Legal Services Commissioner v King

[2001] NSWADT 147

CITATION:	Legal Services Commissioner -v- King [2001] NSWADT 147
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Legal Services Commissioner RESPONDENT Michael Peter Patrick King
FILE NUMBER:	002013
HEARING DATES:	03/05/2001
SUBMISSIONS CLOSED:	05/03/2001
DATE OF DECISION:	09/11/2001
BEFORE:	Brennan JWF - Judicial Member; Durbach A - Judicial Member; Mara A - 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- Bannister 1993 4LPDR24
REPRESENTATION:	APPLICANT T Lynch, barrister RESPONDENT C Waterstreet, barrister
ORDERS:	1. That the legal practitioner pay a fine in the sum of $4,500.00 within two (2) months from the date of this order; 2. That the legal practitioner be publicly reprimanded; 3. That the legal practitioner pay the Commissioner's costs in the agreed sum of $ 3,500.00 within three (3) months from the date of this order.

1 On 4 September 2000, the Applicant, The Legal Services Commissioner ("The Commissioner") informed the Tribunal that, as a result of the Commissioner's investigation of a Complaint made under Part 10 of the Legal Profession Act 1987 ("the Act") against Michael Peter Patrick King ("the Practitioner") the Commissioner claims that the Practitioner, while practising as a solicitor was guilty of professional misconduct

2 The Commissioner alleged that the Practitioner was guilty on two grounds of professional misconduct.

3 There were no claims for compensation.

4 The first complaint alleged that the Practitioner without reasonable excuse failed to respond to a notice issued in writing pursuant to Section 152(1) of the Legal Profession Act 1987 dated 6 July 2000. This notice was in respect of complaints by Sandi Tarant and Ellen Healey ("the Tarant and Healey complaints") and was personally served on the Practitioner on 12 July 2000 and required compliance by 5 p.m. on 28 July 2000. The Practitioner did not comply with the notice within the time prescribed.

5 The second ground of complaint alleged that the Practitioner, without reasonable excuse, failed to respond to a notice issued in writing pursuant to Section 152(1) of the Legal Profession Act 1987 dated 24 July 2000.

6 This notice was in respect of a complaint by Russell and Barbara Coburn ("the Coburn complaint"). Following receipt of the complaint and an investigation into the complaint by the Commission the notice was issued and served personally upon the Practitioner on 26 July 2000. The notice requested a response in the form of a Statutory Declaration by the Practitioner by 5 p.m. on 14 August 2000. The Practitioner did not comply with the Coburn notice within the time required.

7 On 16 August 2000 after the time nominated in each notice for compliance had expired the Commissioner wrote once more to the Practitioner referring to the two notices, the Practitioner's failure to respond and that the Commissioner had made a determination pursuant to s134. The Commissioner then asked once more for the information and requested that the practitioner provide any reasonable excuse he had for failing to comply with the notices. In that letter the Commissioner advised he would after 14 days make a determination pursuant to S155 as to whether this matter should be referred to the Tribunal, detailed some of the possible consequences of failing to respond and encouraged, in vain, a response from the Practitioner.

8 The material required to be provided by the Practitioner in relation to both complaints was eventually received by the Commissioner prior to the commencement of the hearing but after the filing of the information. With the exception of one matter which was described as minor, the information and documentation required was provided in the Practitioner's Affidavit of 5 December 2000.

9 The Commissioner sought a finding of professional misconduct and orders that the Practitioner be fined, be publicly reprimanded and pay the costs of and incidental to the filing and hearing of the information.

10 The Tarant matter arose out of a complaint by Ms Tarant in May 1998. From that time until the issue of the S152 notice there were a series of letters and telephone calls, from the Commissioner's office to the Practitioner. The Healey complaint was received by the Commissioner on 5 October 1999 and that was followed, initially, by a series of phone calls to the Practitioner and then three unanswered letters from the Commissioner which were followed by a phone call on 18 May 2000 and a letter from the Practitioner to the Commissioner of 7 June 2000, which is detailed below.

