Legal Profession Conduct Commissioner v Mancini - [2015] SASCFC 106

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application)
LEGAL PROFESSION CONDUCT COMMISSIONER v MANCINI
[2015] SASCFC 106
Reasons for Decision of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Bampton)
4 August 2015
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - ORDERS
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT - NEGLECT AND DELAY
Application to amend the terms of a supervision order. As a result of administrative oversight, the practitioner breached the terms of his supervision order by failing to inform certain clients that he was practising under supervision. The breaches were identified when clients made unrelated complaints to the Legal Profession Conduct Commissioner concerning the practitioner.
Whether the proposed amendment to the supervision order was appropriate. Whether it was appropriate to require the practitioner to enter into undertakings concerning the ongoing management of his practice.
Held per Gray J (Sulan and Bampton JJ agreeing) (granting the application):
1 The purpose of the requirement that the practitioner advise his clients of his supervision order was to allow clients to make an informed decision as to whether they would instruct the practitioners. It should be possible to send a standard form letter or email within seven days of receiving instructions to act.
2 The practitioner's inability to manage his practice is a matter of serious concern. In the circumstances it was appropriate to require the practitioner to enter into a series of undertakings concerning the ongoing management of his practice.
Legal Practitioners Act 1981 (SA), referred to.
Mancini v Legal Practitioners Conduct Board [2014] SASCFC 31, considered.

LEGAL PROFESSION CONDUCT COMMISSIONER v MANCINI
[2015] SASCFC 106
Full Court: Gray, Sulan and Bampton JJ
GRAY J.

This is an application to amend the terms of a supervision order.
Background
On 19 April 2013, the Legal Practitioners Disciplinary Tribunal found the practitioner and respondent, George Joseph Stephen Mancini, guilty of unprofessional conduct pursuant to section 82 of the Legal Practitioners Act 1981 (SA). The practitioner’s conduct involved the making of false and misleading statements to an expert psychologist retained by him and the failure to pay accounts of the psychologist. The Tribunal ordered that the practitioner’s practising certificate be suspended for two months.
The practitioner appealed against the Tribunal’s decision. During the hearing of the appeal, two further decisions of the Tribunal were handed down in which the Tribunal made findings of unprofessional conduct against the practitioner. On 20 March 2014, the practitioner was found to have failed to meet a costs order of the Federal Court for over a year and to have raised a set off against the costs order in circumstances where he knew he was not entitled to do so. On 24 March 2014, the practitioner was found to have failed for over a year to inform a client that a notice of appeal had not been lodged and that the client’s appeal would not proceed. The Tribunal further found that the practitioner had failed to deal appropriately with trust moneys and delayed unreasonably in making the client’s file available to the client’s new solicitor. The determination of a penalty for those proceedings was referred to the Court hearing the practitioner’s appeal from the Tribunal’s decision of 19 April 2013.
On 4 April 2014, the Full Court upheld the Tribunal’s findings and ordered that the practitioner practise under supervision for a period of three years.[1] The Court upheld a costs order made against the practitioner.
[1] Mancini v Legal Practitioners Conduct Board [2014] SASCFC 31.
On 15 April 2014, the Court made orders with respect to the terms of the practitioner’s supervision. John Gerard Ward, a solicitor at Norman Waterhouse Lawyers, was appointed supervisor. Conditions of the practitioner’s supervision included:
That on or before 1 May 2014 the practitioner do write to every current client of the practitioner’s firm advising of these Orders and seeking each client’s acceptance and agreement to the supervisor examining and discussing the client’s file with the practitioner.
That each successive new client of the practitioner’s firm during the period of the supervision also receive the information and be asked for the authorisation contained in subclause 2.6 above.
On 1 August 2014, a former client of the practitioner, RC, made a complaint concerning the practitioner to the Legal Profession Conduct Commissioner. In the course of the Commissioner’s investigation into the complaint, it became apparent that the practitioner had not provided RC with a letter notifying him of the supervision order.
On 7 August 2014, a former client of the practitioner, JC, made a complaint concerning the practitioner to the Commissioner. In the course of the Commissioner’s investigation into the complaint, it became apparent that the practitioner had not provided JC with a letter notifying him of the supervision order.
