Act;
F The solicitor failed to keep accounting records in relation to Trust moneys received pursuant to s61 (1)(a) of the Legal Profession Act so as to disclose at all times the true position of those Trust moneys in wilful breach of s62 (1) of the Act;
G The solicitor failed to keep accounting records in relation to Trust moneys in a manner enabling the moneys to be conveniently and properly audited in wilful breach of s62 (2) of the Act.
H The solicitor failed to hold Trust moneys in accordance with the regulations in wilful breach of s61 (2)(a) of the Act.
69 The evidence is unchallenged in these proceedings. In the investigation stage the solicitor advised the Society that he could not locate this file but he does not appear otherwise to address the issue and he certainly has failed to present any exculpatory material to the Tribunal. The evidence is quite clear and the ground is established. The solicitor has failed to provide a statement of account of trust moneys held for a period in excess of six months. This is quite unacceptable behaviour and when it is assessed in the light of the solicitor dealing with this client it is not an isolated lapse but part of a pattern of dishonourable behaviour. The Tribunal finds that the first count constitutes professional misconduct.
70 In relation to the failure to issue receipts the Tribunal accepts the evidence of the client of his having made four payments in cash to the solicitor personally. No receipts were issued. A fifth payment in cash resulted in the solicitor handing the client a form of receipt on the back of his business card but that is not a proper receipt in accordance with the Regulations and no proper receipt was issued for that payment. The unchallenged evidence is clear and accepted by the Tribunal. The ground is established and by reason of the terms of the section this again constitutes professional misconduct.
71 In relation to the failure to refund overpayments, Ms Sayer’s report particularised the billings and established an over-payment of $3,532.35, which is referred to in her report of 14 June 2001. It is clear that the solicitor failed to refund that overpayment within a reasonable time and the Tribunal finds the complaint established. The solicitor is not entitled to continue to hold moneys to which the client is entitled as it established in this instant. There is no accident or error here but a clear breach of the solicitor’s duty which amounts to professional misconduct.
72 The next complaint related to failure to communicate with the client. The Society relied in relation to this complaint upon:
73 The facts that establish these claims are the same facts that established the first and third grounds in relation to this client and indeed the complaint is rather a consequence of those facts. The Tribunal is satisfied that the complaint is established but it does so in the context that it is rather another consequence of the same misconduct instead of being a separate instance of misconduct based on its own set of facts. In the context professional misconduct is established but these facts and findings on these two grounds are not such as would determine the solicitor’s fitness to practise.
A Failure to disclose the true position as to amounts received and due to the solicitor resulting in the overpayment already referred to;
B Failure to provide a statement of account as requested that contributed to the client lacking the means to verify the solicitor’s accounting and obtain satisfaction of his claims at an early stage.
74 In relation to the improper transfer of funds from the Trust account, the Society complained specifically:
75 The Tribunal finds that these complaints are established and the conduct was a series of wilful acts by the solicitor in breach of s61 and as such the complaint of professional misconduct is established.
A Firstly, with one exception no bills of cost were issued in respect of any of the payments made by the client in cash to the solicitor. This was clearly established by Ms Sayer’s report.
B Secondly, that following payment into the Trust account on 16 September 1998 of $5,000.00 the solicitor made between that date and 6 November 1998 three transfers from Trust totalling $4,250.00. Ms Sayer verified this and her evidence and that of the client is that no bill of costs was prepared or served prior to 6 November 1998 when the last of those transfers occurred.
76 The sixth ground relates to failure to keep accounting records as required so as to disclose the true position of trust moneys. Breaches of the Act necessarily flow from the failure to issue receipts, the failure to bank moneys in Trust account and the transfer of funds without authority all of which have been established. Ms Sayer’s report also draws attention to a number of irregularities in the billing which, in turn, resulted in the records not disclosing at all times the true position in relation to the Trust account. These included moneys transferred from Trust not credited on the bill, plus another bill, dated but not issued to the client, three transfers from Trust without authority, duplication of bills and the failure to allow credit for cash payments. As Ms Sayer points out, her calculation is based on the profit costs billed by the solicitor which do not give any details of the time spent or the rates applicable. The Tribunal is satisfied the solicitor’s acts were wilful and that the ground which constitutes professional misconduct under the Act is established.
77 The second last of this group of complaints relates to the failure to keep accounting records in relation to Trust moneys in a manner enabling the moneys to be conveniently and properly audited. This is substantially again a same fact situation but in the consideration of the evidence it became apparent that from the material extracted by the Society there were apparently eleven payments by the client and three receipts issued. The Tribunal is satisfied that moneys were not properly accounted for and the accounting records did not make it possible to assess the true position and this of course includes the prior findings in relation to the cash payments. The ground is established and the misconduct is wilful amounting to professional misconduct by the solicitor.
78 The final ground in relation to the conduct involving this client was in relation to failure to hold Trust moneys as required by the regulations in breach of s61 (2)(a). The documentation establishes clear breach of the regulations relating to the holding of trust moneys and the ground is supported by the facts already detailed. The Tribunal finds that the conduct was wilful and the ground is also established. The Tribunal finds that evidence relied on in support of this complaint justifies a finding of professional misconduct.
79 It is common ground that the one series of events has frequently given rise to separate complaints and that has been taken into account overall by the Tribunal in reaching its conclusion. One act of misconduct may involve three separate grounds of complaint and three separate findings of professional misconduct but in the overall determination by the Tribunal it is the misconduct itself and not the various ways that it can be described that has to be evaluated. Complaints (a) to (d) inclusive are not affected by the Tribunal’s s171J ruling and the Tribunal has found that professional misconduct is established in each instance. The complaints (e) to (g) inclusive are affected by the s171J ruling and in each instance the Tribunal has found that professional misconduct has been established.
