Law Society of New South Wales v Sullivan

[2000] NSWADT 167

CITATION:	Law Society of New South Wales -v- Sullivan [2000] NSWADT 167
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Timothy Matthew Sullivan
FILE NUMBER:	992027
HEARING DATES:	22/03/2000 19/04/2000 27/04/2000 08/05/2000 30/10/2000 17/11/2000
SUBMISSIONS CLOSED:	11/17/2000
DATE OF DECISION:	11/17/2000
BEFORE:	Coombs J QC - Judicial Member; Durbach A - Judicial Member; Klika D - Member
APPLICATION:	Professional Misconduct - act without instructions - Professional Misconduct - breach of s. 61 of the Legal Profession Act - Professional Misconduct - fail to comply with s. 152 Notice - Professional Misconduct - fail to keep client adequately advised - Professional Misconduct - hinder investigation - Professional Misconduct - hold out to be a Solicitor/Barrister without being the holder of a practising certificate - Professional Misconduct - misappropriate trust moneys/moneys - Professional Misconduct - mislead Court/Tribunal - Professional Misconduct - mislead Law Society/Bar Association/LSC - Professional Misconduct - practice as a Solicitor/Barrister without a practising certificate - Unsatisfactory Professional Conduct - delay - Unsatisfactory Professional Conduct - fail to keep client adequately advised
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Walsh v The Law Society of NSW 73 ALJR 1138 Barwick v Law Society of NSW 74 ALJR 419 The Society v Foreman, (1994) 34 NSWLR 408 The Society v Moulton (1981) 2 NSWLR 736 Prothonotary v Ritchard (C/A unreported, 31/07/1987) Jauncey v The Society (C/A unreported, 01/02/1989) The Society v McNamara (unreported 07/03/1980) In re a Practitioner (1984) 36 SASR 590 Vegehlyi v The Society (C/A unreported, 06/10/1995)
REPRESENTATION:	APPLICANT P Boyd, solicitor RESPONDENT B Caffrey, solicitor
ORDERS:	1. That the name of Timothy Matthew Sullivan be removed from the Roll of Legal Practitioners of the Supreme Court of New South Wales; 2. That the Respondent pay the costs of the Applicant as agreed or assessed.

1 In the course of these proceedings evidence has been led from which inferences might be drawn that:

(1) The solicitor swore a false affidavit.
(2) The solicitor contrived copies of two letters, of 7 November 1996 and 17 November 1996, for the purpose of misleading the Law Society and relied upon them to mislead this Tribunal.
(3) That the solicitor failed to give an undertaking required of him by the Law Society in breach of s.152(1)c of the Legal Profession Act.
(4) That the solicitor, through his counsel in the course of proceedings to restrain the Tribunal from continuing its hearing, sought to mislead the court by asserting that the undertaking had in fact been given.

2 If these inferences were drawn they would bear upon the solicitor’s fitness to practise in the conventional sense.

3 The Law Society has submitted that because none of these matters are the subject of particulars specified in the Information the Tribunal should not, indeed may not, pay heed to them in considering what orders it ought make.

4 The objects of Part 10 of the Legal Profession Act 1987 generally are set out in s.123 of the Act:

“The general objects of this Part are:
(a) to redress the consumer complaints of users of legal services, and
(b) to ensure compliance by individual legal practitioners and interstate legal practitioners with the necessary standards of honesty, competence and diligence, and
(c) to maintain at a sufficiently high level the ethical and practice standards of the legal profession as a whole.”

5 Its objects in relation to providers of legal services are set out in s.125:

“(a) to ensure that the rules of natural justice (being rules for procedural fairness) are applied to any disciplinary proceedings taken against legal practitioners and interstate legal practitioners, and
(b) to give legal practitioners and interstate legal practitioners immunity from civil liability for communications made by them in connection with the official complaints and disciplinary system, and
(c) to ensure that legal practitioners and interstate legal practitioners are aware of the standards of honesty, competence and diligence expected of them.”

6 Division 8 of the Act deals with Hearing and Determination by the Tribunal.

s.167 provides:
“(1) Proceedings may be instituted in the Tribunal with respect to a complaint against a legal practitioner or interstate legal practitioner by an information laid by the appropriate Council or the Commissioners in accordance with this Part.
(2) The Tribunal is to conduct a hearing into each allegation particularised in the information.
(3) Before the commencement of the hearing, the legal practitioner or interstate legal practitioner must file a reply to the allegations in the information in accordance with the rules of the Tribunal and the directions of the Registrar of the Tribunal.
(4) The Tribunal may, subject to its rules and the rules of procedural fairness, order the joinder of any 2 informations against the same or different legal practitioners or interstate legal practitioners.
(5) This includes the power to order, if it is in the interests of justice to do so, the joinder of:
(a) more than one information against the same solicitor or barrister, or
(b) an information against one or more barristers and an information against one or more solicitors if all informations are founded on the same, or closely related, acts or omissions.”

7 s.167A provides:

“(1) The Tribunal may, on the application of a Council or the Commissioner who laid an information, vary the information laid so as to omit allegations or to include additional allegations if the Tribunal is satisfied, having regard to all the circumstances, that it is reasonable to do so.
(2) Without limiting subsection (2), when considering whether or not it is reasonable to vary an information, the Tribunal is to have regard to whether varying the information will affect the fairness of the proceedings.”

8 s.169(1) provides:

“(1) The following persons are entitled to appear at a hearing conducted by the Tribunal:
(a) the legal practitioner or interstate legal practitioner against whom the complaint has been made,
(b) the appropriate Council,
(c) the Commissioner ,
(d) the Attorney General,
(e) the complainant, subject to subsection (2)”.
[Tribunal’s emphasis]

9 s.171C deals with determinations of the Tribunal and provides:

“(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:
(a) order that the name of the legal practitioner be removed from the roll of legal practitioners or interstate legal practitioners if the legal practitioner is guilty of professional misconduct,
(a1) order that the name of the interstate legal practitioner be removed by the appropriate regulatory authority of a participating State from the roll of that State that corresponds to the roll of legal practitioners if the interstate legal practitioner is guilty of professional misconduct,
(b) order that the legal practitioner’s practising certificate be cancelled,
(c) order that a practising certificate not be issued to the legal practitioner until the end of the period specified in the order,
(c1) order that the appropriate regulatory authority of a participating State cancel the interstate legal practitioner’s practising certificate or order that an interstate practising certificate not be issued to the interstate legal practitioner until the end of the period specified in the order,
(d) order that the legal practitioner pay a fine specified in the order, not exceeding $50,000 if the legal practitioner is guilty of professional misconduct or not exceeding $5,000 if the legal practitioner is guilty of unsatisfactory professional conduct,
(e) publicly reprimand the legal practitioner or, if there are special circumstances, privately reprimand the legal practitioner.
(f) order that the legal practitioner undertake and complete a course of further legal education specified in the order,
(g) in the case of a solicitor, make any one or more of the orders referred to in subsection (2),
(h) if applicable, make a compensation order,
(i) make ancillary orders.
(2) In the case of a solicitor, the Tribunal may do any one or more of the following:
(a) order that the practising certificate of any associated solicitor corporation be cancelled or that a practising certificate not be issued to any associated solicitor corporation until the end of the period specified in the order,
(b) order that the solicitor’s practice, or the practice of any associated solicitor corporation, be subject to periodic inspection by the person, and for the period, specified in the order,
(c) order that the solicitor seek advice in relation to the management of the solicitor’s practice, or the practice of any associated solicitor corporation, from the person specified in the order,
(d) order that the solicitor, or any associated solicitor corporation, cease to employ in the solicitor’s practice or the solicitor corporation’s practice the person specified in the order,
(e) order that the solicitor, or any associated solicitor corporation, employ in the solicitor’s practice or the solicitor corporation’s practice a person belonging to the class of persons specified in the order,
(f) order that the solicitor, or any associated solicitor corporation, cease to accept instructions in relation to the class of legal services specified in the order,
(g) order that the solicitor’s practising certificate be endorsed with a condition restricting the solicitor from acting as a solicitor otherwise than in the course of employment by a solicitor holding an unrestricted practising certificate,
(h) order that the appropriate regulatory authority of a participating State endorse the interstate practising certificate of a solicitor who is an interstate legal practitioner with a condition restricting the solicitor from acting as a solicitor otherwise than in the course of employment by a solicitor holding an unrestricted practising certificate (or its equivalent) in that participating State.”
[Tribunal’s emphasis]

