Law Society of New South Wales v Pearson

[2005] NSWADT 206

CITATION:	Law Society of New South Wales v Pearson [2005] NSWADT 206
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Scott Malcolm Pearson
FILE NUMBER:	052006
HEARING DATES:	17/06/2005
SUBMISSIONS CLOSED:	06/17/2005
DATE OF DECISION:	09/01/2005
BEFORE:	Brennan JWF - Judicial Member; Durbach A - Judicial Member; Mara A - Non Judicial Member
APPLICATION:	Professional Misconduct - delay - Professional Misconduct - fail to bring claim within limitation period - Professional Misconduct - fail to carry out instructions - Professional Misconduct - fail to communicate - Professional Misconduct - give unethical advice - Professional Misconduct - mislead client
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Allinson v General Council of Medical Education & Registration [1894] QBD 750 Clyne v NSW Bar Association [1960] 104 CLR 186 Kennedy v The Council of the Incorporated Law Institute of New South Wales [1940] ALJ 563 Law Society of NSW v Bannister [1990] NSW LST 7 Law Society of NSW v Bannister [1993] 4LPDR 6 Law Society of NSW v Berry [2005] NSW ADT 46 Law Society of NSW v Ciampa [1997] NSW ADT 13 Law Society of NSW v Foreman [1994] 34 NSWLR 408 New South Wales Bar Association v Evatt [1968] 117 CRL 177 New South Wales Bar Association v Hamman [1999] NSWCA 404 Re a Practitioner [1984] 36 SA SR 590 Ziems v The Prothonotary of the Supreme Court of NSW [1957] 97 CLR 279
REPRESENTATION:	APPLICANT P Boyd, Solicitor RESPONDENT J Maxwell, Solicitor
ORDERS:	1. That the Practitioner’s practising certificate be cancelled at the expiration of one month from the date of these orders and that a practising certificate not be issued to the Practitioner until the expiration of thirteen months from the date of these orders; 2. That the Practitioner be publicly reprimanded; 3. That the Practitioner pay a fine of $3,000.00 by 3 instalments each of $1,000.00 to be paid respectively on or before 1 December 2006, 1 June 2007 and 1 December 2007 provided that in the event that any such instalment payment is not made on or before the date fixed for payment the balance of the fine of $3,000.00 then unpaid shall become payable in full and the practising certificate of the Practitioner shall be cancelled until the fine shall have been paid in full; 4. That the Practitioner pay the costs of the Law Society of and incidental to these proceedings as agreed in the sum of $3,000.00 within 18 months of the date of these orders; 5. The application for a compensation order made Imelda Lines on behalf of herself and her daughters Bernadette Lines and Majella Lines is stood over generally and may be restored to the list by any one or more of the said Imelda Lines, the said Bernadette Lines the said Majella Lines and the Practitioner on one month’s written notice to the Registrar and to the Practitioner (or if the notice is given by the Practitioner then to the Registrar and each of the three applicants) provided that the right of the Practitioner to restore this application for compensation to the list may not be exercised until after 1 September 2006

1 By information filed in the Tribunal on 4 March 2005 the Council of the Law Society 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 Scott Malcolm Pearson (“the Practitioner”) a legal practitioner within the meaning of s128 of the Act, the Council claims that the Practitioner while practising as a solicitor was guilty of professional misconduct.

2 The grounds for complaint were:

A. As to the motor vehicle accident claim by Bernadette Lines

1. The legal practitioner failed to bring the clients claim to Court within the limitation period

2. The legal practitioner gave false and misleading advice

3. The legal practitioner failed to carry out instructions

B. As to the workers compensation claim by Majella Lines

1. The legal practitioner failed to communicate

C. As to the claim by Imelda Lines against Richards

1. The legal practitioner delayed in prosecuting the claim

2. The legal practitioner failed to communicate

D. As to the claim by Imelda Lines against Inverell Bowling Club

1. The legal practitioner delayed in pursuing the claim

2. The legal practitioner failed to communicate

E. As to the conveyance of Inverell property to Bernadette & Majella Lines

The legal practitioner unethically advised Bernadette Lines that her personal injury claim would successfully conclude within 18 months from May 2001 based on which Bernadette Lines and her sister Majella purchased a property with vendor finance relying on those settlement monies to pay for that purchase.

3 The Information also noted:

Mrs Imelda Lines (on behalf of herself and her daughters) the complainant claims to be entitled to an order for compensation under s.171D of the Act against the legal practitioner.

4 The Society sought the following orders:

1. That the practitioner be publicly reprimanded

2. That the practitioner be ordered to pay the Society’s costs.

5 The Information further disclosed in its schedules that:

Mrs Lines claims compensation on behalf of her daughters. Precise details are not presently available and will be furnished in due course.

6 On 5 April 2005 the Practitioner filed a reply in which he:

a) Admitted the allegation and particulars in relation to the first complaint;

b) Admitted the allegations in the second third and fourth complaints; and

c) Asserted in relation to the fifth complaint that he advised Bernadette Lines in the manner referred to in the allegation but says that such advice was given in good faith at the time and was not unethical. The Practitioner did admit that he was responsible for delays in relation to the personal injury claim.

7 On 6 May 2005 the Practitioner filed in these proceedings an Affidavit which he had sworn four days earlier. The Affidavit detailed various factual matters in relation to his personal and professional background and the adverse impact of these complaints and his conduct upon his professional life and future plans but did not address any of the facts which gave rise to the complaints, nor offer any explanation for his misconduct.

8 The Tribunal at the commencement of the hearing indicated to the legal representatives of the parties a concern that while the Society sought by way of disciplinary order a public reprimand and no other order than an order for costs, the facts alleged and the admissions made could lead the Tribunal to consider other, more serious, orders. The Tribunal indicated that if it was established that professional misconduct had occurred, the disciplinary orders which the Tribunal would have to consider in the exercise of its responsibilities under s171C of the Legal Profession Act might properly extend to orders that were more severe on the Practitioner than a public reprimand.

