Legal Services Commissioner v Malouf

[2007] NSWADT 215

CITATION:	Legal Services Commissioner v Malouf [2007] NSWADT 215
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Legal Services Commissioner RESPONDENT Gerard Francis Malouf
FILE NUMBER:	062010
HEARING DATES:	9 & 10 October 2006
SUBMISSIONS CLOSED:	10 October 2006
DATE OF DECISION:	18 September 2007
BEFORE:	Karpin A - ADCJ (Deputy President); Barnes M - Judicial Member; Costigan M - Non Judicial Member
CATCHWORDS:	Solicitor – Disciplinary application
MATTER FOR DECISION:	Prinicpal matter
LEGISLATION CITED:	Legal Profession Act 1987 Legal Profession Act 2004 Legal Profession Regulation 2002 Workers Compensation Regulation 2003
CASES CITED:	APLA Ltd. v. Legal Services Commissioner (NSW) 2005 (8 CA 44) Briginshaw v. Briginshaw (1938) 160 CLR 336 Director of Public Prosecutions v United Telecasters Sydney Ltd. (1990) 168 CLR 594 Hoover Company (Australia) Pty. Ltd. v. Spackman (1998) 81 FCR 320 Kennedy v. Council of Incorporated Law Institute of New South Wales (1939) 12 ALJ 563
REPRESENTATION:	APPLICANT M Slattery SC with NJ Beaumont RESPONDENT A Bellanto QC with MJ Maxwell
ORDERS:	1. The respondent is guilty of professional misconduct in respect of each of the five grounds of complaint.; 2. The respondent is publicly reprimanded.; 3. The respondent is ordered to pay a fine in the sum of $20,000 within 3 months.; 4. The respondent to pay the costs of the applicant of and incidental to this application as agreed or assessed.

1 By application filed on 13 April 2006, the Legal Services Commissioner (the Commissioner) sought orders that the respondent be found guilty of professional misconduct and that his name be struck from the roll of Legal Practitioners. In the alternative, that he be fined and publicly reprimanded. At the commencement of the hearing, the Commissioner abandoned the application for the respondent to be struck from the roll. Counsel for the Commissioner advised the Tribunal that the issue was whether the appropriate penalty was a reprimand of the respondent, or reprimand and fine.

2 The Tribunal was advised that this application was the first one brought pursuant to cl 139 of the Legal Profession Regulation 2002.

3 In seeking that the respondent be dealt with by way of both reprimand and fine, counsel for the Commissioner identified the following matters as calling for the imposition of a fine: (i) the respondent profited from his conduct; (ii) it was persistent conduct; (iii) it occurred in a variety of media; (iv) there was delay in correcting offending material after it was brought to his attention by the Commissioner; (v) cl 139 is not difficult of interpretation, and, as a lawyer, the respondent should have been able to ensure compliance for himself.

4 It was conceded, however, in addition to there being no precedent available, as this was the first time the relevant regulations had been tested in the Tribunal, that the respondent had made full admissions in relation to the matters of complaint, and that as a practitioner since 1983, there were no prior matters of similar complaint.

5 Prior to the hearing the respondent advised the Commissioner that he admitted the complaints. A statement of agreed facts was tendered to the Tribunal.

6 The conduct the subject matter of the complaint occurred before 1 October 2005, the commencement date of the Legal Profession Act2004. This application was filed on 13 April 2006. Clause 17(a) of schedule 9 of the LPA came into effect on 2 June 2006. This matter was heard on 9 & 10 October 2006. Pursuant to the provisions of clause 17 (a) schedule 9, the matter falls to be dealt with under the Legal Profession Act2004. Any penalty, however, falls to be determined under the prior legislation that was in force at the time of the conduct the subject of complaint.

7 There are five grounds of complaint, each of which is particularised as set out below, and each of which is followed by an account of the respondent’s actions taken to remedy the complaint.

8 Ground 1: The practitioner caused to be published an advertisement by way of display on the website in breach of Part 14 of the LegalProfession Regulation2002 and Part 18 of the Workers CompensationRegulation2003, through the use of the words:

Injury Compensation Lawyers.

Personal Injury News.

Public Liability/Slip & Fall.

Motor Accident Claims.

Medical Negligence.

Asbestos & Dust Diseases.

Product Liability.

Workers Compensation.

9 Particulars ground 1: On 10 September 2003, a letter was forwarded by the Legal Services Commissioner ("the Commissioner.") to Gerard Malouf and Partners, advising that the firm's website advertising breached Part 14 of the Legal Profession Regulation2002. (LPR)

10 On 30 September, 24 November and 18 December 2003, the respondent caused to be published on the Internet for access and download an advertisement in breach of the LPR, that breach being constituted by the use of the words:

Injury Compensation Lawyers

Personal Injury News

11 On 24 November 2003 the Commissioner initiated a complaint against the respondent.

12 On 18 and 25 February and 17 and 22 March 2005, pages were freely available from the respondent's homepage advertising in the following terms:

Public Liability/Slip and Fall.