10 In Walsh v The Law Society of NSW [73 ALJR 1138] the scheme of Part 10 was discussed in the context of an appeal from the Tribunal to the New South Wales Court of Appeal in which the Court of Appeal strayed outside the complaints particularised, the High Court found that the appeal, and accordingly the Tribunal, was confined to the complaints particularised in the information.

11 The majority (McHugh, Kirby and Callinan JJ) dealt with the matter thus:

“ The appeal is confined to the complaints
59. By s 171M of the Act, it is provided relevantly):
‘(1) The inherent power or jurisdiction of the Supreme Court with respect of the discipline of legal practitioners … is not affected by anything in this Part or Part 2.’
Part 2 is that Part of the Act which deals with the admission of legal practitioners to practise. It contains s 12 of the Act which obliges the Admission Board to consider, on application for admission as a legal practitioner, whether it is satisfied that ‘the candidate is of good fame and character and is otherwise suitable for admission’. Thus s 171M preserves the inherent jurisdiction of the Supreme Court over both the admission and discipline of legal practitioners, including Mr Walsh.
60. This notwithstanding, the scheme of the Part of the Act in which s 171M appears (Pt 10) dealing with complaints and discipline, introduces significant changes in the law governing the investigation of such complaints against legal practitioners and the conduct of disciplinary proceedings arising out of the investigation of such complaints. The general objects of Pt 10 include to redress ‘consumer complaints of users of legal services’ and to ensure compliance by individual legal practitioners with the necessary standards of ‘honesty, competence and diligence’. As part of the statutory scheme, a differentiation is introduced between ‘professional misconduct’ and ‘unsatisfactory professional conduct’. Clearly, this distinction was designed to meet dissatisfaction with the response of those charged with deciding the complaints of users of legal services and the suggestion that they sometimes tended to neglect conduct falling short of proper standards of competence and diligence. A special statutory officer, the Legal Services Commissioner (the Commissioner), was created by the amending Act which introduced the new scheme. The Commissioner has a wide range of functions including the receipt of complaints about professional misconduct or unsatisfactory professional conduct of legal practitioners. The Commissioners is empowered to monitor investigations by the relevant Council (in this case the Law Society Council) into a complaint. He or she is empowered to give directions and to arrange for a complaint to be independently investigated in certain circumstances. He or she is afforded large statutory powers in doing so. The Act also establishes the Tribunal which is empowered to conduct hearings with respect to a complaint against a legal practitioner brought before it.
61. In this scheme of discipline, a number of protections are included for the legal practitioner brought before the Tribunal. Proceedings may only be instituted ‘with respect to a complaint’ by ‘an information laid by the appropriate Council or the Commissioner’ in accordance with Pt 10 of the Act. The function of the Tribunal is confined to that of conducting a hearing ‘into each allegation particularised in the information’. The Tribunal has certain powers of amendment to vary the information laid against the legal practitioner, for example, to permit the inclusion of additional allegations where that is justified. For the purpose of a hearing into a question of professional misconduct, the Tribunal ‘is to observe the rules of law governing the admission of evidence’. In other hearings, the Tribunal is not so bound but may inform itself of any matter in such manner as it thinks fit.
62. Given the scheme of the legislation, and the introduction of new statutory bodies for the task of discipline of members of the legal professional formerly conducted by professional bodies and by the Supreme Court, the requirements of particularity contained in the Act (and the safeguards thereby introduced for the practitioner concerned) would not be narrowly construed.
63. The function of the Tribunal, after having completed a hearing ‘relating to a complaint against a legal practitioner’, is to determine whether it is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct. Only if it is so satisfied may it make any of the orders specified in the Act, including an order for the removal of the name of the legal practitioner from the roll and an order that the legal practitioner pay a fine. The scheme of specificity continues into the provision for an appeal against the order of the Tribunal. By s 171F it is provided (and we add emphasis to the words):
‘(1) Any party to a hearing conducted by the Tribunal may appeal to the Supreme Court against the Tribunal’s determination of a complaint.’
It is only an appeal against such determinations which the Supreme Court, by the Act, is empowered to hear and determine.
64. A question arises as to whether the preservation of the inherent jurisdiction of the Supreme Court in s 171M of the Act, previously noted, empowers that Court, in an appeal from the Tribunal heard by the Court of Appeal, to go beyond the ‘determination of a complaint’ which is otherwise expressed to ground the Supreme Court’s jurisdiction. In favour of that view might be the specification that the appeal lies to the Supreme Court whose inherent jurisdiction is preserved and whose ancient functions include the maintenance of standards and enforcement of discipline in relation to legal practitioners whom such courts admit to legal practice. But, by the scheme of the Act, it is clear that this is not what the legislation provides. The provision preserving the inherent power or jurisdiction of a Supreme Court appears in Div 10 (Miscellaneous) of Pt 10 of the Act. In the context, the section’s purpose is to permit the Supreme Court to deal directly with cases other than appeals (provided for in Div 8 of Pt 10) where it is appropriate or necessary to invoke the inherent power and jurisdiction of the Court.
65. An instance which springs to mind in which the inherent power might be invoked is the case of a legal practitioner who is convicted of a relevant criminal offence warranting immediate removal of his or her name from the roll. In New South Wales, proceedings of that kind are commonly brought by the Prothonotary of the Supreme Court. They are ordinarily uncontested. But for appeals from the Tribunal, invoking the jurisdiction of the Supreme Court as provided by s 171F, the measure of particularity which runs through Div 8 applies. Neither the jurisdiction of the Tribunal nor the power and jurisdiction of the Supreme Court are at large, as formerly the latter were under the common law and within the inherent jurisdiction of the Supreme Court untouched by legislature.
66. The provisions of the Act must be complied with. The focus of its attention is the ‘complaint against a legal practitioner’ expressed in the ‘information laid by the appropriate Council or the Commissioner’ in accordance with the Act. That complaint, and the information containing it, may be varied and amended. Notwithstanding dismissal of the complaints contained in one information it remains open to the relevant Council or the Commissioner to bring later complaints. But the function of the Tribunal is to determine the complaint. And the function of the Supreme Court, in this aspect of its power and jurisdiction is, and is only, to hear and determine the appeal ‘against the Tribunal’s determination of a complaint’. To the extent that the Tribunal proceeded beyond that function or the Supreme Court on appeal did likewise, they would be exceeding the jurisdiction conferred by the Act.
67. This conclusion reinforces our view about the error in the approach of the Court of Appeal. Instead of addressing its attention to determining the appeal and cross-appeal against the Tribunal’s determination of the several complaints about Mr Walsh, it addressed itself to what was described as the ‘ultimate question’ of Mr Walsh’s good fame and character and his suggested unfitness to remain on the roll of legal practitioners. In this, it consciously went outside the ‘complaints as formulated and particularised’. In doing so, it strayed beyond its power and jurisdiction. By reason of the preservation of the inherent jurisdiction of the Supreme Court, it may have been open to the Law Society or the Prothonotary in this case to invoke the Supreme Court’s inherent jurisdiction and to seek immediate relief in relation to Mr Walsh within that jurisdiction. We leave aside questions of procedural fairness and other objections that might be raised if such an exceptional course had been taken. But if it were, different procedures would have been followed and a different hearing would have ensued. That course was not taken. Instead, the ordinary course, envisaged by Div 8 of Pt 10 of the Act, was followed. In going outside the scheme of the Act and proceeding to ignore the ‘complaints as formulated and particularised’, the Court of Appeal erred. It was an error substantially disadvantageous to Mr Walsh. he is entitled to complain about it and, on this ground too, to succeed on his objection to the course which the appeal took.”