Sixth Group of Complaints (Wong):
80 There were two separate grounds of complaint, namely:
81 On 4 March 1999 Legal Aid was assigned to the solicitor so that he might seek Counsel’s advice on whether there was merit in an all grounds Appeal to the Court of Criminal Appeal. No substantial reply to the Commission’s correspondence was made by the solicitor despite seven letters from the Commission, the last of which was dated 9 May 2000.
A The solicitor failed to reasonably correspond with the Legal Aid Commission in respect of work that had been assigned to him; and
B The solicitor failed to carry out the work assigned.
82 The matter has a sad history. On 12 March 1999 the solicitor wrote to the Legal Aid Commission seeking approval to obtain missing trial transcripts and advising that a specific Senior Counsel had been briefed. The letter was received in the Commission on 15 March 1999 and on 13 April 1999 the solicitor was advised that request for transcripts was not approved. The Commission on 16 June 1999 sought advice as to when Counsel’s advice would be available. It is apparent that the Commission expected higher standards of delivery than it provided itself.
83 The Senior Counsel engaged by the solicitor sent the solicitor a fax on 25 June 1999 which said, inter alia:
84 On 9 July 1999 Senior Counsel advised the solicitor by fax as follows:
“I do not have the missing pages but, more importantly, I do not have either the summing up or the remarks on sentence. I need these urgently. Can they be obtained from the CCA today please?”
85 The fax was hand-written, as well it might have been because the evidence appears clear that Senior Counsel at that point in time had had the Brief which related to an Appeal against conviction of a client then in custody for a period of approximately four months. The Tribunal is conscious of the fact that a grant of aid had been made to the solicitor for this purpose, namely to obtain advice, but it is clear that the advice issue had not been resolved on 9 July 1999. Clearly the solicitor was not responding to enquiries of the Commission perhaps because the solicitor was being deflected and deferred by Senior Counsel. The material also includes a copy of a letter from the Senior Counsel concerned to the Director, Criminal Law Division of the Legal Aid Commission dated 20 October 2000. This letter states inter alia:
“Just to bring you up to date on this. I am having difficulty finding any grounds of appeal on the conviction for Wong and unless something turns up soon, I will advise accordingly. The sentence applications are utterly hopeless in each case. [A named Senior Counsel] is confirmed to argue the guidelines point.”
86 Just what is meant by “my former advice” appears on the evidence to be the “unless something turns up soon, I will advise accordingly” stall of 9 July 1999 over 15 months later and then one of the “loose ends” at last receiving the consideration of this learned Senior Counsel was the preparation “of a formal advice on the merits.”
“I confirm that I still retain the Brief in this matter pending the process of tidying up a number of loose ends, including the preparation of a formal Advice on the merit of the appeal against conviction and my account in the matter. I now appreciate from discussion we had yesterday that my former advice to the effect that there was no merit in the proposed appeal against conviction should have been provided to the Legal Aid Commission at a much earlier date and I apologise for any inconvenience caused to the Commission or to Mr Wong by my failure to do so. I should also indicate that Mr Hovan, Solicitor, has requested that advice from me. Because the case is from my point of view now completed, I gave less priority to that task in favour of other more pressing matters awaiting hearing.”
87 The letter of Senior Counsel of 20 October 2000 establishes that the solicitor did not entirely neglect the matter for his request for advice is acknowledged and it appears fair to imply that there was more than one request. He was in an unenviable position of being left hanging by Senior Counsel when he, the solicitor, had a personal obligation to see the work which Counsel was briefed to do was done. The advice was ultimately provided by Senior Counsel and dated 6 November 2000.
88 These two grounds might most conveniently be dealt with together and the second is in relation to an allegation that the solicitor failed to carry out the work assigned. It is clear that he did fail to carry out the work assigned, just as it is clear that he failed to reasonably correspond with the Commissioner. The solicitor deserved better from his professional senior. In retrospect he lacked the intestinal fortitude to do what he clearly should have done, sacked Senior Counsel for his neglect of that Counsel’s professional responsibilities and to advise Legal Aid of this and engage competent Counsel capable of actually advising promptly on the merits issue.
89 The evidence establishes efforts by the solicitor to obtain the advice sought, ineffectual though those efforts were. It is, perhaps, a matter of perspective and there may be some clue in that Senior Counsel wrote in the first instance not to the solicitor but to the Director of the Common Law Division of the Legal Aid Commission. His ultimate letter to the solicitor of 6 November 2000 acknowledges in relation to the advice which:
90 The issues raised in relation to the inaction of Senior Counsel from the evidence before the Tribunal was highly prejudicial to that Counsel. That could well be totally unfair because Senior Counsel’s concerns are not before the Tribunal and that Counsel did not have the opportunity to give his version of events, which indeed would hardly be appropriate in these circumstances. The Counsel may have got behind in his work through ill health or been unable to face his Chamber work. The procrastination is obvious, its causation is not.
Senior Counsel’s letter continues subsequently:
“was put on hold pending my consideration of the grounds of appeal which had been formulated for one of the co-accused of Mr Wong.”
“Having considered that material, my opinion that the appeal of Mr Wong did not have sufficient merit to justify the grant of Legal Aid was not altered. I apologise for the inconvenience that may have been caused by the delay in sending you my formal advice in this matter.”
91 The Society was invited, in view of the volume of other evidence against the solicitor on other matters to withdraw this complaint. The Tribunal is not sitting in judgment upon the Senior Counsel. It can only deal with the evidence in these proceedings.
