Law Society of New South Wales v Konstantinidis (No 2)

[2005] NSWADT 87

CITATION:	Law Society of New South Wales v Konstantinidis (No 2) [2005] NSWADT 87
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Simon Konstantinidis
FILE NUMBER:	032020
HEARING DATES:	18/10/2004-22/10/2004, 24/02/2005-25/02/2005
SUBMISSIONS CLOSED:	02/25/2005
DATE OF DECISION:	04/26/2005
BEFORE:	Chesterman M - ADCJ (Deputy President); Greenwood J - Judicial Member; Bennett C - Non Judicial Member
APPLICATION:	Professional Misconduct - delay - Professional Misconduct - breach of s. 55 of the Legal Profession Act
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Green v Law Society of New South Wales [2002] NSWADTAP 8 In the matter of Simon Konstantinidis (1993) 1 LPDR 3 Law Society of New South Wales v Cunningham [2003] NSWADT 138 Law Society of New South Wales v Green [2001] NSWADT 142 Law Society of New South Wales v Konstantinidis [2004] NSWADT 179 Law Society of New South Wales v Martin [2002] NSWADT 27 New South Wales Bar Association v ‘LI’ [2005] NSWADT 15
REPRESENTATION:	APPLICANT S Wales SC RESPONDENT B Walker SC D Brezniak, barrister
ORDERS:	1. That the Solicitor be publicly reprimanded; 2. That the Solicitor pay a fine of $5,000 within three months of the date of these orders, and that if the fine be not paid within that time his practising certificate is to be cancelled and no further certificate is to be issued until it is paid; 3. That the Solicitor pay to the Law Society the sum of $65,000 plus GST on account of its costs, to be paid in four equal half-yearly instalments, with the first instalment to be paid six months after the date of these orders

Introduction

1 On 18 February 2004, the Applicant, which is the Council of the Law Society of New South Wales (‘the Law Society’), filed in the Tribunal an Amended Information under Part 10 of the Legal Profession Act 1987 (‘the Act’) against the Respondent, Simon Konstantinidis (‘the Solicitor’), alleging that he was a legal practitioner within the meaning of the Act and that while practising as a solicitor he was guilty of professional misconduct on 21 grounds, most of which contained two or more separate counts. This Amended Information superseded an Information that the Law Society had filed on 14 October 2003.

2 The Law Society requested in both the original Information and the Amended Information that the Tribunal make an order that the name of the Solicitor be removed from the Roll of Legal Practitioners, an order that he pay the Law Society’s costs of and incidental to the proceedings and such further order as the Tribunal deemed fit.

3 In his Reply, the Solicitor admitted certain matters alleged in the Particulars contained in the Amended Information, but denied that he had been guilty of professional misconduct.

4 On 25 June 2004, in an ex tempore judgment, we dismissed an application by the Solicitor for an order permanently staying the proceedings. The principal matter relied on in this application was that the conduct alleged against the Solicitor in most of the grounds set out in the Amended Information occurred between 1992 and 1996 and that on account of substantial delay by the Law Society in bringing these proceedings it was impossible for its case against the Solicitor to be fairly tried.

5 On the same day, we delivered a second ex tempore judgment determining an application by the Solicitor for an order striking out all but two of the separate counts in the Amended Information on account of alleged procedural defects. We held however that only three of these counts were liable to be struck out and ordered accordingly.

6 On 25 June 2004, in another ex tempore judgment (Law Society of New South Wales v Konstantinidis [2004] NSWADT 179), we granted an application by the Solicitor for an order dismissing an accompanying Information (‘the s 152 Information’) that the Law Society had laid against him. In this Information, the Law Society had alleged professional misconduct on the ground of failure by the Solicitor, without reasonable excuse, to comply with a requirement to provide information contained in a notice served on him under s 152 of the Act. It had sought an order that his name be removed from the Roll of Legal Practitioners.

The application made to us at the hearing

7 The hearing of the Amended Information took place before us over six days in October 2004 and February 2005. On the seventh day, 25 February 2005, before the Solicitor’s case had closed, counsel for the two parties made a joint application to us.

