Law Society of NSW v McCarthy

[2004] NSWADT 201

CITATION:	Law Society of NSW v McCarthy [2004] NSWADT 201
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Maurice John ("Joe") McCarthy
FILE NUMBER:	042013
HEARING DATES:	4/08/2004
SUBMISSIONS CLOSED:	08/04/2004
DATE OF DECISION:	09/16/2004
BEFORE:	Clisdell RJ - Judicial Member; Barnes M - Judicial Member; Klika D - Non Judicial Member
APPLICATION:	Professional Misconduct - employ disqualified person without approval
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Law Society of New South Wales v Allen [2000] NSWADT 188 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
REPRESENTATION:	APPLICANT D Barton, solicitor RESPONDENT A Girard, barrister
ORDERS:	1.That Maurice John McCarthy be publicly reprimanded; 2.That Maurice John McCarthy pay the costs of the Law Society of New South Wales in an agreed sum of $2,599.00 within thirty days

1 The Council of the Law Society of New South Wales made a complaint under Part 10 of the Legal Profession Act against the legal practitioner on the grounds that “the Solicitor employed Craig Michael Allen, a disqualified person within the meaning of Section 48K of the Act, without first obtaining approval under Section 48K(2)(b), thereby breaching Section 48K(1)."

2 The Solicitor in his reply filed in the Tribunal, admitted that his conduct amounted to professional misconduct.

3 The proceedings were conducted by way of consent with all of the evidence being given by Affidavit. On behalf of the Law Society, Mr Barton tendered an Affidavit of Raymond John Collins which annexed to it a number of items of correspondence and the report of the Administrative Decisions Tribunal’s findings in relation to the hearing of Craig Michael Allen delivered on 22 December 2000.

4 Evidence on behalf of the legal practitioner consisted of an Affidavit by the Solicitor, Maurice John McCarthy, sworn 3 August 2004 and two character Affidavits, one by a Barrister, Stephen Eric Loomes, and another by a Solicitor, William Keith Allen, who is the father of Craig Michael Allen.

5 No-one was cross-examined.

THE FACTS

6 Craig Michael Allen had his name removed from the Roll of Legal Practitioners on 22 December 2000. Essentially, the facts relating to that hearing arose from Mr Allen misappropriating funds from the Central Coast Law Society Incorporated whilst acting as Treasurer. In or about April/early May 2001, William Allen approached Mr McCarthy enquiring about employment for his son, Craig. A couple of days after that approach, Craig Allen made contact with Mr McCarthy by telephone. They arranged to meet and at that meeting, Craig Allen produced to Mr McCarthy a copy of the Administrative Decisions Tribunal decision concerning his appearance before the Tribunal and the orders removing his name from the Roll of Legal Practitioners. Mr McCarthy’s evidence, which was not contested, is that Craig Allen was insistent that Mr McCarthy read the ADT determination before making any decision to employ him.

7 Mr Allen then completed some unpaid work of a clerical nature, together with some file costing. Mr McCarthy’s evidence was that he had read the ADT determination in respect of Craig Allen and felt a good deal of sympathy for him. At that time, he did not read nor consider the provisions of Section 48K of the Legal Profession Act 1987 and in his Affidavit says that he had no knowledge of the Section. On no previous occasion had he employed clerks or others who were barred from such employment. Mr Allen commenced employment on 3 June 2001.

8 In early February 2002, Mr McCarthy in the course of a conversation with another Solicitor in the Newcastle area, became aware that there might be an obligation on him to seek approval for Craig Allen’s employment. On or about 5 February 2002 he telephoned Mr Don Barton from the Professional Conduct Division of the Law Society as to what was required to employ a Solicitor whose name had been removed from the Roll. In his Affidavit, Mr McCarthy concedes that he was told that he needed to seek the consent of the Society.

9 Although Mr McCarthy says he then commenced drafting an Application to the Law Society for consent or approval to employ Craig Allen, he did not, at that time or immediately afterwards make such an Application. In his Affidavit, Mr McCarthy says that on 19 September 2002, he spoke with Phillip Boyd from the Professional Conduct division of the Law Society. He raised the Allen matter briefly with Mr Boyd and received the same advice he had received from Mr Barton. Still no application for approval to appoint Mr Allen was made.

