Law Society of NSW v Ling
[2010] NSWADT 48
•16 February 2010
CITATION: Law Society of NSW v Ling [2010] NSWADT 48 DIVISION: Legal Services Division PARTIES: APPLICANT
RESPONDENT
Council of the Law Society of New South Wales
Paul Adrian Mee LingFILE NUMBER: 092004 HEARING DATES: 11 November 2009 SUBMISSIONS CLOSED: 11 November 2009
DATE OF DECISION:
16 February 2010BEFORE: Riordan M - Judicial Member; Hale S - Judicial Member; Bennett C - Non-Judicial Member CATCHWORDS: Solicitor – disciplinary application – professional misconduct LEGISLATION CITED: Legal Profession Act 2004 CASES CITED: Allinson v General Council of Medical Education and Registration (1894) 1 QB 750
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
In re Hodgekiss [1962] SR (NSW) 340
Kennedy v The Council of the Incorporated Law Institute of NSW 1940 13 ALJ 563
Law Society of New South Wales v Hinde [2005] NSWADT 199REPRESENTATION: APPLICANT
RESPONDENT
L Pierotti, solicitor
R Englebrecht, solicitorORDERS: The Tribunal orders:
1.That Paul Adrian Mee Ling be publicly reprimanded
2.That for the period from the date of this decision up to and including 30 June 2010:
(a)The Solicitor continue to meet his obligations to the Australian Taxation Office and his staff with respect to the payment by him of any moneys due and payable to any or all of them;
(b)The Solicitor continue to meet his obligations with respect to the lodgement by him (within the requisite statutory period) of any tax returns to be lodged by him with the Australian Taxation Office;
(c)The solicitor shall continuously retain an independent expert acceptable to the Council of the Law Society:
i.Such expert shall supervise the Solicitor’s financial affairs and in particular his reporting and payment obligations to the Australian Taxation Office and payment of all entitlements due to staff; and
ii.Such expert shall provide to the Council of the Law Society a quarterly report indicating that the Solicitor has complied with his reporting and payment obligations to the Australian Taxation office and to his staff. Such reports are to be received by the Council of the Law Society no later than 21 days after the end of each quarter. The first such report that is the subject of this order shall be due for the 30 January 2010 and is to be received by the Council of the Law Society by 21 February 2010, 21 April 2010 and 21 July 2010
3.That Paul Adrian Mee Ling is permitted to continue practising as a Solicitor on the condition that he shall within 14 days of the date of this Decision provide the Society with the following irrevocable written undertakings:
a)That he will undertake a Course in Practice Management that is approved by the Society, such course to either commence prior to 31 March 2010 (or if such a course is unavailable prior to that date, the first course thereafter), with the proviso that the course must be completed to the satisfaction of the Society by 1 August 2010.
b)That he will undertake a course in Ethics that is approved by the Society that commences either prior to 31 March 2010 (or if such a course is unavailable prior to that date, the first course thereafter), with the proviso that the course must be completed to the satisfaction of the Society by 1 August 2010.
c)That he will on and from the date of his undertakings participate in the Senior Solicitors Program and accept mentoring by a Senior Solicitor nominated by the Society for a period of no less than three (3) years from the date this decision and to confer frequently and co-operate with that Senior Solicitor in the conduct of his program. The costs of his participation in this program are to be borne by the Solicitor.
4.In the event of, and upon any default in the satisfaction of any of the undertakings required by Order 3 above) Paul Adrian Mee Ling’s Practising Certificate shall be suspended forthwith and shall remain so for the duration of the default.
5.Paul Adrian Mee Ling shall be fined $2,500.
6.Paul Adrian Mee Ling shall pay the Society’s costs of and incidental to these proceedings, as agreed or assessed.
REASONS FOR DECISION
1 In this matter the Applicant, the Council of the Law Society of New South Wales (“the Society”) made an Application against the Respondent, Paul Adrian Mee Ling (“the Solicitor”) alleging that he was a Legal Practitioner within the meaning of the Legal Profession Act 2004 (“the Act”) and that while practising as such he was guilty of professional misconduct on two (2) grounds.
2 The Society sought the following orders:
a)The Legal Practitioner be reprimanded;
b)The Legal Practitioner be fined;
c)The Legal Practitioner’s Practising Certificate be cancelled and no further Practising certificate issued to him until such time as he has provided all information required by the trust Account Inspector;
d)The Legal Practitioner to pay the costs of the Society of and incidental to the Proceedings.
3 The Application set out two grounds, supported by particulars, for a finding of professional misconduct against the Solicitor, namely that:
- a)He has failed to comply with an undertaking given to the Council; and
b)He failed to comply with requirements made by an Investigator in breach of Section 671 of the Legal Profession Act, 2004.
4 The Solicitor’s age is not in evidence, but he was admitted to practise in New South Wales on 9 July 1982.
5 Section 671 of the Act provides:
(2) The contravention by an Australian legal practitioner of any condition imposed by an investigator in the exercise of powers conferred by this Chapter is capable of being professional misconduct...”“(1) The failure of an Australian legal practitioner to comply with any requirement of an investigator in the exercise of powers conferred by this Chapter is professional misconduct.
6 The grounds of complaint in the Application are as follows.
“1. In these Particulars: “the Solicitor” means PAUL ADRIAN MEE LING.
BREACH OF UNDERTAKING
On 27 November 2006, the Law Society of New South Wales [“the Society”] received notification from the Solicitor that he had pleaded guilty to six charges of failing to furnish GST returns as required. Further, that he had been convicted of those charges on 21 November 2006 at Woy Woy Local Court and as a result of which he was fined $3,000 and ordered to pay $105 court costs [“the notification”]. The offences related to outstanding GST returns for the six periods between 1 July 2004 and 31 December 2005.