9 Mr Maxwell on behalf of the Practitioner was offered an adjournment to consider the matter and, if necessary, to obtain further evidence in the Practitioner’s interest. After a short adjournment Mr Maxwell indicated that the Practitioner wished to proceed and the hearing continued.

10 The Tribunal was aware from the Practitioner’s Affidavit sworn 2 May 2005 of his appreciation of the seriousness of the complaints and their possible consequences. In paragraph 6 of that Affidavit he stated:

I was also mindful of these proceedings and did not want to commit myself to entering into the partnership when there was a possibility of me losing my right to practise.

11 In paragraph 13 he said:

Because of the complaint by Mrs Lines which was first made in October 2001 I have been uncertain about my future until the matter was dealt with by the Administrative Decisions Tribunal and have been unable to make any firm plans or take any different career decisions.

12 The client was injured on 9 March 1996, the Practitioner was instructed on 15 April 1996 to act on her behalf and those instructions were confirmed in a conference on 8 May 1996. Some correspondence ensued with the insurer who admitted liability on 29 January 1997 though it reserved its rights if proceedings were not commenced within the statutory period. The client’s injuries did not stabilise for a time so on 11 June 1998 the Practitioner advised the insurer he was obtaining an updated orthopaedic report and upon receipt of the report would be in a position to make a settlement offer. This process was repeated on 23 September 1998. The Practitioner obtained two reports but there was no indication that these were ever sent to the insurer. At the end of 1998 the Practitioner informed the client that her case would be heard in February 1999 but notwithstanding that no Statement of Claim was filed within time, or at all, by the Practitioner.

13 In August 1999 the Practitioner informed the client’s mother in a conference that her daughter would be expected to receive $250,000.00 for her claim and he had put that offer to the insurer but had received a counter-offer of $30,000.00 and advised that matter would proceed to Court.

14 On 17 January 2000 Centrelink sought information from the Practitioner in relation to the claim and its progress. On 27 March 2000 the client attended RNSH Pain Clinic and the account for that service was sent to the insurer. In response to advice she had received, the client’s mother met the Practitioner at Court during a luncheon break at which interview the Practitioner advised he would telephone Centrelink and write to the insurer but he failed to do this.

15 Suncorp, the insurer, on 13 December 2000 incorrectly advised Northern Sydney Health that the claim had been settled and that statement was referred to the client. The solicitor was instructed to advise the insurer of this error but he failed to do so. After further correspondence the client’s mother went to see the Practitioner and instructed him to contact Northern Sydney Health, which he failed to do. The Practitioner had requested the client to see a psychologist and she did this on 1 August 2001. On 19 September 2001 the client and her mother travelled to Warialda to see the Practitioner who advised them that a Statement of Claim had been filed and the claim would be heard in Moree in the week commencing 15 October 2001. The client’s mother contacted the Practitioner’s then Partner on 9 October 2001 and he on 7 November 2001 advised the client’s mother that the time limit on the claim had expired. The Partner, on 5 April 2002, filed a Notice of Motion in the District Court seeking leave to commence the client’s claim out of time and on 3 October 2002 the application was dismissed on the basis that the Court was not satisfied that the total damages likely to be awarded were unlikely to meet the statutory threshold. Indemnity costs were awarded against the partnership of the Practitioner’s firm as at the date instructions were taken in April 1996.

16 In response to a s152 Notice issued by the Society the Practitioner swore a Statutory Declaration on 8 August 2003 (“the Declaration”) which was annexed to the Affidavit of Raymond John Collins of 2 March 2005. In the Declaration the Practitioner admitted the matters alleged in relation to these three complaints in ground 1. Under cross-examination he accepted that he had prepared a draft Statement of Claim, a draft Part 12 statement and a draft schedule of documents. He acknowledged that the Statement of Claim was never filed. He also acknowledged telling the client or her mother that the matter was going to be heard in the District Court and that he understood that acting on his advice the client proceeded with the purchase of a property the clear implication from this and other evidence being that from the proceeds of the injury claim the client would be able to discharge her mortgage borrowings.

17 The Information alleges that the conduct of the Practitioner complained of amounted to professional misconduct. Section 127(1) of the Act contains a non-exclusive definition of that term as follows:

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

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

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

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

18 In relation to the first count, which contains three separate though connected allegations, the Tribunal’s view is that the misconduct in relation to the matter constitutes professional misconduct at common law. The Tribunal is satisfied that the misconduct in this matter comes within the often quoted definitions of professional misconduct which have stood the test of time and been applied in numerous instances over the years. In particular the Tribunal refers to Allinson v General Council of Medical Education and Registration [1894] QBD 750 at 763 where Lopes LJ said:

It is important to consider what is meant by ‘infamous conduct in a professional respect’. The Master of the Rolls has adopted a definition which, with his assistance and that of my brother Davey, I prepared. I will read it again: ‘If it be shewn 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 conduct in a professional respect’.

19 In Kennedy v the Council of Incorporated Law Institute of New South Wales [1940] ALJ 563 Rich J at 563 stated:

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 or the public. The particular transaction the subject of 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, was to be reached by general survey of the whole transaction.

20 The facts alleged have been proved to the Tribunal’s reasonable satisfaction and are admitted. The Tribunal is comfortable that applying the concepts in Allinson and Kennedy (supra) that the complaints arising out of the Practitioner’s handling of the Bernadette Lines matter are proved and together constitute professional misconduct. The conduct complained of in each of the itemised complaints is serious. The Tribunal will deal with the matters raised in mitigation at the one time later in this decision but while a “head in the sand” attitude may explain, but certainly not excuse, inaction no such issue can arise where an issue of false and misleading advice is admitted, as is the situation here.

The Second Complaint:

21 The Practitioner’s client referred to in this complaint was Magella Lines who sustained injuries whilst employed by Northhaven Pty Limited on 15 December 1997. She instructed the Practitioner on 14 January 1998 and on 12 July 1998 he wrote to a doctor confirming arrangements for a medical examination and subsequently paid for a report which was released to him. The report suggested that a nerve conduction study be carried out and the Practitioner wrote to a Dr Stening on 31 May 1999 requesting the examination and agreeing to meet the fees. The Practitioner’s file did not indicate whether the report fee was paid or the report ever received.

