Miedzinski v Council of the Law Society of NSW

[2007] NSWADT 268

CITATION:	Miedzinski v Council of the Law Society of NSW [2007] NSWADT 268
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Helen Anne Miedzinski RESPONDENT Council of the Law Society of New South Wales
FILE NUMBER:	062029
HEARING DATES:	3 May 2007
SUBMISSIONS CLOSED:	3 May 2007
DATE OF DECISION:	20 November 2007
BEFORE:	Karpin A - ADCJ (Deputy President)
CATCHWORDS:	Review – decision to refuse application for approval of lay associate (section 17(4))
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987 Legal Profession Act 2004
CASES CITED:	Barwick v. Council of the Law Society of New South Wales [2004] NSWCA 32 Camille Edouard Dezarnaulds & Stephen Wawn v. The Law Society of New South Wales [unreported 27 June 1995] Court of Appeal NSW La Fontaine & Anor v. Law Society of NSW [2006] NSWADT 244
REPRESENTATION:	J Shaw QC D Barton, solicitor
ORDERS:	1. Pursuant to s. 17 Legal Profession Act 2004, the Tribunal approves the employment of Ross Garfield Barwick in the practice of the applicant upon the following conditions:; A. Mr. Barwick’s employment to be limited to:; i. Drafting deeds, documents, letters, contracts, special conditions, wills and all documents and correspondence associated with the practice of law, including correspondence relating to outstanding costs and disbursements; ii. Research for professional staff; iii. Preparation of briefs to Counsel, observations for Counsel, drafting documents and written submissions to be settled by Counsel; B. Conditions of employment:; i. Mr. Barwick to be supervised by Helen Anne Miedzinski at all times.; ii. Mr. Barwick is not to have access to or be signatory to any account conducted by the applicant with any financial institution in the course of her practice.; iii. No document, letter or any other written material drafted by Mr. Barwick is to be despatched from the applicant’s office without prior approval of the applicant.; iv. No document or written communication of any nature is to leave the practice under the name or signature of Mr. Barwick; v. Mr. Barwick may not have a business card that identifies him with the applicant’s practice without prior approval of the Law Society of NSW; vi. Mr. Barwick may only attend upon clients if: (a) the client has been advised by the applicant that Mr. Barwick is not a qualified legal practitioner; (b) the attendance is conducted in the presence of a qualified member of the applicant’s staff who has carriage of the particular matter; vii. Mr. Barwick may not appear in court to instruct counsel, nor seek leave to appear in a matter for mention or otherwise; C. The Tribunal notes that the applicant will impose the following conditions on Mr. Barwick:; i. To attend the office daily; ii. To attend continuing legal education seminars as required by the applicant.; iii. To complete time sheets; 2. Each party to pay their own costs of and incidental to these proceedings.

REASONS FOR DECISION

1 This is an application for a review of a decision of the Council of the Law Society of New South Wales, refusing an application to employ a disqualified person, Ross Garfield Barwick.

2 The application was made to the respondent pursuant to the provisions of s. 17(3)(b) Legal Profession Act 2004. The present application is made pursuant to s. 17(4).

3 Section 17 relevantly provides:

17 Associates who are disqualified or convicted persons
(1) A law practice must not have a lay associate whom any principal or legal practitioner associate of the law practice knows to be:
(a) a disqualified person, or
…

unless the associate is approved by the relevant authority under subsection (3).

(2) A contravention by a law practice of subsection (1) is capable of being unsatisfactory professional conduct or professional misconduct on the part of a principal or legal practitioner associate of the law practice involved in the contravention.

(3) The relevant authority to approve a person for the purposes of subsection (1) is:

(a) …

(b) in the case of a disqualified person who is an associate of a solicitor—the Law Society Council, or

(c) …

(4) If a Council decides to refuse an application by a person for approval under subsection (3)(a) or (b) or to grant the approval subject to conditions, the person may apply to the Tribunal for a review of the decision.

(5) An approval under this section may be subject to specified conditions.

4 The applicant, Helen Anne Miedzinski applied to the Law Society of NSW to employ Ross Garfield Barwick as a lay associate pursuant to the provisions of s. 17 LPA.

5 By letter dated 20 October 2006, the respondent informed the applicant that her application to employ Mr. Barwick had been refused on 19 October 2006.