The notification was considered by the Disclosure Committee of the Society at its meeting on 15 March 2007. Having regard to an undertaking given by the solicitor [“the undertaking”], the Disclosure Committee resolved to take no further action in respect of the notification.
The undertaking was in the following terms:
“I undertake that for the period up to and including the 30th June 2010:
Continue to meet my obligations to the Australian Taxation Office and my staff with respect to the payment by me of any moneys due and payable to all or any of them;
Continue to meet my obligations with respect to the lodgement by me (within the requisite statutory period) of any tax returns to be lodged by me with the Australian Taxation Office;
Continuously retain an independent expert acceptable to the Council of the Law Society:
Such expert shall supervise the Solicitor’s financial affairs and in particular his reporting and payment obligations to the Australian Taxation Office and payment of all entitlements due to staff; and
Such expert shall provide to the Council of the Law Society a quarterly report indicating that the Solicitor has complied with his reporting and payment obligations to the Australian Taxation Office and to his staff. Such reports are to be received by the Council of the Law Society no later than 21 days after the end of each quarter, the first of which shall be due for the quarter ending 30 April 2007.”
Pursuant to the undertaking, the first report from the Solicitor’s accountant was to be received by 21 May 2007 and every three months thereafter.Throughout 2007 no report as required by paragraph (iii)(B) of the undertaking was received.
The Solicitor provided a number of excuses and admissions and gave assurances that the question of the outstanding report would be dealt with. By letter dated 5 January 2008 the Solicitor advised, in part:“... I apologise for my non-compliance. The difficulty I have had is in finding a suitable expert. I had wished to retain Mr Masterson, as he is the accountant I have used for years... but he was not sure that he would meet the qualifications in the undertaking... I had hoped he would reconsider. But as I said to you last Thursday, it may be he is not prepared to complete an external examiner’s course, in which case I will have to find another accountant anyway.
Given the season and extra requirement, I seek more time in which to find an expert to furnish the Society with the reports I am obliged to have made...”
On 21 April 2008 Mr Mark Shum of the Society’s Trust account Department attended at the Solicitor’s office and reminded him of his obligation under the undertaking to provide a quarterly report pursuant to paragraph (iii)(B) of the undertaking.
By letter dated 11 August 2008 the Society wrote to the Solicitor. The letter provided:
“Please find attached a copy of the undertaking given by you in respect of your disclosure of a taxation offence.
It is noted that you have failed to appropriately comply with the terms of the undertaking.
Amongst other failure, you have not appointed and (sic) independent expert acceptable to the Council.
The Council must now consider your non-compliance and your entitlement to hold a practising certificate. Please either provide an accountant’s report from an acceptable independent expert that shows full compliance with the undertaking or provide me with your submissions as to why you have failed to comply with the undertaking so that the matter may be considered by the Council.
Any report or submissions should be received within 7 days.”
By letter dated 18 August 2008 and faxed to the Society on that day, the Solicitor referred to the letter at paragraph A8 above and advised:
“I am in the process of attending to these matters but find myself under considerable pressure of work. I ask for a further 7 days in which to put submissions and furnish accountant’s reports.
I assure the Society that while I am less than perfect in these fields I am in fact filing returns and paying tax.”
By letter dated 19 August 2008 the Society reminded the solicitor that the quarterly report required by the undertaking was due to be received by 21 August 2008. The letter requested that the Solicitor ensure that the timing in respect of such report was met.
By letter dated 28 August 2008 the Solicitor wrote to the Society in part enclosing certain material from the Australian Taxation Office. The letter concluded:
“I shall obtain reports from my accountant and put submissions before you.”
By letter of 2 September 2008 to the Solicitor the Society, in part, noted that there had not yet been compliance with his undertaking.
On 4 September 2008 the Professional Conduct Committee of the Society [“the Committee”] resolved, pursuant to Section 504 of the Legal Profession Act, 2004 to make the following complaint against the Solicitor:
“The solicitor has failed to comply with an undertaking given to the Council.”
The complaint was put to the Solicitor by letter dated 5 September 2008.
By letter dated 19 September 2008 to the Solicitor the Society noted that there had not been a response from him to the letter of 5 September 2008.
By facsimile transmission dated 19 September 2008 the Solicitor wrote to the Society and therein sought until 29 September 2009 to make his submissions. The Solicitor’s letter concluded:
“I am in the process of obtaining a report from Mr John Masterson as to my affairs which should be made within a couple of days. I am also obtaining counsel’s advice.
Please grant me the further time.”
By facsimile transmission dated 29 September 2008 the Solicitor advised:
“I write to ask for another two days. An urgent matter cropped up which has taken up my time. I have drafted but not yet settled my submissions. I shall have them to you on Wednesday.
Please grant me the further time.”
By facsimile transmission on 19 September 2008 Mr J A Masterson advised, in part, that he was “supervising” the Solicitor’s “financial affairs”. The transmission concluded:
“On the basis of the records I have received the Solicitor has now complied with his reporting and payment obligations to the Australian Taxation Office and his staff.”
Under cover of a letter dated 1 October 2008 the Solicitor was served with a Notice, dated the same day, pursuant to Section 660 of the Legal Profession Act, 2004 [“the Notice”].
By letter dated 6 October 2008 [received by facsimile transmission on 7 October 2008] the Solicitor advised, in part:
“I admit that I was not meeting my GST obligations until August 2008... Mr Masterson could not report that I had met all those obligations because I had not. His report does show that I have now regularized my affairs. The cause of there being no reports was my failure to address Mr Masterson’s reservations or get another expert.”
“I did not provide reports in compliance with my undertaking on or before 21 May 2007, 21 August 2007, 21 November 2007, 21 February 2008, 21 May 2008 and August 2008 because I did not pay adequate attention to my affairs in the circumstances and for the reasons following.”