92 There are very substantial mitigating factors which satisfy the Tribunal that this is not a proper case for a finding against the solicitor. This is the inevitable result of balancing the situations of the parties involved. It is not hard to discern some feeling of powerlessness in the solicitor in this matter and the Tribunal is appalled at the feeling of powerlessness that must have been felt by the client. The evidence suggests an appalling neglect of his duty by the Senior Counsel engaged. The solicitor in this instance was but the messenger whose job it was to transmit the advice on merit from Senior Counsel to Legal Aid. The evidence before the Tribunal makes it clear where the real blame lies and shooting the messenger in this situation would be an absurd outcome. The Tribunal is not satisfied that these two complaints are made out and both are dismissed.
The Seventh Set Of Complaints – Legal Aid Commission Re Ford.
93 There are five specific grounds of complaint in relation to this matter in the following terms:
94 The solicitor’s client in this matter was convicted of charges involving sexual intercourse with a child under the age of sixteen and was sent to gaol. Aid was assigned to the solicitor on 1 February 1999 by the Commission for the purpose of seeking Counsel’s advice as to whether there was merit for an all grounds appeal to the Court of Criminal Appeal. The Commissioner sought by letters to the solicitor advice as to the progress achieved in obtaining the opinion, the letters being dated 19 October 1999, 6 April 2000, 7 August 2000, 10 August 2000 and 11 August 2000.
A The solicitor failed to reasonably correspond with the Legal Aid Commission in respect of work assigned;
B The solicitor failed to carry out the work assigned;
C The solicitor purported to provide an advice on merit which was in fact proposed grounds of appeal and which failed to address the Commission’s specific requests of 1 September 2000 and 27 November 2000;
D The solicitor failed to comply with his written commitment to provide the outstanding advice on merit by 1 December 2000;
E The solicitor continued to fail to respond in any meaningful way to the Commissioner’s request for information dated 1 February 1999.
95 The Society relied upon material contained in the first Affidavit of Raymond Collins but also in part by a response from the solicitor of 30 October 2001 in relation to the five complaints.
96 The reminder letter of 7 August 2000 referred to in the particulars does not appear to have been produced by the Society and the Tribunal confined its consideration to the four letters before it and identified in the previous paragraph.
97 The solicitor responded to the Society by letter dated 16 November 2000 and enclosing copies of letters he had sent to Legal Aid dated 1 September 2000, 4 September 2000, 14 September 2000, and 30 October 2000. The solicitor expressed his surprise at the complaint and attached a chronology of the work done in relation to the Appeal, advised that Counsel had been briefed and grounds would be submitted by 10 November 2000. The letter also undertook to advise Legal Aid promptly of any developments. It was obvious that the solicitor was at this stage progressing with an appeal and not obtaining advice in relation to merits, for which he had been engaged. The chronology rather contained a list of events including a note of 15 November 1999 to the effect that Senior Counsel (whom the Tribunal will not name in fairness to this person who was not before the Tribunal or otherwise involved in these proceedings) advised that the appeal had no merits in his opinion. The only document in relation to the merits advice that is before the Tribunal is this chronology. The Tribunal understands that at this time the procedure was that written advice on merits was given by Counsel direct to Legal Aid but no advice is included in the Legal Aid papers. The Counsel concerned is the same Counsel used in the Wong matter (5th set of complaints). The Tribunal notes this situation but the evidence is insufficient for any inferences to be comfortably drawn. Notwithstanding this, the chronology showed numerous attendances at the Court, conferences and other routine professional work relating to an appeal.
98 The first of the letters to the Legal Aid Commission of 1 September 2000 appears to be a response to Mr Humphrey’s letter of 11 August 2000 which referred to the letter of the previous date from the senior solicitor of the section concerning the eighteen months’ delay in providing the advice on the merits of an appeal. The solicitor’s response relates to the ongoing appeal and the change of Counsel. The second letter purports to confirm approval to the change of Counsel. The third letter relied upon concerns the appearance of a representative of the solicitor’s office on a call over and the fourth letter of 30 October 2003 advised that the matter had been stood over to another call over. This correspondence from the solicitor simply does not relate to the issue under complaint now before the Tribunal and at that time being investigated by the Society.
99 The Legal Aid Commission reported to the Society on 8 December 2000 that on 20 November 2000 the Commission had received a letter from the solicitor’s firm signed by a Ms R Jackson purporting to attach an advice on the merits from Counsel. The document, although headed “Memorandum of Advice” and in the name of Robyn Jackson, was more in the nature of grounds of appeal. The status of that letter becomes more incredible when the Commission wrote on 27 November 2000 pointing out that Aid had not been granted for the appeal and that it was awaiting advice on merit. The solicitor replied on the following day (28 November 2000). That letter included the following statements:
100 There was a separate letter of 24 November explaining that a mistake had been made in the despatch of the letter under Ms Jackson’s name enclosing the purported advice as to the merits of an all grounds appeal.
“We would like to point out that this problem would not have occurred if Counsel had been forthcoming in providing the Merits of Appeal as we requested from him. As you are aware, to date, he has only prepared the Grounds. We also find this highly unsatisfactory and have been trying to contact him, to no avail, as he is on a trial. We have passed your instructions on to [Counsel] by way of facsimile and will advise you of his responses or will forward you the merits by Friday, 1 December 2000.”