6 This application for review was filed within the prescribed time on 15 November 2006.

7 The conduct of a review of a reviewable decision is governed by the provisions of ss. 63 and 73 Administrative Decisions Tribunal Act 1997. In determining a review, the Tribunal is required to decide. “…what the correct and preferable decision is having regard to the material then before it...”

8 On 29 April 2002, on the application of the present respondent, the Administrative Decisions Tribunal found Mr. Barwick guilty of Professional misconduct and ordered that his name be removed from the roll of legal practitioners.

9 Mr. Barwick appealed that determination to the Appeal Panel of the Tribunal which upheld the original decision, despite finding that there had, in some respects, been a denial of natural justice to Mr. Barwick.

10 Mr. Barwick appealed that decision and on 12 March 2004 the Court of Appeal dismissed his appeal. Barwick v. Council of the Law Society of New South Wales [2004] NSWCA 32.

11 The facts determined by the Court of Appeal, are taken from the decision of that Court as follows:

In early 1992 Mr Barwick (“Barwick”) and Mr Dechnicz (“Dechnicz”) were partners in the firm of Barwick Dechnicz and Boitano (“BDB”). Dechnicz was in severe financial difficulties and facing possible bankruptcy as a result of debts owed to his former firm and other creditors.

In March 1992 Dechnicz held discussion with Barwick, as a result of which they decided that clients’ funds would be used to pay Dechnicz’s debt to Smits Leslie Barwick (“SLB”) and his other debts.

On about 20 March 1992 the sum of $85,000 was withdrawn from the firm’s trust account. The funds were purportedly lent to Mrs Roberts, who was Barwick’s sister, on the security of her home in Mosman by way of a contributory mortgage from the clients whose moneys had been used. The moneys were, however, paid to the creditors of Dechnicz.

$38,000 of the $85,000 withdrawn from the Trust Account, came from the estate of the late Everil May Wilkinson. Barwick was the trustee and executor of that estate and solicitor for the estate. The testator’s will did not authorise a loan of the nature of the purported loan to Mrs. Roberts.

The purported loan to Mrs. Roberts was secured by a contributory second mortgage secured over her Mosman home. The National Australia Bank held a first mortgage over the property.

Mrs. Fulton, a beneficiary under Mrs. Wilkinson’s will, was expecting to receive her share of $38,000. When she was informed of the unauthorised loan to Mrs. Roberts, she threatened to inform the Law Society. On 26 February 1993, Mrs. Fulton received the capital and interest due to her paid from the firm’s Office Account.

In August 1992 the Law Society conducted a Trust Account inspection at BDB. Among other possible irregularities, the Law Society noted the absence of any authority in the Wilkinson will permitting a contributory loan.

In February 1993 Barwick obtained a general lending authority [“GLA”] from Mrs. Fulton on the grounds that the document was required for the distribution of funds from the estate. The GLA was dated 24 August 1992.

In April 1993, Barwick prepared false diary notes and misleading documentation in relation to the contributory mortgage and the Wilkinson Estate. He instructed his office manager to place the documents in the file to “tidy up the file”.

The Law Society wrote to Barwick and Dechnicz in 1992 and 1993 concerning the GLA and documents placed in the Wilkinson Estate file. Replies were sent to the Law Society. In March and May 1997, Barwick filed statutory declarations regarding the estate.

The Law Society commenced proceedings against Barwick alleging neglect delay and incompetence in the administration of the Wilkinson Estate; irregularity in the creation of the contributory mortgage; the circumstances relating to the signing of the GLA; and allegations of providing misleading documents to the Law Society, in letters to the Law Society and false Statutory Declarations.

12 After finding that in relation to one aspect of the hearing in the Administrative Decisions Tribunal there had been a denial of procedural fairness to Mr. Barwick, the Court noted that an aggrieved party will not be entitled to a fresh trial on every occasion when there has been a departure from natural justice.