By letter dated 7 October 2008 the Society informed the Solicitor that, contrary to his letter, no report had been received in compliance with the undertaking.
Under cover of his letter dated 28 October 2008 the Solicitor provided his response to the Notice. The covering letter concluded:
“I shall obtain a report from Mr Masterson and give it to you pursuant to the undertaking.”
On 18 November 2008 Mr Masterson provided a letter reporting on the Solicitor and in respect of the quarter ended 30 September 2008.”
B. BREACH OF SECTION 671 OF THE LEGAL PROFESSION ACT, 2004
On 21 April 2008 Mr Mark Shum, a Trust Account Investigator, carried out an investigation of the Solicitor’s law practice. A copy of Mr Shum’s report [“the report”] was provided to the Solicitor under cover of Mr Shum’s letter of 22 April 2008 [“Mr Shum’s letter”].
Mr Shum’s letter required the Solicitor to attend to certain matters raised in the report, including the need for the Solicitor to provide certain documents to Mr Shum.
By letter dated 19 April 2008 addressed to the Solicitor, Mr Shum noted that he was still awaiting the Solicitor’s response to the requirements set out in the report. The Solicitor’s attention was drawn to the provisions of Section 671 of the Legal Profession Act, 2004.
By letter dated 23 July 2008 to the Solicitor, Mr Sofiak, Mr Shum’s Section Leader, noted that the Solicitor’s response to the requirements set out in the report was not yet to hand. The Solicitor, in part, was advised that if he did not comply with the requirements in the report then the matter would be referred to the Professional Standards Department of the Society.
The solicitor did not respond to the letters referred to in paragraphs B1, B3 and B4 above and, as foreshadowed, the papers were referred to the Professional Standards Department of the Society.
By letter dated 10 October 2008 the Society wrote to the Solicitor and, in part, invited him to make submissions as to why the Council of the Society should not proceed to make complaints against him.
By letter dated 16 October 2008 the Solicitor made various submissions as to why complaints should not be made. In part, the Solicitor requested:
“... a period of 1 month in which to clear out the old accounts and make the statutory deposit by obtaining a ruling as to amount and paying it. I seek a further period of one month in which to assemble and supply all the material requested by the inspector.”
On 16 October 2008 the Committee, pursuant to the provisions of Section 504 of the Legal Profession Act, 2004 made the following complaint against the Solicitor:
“Failure to comply with required (sic) made by an Investigator in breach of section 671 of the Legal Profession Act, 2004”.
By letter dated 20 October 2008 the Solicitor was, in effect, given a period of one month in which to attend to Mr Shum’s requirements.
By letter dated 31 October 2008 the Solicitor was informed of the making of the complaint and requested to provide a response thereto within fourteen (14) days.
By letter dated 18 November 2008 the Solicitor was reminded that there had not been a response from him to the Society’s letter of 31 October 2008.
By letter dated 25 November 2008 the Solicitor was reminded that there had not been a response from him to the Society’s letters of 31 October and 18 November 2008.
On 18 December 2008 the Committee resolved as follows:
“ RESOLVED that Paul Mee Ling (“the legal practitioner”) be informed of:
The issues of professional misconduct which, in the opinion of the Committee, are involved in the complaint and in respect of which the Committee invites submissions on or before 22 January 2009; and
The Committee’s opinion that, subject to submissions, it should resolve that it is satisfied there is a reasonable likelihood that the legal practitioner will be found by the tribunal to have engaged in professional misconduct and that proceedings be instituted in the tribunal with respect to the complaint pursuant to section 537(2) of the Legal Profession Act, 2004.
Professional Misconduct
The Solicitor has failed to comply with an undertaking given to the Council.
Failure to comply with the requirements made by an Investigator in breach of Section 671 of the Legal Profession Act, 2004.
It is the Committee’s opinion that, subject to any submissions, the appropriate orders to be sought on a referral to the Tribunal of this complaint are as follows:
Orders to be Sought
The legal practitioner be reprimanded.
The legal practitioner be fined.
ii.(sic) The legal practitioner’s Practising Certificate be cancelled and no further Practising Certificate be issued to him until such time as he has provided all information required by the Trust Account Inspector.
The legal practitioner pay the costs of the Society of and incidental to the Tribunal proceedings.
Such further Orders at (sic) the Tribunal sees fit.
Consideration that the complaint is to be placed on the agenda of the whole of the Professional Conduct Committee as soon as practicable after 22 January 2009.”
By letter dated 23 December 2008 the Solicitor was informed of the Committee’s resolution of 18 December 2008. The letter concluded:
“If you wish to make any further submissions of fact or law or as to the orders to be sought, you should ensure that they reach the writer on or before 22 January 2009. If no submissions are received from you within that time the Committee will reconsider this complaint on the information presently available.”
By letter dated 21 January 2009 the Solicitor was referred to the Society’s letter of 23 December 2008 and reminded that his response was due by 22 January 2009.
On 23 January 2009 [received on or about 27 January 2009] the Solicitor wrote to the Chief Trust Account Inspector and provided various documents which had been required by Mr Shum in his report and concluded:
“I should have the 4 outstanding items within a fortnight.”
As at the date of this Application, no further material has been received from the Solicitor.”On 25 March 2009 the Solicitor wrote to the Chief Trust Account Inspector and provided two of the further documents which had been required by Mr Shum.
The Evidence
7 The Society relied upon the following evidence:
- a)Affidavit of Raymond John Collins sworn 8 April 2009 - Exhibit A; and
b)Further Affidavit of Raymond John Collins sworn 12 October 2009 – Exhibit B; and
c)Further report of Mr Masterson dated 23 October 2009 – Exhibit “C”.
These documents were admitted into evidence without objection and the Solicitor did not require Mr Collins to attend for cross-examination.