8 This application was in the following terms: (a) that we should dismiss all but two of the counts set out in the Amended Information; (b) that we should accept the Solicitor’s admissions that he had engaged in the conduct alleged in these two remaining counts and that this conduct amounted to professional misconduct; (c) that we should make such orders (if any) by way of penalty under s 171C(1) of the Act as we held to be appropriate with respect to these instances of professional misconduct; and (d) that we should order the Solicitor to pay to the Law Society the sum of $65,000 plus GST on account of costs, to be paid in four equal half-yearly instalments commencing in six months’ time.

9 In the submission by Mr Wales SC, appearing for the Law Society, the reason why we would be justified in dismissing, at the Society’s request, all but two of the counts in the Amended Information was that, in the light of the evidence that had been tendered at the hearing by the Society (which had closed its case) and by the Solicitor, we could not be satisfied, to the requisite standard of proof, that any of these counts had been established. Mr Wales reminded us that, by virtue of principles stemming from the High Court’s decision in Briginshaw v Briginshaw (1938) 60 CLR 336, we were required in disciplinary proceedings such as these to be ‘comfortably satisfied’ of the truth of the matters alleged.

10 Mr Wales submitted that, chiefly for two reasons, we could not in fact be ‘comfortably satisfied’ as to these matters. The first reason was that, as we have already mentioned, virtually all of the alleged conduct of the Solicitor was claimed to have occurred during the years 1992 to 1996. In consequence, witnesses called on both sides, including the Solicitor himself, said with reference to numerous crucial issues that they could not remember what happened. Secondly, with regard to many aspects of the Solicitor’s alleged conduct he had provided an explanation which, if accepted, would negative intent or recklessness on his part. This would be sufficient to preclude any finding of professional misconduct.

11 On the question of how we should respond to a joint application of this nature by both parties in proceedings under Part 10 of the Act, Mr Wales referred us to the following passage in the Tribunal’s judgment in Law Society of New South Wales v Doueihi [2002] NSWADT 265 at [6 – 7]:-

6 The parties handed to us an agreed minutes of draft orders. The fact that the Society and the Solicitor, expertly advised, agreed upon the orders is a matter to which we give considerable weight. However, these proceedings not being truly adversarial, it is necessary for us to satisfy ourselves that the orders sought are appropriate in the public interest.

7 After careful consideration, we think they are appropriate orders…

12 Counsel for the Solicitor, Mr Walker SC, joined in the submissions made by Mr Wales.

13 The need for us to make our own independent determination as to whether the orders sought in this application were in the public interest received further emphasis in a recent Tribunal decision that was not cited to us, New South Wales Bar Association v ‘LI’ [2005] NSWADT 15.

14 After giving the matter our careful consideration, we indicated in a short ex tempore judgment that we would grant the application that the two parties had jointly made. We stated that, having reviewed the evidence put before us regarding the counts in the Amended Information that we were asked to dismiss, we considered that this evidence was insufficient to prove any of these counts to our comfortable satisfaction and that it was in the public interest that we should accede to the application for them to be dismissed.

15 As we have said, the Amended Information contained two counts that we did not dismiss. These were Ground 2, Count 6, alleging delay in complying with an undertaking to the Law Society, and Ground 20, Count 1, alleging contravention of s 55(3) of the Act.

16 In relation to each of these counts, the Solicitor admitted the conduct alleged and that it amounted to professional misconduct. We will now outline the circumstances in which this conduct occurred.

Contravention of s 55(3) of the Act

17 The Solicitor was admitted as a solicitor on 8 July 1983. He commenced practice as a sole practitioner under his own name on 13 November 1985. He has been a sole practitioner since then, except between 1 July 1996 and 30 June 1997. During this period he practised in partnership with Mr Mario Piperides, another solicitor.

18 On 7 November 1988, the name of the Solicitor’s firm was changed to Konstan & Associates (hereafter ‘the firm’).

19 Having been made aware of a number of alleged aspects of the management of the firm’s trust account that gave cause for concern, the Law Society appointed Miss Jean Sayer, chartered accountant, on 22 February 1996 as investigator of the Solicitor’s affairs under s 55(1) of the Act. Miss Sayer first attended the firm’s office on 11 March 1996.

