Law Society of New South Wales v Jayawardena

[2005] NSWADT 96

CITATION:	Law Society of New South Wales v Jayawardena [2005] NSWADT 96
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Muhandiramge Jayawardena
FILE NUMBER:	042030
HEARING DATES:	7/03/2005
SUBMISSIONS CLOSED:	03/07/2005
DATE OF DECISION:	05/03/2005
BEFORE:	Vass CB -Judicial Member; Greenwood J - Judicial Member; Geddes J - Non Judicial Member
APPLICATION:	Professional Misconduct - fail to assist & cooperate with investigation - Professional Misconduct - fail to comply with s. 152 Notice - Professional Misconduct - mislead Law Society/Bar Association/LSC - Professional Misconduct - practice without appropriate practicsing certificate
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Mee Ling v The Law Society of New South Wales (1974) NSW LR 490
REPRESENTATION:	APPLICANT P Boyd, solicitor RESPONDENT C Sandrasegara, barrister
ORDERS:	1. That the Solicitor be publicly reprimanded; 2. That the Solicitor be fined the sum of $2,500.00 to be paid within 12 months of the date of these orders and the Solicitor is further ordered to pay off the amount of the fine by equal monthly instalments of $208.33, such instalments to be received prior to the due date and the first date for payment will be one calendar month after the date of these orders, and thereafter, on the same day of each month until the full amount is paid; 3. It is further ordered that should any one payment be in arrears for more than seven days, then the Solicitor’s Practising Certificate shall be suspended until all payments are up to date and being paid in accordance with this order; 4. The Solicitor pay the costs of The Law Society to be agreed or assessed; 5. The Solicitor is to undertake and successfully complete a course in Legal Ethics conducted by the College of Law or complete such other course as approved by the manager of the Professional Standards Department of The Law Society and such course is to be undertaken and completed within twelve calendar months from the date of these orders or such further time as is approved by the manager of the Professional Standards Department

1 The Law Society of New South Wales (The Law Society) by Information dated on 21 September 2004 and filed on 22 September 2004, complained that Mr Muhandiramge Jayawardena (the Solicitor), while practising as a solicitor, was guilty of professional misconduct and the grounds set out in the Information are that:

a) The Solicitor practised without an appropriate certificate.

b) The Solicitor attempted to mislead the Society in his letters dated 6.8.01 and 25.8.03.

c) The Solicitor, without reasonable excuse, failed to comply with a Notice issued to him pursuant to Section 152 of the Legal Profession Act 1987.

d) The Solicitor failed to assist the Society and co-operate with it in its investigation of complaints.

2 The complaint against the Solicitor was referred to this Tribunal pursuant to a resolution passed by the Professional Conduct Committee of The Law Society on 2 September 2004. However, prior to that date, and going back as far as May 2001, a considerable amount of correspondence passed between the Solicitor and The Law Society. At the outset, the Tribunal expresses some amazement that the matter ever developed to the point where it has come on for Hearing before this Tribunal. The Solicitor, when dealing with the complaint made against him, and indeed through all the correspondence and right up to a date being 3 days before the Hearing when he consulted his Counsel, Mr C Sandrasegara, appeared to not understand that he held a restricted Practising Certificate and the nature of those restrictions, and held the view that he was being harassed by The Law Society. At the end of the Hearing, it was submitted by the Solicitor’s Counsel that the fact that he now faced the Tribunal Hearing, was because he made the mistake of acting for himself and not seeking external legal advice.

3 The Tribunal accepts that submission but only in part because it is difficult to believe that a Solicitor, who is now 61 years of age, who obtained a law degree as far back as 1978 in Sri Lanka, and who in 1994 migrated to New Zealand and while in New Zealand, was practising as a Barrister and Solicitor until April 1998 when he came to Australia, does not understand the English language and therefore, understand the restrictions endorsed upon his Practising Certificate.

4 On 2 February 2000, the Solicitor was issued with a Practising Certificate which had conditions endorsed upon it and in summary, the Practising Certificate entitled the Solicitor to practise as a solicitor as an employee of another solicitor who held a Practising Certificate which was unrestricted. In the conditions, there appears a sub-paragraph (b) which, after the preamble, says that the holder is entitled to practise as a solicitor and:

“(b) In the course of employment by an entity who or which is not a solicitor.”