Motor Accident Claims.

Medical Negligence.

Asbestos And Dust Diseases.

Workers Compensation.

Product Liability.

Profiles of named solicitors and paralegals under the "Our People." Link.

13 Response in statement of agreed facts. The respondent’s actions in relation to this complaint are summarised: on 4 February 2004 the front page of the website had removed from it any reference to personal injury (but not "Injury Compensation Lawyers"). An election process was introduced for people wishing to look at the site in detail. By 18 February 2005 that election process was no longer available. By letter dated 4 February 2004 from the respondent to the Commissioner, the respondent advised the changes made and sought further comments from the Commissioner.

14 As a consequence of the further discussions with the Commissioner's office, the respondent removed the telephone number 180000HURT from the website.

15 The Commissioner wrote to the respondent on 22nd March and 9 June 2005 maintaining that the drop down menu under a heading "Our People" contained references in breach of regulations. The respondent contacted the website designer, who immediately stopped the drop-down menu from occurring.

16 Ground 2: the practitioner caused to be published an advertisement by way of display on the website in the Yellow Pages Online in breach of Part 14 of the Legal Profession Regulation 2002 through the use of the words:

Motor Vehicle Accidents.

Workers Compensation.

Public Liability Slip & Fall.

Medical Negligence.

Personal Injury.

Product Liability

17 Particulars Ground 2: On 6 September 2004, the Commissioner instituted a complaint against the respondent alleging he had breached Part 14 of the LegalProfession Regulation2002 by publishing an advertisement on Yellow Pages Online as set out above.

18 Response in statement of agreed facts. Upon receipt of the complaint, the respondent instructed his advertising executive to have the offending page removed and altered. Twelve months later, the respondent became aware that the amendments had not been made. The offending notice was removed.

19 Ground 3: The practitioner caused to be published an advertisement by way of display on the premises at 563 Victoria Rd, Ryde in breach of Part 14 of the Legal Profession Regulation 2002 through the use of the words:

Workers Compensation.

Motor Accident Injury.

Medical Negligence.

Slip, or Fall Claims.

Product Liability Cases

20 Particulars Ground 3: On 24 November 2003 the Commissioner initiated a complaint against the respondent alleging he had breached Part 14 of the LPR 2002, by signage, on his offices located at 563 Victoria Rd, Ryde, by the use of the words set out above.

21 Response in statement of agreed facts: On or about 10 November 2004 the respondent wrote to the Commissioner advising he had instructed sign writers to erase the offending words from the advertisement. That work was completed in or about late November 2004.

22 Ground 4: The practitioner caused to be published an advertisement by way of display in the 2005 Yellow Pages, in breach of Part 14 of the Legal Profession Regulation 2002 through the use of the words:

Car Accident Claims.

Workplace Disputes/Claims

Negligence Claims

Disability Claims

23 Particulars Ground 4: On 27 April 2005 the Commissioner initiated a complaint against the respondent alleging breach of Part 14 LPR 2002, by publishing an advertisement in the 2005 Yellow Pages, under the “solicitors” heading titled “insurance denied/negligence claims, Gerard Malouf and Partners”, which included the words set out above.

24 Response in statement of agreed facts: Allegation admitted.

25 Ground 5: The practitioner caused to be published an advertisement by way of display in the Central Coast Express on 23 February 2005, in breach of Part 14 of the Legal Profession Regulation 2002 through the use of the words:

Motor Vehicle/Car Accident Claims.

Negligence Claims.

Workplace Disputes/Claims

26 Particulars Ground 5: On 27 April 2005 the Commissioner initiated a complaint against the respondent, alleging breach of part 14 of the LPR 2002 by publishing an advertisement on the front page of the Central Coast Express titled "Insurance Denied? Negligence Claims?" and including the words set out above.

27 Response in statement of agreed facts: On 22 May 2006 the respondent wrote to Fairfax newspapers requesting amendments to all current advertisements in accordance with the Commissioner's recommendations. The 2005 Yellow Pages could not be amended. The respondent undertook to remedy the situation in the 2006 Yellow Pages. He caused to be submitted to the Commissioner, the proposed advertisements for 2006. On 29 June 2006 the respondent was advised by the Commissioner that: " After carefully considering the advertisements, I advise that I am of the view that there appears to be no breach of Part 5 of the Legal Profession Regulation 2005 or Part 18 of the Workers Compensation Regulation 2003.”

28 The Legal Profession Regulation 2002 Pt. 14 in force at the relevant period, were headed “Promotion of Personal Injury Legal Services”. Clause 139 relevantly provided:

139 Restriction on advertising personal injury services

(1) A barrister or solicitor must not publish or cause or permit to be published an advertisement that promotes the availability or use of a barrister or solicitor to provide legal services if the advertisement includes any reference to or depiction of any of the following:

(a) personal injury,

(b) any circumstance in which personal injury might occur, or any activity, event or circumstance that suggests or could suggest the possibility of personal injury, or any connection to or association with personal injury or a cause of personal injury,

(c) a personal injury legal service (that is, any legal service that relates to recovery of money, or any entitlement to recover money, in respect of personal injury).