8 In his opening, Mr Pierotti noted that the Solicitor asserts that he has provided the documentation required in relation to Complaint A. In relation to Complaint B, he stated that the issue of the Statutory Deposit had been resolved and that this was evidenced by the letter dated 22 January 2009 from Mr John Mitchell, Chief Trust Account Investigator & Supervisor, to the Solicitor (which is annexed to Exhibit B).
9 However, in relation to “the old balances”, it was unclear whether or not the Solicitor had dealt with the old balances. There is evidence by way of correspondence from the Solicitor in Annexure “A”, particularly at page 75, in which he promises to deal with them and gives reasons as to why he had not done so. If he has dealt with them there will be no need for the Society to press for the suspension order that is sought in the Application.
10 The Solicitor filed a Reply in which he admitted Complaint A and the particulars “A1 to A22”, but he stated:
“...The respondent relies in mitigation on the facts stated in the correspondence and Section 660 Declaration in the Applicant’s evidence”.
Further in relation to particular A20, he stated:
“No reports were possible because the respondent’s taxation affairs were not regularized until the July-September 2008 quarter.”
11 The Solicitor also admitted Complaint B and particulars B1 to B18. However, he stated:
“... The respondent relies in mitigation on the facts stated in the correspondence in the applicant’s evidence.
The one outstanding authority (Wakim item 3) was provided today.”FURTHER
12 The Solicitor relied upon his Affidavit sworn 9 October 2009 (Exhibit 1). Mr Englebrecht also sought leave to call oral evidence from the Solicitor, in order to clarify the issue of “moving offices” and “outstanding balances”. Mr Englebrecht stated that the failure to comply had really been over the years 2007 & 2008 and that it was during that this time that the matters that the Solicitor raised as explanations arose and he did not go into any great detail regarding them and in relation to “the old balances”.
13 The Tribunal noted that these proceedings commenced in April 2009 and that the Solicitor had been provided with ample opportunity to put on any evidence that he wished to rely upon in Affidavit form and that the matters that he alluded to did not arise from anything that Mr Pierotti had said in these proceedings. The Tribunal was persuaded to grant leave to the Solicitor on the basis that the Society’s rights to respond were protected.
14 The Solicitor was called and sworn. He stated that he moved into his current business premises on 1 April 2008 and that his old office was about 3 times larger than his current office. He moved into premises that were previously occupied by his father. He said that it took him 6 to 8 weeks to go though the files to ensure that nothing of any substance was being thrown out and wills had been left by the previous Solicitor going back 20 years, which was really quite disturbing, and at the end about 5 to 7 truckloads of rubbish had to be taken away. They were files from a moribund practice going back 20 years or more and they had to be disposed of in due course.
15 In relation to “the old balances”, he stated that there were 3 matters referred to in the report, namely “C1, G1 and R1”. He said that item C1 had been sent to the Office of State Revenue “some time ago”, although he was not sure when; Item R1 was outstanding costs for an old matter in which a bill was rendered and after 7 days, without objection, the money was taken out of the Trust Account; he believed that matter G1 was a typographical error as the matter is still current; and in relation to item J1 he had paid the sum to the doctor that had never been paid. He could not recall when he had produced the required documents to the Trust Account Inspector, although some of the required documents were given to the Trust Account Inspector on 23 January 2009 (see: page 89 Exhibit A). He believed that there were then 4 outstanding matters, which he “had overlooked”. On 25 March 2009 (Annexure K1 to Exhibit A) he sent a fax to Mr Mitchell enclosing 2 further Authorities that actually covered 3 items. The final outstanding item was referred to in his Affidavit (Exhibit 1).
16 In cross-examination, Mr Pierotti asked the Solicitor when he had told the Trust Account Inspector that he had dealt with those outstanding matters (referred to on pages 68 and 69). He replied:
“I haven’t had an inspection since then.”
17 Further, the Solicitor stated that he had not written to the Society about this, in part:
“...because I didn’t actually think it was required. I acknowledge that it says “yes” in the Schedule, but I just thought that the next time that the Trust Account Inspector came around, he would look at it.”
However, he eventually conceded after lengthy cross-examination that he was clearly required to inform the Society in writing that he had cleared “the old balances” and that that this was initially required by Mr Partridge in 2006; that it was followed up by Mr Shum in 2008 and later by both Mr Sofiak and Mr Collins; and that he did not ever deal with it.
18 The Solicitor attempted to explain his inaction as follows:
“Well I thought that what concerned the Inspectors and therefore what concerned the Society was the provision of the documents that related to the act of payments being made out of the Trust Account…”
He also stated that he “had overlooked it and had not deliberately refused to respond”. He also asserted that he had overlooked the continuous reminders that the Society sent to him in 2008, in part:
“...because I had to extract from the files the material to provide these authorities. I had substantial matters spanning quite a number of files and I don’t have enough staff to be able to organise things so that I had time available, and the major priority for me was to provide the information that it seemed to me was the most important thing needed in the report.”
19 The Solicitor’s evidence was that he “had probably dealt with the matter of “the old balances” in 2009, but that he had possibly utilised the costs during the quarter ending June 2009. He conceded that he had probably attended to the matter of the old balances after he was served with the current Application. He said that it had taken him almost 12 months to attend to the matter because “... It was a matter of priority and there were other things that I felt that I had to do.” The following exchange occurred:
A. Well ... to my mind a Trust Account Inspection is about seeing that the client’s money is not being misapplied. That it is being properly dealt with and it seemed to me that the provision of the authorities that Mr Shum had asked me for was of higher priority and as I said I had significant matters that occupied my time. If I didn’t do things for clients it was going to injure their interests.”“Q. Can you explain to the Tribunal what in your mind prioritised something that had been raised with you by the Trust Account Inspector and by another Trust Account Inspector 2 years earlier?