12 Thus it seems that this Tribunal, to adopt Mr Boyd’s submission, must expunge from our minds the evidence led before us which might lead to the drawing of the inferences set out above.

13 This conclusion points up the importance of the role of the Commission in the complaints procedure, as the High Court in Barwick v Law Society of NSW emphasised (74 ALJR 419 at 426 (para 52)] when the majority said:

“An important aspect of Div 5 of Pt 10is the duty imposed upon the Commissioner, under s 149, to monitor investigations by a Council. One evident purpose of this provision is to enable to the Commissioners to supervise the way in which a Council deals with a complaint, and to ensure, for example, that the conduct of a practitioner is treated with appropriate seriousness.”
and, (at p.428)
“The capacity of the Commissioner to monitor an investigation is not an empty formality. In a given case, the Commissioner might consider that a complaint is not being treated seriously enough, or has been misunderstood, or has been inadequately investigated. Questions might in turn arise as to the accountability of the Commissioner.”

14 The Tribunal does not know what the extent of the monitoring in the present case was, but it notes that s149(1) provides:

“The Commissioner is to monitor investigations by a Council into complaints.”

15 Nor does the Tribunal know if any report on the progress of the investigation was required by the Commissioner as permitted by s.149(2).

16 Certainly the Commissioner took no part in the hearing, nor did any observer attend.

17 Suffice it to say that it is the Tribunal’s view that adequate monitoring ought to have produced a more rigorous approach and a quicker outcome.

PRINCIPLES

18 In proceedings such as these the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Supreme Court of New South Wales and the orders to be made are to be directed to ensuring that, to the extent that the solicitor is not, practice as such is restricted or prevented by removal from the Roll.

19 Relevant considerations may include, inter alia,

· protection of the public against similar conduct;
· the character of the solicitor as displayed by the evidence;
· the effect which an order will have, upon the understanding in the profession and amongst the public, of the standard of behaviour required of a solicitor;
· the effect upon relationships which must exist between solicitors;
· the nature and circumstances of what was done.
As well,
· failure by a solicitor to understand and appreciate the proper conduct and standards to be observed in dealings with clients constitutes professional misconduct and will generally constitute grounds for striking off the roll.
[see The Society v Foreman, (1994) 34 NSWLR, 408, and The Society v Moulton (1981) 2 NSWLR 736]

20 Further, because of this disadvantageous position of an applicant for re-admission, an order for the involuntary removal of the name of a practitioner from the Roll should be made only after careful consideration and because the probability is that the solicitor is permanently unfit to practice, or when suspension is an inappropriate response to the solicitor’s conduct.

21 [Per McHugh JA, in Prothonotary v Ritchard C/A unreported, 31/07/1987 @ p.12]. This view must be read in the light of reservations expressed by other judges about the use of suspension, as for example, per Reynolds JA, in The Society v McNamara (unreported 7/3/1980)], where his Honour said:

“The use of the power to suspend is valuable as a punitive measure but needs cautious application where fitness and the Court’s protective function is involved.”
and per Clarke JA in Jauncey v The Society (unreported, C/A 01/02/1989 where his Honour said:
“This is more likely to arise in cases where an order is made long after the misconduct which demonstrated unfitness occurred and a meritorious degree of rehabilitation extending over the interval between misconduct and the hearing of a case has been shown.”
and per King CJ in In re a Practitioner (1984) 36 SASR 590 @ 593 where the Chief Justice said:
“The proper use of a 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 a way 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.”

22 All this must be read, of course, in the light of the confinement of the inquiry to the complaints and particulars as required by the decision in Walsh [supra].

The Information

23 The Information alleges professional misconduct against the solicitor and provides by way of particulars 5 allegations:

“1. The legal practitioner was guilty of professional misconduct in that on or about 19 November, 1996, he misled the Local Court by filing a Notice of Motion and Affidavit in support indicating he was the solicitor for the judgment debtor after he was aware or ought to have been aware that his retainer from the judgment debtor had been terminated.
2. The legal practitioner was guilty of professional misconduct in that on or about 19 November, 1996, he acted without instructions by filing with the Local Court a Notice of Motion and Affidavit in support when he was aware or ought to have been aware that his retainer from the judgment debtor had been terminated.
3. The legal practitioner was guilty of professional misconduct in that he without reasonable excuse failed to comply with a requirement of the Council of the Society pursuant to s152(2) of the Legal Profession Act 1987 to waive his lien and transfer a photocopy of the file of Neil and Barbara Brooks to Mr and Mrs Brooks or their solicitors. The practitioner was notified of this requirement by letter dated 22 December, 1997.
4. The legal practitioner was guilty of professional misconduct in that he attempted to mislead the Society by stating in a letter to the Society dated 19 July 1997 that he, “had been requesting for several months an undertaking from Mr Clarke relating to the return of X’s file should the need arise.”
5. The legal practitioner was guilty of professional misconduct in that he wrote a letter of 27 October, 1997, to his former client X with a view to hindering and/or obstructing the Society’s investigations by inducing or otherwise influencing X to withdraw his complaints.”

24 It also alleges unsatisfactory professional conduct, based on 2 allegations:

1. The legal practitioner was guilty of unsatisfactory professional conduct in that he failed to advise Neil and Barbara Brooks for a period of more than one year that their defence and cross claim to an action by Ampol Australia Limited had been rejected by the Local Court on or about 14 August 1995.
2. The legal practitioner was guilty of unsatisfactory professional misconduct [sic] in that he delayed in releasing his former client X’s files and documentation to his new solicitors for a period of almost six months. X had terminated the solicitor’s retainer by his letter dated 9 August, 1996, and in that letter had requested the release of those files. Those files were only sent by the solicitor to X’s new solicitors on 27 February, 1997.”

25 By an amended Reply dated 22 March 2000 the solicitor admitted all seven allegations.

The Course of Proceedings

26 The hearing commenced on 29 January 2000 at 10.10 am. The solicitor was not present although Mr Kennedy of counsel appeared for him. Sullivan arrived shortly after 10.20 am.