Maximum penalty: 200 penalty units.

(2) A contravention of this clause by a barrister or solicitor is declared to be professional misconduct.

29 Clause 138 provided:

138 Definitions

In this Part:

advertisement means any communication of information (whether by means of writing, or any still or moving visual image or message or audible message, or any combination of them) that advertises or otherwise promotes a product or service, whether or not that is its purpose or only purpose and whether or not that is its only effect.

personal injury includes pre-natal injury, impairment of a person’s physical or mental condition, and disease.

publish means:

(a) publish in a newspaper, magazine, journal, periodical, directory or other printed publication, or

(b) disseminate by means of the exhibition or broadcast of a photograph, slide, film, video recording, audio recording or other recording of images or sound, either as a public exhibition or broadcast or as an exhibition or broadcast to persons attending a place for the purpose of receiving professional advice, treatment or assistance, or

(c) broadcast by radio or television, or

(d) display on an Internet website or otherwise publicly disseminate by means of the Internet, or

(e) publicly exhibit in, on, over or under any building, vehicle or place or in the air in view of persons in or on any street or public place, or

(f) display on any document (including a business card or letterhead) gratuitously sent or gratuitously delivered to any person or thrown or left on any premises or on any vehicle, or

(g) display on any document provided to a person as a receipt or record in respect of a transaction or bet.

solicitor includes the following:

(a) a partnership of which a solicitor is a member (but only if the business of the partnership includes business of a kind ordinarily conducted by a solicitor),

(b) a solicitor corporation,

(c) an incorporated legal practice.

30 Clause 140 provided an exception, which did not, however, apply to any of the material complained of, but was in the following terms:

140 Exception for advertising specialty

(1) This Division does not prevent the publication of an advertisement that advertises a barrister or solicitor as being a specialist or offering specialist services, but only if the advertisement is published by means of:

(a) an entry in a practitioner directory that states only the name and contact details of the barrister or solicitor and any area of practice or accredited specialty of the barrister or solicitor, or

(b) a sign displayed at a place of business of the barrister or solicitor that states only the name and contact details of the barrister or solicitor and any accredited specialty of the barrister or solicitor, or

(c) an advertisement on an Internet website operated by the barrister or solicitor the publication of which would be prevented under this Division solely because it refers to personal injury or personal injury legal services in a statement of accredited specialty of the barrister or solicitor.

(2) In this clause:

accredited specialty of a barrister or solicitor means a specialty in which the barrister or solicitor is accredited under an accreditation scheme conducted or approved by the Bar Council or Law Society.

practitioner directory means a printed publication, directory or database that is published by a person in the ordinary course of the person’s business (and not by the barrister or solicitor concerned or a partner, employee or member of the practice of the barrister or solicitor).

31 It is conceded by the respondent that he does not fall within the exceptions provided in s. 140.

32 The standard of proof applicable in these proceedings is that laid down in Briginshaw v. Briginshaw (1938) 160 CLR 336.

33 It is not in dispute that each of the advertisements the subject matter of the 5 complaints, were “published” within the meaning of clause 138 and the Tribunal so finds.

34 Grounds 1 and 2 both relate to online advertising. Ground 1, an advertisement published on the respondent’s website is a contravention of s.138 (d). Ground 2, being an advertisement on the Yellow Pages online service, also breaches s.138(d).

35 Ground 3, being an advertisement by way of display on the external wall of premises in which the respondent conducted his practice, is a breach of s. 138(e).

36 Ground 4 contravenes s.138(a) being an advertisement published in the 2005 Yellow Pages directory.

37 Ground 5 is also a contravention of s.138 (a) being an advertisement in a newspaper, the Central Coast Express.

38 It is not in dispute that each of the 5 items referred to as advertisements in the grounds of complaint, falls within the definition of advertisement set out in clause 138. As has been submitted by counsel for the applicant, clause 138 lays down a broad definition of advertising which encompasses the definitions set out in decisions such as Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594 where it was held that material designed or calculated to draw public attention to a product or promote its use, may constitute an advertisement.

39 In Hoover Company (Australia) Pty Ltd. v Spackman (1998) 81 FCR 320, Heerey J. held that where a person or firm indicates in the White Pages the nature of the business carried on, that constitutes an advertisement. An entry that merely gives a name and address and telephone number does not constitute an advertisement.

40 The Tribunal is satisfied to the requisite standard that in each complaint, the material complained of falls within the definition of “advertisement” set out in cl. 138. That definition is very broad, and designed to encompass material of this nature, even where advertising, per se, is not the sole, or even an intended purpose of the publication.

41 It is clear that the material the subject matter of each complaint was designed to “promote the availability or use of” the “solicitor to provide legal services” (cl. 139 (1)) and included references to, or depiction of, the matters listed in cl. 139 (1) (a) – (c).