20 The Solicitor conceded that he sent the bulk of the required authorities to the Society in January 2009 and that it took him almost 9 months to get those authorities together. He said that he could not say the exact amount of time that he spent on the matters, but that there was a substantial volume of materials to go through. He stated, in part:
“... I admit that it was wrong of me not to have been more thorough of me in keeping my authorities but I had the practice of keeping them on the files... I did not have back references and I had to go through all of the files....”
21 In relation to his letter to the Society dated 16 October 2008, the Solicitor maintained that despite performing “a massive culling” of about 20,000 files, when he moved into his new premises, and having undergone a Trust Account Inspection, he was not in a position to find 3 files and to do what the Investigator required of him. He also stated that he did not inform Mr Collins of his difficulties or seek more time to comply, as “it didn’t actually occur to me”. He denied that he just put things aside and hoped that they would go away?
22 In relation to the matter of the Undertaking, Mr Pierotti put to the Solicitor that after he had disclosed a Tax offence to the Society, it allowed him to continue to practise law if he gave a particular undertaking, which is found at Page 26 of Exhibit A). The Solicitor disputed that the first report received by the Society is found at page 58 of Exhibit A and relates to the September quarter, and stated that there was an earlier report. However, he conceded that it did not state that it was provided in compliance with the undertaking, but asserted that it was a report that said that “... he was complying et cetera after that time”. Although the report does not state the period referred to it was dated 19 September 2008. The next report is at page 58 of Exhibit A and the next report is received on 25 March 2009. The following exchange followed:
“Q.What were you doing Mr Mee Ling during this period to ensure that you were complying with your undertaking? Were you ringing Mr Masterson and saying, Listen, have you sent the report...I’ll come & collect it & send it in...Whatever?
A.Well, for the reasons that I have put in my letters that are all in evidence, I was trying to keep him as an accountant if possible...
Q.Well we will come to that Mr Mee Ling but I am now talking to you post 18 November 2008. Let’s just deal with that period... He is now producing the reports. What are you doing to ensure that those reports are received within 21 days of a quarter other than the regular June, September etc. What are you doing to ensure that there is compliance?
A.When I pay my GST I send off my GST return and a spreadsheet underpinning it to Mr Masterson.
...A.He has instructions & he faxes to me a copy of what he sends to the Law Society so that I can see that he has done it.”Q.What were you doing to ensure that the report was produced within the time stipulated? Let’s not worry about what underlies that report... What are you doing to ensure that on the 21st day of a particular month the Society receives from Mr Masterson a report? Whether it is directly from him, through you, via a third party, whatever?
23 The Solicitor disputed that Mr Masterson’s reports do not comply with the terms of his undertaking and asserted that the undertaking requires that he has “21 days from the end of each GST quarter” in which to produce Mr Masterson’s report to the Society. He asserted that the undertaking “...is about GST compliance”. While he conceded that the undertaking did not actually say that, he insisted:
“That’s what it’s about – it’s tied to GST reporting.”
24 The Solicitor stated that he had not sought to have the terms of his undertaking varied and that he had a set time in which to comply and produce a report. He asserted that he had complied after November 2008 because he read the undertaking as being tied to dates for reporting to the Australian Taxation Office and that all of Mr Masterson’s reports, with the exception of that dated 25 October 2008 (which was late) complied with the undertaking. However, he conceded that he did not comply for a long period of time “... because I procrastinated”.
25 The Solicitor denied the proposition that from May 2007 until the latter part of 2008 he had done nothing to comply with the undertaking, because his GST obligations were not up to date. However, he was reminded of his letter to the Society dated 6 October 2008 (see: page 49 Exhibit A), in which he stated, in part:
“... I admit that I was not meeting my GST obligations until August 2008. I had been labouring under a mistake (as set out in my letter to you of 28 August 2008) – that all the GST liability up to the time of the March 2007 undertaking had been paid because I had paid the amount the ATO had specified. But the October BAS was mysteriously not processed with the rest of my GST returns and was not dealt with by the ATO until the following April when the GST was properly debited to me. Mr Masterson could not report that I had met all those obligations because I had not...”
In response to this, he stated:
“I thought I was complying”.
26 Otherwise, the Solicitor stated that he did not consciously decide not to respond to correspondence from the Society, although he deliberately did not respond to Mr Collins’ letter dated 23 December 2008 or make submissions “...because I thought I had done so.” He could recall whether or not he had responded to Mr Collins’ letter dated 31 October 2008. He agreed that he had only responded to the letter dated 5 September 2008 (see page 41, Exhibit A) after 2 extensions had been sought. In response to the Society’s letter dated 19 August 2008 (see page 28, Exhibit A), he agreed that he had responded by letter dated 28 August 2008. However, he did not dispute the due date for the report that was as set out the Society’s letter.
Submissions
27 Mr Pierotti submitted that what was telling from the Solicitor’s evidence today is the seriousness of the conduct and with all due respect to him, the lightness with which he has taken it. He noted the Solicitor’s evidence was that he always knew that it was serious not to comply with the undertaking, but that it was “not a serious breach”, which, in his submission “says it all”, as when a practitioner knows that what he is doing is wrong, nothing needs to be added to it and everything else that he had stated in his evidence was a reconstruction. The short of it is that there were 2 very “simple” requirements placed upon him, namely that it would allow him to keep practising if he did the following... namely, find an accountant, brief the accountant and have them produce a report 21 days after the end of a set period nominated in the undertaking. For whatever reason, the Solicitor had simply disregarded his responsibilities. The same applies to the matter concerning the Trust Account and the Solicitor’s evidence today was that at some time probably in the June quarter of this year he finally complied with the requirements made of him in 2006. The old balances were initially raised with him in 2006. He did not tell anyone that he had cleared those balances, although one of the reasons that he was here today was because he did not comply with those requirements, and he asserted that he didn’t tell anyone because he thought that it would be seen on the next routine inspection on 23 November 2009.
