Montenegro v Law Society of NSW

Case •

[2015] NSWSC 867

•

02 July 2015

No judgment structure available for this case.

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Montenegro v Law Society of NSW [2015] NSWSC 867
Hearing dates:23 June 2015
Date of orders: 02 July 2015
Decision date: 02 July 2015
Jurisdiction:Common Law
Before: Campbell J
Decision:

Appeal allowed.
Set aside the decision of the Council of the Law Society of New South Wales made on 15th January 2015 refusing to grant the plaintiff a local practising certificate.
Declare that as at 15th January 2015, notwithstanding that the plaintiff was a person within s 42(2)(a) Legal Profession Act 2004 (NSW), circumstances warrant a determination that he is a fit and proper person to hold a restricted local practising certificate for the purpose of s 48(3)(b) of the Act subject to the imposition of the following additional conditions under s 48(1A) and s 50 of the Act:
The plaintiff undertake and complete to the satisfaction of the Council further legal education and training in the standards of professional conduct and ethics required of Australian lawyers;
The plaintiff undertake and complete a period of supervised legal practise as specified by the Council; and
Requiring the plaintiff to undergo counselling or medical treatment to assess and address the question of alcohol abuse and to provide evidence to the Council of compliance with this condition.
Each party to bear his or its own costs of the proceedings;
Liberty to apply within 14 days on 3 days prior written notice

Catchwords:

LEGAL PRACTITIONERS – practising certificate – failure to disclose certain prior criminal convictions – whether prior convictions were adequately disclosed – whether solicitor considered a fit and proper person notwithstanding non-disclosure – imposition of practising certificate with strict conditions

ADMINISTRATIVE LAW – hearing de novo – refusal of Law Society to grant practising certificate – where failure to provide full disclosure of prior convictions – whether prior convictions were adequately disclosed – whether solicitor considered a fit and proper person notwithstanding non-disclosure
Legislation Cited: Crimes Act 1900 (NSW);
Crimes Sentencing Procedure Act 1999;
Legal Profession Act 2004 (NSW);
Legal Profession Regulation 2005 (NSW);
Road Transport Act 2013 (NSW);
Road Transport (Driver Licensing) Act 1998
Cases Cited: Attorney-General v Bax [1999] 2 Qd R 9;
Barakat v Law Society of New South Wales [2014] NSWSC 773;
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; 135 CLR 616;
Melbourne v The Queen [1999] HCA 32; 198 CLR 1;
In re Davis (1947) 75 CLR 409;
In re Davis (1947) 48 SR (NSW) 33;
Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669;
Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; 97 CLR 279
Texts Cited: R.W. Burchfield, Fowlers Modern English Usage, (3rd ed (rev) 1998)
Category:Principal judgment
Parties: Cesar Dario Montenegro (Plaintiff)
Law Society of New South Wales (First Defendant)
Representation:

Counsel: Self Represented (Plaintiff)
P.A. Maddigan (Defendant)

Solicitors: The Law Society of New South Wales (First Defendant)
File Number(s):2015/00044525

judgment

  1. Under s 108 Legal Profession Act 2004 (NSW) (the 2004 Act) and by summons filed on 12th February 2015 (as amended on 19th February 2015), Mr Montenegro (the solicitor) appeals from a decision of the Council of the Law Society of New South Wales (the Council) refusing his application for a practising certificate for the 2015 financial year, made by resolution of the Council on 15th January 2015.

  2. It is well established that an appeal under s 108 of the 2004 Act, proceeds by way of hearing de novo as that expression is explained in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; 135 CLR 616 at 621 – 622: Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669; Barakat v Law Society of New South Wales [2014] NSWSC 773 at [1].