42 The applicant cited the Macquarie Dictionary definition of “advertise”, which includes: “to give information to the public concerning; make public announcements of, by publication in periodicals, by printed posters, by broadcasting over the radio, television…”

43 The Shorter Oxford Dictionary relevantly defines “advertise” as “To give notice of. To make generally known. To make publicly known…”

44 The Tribunal is satisfied that the material complained of is consistent both with the generally accepted definitions of “advertise”, and with the definition appearing in cl. 138.

45 The Tribunal is satisfied that the words and depictions complained of clearly relate to personal injury, or to circumstances in which personal injury may occur. The legislation casts a wide net when it uses terms such as “…event or circumstance that suggests or could suggest the possibility of personal injury…”[139 (1) (b)].

46 The definition of “personal injury legal service” in 139 (1)(c) is similarly broad, covering any legal service that, in respect of personal injury, related to recovery of money or any entitlement to recovery of money.

47 In the opinion of the Tribunal, the provisions of cl. 140 provide clear guidelines as to the nature of advertising that is permissible for accredited specialists. The advertising engaged in by the respondent, the subject matter of these complaints, as he concedes, does not fall within those guidelines.

48 The Tribunal is satisfied that each of the publications of which the applicant complains are “advertisements” in the ordinary sense of the plain English meaning of that word. They are, therefore, inevitably caught by the very broad definition of “advertisement” contained in cl. 138.

49 The respondent admitted each of the complaints. The Tribunal is satisfied that the evidence adduced by the applicant has established each complaint brought against the respondent, in each case constituting a breach of cl. 139(1).

50 Cl. 139 (2) provides that a contravention of the provisions of cl. 139(1) constitutes professional misconduct. Each complaint having been proved to the satisfaction of the Tribunal, and each constituting a breach of cl. 139(1), the Tribunal finds the respondent guilty of professional misconduct in respect of all complaints.

Penalty

51 The Tribunal has considered the submissions of both counsel on the issue of appropriate penalty.

52 Clause 139 of the Regulation provides for a fine of 200 penalty units. Section 562 of the Legal Profession Act2004 relevantly provides:

562 Determinations of Tribunal

(1) Orders generally

If, after it has completed a hearing under this Part in relation to a complaint against an Australian legal practitioner, the Tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the Tribunal may make such orders as it thinks fit, including any one or more of the orders specified in this section.

(2) Orders requiring official implementation in this jurisdiction

The Tribunal may make the following orders under this subsection:

…

(e) an order reprimanding the practitioner,

…

(4) Orders requiring compliance by practitioner

The Tribunal may make the following orders under this subsection:

(a) an order that the practitioner pay a fine of a specified amount,

…

(7) Maximum fine

The amount ordered by the Tribunal under this section to be paid by way of fines by any one Australian legal practitioner in connection with the Tribunal’s findings about a complaint must not exceed in total:

(a) $10,000 in the case of unsatisfactory professional conduct not amounting to professional misconduct, or

(b) $75,000 in the case of professional misconduct.

(8) Reprimands

If the Tribunal makes an order reprimanding the practitioner, the Tribunal is to publish the order and a statement of its reasons for making the order.

(9) It is sufficient compliance with the requirement to publish an order under subsection (8) if the Tribunal provides to the Commissioner sufficient information to enable the Commissioner to exercise the Commissioner’s powers or functions in respect of the Register of Disciplinary Action required to be kept under Part 4.10 (Publicising disciplinary action).

53 On behalf of the respondent it is submitted that: (i) he admitted the matters of complaint at the earliest opportunity; (ii) there was no damage or loss caused as a consequence of his offences; (iii) there is professional stigma attached to his appearance before the Tribunal and the publishing of a reprimand; (iv) there was no precedent to guide the respondent; (v) there is no evidence adduced by the applicant of prevalence of breaches of the relevant regulations by members of the profession, thus the need for general deterrence has not been demonstrated; and (vi) the respondent, by his early admissions and efforts to comply with the regulations to the satisfaction of the Commissioner, has demonstrated contrition for those breaches, thus the applicant has not demonstrated a necessity to impose a sanction that will act as a personal deterrent to the respondent. It was submitted that the Tribunal would be satisfied that the respondent has demonstrated clear contrition, and comprehension of his transgressions, and will not offend in the future.

54 Dealing with subjective issues, it was submitted on behalf of the respondent that: he has been practising as a solicitor since 1983, and has no prior allegations of breaches of the LPA; at the time the offences were committed, the matter of APLA Ltd. v. Legal Services Commissioner (NSW) 2005 (8 CA 44) had not been decided by the High Court. The respondent has demonstrated significant efforts to comply with the Regulations following notification of transgressions from the Legal Services Commissioner. At the time of hearing, the respondent was compliant with the advertising regulations, with the exception of the Yellow Pages copy of the advertisement, which would be rectified in the issue to be distributed in the following year.