5 It is that particular sub-paragraph which seems to have confused the Solicitor because when he first committed certain of the offences complained of by The Law Society, he was working for a company called ReQuest International Pty Ltd and he seems to have believed that because he was employed by that entity, he was complying with the condition. He totally overlooks the next sentence which provides:

“The holder is not entitled to act as a Solicitor on the record or charge costs for legal work or practise other than as an employee.”

6 It is that particular paragraph which the Solicitor failed to come to come to grips with as appears in his correspondence which we will relevantly refer to.

7 At the commencement of the Hearing, Counsel for the Solicitor indicated to the Tribunal:

a) that the Solicitor had practised as a Solicitor in New South Wales without an appropriate Practising Certificate;

b) admitted in principle that he had attempted to mislead the Society in his letters dated 6 August 2001 and 25 August 2003, but would seek to explain how that attempt to mislead came about;

c) in relation to the third allegation, stated that he had now complied with the Section 152 Notice but not within the time specified;

d) he admits that he failed to assist The Law Society and co-operate with it in its investigation of the complaints, but would explain in evidence how that failure to co-operate came about.

8 The Law Society relied upon an affidavit of Raymond John Collins dated 21 September 2004 and annexed to that affidavit is all the relevant correspondence and notices issued pursuant to Section 152 of the Legal Profession Act 1987. Annexed to that affidavit is the original complaint letter from ReQuest International Pty Ltd which is dated 7 May 2001 and annexed to that letter, are a number of documents which show that the Solicitor signed an Appearance dated 17 May 2001 in a Federal Court matter and when signing the Appearance, there appears under his name, “Barrister/Solicitor for Applicant”. There is a letter dated 25 July 2000 written by the Solicitor on the letterhead of ReQuest International Pty Ltd and it refers to a case before that Court and again, the Solicitor has signed the letter as “Solicitor for Applicant”. We note with some concern that the letterhead at its top and under the name ReQuest International Pty Ltd states:

“Providers of Legal Services and Advice

Barristers and Solicitors”.

9 There is also annexed to that letter, receipts given to persons who have paid money and those receipts clearly state that they are the balance of fees.

10 It would appear from the correspondence that The Law Society, under the hand of Elizabeth Tomlinson, wrote to the Solicitor on 3 April 2001 asking for a response to the complaint. That letter was not produced to the Tribunal but the Tribunal notes that a letter was sent to the Solicitor by The Law Society on 14 May 2001 again enclosing a copy of the complaint documentation and seeking a response within 14 days. The Solicitor by letter dated 23 May 2001, responded to The Law Society. This letter is the start of the correspondence which clearly shows the Solicitor had no idea as to the meaning of the conditions imposed upon his Practising Certificate. He says in the letter dated 23 May 2001:

“I still maintain that I was employed by Mr Bashi as a migration agent. I have sent you a certified copy of the written contract. The copies of the documents you have attached to your letter relates to my appearance on behalf of a client in a migration matter in the Federal Court, in my individual capacity as an unrestricted legal practitioner of The Law Society of New South Wales.”

11 The documents attached to the original complaint from ReQuest International Pty Ltd, and we point out that Mr Bashi is an Officer of that company, clearly establish that the Solicitor practised without an appropriate certificate and the Tribunal finds that the first ground is established.

12 The Law Society wrote to the Solicitor on 25 July 2001 informing the Solicitor that the Society had resolved to make a complaint against him pursuant to Section 134 of the Legal Profession Act 1987 in relation to the complaint of practising without an appropriate certificate, and he was asked to provide a written response to the complaint.

13 The Solicitor responded to the letter from The Law Society dated 25 July 2001 by letter of 6 August 2001 and that letter is one of the letters that The Law Society rely upon in relation to the second allegation, namely that the Solicitor attempted to mislead the Society. The letter of 6 August 2001, at length, sets out the nature of a dispute that obviously existed between the Solicitor and his employer, ReQuest International Pty Ltd. The main thrust of the letter however, is the sentence which begins:

“I believe that you may have not considered condition (b) where I was allowed to practice as a solicitor “in the course of employment by an entity who or which is not a solicitor.” Therefore, I have not violated any condition in my Practising Certificate. The few legal matters I handled were done in terms of condition (b) above. All fees were charged by my employer, ReQuest International P/L (Philip Bashi) in terms of the last provision in condition (b) where it says “The holder is not entitled to act as solicitor on record or charge costs for legal work or practise other than as an employee.”