20 The count alleging a breach of s 55(3) of the Act (Ground 20, Count 1) and the accompanying particulars are in the following terms:-

Breach of S 55(3)

1. The solicitor breached Section 55(3) of the Legal Profession Act 1987

Particulars

1. On 22 February 1996 Jean Sayer (“Miss Sayer”) was appointed as Investigator to the solicitor’s practice.

2. On 29 July 1996 Miss Sayer requested the solicitor to forward to her 37 files.

3. Considerable delay was occasioned by the solicitor in complying with Miss Sayer’s request. Despite many requests it was not until 29 October 1997 that all files except three were produced by the solicitor to Miss Sayer.

4. The solicitor hindered, obstructed and delayed Miss Sayer in the conduct of her investigation.

21 Section 55(3) of the Act is as follows:-

(3) A solicitor or locally registered foreign lawyer under inspection or investigation and any other person who has possession or control of any records of the solicitor or foreign lawyer or relating to the affairs of the solicitor or foreign lawyer shall, if required to do so by a trust account inspector or an investigator who produces evidence of his or her appointment, provide the trust account inspector or investigator, or his or her assistant, with:
(a) access to such of the records as relate to the accounts being inspected or the affairs being investigated,

(b) information that the solicitor or foreign lawyer or other person is able to give in relation to those records, accounts and affairs, and

(c) authorities or orders on bankers and others that relate to those records, accounts or affairs and that the solicitor or foreign lawyer or other person is able to provide.

Maximum penalty: 10 penalty units.

22 Under s 55(6), contravention by a solicitor of s 55(3) or s 55(5) is declared to be professional misconduct, whether or not the solicitor is convicted for the contravention.

23 The terms of paragraph 4 of the particulars to this count in the Information reflect those of s 55(5), which states as follows:-

(5) A person shall not hinder, obstruct or delay a trust account inspector or an investigator in the exercise of his or her functions.

Maximum penalty: 10 penalty units.

24 During the submissions in support of the joint application to us at the end of the hearing, both counsel referred to s 55(5), not s 55(3), implying that it was to a breach of s 55(5) that the Solicitor was admitting. But the Law Society did not apply to us for an order under s 167A of the Act varying the Amended Information by substituting s 55(5) for s 55(3). This section does not empower the Tribunal to amend an information of its own motion.

25 In formal terms, therefore, we propose to treat this count in the Information as alleging, in accordance with its express terms, the contravention of s 55(3), not of s 55(5). The difference between these two subsections in the present context is not, we think, of great significance, since in both instances a contravention amounts to professional misconduct and in determining what order or orders we should make under s 171C(1) we may take into account all the circumstances in which the admitted breaches of s 55(3) occurred. These may include the extent to which, as alleged in paragraph 4 of the particulars, the Solicitor ‘hindered, obstructed and delayed’ Miss Sayer.

26 In her report to the Law Society, dated 20 November 1997, Miss Sayer annexed a copy of the letter of 29 July 1996 in which she had requested that he forward 37 of the firm’s files to her.

27 She also annexed copies of eleven further letters from her to the Solicitor. In each of these letters, she pointed out that he had not complied with this request and/or with one or more subsequent requests for further files or other documents, and required him to make available specified files and/or documents within a specified time. These letters were dated 17 October, 30 October, 2 December 1996 and 24 April, 26 May, 12 August, 2 September, 9 September, 16 September, 26 September and 23 October 1997.

28 In the letter of 30 October 1996, Miss Sayer referred to s 55(5) of the Act and stated that she proposed to report to the Law Society the Solicitor’s conduct in failing to deliver files to her. In the letter of 24 April 1997, she referred to s 55(3).

29 As stated in paragraph 3 of the particulars, by 29 October 1997 all requested files except three had been produced by the Solicitor to Miss Sayer. She identified these three files and made a final request for their production in a letter to him dated 19 November 1997.

30 We find that the conduct thus admitted by the Solicitor constitutes, as he also admitted, professional misconduct as alleged in Ground 20, Count 1, of the Information.

