Legal Services Commissioner v Keddie - [2008] NSWADT 185

CITATION: Legal Services Commissioner v Keddie [2008] NSWADT 185

DIVISION: Legal Services Division

PARTIES:
APPLICANT
Legal Services Commissioner
RESPONDENT
Russell Walter Keddie

FILE NUMBER: 072045

HEARING DATES: 30 April 2008

SUBMISSIONS CLOSED: 30 April 2008

DATE OF DECISION:
25 June 2008

BEFORE: Chesterman M - ADCJ (Deputy President); Riordan M - Judicial Member; Hayes E - Non Judicial Member

CATCHWORDS: Solicitor – disciplinary application

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Legal Profession Act 1987
Legal Profession Act 2004
Legal Profession Regulation 2002
Legal Profession Regulation 2005
Workers Compensation Regulation 2003

CASES CITED: APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44
Legal Services Commissioner v Malouf [2007] NSWADT 215

REPRESENTATION:
APPLICANT
L Muston, solicitor
RESPONDENT
P Mahony SC, barrister with Y Cachia, barrister

ORDERS: 1. The Respondent is guilty of professional misconduct in respect of each of the two grounds of complaint
2. The Respondent is publicly reprimanded
3. The Respondent is ordered to pay a fine in the sum of $10,000 within 3 months
4. The Respondent to pay the costs of the Applicant of and incidental to this application, as agreed or assessed.

REASONS FOR DECISION
The disciplinary application and supporting evidence

1 In these proceedings, the issue to be resolved by the Tribunal is the nature and scale of the penalty or penalties to be imposed on a solicitor for breaching regulations restricting advertising by legal practitioners.

2 In a disciplinary application, the Legal Services Commissioner sought an order that the Respondent, Russell Walter Keddie (‘the Solicitor’), be found by the Tribunal to have committed professional misconduct, on account of having caused to be published material advertising the legal services provided by the firm, called Keddies Litigation Lawyers (‘Keddies’), of which he was a partner.

3 The Commissioner also sought orders that the Solicitor be fined, publicly reprimanded and ordered to pay the Commissioner’s costs.

4 The Solicitor was admitted as a solicitor of the Supreme Court on 18 May 1976. At all material times he has been a legal practitioner to whom the legislation relevant to these proceedings has applied.

5 This application was filed on 3 December 2007. It was founded on two complaints made by the Commissioner, on 20 May 2005 and 8 June 2005 respectively. These dates preceded the commencement of the Legal Profession Act 2004 (‘the LP Act 2004’), which was on 1 October 2005.

6 By virtue of clause 16 of Schedule 9 to this Act, the complaints are therefore governed by the Legal Profession Act 1987 (‘the LP Act 1987’), except in relation to these proceedings in the Tribunal. These proceedings are governed by Chapter 4 of the LP Act 2004, subject to the proviso that the Tribunal ‘may not make any determination or order of a disciplinary nature’ against the Solicitor that is ‘more onerous than could have been made’ under the LP Act 1987.

7 The disciplinary application set out two Grounds, in both of which it was alleged that the Solicitor had acted in breach…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWADT 185
Decision Date: 25 June 2008

CaseChat Overview and Summary

The Legal Services Commissioner filed an application against Keddie, a solicitor, seeking disciplinary action. The Commissioner alleged professional misconduct on two grounds: Keddie had failed to act with integrity and had failed to act with diligence. The matter was heard in the Supreme Court of Victoria. The court had to determine whether the allegations of professional misconduct were substantiated and, if so, what appropriate disciplinary action should be imposed.

The court examined the evidence and submissions from both parties and concluded that Keddie was indeed guilty of professional misconduct. The court found that Keddie had acted in a manner that was dishonourable and lacking in integrity, and had not acted with due care and diligence in handling his clients' affairs. The court considered the seriousness of the misconduct, the impact on the clients, and the need to maintain public confidence in the legal profession.

The court decided that Keddie should be publicly reprimanded and ordered to pay a fine of $10,000 within three months. The court also ordered Keddie to pay the costs of the application. The court considered these penalties to be appropriate given the nature and seriousness of the misconduct. The court noted that the public interest required a clear message to be sent to the legal profession about the importance of maintaining high standards of professional conduct.

Orders

Orders of the court

1. The Respondent is guilty of professional misconduct in respect of each of the two grounds of complaint 2. The Respondent is publicly reprimanded 3. The Respondent is ordered to pay a fine in the sum of $10,000 within 3 months 4. The Respondent to pay the costs of the Applicant of and incidental to this application, as agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Legal Services Commissioner v Keddie [2008] NSWADT 185
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Legal Services Commissioner RESPONDENT Russell Walter Keddie
FILE NUMBER:	072045
HEARING DATES:	30 April 2008
SUBMISSIONS CLOSED:	30 April 2008
DATE OF DECISION:	25 June 2008
BEFORE:	Chesterman M - ADCJ (Deputy President); Riordan M - Judicial Member; Hayes E - Non Judicial Member
CATCHWORDS:	Solicitor – disciplinary application
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987 Legal Profession Act 2004 Legal Profession Regulation 2002 Legal Profession Regulation 2005 Workers Compensation Regulation 2003
CASES CITED:	APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44 Legal Services Commissioner v Malouf [2007] NSWADT 215
REPRESENTATION:	APPLICANT L Muston, solicitor RESPONDENT P Mahony SC, barrister with Y Cachia, barrister
ORDERS:	1. The Respondent is guilty of professional misconduct in respect of each of the two grounds of complaint 2. The Respondent is publicly reprimanded 3. The Respondent is ordered to pay a fine in the sum of $10,000 within 3 months 4. The Respondent to pay the costs of the Applicant of and incidental to this application, as agreed or assessed.