14 At the foot of page 1 of the same letter, he indicated that Philip Bashi had obtained business cards for him printed as Barrister and Solicitor and then says:

“I have told him that I have the right to work as a solicitor employed, but not as a Sole Practitioner.”

15 The Law Society acknowledged the Solicitor’s letter of 6 August 2001 by letter of 21 August 2001. The Law Society in that letter gave the Solicitor the opportunity to provide further information. It appears from the correspondence that then what happened is that The Law Society wrote to ReQuest International Pty Ltd on 7 December 2001 sending a copy of the Solicitor’s response and ReQuest International Pty Limited wrote back to The Law Society on 12 December 2001 in which it is stated that the Solicitor:

“has attempted to mislead The Law Society, as you will see all the attached letterheads which were typed and printed by Mr Jayawardena himself with the word Barrister and Solicitor. Accordingly to my knowledge, Mr Jayawardena also organised and assisted in the printing of his business cards.

Ms Tomlinson, the fees charged to clients were charged under the direction of Mr Jayawardena and according to the agreements which were made. If I receive money from a client, it was under the directions of the migration agents and ReQuest International Pty Limited and based on the contract agreement.”

16 The letter then had as enclosures a number of documents which clearly established that the Solicitor has acted as a sole practitioner. Those documents are:

1. Federal Court matter of Aluboodi.

2. LA Cook and Co against Faycal El Saj/application for leave to pay judgment debt by instalments.

3. Lease Agreement/Raymond Malkoun and Dagher/52A Marlon Street, Harris Park.

4. Hermiz Agreement with Toma re: 16 Maryvale Avenue, Liverpool.

5. Samira Fayad/Workers Compensation matter.

17 All this detail was passed onto the Solicitor by The Law Society in their letter dated 19 December 2001 and the Solicitor responded on 3 January 2002. The Solicitor in that letter starts by saying that he is surprised to receive the communication after a long time as he was under the impression that the matter had been concluded. He then goes on to say that the clients were all clients of Philip Bashi and not himself. He stated that the payments were made to Philip Bashi and he only received a 25% commission out of those fees. He then says importantly:

“How can you allege that I was a Sole Practitioner when I have no authority from The Law Society to practise as a Sole Practitioner except practising as an employed solicitor?”

18 The Solicitor later said:

“I believe it is high time that you have laid this matter to a rest.”

19 The Law Society, by letter dated 10 January 2002 addressed to the Solicitor, asked the Solicitor to provide information within 14 days as to:

a) the extent of his involvement in the design of the wording of the letterhead ReQuest International Pty Ltd and enclosed for the Solicitor information, copies of the letters dated 25 July 2000 and 28 July 2000; and

b) explain the use of such letterheads which held out that ReQuest International Pty Ltd provided legal services when he in fact as a holder of B Certificate could not provide such services to clients of the company.

20 A number of other letters passed between The Law Society and the Solicitor whereby the Solicitor was asked to provide information and comment and that correspondence led up to a letter from The Law Society to the Solicitor of 9 September 2002. In that letter, The Law Society again pointed out the limitations of the conditional Practising certificate. It also stated that the complaints committee had taken into account that the Solicitor’s employment with ReQuest as a Migration Agent, was his first job in Australia and that prior to that time, he had not worked as a Solicitor in any other legal firm in Australia. The letter goes on to say:

“It was submitted to the committee that it was clear from your submissions that you misunderstood the implications of condition Bb."

21 The letter then went on to set out the options available to the committee, one of which was that the Solicitor be offered a reprimand and the Solicitor was asked to indicate which of the offers was acceptable in the circumstances. The Solicitor responded by letter of 30 September 2002 indicating that he was busy attending a management course and sought an extension of 14 days to respond to the Society’s letter. Later, and on 14 October 2002, he sent a facsimile to Ms Elizabeth Tomlinson at The Law Society seeking a further extension to 28 October 2002.

22 The Solicitor responded to The Law Society by letter dated 23 October 2002 and the letter again clearly indicates that the Solicitor still did not understand the restrictions placed on his Practising Certificate. Again he says:

“In all circumstances, I did not act as a solicitor on the record or charge costs for my own gain from Aluboodi except as an employee of ReQuest International who charged all fees and I was remunerated for the services rendered as their employee.”

23 At the end of the letter he indicated that he maintained that he did not act as a Sole Practitioner and that the wording of the conditions were such that they could be misunderstood and then he completed the letter by indicating:

“Finally, I kindly request that this matter be closed as it had taken a lot of my valuable time which I could have meaningfully utilised for my career development.”

