Legal Services Commissioner v Byrne

[2000] NSWADT 70

CITATION:	Legal Services Commissioner -v- Byrne [2000] NSWADT 70
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Legal Services Commissioner RESPONDENT Hugh James Byrne
FILE NUMBER:	992004
HEARING DATES:	17/02/2000
SUBMISSIONS CLOSED:	02/17/2000
DATE OF DECISION:	05/31/2000
BEFORE:	Hale S - Judicial Member; Clisdell RJ - Judicial Member; Miller PO - Member
APPLICATION:	Professional Misconduct - fail to comply with s. 152 Notice
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Law Society of NSW v Foreman, 1994 34 NSWLR 408
REPRESENTATION:	APPLICANT T Lynch, barrister RESPONDENT G Walsh, solicitor
ORDERS:	1. The Respondent be publicly reprimanded.; 2. The Respondent is to pay a fine of $3,000.00 within a period of twelve (12) months from the date of this Order.; 3. The Respondent is to be suspended from practice at the expiration of the said period of twelve (12) months if the fine has not been paid and any such suspension continue until the fine is paid.; 4. The Respondent’s practice is for a period of two (2) years commencing from the date of this Order to be subject to inspection at three (3) monthly intervals at the expense of the Respondent by a suitably qualified solicitor appointed by the Applicant or the Law Society after consultation with the Respondent, such inspections to continue notwithstanding any change in the constitution of the Respondent’s firm.; 5. The costs of the Applicant to be paid by the Respondent, as agreed or assessed.

1 These proceedings are before the Tribunal following the filing of an Information by the Legal Services Commissioner (‘the Applicant’) on 23 February, 1999. The claims against the Respondent are that he was guilty of professional misconduct on the grounds that:

(a) At or immediately after 5.00 pm on Friday 8 January, 1999 without reasonable excuse, he did fail to comply with a notice in writing under Section 152(1) of the Legal Profession Act, 1987 (‘the Act’) dated 4 December, 1998 in respect of Ms Gillian Lessels.

(b) At or immediately after 5.00 pm on Friday 8 January, 1999, without reasonable excuse, he did fail to comply with a notice in writing under section 152(1) of the Act dated 4 December, 1998 in respect of Mr. John Maraghopoulos

2 Particulars of the Respondent’s professional misconduct were set out in the Schedule comprising part of the Information and can be summarised as follows:

(a) On or about 10 November, 1997 the Applicant received a complaint from Ms Gillian Lessels and wrote to the Respondent seeking his response on two occasions but the Respondent failed to respond. On 4 December, 1998 the Applicant issued a Notice pursuant to S.152(1) which required a response by 8 January, 1999. On 8 January, 1999 the Respondent faxed a handwritten letter to the Applicant to the effect that he had dictated his responses to the complaint but that he had no staff available on that day to type the responses and he requested an extension to 11 January, 1999. The Respondent failed to respond by the 11 January, 1999 and the evidence before the Tribunal was that it was not until 19 July, 1999 that final compliance with the Applicant’s Notice was provided by which time proceedings had been instituted in this Tribunal

(b) On or about 29 August, 1997 the Applicant received a complaint from Mr. John Maraghopoulos and wrote to the Respondent seeking his response on five occasions but the Respondent failed to respond. On 4 December, 1998 the Applicant issued a Notice pursuant to S.152(1) which required a response by 8 January, 1999. On 8 January, 1999 the Respondent faxed to the Applicant the handwritten letter referred to in the preceding sub-paragraph. The Respondent failed to respond by 11 January, 1999 and the evidence before the Tribunal was that it was not until 19 July, 1999 that final compliance with the Applicant’s Notice was provided by which time proceedings had been instituted in this Tribunal

3 The relevant parts of S. 152(1) are as follows:

S.152(l) For the purpose of investigating a complaint, a council or the Commissioner may, by notice in writing served on any legal practitioner require the legal practitioner to do any one or more of the following:
(a) to provide written information, by a date specified in the notice, and to verify the information by statutory declaration,

(b) to produce, at a time and place specified in the notice, any document (or a copy of any document)specified in the notice,

(c) to otherwise assist in, or co-operate with, the investigation of the complaint in a specified manner

S.152(3) A requirement under this section is to be notified in writing to the legal practitioner and is to specify a reasonable time for compliance.

S.152(4) A legal practitioner who, without reasonable excuse, fails to comply with such a requirement is guilty of professional misconduct

4 The Respondent admitted the facts and circumstances relied upon in support of the two complaints and there was no dispute that the solicitor was guilty of professional misconduct. Following conclusion of the Applicant’s case the Respondent gave evidence in relation to the circumstances surrounding his non-compliance with the Notices and was cross examined by Mr. Lynch for the Applicant. At the time these proceedings came before this Tribunal, the complaint against the Respondent in respect of Maraghopoulos had been dismissed on 19 August, 1999 following the Respondent filing his Response.