Delay in complying with an undertaking to the Law Society

31 One of the firm’s matters investigated by Miss Sayer concerned a client called Peter Tsiamoulis. She stated in her report that in her opinion, after this matter had been concluded in June 1996, the firm remained under obligation to pay $240 to the Legal Aid Commission, by way of refund of part of an amount that the Commission had paid to the firm to meet an interpreter’s fees, and to pay $600 to Mr Phillip Bates of counsel as a fee for advice on a possible personal injury claim by Mr Tsiamoulis that had not in fact been pursued. Mr Bates had rendered an account dated 1 September 1993 and had asked again for payment in April 1994. Early in 1995, the firm had requested Mr Tsiamoulis to provide the funds to pay Mr Bates and had received from him payments totalling $600. Miss Sayer found that this amount formed part of a balance of $761.05 credited to Mr Tsiamoulis in the firm’s trust account as at 25 August 1997.

32 Miss Sayer also stated in her report that no form of accounting or bill of costs had ever been provided to Mr Tsiamoulis.

33 On 13 May 1998, the Solicitor swore a statutory declaration, which he sent to Law Society as his response to a notice under s 152 of the Act that had been served on him by the Society. In a section of the declaration headed ‘In the matter of Mr Tsiamoulis’, he expressed doubt as to whether any amount was in fact owed to the Legal Aid Commission. He pointed out that Mr Piperides had had the carriage of Mr Tsiamoulis’s affairs (an aspect of the matter that Miss Sayer had noted). He therefore could not ascertain whether the fee was in fact owing to Mr Bates, since if the claim on which Mr Bates had advised had been pursued unsuccessfully, no fee would have been payable. For the same reason, he said, he could not tell whether an accounting or bill of costs had ever been sent to Mr Tsiamoulis. He noted that at the time of the declaration an amount of $761.05 was credited to Mr Tsiamoulis in the firm’s trust account.

34 Later in this statutory declaration, however, the Solicitor stated:-

In relation to the monies not accounted to Legal Aid, I submit that there is ample monies left in trust to fully settle the account with Legal Aid. I respectfully that this matter not be referred and I hereby undertake to

(a) give the client a full account;

(b) settle Mr Bates account;

(c) settle account with Legal Aid;

(d) seek confirmation or otherwise from the client as to whether he had authorised the deposit into the office account.

35 It is this with this undertaking that the second count left for us to consider (Ground 2, Count 6) is concerned. It reads as follows:-

2. Peter Tsiamoulis…

6. The solicitor delayed until 15 August 2001 in complying with an undertaking furnished to the Society in his statutory declaration of 13 May 1998.

36 Paragraph 11 of the accompanying particulars, having stated that the Solicitor swore this declaration and furnished it to the Law Society, sets out the terms of his undertaking.

37 Paragraphs 12, 13 and 14 state that on 15 August 2001 the Solicitor complied with the undertaking. He made the promised payments to the Legal Aid Commission and Mr Bates and sent to Mr Tsiamoulis a trust account statement and a memorandum of costs and disbursements.

38 The Solicitor admitted that he did not take any of these steps before 15 August 2001.

39 We find that the conduct thus admitted by the Solicitor constitutes, as he also admitted, professional misconduct as alleged in Ground 2, Count 6, of the Information.

Matters relevant to penalty

40 Contravention of s 55(3). In an affidavit sworn on 7 May 2004 and in cross-examination, the Solicitor gave reasons for his delay in providing files and other documents to Miss Sayer. These were as follows: (a) that almost all of the matters concerned had been handled by Mr Piperides or by another employee of the firm, so that he himself had no personal knowledge of them; (b) that he had instructed Mr Piperides and Mr Karamihas, a manager employed by him, to attend to the task of complying with Miss Sayer’s requests; (c) that some of the files in question had been archived because the matters with which they dealt had been concluded for a significant period; (d) that due to major renovations of the premises that had been completed only recently, many of the firm’s files had been relocated, in some cases to temporary locations; and (e) that the firm’s file management system had serious deficiencies.