24 The Law Society acknowledge the letter from the Solicitor dated 23 October 2002 by letter dated 28 October 2002 in which Elizabeth Tomlinson clearly indicated that:

“It is the view of the writer that the options available to you were clearly set out in the letter of 9 September 2002.”

25 The Law Society wrote a further letter to the Solicitor on 9 December 2002 seeking more detail from him and on 12 December 2002, the Solicitor sent a facsimile to The Law Society complaining as to why, The Law Society required a copy of his Master of Laws Certificate and another document and then went on to say:

“I am of the view that these have nothing to do with the complaint unless you doubt my honest.”

The Law Society responded to the facsimile on 17 December 2002 and in that letter explained that the writer, Elizabeth Tomlinson, was making further enquiries on the direction of the Professional Conduct Committee.

26 The Law Society’s next letter to the Solicitor was dated 24 January 2003 and in that letter, The Law Society pointed out that the Professional Conduct Committee had considered the complaint and resolved that the Solicitor be reprimanded. It further pointed out that the administration of a reprimand requires the Solicitor’s consent and asked that the Solicitor inform the Society within 14 days from 24 January 2003 whether he would accept the committee’s offer of a reprimand.

27 The Solicitor responded by facsimile dated 6 February 2003 explaining that there was a delay in him receiving the letter from The Law Society dated 24 January 2003 and that he required at least 10 more days to send his detailed response. He stated:

“The issues involved are of a very important nature and upsets my professional outlook and my competency. Hence, I have to study them very carefully without rushing. Therefore, my response will be sent to you on or before Monday, 17 February 2003.”

28 The Law Society sent to the Solicitor a letter dated 10 February 2003 pointing out that it was not the practice of the department to allow time frames that are put in place by the Professional Conduct Committee to be unilaterally altered and asked that he make every effort to attend to the matter as soon as possible.

29 The Solicitor’s next letter dated 11 February 2003 addressed to The Law Society, was a very lengthy letter. The letter sets out again the Solicitor’s work history and indicates that he will send a further detailed reply to The Law Society before Monday, 17 February 2003. Also in the letter, he complains that The Law Society still has not given him a correct explanation against his submissions that the wording in the conditions on his Practising Certificate “did not (sic) allow me working in a registered company as an employed solicitor.” The Solicitor did in fact write again to The Law Society on 17 February 2003 and that letter was some 4 pages in length. He sets out again in that letter his academic achievements and his work experience in other countries. In the letter he also then complained as to the nature of the investigations undertaken by The Law Society and stated:

“I must tell you that you have not done anything about a crooked lawyer in The Law Society (Raj Palany) and gone on investigating about honesty and integrity of a decent man as if he had been a rogue. There was no necessity at all for you to have gone outside your jurisdiction to investigate into my admission, which was never an issue before you. You believed the rogue Raj Palany and went on an irrelevant “voyage of discovery.”

30 Once again, he also said that he had not received a valid explanation of his query that the wordings of the conditions in his Practising Certificate “did not allow me to work as a solicitor of a registered company in Australia”. He said that until he received a valid explanation of his query he would not accept a decision of the Disciplinary Committee.

31 The Law Society acknowledged the letter by letter dated 4 March 2003 but did not respond until 18 August 2003 in which it was stated to the Solicitor that in the letter dated 24 January 2003 from The Law Society, the Professional Conduct Committee had offered him a reprimand and that his response of 11 February 2003 did not address the committee’s request. Once again, the letter dated 18 August 2003 sought a detailed response from the Solicitor to The Law Society’s letter dated 24 January 2003 within 21 days.

32 The Solicitor acknowledged the letter from The Law Society by letter dated 25 August 2003 and it also appears that he telephoned a person by the name of Susan at The Law Society on Friday, 22 August 2003. The effect of the letter of 25 August 2003 was to apply for the issue of an unrestricted Practising Certificate. The letter dated 25 August 2003 was in fact addressed to a Ms Karen Burrard, the Manager of the Membership Department, and the letter indicated that the Solicitor had spoken to Ms Elizabeth Tomlinson and that he “was under the impression that she was co-ordinating with your department to arrange a full Practising Certificate for me commencing on the first day of July 2003.”