13 In dismissing the appeal the Court said:

“In falsifying documents and misleading the Law Society regarding the Wilkinson Estate, the appellant displayed aspects of his character fundamentally inimical to practise as a legal practitioner. Although there were some mitigating factors, the deliberate use of trust moneys and the deliberate falsification of files overwhelm those subsequent mitigatory circumstances. In addition, the appellant gave deliberately false evidence, was evasive in his answers, did not make full and frank disclosure, and did not accept his obligation to act honestly and openly in all matters. For these reasons, a properly conducted hearing before the Tribunal (or Appeal Panel) could not possibly have produced a result other than a finding that the appellant is not fit to practise as a legal practitioner.”
14 On 15 November 2006, the applicant, Helen Anne Miedzinski sought a review of the decision of the Law Society refusing her application to employ Mr. Barwick. In support of that application she swore an affidavit on 14 November 2006 in which she set out the work she wishes Mr. Barwick to undertake:
“(i) The drafting of deeds, documents, letters, contracts, special conditions, wills, etc.

(ii) Research work for professional staff.

(iii) Collection of outstanding costs and fees.

(iv) Preparation of briefs to Counsel, Observations for Counsel and the drafting of written submissions to be settled by Counsel.

(v) Instructing Counsel.”

15 Pursuant to orders of the Tribunal, both parties filed and exchanged written submissions prior to the hearing. Both Ms Miedzinski and Mr. Barwick gave evidence before the Tribunal. Affidavits in support of the application were tendered from a retired District Court judge, a priest, a barrister and an Indigenous Affairs Consultant, none of whom were required for cross examination. Each of those witnesses was aware of the facts surrounding the matters giving rise to Mr. Barwick’s removal from the roll of solicitors.

16 This review falls to be determined pursuant to the provisions of s. 63 Administrative Decisions Tribunal Act 1997 (ADTA) which provides:

63 Determination of review by Tribunal

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

17 Section 73(2) of the ADTA provides:
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
18 The LPA does not require the Tribunal to be bound by the rules of evidence when dealing with such an application.

19 Section 13 of the LPA 2004 provides:

The purposes of this Part are as follows:

(a) to protect the public interest in the proper administration of justice by ensuring that legal work is carried out only by those who are properly qualified to do so,

(b) to protect clients of law practices by ensuring that persons carrying out legal work are entitled to do so.

20 In considering this application it is important to bear in mind that Mr. Barwick is not seeking to be restored to the roll. This application brought by Ms Miedzinski, is an application to permit Mr. Barwick to be engaged as a clerk. As is conceded by the respondent, it is an application at the lower end of the available forms of employment of disqualified persons.

21 In an unreported decision of Acting Justice Spender in the Supreme Court, in Camille Edouard Dezarnaulds & Stephen Wawn v. The Law Society of New South Wales, handed down on 27 June 1995, his Honour said:

“There are obvious public interests which are to be served, and which must be taken account of. These interests include:
(i) The protection of the public.

(ii) The standing of the legal profession and the standards that are required of it.

(iii) Affording those who are disqualified, or have been found guilty of indictable offences, the chance of rehabilitation and getting paid work in the profession.”

22 As Mr. Barton appearing for the Law Society, fairly acknowledged in his submission, the legislative scheme for employing unqualified or disqualified persons provides for a much wider range of work under the LPA 2004 than was available under the LPA 1987, pursuant to which the decision in Dezarnaulds was determined.

23 The applicant has been sole practitioner since 1998. She has not come to adverse notice of the Law Society either pursuant to Trust Account inspections, or through complaints to the Society.

24 The applicant has known Mr. Barwick for 20 years. The circumstances in which she first became acquainted with Mr. Barwick were not revealed in her affidavit evidence, nor, more pertinently, was it revealed in the history of her employment with which she provided the Law Society. This failure has caused the Tribunal some disquiet, and the Tribunal is not persuaded that the matter could simply have slipped her mind as she suggested. It was made clear to the applicant that the Tribunal did not accept that explanation. She said that her letter to the Law Society had been “more general”.

25 In totality the applicant was employed in legal firms in which Mr. Barwick was a principal for approximately 10 years.

26 The applicant agreed with the proposition that the circumstances of her association with Mr. Barwick were material matters that should have been revealed as likely to have a bearing on her decision to seek to employ him.

27 The serious adverse findings of the Tribunals and Court of Appeal were raised with the applicant in evidence. In particular matters relating to the falsification of file notes; placing misleading documents in a file; engaging an employee in his deceit; and misleading the Law Society were explored.

28 The applicant agreed that over her early years in the law, Mr. Barwick had been a mentor, but went on to say that she understands her duties as a legal professional and would not jeopardise her practice or the profession as a consequence of her association with Mr. Barwick.