22 The Practitioner did arrange for the client to attend on Dr Dybald on 7 October 1999 for the purpose of further examination and undertook to meet the costs of that examination but the file failed to indicate whether the examination occurred and whether or not a report was received. The Practitioner took no further action on the matter and failed to communicate with the client or her mother about the matter.

23 In the Declaration the Practitioner admitted the matter did not receive proper attention and that he failed to communicate with his client or her mother. Under cross-examination the Practitioner asserted that when he saw his client on 4 April 1998 he thought she could have received some workers’ compensation.

24 “Unsatisfactory professional conduct” in terms of the non-exclusive definition of that term in s127(2) of the Legal Profession Act 1987 is as follows:

2. For the purposes of this Part:

unsatisfactory professional conduct” includes conduct (whether consisting of an act or omission) occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.

25 The Tribunal is comfortably satisfied that the facts alleged are established. The failure to communicate in this instance and in the circumstances which shall be dealt with subsequently in relation to mitigation constitutes by itself unsatisfactory professional conduct and the Tribunal so finds that the complaint is established.

The Third Complaint:

26 This complaint involved two grounds being delay in prosecuting a claim and failure to communicate in relation to a claim by Imelda Lines against Richards.

27 On 5 August 1999 the Practitioner received instructions from his client in relation to the three accidents she sustained on the property of Mr and Mrs Richards while attending to their dogs some time in the previous year. The Practitioner wrote a letter to Mr and Mrs Richards and sought a report from Dr Dybald but otherwise took no further action on the claims which in due course became statute barred. In his Declaration the Practitioner admitted the allegations.

28 There is no evidence of the merits of these three personal injury claims before the Tribunal and there is no specific explanation offered by the Practitioner for his inaction in relation to this matter. The result ultimately was that three injury claims of unknown merit became statute barred by reason of the Practitioner’s default without any explanation. He failed to prosecute the claim and failed to communicate with his client. This client was a member of the family involved in all of these complaints. Basic professional standards require that Practitioners keep track of their instructions and keep their files active. Perhaps a situation may arise where a file is lost or not recorded through clerical error but, whatever the outcome is in that type of situation, the client Imelda Lines was one who at this time was a member of a family that was constantly in professional contact with the Practitioner.

29 The misconduct in relation to this client falls within Kennedy concept of the description of professional misconduct referred to in paragraph 16 above. The Tribunal finds that the two separate allegations are proved and that together they establish professional misconduct on the part of the Practitioner.

Complaints in relation to Imelda Lines and Inverell Bowling Club.

30 There are two complaints under this heading namely delay in pursuing the claim and failure to communicate.

31 On 8 January 1999 the client sustained injury at Inverell Bowling Club and informed the Practitioner of this three days later. On 17 February 1999 she provided full instructions to the Practitioner who on 3 September 1999 wrote to the manager of the Club. At that time he advised the manager of the injury and that when his client’s injuries had stabilised he would contact the manager again.

32 On 20 September 1999 an insurance company wrote to the Practitioner seeking information about the accident and they wrote to him again on 13 March 2000 seeking a response. The client wrote to the Practitioner on 20 November 2000 seeking an urgent Court date but the Practitioner took no further action. The delay in prosecuting the claim and the failure to communicate are admitted in the Statutory Declaration.

33 The factual matters in support of these complaints have been proved and the Tribunal finds that the grounds of complaint are established. The behaviour by the Practitioner constitutes in the finding of the Tribunal unsatisfactory professional conduct within the meaning of s127(2) of the Act and the Tribunal finds accordingly.

Conveyance of Inverell Property to Bernadette and Majella Lines:

34 In December 2000 the Practitioner received instructions from Mrs Lines to act on the purchase of a property in Inverell in the names of her daughters, Bernadette and Majella. The sales advice provided for vendor finance for a maximum period of eighteen months with the purchase to be completed “upon receipt of funds from ongoing claims” which was clearly a reference to the pending personal injury claims. The Practitioner’s firm exchanged Contracts on the purchase on 13 March 2001 and on 4 April 2001 the Practitioner met the purchasers and their mother at Warialda to advise them and to witness the execution of the mortgage being entered into by Bernadette and Majella. The purchase was settled on 1 May 2001 and the settlement was reported to the purchasers by letter of 11 May 2001.

35 The whole purchase was prefaced on the pending successful outcome of personal injury claims. The mortgage included a clause in the following terms:

Notwithstanding Clause 3(i), the mortgagee shall have the right to call upon the earlier payment of the principal sum if the mortgagors or either of them receive the proceeds of personal injury compensation claims made by them. The mortgagors shall give the mortgagee written notice of the receipt of any proceeds of the claim made by them.

36 At the time of these events the personal injury claim by Bernadette Lines was already statute barred.

37 In the Statutory Declaration the Practitioner conceded that he had advised Mrs Lines that her daughter Bernadette’s personal injury claim would be resolved in the eighteen month period. He offered no explanation apart from the matters in mitigation dealt with elsewhere in the decision and which related to his conduct generally.

38 An Affidavit sworn 16 May 2002 by Daniel Francis Butt a former Partner of the Practitioner was admitted into evidence at the request of the Society. Mr Butt deposed to acting on the conveyance in this matter after being told by the Practitioner the situation in approximately the following terms:

Both Bernadette and Majella have personal injury claims and the principal sum of $90,000 will be paid from the proceeds of those claims.

39 Mr Butt recalled a further conversation to the following effect:

Butt: “Are you sure that you will receive sufficient money to pay the principal sum?”

Pearson: “Yes, I am.”

Butt: “And they will have the money within eighteen months?”

Pearson: “Yes, Bernadette’s claim is listed at the next sitting of the District Court. Eighteen months is more than enough time.”

40 The Practitioner did not recall the conversation with Mr Butt but said:

I have no reason to doubt what Mr Butt has to say.