33 Elizabeth Tomlinson responded to the Solicitor’s letter on 11 September 2003 pointing out once again that the Solicitor’s correspondence and attachments do not address the committee’s request, and again pointed out that unless the Solicitor addressed the offer made to him by the Professional Conduct Committee the file was going to be referred to the Litigation Section of The Law Society. She went on to say in the letter:

“It is noted that by letter dated 25 August 2003 you advised the Manager of the Membership Department Ms Karen Burrard that I was co-ordinating with the Membership Department to arrange a full Practising Certificate for you commencing 1 July 2003. You will appreciate that statement is totally incorrect.”

34 The Solicitor wrote to The Law Society on 16 September 2003 and the letter again clearly indicates to the Tribunal that the Solicitor has no idea what was required of him to respond in relation to the offer of a reprimand from the Professional Conduct Committee. He starts his letter by saying:

“I was surprised when I have received a reply from you after 7 months. I was under the impression that this matter had been properly dealt with by the Committee and the file was closed.”

35 He then says that he would send an appropriate reply in due course and the remainder of his letter dealt with the arrangements he was making to obtain an unrestricted Practising Certificate. This letter brought a response from The Law Society dated 17 September 2003 and in particular it says:

“There is absolutely no basis for your impression that this matter has been dealt with by the Committee and the file closed.”

36 It goes on to say that absent a written response being delivered to The Law Society by close of business on Tuesday, 2 October 2003, the entire matter would be transferred to the Litigation Section of The Law Society.

37 The Solicitor responded by letter dated 26 September 2003 and again this letter debates the requirements of the conditions placed upon the Solicitor’s Practising Certificate saying it allowed him to practice as an employee of a body corporate. The Law Society responded on 29 September 2003 pointing out to the Solicitor that he has failed to address the issue regarding the reprimand and the file was being transferred to the Litigation Section of The Law Society.

38 The Tribunal is satisfied that the Solicitor in his letter to The Law Society dated 6 August 2001, did attempt to mislead the Society. A number of documents were eventually produced which established that the solicitor had acted as a Sole Practitioner and those are the documents referred to and attached to the letter from Request International Pty Limited to The Law Society dated 12 December 2001. The Tribunal is further satisfied that the Solicitor in his letter dated 25 August 2003 was again attempting to mislead the Society by suggesting that he had communicated with Ms Elizabeth Tomlinson and that he was under the impression that she was co-ordinating with the Membership Department to arrange a full Practising Certificate for the Solicitor commencing on 1 July 2003.

39 The next round of important correspondence commenced with The Law Society writing to the Solicitor on 14 October 2003 and in particular in that letter, pointed out that Section 137(1) of the Legal Profession Act 1987 provides that complaints may only be made within 3 years after the conduct, which is the subject of the complaint is alleged to have occurred. It went on to point out that the Council may make a complaint out of time if it is satisfied that it is just and fair to do so and that the complaint concerns an allegation of professional misconduct and it is necessary in the public interest to investigate the complaint. The Solicitor was asked to make submissions as to whether or not the Council should exercise its discretion to accept the complaint being made out of time. The Solicitor responded by letter dated 28 October 2003 and the letter was addressed to Ms Elizabeth Tomlinson and in the view of the Tribunal, was quite offensive. He says in the letter:

“I cannot understand as to why you twist and turn all the time when you communicate with me on any matter. After receiving my last reply you are aware you have accepted that I as (sic) an employee of a body corporate, I was covered by my restricted Practising Certificate at that time for the work I did for my employer. Therefore, you conceded that according to the regulations, you will refer this matter back to the Disciplinary Committee for reviewing their previous decision.”

40 The Law Society under the hand of Mr P Boyd, a Litigation Solicitor, wrote to the Solicitor on 23 December 2003 clearly pointing out that the Practising Certificate that the Solicitor held did not enable him to practice in the way that he thinks it did and suggested that he obtain legal advice.

41 The Law Society wrote to the Solicitor on 22 January 2004 indicating that the Professional Conduct Committee resolved to make a complaint against the Solicitor for “attempting to mislead The Law Society in letters dated 06.08.2001 and 25.08.2003.” He was asked to make a response within 14 days. A correction letter was sent by The Law Society on 5 February and then a further letter was sent by The Law Society to the Solicitor on 19 February noting that the previous letters had not been responded to. The next letter from the Society to the Solicitor was dated 4 March 2004 and it indicated that the Professional Conduct Committee passed a resolution on 4 March 2004 to the effect that it was satisfied that there was a reasonable likelihood the Legal Practitioner will be found guilty by the Tribunal of professional misconduct and the grounds were that the Solicitor had practiced without an appropriate certificate and misled The Law Society.