41 In cross-examination, the Solicitor asserted that he did all that he could on his own part to answer Miss Sayer’s requests. He acknowledged that compliance with these requests was his responsibility, even though he had asked other people within the firm to attend to it. He admitted to having failed on other occasions to comply with requests for information from the Law Society. He referred also to an affidavit that he had sworn for use in previous Tribunal proceedings that the Law Society had brought against him unsuccessfully for failure to provide information. In that affidavit, he had described such failure on his part as ‘profoundly remiss and foolish’ and ‘without excuse’.

42 Mr Walker submitted that these admissions by the Solicitor provided evidence of contrition on his part.

43 Delay in complying with an undertaking to the Law Society. In his affidavit of 7 May 2004 and in cross-examination, the Solicitor gave reasons for this delay, which spanned the period from May 1998 to August 2001. These were to the following effect: (a) that during this period, despite having searches conducted, he had not been able to locate the Tsiamoulis file; (b) that he ‘believed’ that ‘as a practical matter’, and in order to be ‘prudent’, he could not comply with the undertaking ‘wholly’ – which is what he wanted to do – unless he had this file in his possession (c) that, as he subsequently realised, the file had in fact been delivered to the Law Society in 1998 or 1999 and retained by it until October 2001; and (d) that due to a breakdown in relations with Mr Piperides, who had had carriage of the Tsiamoulis matter, he had not been able to ascertain the relevant facts from him.

44 In summary, the Solicitor’s position was that while he acknowledged considerable delay in complying with the undertaking, the payments to the Legal Aid Commission and to Mr Bates were in fact made as soon as he ‘practicably’ could make them.

45 During cross-examination, Mr Wales drew the Solicitor’s attention to a letter indicating that in June 1999 his solicitor in these proceedings, Mr T Williams, delivered the Tsiamoulis file to the Law Society. The Solicitor conceded that this showed that, at least for a period in mid-1999, Mr Williams held the file on his (the Solicitor’s) behalf.

46 We note also from the correspondence annexed to Miss Sayer’s report that this file had been delivered to her during her investigation and that she returned it to the Solicitor on 26 September 1997.

47 We record here a finding that, in so far as the Solicitor’s explanation for the delay was based on an alleged lack of access to the Tsiamoulis file, this was not borne out by the evidence.

48 Relevant case-law. No authorities on penalty were cited to us. We will refer to a few that in our view provide some assistance.

49 In factual terms, the case of Law Society of New South Wales v Green [2001] NSWADT 142 has some similarities to the present case. It involved professional misconduct by a solicitor, taking various forms. One was a failure, on one occasion, to supply information required by a trust account investigator, constituting a breach of s 55(3) of the Act – though not, it should be noted, of s 55(5), because the additional element implied by the words ‘hinder, obstruct or delay’ was not found to be present. There was a single failure also to supply information required in a notice served by the Law Society under s 152 of the Act. In addition, the solicitor was found in a particular matter to have failed to pay counsel’s fees for a period of about three years and to have wilfully breached of s 61 of the Act through paying a cheque received from his client into his office account when it was required to have been paid into his trust account. The Tribunal held that he had a bona fide, though misconceived, belief that in the particular circumstances he was not required to pay this cheque into his trust account, and took account of this factor in determining penalty. It also took account of his ‘apparently modest circumstances’.

50 The orders made by the Tribunal were that the solicitor (a) be publicly reprimanded; (b) pay a fine of $1,000; (c) submit to inspection of his practice at three monthly intervals over a period of 12 months from his recommencing in practice; (d) complete a practice management course; and (e) pay the Law Society’s costs. These orders were confirmed on appeal (Green v Law Society of New South Wales [2002] NSWADTAP 8).

51 The Tribunal’s judgment in Law Society of New South Wales v Cunningham [2003] NSWADT 138 contains at [13] a useful summary of six cases decided in or since 2000 (including Green) in which legal practitioners have been found to have committed professional misconduct by failing on one or more occasions to supply information required in a notice served under s 152 of the Act. This form of misconduct resembles contravention of s 55(3) in that it is also constituted by a failure to render assistance, when required, to the conduct of an official investigation of what might prove to have been improper or unsatisfactory conduct by the practitioner concerned. In the cases mentioned in Cunningham, the fines imposed by the Tribunal ranged from $1,000 to $4,500 and on every occasion the practitioner was also publicly reprimanded.