The solicitor’s background

  1. The solicitor was born on 21st September 1981. He commenced a BA/LLB at the University of Western Sydney in 2001. His degrees were awarded at the end of 2007 and he undertook the required course of practical training in 2008. By application dated 6th November 2008, he applied to the Legal Profession Admission Board for admission to practice, disclosing certain previous offending. It will be necessary to say much more about this later. After providing further information about his offending at the request of the Board, his application was approved and he was admitted to practice by order of this Court on 5th December 2008.

  2. He was granted and held a practising certificate for the period from 1st January to 30th June 2009. He did not apply again for a practising certificate until 17th November 2010, at that time disclosing what he thought might be two “show cause” events, being convictions for two mid-range PCA offences occurring on the same evening of 24th-25th April 2010. On 2nd December 2010, the Law Society resolved to take no further action in regard to the disclosures, other than admonishing him to obey the law, and he was granted a practising certificate on 1st January 2011. His practising certificate was renewed each year up until 30th June 2013. During this period he obtained a Master of Applied Law (Commercial Litigation) awarded by the College of Law.

  3. After his practising certificate expired on 30th June 2013, he did not reapply until 18th February 2014. That application was preceded by notice of an additional conviction on 29th January 2014. This was a charge of damaging property contrary to s 195(1)(a) Crimes Act 1900 (NSW). The offending ocurred on 15th December 2013. Again the Law Society resolved to take no further action and a practising certificate was issued from 18th February 2014 to 30th June 2014.

The Bar Council’s refusal of an application for a practicing certificate

  1. Initially the solicitor did not apply, or re-apply for the renewal or grant of a practising certificate for the 2015 financial year, as he had decided to apply to the Bar Council for a practising certificate. That application was made on 7th August 2014. Among the supporting documentation was a required letter dated 31st July 2014 over the signature of the secretary of the Law Society. The information provided included the following:

(5) The Society is not aware of any allegation against the applicant of professional misconduct and has no proceedings against the applicant for professional misconduct;

...

(7)   I made inquiries of the Office of the Legal Services Commissioner and have been advised that there are no matters before the Commissioner that would affect this Certificate;

…

(9)    To the best of my knowledge and belief, the applicant is of good character and a fit and proper person.

  1. In his application the solicitor made a number of disclosures consistent with previous disclosures made to the LPAB and to the Law Society. The Bar Council carried out further, extensive inquiries including requiring further information from the solicitor. At its meeting on 23rd October 2014, the Bar Council resolved to refuse the solicitor’s application. It provided him with an information notice under s 48(12) of the Act under cover of its letter of 4th November 2014. The notice stated 9 grounds refusing the application, 7 of which related to what it regarded as the inadequacy of the disclosures made by the solicitor to the LPAB, the Law Society, and the Bar Council relating to his convictions. The eighth related to him obtaining a driver’s license in another name to permit him to drive if his driver’s license was cancelled. The ninth relates to him holding himself out as a barrister on what I understand to be a social media site over a period of 6 days whilst his application for a practising certificate was pending.

  2. Of the seven matters relating to disclosure, some related to inadequate disclosure of convictions, and the nature and extent of the offending. Others related to a failure to disclose certain convictions at all. The Bar Council’s decision was based upon failing to “make full and frank disclosure” of all convictions and “significantly [downplaying] the nature and circumstance of all offences and sentences” which were disclosed.

  3. The Bar Council advised the Law Society of its decision in accordance with the provision of s 121 of the Act.

The refusal of the solicitor’s practising certificate by the Council

  1. Following this serious setback, the solicitor re-applied for the issue of a practising certificate by the Council. He disclosed the Bar Council’s refusal decision.

  2. As is clear from the evidence, informed by the Bar Council’s decision, the Council wrote to the solicitor on 18th December 2014 requiring him to demonstrate that he was a fit and proper person to hold a practising certificate. By an attachment to the letter, Council drew the solicitor’s attention to the many matters it was concerned about arising out of the Bar Council’s investigation in terms obviously informed by the discussion contained in the Bar Council’s information notice.