42 The Solicitor responded by letter dated 8 March 2004 and in this letter, again indicated that before he could accept the committee’s reprimand he needed to be advised as to whether:

1. That in the future there would not be any impediments for my obtaining my annual Practising Certificate from The Law Society.

2. That a reprimand is not a punishment and that it will not carry any adverse remark against my future good name as a member of The Law Society of New South Wales.

43 The letter also complained that the Solicitor had left two messages for Mr Boyd to ring him back and there was no response. Mr Boyd of The Law Society responded by letter dated 9 March 2004. Mr Boyd points out in his letter that the fact that he failed to act on two messages to ring the Solicitor “is absurd, mischievous and plainly incorrect”. Mr Boyd went on to point out that the time to accept the reprimand has passed and further, that Mr Boyd is not able to offer advice to the Solicitor and sought a response to his letter dated 4 March 2004 within the timeframe.

44 The Solicitor wrote to Mr P Boyd of the Law Society on 10 March 2004 and in that letter he consented to the issuance of the reprimand by The Law Society but then went on to complain that Elizabeth Tomlinson went on a “voyage of discovery” of her own to humiliate him. He said that she had no authority from him to abuse her position by writing to the University of Auckland and the Legal Practitioners Board of New Zealand. He says in the letter:

“Even when I enquired from her as to why she queried from those bodies without my permission (contrary to Privacy Law) she never wrote back to me stating what her intentions were for doing so. I presume she went on a fraud’s enquiry?”

45 The Manager of the Professional Standards Department of The Law Society Mr Collins then wrote to the Solicitor on 12 March 2004 and in that letter he pointed out that it was no longer open to the Solicitor to accept the Society’s earlier offer of a reprimand with respect to one of the complaints that was made and then indicated that he was concerned at the intemperate comment in the Solicitor’s letter relating to Ms Elizabeth Tomlinson. He pointed out that Ms Tomlinson did have authority pursuant to the Legal Profession Act 1987 to make the enquiries that she did make and that she did not abuse her position as alleged. Mr Collins then asked for a response withdrawing the allegations against Ms Tomlinson. The Solicitor responded on 18 March 2004 by letter to The Law Society once again referring to the correspondence that had passed between himself and the Society in February 2004 and once again, attempts to display a complete misunderstanding of what was required of him in relation to the answering of correspondence.

46 He asked for the acceptance of the reprimand to again be referred to the disciplinary committee and pointed out that in relation to what he said about Elizabeth Tomlinson he would reply later.

47 Mr L Pierotti, the Litigation Manager of the Professional Standards Department of The Law Society, then wrote to the Solicitor on 23 March 2004. That letter was some seven pages in length and set out a complete chronology of the correspondence that had passed between the Solicitor and The Law Society and ended by pointing out that he had directed Mr Boyd to place the matter before the Professional Conduct Committee at its meeting on 15 April 2004 and any response that the Solicitor would like to make should be received no later than 5 April 2004.

48 There was no response from the Solicitor to The Law Society’s letter dated 23 March 2004 and The Law Society wrote to the Solicitor on 15 April 2004 setting out the resolutions that were passed by the Professional Conduct Committee on 15 April 2004. The letter was a very lengthy letter and the Tribunal particularly notes that it pointed out to the Solicitor that a fresh notice will be issued under Section 152 of the Legal Profession Act 1987 and that the Notice under that particular section which was served on the Solicitor on 5 April 2004 is no longer applicable.

49 The Solicitor sent a facsimile to Mr Louis Pierotti, the Litigation Manager of the Professional Standards Department on 16 April 2004. Once again, this letter sets out detail of all the previous correspondence and made the same submissions namely that he did not practice without an appropriate Practising Certificate and that he proved that fact to Ms Tomlinson and also that Ms Tomlinson had accepted in writing that he was an employed solicitor at a body corporate and therefore, he acted in accordance with the conditions on his Practising Certificate. He then made the allegation that:

“I have done the best I could do in this matter, but The Law Society is going on a tangent to punish me because they think that we have no place in this Country because we have come from a developing Country and not cared for. This is the impression I have got. I may be correct, I may be wrong.”