55 It was further submitted that the respondent had gone to considerable lengths to comply with the regulations. He engaged in correspondence concerning the appropriate words to be used in advertising, and submitted proofs of advertisements to the applicant and to the Professional Standards Committee of the Law Society of New South Wales. These negotiations occurred over a period of time.

56 By letter of 29 June 2006, the Commissioner, responding to the submission of eight advertisement proofs, advised that “after carefully considering the advertisements, I advise that I am of the view that there appears to be no breach of Part 5 of the Legal Profession Regulation 2005 …” Thus, in effect, the Commissioner approved the proposed advertising.

57 It was argued that the respondent was in a difficult position as there was no precedent to guide him. He was aware that the matter of APLA LTD v. Legal Services Commissioner (NSW) [2005] HCA 44 (1 September 2005) was before the High Court. In those proceedings, the plaintiff legal practitioners, argued that the regulations were invalid, inter alia, on the grounds that they infringe freedom of communication on political and governmental matters guaranteed by the Constitution; infringe s. 92 of the Constitution; and, because of their extra-territorial operation, exceed the legislative powers of New South Wales and regulation making powers contained in the Legal Profession Act2004.

58 The Chief Justice and Justice Heydon, finding against the plaintiffs, said:

The question for this Court is not whether the uninhibited promotion of legal services will increase what is sometimes described as access to justice. There are policy arguments for and against allowing lawyers to advertise. One argument in favour of such advertising is that it makes legal services more accessible to some citizens, and thereby increases awareness of rights and assists enforcement of rights. We are concerned, however, not with such questions of policy, but with a legal question which is to be resolved, not as a matter of opinion or personal preference, but as a matter of judgment upon a defined issue. [para 31]

The primary responsibility for deciding where the public interest lies is with the State and Territory legislatures. It is not self-evident that the public interest requires an unrestricted capacity on the part of lawyers to promote their services. More to the point, it is not required by the Constitution. It is a topic on which the Constitution has nothing to say in express terms. If it is said to be a matter of implication, then it is necessary to identify, with reasonable precision, the suggested implication. This has not been done. [para 32]

There is nothing in the text or structure of the Constitution, or in the nature of judicial power, which requires that lawyers must be able to advertise their services. It may or may not be thought desirable, but it is not necessary. [para 33]

The regulations in question do not impede communications between lawyers and their clients. Nor do they restrain or inhibit the provision of legal services, or require lawyers to conceal their existence or their identities. Professional directories, and telephone books, inform the public of the availability of legal services. [Para 34]

59 In separate judgments, Justices Hayne, Gummow and Callinan answered the questions in the Special Case concurring with the Chief Justice and Justice Heydon.

60 In a dissenting decision, Justice McHugh held that cl. 139 was invalid:

because its object and its effect, as evinced by its terms and setting, is to reduce litigation in respect of personal injury in the courts including courts exercising federal jurisdiction….

61 Justice Kirby, in a robustly worded dissent, said:

The inhibition on communication is therefore quite remarkable. It would appear to put a legal practitioner in peril of criminal and professional offences were he or she to make a public statement suggesting to an individual, community group or service organisation that legal services might be available … The chilling effect of the Regulation on communications by legal practitioners with potential clients and with civil society was correctly described in argument as extraordinary ... the Regulation is not the delicate work of a master drafter, seeking by filigreed language to avoid any risks of overreach into constitutional areas where State angels might fear to tread, … It fires its shots at everything within range and beyond. It does so with a scattergun effect - indifferent to any distinction that might exist by reference to rights, privileges and procedures afforded by, and under, federal law.

62 The majority in the High Court thus upheld the constitutional validity of the regulations.

63 While the Tribunal accepts that the passage of this legislation caused considerable disquiet among some members of the profession, the respondent included, that disquiet does not excuse a practitioner from complying with the legislation once it has been proclaimed. That is so, even if there is a High Court challenge.

64 The respondent frankly admitted that he was aware from the time the legislation came into force, that if he failed to comply with the legislation, he would be found guilty of professional misconduct with the possibility of a range of penalties including being struck from the roll. He said in part:

“… But when I put the ads in I felt there were sufficient grey areas and difficulties with interpreting it, but still I have to take and accept responsibility for it all.”

65 Asked about his reasons for pursuing advertising in the manner in which he did, being aware of the risk he was running, the respondent said:

“… Being offended by the law – by the restriction. Feeling that it had been sort of – hadn’t been interpreted. Wondering whether what I was doing was correct or not, all of those matters weighed in. But, ultimately, yes, it is to gain work and hopefully maintain office and make money.”

66 The Tribunal accepts the respondent’s evidence that due to his concerns about the interpretation of the legislation, he discussed the matter with Queen’s Counsel and with other practitioners, including the partners of APLA who had commenced proceedings in the High Court. He was also in contact with the office of the Commissioner and with the Law Society.