  3. The solicitor provided the required information by written submissions dated 7th January 2015. Essentially he accepted of the criticisms made of his prior disclosures and non-disclosures. However, the solicitor denied any intention to conceal anything or dishonesty of any other kind. He expressed deep regret for the shortcomings of his previous disclosures, which he ascribed to summarising matters from memory rather than making full inquiries prior to genuinely comply with his obligation of disclosure at various times. He accepted “this was a grave mistake”. He also accepted that he bore the onus of disclosure. He said:

I should have been more diligent and requested all relevant documents before making disclosures to the LPAB, the Law Society and the Bar Council. I take full responsibility for my deficient disclosures (letter 7th January 2015 – p 6).

He expressed his “deep regret”. He also said of his pre-admission disclosure to the Board (p 2):

In summarising the offences, the disclosures were misleading or deficient. Please consider it was not my intention to mislead. I was more concerned with disclosing the actual offence rather than the facts and circumstances surrounding it. (Emphasis added)

  1. The solicitor also relied on evidence that he suffered from severe eczema, which was painful and distressing and which symptoms affected his judgment at times. He provided no expert evidence explaining the condition and its effect upon him, but did submit a number of medical certificates certifying him as unfit for work from time to time because of it.

The Council’s decision

  1. On 15th January 2015, the Council made the following decision:

RESOLVED, pursuant to section 48(1) of the Legal Profession Act 2004 [“the Act”] to refuse the Application dated 27 October 2014 (received 29 October 2014) by Cesar Montenegro for a Practising Certificate for the year ended 30 June 2015 on the basis that the Council is not satisfied under s 48(3)(b) of the Act that Mr Cesar Montenegro is a fit and proper person to hold the certificate.

The Council provided the solicitor an information notice under s 48 under cover of its letter dated 16th January 2015 advising him of its decision.

  1. In its information notice the Council considered the solicitor’s history of convictions both before and after his admission, the facts of each offence, the extent to which the solicitor had made adequate disclosure when applying for admission and for practising certificates, and the explanation given by the solicitor in his submissions required of him by the Council under s 46(5) of the Act. The Council concluded as follows:

78.   …. The applicant’s disclosures to the LPAB, the Law Society and the Bar Association were less than full and frank. For that reason, they may, under section 42(4) of the Act, be taken into account in considering his application for a practising certificate.

79.    Over a period of 6 years, the applicant has failed on numerous occasions to fully and frankly disclose all the matters he was required, under the Act and Legal Profession Regulation, 2005, to disclose to the LPAB, the Law Society and the Bar Association.

80.   The foregoing reasons demonstrate the Council’s satisfaction under section 48(3)(b) of the Act that the applicant is not a fit and proper person to hold a practising certificate.

Relevant legislation

  1. Under s 40 of the Act, an Australian legal practitioner is entitled to engage in legal practice in New South Wales. An Australian legal practitioner is a person admitted to practice as an Australian Lawyer, inter alia, “who holds a current … practising certificate”: s 6 of the Act. It is an offence for a person who is not an Australian legal practitioner to “engage in legal practice” in New South Wales: s 14 of the Act.

  2. The Council is empowered by s 41 of the Act, on application, to grant a practising certificate to an Australian lawyer. Section 48 requires the Council to consider the application for the grant of a practising certificate, and it may “grant or refuse to grant the certificate”. It must not grant the certificate unless it is satisfied that the applicant “is a fit and proper person to hold the certificate”.

  3. Determination of the question of whether or not a person is a fit and proper person to hold a local practising certificate is conditioned by the provisions of s 42 of the Act. That provision is in the following terms, so far as presently material:

42 Suitability to hold local practising certificate

(1) This section has effect for the purposes of section 48 (Grant or renewal of local practising certificate) or any other provision of this Act where the question of whether or not a person is a fit and proper person to hold a local practising certificate is relevant.