27 At this stage there had been a Reply filed but no affidavit material. At a Directions Hearing before the Registrar on 25 October 1999 orders were made that any affidavit material, including character evidence to be relied on by the solicitor, was to be filed within 21 days. The solicitor did not appear but was informed of the orders by letters dated 25 October 1999 and 24 December 1999.

28 Mr Boyd, who appeared for the Society, opened the case for it and tendered its evidence. He informed the Tribunal that no deponent had been required for cross-examination, and closed his case.

29 Mr Kennedy for the solicitor indicated that he proposed to tender two testimonials and to call oral evidence from the solicitor. The Society objected, suggesting that any evidence from the solicitor should be “done in a proper fashion” by affidavit. The Tribunal agreed but acceded to Mr Kennedy’s application for an adjournment to permit affidavit evidence to be compiled and served. It directed that affidavits for the solicitor be filed within 14 days.

30 On 22 March 2000 when the matter was relisted for hearing Mr Kennedy appeared as a matter of courtesy to inform the Tribunal his instructions had been withdrawn and that Mr Sullivan intended to appear for himself.

31 Mr Sullivan was asked,

“Do I take it correctly that you don’t want to call any evidence?”
and replied,
“The situation was unfortunately my, which I appreciate is not an excuse for the Tribunal, the situation I found myself in, my secretary didn’t return after the new year break and I had to employ new staff and trying to find staff at the moment is impossible and I went to employment agencies and they said they had nobody on the books and I rang up the Herald and had a secretary start three or four weeks ago so I was up to that time by myself. Normally January February is quiet but for some reason I was working 7 days to try and keep up. Mr Kennedy was chastising me for doing that.
I have prepared a statement which I have provided to my friend yesterday. I went through that and I have had discussions and I have admitted the allegations made in relation to the information laid before me. I have two testimonials, one from a professional colleague and one from a client which I would like to tender to the Court.”

32 He then informed the Tribunal that he had drafted an Amended Reply admitting all the allegations and that he had sworn an affidavit in relation to the facts and allegations made against him. Mr Boyd did not object to the testimonials being tendered, nor to the solicitor relying on the affidavit and indicated no wish to cross-examine the solicitor a supine approach indeed.

33 The Tribunal observes that it was not clear from the unsworn testimonials given by Mr Heckenberg, a solicitor, and Mr Rath, a business client, to what extent those who gave them were aware of the precise nature of the allegations against the solicitor. When this was pointed out to the solicitor, he said,

“I haven’t supplied copies. I have discussed it. I understand Mr Kennedy spoke to both Mr Rath and Mr Heckenberg explaining the allegations.”

34 It should be understood that until this point, the Society sought only in respect of all complaints referred to the Tribunal, that:

“(a) The legal practitioner be reprimanded .
(b) The legal practitioner be ordered to pay the costs of the Informant of and incidental to these proceedings .
(c) That the legal practitioner’s Practicing Certificate be restricted to that of an employee for a period of twelve months from the date of the making of these Orders .
(d) If the legal practitioner again commences practice on his own account then his practice is for a period of twelve months commencing from that date to be subject to inspection at three monthly intervals at the expense of the solicitor by a suitably qualified solicitor appointed by the Law Society for that purpose, such inspections to continue notwithstanding any change in the constitution of the legal practitioner’s firm .
(e) Such further Orders as the Tribunal considers appropriate .”

35 In that context and having expressed a view that the nature of the orders sought by the Society might be thought to send a wrong message to the public and to practitioners, the Tribunal deemed it appropriate, as a matter of procedural fairness, to warn the Solicitor that it was considering a strike off order.

36 The Solicitor thereupon sought an adjournment to retain counsel and to have parties who had sworn affidavits for cross-examination by counsel.

37 An adjournment was granted despite the earlier opportunity (not availed of) and the applicant was given until the 5 April to file any further affidavit upon which he wished to rely.

38 On 7 April the Tribunal received from the Society a letter advising it that the Society would seek orders in lieu of those in the information, as follows:

“1. That the Legal Practitioner be reprimanded;
2. That the Legal Practitioner pay a substantial monetary penalty ,
3. That the Legal Practitioner’s Practising Certificate be restricted to that of an employee for a period of 12 months from the date of the making of these orders.
4. If the Legal Practitioner again commences practice on his own account then his practice is, for a period of 12 months commencing from that date, to be subject to inspection at three monthly intervals at the expense of the Legal Practitioner by a suitably qualified Solicitor appointed by the Society for that purpose.
5. The Legal Practitioner, at his own cost, be ordered to successfully complete the Best Practice Management Course or its equivalent (to be determined by the Manager Professional Standards Department of the Society) within twelve (12) months of the Tribunal’s order .
6. In default of the Legal Practitioner failing to pay any fine within the time allowed for payment then his practicing certificate be cancelled. No fresh practicing certificate to be issued to the Legal Practitioner until such time as he has paid the full amount of any fine imposed .
7. That the Legal Practitioner be ordered to pay the costs of the Informant of and incidental to these proceedings.
8. Such further Orders as the Tribunal considers appropriate.”
[Tribunal’s underlining of new orders]

39 The hearing recommenced on Wednesday 19 April 2000.

40 On that day Mr Caffrey of Counsel appeared for the Solicitor and made an application for the Tribunal to disqualify itself on the grounds of bias. After hearing argument on both sides and adjourning briefly to confer, the Tribunal refused the application. Thereafter Mr Caffrey sought an adjournment so as to test the ruling in the Supreme Court, which adjournment was granted.

41 On 27 April 2000 Windeyer J temporarily restrained the Tribunal from proceeding. He dismissed the application, after hearing full argument, on 5 May 2000.

42 The Tribunal resumed in a Directions Hearing on 8 May 2000 when procedural matters were discussed and a list of points, which either of the parties might wish to address by way of evidence, cross-examination or address, was discussed and notice was given by Mr Caffrey that he wished to cross-examine two witnesses (one of the complainants and a solicitor) and that he wished to supplement the affidavit previously tendered by Mr Sullivan personally by oral evidence.

43 The Tribunal directed that any further evidence in chief be by affidavit and set time limits.

44 It also pointed out to Mr Caffrey that the affidavit of the solicitor upon which he, at that point, intended to rely was quite inconsistent with the amended Reply filed by Mr Sullivan on 22 March 2000, and that amendment was required to co-ordinate the two. The Tribunal notes that a Reply is mandatory under s.167(3). A date by which a further amended Reply was to be filed was fixed. No such document was filed prior to the hearing on 13 June 2000.

45 The Tribunal was informed by Mr Boyd that, during the hearing before Windeyer J., it had been submitted on the solicitor’s behalf that he had in fact given the undertaking sought by the Society’s letter of 9 December 1997, notwithstanding his refusal by letter of 15 December 1997 so to do. Mr Boyd made clear that file searches showed that the Society had received no undertaking and said evidence would be required.

46 On 22 May 2000 a letter was received by the Registrar from Mr Caffrey in the following terms:

“I have been instructed by client [sic] that he has decided for medical reasons and without admissions of guilt, to not proceed in this matter.
I am sending a copy of this to Mr Boyd at The Law Society today.”