67 The respondent insisted that in his view, the advertising material that he disseminated following the regulations coming into force was “possibly” in contravention of those regulations. He rejected the suggestion that he must have believed that the material was “probably” in contravention.

68 Having regard to the totality of the respondent’s evidence, the Tribunal is of the view that the respondent was a truthful witness. He was prepared to make concessions when matters were put to him in cross-examination, or by members of the Tribunal.

69 In making admissions at the outset, the respondent admitted his guilt in relation to the breaches and the circumstances of those breaches.

70 In the opinion of the Tribunal, the reluctance of the respondent to comply with the letter and spirit of the legislation largely arose from a concern that inability to advertise in the manner he had previously adopted would adversely affect his capacity to attract new business, thus reducing the financial viability of his practice.

71 The respondent gave evidence that, having complied with the legislation, there had been no reduction in work flowing into his offices.

72 The Tribunal accepts that the respondent’s view, that the legislation was repugnant as representing an excessive restriction, also played a part in his reluctance to comply with the legislation, or at best ran a substantial risk of non-compliance.

73 In the view of the Tribunal, the legislation, absent any question of constitutionality, and related issues, is not difficult of interpretation. It is clearly designed to be highly restrictive of the rights of legal professionals to advertise a particular class of services. The underlying legislative intent cannot have been a matter of doubt to anyone practising in the relevant field.

74 Having found the respondent to be a truthful witness, the Tribunal has come to the view that the respondent’s personal feelings regarding this legislation may have played a part in leading him to the view that the advertising that he engaged in was “possibly” rather than “probably” in contravention of the legislation.

75 Nonetheless, the obligation of the respondent, as a solicitor of considerable experience, was to look objectively at the legislation, putting aside his subjective feelings about it. Clearly he failed to do that. He must, and, indeed, appears to accept the consequences of that failure.

76 The extent to which the respondent permitted his subjective view to cloud his professional judgment is exemplified in his response to a question suggesting that he was awaiting the outcome of the APLA decision, to which he said:

“I was very interested in the results of it because it could well have meant that anything that we had been doing in the past was legitimate. I was waiting to find the result, yes”

77 Later, in response to a question from the Tribunal concerning what steps the respondent took to review his advertising following the legislation coming into force in May 2003, the respondent said:

“I had a significant review undertaking in place because we had previously advertised very extensively … direct and explicit words of personal injury specialists – injury claims… we then went to a much more discreet – which I thought at the time appropriate and hopefully, compliant…I did change most of…the ads…so they were no longer very direct and hard hitting…. So, I thought I’d done enough and obviously, it wasn’t enough and I hadn’t been inquisitive or legalistic enough in my approach and hence, I’m here today.”

78 The Tribunal is satisfied that had the respondent been more legalistic in his approach, as was his obligation as a legal practitioner, he would have appreciated that he was advertising in contravention of the regulations.

79 The Tribunal accepts that the respondent engaged in correspondence with the Commissioner, and over time made changes to the advertising material as a consequence of those discussions. Those changes were, on occasion, made promptly, but at other times there was a degree of delay.

80 An example of delay for which the respondent must be held accountable, is his response to the second complaint. He gave instructions for the offending material to be removed. He did not, however, ensure that it had been removed, and it remained in place for a further 12 months.

81 It was submitted that it was open to the respondent to argue that the exception contained in cl.140 of the LPR permitting advertising in a practitioners directory, could, arguably, be applied to the advertisements in the Yellow Pages.

82 The Tribunal is not persuaded that there is merit in that submission. Furthermore, even were it arguable, the nature of the advertising in the Yellow Pages was in breach of that which is contemplated by cl.140.

83 The respondent is entitled to have his admission on this issue taken into account, but it should not attract greater weight merely because of a suggestion that, in the opinion of the respondent, there was an available argument on this issue. The Tribunal is not persuaded that there was such an argument available to the respondent.

84 It was submitted that no person had been harmed or suffered loss as a consequence of the advertisements. Nor was there any evidence that the respondent had been financially advantaged by the advertising.

85 The Tribunal accepts the respondent’s evidence that once he complied with the requirements of the legislation, there was no lessening of new work flowing into his practice. That, however, is not the point. The issue is his intention at the time the advertisements were published. By his own admissions, and as common sense must dictate, the purpose of the advertising was to attract new clients, and thus, was for financial gain.

86 There is, however, no evidence that the respondent did, in fact, benefit financially from the non-compliant advertisements. The respondent’s evidence assumes that there is a financial benefit flowing from such advertising. But there is no evidence that in using non-compliant advertising, the respondent gained greater financial benefit than he would have had he been compliant. Indeed, the only available evidence is that of the respondent to the effect that he detected no difference in client response.

87 There has been a degree of delay in dealing with these matters:

Ground 1: The respondent was advised of the complaint by letter dated 10 September 2003. The charge came before the Tribunal on 13 April 2006.

Ground 2: The complaint was made on 9 September 2004. The offending advertisement was not removed until September 2005, and action was initiated in the Tribunal in April 2006.