41 In the view of the Tribunal there can be no question that the conduct of the Practitioner in this matter is totally reprehensible. Not only did he take part in the conveyancing transaction by receiving instructions and hand them to his Partner to act but in the knowledge that proceedings had not been instituted he created one hearing date that was nothing more than a figment of his imagination. He also allowed his clients to sign a mortgage which he witnessed which put them in an invidious position of owning a home with a short-term mortgage that, from the evidence before us, could not be repaid within the eighteen month term from at least one source which they were falsely led to believe would be available. This indeed is conduct “which could be reasonably regarded as disgraceful, or dishonourable by his professional brethren of good repute and competency” to quote once more from Lopes LJ in Allinson (supra).

42 The Tribunal finds the facts alleged are proved to its reasonable satisfaction, that those facts establish misconduct by the Practitioner and that this misconduct amounts to professional misconduct in the Allinson senses of being both “disgraceful” and “dishonourable”.

Summary of findings:

43 On the five matters which are the subject of complaint the Tribunal has made findings of professional misconduct in relation to three of those complaints and unsatisfactory professional conduct on the remaining two matters. The Tribunal holds that in relation to the two complaints on which findings of unsatisfactory professional conduct have been made that the conduct in those two matters was of such a nature that it involved both a substantial and a consistent failure by the Practitioner to reach reasonable standards of competence and diligence. The impact of those two findings when put together is sufficient in the Tribunal’s view to amply establish a further finding of professional misconduct against the Practitioner.

44 Accordingly, the impact of the Tribunal’s findings is that in relation to the first three grounds of complaint (items A, B and C in paragraph 2 above) there are separate findings of professional misconduct against the Practitioner. In relation to the remaining two complaints (items D and E in paragraph 2 above) the unsatisfactory professional conduct of the Practitioner in the totality of those two complaints is sufficient to amply establish and ground a fourth finding of professional misconduct against the Practitioner (in lieu of the two separate findings of unsatisfactory professional conduct).

The Tribunal’s duties under s171C:

45 In the Information the Society sought that the Practitioner be publicly reprimanded and that he pay the Society’s costs. S171C lists a wide range of orders that the Tribunal may make. That list is prefaced by the following:

(1) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct, the Tribunal may do any one or more of the following: …

46 The Tribunal is of the view that this provision of the Act imposes a responsibility on the Tribunal to make such one or more orders from the list contained in the section as it regards as being appropriate in all the circumstances of the conduct which gave rise to the complaint or complaints in question. The section does not make reference to the orders sought at the time the complaint was filed nor indeed the orders proposed in the investigative process nor the orders sought in addresses by Counsel for the complainant. The Tribunal takes the view that its duty is to make an order within the range of orders prescribed under s171C but that it is not inhibited in making those orders by the terms of orders detailed in the information and sought by the complainant.

47 In Law Society of NSW v Bannister [1990] NSW LST 7 in which the complainant Law Society sought (at 8) “such orders pursuant to s163 of the Legal Practitioners Act 1987 and such further or other orders as the Tribunal shall consider appropriate and an order for costs” the Tribunal in its reasons said at 9:

Where misconduct is established the task for the professional Tribunal is to determine whether it indicates unfitness or is more properly to be treated as an isolated or passing departure from proper professional standards amounting to something less than proved unfitness.

48 The Tribunal members in Bannister were initially divided in their opinion and ultimately they made no order for a strike-off or suspension but instead a fine of $10,000 was imposed and costs were ordered against the Practitioner.

49 On appeal in Law Society of NSW v Bannister in the Court of Appeal [1993] 4LPDR 6 the Judgment in the Court of Appeal was delivered by Sheller JA who at 12 said:

In its grounds of appeal the Law Society claimed amongst other things, that the Tribunal had erred in finding that the solicitor was fit to continue to practise as a solicitor of the Supreme Court of New South Wales and sought an order that his name be removed from the Roll of the Solicitors of the Court. This approach is different from that taken by Counsel for the Law Society at the hearing before the Tribunal ...

50 At 17, Sheller JA said:

In my opinion the Court should now make the order that the Tribunal should have made …

On more than one occasion during submissions to the Tribunal its (i.e. the Law Society’s) Counsel indicated that the Law Society left it to the Tribunal to decide whether the Solicitor was unfit and whether or not his name should be removed from the Roll. At no stage did Counsel urge or even suggest that on the evidence the Tribunal was bound to order that the solicitor’s name be removed from the roll. Accordingly, it seems surprising that the Law Society should now argue that the Tribunal erred in adopting a choice that the Law Society left open to it at the hearing.

However since, in my opinion protection of the public in the manner I have described required that the Solicitor’s name be removed from the Roll I accept that, whatever attitude was taken by the Law Society at the hearing before the Tribunal, it acted correctly in prosecuting this appeal.

51 The outcome was that Bannister was struck off.

52 The Tribunal accepts that the orders sought by the complainant in Bannister before the Tribunal were in general terms. This certainly did not incorporate the strike-off order that the Court of Appeal ultimately found was appropriate. The Court of Appeal’s decision is not on the precise issue of the orders sought in the Information but it extends in the view of this Tribunal to cover orders found appropriate by the Tribunal at least beyond the seriousness of the orders argued in submissions by the complainant.

53 The Tribunal itself has taken the matter further in subsequent decisions. In Law Society of NSW v Ciampa [1997] NSW ADT 13 the Law Society sought that the solicitor be reprimanded and that a substantial monetary penalty be imposed. The Society also sought an order for costs.

54 In its reasons the Tribunal said at 60:

The Tribunal is of the opinion that the orders sought by the Society that the solicitor be reprimanded and a substantial monetary penalty be imposed fall short of orders that adequately protect the public. An order is needed to deter the solicitor from repeating the misconduct and also deter others who might be tempted to fall short of the high standards required of them by acting as solicitors without the appropriate practising certificates. Whilst it is not known whether the solicitor intends to resume his career as a solicitor, nevertheless the Tribunal is of the opinion that there should be a period of time during which the solicitor is suspended from holding a practising certificate.