50 The Law Society prepared and served upon the Solicitor on 28 April 2004 a notice under Section 152 of the Legal Profession Act 1987 requiring the Solicitor by statutory declaration to provide the information set out in the schedule to the notice. The Law Society on 20 May 2004 wrote to the Solicitor pointing out that he had not complied with the notice and that pursuant to the provisions of Section 134 of the Act, the complaint was made against the Solicitor that he had failed without reasonable excuse to comply with the notice issued under Section 152 of the Act and also that he had failed to assist the Society and co-operate with it in its investigation of complaints. The Solicitor responded to The Law Society on 3 June 2004 and in that letter again he shows that he did not understand the obligations placed upon him by the Section 152 notice. He says in his letter that he failed to respond to the notice and stated:

“It was mainly due to my understanding that I have supplied all the submissions to Mr Pierotti in my letter dated 16 April 2004 my coming to know that you were preparing a report to the Professional Conduct Committee taking into account of my submission made to him.”

51 The Law Society responded to the Solicitor’s letter on 3 June 2004 pointed out the errors in the letter and the resolutions of the Professional Conduct Committee and again, giving the Solicitor 14 days to make submissions. The Solicitor made no further submissions and The Law Society by letter of 6 September 2004 advised the Solicitor of the resolutions that had been passed by the Professional Conduct Committee to refer the complaints to the Tribunal and the complaints referred to in that letter are the complaints in the information which was filed on 22 September 2004.

52 Section 152(4) of the Legal Profession Act 1987 states that a Legal Practitioner who without reasonable excuse, fails to comply with the notice served upon him under this section is guilty of professional misconduct. The Tribunal is satisfied that the notice under Section 152 of the Act was appropriately served and that the Solicitor has not provided any reasonable excuse for failing to comply with that notice and that the notice was not complied with and in the circumstances, finds that the Solicitor is guilty of professional misconduct in relation to ground 3.

53 The correspondence clearly shows that the Solicitor:

a) Did practice as a solicitor for third parties in breach of the conditions placed upon his Practising Certificate and that he did so over a considerable period of time;

b) Was a well educated person and was conversant with the English language and while his Counsel argued that the Solicitor’s failure to respond appropriately to The Law Society’s correspondence was because he acted for himself, the fact is he wilfully practiced in breach of the conditions. The Solicitor argued that Condition B(b) which provides:

- that the Solicitor can practice as a solicitor;

- in the course of employment by an entity who or which is not a solicitor,

gave him the right to practice for third parties. It is clear to the Tribunal that that argument is put as an excuse and that he could not fail to understand the next sentence in the conditions which stated:
“The holder is not entitled to act as a solicitor on the record or charge costs for legal work or practice other than as an employee.”
c) In some of the correspondence he attacked Ms Tomlinson about the enquiries that she was directed by the Professional Conduct Committee to make, and also stated that she had accepted in writing that he was an employed solicitor at a body corporate and therefore acted in compliance with the conditions on his Practising Certificate. The attack on Ms Tomlinson was not warranted and the other allegation is simply not true.

54 In relation to Ground 1 namely that the Solicitor practised without an appropriate certificate, The Law Society referred the Tribunal to the decision of the Court of Appeal in the Supreme Court of New South Wales in Mee Ling –v- The Law Society of New South Wales (1974) NSW LR 490. In that case Moffitt P and Hardie JA stated that breach of the Act or Regulations such as that of the Appellant in that case, though not constituting professional misconduct in the statutory sense, may nevertheless, in an appropriate case, constitute professional misconduct at common law.

55 Section 32(4) of The Legal Profession Act 1987 provides that a solicitor who is the holder of a current Practising Certificate must not fail to comply with a condition to which the certificate is subject. The Tribunal has made the finding that the Solicitor practiced without an appropriate certificate. The question for the Tribunal to determine is whether the failure:

“is far beyond any negligence, even gross or vulnerable negligence, and involves that a person wilfully misconducts himself who knows and appreciates that it is wrong conduct on his part in the existing circumstances to do or to fail or omit to do, as the case may be, a particular thing, and yet does, or fails or omits to do, or persists in the act, failure or omission regardless of consequences…or acts with reckless carelessness, not caring what the results of his carelessness may be (In Re: Hodgekiss 1962(NSW) SR 340).”

56 The Tribunal has already referred to the correspondence that passed between the Solicitor and The Law Society between May 2001 through to September 2004. The Solicitor is a well educated man who does understand the English language and who could not fail to understand the requirements of the conditions endorsed on his Practising Certificate. The Tribunal is of the view that the Solicitor knowingly and deliberately breached the conditions on his Practising Certificate and in relation to Ground 1, finds the Solicitor guilty of professional misconduct.