5 The Tribunal is satisfied on the evidence before it that the Respondent failed, without reasonable excuse, to comply with a requirement of the Applicant made under S152 of the Act and the Tribunal therefore finds the Applicant guilty of professional misconduct by the operation of S152(4) of the Act

6 When a finding of professional misconduct is made against a practitioner, the prime duty of the Tribunal is protection rather than punishment [See Mahony JA in Law Society of NSW v Foreman, 1994 34 NSWLR 408] in relation to that duty which

“….extends to protecting the public from similar defaults by other practitioners. Thus, it is relevant to take into account the effect the order will have upon the understanding in the profession and amongst the public of the standard of behaviour required of solicitors. In this sense, any penalty imposed should contain an element of general deterrence, ‘publicly marking the seriousness of what the instant solicitor has done’”]

7 It was the Respondent’s evidence that his failure to furnish responses to the Applicant was the direct result of a difficult 18 month period both in practice and personally. As at November 1997, he had been working as a consultant with a firm which was unable to continue to employ him at his then agreed remunerative level. He left that firm and then joined another firm the principal of which was in ill health and the Respondent found himself working a minimum of 60 hours per week running his own family law practice as well as the practice he had joined. Some 10 months after joining this firm, the principal suffered a severe stroke and was unable to return to work. The Respondent closed the city branch and moved to Lane Cove, the main branch of the practice. At about this time the only other employed solicitor with the practice left to take up another position and the Respondent was required to take up the extra workload. In March, 1999, the Respondent was appointed manager of the practice by the Law Society of New South Wales.

8 In addition, during this period, the Respondent’s wife was pregnant with their second child and suffered serious complications connected with that pregnancy which resulted in the Respondent having to absent himself from the office to attend to her needs and that of his young son. It seems there were also financial pressures on the family as a result of the Respondent’s moving from one firm to another and the fact that his wife gave up her full-time employment due to her pregnancy. At the time these proceedings were before the Tribunal the evidence was that the Respondent was in the process of selling his home due to his financial difficulties.

9 Whilst the Tribunal is not unsympathetic to the difficult circumstances in which the Respondent found himself, those circumstances were not, in the Tribunal’s view, such as to prevent him from responding to the Applicant’s correspondence particularly given the number of opportunities afforded to him to do so over a considerable period of time. It is indeed ironic that when the Respondent finally did respond to the Applicant as regards the Maraghopoulos matter, the complaint was dismissed.

10 This is not the first time that this Applicant has appeared before the Tribunal. In December, 1995 he was found guilty of professional misconduct as a result of misleading two clients in relation to family law matters. On that occasion the Tribunal imposed a reprimand, prohibited him from practising as a sole practitioner for 3 years and required him to complete a course in office management acceptable to the Law Society. Whilst there is no dispute that the Respondent complied with those orders what is of concern to this Tribunal is that these current breaches of S.152 occurred at a time when the Respondent was still subject to orders as a result of the earlier disciplinary proceedings.

11 In giving his evidence, the Respondent was frank and honest about his shortcomings but did not present evidence that mitigated the seriousness of this particular misconduct nor that he had changed his methods of practice following the earlier restrictions placed upon him.

12 Any professional misconduct by a practitioner is a serious matter and the Tribunal must endeavour to ensure that the misconduct is not repeated by the practitioner and that other practitioners appreciate the seriousness and consequences of such misconduct. The public is certainly entitled to expect that, if complaints are made against practitioners, the practitioners will respond and, indeed respond promptly, to the investigating authority.

13 The Respondent is currently in sole practice and wishes to continue in sole practice. Indeed it was put to us by his legal representative that he would find it most difficult to find a partnership or employment given these and past offences and the tribunal accepts this maybe the case. However, the protective role that the Tribunal has makes it incumbent upon the Tribunal to ensure as much as possible that the Respondent understands what is expected of him and that the public is protected against the risk of repetition of his misconduct. In the circumstances, the Tribunal will allow the Respondent to continue in sole practice but only on the basis of strict supervision of his practice for a period of two (2) years. The Tribunal also finds it proper to reprimand the Respondent and to impose a substantial fine

14 The Tribunal orders that:

(a) The Respondent be publicly reprimanded.

(b) The Respondent is to pay a fine of $3,000.00 within a period of twelve (12) months from the date of this Order.

(c) The Respondent is to be suspended from practice at the expiration of the said period of twelve (12) months if the fine has not been paid and any such suspension continue until the fine is paid.

(d) The Respondent’s practice is for a period of two (2) years commencing from the date of this Order to be subject to inspection at three (3) monthly intervals at the expense of the Respondent by a suitably qualified solicitor appointed by the Applicant or the Law Society after consultation with the Respondent, such inspections to continue notwithstanding any change in the constitution of the Respondent’s firm.

(e) The costs of the Applicant to be paid by the Respondent, as agreed or assessed.