11 The Commissioner received a complaint from Mr and Mrs Coburn on about 1 February 2000. The Commissioner wrote to the Practitioner and subsequently there was, a phone conversation between the Assistant Commissioner and Practitioner on 18 May 2000 relating to all three complaints, as did the Practitioner's letter of 7 June 2000. A further letter of 6 July 2000 from the Commissioner to the Practitioner repeated the information sought and foreshadowed the issue of a S152 Notice in the event of non-compliance.

12 Section 152 of the Act provides:
"(1) For the purpose of investigating a Complaint a Council or the Commissioner may, by notice in writing served on any legal practitioner or interstate legal practitioner require the legal practitioner or interstate 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.
13 Section 152(3) and (4) provides:
(3) A requirement under this section is to be notified in writing to the legal practitioner or interstate legal practitioner and is to specify a reasonable time for compliance.
(4) A legal practitioner or interstate legal practitioner who, without reasonable excuse, fails to comply with such a requirement is guilty of professional misconduct.

14 It is important to stress that the Tribunal is dealing with the complaint that the Practitioner failed to comply with the notices within a reasonable time without reasonable excuse. The capacity to issue such notices is a power entrusted to the Commissioner as a necessary tool to enable the Commissioner to investigate complaints. The Tribunal is not here dealing with the merits of the individual clients' complaints or indeed anything that might arise out of the Practitioner's responses to the notices. The two notices which are the subject of the complaints were issued after the Practitioner had been requested to supply the information and, indeed, after a telephone conversation on 18 May 2000 relating to each of the matters of Tarant, Healey and Coburn in which the Practitioner undertook to respond by 7 June 2000. A facsimile from the Practitioner to the Commissioner's office of 7 June 2000 advised that the Practitioner was unable to comply with the terms of his undertaking and advised that the response would be furnished by 9 June 2000. The foreshadowed response was not forthcoming and the notices were issued the following month. The notices did not produce a response, nor did the Commissioner's letter of 16 August 2000 seeking again the information and also advice of any reasonable excuse why the Practitioner had failed to respond to the notices.

15 The Tribunal is satisfied that the notices were served on the Practitioner and, in all the circumstances, a reasonable time was allowed for compliance with each notice.

16 The information and documents sought in relation to each matter were as follows:

Healey:
Did you respond to Mrs Healey's telephone calls made between late April 1999 and early May 1999? If so, please provide file notes. If not, please explain why not;
Did you respond to correspondence from Walker Taylor Edwards & Smith dated 11 June 1999, 25 June 1999 and 10 August 1999? If so, please provide copies of your response(s) and if not, please explain why not.
Tarant:
Please indicate whether party/party costs have been finalised in respect of Mrs Tarant's third party claim. If it has not been finalised, please explain why the matter has yet to be finalised.
Coburn:
Did you reply to Mr and Mrs Coburn's letters to you of 4 September 1999, 4 October 1999, 18 October 1999, 2 November 1999, 22 November 1999 and 4 January 2000? If so, please provide copies of your response(s). If not, please explain why not.
Have you returned any telephone calls from Mr and Mrs Coburn since your meeting in August 1999? If so, please provide copies of contemporaneous file notes. If not, please explain why not.
Have you taken any action to progress the Coburn's matter? If so, please provide copies of correspondence and/or file notes. If not, please explain why not.
Are you in possession of any document provided by Mr and Mrs Coburn? If so, please indicate your basis for retaining this documentation and whether you are willing to return this documentation to the Coburns in order that they may seek alternate representation.
17 In his third Amended Reply filed 2 May 2001, the Practitioner admits that he failed to respond to each notice. He then specified issues in relation to the Tarant and Healey matters being matters arising between the initial complaint and issue of the notice. In the Tarant matter he asserts a belief that he responded in adequate terms prior to the issue of the notice and that the Healey complaint had been withdrawn before the issue of the notice. In relation to the Coburn complaint the reply asserts that he believed that he was never retained nor did he ever agree to act for the clients and that his only commitment was to review the material provided.