47 The Registrar replied by fax on 26 May 2000 as follows:

“I refer to your letter of 22 May 2000 advising the Tribunal of your client’s instructions in this matter.
I must be clearly understood that the matter will be proceeding on the adjourned date of 13 June 2000 before the Tribunal.
Please indicate to the Tribunal, within 7 days, whether or not Mr Sullivan and his representative will be in attendance at the hearing. As the part heard hearing as [sic] been fixed for a further 3 days, please also indicate the estimated duration of the hearing.
If you have any enquiries please contact Wendy Elder on 9231 9124.”

48 Mr Caffrey replied by fax on 30 May 2000 as follows:

“Further to my letter of 22 May 2000, I confirm and advise that I have clear instructions from Mr. Sullivan that my instructions are withdrawn and that I am not to represent Mr. Sullivan in this matter.
I appreciate that my letter of 22 May 2000 may have been a bit confusing for which I apologize.
In the circumstances then, I will not be appearing before the Tribunal on 13 June 2000 or at all.”

49 A registered Express Post letter to Mr Sullivan’s previous office address was returned “Addressee Left Address”.

50 Mr Sullivan was not at the Directions Hearing when the date was fixed, but one hopes and assumes Mr Caffrey told him the date.

51 His name was called three times outside the Tribunal on 13 June 2000 and he did not appear.

52 Mr Boyd made submissions and then informed the Tribunal that further matters had arisen in recent days, since the appointment of a Receiver to Sullivan’s practice on 18 May 2000 and that a further information was likely. He pointed out that it was desirable that all matters be dealt with by the same Tribunal and sought an adjournment to a date to be fixed, which was granted.

MATTERS OFFERRED IN MITIGATION:

The Brooks Matter

The Solicitor’s Claim that he believed that he was sufficiently instructed

53 The Tribunal notes that Mr Brooks in paragraph 11 of his affidavit of 29 July 1999 states that the letter of 23 October 1996 was the last letter he received from the Solicitor. He says in paragraph 5 that that letter contained the words, “as you are aware we have filed a Cross-Claim and Defence in the local Court”. Those words do not appear in the letter of 23 October 1995, but they do appear in the copy letter of 26 October 1995 tendered by Mr Boyd and said to have been found in the Solicitor’s file in the Brooks matter. Despite some initial hesitation the Tribunal accepts that the letter of 26 October 1995 was sent and received by Mr and Mrs Brooks.

54 There is a hand-written notation on the top of the copy letter of 26 October 1995 which reads:

“30-10-95
Tim.
Neil Brooks
Got letter
Still considering
what to do about
and will be in
touch”

55 Mr Kennedy informed the Tribunal (Tp. 13, 29.1.2000 @ line 21-26) that the writing was not his client’s and that his client did not know whose it is. Nothing ultimately turns on this except that Mr Brooks asserts that they did not receive later correspondence.

56 There is no dispute that the authority and direction of 31 March 1996 requiring the forwarding of all Brooks documents was sent and received. [Cf Solicitor’s affidavit, para 64]. Despite the contents of the Johnson & Sendall letter the Solicitor asserts in mitigation that he believed “at all times that [he] had instructions from and acted in the best interests of the client”, and that, “I was under the impression that they merely wanted a second opinion and that I would be retained as the solicitor on the record.” Such an impression was inconsistent with the Johnson & Sendall letter requesting the files.

57 In his original Reply the Solicitor relies for this “impression” on non-response to his letter of 7 November 1995 to ground his belief that he was instructed to act. In his affidavit he refers to “correspondence”. His file contained a copy of a letter of 7 November 1995 and a copy of a letter of 17 November 1995 informing the Brooks of the date of hearing of the Notice of Motion. Mr and Mrs Brooks deny receiving either letter [paras 20 and 21 of Neil Brooks’ affidavit of 29 July 1999].

58 The Tribunal does not accept that those letters were ever sent, and notes that in its view the onus of proving matters in mitigation was on the solicitor.

59 If sent and received such letters would, in view of the demonstrated attitude of both the Brooks and their new solicitor, surely have produced a response.

60 The copy letters are inconsistent in approach with the letter sent by the Solicitor to the Society on 28 November 1996 and with his issue of a Statement of Claim against the Brooks for outstanding fees and costs on 18 November 1996 and with the affidavit of Neil and Barbara Brooks of 11 February 1997 (annexure “I” to the affidavit of Raymond Collins of 27 July 1999). Nor did the Solicitor refer to them in his letter to the Society of 22 September 1997.

61 A paragraph of that letter is instructive in a consideration of the Solicitor’s attitude to the clients’ complaints, which reads:

“I am of the opinion that Mr & Mrs Brooks cannot accept that their own incompetence and naivety caused their losses. It is for this reason that I feel that Mr & Mrs Brooks (or more correctly their lawyer as they are to [sic] obtuse to fabricate such a scenario) are attempting to lay the blame for their mistakes somewhere else. The obvious target for such a claim is me as their former solicitor as if they can confuse the issue enough and have you accept their contrivance a claim against Law Cover will invariably follow.”

62 The attitude of the Solicitor is further exemplified by his later responses and lack of responses to the Law Society. To the Society’s letter of 8 October 1997 requesting explanations, he made no reply despite a request for a reply within 14 days. To the Society’s letter of 22 December 1997, clearly indicating the seriousness of the matter and requiring a detailed response to particular allegations, he made no response [unless the letter of 15 December 1997 can be said to be an answer, referring as it does to a letter of 5 December 1997].

63 The Society followed up with a letter of 15 January 1998 again emphasising the lack of compliance with the Professional Conduct Committee’s resolution. By 3 March 1998 there had been no reply as the Society by letter pointed out.

64 By 20 March 1998 the Society’s patience was almost exhausted. Ms Ong, by two registered letters, informed the Solicitor that her report to the PCC would go forward without his response if it was not received by 15 April 1998. She postponed this to 30 April 1998 and informed the Solicitor of this fact. Again, no response.

65 On 27 May 1998, Ms Ong returned a call from the Solicitor. Ms Ong’s diary entry reveals that he began by asking whether, if he paid the $1,075.00 to the Brooks it would be the end of the matter. In the Tribunal’s view this response indicates a lack of appreciation and understanding of the responsibilities of a solicitor.

66 Despite being told in this conversation that the PCC had decided to refer the matter to the Tribunal and why, and despite being told that if he paid the money and consented to a reprimand Ms Ong would close the file [the Tribunal’s emphasis], the Solicitor again made no response until after a further registered letter of 2 July 1998.

67 He then wrote a letter of 4 July 1998. In that letter he claimed that he did not understand that the delivery of the Brooks’ file to Johnson & Sendall was a direction which overrode his lien. That a solicitor could so misunderstand the direction of 22 December 1997 beggars belief.

68 The relevant paragraph read:

“III. The Committee also resolved that pursuant to the powers delegated to it by the Council and pursuant to the provisions of Section 152(2) of the Legal Profession Act, 1987, the Committee requires the legal practitioner to waive the lien of the practitioner over the file of the practitioner relating to the claim by Ampol Limited against Mr & Mrs N A and B A Brooks and that the solicitor transfer a photocopy of that file (which photocopy will be provided to him at the Society’s expense) to Mr & Mrs Brooks or their solicitors Johnson & Sendall, within 14 days upon receipt of a notice from the Society notifying him of this resolution. The Committee is satisfied that the waiver of the lien claimed by the practitioner is necessary for the orderly transaction of Mr & Mrs Brooks’ business.”