101 The whole correspondence from the solicitor consistently fails to address the issues. Oversight can obviously be excused on the odd occasion but this is persistent and really can only be consistent with a conscious effort by the solicitor to create confusion and avoid addressing embarrassing issues. The extraordinary delay in getting advice “on the merits”, the action taken as if Aid had been granted for an appeal, the avoidance of issues arising in consequence of the non-parole period having expired were simply startling. However, the issues were there and they were not addressed by the solicitor. Indeed, the entry in the chronology “15 November 1999 (Mr [a named Senior Counsel] advised the appeal has no merit in his opinion in the light of Y [another named Counsel’s] advice)”
102 The evidence is clear that the solicitor failed to reasonably correspond with the Commission. The letters detailed are nonsense in that they do not address the issue. The solicitor failed to carry out the work assigned which was to provide the advice on merit. The solicitor failed to honour his written commitment to provide the outstanding advice on merit. This was a stupid commitment for the solicitor to make as he could only honour it if he got co-operation from the junior Counsel who had replaced in this matter the procrastinating Senior Counsel of the Wong matters. Stupid it may be but Legal Aid was not to know this and the solicitor must bear the consequences of his commitment not being met. The solicitor clearly failed to respond in any meaningful way to the request for information dating back to 1 February 1999 when the grant was made. The aid was granted to the solicitor personally and he had a personal obligation to deal with all these matters. He has failed to do this in a deplorable manner and the Tribunal finds all the grounds established. The misconduct of the solicitor is serious and, indeed, totally unacceptable.
103 The Tribunal finds that the solicitor’s misconduct in relation to each of the grounds relied upon has on the evidence detailed above by the Tribunal been established and each ground clearly constitutes professional misconduct in the circumstances of this information.
The Eighth Complaint - Fuggle:
104 The eighth complaint related to the solicitor’s engagement of Mr Fuggle Solicitor as his agent in a District Court matter at Lismore. The client, a Mr Koenig, had received approval for a grant of Legal Aid. The complaint is that “the solicitor failed to pay agency fees”.
105 The bill of Mr Fuggle dated 21 February 2000 detailed attendances at a total cost of $3,396. Mr Fuggle indicated to the solicitor that he would accept 70% of the costs recouped from the Legal Aid Commission. The solicitor’s bill to the Commission of 28 February 2000 incorporated costs from Mr Fuggle’s bill totalling $4,516, being part of his total bill for costs at $4,806 and disbursements of $85, making a total of $4,891 in all. The solicitor received on 17 March 2000 a cheque for $4,218.75 which included at least $2993.50 of Mr Fuggle’s agency fees. The solicitor deposited those moneys to a bank account in the name of Idameneo. No payment was made to Mr Fuggle by the solicitor until 27 October 2001 when the sum of $2,100 was paid.
106 Relevant documents to support the complaint were included in Ms Sayer’s report and annexed to the affidavit of Raymond Collins. Ms Sayer identified the Idameneo account being the account of the company Idameneo No. 172 Pty Limited and located a file note recording the solicitor’s instructions to deposit the cheque to that account.
107 Mr Fuggle took recovery proceedings against the solicitor as well as initiating complaints and a substantial part of the Judgment recovered by Mr Fuggle was paid, but that is not the end of the matter before the Tribunal.
108 In the view of the Tribunal, the conduct of the solicitor in relation to this matter was brazen and outrageous. The complaint is clearly established and the conduct of the solicitor is not that of an honest man. It falls far short of acceptable minimum standards of integrity of a legal practitioner and the Tribunal is satisfied that the complaint of professional misconduct is established.
The ninth complaint – El Haddad:
109 The ninth complaint relates to the solicitor’s conduct in acting for Mr El-Haddad and involved seven grounds as follows:
110 The solicitor acted for the client as plaintiff in an arbitration in which orders were made that a sum of $4,518.72 was to be paid by the defendant to the plaintiff and a sum of $1,670 paid by the plaintiff to the defendant being costs payable as per Court orders made because of the non-appearance of the plaintiff. Costs of the plaintiff were to be paid by the defendant as assessed.
A The solicitor failed to account to the complainant for settlement moneys received some time subsequent to 19 April 2000;
B The solicitor failed to respond to the complainant’s attempts to communicate with the solicitor;
C The solicitor failed to appear in Court on the complainant’s behalf on two occasions;
D The solicitor dealt with the matter in an inadequate manner;
E The solicitor wilfully breached s61 of the Legal Profession Act in failing to account for Trust moneys;
F The solicitor failed to keep accounting records in relation to Trust moneys received pursuant to s61 (1) (a) of the Act so as to disclose at all times the true position in relation to those Trust moneys in wilful breach of Section 62;
G The solicitor failed to keep accounting records in relation to Trust moneys in a manner enabling the moneys to be conveniently and properly audited in wilful breach of s62 (2) of the Act;
H The solicitor failed to hold Trust moneys in accordance with the regulations in wilful breach of s61 (1)(b) of the Act.
111 Ms Sayer reported that on 26 September 2000 a cheque for the net difference between the awards being in the sum of $2848.72 was forwarded to the solicitor by the defendant’s solicitors. Ms Sayer further reported that this money was not deposited to either the solicitor’s Trust account or Office account.
112 On 25 May 2000 a bill of costs for $5,493.27 was forwarded by the solicitor to the solicitors for the defendant and on 26 September 2000 the defendant’s solicitors advised the solicitor that the bill of costs was being reviewed.
113 Approximately four months later on 26 September 2000 the solicitor wrote to the client and said that he wished
114 Annexed to Mr Collins’ Affidavit was a letter of 30 October 2001 from the solicitor to the Society in which the solicitor says:
That letter continued:
“to advise that we are currently holding a cheque for you in the amount of $2,848.72 which is the balance of funds held by us in Trust on your behalf.”
“We request at this time that you contact our offices as soon as possible in order to arrange a time for you to collect the said cheque. We look forward to hearing from you in the near future.”
115 The first ground of complaint is established by the correspondence mentioned above and by itself amounts to unsatisfactory professional conduct of a serious nature.
“We will thereby facilitate this procedure by placing back into Trust the whole of the amount of $2,848.72 and we will continue discussions with Mr El-Haddad about fees etc. Once agreement is thereby reached, we will then release the moneys as agreed being our fees and the balance to Mr El-Haddad. We consider that this should finalise the matter to the satisfaction of Mr El-Haddad and the Society. If not, then please advise of other steps we should take to rectify the situation.”