18 In relation to each of the complaints the replies expressly assert that the Practitioner unreservedly accepts that he should have replied to the notice and that he has no reasonable excuse for not replying to the notice.

19 The Practitioner was admitted as a Solicitor of the Supreme Court in December 1987. Prior to his admission he worked in the Magistrates Courts Administration and in various Court House Registries and also in the Attorney General's Department. He commenced employment with the firm TH Healey & Co. Sydney in January 1988 and became a Partner of the firm in October 1990. From May 1992 to December 1997 he worked in a newly acquired office of that firm at Newtown. He became a sole practitioner on 1 January 1998 and continued to run the Newtown practice on his own account.

20 The Practitioner made a commendable contribution to his profession through his work with the Young Lawyers Committee, Law Week, the Inner West Law Society and in the area of pro bono work. He produced four supportive character affidavits, each deponent was aware of the nature of the proceedings and the complaints against the Practitioner. These were respectively from a long-term client, a solicitor currently in his employ, a member of the Bar of eleven years' experience and a Federal political adviser who was previously a Partner in a major Sydney legal firm. These deponents were not called for cross-examination and they speak glowingly of the Practitioner.

21 The Tribunal has had regard to the Practitioner's personal circumstances which have quite properly been raised. . The Tarant complaint to the Commissioner arose in May 1998 and remained to be dealt with until after the issue of the information. The Practitioner's lease of premises in Newtown expired in December 1998 and he was given notice to vacate. He found alternate premises but had great difficulty in arranging the fit-out and settling into the new premises. His long-term employed secretary resigned at Christmas 1998 and the Practitioner had continuing difficulties in replacing that employee. In January 1999 the Practitioner and his wife separated after ten years of marriage and for some time the Practitioner had real concerns about his maintaining a relationship with his daughter. He also had a number of staff problems.

22 In August 1999 the Practitioner very sensibly sought help through Lawcover. He had previously consulted Dr Kelly, in relation to the breakup of his marriage and in September 1999 he returned for further consultations with Dr Kelly after his mother was diagnosed with inoperable cancer from which she ultimately died on 10 February 2000. The Practitioner saw the consultant on five occasions in the latter part of 1999 and then saw him again shortly before the hearing so that the Tribunal might have the assistance of a report from Dr Kelly. .

23 In his evidence, the Practitioner accepted that compliance with the notices was in fact " simple and straightforward", though at the time they "weren't quite as simple from his perspective". On cross-examination in relation to the Healey notice he said "there were issues that I didn't wish to give answers to because of the sensitive nature of what was going on with Mrs Healey."

24 The Practitioner's Third Amended Reply raises a number of matters in relation to the complaints of each of the three clients. In relation to the Healey complaint he states that from 12 February 2000 he believed there was no ongoing complaint from Mrs Healey or her solicitors, that the complaint had been withdrawn and again when the notice was issued on 6 July 2000 the complaint had been withdrawn. Other issues are raised by the Practitioner in relation to the other two complaints but the issues are in relation to the client complaints and not really as to why he failed to comply with the notices. His Affidavit refers to personal overtones and implications in the Tarant and Healey complaints and his conduct is more consistent with an unwillingness to respond to the notices than anything suggesting a reasonable excuse for his non compliance.

25 The Practitioner acknowledges that the major problems with the three complaints arose during 1999 and he says he was not in an emotional condition to deal with those complaints. The Tribunal accepts that the Practitioner's life has been profoundly affected by the grief which followed his mother's death. The Practitioner deposes to an improvement in his practice for the year 2000 with the recruitment of another committed solicitor and the support of an understanding and loyal staff. His accounting processes were, in 2000, for the first time undertaken within the office and his Bank was supportive when mid-year the Practitioner had a cash-flow crisis.