69 The Solicitor also for the first time relied upon the purported letters of 7 November 1996 and 17 November 1996. He also said:

“I do not believe that I should be reprimand in this matter as I genuinely consider that the allegations against me are ill founded and boarder [sic] on vexatious.”
and
“In other words, Mr & Mrs Brooks were friends and it is very disappointed when someone you trust and consider a friend turns and puts allegations which to be made for some ulterior motive.”

70 It should also be observed that the matters proffered in mitigation are in truth inconsistent with the admissions made in the amended Reply, (later withdrawn).

71 When the concern of the Tribunal as to whether or not the letters were sent became a point for discussion, the solicitor abandoned the proceedings and did not cross-examine Mr Brooks, nor give evidence himself.

72 In the Tribunal’s view the evidence clearly establishes the guilt of the solicitor on all grounds in the Brooks matter; i.e. professional misconduct Grounds 1, 2 and 3 and unsatisfactory professional conduct Ground 1.

73 The proper functioning of the legal system depends on candour by practitioners in their dealings with the courts and the ability of the courts and other practitioners to be able to have confidence in that candour.

74 In Myers v Elman [1940] AC 282 a solicitor had filed false affidavits of discovery sworn by his client, and was found by the House of Lords to be guilty of professional misconduct in not making disclosure as soon as he knew. Permitting false swearing by another to stand was enough.

75 In 1948 Chief Justice Herring of the Victorian Supreme Court said:

“ The highest standards of conduct must be maintained: the court must be able to rely upon its ability to accept the word of solicitor.”
[See Re W, a Solicitor , unreported Victorian Supreme Court 16/12/48].

76 In The Society v Foreman [(1994) 34 NSWLR 408] Mahoney JA said,

“In this she disregarded the first and primary obligation of a solicitor practising before the courts. a practitioner must not merely not deceive the court before which she practises; she must be fully frank in what she does before it. This obligation takes precedence over the practitioner’s duty to her client, to other practitioners and to herself. The justice system will not work if a practitioner is, for her own purposes, free to put to the court that which she knows to be false.”

77 This is not the worst case of misleading the court that can be imagined by any means, but the Tribunal finds that it was either deliberate or done with reckless indifference.

78 Thus Grounds 1 and 2 constitute serious misconduct.

79 Ground 3 relates to a contumelious disregard of a clear direction made by the Society pursuant to s.152(2). The solicitor’s explanation, in the correspondence and in the result not sworn to nor cross-examined on (by reason of the solicitor’s failure to continue defending himself), is unacceptable.

80 This is a serious piece of professional misconduct. The disregard of a clear statutory direction from one’s professional association indicates, in the Tribunal’s view, prima facie unfitness to practice.

81 As to the other Brooks ground (1 of unsatisfactory professional conduct), to fail for more than a year to inform a client of a litigious consequence of significance and involving an amount of real consequence to the client is, at the worst end, at least of unsatisfactory professional conduct.

The "X" Matter – (Name suppressed by the Tribunal’s Order of 28 January 2000 – hereinafter “X”)

82 Of the X matters, Ground 5 of the Grounds of professional misconduct is the most serious.

83 The letter should be set out in full:

“X
P.O. Box 176
Broadway 2007

X
I am getting sick and tired of dealing with your complaint to the Law Society. I have more important things to reply to your bogus allegations. Accordingly, I invite you to immediately withdraw your complaint.
As you are fully aware you were provided with copies of all correspondence in relation to all of the matters in which I acted for you and therefore the negligence of Australia Post in losing your files could not possibly had any effect upon any case in which you were involved when you decided to instruct new solicitors.
I recall in your correspondence that you stated that you considered me a friend. your conduct and allegations belie your representations in this regard. I am sure that if I was to act in the same manner as you and publish your criminal record to the University this would have a much more adverse effect upon your career than the spurious allegations you have raised with the Law Society.
I request that you carefully consider your position regarding your complaint and withdraw your allegations.

Yours sincerely
Tim Sullivan”

84 It is of interest to compare it to a letter written to Messrs Johnson & Sendall in the Brooks matter on 13 October 1998 which is also set out in full:

“Johnson & Sendall
Solicitors
PO Box 150
Goulburn 2580

Att: Morris Owen

Dear Sirs
Re: Neil & Barbara Brooks
I refer to the above and note that I have not received a reply from Mr & Mrs Brooks to my letter of 21 August, 1998.
As you may be aware the Law Society has made an adverse finding against me in relation to my conduct of Mr & Mrs Brooks file, a finding which I genuinely believe is without basis. The finding by the Society is based entirely upon the allegations by Mr & Mrs Brooks, allegations which I will need to test by cross examination before the Tribunal. In order that I may full consider my options, would you kindly advise whether Mr & Mrs Brooks are prepared to give evidence in such proceedings against me and be exposed to cross examination by my counsel. I also give notice that if such proceedings were to eventuate I will require Mr Owen of your firm for cross examination.
I understand Mrs Ms Ong that the Society intends to make no finding in relation to the question of my outstanding fees. Accordingly, would you please advise of your instructions regarding any offer of settlement of the judgment debt in these proceedings. As you will appreciate the monies due have been written off as a bad debt and so any compromise will be considered in a commercial and pragmatic light.
I would greatly appreciate your reply to this correspondence within the next fourteen days. I confirm that no effort will be made by me to execute the judgment debt pending receipt of your correspondence and that prior to any execution proceedings I will give you the courtesy of advising same.

Yours faithfully
NORTH SHORE LEGAL
Tim Sullivan.”

85 X’s reaction to the letter was immediate and reasonable. He rang the Law Society and the file note made by Alice Ong of the Society’s Professional Standards Section the Tribunal sets out in full: (Ex FS of Mr Collins’ affidavit of 27 July 1999)

10/11/97 Society’s File Note re X and letter from the Solicitor – in full:
“On 6 November 1997 at around 10.05 am, I returned the call of X.
He enquired about the status of his complaint against Tim Sullivan. I told him that my report in the matter should be tabled before the Professional Conduct committee at its meeting on 4 December 1997. This was the second time that it would be coming before the Committee. He asked me when was the first time.
I said that the first time it came before the Committee was when Mr Sullivan had not released the files to his solicitor and I did recall writing to him about this. He said that that would probably be correct but he did not have the file in front of him.
He then said that he had called me to also enquire on another matter. About a week ago, he had received a letter from Mr Sullivan and he regards the letter as containing a threat against him.
I asked him what he meant by that. He then said that he would read out the relevant part of the letter to me. He said that the letter read as follows:
“I am sure that if I were to act in the same manner as you and publish your criminal record to the University, this would have a much more adverse effect upon your career than the spurious allegations you have raised with the Law Society.”
X then said that the letter then asked him to consider withdrawing his complaint.
I told him that I would certainly be interested in looking at the letter as it does raise issues of conduct in my view. The principle that solicitors follow is that communication between solicitor and client is kept confidential.
X said that his main concern was that if Sullivan were to inform the University of his criminal record, he would lose his job. Can the Society do something about this?
I said I understood his concern. That was why I would like to look at the letter because we would like to investigate this issue. However, I can’t stop Mr Sullivan from carrying out that threat if that is what he wanted to do. He would have to seek his own independent legal advice as to what rights he may have against Mr Sullivan if that threat was in fact carried out.
At our end, I take the view that the letter does raise issues of conduct that we would want to investigate.
He said that he was in a difficult position. He had no choice but to put in the complaint. I told him that he did not have to justify to me why he was making the complaint because every client had their right to put in a complaint against their solicitor.
He then again asked whether the Society could help him. I said that unfortunately, I can’t give him legal advice. All I can say to him is that I would certainly investigate the matter if he is prepared to send me the letter from Sullivan. I will however check with my superiors and I will get back to him some time today.
He said that he will also try and check with some friends of his who are solicitors. The conversation then ended at that stage.
Unfortunately, I then had to attend the PCC meeting which ended at around 1.00pm. After that meeting, I had to urgently prepare a memorandum to the Council on another matter on blue as it was to go up to Council that evening.
I subsequently saw Peter Mazurek, the Acting Manager, at around 4.00pm or thereabouts. I explained to Peter what had happened and I read out the paragraph set out above. Peter was of the view that I should ring X and tell him that we certainly would want to investigate the matter but to do so, he has to give us a copy of that letter. I should also tell X that I can’t give him any legal advice as to his rights against Mr Sullivan should that threat be carried out but the Society views such threats seriously.
I then rang X I think at around 4.25pm at his work number and left a message on his answering machine to return my call.
At around 4.35pm X returned my call. I told him what Peter told me.
He said that he was in a difficult position and he really did not know what he should do. I said that I understood the dilemma he was in. I suggested to him that he take some time to think about it and that he seek his own independent legal advice. He could then ring me at any time. If his decision was that he would want to show us the letter, then all he had to do was fax the letter to me and I can then commence investigations into it.
I gave him the Division’s fax number. he will have another think about this and let me know once he makes up his mind.”