On 15 September 2014, a former client of the practitioner, MJ, made a complaint concerning the practitioner to the Commissioner. In the course of the Commissioner’s investigation into the complaint, it became apparent that the practitioner had not provided MJ with a letter notifying him of the supervision order.
On 23 January 2015, the Commissioner made an application to amend the terms of the practitioner’s supervision order to address the practitioner’s breach of the requirement to notify clients in writing that he is practising under supervision.
The Application
On 12 February 2015, the practitioner swore an affidavit addressing his breaches of the supervision order. The practitioner set out the system he had implemented for the sending of letters notifying clients of the making of a supervision order. Following the making of the supervision order, the practitioner had his staff prepare a spreadsheet of existing clients and he arranged for letters to be posted to those clients at about the same time. For new clients, the practitioner would confirm to his staff that a notification letter was required. The practitioner’s staff would then draft a letter, which he would settle and instruct them to send after a file had been opened.
In his affidavit, the practitioner explained that his failure to send a letter to RC was an oversight due to confusion which apparently resulted from the practitioner also acting for RC’s brother, FC. FC had received a letter notifying him of the supervision order. By the time the practitioner became aware that he had not sent a letter to RC, his instructions had been terminated. Further, RC had told the practitioner that he was aware of the disciplinary proceedings and that he did not wish to receive any further communication from the practitioner. On that basis, the practitioner decided that it was unnecessary to send a letter to RC as required by the terms of his supervision order. The failure to send JC a notification letter was described as an oversight on the part of the practitioner. The practitioner did not send MJ a notification letter as her matter had concluded prior to the supervision order taking effect – the practitioner did not consider her to be a current client for the purpose of the supervision order.
In his affidavit, the practitioner noted that, after realising that RC and JC had not received notification letters, he implemented a new system whereby a letter would be prepared as part of the process for opening a file and would be sent within two days of being prepared. The practitioner expressed the view that the new system he had established for the sending of notification letters was working well. Letters were being sent in a timely fashion to clients. Files were being reviewed to ensure that letters had been sent and that clients had returned their authority to act forms. The practitioner was not aware of any failure of his new system.
On 4 March 2014, Sharon Hurren, a solicitor employed by the Commissioner, swore an affidavit which included copies of Mr Ward’s supervisor’s reports. A review of Mr Ward’s reports disclosed that both the Legal Services Commission and the Magistrates Court had raised concerns with respect to the practitioner’s handling of matters. The Chief Magistrate had made a formal complaint to the Executive Director of the Law Society expressing the magistracy’s concerns regarding the practitioner’s appearances in court and, in particular, delays in resolving the practitioner’s matters. The Director of the Legal Services Commission had written to Mr Ward in February 2015 outlining instances of the practitioner seeking inappropriate grants of legal aid funding or failing to manage files with due care. Ms Hurren disclosed that the Commissioner had commenced an investigation of his own initiative in respect of matters contained in Mr Ward’s reports.
The matter came before the Court on 5 March 2015. The Commissioner accepted that the breaches of the supervision order were oversights which did not amount to mismanagement of the practice. However, the Commissioner expressed concern that such oversights occurred. It was noted that the nature of the practitioner’s practice was such that he would often be receiving instructions by telephone or at short notice. To reduce the risk of further oversights, the Commissioner sought to amend the earlier extracted subclause as follows:
Prior to the commencement of any new retainer with a client during the period of supervision the practitioner will notify the prospective client in writing of the terms of these Orders, save in cases where instructions to act are accepted on an urgent basis in which case notification may be provided verbally and must be confirmed in writing within fourteen (14) days thereafter.
The practitioner will within fourteen (14) days of the commencement of any new retainer with a client during the period of supervision seek the client’s acceptance and agreement to the supervisor examining and discussing the client’s file with the practitioner.
This amendment was agreed to by the practitioner, who accepted that he had breached the terms of his supervision order.
The Court was concerned with a delay of fourteen days for a client to receive written notification of the supervision order. The purpose of sending written notification to clients was to allow clients to make an informed decision as to whether they would instruct the practitioner. Given the nature of the practitioner’s practice, namely, criminal law, matters could progress quickly within a two week period. The Court considered that the sending of a standard form letter or email should be possible within seven days of receiving instructions to act. As a consequence, the Court amended the supervision order in the terms set out above, save that written notification was to be provided within seven days, rather than fourteen.