26 The Practitioner, as already mentioned, gave an undertaking on 18 May to the Commissioner to provide the responses by 7 June, in circumstances that he would be away between 29 May and 2 June. In his fax of 7 June 2000 the Practitioner detailed pressure of work that he said precluded his complying by that date with his undertaking. The following extracts from his facsimile are important in the context that the previous conversation with the Assistant Commissioner was expressly in relation to the outstanding replies in Healey, Coburn and Tarant. The relevant parts of the fax are:
"I refer to our telephone conversation and my undertaking to provide responses to you by today, 7 June 2000. I have not completed my responses. I am aware of the undertaking provided to you and do not wish you to in any way think I am not attending to the matters. In the circumstances, I am seeking an extension of time in which to reply to the complaints until Friday, 9 June 2000. I trust that this is satisfactory. Thank you for the understanding that you have shown me in these matters."

27 On 7 June 2000 then the Practitioner sought a two day extension to provide the information and documents or rather to complete his responses. It was not until the following month that the two notices issued. His failure to respond continued and it was his failure to co-operate when notices were issued and served under S152 that led with his continued silence to the filing of the information in this matter.

28 The evidence before the Tribunal included a concession that in 1994 the Practitioner received a reprimand from the Council of the Law Society for failure to respond to correspondence about complaints. The Affidavit of Brenda Joy Coleman filed on behalf of the Practitioner refers to the Practitioner having about the same time two other complaints which he dealt with and resolved, thus leading to the dismissal of those complaints.

29 The Act is quite express. The Tribunal finds that these were proper notices and that in the circumstances a reasonable time for compliance was given. The response of the Practitioner does not provide a reasonable excuse and the grounds complained of are established. The Tribunal finds that the Practitioner is guilty of professional misconduct.

30 The Commissioner has a duty to regulate the conduct of the Legal Profession and a Practitioner, as an officer of the Court, has an obligation to co-operate with the regulator. It is most important that the Commissioner is able to investigate and promptly resolve complaints against legal practitioners.

31 It is well established that the function of the Tribunal is not punitive. The Tribunal's responsibility was put very clearly by Shellar JA with whom Gleeson CJ and Handley JA agreed in The Law Society of NSW -v- Bannister (1993 4LPDR24 at 28). His Honour said:
"The exercise of the power to remove from the roll, suspend or fine a solicitor is directed to protecting the public by ensuring that those unfit to practise do not continue to hold themselves out as fit to practise and that high standards are maintained. The maintenance of such standards involves deterring the offender from repeating the offence and deterring others who might be tempted to offend."

32 It is important that, where professional misconduct is established that the orders of the Tribunal reflect the seriousness of that misconduct, both to try to ensure that there is no repetition of the misconduct by the Practitioner and to emphasise in the minds of the Profession the importance of maintaining proper professional standards, which are essential to the proper administration of justice.

33 The Tribunal was assisted by submissions of both Counsel in relation to various recent decisions of the Tribunal in matters of this nature. It is regrettable that there have been a number of matters before the Tribunal in recent times relating to failure to comply with Section 152 Notices. Clearly the facts in each matter are different, although, all too often, the matters come before the Tribunal where a Practitioner appears to have tried to ignore a problem in the hope that it would go away. The decision of the Tribunal while reflecting the seriousness of the misconduct, should also reflect the turmoil in the Practitioner's life that preceded this misconduct, the contributions that he has made to the Profession and the evidence of his character.

34 An Order for costs has already been agreed at $3,500.00 and there is no suggestion that the Practitioner is in need of supervision. Proceedings of this nature inevitably involve significant professional embarrassment and personal distress which the Tribunal feels it appropriate to take into account, as it takes into account the agreed costs order and the costs that the Practitioner has incurred himself.

35 Bearing all these matters in mind, the Tribunal finds that the appropriate course in this matter is to impose a fine and for the Practitioner to be publicly reprimanded. In all the circumstances of this matter and bearing in mind the various decisions of the Tribunal on other matters involving non-compliance with s152 notices, the Tribunal has determined that the appropriate fine is the sum of $4,500.00.