29 Mr. William Lloyd, barrister, by affidavit filed in the proceedings, attests to the applicant’s good character and his belief that she takes her professional responsibilities very seriously and would adhere to any undertaking relating to her obligations in employing Mr. Barwick. That evidence is unchallenged.

30 Since April 2002, Mr. Barwick has engaged in a number of activities to maintain an income, including: appearing as an industrial agent in the Industrial Relations Commission of NSW; acting as a Customs and Tariff Consultant in relation to disputes before the Administrative Decisions Tribunal; process serving; making representations to members of Parliament and government agencies for individuals or companies; filing and registering documents.

31 The affidavit of Mr. William Edward Smith, an Elder of the Koompahtoo People, provides evidence of Mr. Barwick’s philanthropic activities. Over the past four years Mr. Barwick has assisted the Koompahtoo Local Aboriginal Land Council in a long running dispute relating to certain lands. He has provided a variety of unpaid services to help the Land Council in this dispute. Mr. Smith is also aware of assistance provided by Mr. Barwick to other Land Councils and to individuals, without financial reward.

32 Monsignor Coorey ‘s affidavit relates to the circumstances in which Mr. Barwick has sought counselling with this priest, and his belief that Mr. Barwick is genuinely contrite for his past misconduct, and recognises the debt that he owes to society.

33 Mr. Rodney Graeme Craigie, a retired District Court Judge has known Mr. Barwick for more than 45 years as a personal friend, and in a professional capacity. Mr. Craigie is aware of the range of Mr. Barwick’s “Pro bono activities” and attests to his shame and remorse for past conduct. Mr. Craigie expresses the opinion that there is no likelihood of Mr. Barwick engaging in future misconduct.

34 The events that gave rise to the name of Mr. Barwick being removed from the roll, occurred in 1992/93. There was, however, continuing misconduct in relation to the responses furnished to the Law Society in 1996/1997. Thus there is a substantial period during which Mr. Barwick engaged in misconduct of a serious nature.

35 The first order removing his name from the roll was made in April 2002. The appeal process resulted in the final order being made in 2004 when the Court of Appeal dismissed his appeal. Thus, in real terms, whilst the original offending occurred 15 years ago, Mr. Barwick has only been off the roll for a comparatively short period of approximately 3 years.

36 The Tribunal accepts, however, the evidence of Mr. Barwick that he has not practised as a solicitor since the original order removing his name from the roll was made on 29 April 2002. Thus his period out of the profession extends to 5 years.

37 In the years 2002 to 2004, there were three separate determinations that Mr. Barwick was not a fit and proper person to remain upon the roll. Whilst the present application does not seek to restore Mr. Barwick to the roll, it does seek to bring him back within the legal profession albeit in a limited role.

38 The considerations of public interest adverted to by Acting Justice Spender in Dezarnaulds are highly relevant to such an application, and this Tribunal must be satisfied that if the applicant is permitted to employ Mr. Barwick, the public interest will not be jeopardised.

39 In his evidence Mr. Barwick expressed contrition for his previous misconduct, and referred to the shame he has experienced daily in the intervening years, and to the shame be has brought upon his family, together with the attendant difficulties he has experienced. The Tribunal accepts, on the basis of the evidence of Mr. Barwick, and that of other witnesses, that Mr. Barwick is genuinely remorseful for his past conduct, and has made concerted efforts to come to terms with his past wrongdoing in an endeavour to rehabilitate himself.

40 The Tribunal understands that Mr. Barwick will be a useful employee for the applicant. His salary will be modest, and the Tribunal accepts her evidence that she anticipates employing Mr. Barwick will be beneficial for her.

41 The applicant has referred to the physical placement of Mr. Barwick in an open office accessible to herself and other members of staff. He will be required to attend five days per week. In her application she sets out the work she wishes to allocate to Mr. Barwick and the conditions of employment, including constant supervision provided by herself; that he not be permitted to sign correspondence or cheques; that he not be permitted to attend on clients for the purpose of giving advice except in the presence of another solicitor; and that he be required to attend continuing legal education seminars as required.

42 It is proposed that the applicant pay Mr. Barwick $28,000 per annum as a commencing salary to be reviewed at the end of 12 months. In addition he will be provided with a mobile telephone facility and appropriate superannuation contributions.