28 Mr Pierotti submitted that this is a case where the Society, as the Solicitor’s professional association, was carrying out its statutory obligations under the Act and in doing so it relied upon his undertaking as a means of determining whether he was a fit & proper person to hold a Practising Certificate. He did not comply with the undertaking and now asserts that that what the undertaking says is not what it means. However, the undertaking is written in plain language and clearly means what it says, and even if it means what the Solicitor now alleges, he did not comply with that either. As a result, his explanations should be treated with great reluctance the explanations as they are untenable on the evidence and in view of the way that these proceedings have been conducted, noting that the Solicitor failed to comply with Directions of the Tribunal and even Consent Orders.
29 Mr Pierotti stated that the Court of Appeal has made it abundantly clear that the Legal Profession and the Solicitor in particular, need to be told that when one undertakes to do something, one is required to comply 100% with that undertaking, especially when the undertaking is made in favour of the Solicitor’s professional association. This is the “the educative effect” of the Tribunal’s function that was described by Mahoney J in Foreman’s case).
30 The Society submitted that this case is distinguishable from the authorities that support that some breaches of undertaking can be unsatisfactory professional conduct, because there is no evidence of illness and the like. Further, the Trust Account matter (“the old balances”) is a statutory matter and the conduct overall amounts to professional misconduct. It must fall within the Allinson definition of “disgraceful & dishonourable conduct”.
31 With respect to penalty, the Society no longer pressed for cancellation of the Practising Certificate, albeit at the heel of the hunt. However, he pressed for the making of orders numbered “I” and the first of the paragraphs numbered “ii” in the Application and also sought an order for costs. He further submitted further orders may be required in view of the Solicitor’s evidence and the fact that the undertaking remains in force until 30 June 2010.
32 On behalf of the Solicitor, Mr Englebrecht conceded that there had been a persistent failure to comply with the undertaking. However, much has been said about the interpretation of the undertaking and it is clear to me that it says:
“The expert shall supervise the practitioner’s financial affairs and in particular his reporting and payment obligations to the ATO... and shall provide a quarterly report that the Solicitor has complied with his reporting and payment requirements to the ATO”...
However, he agreed that the difficulty with that interpretation is that the undertaking makes no reference to the date of the Solicitor’s obligation to make payments to the Australian Taxation Office.
33 Mr Englebrecht emphasised the Solicitor’s evidence concerning his busy workload and lack of staff, but the Tribunal noted that that was a result of his choice and that there was no evidence to suggest that he did not employ support staff because he could not afford to do so. He submitted that the Solicitor had been practising for 25 years and that up until the time that he failed to file his GST returns and was convicted of that matter by the Local Court, and with the exception of those 2 years, he had been a fit and proper person to hold a Practising Certificate. He conceded that the Solicitor’s conduct was “certainly capable of being professional misconduct”, yet he suggested that a public reprimand should be “discounted”.
34 The Tribunal asked Mr Englebrecht whether there was any financial material that he could point us to concerning the Solicitor’s ability to pay a fine, if indeed we determined that a fine was appropriate. He said that there was some limited information in the GST returns, but otherwise there was no evidence on that issue.
Findings
35 With respect to the Solicitor’s belief as to what the Solicitor described as “the spirit” of his undertaking to the Society, the Tribunal is of the view that the written undertaking speaks for itself. It did not link the Solicitor’s obligation to provide the required expert’s reports to the date(s) upon which he was required to satisfy his obligation to pay GST to the Commonwealth Government. The Solicitor did not at any time seek to clarify the Society’s literal interpretation of the undertaking, despite having had ample opportunity to do so, and he did not he seek to vary its terms at any time.
36 Accordingly, the Tribunal rejects the Solicitor’s evidence on this issue and is satisfied that the Solicitor breached the undertaking, as alleged, and that he continues to be in breach of his undertaking to the Society. This is of particular significance and concern to us as the undertaking remains in force until 30 June 2010. As a consequence, we feel that it is necessary to make an order that formalises the solicitor’s obligations under that undertaking.
37 The Solicitor was cross-examined at length as to whether his failure to comply with his undertaking to the Society was deliberate or not. Bearing in mind the Tribunal’s obligation to determine whether the Solicitor is currently fit to practice as a Legal Practitioner, and given the absence of Affidavit evidence on this issue, the Tribunal questioned the Solicitor regarding the extent of his understanding of an undertaking. This included:
“Q.On a scale of 1 to 10, where 10 is something that you have to do that is extremely important and carries the highest weight and 1 is a matter of the lowest possible priority, where would you rank a Solicitor’s undertaking?
A.I don’t know that it is the highest obligation but it is a very serious obligation and a serious duty.
Q.Well, what number would you assign to it for example between 1 and 10?
A.I suppose compliance with a criminal order etc must be a 10; compliance with a civil judgment of the courts would have to be an 8 or a 9; I would put a solicitor’s undertaking to be between 5 and 7 I should say.
Q.Between 5 and 7?
A.Yes.
Q.So based on that scale, and please excuse me if I am wrong, you regard a Solicitor’s undertaking as being of mid-range importance?
A.No, no. That’s not true...
Q.Well, you did say somewhere between 5 and 7.
A.Well in the course of my practice I give undertakings for conveyancing matters and people rely upon my complying with them.
Q.That is rather the point isn’t it. You give an undertaking and the person that you have given the undertaking to expects to be able to rely upon it?
A.Yes.
Q.And in this case, you have given an undertaking to the Law Society, your professional association, in response to it allowing you to continue practising under certain conditions. So, given that and that scenario, do you still rate a Solicitor’s undertaking as being somewhere mid-range on the scale of importance?