86 On 12 November 1997 X wrote to the Society as follows:

“As discussed, I herewith attach a copy of Mr Sullivan’s letter dated 27 October 1997.
This letter has caused me great deal of distress. It has also taken a lot of courage and faith in The Law Society of NSW to forward a copy to your office. I am concerned that Mr Sullivan will carry out his threat and I would appreciate your assistance in using the utmost discretion when dealing with this matter.
I rightly feel threatened by Mr Sullivan and apprehensive about him taking the action that he has threatened to take. As he has pointed out in his letter, the consequences for my career could be disastrous. Before taking any further action regarding my original complaint I would appreciate your assistance in advising what protection your Society
The information that I provided Mr Sullivan about my criminal record was given to him on the basis that it was privileged and covered by client confidentiality. I would view the release of this information in any form as a breach this [sic] client confidentiality.
Should you require any further information please do not hesitate to contact the [sic] me I can be contacted by phone on …. or by writing to the above address.”

87 The Society replied as follows:

“I refer to your letter dated 12 November 1997 which I received via the fax today.
I further refer to my lengthy conversation with you this morning discussing the contents of your above letter. I confirm the following:
I note your request that I deal with your recent letter with the utmost discretion. I note that I explained to you that if you wish the Society to investigate the conduct of Mr Sullivan in sending to you his letter to you dated 27 October 1997, then it is the practice and policy of the Society to forward copies of all letters of complaint to the solicitor concerned.
What this means is that Mr Sullivan’s letter to you of 27 October 1997 will have to be sent to Mr Sullivan and his response to that letter will then have to be obtained. The Society is unable to conduct investigations in secret. If investigations were conducted in secret and if the solicitor concerned was not provided with copies of all letters of complaint and documents relied on by the complainant, the solicitor would be able to successfully argue in any subsequent proceedings that he or she was denied natural justice.
I further confirm that I then explained to you that once investigations in the matter are completed by way of an exchange of correspondence between the Society, the solicitor and the complainant concerned, the solicitor investigating the matter will then prepare a report which will be considered by a Committee which is called the Professional Conduct Committee. The Committee is comprised mainly of solicitors although there are lay members on it. It is that Committee that decides whether to uphold or to dismiss complaints.
I note that I explained to you that it is the function of the Committee to decide whether or not the complaint made raises issues of conduct. Misconduct is categorised into two categories. The most serious category is that of professional misconduct. Professional misconduct refers to conduct that involves a substantial or consistent failure to reach reasonable standards of competence and diligence. it also refers to conduct which would be regarded as disgraceful or dishonourable or conduct that would raise questions as to whether or not the solicitor concerned is a person of good fame and character or whether or not the solicitor concerned is a fit and proper person to remain on the Rolls. An example of professional misconduct would be a case where a solicitor has misappropriated funds belonging to a client.
The less serious category is the category of unsatisfactory professional conduct. This refers to conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent solicitor.

If the Committee forms the view that the conduct of the solicitor is serious enough to amount to professional misconduct, then the committee has no choice but to refer that solicitor to the Legal Services Tribunal. The Legal Services Tribunal is a body that hears complaints against solicitors and barristers only. Proceedings at the Tribunal can only be commenced by the Society, the Legal Services Commissioners, the Bar Association if the complaint involves a barrister or the Attorney General in certain cases. members of the public cannot commence proceedings in that Tribunal by themselves.
Should proceedings be commenced at the Tribunal, then those proceedings will be run by the Society at its own cost and expense. Complainants who are called to give evidence at the Tribunal will be treated as the Society’s witnesses and accordingly, their expenses for attending the hearing will be paid by the Society.
If the Committee forms the view that the solicitor’s conduct amounts to unsatisfactory professional conduct then the Committee can discipline the solicitor concerned in any number of ways namely:
1. It can reprimand the solicitor. a reprimand is basically a black mark on the records of the solicitor that is kept by the Society.
2. It can reprimand the solicitor and at the same time require the solicitor to pay compensation to the complainant. Compensation is not often awarded and when it is, it is only awarded in clear cut cases where the complainant is able to quantify the compensation. It is not awarded for claims for mental anguish or distress caused by the solicitor’s behaviour.
3. It can make an adverse finding that the solicitor’s conduct amounts to unsatisfactory professional conduct and then dismiss the complaint on the basis that the solicitor had no prior adverse findings made against him. This is only applicable to matters where the solicitor has a prior clean record.
4. It can make an adverse finding and dismiss it on the basis of the solicitor’s prior clean record and at the same time require the solicitor to pay compensation to the complainant.
Where proceedings are commenced at the Tribunal, the Society does make submissions as to the appropriate penalty that the Tribunal should impose on the solicitor concerned. The Tribunal can strike the solicitor off the Rolls in the most serious of cases, fine the solicitor, reprimand the solicitor, suspend the solicitor from practice, order that the solicitor be only employed as an employed solicitor, order the solicitor to attend courses as prescribed by the Tribunal or any combination of the above. The Tribunal can also award compensation but the maximum amount that it can award in terms of compensation is $10,000.00. Any amount in excess of this can only be awarded with the consent of the solicitor and the complainant concerned.
The above sets out the extent of the disciplinary powers and disciplinary procedure available to the Society.
I confirm my advice to you during the above telephone conversation that I am of the view that the contents of Mr Sullivan’s letter to you of 27 October 1997 raises issues of conduct in that he appears to be attempting to obstruct the Society’s investigations into your complaint by threatening to disclose your criminal record to the University and the threat in my view also contains in it a threat to breach client confidentiality. I view the contents of his letter with great concern. However, as I have emphasised to you, this is just my personal view. I cannot predict what view the Committee will take and quite often, the Committee disagrees with my views.
I note that you will have another think about this matter once you receive this letter. If you then still wish to proceed with a complaint against Mr Sullivan in respect of his letter of 27 October 1997, then I would ask that you confirm this in writing. Once I receive your letter, I can then commence investigations into Mr Sullivan’s conduct.
I confirm my advice to you that your existing complaints against Mr Sullivan will be tabled before the Professional Conduct Committee at its meeting on 4 December 1997. The Committee will be informed of your fresh complaint, should you decide to proceed with it. The Committee may decide to defer making a final decision in respect of your existing complaints until investigations in your fresh complaint are finalised.
I look forward to receiving your decision in this matter. Please do not hesitate to contact me if you have any further queries.”