55 In Ciampa the Tribunal ordered:

i. Reprimand;

ii. A fine of $10,000;

iii. That no practising certificate be issued to the practitioner until three years from the date of order; and

iv. Costs.

56 The Tribunal places reliance in coming to its decision as to its jurisdiction on the decision in Ciampa and also in the recent decision of Law Society of NSW v Berry [2005] NSW ADT 46. In Berry the complainant Society sought a reprimand, a fine and costs order. At 6 the Tribunal stated in its reasons:

At the end of the solicitor’s oral evidence, the Society pressed its application for reprimand, fine and costs. However, we, in the execution of our clearly established protective function, indicated our preliminary view that the solicitor’s right to practise was in issue. Further, we raised, we trust sufficiently clearly, the prospect of a supervision regime or mentoring order pursuant to s171C(2)(b) and adjourned the matter ….

57 At 10 the Tribunal concluded:

All of the evidence considered, we are not satisfied to the requisite standard that the solicitor is, at this time, a person who is fit to practise.

58 The Tribunal ordered that the practitioner Berry be struck off.

59 Taking into account the provisions of s171C and the decisions in Bannister, Ciampa and Berry (supra) the Tribunal holds that it is empowered under s171C and indeed has a duty under that section to consider the appropriate disciplinary orders to be made without being limited to the range of orders sought by the complainant in the Information. In this matter four findings of professional misconduct have been made and taking into account the gravity of the misconduct and the potential it had for devastating the lives of the clients involved the Tribunal takes the view that it would be failing in its protective duty were it to simply to issue a reprimand in this matter. The Tribunal is of the view that a more salutary outcome is appropriate to protect the public interest and to endeavour to ensure that this Practitioner does not offend again.

Practitioner’s background:

60 In the Declaration the Practitioner deposed to having been born on 23 November 1962, being married with two small children and that his wife is a qualified solicitor. At the time of the Declaration she was working part time four days a week to support the family who lived in a home owned by her on the Gold Coast. At the time of the misconduct the Practitioner was a Partner in a firm which had offices in Moree, Warialda and Inverell and a visited office at Bingara. He also travelled to Court at Mungindi, Narrabri, Bogabilla, Walgett and Lightning Ridge. In June 2001 the Practitioner and his wife elected to return to the Gold Coast and in October 2001 he sold his share in the practice. The complaint of Mrs Lines to the Legal Services Commissioner was made on 24 October 2001 and that followed a letter of Imelda Lines to the Practitioner dated 10 October 2001 in which she set out in detail a number of matters that he had failed to attend to. In the period of approximately two years between his leaving Moree and swearing the Declaration the Practitioner worked as a locum in Sydney and Northern New South Wales and in his Affidavit he expanded on those engagements which appear to have covered:

(a) Six weeks’ work as a locum in Windsor in late 2001;

(b) A period of unemployment until January 2002 when he obtained locum work at Parramatta for six or eight weeks;

(c) that was followed by six weeks’ locum work in Ballina; and

(d) he then went to work on the Gold Coast and was in continuous employment from May 2002 until November 2004.

61 He deposes to becoming disillusioned with the practise of Law in the latter part of 2004 and proposed with family members to purchase a retail carpet business on the Gold Coast but that did not proceed .The Practitioner had employment for three weeks as a locum on the Gold Coast and a further four weeks was scheduled for locum work in Queensland in July 2005 after which he proposed to seek full time work as an employed solicitor or seek to establish his own practice on the Gold Coast.

Practitioner’s evidence

62 In his evidence in chief the Practitioner described his conduct and reactions in terms which may be summarised in the Tribunal’s view as follows:

I don’t know how to describe it, abysmal, highly unprofessional, disgraceful. I can’t resile from any of that. I am mortified. I always wanted to be a lawyer. I think I’m a good lawyer. I have had major problems with my family because of this and lost some of my best friends because of this. My wife and I have had to dramatically alter our lifestyle. I’ve been through an awful lot of problems. I don’t try to resile from the fact that I am the one cause of these problems. I have to deal with that and have to accept what punishment the Tribunal thinks is appropriate.

63 Further cross-examination was mainly directed to specific misconduct but the Tribunal has noted that the Practitioner’s answers and demeanour in relation to the signature of the mortgage by Bernadette Lines in his presence did not reflect the contrition and appreciation of his error which appeared to flow from his evidence in chief:-

Q. ”The Bernadette Lines claim – when exchange occurred two years had elapsed by the time Contract had exchanged?”

A. “Yes.”

Q. “And at that stage you had done nothing about lodging a claim in the District Court?”

A. “No, I had not.”

Q. “And hadn’t told Bernadette that you had not done so?”

A. “No, I had not.”

Q. “Yet you witnessed her signature at page 8?”

A. “Yes, I did.”

Q. “You told the Tribunal you thought that she would receive compensation?”

A. “I made a major error of judgement.”

64 In the Declaration the Practitioner deposed to having at least 220 to 250 live files at all times while he was in Moree and that he and his Partners all worked extremely long hours, including weekend work. He asserted that his Partners were not particularly supportive and that after the birth of their first child in February 2000 he and his wife found it difficult to cope with the child and their working commitments. He complained of living under stress and feeling that his wife had some form of post-natal depression and that there was a stage “where I was only doing the absolute urgent things and putting everything else off, especially any difficult matters. Mrs Lines’ matter certainly fitted in that category.” He then diagnosed himself as suffering from depression as a result of the stress he experienced and has said he became very ineffective in the office. This is from the terms of his Affidavit being after February 2000 and that should be read, for what it is worth , in conjunction with the dates of the various events in the Lines’ files.

65 The Practitioner further deposes to his father-in-law having a severe case of deep vein thrombosis in late 2000 and shortly after that his wife’s grandfather being diagnosed with cancer. On these issues the solicitor concluded by deposing to what he referred to as “stress-related health problems” and “difficulty dealing with my file load due to burn-out”. The Practitioner was legally represented at and prior to the hearing. He is as practitioner of some experience in the Courts of this State and the Tribunal is appalled that, if medical matters were seriously raised, the Practitioner did not see fit to provide proper and admissible evidence of these matters.