43 The respondent has referred the Tribunal to the orders made in La Fontaine & Anor v. Law Society of NSW [2006] NSWADT 244, and submits that if the Tribunal is minded to grant this application, the nature of the orders made in La Fontaine should guide the Tribunal in formulating appropriate orders.

44 Mr. Barwick is now 69 years old. It is clear that in the years since 2002, he has employed himself in what might fairly be designated legally related areas. He has the capacity to contribute to the applicant’s legal practice.

45 Protection of the public is paramount in such an application. It is also essential to take into account the necessity to maintain the integrity and standing of the profession. Although Mr. Barwick does not seek reinstatement to the roll, it is proposed that he be employed in the legal profession. Accordingly, the Tribunal must be satisfied that neither the public interest nor the integrity of the profession will be damaged by granting him the right to assume a recognised position in the legal profession, albeit at the lower end of the scale.

46 The terms upon which the Tribunal may exercise its discretion are broad. The Tribunal has determined that it should exercise that discretion in favour of Mr. Barwick’s employment by the applicant upon appropriately stringent conditions. In particular, having regard to the long association between the applicant and Mr. Barwick; the fact that for the greater portion of that time she was employed in practices in which he was a principal; taking into account his maturity and long experience in the law, the Tribunal is concerned to ensure terms that reflect and support their changed professional relationship.

47 Upon the material available to the Tribunal at this time, the Tribunal is satisfied that Mr. Barwick is a fit and proper person to be employed in the legal profession in the limited manner sought in this application.

48 The Tribunal emphasises that the decision grants a limited right to Mr. Barwick to be employed in the profession. The orders fashioned by the Tribunal are designed to ensure that he neither has the right to undertake employment falling outside the limited permissible parameters, nor that he is put in a position of appearing to have a professional standing beyond that which has been permitted him pursuant to the orders of this Tribunal.

49 The Tribunal’s orders include a prohibition on Mr. Barwick having a business card identifying him with the applicant’s practice. Permission may be sought from the Law Society for Mr. Barwick to be provided with a business card. In the view of the Tribunal, consent should only be given if the applicant can demonstrate substantial benefit to the practice that outweighs any concern that he will thereby be able to assume an appearance of professional standing beyond that which has been granted to him.

50 Whilst the applicant has succeeded on this application, the Tribunal is of the view that the original decision arrived at by the Law Society was reasonable having regard to the material that was placed before the Society. The effluxion of time, and the additional material available to the Tribunal, particularly the fact that the Tribunal was in a position to make an assessment of Mr. Barwick, has resulted in a different determination. It is not, however, a case in which the respondent should be required to pay the applicant’s costs.

ORDERS

1. Pursuant to s. 17 Legal Profession Act 2004, the Tribunal approves the employment of Ross Garfield Barwick in the practice of the applicant upon the following conditions:
A. Mr. Barwick’s employment to be limited to:
i. Drafting deeds, documents, letters, contracts, special conditions, wills and all documents and correspondence associated with the practice of law, including correspondence relating to outstanding costs and disbursements.

ii. Research for professional staff.

iii. Preparation of briefs to Counsel, observations for Counsel, drafting documents and written submissions to be settled by Counsel.

B. Conditions of employment:
i. Mr. Barwick to be supervised by Helen Anne Miedzinski at all times.

ii. Mr. Barwick is not to have access to or be signatory to any account conducted by the applicant with any financial institution in the course of her practice.

iii. No document, letter or any other written material drafted by Mr. Barwick is to be despatched from the applicant’s office without prior approval of the applicant.

iv. No document or written communication of any nature is to leave the practice under the name or signature of Mr. Barwick.

v. Mr. Barwick may not have a business card that identifies him with the applicant’s practice without prior approval of the Law Society of NSW.

vi. Mr. Barwick may only attend upon clients if: (a) the client has been advised by the applicant that Mr. Barwick is not a qualified legal practitioner; (b) the attendance is conducted in the presence of a qualified member of the applicant’s staff who has carriage of the particular matter.

vii. Mr. Barwick may not appear in court to instruct counsel, nor seek leave to appear in a matter for mention or otherwise.

C. The Tribunal notes that the applicant will impose the following conditions on Mr. Barwick:
i. To attend the office daily.

ii. To attend continuing legal education seminars as required by the applicant.

iii. To complete time sheets.

2. Each party to pay their own costs of and incidental to these proceedings.