88 In the result X withdrew his complaint and declined to give an affidavit to support the complaint initiated by the Society.

89 In other words, the thinly veiled threat of disclosure, which amounted in essence to blackmail was successful.

90 This is in the Tribunal’s view a serious act of professional misconduct.

91 In Vegehlyi v The Society [C/A unreported 06/10/1995] the Court of Appeal dealt, inter alia, with a complaint that a solicitor spoke by telephone to a barrister who had acted as an arbitrator in one of the solicitor’s cases and used the following words:

“I have just received a copy of what purports to be a judgment of yours. It confirms my belief that you were not competent to hear this case and were biased against me … I intend to take action to ensure that you will never ever arbitrate another action again … when we meet again it will not be a meeting you will relish.”

92 The solicitor later wrote to the barrister in the following terms:

“I refer to a copy of your letter of 26th instant to Mrs VP Shirvington and the Society.
I note that the terms of your letter does not state accurately the account of our conversation and I further note that the contents of the letter further demonstrates your biased [sic] and malice towards me which was evident not only at the time of the hearing of matter but was also demonstrated during the telephone conversations you had with both myself and my secretary and counsel.
I confirm that I intend to report your conduct and take the appropriate action”

93 The court unanimously held that:

“It seems to me that the circumstances found by the Tribunal fully justified the conclusion that the appellant’s conduct constituted professional misconduct at common law.”
[per Priestly JA with whom Kirby P and Mahoney JA agreed]

94 In the present case the solicitor wrote to a former client, mentioning his criminal record in relation to the effect knowledge of it would have on his former client’s employer. He did this to hinder and/or obstruct the Society’s investigation by inducing or otherwise influencing X to withdraw his complaints. In a nutshell, blackmail.

95 The Tribunal has no doubt that his professional colleagues would regard that conduct alone as disgraceful and dishonourable.

The Additional Counts

96 Pursuant to leave granted by the Tribunal on Monday 30/10/2000 the society added 5 new counts to the information.

97 They were:-

1. The legal practitioner was guilty of professional misconduct in that he breached Section 61 of the Legal Professional Act.
2. The legal practitioner was guilty of professional misconduct in that he misappropriated trust monies.
3. The legal practitioner was guilty of professional misconduct in that he failed to account to his clients, Mr and Mrs D Minks.
4. The legal practitioner was guilty of professional misconduct in that during the period 23 June 2000 to 7 July 2000 he acted as a Solicitor and Barrister in the State of New South Wales without being the holder of a current Practicing Certificate as a Solicitor and Barrister contrary to sub-section 25 (1) of the Legal Professional Act, 1987.
5. The legal practitioner was guilty of professional misconduct in that during the period 23 June 2000 to 7 July 2000 he held himself out to be a Solicitor without being the holder of a current Practicing Certificate as a Solicitor and Barrister contrary to sub-section 25 (3) of the Legal Profession Act, 1987.

98 The evidence supports each charge.

99 As to 6, the evidence in support of this complaint is contained in Jean Sayer’s report of 5 June 2000. When the solicitor withdrew the funds from St George Bank Limited on 30 March 2000 he did so in order that a cheque was drawn in favour of Neringla Investments Pty Limited (“Neringla”) rather than to himself. This is a clear breach of Section 61 of the Act and the Tribunal finds, in the absence of any evidence from the solicitor, that the breach was wilful.

100 As to 7, the solicitor’s clients were unable initially to obtain their monies as without their authority the monies had been invested with Citibank Limited not in the name of the solicitor but in the name of Neringla. Their funds were only recovered after the Supreme Court appointed a Receiver to the solicitor’s practice.

101 As to 8, the evidence in support of this complaint is the Supreme Court Order whereby the solicitor admitted he had practiced as a solicitor without a practicing certificate in breach of Section 25(1) of the Act. Also the solicitor’s letter of 12 July 2000 (Annexure “A” to R J Collins Affidavit of 6 September 2000) wherein he said:

“I refer to your correspondence of 10 July 2000 regarding my practicing certificate and advise that I have nothing to submit to you in this matter, I did the wrong thing.”

102 As to 9, the evidence in support of this complaint is the Supreme Court Order whereby the solicitor admitted he had held himself out to be a solicitor without being the holder of a current practicing certificate contrary to Section 25(3) of the Act.

Would Suspension Suffice?

103 Despite the caution urged by McHugh JA (as he then was) quoted at the beginning of this judgment, the Tribunal is satisfied that the grounds proved in evidence in these unfortunate proceedings show that the Solicitor is not a fit and proper person to practice as a solicitor.

104 Factors which preclude a fine or suspension seem to the Tribunal to include:

1. The gravity of the professional misconduct, particularly allegations 1, 3, 4, 5, 6 and 7.
2. His failure to display any regret or contrition, or even to acknowledge any wrongdoing save in the 2nd Reply, later withdrawn.

105 These things taken together, in the Tribunal’s view, indicate that the solicitor lacks the qualities of character and trustworthiness which are necessary attributes of a person entrusted with the responsibilities of a legal practitioner. [cf. In re a Practitioner, per King CJ cited above].

106 The Tribunal is of the view, after a great deal of careful deliberation, that an order should be made striking the respondent’s name from the Roll of Solicitors.

THE ROLE OF THE LAW SOCIETY

107 The Tribunal feels obliged to say something in these reasons about the role of the Society.

1. Section 154 of the Legal Profession Act requires an investigation to be conducted expeditiously.
The Brooks complaint was made on 24 July 1996 and referred by the Commissioner to the Society on 26 September 1996. The X complaint to the Commissioner bears date 16 September 1996 and the Society first wrote to the Solicitor on 25 November 1996.
The Information which founds the Tribunal’s hearing bears date 24 August 1999.
Despite the prevarication of the Solicitor, this time lapse can hardly reflect expeditious investigation.
2. The file shows that repeatedly the Society required the Solicitor to provide written information by a date specified, to provide documents and to provide statutory declarations.
In few cases did the Solicitor respond in the time allowed and in some cases he has never responded to specific requests. He never supplied any statutory declaration.
Despite this no allegation of professional misconduct, based on s.152(4) was made by the Society. Little wonder that investigation was painfully slow.
3. The Society’s offer in each case to close the file if the Solicitor consented to a reprimand was inappropriate in the Tribunal’s view. It sent a wrong message as to the seriousness of the Solicitor’s conduct which he received loud and clear as his subsequent actions show.
The orders originally sought would tend to send a wrong message to the profession and to the public as to the responsibilities and obligations of solicitors and the seriousness of failure to abide by them.
5. It was in the Tribunal’s view inappropriate to consent to the admission of testimonials which were not sworn and which, in particular, did not demonstrate the full awareness of those giving them of the precise nature of the allegations made and admitted.

The failures do not reflect well on the Society’s approach to the maintenance of professional standards.