116 In relation to the second count, the evidence is that the Tribunal accepts that the client phoned the solicitor on numerous occasions between April 2000 and February 2001 and he wrote to him demanding a response on 31 January 2001, but no response was received until the solicitor’s letter of 22 February 2001 which is amongst the material provided with Ms Sayer’s report. The letter from the client to the solicitor of 31 January 2001 is clear, brief and to the point. It had a clarity and coherence that was absent from the solicitor’s reply of 22 February. Indeed, that letter is a nonsense. The solicitor is “unable to advise as to progress of the matter, that is, as to whether or not the statutory demand was met.” This is a statement made about five months after the payment of the difference between the two awards had been sent to the solicitor (on 26 September 2000). The Tribunal accepts that the client sought information by phone as reported by Ms Sayer and regards the reply of 22 February 2001 as most deceptive and misleading and certainly not a response to the letter of 31 January 2001. The second ground is clearly established and the outrageous and dishonest behaviour of the solicitor amounts to professional misconduct.
117 The instructions from the client were in relation to a debt recovery. On two occasions the claim was struck out due to there being no appearance by the solicitor on behalf of Mr El-Haddad. On both occasions costs were ordered against the plaintiff. The costs orders do not appear to have been contested in any way. The first non-appearance was explained by the solicitor as due to his client not being properly advised of the listing of the call over and the second on the basis that “we did not pick up the Court notices advising of the relevant dates until 4 May, by which time the matter had already been struck out and costs ordered against us.” No other explanation appears to be offered and the third ground is clearly established to the Tribunal’s satisfaction.
118 The third count must be looked at as a separate ground on which the solicitor’s reputation and, indeed, his right to practise depend as professional misconduct is alleged. The standard of proof required is, of course, the Briginshaw test (Briginshaw -v- Briginshaw [1938] 70 CLR 336). If the matter is worthy of being made the subject of a complaint against the solicitor the Tribunal needs more evidence to assess the complaint. The evidence is unsatisfactory and the complaint is dismissed.
119 The fourth count is in view of the Tribunal established, not only by the matters already referred to which, while repetitious, do constitute the ground relied on by the Society. There are other aspects, including:
120 Clearly, the fourth count has been made out and the Tribunal so finds. The sum total of the matters particularised and established amounts to professional misconduct.
A The solicitor’s failure to follow up the issue of party and party costs referred to in Ms Sayer’s report;
B The solicitor’s failure to make a disclosure as to his costs as referred to in Mr Collin’s Affidavit and Ms Sayer’s report;
C The solicitor’s failure to inform his client that the case had been struck out with costs orders against him on two occasions – as reported by Ms Sayer;
D A bill of costs on a solicitor/client basis totalling $7434.83 was prepared by the solicitor and dated 4 April 2001. It was given to the client and made no reference to a costs agreement, did not specify times engaged or rates charged, nor did it give any credit for costs awarded against the client of $1,670 due to the non-appearance of the solicitor.
E Ms Sayer reported, and she has some experience in this area, that the costs charged were grossly in excess of the costs which should have reasonably been charged and given that her views are not challenged by the solicitor; her report on this aspect is also accepted.
121 The fifth count relates to the breach of s61 which is simply established by the failure to deposit moneys in the Trust account. The Tribunal need go no further. That established fact also satisfies the Tribunal that the sixth and seventh grounds of complaint are established. Both those grounds cover matters that had already led to findings or contributed to findings of professional misconduct against the solicitor and they fall into what might be described as alternate counts based on the same set of facts. They are wilful acts of misconduct and the Tribunal finds that each of the three complaints is established and each amounts to professional misconduct.
162 The second ground is simply established by the deposit of moneys which should have gone to the Trust account being paid to the office account. While a transfer of moneys for subsistence payments from Trust account to General account was authorised in the writing on 31 August 2000, and this of course related to one payment only, there is no authorisation for payment of moneys received on behalf of these clients to office account. The Tribunal accepts that there were payments by the solicitor to his clients of some subsistence moneys. Ms Sayer points out that these are described in the Trust Account records as “Transfers of costs and disbursements”. There are a number of those payments. They were not costs and disbursements payments. They were payments of moneys advanced to the clients by the solicitor. This description is repeated. There is no reason for payments that have been authorised to be mis-described in this fashion but the fact that that happened is indicative of a total disregard and carelessness in relation to the maintenance of records. In the circumstances the breaches are established to the satisfaction of the Tribunal which finds that they were wilful and constitute professional misconduct.
163 The third ground relies on the same fact situation. Clearly the Trust account could not be conveniently and properly audited when payments were mis-described or where Trust moneys were not paid into the Trust account. The conduct alleged is established in the circumstances already described and the Tribunal finds that the behaviour of the solicitor in relation to keeping of these records was wilful because it showed total lack of care or regard for his responsibilities in correctly recording transactions in his Trust account and through his failure to pay Trust moneys into the Trust account. His conduct established by these facts amounts to professional misconduct.
164 The final ground in relation to this matter relates to the failure to comply with Regulation 38 concerning payment of Trust moneys by cheque or by electronic transfer. There is not in the Tribunal’s opinion sufficient material specifically relating to this aspect before the Tribunal to enable the finding to be made and the further ground is dismissed.
Twelfth set of complaints – client Radju:
165 There were four complaints arising out of the solicitor having acted for this client. The complaints are:
166 An authority dated 29 July 1997 was signed by the client and was sent by the solicitor to the Attorney General authorising payment of moneys due in relation to proceedings involving this client from the Suitors’ Fund to the solicitor’s Trust Account.