Further Matters of Concern
The Court was concerned with the practitioner’s administrative oversights and the concerns raised by the Legal Services Commission and the Magistrates Court. The Court requested a further report from Mr Ward addressing whether the practitioner’s practice was manageable.
On 1 April 2015, Mr Ward prepared a further report addressing the practitioner’s caseload management. Mr Ward expressed concern regarding the practitioner’s workload and had been working with the practitioner to make his practice more efficient and manageable. Mr Ward’s report set out a number of measures that the practitioner was implementing to address these matters.
On 26 May 2015, Philippa Branson, a solicitor employed by the Commissioner, made an affidavit expressing concern that the practitioner’s practice management spreadsheets did not accurately reflect the status of his matters.
It is a matter of serious concern that the practitioner’s handling of cases was so poor that the Chief Magistrate considered it necessary to make a formal complaint. The practitioner’s administrative oversights and dealings with the Legal Services Commission, together with the delays in finalising a number of his matters, suggested that he was struggling to cope with his practice. The Court was not content to leave it to the practitioner to remedy the situation. The Court requested the practitioner enter into a series of undertakings concerning the management of his practice.
On 15 June 2015, the Court accepted the following undertakings proffered by the practitioner:
I, GEORGE JOSEPH STEPHEN MANCINI, Solicitor, give undertakings to the Court to:
1.     practice [sic] exclusively as a sole practitioner;
2. only accept instructions in criminal law matters; applications for judicial review where such matters are allied, related or connected to a criminal law matter for which I have already taken instructions as solicitor and Youth Court Care and Protection matters;
3. decline to accept instructions for new legally aided suburban or regional Magistrates Court matters except in those circumstances where the new matter is for an existing client in the Adelaide Magistrates Court or where the client’s matters are predominantly in the Adelaide Magistrates Court but incidental matters also exist in suburban courts which cannot be transferred to the jurisdiction of the Adelaide Magistrates Court. In such matters [I] may accept those instructions after consultation with the Supervisor and subject to the Supervisor’s approval;
4. decline to accept instructions as solicitor for matters with an estimated trial length of 15 days or more (as estimated by counsel briefed in the matter) regardless of whether the matter is LSC or privately funded;
5. perform no more than eight hours of pro bono work per month, to include committee work and meetings conducted within business hours;
6. brief counsel for all District Court and Supreme Court trials other than District Court trials of less than 4 days duration whether legally aided or privately funded;
7.
7.1     brief counsel for all applications for permission to appeal conviction to the Court of Criminal Appeal;
7.2     brief counsel for all conviction appeals to the Court of Criminal Appeal;
7.3     act as solicitor and counsel in applications for permission to appeal sentencing to a single Judge;
7.4     act as solicitor and counsel in appeals which are solely on sentence to the Full Court from the District Court;
8. review all diary commitments for the next four weeks once per week and provide weekly diary weekly report to my supervisor;
9. set aside four business hours per week to attend to the administration and management of my practice;
10. take no less than four weeks annual leave per year noting that the leave is not required to be taken in one block;
11.     provide monthly reports to my Supervisor about new files opened as follows:
11.1 nature of matter: that is, whether major indictable or summary;
11.2 the basis of funding;
11.3 whether the matter is likely to be for trial or for a plea of guilty;
11.4 court location where the client’s other matters are before the Adelaide Magistrates Court;
11.5 jurisdiction;
12.     [provide] monthly reports to [my] Supervisor about completed matters;
13. [provide] monthly reports to [my] Supervisor about arrangements for the briefing of external counsel including details of counsel retained, delivery of brief and funding confirmation.
The undertakings, which were accepted by the Commissioner, incorporate a number of measures already implemented by the practitioner and the suggestions of Mr Ward and the Court as to measures which are necessary to make the practitioner’s practice manageable. The undertakings provide both the practitioner and Mr Ward with guidance of the Court’s expectations. The public may be confident that the Court has put in place a system to assist the practitioner to properly manage his practice. A breach of the undertakings would carry serious consequences for the practitioner.
Conclusion
The Court granted the Commissioner’s application to amend the terms of the practitioner’s supervision order and accepted the undertakings proffered by the practitioner concerning the ongoing management of his practice.
SULAN J: I agree with Gray J.
BAMPTON J: I agree with Gray J.