Character evidence:

66 Two references respectively from R J Clutterbuck, Barrister-at-Law in Queensland and New South Wales, dated 16 June 2005 and Richard Wood, Barrister-at-Law of Selbourne Chambers, also dated 16 June 2005 were admitted into evidence and neither of these gentlemen were required for cross-examination. Mr Clutterbuck reported that the Practitioner came to work in Queensland for a firm on the Gold Coast and commenced briefing him there in accordance with that firm’s policy. That would appear to place the professional contact of the barrister with the Practitioner to have been from at least May 2002 onwards. He advised that he knew the Practitioner both professionally and as a friend and had no hesitation in providing a reference going to his standards, his qualities as a person and his character. He spoke highly of the Practitioner’s ethical standards and saw him as a person who attempted to resolve matters with a strident preference towards preservation of the personal integrity of the client and minimisation of costs. He found it to be out of character for the Practitioner to be the subject of any form of disciplinary proceedings. He indicated that the Practitioner had advised him of the particulars of these proceedings and his response was that he could only recommend “that the penalty be representative of a desire to have him continue a worthwhile career and in no way reflect upon his ability to practise law in the State of New South Wales or, for that matter, the State of Queensland.”

67 The second reference of Richard Wood is based on a professional knowledge of the Practitioner for the last ten years, particularly during a time when he was a Partner in the Moree firm and subsequently while he was on locum work. He described the Practitioner as a highly competent solicitor of unquestioned integrity “and upon whose skill and judgement I in the past unhesitatingly relied”.

68 Mr Wood wrote with the advantage of having reviewed the Information, the Schedule of Complaints, the Reply and the Practitioner’s Affidavit of 2 May 2005. From his experience of the Practitioner in a number of personal injury matters over the years he found that the Practitioner “conducted himself assiduously and conscientiously on the part of his client”. In Mr Wood’s opinion, the Practitioner “is one of the best personal injury solicitors to brief me during my long career at the Bar; in none of the matters in which Mr Pearson has briefed me have there been any problems of the like nature to those the subject of this complaint. My extensive experience with Pearson enables me to write without qualification that the matters the subject of this complaint are totally out of character and in no way detract from the high opinion which I have of Mr Pearson”.

69 It is to noted that Mr Wood was admitted to practise on 26 July 1963.He is a senior member of the legal profession and his letter and that of Mr Clutterbuck have been of great assistance to the Tribunal. The Tribunal is very conscious of the professional responsibility that practitioners and other professionals accept when they provide character material of this nature. It is almost inevitable that cross-examination of such character witnesses is of great help to the Tribunal in clarifying some issues. The Tribunal finds it regrettable that this evidence was in this matter submitted in letter form for practitioners should not feel that they are different from other witnesses who swear affidavits. Practitioners are aware that the Tribunal is part of the processes designed to maintain the standards of their profession which is not only in the public interest but in their interest as well. Their willingness to contribute to the information available to the Tribunal in determining proceedings before it is of great assistance and the serious nature of the responsibility so undertaken with the prospect of also being called for cross-examination enhances their contribution to the Tribunal achieving proper outcomes.

70 The Tribunal has already expressed its concern at some of the oral evidence of the Practitioner. His instructions to his solicitor in the course of the investigation of the matter by the Society are also of concern:

A. In the Society’s letter of 21 August 2003 annexed to Mr Collins’ Affidavit the Practitioner’s solicitor was advised:
“Your client will also be asked to provide a medical report to support the condition which he states he suffered in Paragraph 11 of his Statutory Declaration”
Paragraph 11 asserted:
“I was unable to get any assistance and the stress eventually caused me to suffer from depression. I am able to say this is the case because I was unable to cope with the stress of work and became very ineffective in the office.”

71 In response to the letter of 21 August 2003 Mr Maxwell on behalf of the Practitioner replied on 25 August 2003:

In the circumstances unless I hear from you to the contrary I will await receipt of the material from Mrs Lines before providing the medical evidence referred to in your letter regarding the Law Society complaint.

72 On 23 December 2003 the Society forwarded copies of some correspondence to Mr Maxwell which detailed additional complaints against the practitioner which were being investigated. Various extensions of time were sought to respond and ultimately the letter which appears to deal with the matters raised was forwarded by Maxwell & Co. to the Society dated 3 March 2004. Contrary to the implication in the prior correspondence already referred to this letter in relation to medical matters said:

There is an earlier request from you in relation to details of any medical assistance Mr Pearson may have sought in relation to complaints of stress after the birth of his daughter in February 2000. Mr Pearson instructs me he did not seek medical treatment in Moree at the time because it was a small town and having in mind his position as a practising solicitor did not feel comfortable approaching any of the doctors to discuss such a matter. He tried to deal with the problems himself, which he now concedes was inappropriate as obtaining proper medical treatment may well have assisted the resolution of the difficulties which resulted in the problems that are now being experienced with Mrs Lines.

73 The evidence of the Practitioner in relation to the conveyancing matter was most important. Contrary to his evidence to the Tribunal in the witness box a rather different situation was painted in the correspondence. In the letter of 23 December 2003, paragraph E3, the Society alleged:

In about February 2001 the solicitor lied to his Partner Daniel Butt when he said words to the effect ‘Bernadette’s claim is listed at the next sittings of the District Court. Eighteen months is more than enough time’ when responding to a question from Mr Butt, in effect, as to whether Bernadette and Majella would have monies from their personal injury claims to pay for the property within eighteen months.

74 Mr Maxwell’s reply of 3 March 2004 on instructions was in terms:

Mr Pearson’s recollection is simply that he handed over the conveyancing transaction to his Partner, Mr Butt, and had no further involvement in that matter. Again the statements attributed to Mr Pearson related to a future situation and it is not correct to categorise them as ‘false statements intended to deceive’ being the definition of a ‘lie’.