A.Well I have to say that I regard all obligations as important. I don’t mean to say that by putting it towards the middle...
Q.I am simply trying to understand your conduct and why you are here Mr Mee Ling.
A.Well, essentially I had too much work of the wrong sort I suppose and insufficient organisation and insufficient application to my own personal affairs, which is what I should have done.
Q.Are you seriously putting that forward as an excuse?
A.It’s not an excuse, it’s mitigation. I don’t for an instance suggest that there is nothing wrong with what I have done. I have done the wrong thing. I have failed to report as I ought to have reported. I believed, wrongly, that it was not compliance but that I was at least meeting the spirit of what my undertaking required by at least meeting the obligations that the undertaking required me to do, so I was...
A.Yes, I do. I was supposed to have reports made to the Law Society for each GST quarter saying that I had complied with my GST Tax obligations – Goods & Sales & also Income Tax for that quarter.”Q.Do you understand the difference between what you have just described as the spirit of what you understood the undertaking to be and the actual words in the document that you agreed to- the undertaking that you gave?
38 The Solicitor stated that when he gave the undertaking, he had substantial cases under way that he had to do himself because he has no secretary and that these were quite stressful and difficult cases. He stated, in part:
“…I just found that my working days were until 6 or 7 or even 8 at night were being eaten up by my practice. It seemed to me that I just had to put my clients’ interests first and ... I understand that it’s, I must be ... amenable to supervision. It is my duty to show that I am doing what I am supposed to do and I should have provided the reports that I agreed to give…”
He said that he agreed to the particular terms of the undertaking because he thought that he could comply with it. Otherwise, in relation to his failure to notify the Society, as required, he stated:
“Well officers of the Law Society had been talking and had actually been very good about this. They were prompting me and I should’ve acted and I didn’t act, but I am reasonably sure that I had, I think that I had sent some GST returns to them. But as I say, it was wrong of me. I believed that as long as I was I complying with my obligations, the obligations that the undertaking was releasing, then I was not committing a serious breach of my professional duties. Or rather, well I always knew that it was serious not to comply with an undertaking to the Law Society, especially to the Law Society, but I thought that if I was in fact doing what was required, sorry what it seemed that I was supposed to do then I was not committing a particularly, or rather a very serious breach, or rather it seemed that I just had to do my work in preference.”
39 The following exchange occurred:
“Q.Do you accept that when it comes to an undertaking, a breach is a breach and there is no question of a serious breach or a minor breach?
A.Well...
A.A breach is a breach but it would be much more serious to, um ...”Q.A breach is a breach?
40 The Tribunal is also satisfied that the Solicitor failed to comply with his obligations under Section 671 of the Act, and that he was in breach for a significant period of time. In fact, the last of the required documents was not produced to the Society until September 2009.
41 Although the Solicitor’s evidence is that he had cleared “the old balances” that were referred to in Mr Shum’s report, which Trust Account Inspector Partridge had previously required him to do, he had not notified the Society of this in writing. As a consequence, the Society was not aware whether or not he had cleared “the old balances” and complied with his obligations under Section 671 of the Act as at 11 November 2009 (when the hearing of this matter commenced).
42 The Solicitor sought to explain his failure to notify the Society of his compliance on the basis that the Trust Account Inspector would have noted this on the next routine inspection of his account in late November 2009. However, the Tribunal cannot accept this explanation as being reasonably or soundly based as there is ample evidence before us that the Solicitor was informed by the Society that he was required to give it written notification of his compliance. Indeed, we are at a loss to understand the Solicitor’s attitude, given the specific terms of Complaint B in the Application.
43 The Solicitor also stated that before he obtained an unrestricted Practising Certificate and became a Sole Practitioner, he did not undertake a course in Practice Management. His father was a Solicitor and he had only ever worked in his practice and that was one of the reasons why he had difficulty because he had to cast off the bad habits of decades, reorganise the practice and try to make it run smoothly, but that he was admitted before that Course was a requirement. He had completed the 6 month practical training course at the College of Law, but had not undertaken any courses in practice management since he was admitted.
44 The Tribunal also expressed some concern about “the future” and its need to be comfortably satisfied about it, and asked the Solicitor specifically about the meaning of the phrase – “... because I have regularized my affairs and reports will be forthcoming” in his letter to the Society dated 6 October 2008 (see page 51 Exhibit A) and indicated that it interpreted that as meaning that he had made some changes to how he did things. He was asked what changes he had made. He replied:
“Well, my Trust Account is still kept manually, but nowadays I employ spreadsheets and so on so that it’s now only the ledger cards, the ledgers themselves that are manually written up. Everything else, I use the spreadsheet as a calculator and print them out... He was also organising his files on a far more rational basis and I am keeping things in order.”
45 The Solicitor added that by “rational order”, he meant that instead of keeping all the paper on the file, he now keeps the documents in bundles in separate bundles with spring clips etc. In other words, he is now better organising his paper files. He said that he also kept better records for time costing and that his GST is done on the same sort of spreadsheet basis that he uses for his Trust Account. He had “hitherto accumulated the primary documents and at the required time had sat down and gone through them”.
46 After considering all of the evidence in this matter, the Tribunal is satisfied that the Solicitor’s conduct accords with the allegations stated and particularised in the Application and that this constitutes professional misconduct, in accordance with the decision of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 (at pp 361 – 362).
Considerations as to Penalty
47 Notwithstanding the Solicitor’s expressed opinion that he was “...not committing a particularly, or rather a very serious breach”, the undertaking was serious and was relied upon by the Society in deciding to allow the Solicitor to continue to practise. This makes his subsequent and continuing breach all the more serious, as it strongly suggests a lack of bona fides in his dealings with the Society.