A The solicitor wilfully breached s61 of the Act in failing to account for Trust moneys;
B The solicitor failed to keep accounting records in relation to Trust moneys received pursuant to s61 (1)(a) of the Act so as to disclose at all times the true position in relation to those Trust moneys in wilful breach of s62 (1);
C The solicitor failed to keep accounting records in relation to Trust moneys in a manner enabling the moneys to be conveniently and properly audited in wilful breach of s62 (2) of the Act;
D The solicitor failed to hold Trust moneys in accordance with Regulations in wilful breach of s61 (1)(b) of the Act.
167 The authority from the client was in the following terms:
168 By letter dated 29 November 1999 and marked as having been received in the solicitor’s office the following day, the Attorney General’s Department forwarded to the solicitor a cheque in the sum of $10,000 in favour of the client. Ms Sayer reports that this cheque was not deposited to the solicitor’s Trust account, nor indeed to his Office account. There is no receipt for the payment. The breach of Section 61 in relation to this $10,000 is clearly made and it is wilful. The money was clearly received, the issue raised as to what had happened to it by Ms Sayer and the evidence was unchallenged. This conduct amounts to professional misconduct.
“I, Walter Radju hereby authorise and direct you to forward to my solicitor, Mr George Hovan of Hovan & Co., Solicitors and Attorneys, Level 4, 255 Castlereagh Street, Sydney, all monies awarded to me pursuant to the Suitors Fund Act (NSW) 1951. I wish for all monies that are awarded to me to be placed in my solicitors trust account so that those monies may be used for my future trial.”
169 The second count in relation to accounting records is established to the satisfaction of the Tribunal by reason of there being no record in those records of the receipt and payment of $10,000 from the Suitors’ Fund. In addition, it is established from Ms Sayer’s report, referring to a letter from the solicitor of 10 April 1996 acknowledging receipt of the payment of $20,000 from the client which is not recorded in the Trust or Office accounts and is not the subject of any bill. Finally, Ms Sayer refers to the costs of $6,700 of the aborted trial which are alleged to have been paid but again there is no record of the receipt. The Tribunal is satisfied with the evidence in relation to the $6,700 for while it is based on the evidence of a person whose ultimate reputation and standing is not clear, the allegation is a serious one which the solicitor has chosen not to challenge and the payment as Ms Sayer comments is consistent with the solicitor’s practice of requiring moneys in advance to cover the costs of criminal trials. The solicitor is responsible for keeping these accounting records and these breaches are disgraceful. The ground is established and the conduct is wilful and amounts to professional misconduct.
170 On the evidence detailed in relation to this client, the complaint in relation to the convenient and proper auditing of accounts is established and that failure is a wilful failure within the meaning of the section. The Tribunal finds that professional misconduct is established.
171 Finally, in relation to this client, breaches of regulations are alleged. For simplicity’s sake, two of these are clearly established in the failure to deposit Trust moneys to the Trust account and issue of Trust receipts which have already been referred to. These breaches are established on the evidence already detailed, they are wilful breaches and amount to professional misconduct.
The Thirteenth Complaint - Skeen
172 The Society also complains of misconduct by the solicitor in relation to the Skeen matter. There are four grounds of complaint as follows:
173 Ms Sayer reports that in June 2000 a sum of $5,500 was paid to the solicitor by Mr Skeen by three instalments. The solicitor deposited the moneys into his office account. A costs agreement was signed on 1 August 2000. On 15 August 2000, $16,000 was received by the solicitor from the client and described as an “ instalment payment” and this was deposited in the solicitor’s Trust account. On 18 August $6,000 was transferred from the solicitor’s Trust account to the Office account in relation to this matter. There was no bill of costs prepared or served on the client in relation to any of these payments to the office account.
A The solicitor transferred moneys from the Trust account to his Office account on account of costs and disbursements prior to issuing bills of costs to the client and without authority in wilful breach of Section 61 of the Act;
B The solicitor failed to keep accounting records in relation to Trust moneys received pursuant to s61 (1)(a) of the Legal Profession Act so as to disclose at all times the true position in relation to those Trust moneys in wilful breach of s62 (1) of the Act.
C The solicitor failed to keep accounting records in relation to Trust moneys in a manner enabling the moneys to be conveniently and properly audited in wilful breach of s62 (2) of the Act;
D The solicitor failed to hold moneys in accordance with the regulations in wilful breach of s61 (1)(b).
174 The Tribunal finds that the initial June payments were Trust payments which are required to be paid to the Trust account. The solicitor was not entitled to transfer the moneys until a bill had been provided and a costs disclosure made. There is no evidence of a costs disclosure or any authority for the transfer at that time. The $6,000 transfer on 18 August similarly is unauthorised and in breach of the Act. These are conscious acts. They are in breach of the Act and they are wilful. The ground is established and amounts to professional misconduct.
175 It flows from the findings in relation to the first complaint that with moneys not being paid to the Trust account when required and with moneys being improperly transferred from the Trust account, that the accounting records could not at all times disclose the true position in relation to Trust moneys.
176 In relation to the third count, the accounting records could not, on the evidence with moneys not being deposited and moneys being improperly transferred, be conveniently and properly audited. The Tribunal finds on the basis already described in relation to other similar complaints these failures are wilful and the ground is established. The misconduct is professional misconduct and the Tribunal so finds.
177 In relation to the fourth count, the evidence clearly establishes breach of Regulation 32 in relation to receipt and withdrawal of moneys for costs, the requirement for costs disclosure and the requirement of delivery of an outline bill before costs are transferred. This misconduct is established and the Tribunal finds it is wilful and in the circumstances this misconduct also amounts to professional misconduct.
The fourteenth matter – Silva:
178 The fourteenth matter referred to in the information is Silva and once more there were four grounds of complaint though one of these was withdrawn on 10 April 2003.