Ground 3: The first complaint was made on 13 September 2004. The signs were changed on 10 November 2004. Action was initiated by the Commissioner in April 2006.

Ground 4: The respondent was advised of the complaint on 9 June 2005. It was a “one-off” advertisement. Action was taken by the Commissioner in April 2006.

Ground 5: A “one-off” advertisement was dated 23 February 2005. The Commissioner complained by letter of 9 June 2005. No action was initiated until April 2006.

88 The Tribunal accepts that there was some delay in bringing some of these complaints before the Tribunal. That delay must, however, be looked at in the context of the ongoing negotiations between the applicant, the Law Society and the respondent. In the opinion of the Tribunal, such delay as occurred cannot be laid simply at the door of the applicant, and is, accordingly, not such as should be reflected in any penalty to be imposed upon the respondent.

89 The applicant maintained that there were five factors that the Tribunal must take into account in determining penalty:

Profit motive

Calculated risk taking

Persistence in contravention in the face of warnings

Contravention across a variety of media

Delay in rectification

90 The applicant submitted that those five factors must be reviewed when considering the plea that the respondent had demonstrated remorse. At the heart of the respondent’s conduct, it was argued, lay two factors: repugnance for the legislation and the profit motive.

91 Dealing with each of those five factors the Tribunal is satisfied that, by his own admission, the respondent was motivated by the objections he had to the nature of the legislation, and a concern that compliance would adversely affect profits.

92 As previously noted, the Tribunal is of the opinion that the respondent permitted his subjective views to cloud his professional judgment, albeit he was aware of the rather draconian penalty mandated in the legislation for breaches of that legislation. He engaged in calculated risk-taking to that extent.

93 The Tribunal is satisfied that the respondent sought to engage in dialogue with the applicant and the Society with a view to satisfying those bodies about compliance, while at the same time maintaining the maximum amount of material that he believed would attract new clients. There was some delay in rectification, although delay was on occasion explicable due to ongoing negotiations; at other times, compliance was quite prompt.

94 There was contravention across a variety of media, but that merely reflected the long-held business practice of the respondent, to advertise extensively in a variety of media.

95 Clause 139 (2) mandates a finding of professional misconduct where breach of cl. 139(1) is proved. The respondent in making the admissions was fully aware of the inevitability of findings of professional misconduct in relation to each of the grounds.

96 The respondent’s counsel’s submitted that these breaches do not fall within the ordinary category of breaches of professional standards that ground findings of professional misconduct. Nor, it was argued, would the Tribunal find that his conduct would be regarded as disgraceful or dishonourable by his peers.

97 Professional misconduct is defined in the Legal Profession Act1987 as:

(1) For the purposes of this Part, professional misconduct includes:

(a) unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence, or

(b) conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners, or

(c) conduct that is declared to be professional misconduct by any provision of this Act, or

(d) a contravention of a provision of this Act or the regulations, being a contravention that is declared by the regulations to be professional misconduct.

98 In Kennedy v. Council of Incorporated Law Institute of New South Wales (1939) 12 ALJ 563, Rich J said that professional misconduct:

“… need not fall within any legal definition of wrongdoing. It need not amount to an offence under the law. It is enough that it amounts to grave impropriety affecting professional character and is indicative of failure either to understand or to practise the precepts of honesty or fair dealing in relation to the courts, clients or the public.”

99 The Tribunal is satisfied that the respondent permitted his subjective feelings to prevail. His personal repugnance for the legislation, combined with his fears that compliance would impact adversely upon his profits, resulted in him failing to take steps to comply with the spirit and letter of the legislation as soon as it came into effect. The fact that other members of the profession objected to the legislation and took steps to challenge it in the High Court did not relieve the respondent of his obligation to make an objective assessment of the requirements of the legislation, and to comply with it to the best of his ability.

100 In failing to act in accordance with that obligation, the respondent demonstrated a lack of due diligence and professional competency. He demonstrated a degree of disgraceful and dishonourable conduct, which, albeit falling towards the lower end of the scale, would, in the opinion of the Tribunal, be so regarded by the majority of his peers.

101 For those reasons, and in compliance with the provisions of cl.139(2), the Tribunal finds the respondent guilty of professional misconduct in relation to each of the five grounds of complaint.

102 On the issue of penalty, there is merit in the submissions of Mr. Bellanto QC, for the respondent, that having regard to the serious misconduct generally associated with a finding of professional misconduct, these matters fall at the lower end of the scale. The Tribunal hastens to say, however, that it is not the fact that they are breaches of the subject regulations that cause them to fall at that point in the scale. Rather, it is the circumstances of those breaches, and the context in which the Tribunal must now determine an appropriate penalty, taking into account the steps the respondent has taken to comply with the legislation, together with his admissions. The Tribunal can readily perceive of circumstances in which deliberate and persistent flouting of the legislation would place contravention higher in the scale of professional misconduct.