48 There is a significant volume of case law as to what constitutes professional misconduct. The Act gives a non exhaustive definition, but in our view the failure of a Legal Practitioner to honour an undertaking also falls within the common law concepts of professional misconduct. These have been around for a long time. In Allinson v General Council of Medical Education and Registration [1894] QBD 750 at 768 Lopes LJ approached the definition of the term “infamous conduct” as follows terms:
“Then I come to the question of ‘infamous conduct in a professional respect,’ and, in my opinion, if there was any evidence on which the council could reasonably have come to the conclusion to which they did come, their decision is final. If, on the other hand, there was no evidence upon which they could reasonably arrive at that conclusion, then their decision can be reviewed by this Court. 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 is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency,’ then it is open to the General Medical Council to say that he has been guilty of ‘infamous conduct in a professional respect.’”
49 In re Hodgekiss [1962] SR (NSW) 340 at 351 Hardie J said:
“No definition of the phrase ‘professional misconduct’ is contained in the Act; its meaning accordingly has to be ascertained from case law. In Myers v Elman [1940] AC 282 Viscount Maugham adverted, briefly and by way of obiter dictum, to the jurisdiction to strike off the rolls or to suspend a solicitor ‘on the ground of professional misconduct, words which have been properly defined as conduct which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency.’”
His Honour was, of course, dealing with the 1898 Act, although his comments are relevant to the current Act.
50 In Kennedy v The Council of the Incorporated Law Institute of NSW 1940 13 ALJ 563 Rich J. said:
- “That 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 were to be reached by a general survey of the whole transaction.”
51 These authorities were discussed and applied by this Tribunal in the matter of Law Society of New South Wales v Hinde [2005] NSWADT 199. However, in that matter the Solicitor committed a single transgression and did not engage in a continuing course of conduct and the question of his fitness to continue practising did not arise.
52 However, this is not merely a case involving breach of undertaking and it is clear on the evidence that the Solicitor did not comply with his obligations under Section 671 of the Act for a period of almost 3 years. Indeed, it was not until he gave oral evidence in this matter on 11 November 2009 that he advised the Society that he had complied with the requirements of the Trust Account Inspector and had cleared “the old balances” from his Trust Account. With respect to the Solicitor, the Tribunal regards the “explanations” that he offered in his oral evidence and correspondence to the Society, which he put “in mitigation and not by way of an explanation” of his conduct, with some scepticism given his failure to contemporaneously advise the Society about them.
53 The Tribunal must therefore consider whether the Solicitor’s misconduct, continuing as it currently is in relation to the issue of his undertaking to the Society, calls into question his fitness to practice law. In view of the Solicitor’s limited concessions made during the course of the Tribunal’s questioning concerning his understanding of a Solicitor’s undertaking, the Tribunal is prepared to find that he is probably not permanently unfit to practice law.
54 However, despite the fact that the Solicitor was admitted to practice in 1982, the Tribunal notes that his experience in legal practice is restricted to a period of employment by his father and his subsequent sole practice. However, he obtained his unrestricted Certificate before the completion of an approved course in Practice Management became mandatory and he has not undertaken any courses in practice management since then. He also did not tender any evidence that he had undertaken any course in the nature of practical legal training since he completed the course at the College of Law (prior to his Admission). Accordingly, the Tribunal has formed the view that additional orders to those sought in the Application are appropriate.
Orders
1 The Tribunal orders:
1. That Paul Adrian Mee Ling be publicly reprimanded.
2. That for the period from the date of this decision up to and including 30 June 2010:
(a)The Solicitor continue to meet his obligations to the Australian Taxation Office and his staff with respect to the payment by him of any moneys due and payable to any or all of them;
(b)The Solicitor continue to meet his obligations with respect to the lodgement by him (within the requisite statutory period) of any tax returns to be lodged by him with the Australian Taxation Office;
(c)The solicitor shall continuously retain an independent expert acceptable to the Council of the Law Society:
ii.Such expert shall provide to the Council of the Law Society a quarterly report indicating that the Solicitor has complied with his reporting and payment obligations to the Australian Taxation office and to his staff. Such reports are to be received by the Council of the Law Society no later than 21 days after the end of each quarter. The first such report that is the subject of this order shall be due for the 30 January 2010 and is to be received by the Council of the Law Society by 21 February 2010, 21 April 2010 and 21 July 2010.i.Such expert shall supervise the Solicitor’s financial affairs and in particular his reporting and payment obligations to the Australian Taxation Office and payment of all entitlements due to staff; and
3. That Paul Adrian Mee Ling is permitted to continue practising as a Solicitor on the condition that he shall within 14 days of the date of this Decision provide the Society with the following irrevocable written undertakings:
a)That he will undertake a Course in Practice Management that is approved by the Society, such course to either commence prior to 31 March 2010 (or if such a course is unavailable prior to that date, the first course thereafter), with the proviso that the course must be completed to the satisfaction of the Society by 1 August 2010.
c)That he will on and from the date of his undertakings participate in the Senior Solicitors Program and accept mentoring by a Senior Solicitor nominated by the Society for a period of no less than three (3) years from the date this decision and to confer frequently and co-operate with that Senior Solicitor in the conduct of his program. The costs of his participation in this program are to be borne by the Solicitor.b)That he will undertake a course in Ethics that is approved by the Society that commences either prior to 31 March 2010 (or if such a course is unavailable prior to that date, the first course thereafter), with the proviso that the course must be completed to the satisfaction of the Society by 1 August 2010.
4. In the event of, and upon any default in the satisfaction of any of the undertakings required by Order 3 above) Paul Adrian Mee Ling’s Practising Certificate shall be suspended forthwith and shall remain so for the duration of the default.
5. Paul Adrian Mee Ling shall be fined $2,500.
6. Paul Adrian Mee Ling shall pay the Society’s costs of and incidental to these proceedings, as agreed or assessed.
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