179 Ms Sayer reported that there was no costs agreement entered into with the client. She also indicated that on 4 February 1998 the solicitor served four different bills of costs on the client variously dated from 28 November 1997 to 4 February 1998 for a total sum of $12,015.00. Moneys were transferred from Trust for payment of costs and disbursements on 19 December 1997 in the sum of $2,696.40 and 30 December 1997 in the sum of $8,761.67. There was no evidence of any authority for costs disclosed in that bill of costs to be charged or for the moneys to be transferred. There has been a breach of the Act in relation to each of these two transfers. The complaint is made out. There is a clear disregard of the statutory requirements by the solicitor in dealing with trust moneys. This is not done accidentally or by mistake, it is part of a pattern of behaviour. The Tribunal finds the conduct is wilful and that the conduct from its very nature is in terms of the statute professional misconduct.
A The solicitor transferred moneys from his Trust Account to his Office Account on account of costs and disbursements prior to issuing bills of costs to the client and without authority in wilful breach of Section 61;
B The solicitor failed to keep accounting records in relation to Trust moneys received pursuant to Section 61(a) of the Legal Profession Act so as to disclose at all times the true position in relation to those Trust moneys in wilful breach of s62 (1);
C ……(withdrawn) by the Society.
D The solicitor failed to hold Trust moneys in accordance with the regulations in wilful breach of s61 of the Act.
180 In consequence of the first finding the second complaint is also established. In addition, Ms Sayer found duplication of items and incorrect charges in the solicitor’s bills while a sum of Counsel’s fees was drawn and then re-credited this was allowed to remain in the Trust account for an excessive period.
181 These three additional matters appear more to relate to incompetence rather than wilful misconduct caused by positive decision or reckless inadvertence or reckless lack of care. Accordingly the matters relating to the errors in the accounts and the moving of moneys in the Trust account are such that the Tribunal is not satisfied that the wilful components have been established and by themselves they would if before the Tribunal be considered under the heading of possible unsatisfactory professional conduct. The facts that support the second count amount to a breach of s61 and the Tribunal has found the breach to be wilful so professional misconduct is in any event already established on the second count, although it is the same conduct that is the basis of the first finding.
182 The final complaint in relation to the Silva file relates to the failure of the solicitor to hold moneys in accordance with the regulations and refers to the failure of the solicitor to prepare deliver and maintain file copies of statements of account. The Tribunal has already found that there are no bills of costs prepared consistent with the report of Ms Sayer so this ground is also established and the conduct is a wilful breach of the solicitor’s obligations, he transferred money without authority and did not keep statements of account that he sent to his client (if in fact he did so) nor did he maintain copies of statements which would have further evidenced his misconduct. The breach is wilful and the Tribunal finds that it also amounts to professional misconduct.
The fifteenth complaint – Heap:
183 The final group of complaints relate to the file of Heap out of which three grounds of complaint arise as follows:
184 For some reason which is not clear two ledger accounts were opened by the solicitor in this matter. Into one ledger account between 22 February 2000 and 26 July 2000 seven payments totalling $1,650.00 were credited while in the second ledger account five payments were credited between 17 January 2000 and 1 September 2000 totalling $1,250.00. These moneys were all paid to the Office account and not to the Trust account.
A The solicitor failed to keep accounting records in relation to Trust moneys received pursuant to s61 (1)(a) of the Act so as to disclose at all times the true position in relation to those Trust moneys in wilful breach of s62 (1);
B The solicitor failed to keep accounting records in relation to Trust moneys in a manner enabling the moneys to be conveniently and properly audited in wilful breach of s62 (2) of the Act;
C The solicitor failed to hold Trust moneys in accordance with the regulations in wilful breach of s61 (1)(b);
185 Ms Sayer reports on these deposits and also confirms that no bills of costs were debited to either ledger. A bill dated 17 October 2000 was found by Ms Sayer in the file. This claimed costs of $2,300.00 for the period 2 May 2000 to 16 October 2000. By hand the bill is endorsed “Has paid to date $600. Outstanding $1700”. No copy of any costs agreement was kept with the file.
186 The deposits to the office account were totally improper. The bill of costs has the appearance of an afterthought in relation to the twelve payments improperly made to the office account. In the circumstances these were Trust moneys. This evidence satisfies the Tribunal following Ms Sayer’s report that the first two grounds are established and the misconduct was wilful. Twelve payments of what were trust moneys to the office account without authority, without a bill, is clearly wilful misconduct and professional misconduct in terms of the Act.
187 The third and final complaint relates to breaches of Regulations 31, 32, 33, 34 and 38. Moneys have not been paid to the Trust account, particulars not entered in the Trust deposit book, no Trust receipts issued, payment of Trust moneys have not been made by cheque, accounts have not been prepared and delivered as required, there has been no outline bill prior to taking the costs and the account situation is as already described totally inadequate and non-compliant. The solicitor has breached these regulations and the breach can only be described as wilful. The complaint is established and amounts to professional misconduct.
Conclusion:
188 The Tribunal has found a very large number of complaints of professional misconduct against the solicitor established. Many of these findings reflect the terms of Sections 61 and 62 of the Legal Profession Act 1987. Under s61 (8) wilful contravention of Sections 61(1) or 61 (2) is professional misconduct. Any wilful contravention of s62 is pursuant to s62 (4) professional misconduct. The Court of Appeal in re Mayes and the Legal Practitioner’s Act 1974 (1NSWLR19) found that a solicitor who failed to supervise the conduct of his partner, who misappropriated Trust moneys, had acted with reckless carelessness amounting to wilful failure to comply with Trust account provisions and that this constituted statutory misconduct.
189 In relation to some of the statutory breaches of s61 and s62 the hand of the solicitor is clear from the evidence. That is not always the case from the evidence in that it may be argued that some of his records were maintained by staff or others but he was responsible for the matters, he was responsible for checking the work of others, he was very much responsible for his Trust account and proper compliance with the statutory obligations.