57 The Tribunal has also made the finding that the Solicitor attempted to mislead the Society in his letters dated 6 August 2001 and 25 August 2003 and further, that the Solicitor failed to assist the Society and co-operate with it in its investigation of complaints.

58 The Tribunal has already formed the view that the Solicitor well knew that he could not practice as a solicitor for third parties and to do so, was in breach of the conditions endorsed on his Practising Certificate. The Tribunal is of the view that his continued breach of the condition was wilful and in the circumstances in relation to Grounds 2 and 4, the Tribunal finds the Solicitor guilty of professional misconduct.

59 The Solicitor, through his Counsel, tendered a number of character references. The first reference was from the Attorney General of the Republic of Zambia dated 6 April 1993 who confirmed that the Solicitor was employed in the Ministry of Legal Affairs from 27 May 1992 on a three year contract. The Attorney General stated that the Solicitor “is an extremely dependable, reliable and trustworthy lawyer.”

60 The next reference was a reference from the Minister of Legal Affairs in the Republic of Zambia and it is dated 28 June 1994. He says in his reference that he appreciated:

“very highly the successful manner he represented the state in the High Court and Supreme Court proceedings. I am personally aware as to how he argued successfully the constitutional law before a bench of five Supreme Court Judges in an Appeal where the Presidential Power in appointing two cabinet minters was challenged by an individual and also his sound arguments in Law of Contract of Employment and the Administrative Law before a bench of three Judges where my Ministerial Power in terminating the services of an appointee was challenged, whereby he was able to bring in a judgment in favour of the State.”

61 The Minister went on to certify that the Solicitor is a person of high integrity and honesty. He also tendered a reference from the Solicitor General of the Republic of Zambia which was in similar glowing terms.

62 The next reference is a reference from the practice manager of O’Sheas, a firm of solicitors in Hamilton, New Zealand. He worked with that firm for a period of six months ending on 15 October 1999 and the reference which is dated 13 October 1999 states that during his employment “he handled residential conveyancing, estate administrations, probate and other civil litigation matters. Chandra was an honest, hardworking and reliable solicitor.” A reference from Nicholas Poynder, a Barrister in this State and dated 30 April 2002, also spoke of the Solicitor in glowing terms and pointed out that he is a person of high integrity and noted that at one time the Solicitor was employed as a Magistrate in Sri Lanka.

63 The last reference was from a Mr Jake Boghossian which is dated 2 May 2002 and it indicated that the Solicitor’s honesty and integrity are unquestionable.

64 The Tribunal does note that the references are reasonably old and of course, not any of the referees are aware of these current proceedings and for the references to be given full weight, it is important that the referees be advised of the nature of proceedings and comment as to whether they consider that the nature of the complaints made against the Solicitor are out of character.

65 The function of this Tribunal is essentially twofold; to protect the public and to register its disapproval of the way in which the Solicitor dealt with the complaint made against him. The complaints, the subject of these proceedings, commenced with the single complaint of practicing without an appropriate Practising Certificate and then ballooned out into other complaints because of his failure to answer correspondence from The Law Society appropriately. Taking into account the Solicitor’s impressive work record and the support of the referees, the Tribunal concludes that the protection of the public did not require that he be prevented from practicing and that an imposition of a fine and a costs order will sufficiently mark the Tribunal’s disapproval of the Solicitor’s misconduct.

ORDERS

66 The Tribunal therefore orders:

1. That the Solicitor be publicly reprimanded.

2. That the Solicitor be fined the sum of $2,500.00 to be paid within 12 months of the date of these orders and the Solicitor is further ordered to pay off the amount of the fine by equal monthly instalments of $208.33, such instalments to be received prior to the due date and the first date for payment will be one calendar month after the date of these orders, and thereafter, on the same day of each month until the full amount is paid.

3. It is further ordered that should any one payment be in arrears for more than seven days, then the Solicitor’s Practising Certificate shall be suspended until all payments are up to date and being paid in accordance with this order.

4. The Solicitor pay the costs of The Law Society to be agreed or assessed.

5. The Solicitor is to undertake and successfully complete a course in Legal Ethics conducted by the College of Law or complete such other course as approved by the manager of the Professional Standards Department of The Law Society and such course is to be undertaken and completed within twelve calendar months from the date of these orders or such further time as is approved by the manager of the Professional Standards Department.