75 This explanation is simply inconsistent with his oral evidence.

76 When he witnessed the signing of the mortgage documents his oral evidence was that he made a major error of judgement in informing his client that she would receive compensation.

The Protective Role:

77 In findings of professional misconduct and unsatisfactory professional conduct the Tribunal is bound to make orders under s171C that reflect its own assessment of the appropriate protective order to be made. The Tribunal is not limited by the terms of orders sought by the complainant. It now remains for the Tribunal to determine the proper orders to be made.

78 In the first place, there is clearly an issue of the Practitioner’s fitness to practise. His own documented evidence has already been referred to and mentions that fitness issue. When alerted to the Tribunal’s concerns that it may be appropriate to impose orders of a more severe nature than sought by the Society, the Practitioner through his advocate elected to proceed without an adjournment to further consider the matter and take advice and without calling additional evidence.

79 The obligation of the Tribunal at this particular stage of the proceedings is clearly set out in Law Society of NSW v Foreman 34 NSWLR 408 at 470 where Giles AJA said:

The jurisdiction of the Tribunal and of this Court in disciplinary matters is exercised to protect the public, not to punish the solicitor. The object of protection of the public may require that a legal practitioner be removed from the roll, be suspended from practice, or only be permitted to practise under particular circumstances, where the practitioner is not fit to be held out to be entrusted, at all, for a time, or without qualification, with the heavy responsibilities attendant upon the office. The public is protected by ensuring that those unfit to practise do not continue to hold themselves out as fit to practise. But the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct, and deterring others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues who practise in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with. These sentences are, I think, a sufficient statement of established principles found in, for example Clyne v New South Wales Bar Association (1960) 104 CLR 186 , New South Wales Bar Association v Evatt (1968) 117 CLR 177 and Law Society of New South Wales v Bannister (1993) 4LPDR 24.

80 The objectives of protection are clear, although their application to particular circumstances can be difficult. Following the acts and omissions which constitute the misconduct in these proceedings the Practitioner sold his interest in his Partnership and, as already outlined, thereafter worked fairly consistently as a solicitor whilst admittedly feeling his life was “on hold” pending the determination of this matter.

81 It is virtually inevitable that there will always be different individual and personal factors in any matter of this nature. Demonstrably some acts of professional misconduct are less serious than others. There have been quite a range of fines imposed over the last decade for various acts of professional misconduct including falsely attesting signatures on affidavits and other documents and numerous instances of failure to comply with notices under s152 and/or s207. Whether it is time for the Tribunal to re-think some of those issues and the apparent modest nature of some fines that are at times imposed is a matter for consideration in each case. The course taken in Berry (supra) recently may be indicative of a recognition of a need for larger fines and perhaps more supervision orders that may better reflect the deterrent aspect of the protective role (not to mention community expectations) especially where practitioners re-offend subsequently.

82 The findings of professional misconduct against this Practitioner are in the Tribunal’s view extremely serious. The devastation that his misconduct was liable to produce in the Lines family we cannot assess at this time. The decision of Judge Gibb on 3 October 2002 in relation to the first complaint where His Honour held that the Application for Leave to Commence Proceedings out of Time failed because His Honour was not satisfied that the applicant’s entitlement was likely to exceed the statutory threshold would not in the Tribunal’s view effect the gravity of this or other complaints against the Practitioner. That was an issue that the Practitioner should have addressed and/or sought advice from Counsel and ultimately discussed with his client at an early stage.

83 The workload to which he refers is not an answer. The practitioner was a Partner and he raises apparently in mitigation his work load and the number of files he had. He may well have been the architect of his own disaster in part because he took on too many files. Consistently having too many files may suggest greed or stupidity and it certainly courts professional disaster. The “heavy responsibilities attendant upon the office [of a solicitor] are very real” [per Giles AJA in Foreman (supra)] and the Courts have long referred to a solicitor as being “held out by the Court as a member of a profession in whom confidence would be placed” [per Rich J in Kennedy (supra)]. A practitioner must be able to be calm in a storm for his clients’ sake and be able to have a balanced work life. There are different appropriate work limits for everyone. A practitioner who consistently has too many files in the practitioner’s own estimate and consistently works what to the practitioner are excessive hours is not a practitioner who by so acting is being responsible, either personally, to the clients or to the profession. It should be obvious that there are limits to the volume of work a practitioner can accept and properly perform. Exceeding those limits is hardly an answer when the work is not properly performed or simply not performed at all. Obviously a practitioner who has more work than he or she can handle will not handle all his or her work and is likely to do some of the work performed poorly. Although not directly relevant to this matter for the evidence does not refer to any one of the modern day business practices of hourly rates, time sheets and budgets that govern much of current practice by solicitors the profession must be aware of the professional dangers these pose. The Practitioner’s evidence in relation to his partners at Moree included in his Statutory Declaration:

We all worked extremely long hours and would always be in the office on weekends. The firm was very dependant on the economy of the town and therefore when there was a drought the firm suffered financially as well.”
Subsequently he said:
My partners were very busy and unable to help me and my workload became very difficult to manage…

84 The Practitioner became a partner in the firm at Moree where on the evidence there was a dangerous work culture which it is reasonable to expect the Practitioner would feel almost obliged to adopt. The Tribunal has taken these pressures into account in determining the orders which it has made.

85 In New South Wales Bar Association v Hamman [1999] NSWCA 404 the Barrister had been convicted of offences under the Crimes Act relating to the dishonest understatement of income in his income tax returns in the years 1990, 1991 and 1992. He originally was sentenced to and served a period of imprisonment by periodic detention the term being varied by the Court of Criminal Appeal. By majority the Court of Appeal ruled that the barrister’s name should be removed from the roll of legal practitioners. Davies AJA in dissent proposed a suspension although he found that ultimately there had been conscious dishonesty. He stressed that members of the profession expect other members to meet their obligations to the community and the duties of an honourable profession and to act with honour and honesty in both their personal and professional affairs. The majority in the Court took a more stern view.