190 Insofar as at times there is not evidence of his direct action in the conduct relating to the s61 and s62 breaches, the Tribunal is very much satisfied that he displayed the reckless carelessness to which their Honours in Mayes referred.
191 At the very commencement of proceedings the Tribunal had before it the solicitor’s effective acknowledgement that a striking off order was appropriate. The evidence has established behaviour of this solicitor which amounts to professional misconduct both at common law and by statute. In instances in these reasons the Tribunal has expressed its outrage at the solicitor’s conduct in relation to some particular matters. In the view of the Tribunal he clearly meets the long established test formulated by Lopes LJ in Allinson -v- The General Council of Medical Education and Registration (1894) 1QV750:
192 That medical test has long since been approved as a test of professional misconduct by legal practitioners.
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 or dishonourable by his professional brethren of good repute and competency then it is open to the General Medical Council to say that he has been guilty of infamous misconduct in a professional respect.
193 In Kennedy -v- The Council of Incorporated Law Institute of New South Wales (1940) 13ALR at 563, Rich J. said:
194 The Tribunal has analysed the facts presented before it in detail both over the rather lengthy hearing and subsequent preparation of these reasons for decision. The statement by Rich J is perhaps of assistance not only in establishing the finding of professional misconduct but also in relation to the consequences which are to flow from it. The misconduct is clear and most serious.
A charge of misconduct as relating to a solicitor need not fall within any 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 to practise the precepts of honesty or fair dealing in relation to the Courts, his clients and the public. The particular transaction a subject to the charge must be judged as a whole and the conclusion whether it betokened 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 from propriety, was not inconsistent with general professional fitness and habitual adherence to moral standards, has to be reached by a general survey of the whole transaction.
195 The Tribunal is indeed satisfied that the evidence has established that the solicitor in a series of money transactions has shown his unfitness to be held out as a member of a profession in whom confidence would be placed. In making this finding the Tribunal is conscious of the decision it reached in relation to the s171J issue. There are multitudinous reasons for finding professional misconduct of such a nature as to make it appropriate to strike the solicitor from the Roll. The grounds that were not subject to amendment date back to the initial application. Those original unaltered grounds are, in the opinion of the Tribunal, more than sufficient to justify a striking off order for they establish professional misconduct of a serious nature.
196 The role of the Tribunal is not to punish the solicitor. It is to protect the public and indeed, not only in reality in the instant case against repetition by the solicitor but, hopefully in some way to ensure that other members of the profession learn from the mistakes of this solicitor and come to appreciate the necessity for their own behaviour in professional matters being maintained at a proper level. There are many enunciations of the role of the Tribunal and perhaps the words of Clarke JA in Law Society -v- Bannister (1993) 4LPDR 24 succinctly set out the situation:
197 On the basis of the matters which have been canvassed in this Decision, the Tribunal is satisfied that the appropriate order is for the removal of the name of the solicitor from the Roll of Practitioners.
“….If a solicitor is shown not to be a fit and proper person he or she should be removed from the roll. The order for removal is not punitive but protective. Accordingly it is no answer for the solicitor to say that he or she has already been punished for the conduct which shows unfitness. But the supervisory jurisdiction of the court and the Tribunal is also directed to protecting the public more generally by maintaining and encouraging appropriate standards of professional behaviour. The exercise of the power to remove from the roll suspend or fine a solicitor is directed to protecting the public by ensuring that those unfit to practise do not continue to hold themselves out as fit to practise and that high standards are maintained. The maintenance of such standards involves deterring the offender from repeating the offence and deterring others who might be tempted to offend.”
Costs:
198 Section 171E reads insofar as it is relevant to the determination of this matter as follows:
199 In the circumstances in this matter the Tribunal is of the view that it is appropriate that the solicitor pay the costs of the Society. It may well be that had these costs had to be determined by the processes of the Act that some part of the costs of the Society in relation to grounds of complaint that were withdrawn or were unsuccessful would not have been allowed so that a proportion of the costs of the Society would not be recoverable from the solicitor.
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).
(2) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the practitioner is not guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may (but only if it considers that special circumstances so warrant) order payment from the Public Purpose Fund to the practitioner of the legal practitioner’s costs.
(3) An order for costs:
(a) may be for a specified amount or an unspecified amount; and
(b) if for an unspecified amount, may specify the basis on which the amount is to be determined, and
(c) may specify the terms on which costs must be paid.
200 Pursuant to its power under s172 (E)(3)(a) the Tribunal has determined in the exercise of its discretion to fix in this particular matter the costs payable by the solicitor as a specified sum. The Tribunal is entitled to rely on its own experience in reaching this conclusion, which it does. The circumstances here are unusual particularly insofar as the modest amount sought in respect of costs.
201 In concluding his submissions, Counsel for the Society sought a costs order in the sum of $5,000.00. Bearing in mind the great volume of material before the Tribunal and the length of time devoted to the hearing, the amount of costs sought by the Society is, in the view of the Tribunal, a very low sum. It is an amount which from the experience of the two-solicitor/practitioner members of the Tribunal is well below the costs which might properly be expected to have been incurred on a party and party basis. This has been a most detailed case involving very extensive preparation and, indeed, the Tribunal regards it as appropriate to commend the solicitor for the Society, Mr Barton for his efforts in achieving a clear presentation to the Tribunal of a large quantity of evidence in 15 different matters. Mr Barton has been of great assistance to the Tribunal and on the costs issue the amount sought, while indeed well below what the Tribunal might have expected to be recovered is a sum with which the Tribunal accepts as the appropriate order.
202 Accordingly, the Orders will be as set out providing for the solicitor’s name to be removed from the Roll and for him to pay the Society’s costs in the sum of $5,000.00.
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