52 We have not been able to locate any case in which breach of, or delay in complying with, an undertaking to the Law Society, or indeed the Bar Association, has been the basis of a finding of professional misconduct or unsatisfactory professional conduct. In a line of cases dealing with breaches of undertakings to fellow-practitioners, the very great importance of strict compliance has been regularly emphasised. In one such case recently before the Tribunal, Law Society of New South Wales v Martin [2002] NSWADT 27, the respondent practitioner, having been found to have committed professional misconduct, was reprimanded and ordered to pay $1,000 on account of costs.

53 Previous finding of misconduct by the Solicitor. We were advised that since being admitted to practice in 1983, the Solicitor has been involved in disciplinary proceedings on one previous occasion. In 1992, the Legal Services Tribunal made a finding of professional misconduct against him (In the matter of Simon Konstantinidis (1993) 1 LPDR 3).

54 The grounds were (a) that the Solicitor had signed his name on six documents (which related to a mortgage and accompanying guarantee) as witness to the signatures of the wife of one of his clients, when the wife had not in fact signed the documents and (b) that he had falsely certified that, as the solicitor for this party, he had explained the nature of these documents to her. The documents had been presented to him for signature by a trusted senior clerk within his firm, who was handling the matter. The wife’s signatures had in fact been forged by her husband, who had exerted considerable pressure on the Solicitor to sign the documents and provide the certificate as a matter of urgency. The consequences were, amongst other things, that the wife was compelled to set aside a judgment obtained against her by the lender and to defend those proceedings, and had instituted her own proceedings against the Solicitor.

55 The Tribunal found that these actions amounted to professional misconduct. In the Solicitor’s favour, it took account of the following considerations: (a) that he had acted in the pressure the moment in order to relieve himself of a persistent client; (b) that he had not realised what the documents were and what might be the consequences of his signing them; (c) that he had accepted responsibility for his actions and shown genuine contrition; (d) that he was ‘substantially out of pocket’, since he had ‘made restitution’ and was still facing proceedings by the wife; and (e) that he was otherwise of excellent character and had a good reputation for honesty, reliability and attention to detail within the profession.

56 The Tribunal ordered that the Solicitor pay a fine of $4,000, together with the costs of the Law Society.

57 The financial implications of these proceedings for the Solicitor. The Solicitor testified that the costs of Miss Sayer’s report, which he had paid, had come to $38,300. He estimated that, taking this payment into account, he had incurred costs and expenses totalling $300,000 in connection with the present proceedings and with the accompanying information against him that we have called ‘the s 152 Information’ (see [6] above). This estimated figure did not include the amount of $65,000 plus GST on account of costs that he would be required to pay to the Law Society pursuant to the orders that both parties have asked us to make in these proceedings.

58 Despite having incurred these costs and expenses, the Solicitor did not claim that he was presently in straitened financial circumstances.

59 Submissions on behalf of the parties. In brief oral submissions, Mr Walker and Mr Wales both argued that this was not a case of present unfitness to practise and that there was therefore no reason for us to consider ordering that the Solicitor’s name be removed from the roll. They also submitted that an order imposing supervision or any other restriction on the Solicitor’s practice, or requiring the completion of a further course of education, would not be appropriate. They agreed that we should take into account the large amount of costs and expenses already incurred by the Solicitor and the amount still to be paid by him towards the Law Society’s costs.

60 Mr Wales submitted that a fine and/or a reprimand constituted the appropriate penalty. He argued that the penalty imposed should have a significant deterrent element, since compliance with s 55 of the Act and with undertakings given in the course of practice was a matter of great importance within the legal profession.

61 While agreeing that compliance with these obligations is indeed of great importance, Mr Walker argued that under s 171C(1) of the Act we were not bound to impose any penalty at all. We might consider that our findings of professional misconduct against the Solicitor would convey sufficient disapprobation of his conduct. Any fine that we imposed should, he said, be a ‘modest’ one. He urged us to take account both of the degree of contrition shown by the Solicitor when cross-examined on his admitted misconduct and of the damage that the lengthy investigation conducted by the Law Society had caused to his professional life and his personal circumstances.