10 In March 2002, Craig Allen became unwell with a heart condition relating to narrowing of and blocked arteries which required him to undertake two surgical interventions. Although Mr McCarthy was aware that he should immediately terminate Mr Allen’s employment, he was reluctant to do so as Mr Allen was a married man with family commitments and Mr McCarthy was concerned as to what effect termination of employment might have upon Craig Allen’s fragile health. In his Affidavit, Mr McCarthy says that Craig Allen had on four or five occasions asked him about the application for approval of his employment.

11 Some time early in August 2003, Mr McCarthy became aware that Craig Allen intended to apply to the Law Society for re-admission. On 8 August 2003, Mr McCarthy gave a reference to Craig Allen in support of his proposed application and on the same day sent a letter to the Law Society making a full disclosure of his breach of Section 48K of the Legal Profession Act. At no time had the Law Society received any complaint from clients or other practitioners nor had they commenced any investigation into Mr McCarthy’s conduct until Mr McCarthy’s self-disclosure to the Law Society in August 2003.

12 During his period of employment with Mr McCarthy, Craig Allen carried out limited duties which Mr McCarthy deposed to as the following:

(i) Billing files;

(ii) Research into law in matters being prepared for hearing;

(iii) Prepare Briefs to Counsel;

(iv) Interviewed only a few clients;

(v) Drew Wills and Powers of Attorney;

(vi) Had a hand in Conveyancing and Probate matters;

(vii) Attended Court Registries and filed documents; and

(viii) Attended to service of documents on a few occasions.

13 On behalf of the Law Society, Mr Barton sought a public reprimand and a fine. He conceded that although Mr McCarthy was unlikely to offend again, the question of general deterrence to other members of the profession required the imposition of a fine. We were referred to the Court of Appeal decision in the matter of Law Society of New South Wales v Forman (1994)34 NSWLR 408. It was Mr Barton’s submission that this was a wilful and flagrant breach of Section 48K. The only justification offered by the Solicitor was pressure of work. Mr Barton submitted that a fine was appropriate, taking into account the gravity of the conduct.

14 On behalf of the Solicitor, Mr Girard of Counsel, admitted that Mr McCarthy was guilty of statutory misconduct. Initially, at least up until 5 February 2002, the failure to seek approval to employ Craig Allen arose out of ignorance. However, Mr McCarthy had read the Administrative Decisions Tribunal decision in respect of Craig Allen and had put appropriate restrictions on Mr Allen’s employment. It had never been his intention to frustrate or circumvent the Law Society. No-one complained, there was no concealment of the employment and no-one suffered as a result. Clearly, there was a level of procrastination complicated by his concern for Craig Allen’s welfare.

15 Mr Girard conceded that this was not a matter where special circumstances applied, and that a private reprimand would be inappropriate. He conceded that there should be a public reprimand. He pointed to Mr McCarthy’s twenty seven years of blemish free conduct as a Solicitor and pointed to the Law Society concession that Mr McCarthy was unlikely to re-offend.

FINDINGS

16 The Tribunal agreed that Mr McCarthy’s conduct amounted to statutory professional misconduct. We were also of the view that he is unlikely to re-offend and that it is appropriate to take into account in respect of penalty, the following matters:

(i) This is a matter of self-reporting by the Solicitor of his breach of the Act;

(ii) Despite his failure to seek approval for the employment of Craig Allen, the Solicitor ensured that Mr Allen only carried out employment that would have been appropriate and contained restrictions which, in all likelihood, would have been imposed by the Law Society of New South Wales had they given approval for Craig Allen to be so employed.

(iii) The Solicitor has shown genuine remorse by his admissions both to the Society and in his reply to the Tribunal admitting the allegation and each of the particulars alleged against him by the Law Society of New South Wales.

17 In assessing penalty, the Tribunal looked at other matters where a public reprimand has been administered to a legal practitioner and a fine imposed. A number of those matters arose where Solicitors had failed to communicate with the Law Society following a complaint in respect of their conduct. It is our view that the conduct of Mr McCarthy in respect of these particular facts is less serious than that of a Solicitor who simply ignores correspondence from his professional body or the Legal Services Commissioner in the course of an investigation into a complaint about that Solicitor’s conduct. Accordingly, we are of the view that in the particular circumstances of this matter, a fine would be inappropriate.

ORDERS

18 Accordingly, we make the following orders:

1. That Maurice John McCarthy be publicly reprimanded.

2. That Maurice John McCarthy pay the costs of the Law Society of New South Wales in an agreed sum of $2,599.00 within thirty days.