Legal Services Commissioner v McCarthy - [2010] NSWADT 269

CITATION: Legal Services Commissioner v McCarthy [2010] NSWADT 269

DIVISION: Legal Services Division

PARTIES:
APPLICANT
Legal Services Commissioner
RESPONDENT
Maurice John McCarthy

FILE NUMBER: 092026

HEARING DATES: 29 June 2010

SUBMISSIONS CLOSED: 13 September 2010

DATE OF DECISION:
15 November 2010

BEFORE: Patten D - Deputy President; Mullane G - Judicial Member; Bennett C - Non-Judicial Member

CATCHWORDS: Professional misconduct – failure to comply with s 660 notice – order for supervision

LEGISLATION CITED: Legal Profession Act 2004

CASES CITED: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
LSC v Knudsen (No. 2) [2006] NSWADT 245

REPRESENTATION:
APPLICANT
N J Beaumont, counsel
RESPONDENT
B W Collins QC with J Hutton, counsel

ORDERS: 1. The solicitor is guilty of professional misconduct
2. The solicitor is reprimanded
3. The solicitor is ordered to pay a fine of $10,000
4. The solicitor is ordered to undertake a period of 2 years of practice under supervision, such supervision dating from today, to be constituted as follows :
a)By the solicitor at least once during each calendar month telephoning an officer of the Legal Services Commissioner (LSC) and reporting to her or him whether any client has complained about his professional conduct since his last report, as to the general nature and number of matters currently handled by him and as to any change in his circumstances relating to the manner and conduct of his practice
b) By the solicitor within 7 days of receiving a written complaint from a client providing a copy of that complaint to the LSC
5. The solicitor is ordered to pay the costs of the LSC as agreed upon or assessed
6. In case any difficulty arises in the implementation of Order 4, each party to have liberty to apply on 7 days notice to the other.

REASONS FOR DECISION

1 These proceedings were initiated by a complaint of the Legal Services Commissioner (LSC) dated 6 August 2009. It alleged that Maurice John McCarthy (the solicitor) failed to comply with a Notice issued pursuant to s 660 of the Legal Profession Act 2004 (the Act) without reasonable excuse.

2 Section 660 of the Act is in the following terms:

660 Requirements in relation to complaint investigations

(1) For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, an investigator may, by notice served on the lawyer, require the lawyer to do any one or more of the following:

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

(b) to provide written information on or before a specified date (verified by statutory declaration if the requirement so states),

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

(2) For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, the investigator may, on production of evidence of his or her appointment, require any associate or former associate of a…

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: [2010] NSWADT 269
Decision Date: 15 November 2010

CaseChat Overview and Summary

The Legal Services Commissioner brought a proceeding against a solicitor, Mr McCarthy, alleging professional misconduct. The primary allegation was that Mr McCarthy failed to comply with a notice issued under section 660 of the Legal Profession Act. The case was heard in the Legal Profession Tribunal of New South Wales. The Tribunal was tasked with determining whether Mr McCarthy’s conduct constituted professional misconduct and, if so, what appropriate sanctions should be imposed.

The Tribunal had to consider the nature and extent of Mr McCarthy's failure to comply with the section 660 notice, which required him to provide information and cooperate with an investigation into his professional conduct. This included assessing whether his actions demonstrated a disregard for the legal requirements and whether they had any impact on his fitness to practise as a solicitor. The Tribunal also had to examine the seriousness of the misconduct and whether it warranted disciplinary action.

In its decision, the Tribunal found that Mr McCarthy was indeed guilty of professional misconduct. The Tribunal noted that his failure to comply with the section 660 notice was deliberate and constituted a serious breach of the legal obligations placed upon him. The Tribunal concluded that the misconduct warranted a public reprimand and a substantial fine. Additionally, it was deemed necessary for Mr McCarthy to undergo a period of practice under supervision to ensure that he complied with all future legal requirements and maintained a high standard of professional conduct. The Tribunal also ordered Mr McCarthy to pay the Legal Services Commissioner’s costs.

As a result of the Tribunal's findings, Mr McCarthy was reprimanded, ordered to pay a fine of $10,000, and mandated to practice under supervision for two years. The conditions of supervision included monthly reporting to the Legal Services Commissioner, providing copies of any written client complaints within seven days, and maintaining open lines of communication. Furthermore, Mr McCarthy was required to pay the costs of the Legal Services Commissioner as agreed or assessed. The Tribunal granted liberty to both parties to apply for further orders if any difficulties arose in the implementation of the supervision order.

Orders

Orders of the court

1. The solicitor is guilty of professional misconduct

2. The solicitor is reprimanded

3. The solicitor is ordered to pay a fine of $10,000

4. The solicitor is ordered to undertake a period of 2 years of practice under supervision, such supervision dating from today, to be constituted as follows :

a)By the solicitor at least once during each calendar month telephoning an officer of the Legal Services Commissioner (LSC) and reporting to her or him whether any client has complained about his professional conduct since his last report, as to the general nature and number of matters currently handled by him and as to any change in his circumstances relating to the manner and conduct of his practice

b) By the solicitor within 7 days of receiving a written complaint from a client providing a copy of that complaint to the LSC

5. The solicitor is ordered to pay the costs of the LSC as agreed upon or assessed

6. In case any difficulty arises in the implementation of Order 4, each party to have liberty to apply on 7 days notice to the other.

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 McCarthy [2010] NSWADT 269
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Legal Services Commissioner RESPONDENT Maurice John McCarthy
FILE NUMBER:	092026
HEARING DATES:	29 June 2010
SUBMISSIONS CLOSED:	13 September 2010
DATE OF DECISION:	15 November 2010
BEFORE:	Patten D - Deputy President; Mullane G - Judicial Member; Bennett C - Non-Judicial Member
CATCHWORDS:	Professional misconduct – failure to comply with s 660 notice – order for supervision
LEGISLATION CITED:	Legal Profession Act 2004
CASES CITED:	Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 LSC v Knudsen (No. 2) [2006] NSWADT 245
REPRESENTATION:	APPLICANT N J Beaumont, counsel RESPONDENT B W Collins QC with J Hutton, counsel
ORDERS:	1. The solicitor is guilty of professional misconduct 2. The solicitor is reprimanded 3. The solicitor is ordered to pay a fine of $10,000 4. The solicitor is ordered to undertake a period of 2 years of practice under supervision, such supervision dating from today, to be constituted as follows : a)By the solicitor at least once during each calendar month telephoning an officer of the Legal Services Commissioner (LSC) and reporting to her or him whether any client has complained about his professional conduct since his last report, as to the general nature and number of matters currently handled by him and as to any change in his circumstances relating to the manner and conduct of his practice b) By the solicitor within 7 days of receiving a written complaint from a client providing a copy of that complaint to the LSC 5. The solicitor is ordered to pay the costs of the LSC as agreed upon or assessed 6. In case any difficulty arises in the implementation of Order 4, each party to have liberty to apply on 7 days notice to the other.