103 There can be no doubt that the respondent was well aware of the underlying intention of the legislation.

104 The respondent had shown remorse by admitting his wrongdoing and submitting proposed future advertising to the Legal Services Commissioner and to the Professional Standards Committee of the Law Society of New South Wales for approval.

105 The respondent gave evidence. The Tribunal accepts the evidence of the respondent. He was prepared to concede matters that, as a legal practitioner of many years standing, he perceived were not particularly in his favour. The Tribunal accepts him as a credible witness. The Tribunal accepts the respondent as a man of previously unblemished character, who has been a member of the profession for 23 years. He is entitled to have that finding taken into account. He is entitled to have greater weight placed upon his evidence in areas of contention. He is entitled to have that assessment taken into account when his dealings with the Commissioner are reviewed. The issue of intention is clearly a contentious one to which the Tribunal will return. Finally, he is entitled to have his credibility and good character taken into account when the Tribunal ultimately considers issues of penalty.

106 Prior to these regulations coming into force, the respondent had advertised extensively in a variety of media for some years. He employed Mr. Mees, who had formerly been employed by the Yellow Pages organisation, to design and implement his advertising. Following the passage of the regulations and subsequent complaints from the Commissioner, the respondent directed Mr. Mees to implement such changes as he deemed necessary.

107 The Tribunal accepts that a continuing breach of the regulations could not be avoided in relation to the advertisement in the Yellow Pages pending the expiration of the relevant year.

108 It is not suggested on behalf of the respondent that he can avoid personal responsibility for the advertising. Clearly he cannot. The respondent’s admission of guilt in respect of these five grounds, satisfies the Tribunal that he acknowledges total responsibility for the advertising, as, indeed, he did in the course of his evidence.

109 There is no dispute that the respondent must be reprimanded. The only issue is whether or not a fine should also be imposed upon him.

110 Having regard to the matters submitted by both counsel, the Tribunal arrived at the following findings:

1. The respondent is a man of previous good character who gave truthful evidence. His credibility and good character are relevant to the issue of imposition of penalty

2. His plea of guilty must be taken as indication of remorse.

3. While there was no precedent to guide him in determining the permissible parameters of advertising in compliance with the legislation, the terms of that legislation were not difficult of interpretation for an experienced solicitor.

4. The respondent was in large part motivated by the desire to maintain the profitability of his practice.

5. There is no evidence that the subject advertising increased profits. That does not reduce his culpability because it is his motive at the time of transgressing that is relevant.

6. There is no evidence of harm to the public.

7. The respondent’s response to complaints was coloured by his subjective views concerning the legislation and his concern that strict compliance would adversely affect profits. At the same time, however, the respondent genuinely sought to negotiate with the applicant and the Society with a view to arriving at a form of advertising that would comply with the legislation while meeting the respondent’s concerns regarding a potential reduction in profits.

8. The necessity for personal deterrence and rehabilitation is minimal. The current proceedings undoubtedly have caused the respondent to comply with the legislation. Having regard to his evidence, the Tribunal is satisfied that he will not in the future deliberately breach the law relating to advertising.

9. There is an issue of general deterrence. Members of the profession must understand that breaches of the regulations will lead to findings of professional misconduct with the possibility of being removed from the roll, or otherwise dealt with severely.

10. At the time of placing these advertisements the respondent was, on his own admission, at the very least, aware of the possibility that they were in contravention of the legislation. Given the nature of the legislation, and his extensive legal experience, the Tribunal regards it as more probable than not that he “probably” was aware they were in contravention of the regulations.

11. He was aware of the consequences of a finding that he was in breach of the legislation. He chose to take that risk.

12. The respondent acknowledged sole responsibility for the advertising.

111 A number of character references were tendered in support of the respondent. Those references attest both to his standing in and contribution to the legal profession, and his contributions to the community. They are matters to be taken into account in determining an appropriate penalty. Those references include evidence of a substantial contribution to the community over a number of years, and at a level that entitles him to a degree of leniency.

112 Mr Bellanto QC made a number of references to the dissenting judgments in the APLA case. Some reference has been made to them in this decision in order to demonstrate that there was some judicial support for the views held by the respondent. No matter to what extent those remarks reflected the respondent’s feelings of repugnance for this legislation, however, those opinions did not relieve him of his obligation to comply with the law as it stood. There is nothing in those judicial observations that support a contention that the legislation itself was difficult to comprehend.

113 Taking all those matters into account, including the respondent’s right to a reduction in penalty where full admissions have been made, the Tribunal has determined that in addition to a reprimand, the respondent should be fined $4,000 in respect of each complaint.

114 The Tribunal makes the following Orders:

1. The respondent is guilty of professional misconduct in respect of each of the five grounds of complaint.

2. The respondent is publicly reprimanded.

3. The respondent is ordered to pay a fine in the sum of $20,000 within 3 months.

4. The respondent to pay the costs of the applicant of and incidental to this application as agreed or assessed.