Our conclusions

62 We accept the submission put on behalf of both parties that, having regard to all the circumstances, any penalty that we impose under s 171C(1) of the Act should take the form of a fine and/or a reprimand.

63 We do not accept Mr Walker’s submission that because our findings of professional misconduct would sufficiently convey the Tribunal’s disapprobation of the Solicitor’s behaviour we need not make any order under s 171C(1). In our opinion, such a limited response would be in conflict with the proposition, which Mr Walker endorsed, that compliance by a legal practitioner with the requirements of s 55 of the Act and with undertakings given in the course of practice is a matter of great importance. It would also be at odds with the approach taken in the decisions that we have referred to at [48 – 51] above, dealing with the imposition of penalties for breaches of the obligations imposed by s 55(3) or by s 152, and with breaches of undertakings. In none of them was the disapprobation conveyed by a finding of professional misconduct considered by itself to be a sufficient sanction.

64 A further reason why in our opinion the option of making no order under s 171C(1) is not open to us is that, in relation to the Solicitor’s delay in complying with his undertaking to the Law Society, his attitude during cross-examination was not one of contrition. He was mainly concerned to make the argument that for so long as he did not have the relevant client file before him he should not be expected to make the payments to the Legal Aid Commission and to a barrister that he had unconditionally undertaken to make. Furthermore, as we have pointed out, his assertion that this file was not in the firm’s office or otherwise accessible to him during the period of his delay in complying was clearly proved incorrect by the correspondence between Miss Sayer and his firm and, subsequently, between his solicitor, Mr Williams, and the Law Society.

65 For these reasons, the Solicitor’s claim that he complied with the undertaking as soon as he practicably could neither showed contrition nor, indeed, was borne out by the evidence.

66 The Solicitor’s evidence relating to his contravention of s 55(3) of the Act showed greater awareness of the impropriety of such conduct. But even in this connection, his most explicit acknowledgment of wrongdoing was not made during these proceedings but in an affidavit filed in the Tribunal in earlier proceedings alleging breach of s 152 (see [41] above).

67 We agree with counsel on both sides that the other considerations urged on us should indeed be taken into account. In this connection, we refer particularly to (a) the earlier instance of misconduct established against the Solicitor; (b) the fact, however, that there has been only one such instance in more than 20 years of practice; and (c) the damage – financial, professional and personal – caused to him by the very lengthy investigation of his affairs conducted by the Law Society.

68 In determining penalty, we note, but do not place great weight on, the terms of the agreement that has been reached in relation to payment of the costs of these proceedings. In this connection, we note also that our decision to dismiss the s 152 Information was taken into account by the parties in reaching that agreement.

69 In our opinion, the orders that we should make under s 171C(1) of the Act with respect to these instances of professional misconduct are that the Solicitor should be publicly reprimanded and should pay a fine of $5,000. He should also pay costs of the Law Society according to the terms put before us in the joint submission of the parties.

Our findings and orders

70 Having by our order of 25 February 2005 dismissed all counts contained in the Information except Ground 2, Count 6 (delay in complying with an undertaking to the Law Society) and Ground 20, Count 1 (contravention of s 55(3) of the Act), we now find that the Solicitor to have been guilty of professional misconduct under each of these counts.

71 Having so found, we make the following orders:-

1. That the Solicitor be publicly reprimanded.

2. That the Solicitor pay a fine of $5,000 within three months of the date of these orders, and that if the fine be not paid within that time his practising certificate is to be cancelled and no further certificate is to be issued until it is paid.

3. That the Solicitor pay to the Law Society the sum of $65,000 plus GST on account of its costs, to be paid in four equal half-yearly instalments, with the first instalment to be paid six months after the date of these orders.

72 We direct the Registry to publish Order 1, publicly reprimanding the Solicitor, and a statement of the Tribunal’s reasons for making this Order, pursuant to s 171C(3) of the Legal Profession Act 1987.