86 In Hamman Mason P and Priestly JA found that the appropriate order was to strike the barrister from the roll. Mason P. at 100 and 101 said:

(f) Strike off or suspension?

100. In one sense, this is the ultimate issue in the summons. Most points have been covered. I would indicate my concurrence with the following remarks of King CJ (Zelling and Jacobs JJ agreeing) in Re a Practitioner (1984) 36 SASR 590 at 593:

The proper use of suspension is, in my opinion, for those cases in which a legal practitioner has fallen below the high standards to be expected of such a practitioner, but not in such away as to indicate that he lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner. Whilst it is true that the practitioner succumbed to temptations produced by his difficult personal and financial position at a time when his judgment might have been somewhat impaired by the emotional stress to which he was subject, there is no escape from the fact that he engaged in a course of fraudulent conduct extending over three and a half years and involving trust moneys. He has shown himself to be unfit to be a legal practitioner and, in my opinion, the only appropriate order is for him to be struck off the Roll of Practitioners.
Conclusion:

101. In my view the proven misconduct and conviction establish unfitness to practise. There was significant and prolonged dishonesty for personal gain. The barrister’s response to detection, conviction and sentence has been creditable. And it demonstrates genuine contrition. The door to readmission is never closed. But the professional misconduct is of such a nature that it demonstrates unfitness to practise which must be marked by disbarment. To do less would depart form the principals established in Ziems, Bannister and Foreman.”

87 The facts in this present matter are different from Hamman although the Practitioner’s misconduct is very serious in the Tribunal’s view. In both cases there was ultimately an issue between strike off and suspension to be determined and the reasons given by Mason P. in Hamman are most relevant as there is a large range of types of professional misconduct which call a large range of orders to satisfy the different aspects of the Tribunal’s protective role.

88 On balance the Tribunal has concluded that, while there is a very real issue as to the Practitioner’s fitness to practise, his misconduct might most appropriately be dealt with by a combination of orders rather than an order striking his name from the roll. There has been an apology, expressions of contrition and character support from two members of the bar and from his evidence a work culture that may well have been a big factor in his downfall. The Tribunal feels that this Practitioner still has much to offer to the community and that his conduct has not reached a level where his career must at this stage be terminated by a strike-off order. He has to some extent been in limbo while he has worked a locum and as an employed solicitor pending this hearing. Some other practitioners facing similar complaints have frequently ceased to practise pending the determination of matters in the Tribunal. The Tribunal should not be taken to endorse any such de facto suspension, although it may at times, no doubt, be taken into account and may indeed be reflective of contrition. It is a mystery how all of these complaints relate to the one family. There is nothing to suggest any other misconduct but that does not reduce the seriousness of his behaviour. Consideration of the Tribunal’s protective role has led the Tribunal to the view that the appropriate orders in this matter must involve:

a) A suspension from practice;

b) A fine; and

c) A public reprimand.

89 This mixture of three orders is intended to achieve the objectives detailed in Foreman for the benefit of the public, the legal profession and, while it may not now be apparent to him, the Practitioner himself.

90 The Tribunal has determined that a suspension for a period of one (1) year is appropriate and this will be reflected by his practising certificate being ordered to be cancelled for a period of twelve months after the expiration of one month from the date of these orders to facilitate his winding up any current employment obligations.

91 This suspension is to be coupled with a fine and the Tribunal has determined that that should be the sum of Three thousand dollars ($3,000) payable in three six-monthly instalments to commence on 1 December 2006 being a date about two months after the expiration of the period of suspension imposed.

92 Finally, as far as disciplinary orders are concerned the Tribunal orders that the Practitioner be publicly reprimanded.

93 The public reprimand is important as it marks the disgrace of a member of an honourable profession inherent in his misconduct. It is the Tribunal’s hope that the public reprimand will, with the other orders, provide the steps to lead to the Practitioner’s rehabilitation while still fulfilling the Tribunal’s protective role.

Publication of order and reasons:

94 Pursuant to s171C(3) of the Legal Profession Act 1987 the Tribunal is required where it makes an order publicly reprimanding a legal practitioner to publish the order and a statement of the reasons for making the order. Under subsection 5 this obligation to publish is satisfied if the Tribunal provides the Commissioner sufficient information to enable the Commissioner to exercise his function in respect of the Register of Disciplinary Action required to be kept under Division 9A.

95 The Registrar of the Tribunal is accordingly requested to provide the required information to the Commissioner as expeditiously as possible.

Costs:

96 The parties have agreed that the Practitioner should pay the Society’s costs of and incidental to these proceedings agreed in the sum of Three thousand dollars ($3,000) and the Tribunal finds that to be most appropriate. In view of the cancellation of the Practitioner’s practising certificate by the Tribunal those costs should be paid at the expiration of eighteen months from the date of these orders.

Application for Compensation Order:

97 In the Information notice of a claim for compensation under s171D of the Act by Mrs Imelda Lines on behalf of herself and her daughters is given. S171D(2) provides:

A compensation order for the payment waiver or repayment of an amount exceeding $10,000 is not to be made unless the complainant and the legal practitioner or interstate legal practitioner both consent to the making of the order.

98 Subsections (3) and (4) also have relevance to such claim. The finding of professional misconduct and the orders made against the Practitioner are of course quite separate to any compensation entitlement which the claimant and/or her daughters might have which would have to be established to the reasonable satisfaction of the Tribunal.

99 The Tribunal requests that both the Registrar and the Society notify the claimant and her daughters of the order made in relation to the compensation claim and suggest that the claimant and her daughters obtain legal advice in relation to their rights (if any). For the purposes of the compensation application the following order is made:

The application for a compensation order made Imelda Lines on behalf of herself and her daughters Bernadette Lines and Majella Lines is stood over generally and may be restored to the list by any one or more of the said Imelda Lines, the said Bernadette Lines the said Majella Lines and the Practitioner on one month’s written notice to the Registrar and to the Practitioner (or if the notice is given by the Practitioner then to the Registrar and each of the three applicants) provided that the right of the Practitioner to restore this application for compensation to the list may not be exercised until after 1 September 2006.