(2) A Council may, in considering whether or not the person is a fit and proper person to hold a local practising certificate, take into account any suitability matter relating to the person, and any of the following, whether happening before or after the commencement of this section:

(a) whether the person obtained an Australian practising certificate because of incorrect or misleading information,

(b) whether the person has contravened a condition of an Australian practising certificate held by the person,

….

(f) other matters the Council thinks appropriate.

(3) A person may be considered a fit and proper person to hold a local practising certificate even though the person is within any of the categories of the matters referred to in subsection (2), if the Council considers that the circumstances warrant the determination.

(4) If a matter was:

(a) disclosed in an application for admission to the legal profession in this or another jurisdiction, and

(b) determined by a Supreme Court or by the Admission Board or a corresponding authority not to be sufficient for refusing admission,

the matter cannot be taken into account as a ground for refusing to grant or renew or for suspending or cancelling a local practising certificate unless the matter was a pre-admission event (whether it happened before or after the commencement of this section), but the matter may be taken into account when considering other matters in relation to the person concerned.

(5) A Council may decide to take no action or no further action in connection with a pre-admission event, if satisfied that it is appropriate to do so given the passage of time and other circumstances the Council considers relevant.

  1. The suitability matters referred to in s 42(2) pick up the terms of s 9 of the Act. So far as material, s 9 is in the following terms:

9 Suitability matters

(1) Each of the following is a suitability matter in relation to a natural person:

(a) whether the person is currently of good fame and character,

…

(m) whether the person is currently unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner.

(2) A matter is a suitability matter even if it happened before the commencement of this section.

  1. An applicant for admission as an Australian lawyer is required to make a declaration in relation to the suitability matters referred to in s 9 of the Act. And if he or she is unable to make a declaration in the form required, it is necessary that a disclosure of the “full detail of circumstances associated with … the … declarations which [he or she] has not signed” be provided. (Exhibit LWP 2 pp 36 and 37). I interpolate that the solicitor was unable to make two of the required declarations and provided a disclosure statement, a matter to which I will return.

  2. Under cl 11 of the Legal Profession Regulation 2005 (NSW) (the Regulation), an applicant for the grant or renewal of practising certificate must disclose, inter alia, the following information:

11 Manner of application for local practising certificate—section 46 of the Act

(1) An application for the grant or renewal of a local practising certificate must be in a form that is approved by the appropriate Council, and signed by the applicant, and (subject to any determination under subclause (4A)) must provide or be accompanied by the following:

…

(j) if the applicant has been convicted of any offence (other than an excluded offence)—the nature of the offence,

(k) if a show cause event has happened in relation to the applicant—details of the event,

(l) if a pre-admission event has happened in relation to the applicant—details of the event,

(2) Subclause (1) (j):

(a) applies to an offence committed in New South Wales or to an offence committed outside New South Wales (so long as it would have been an offence, other than an excluded offence, if committed in New South Wales), and

(b) applies to a conviction even if other persons are prohibited from disclosing the identity of the offender, and

(c) extends to an indictable offence committed before 1 October 2005 (and so extends whether the conviction occurred before, on or after that date), and

(d) extends to an offence (other than an indictable offence) committed after 8 March 1991, and

(e) does not apply to a conviction previously disclosed to the appropriate Council:

(i) under section 55 (Statutory condition regarding notification of offence) of the Act, or

(ii) under Division 7 (Special powers in relation to local practising certificates—show cause events) of Part 2.4 of the Act, or

(iii) in an application for a practising certificate under the new Act or the old Act, or

(iv) under clause 133 (Duty to report offences) of the former Legal Profession Regulation 2002.

(3) Neither paragraph (k) or (l) of subclause (1) requires the disclosure of any information previously disclosed to the appropriate Council:

(a) under Division 7 (Special powers in relation to local practising certificates—show cause events) of Part 2.4 of the Act, or

(b) in an application for a practising certificate under the new Act or the old Act, or

(c) under clause 134 (Duty to report bankruptcy) of the former Legal Profession Regulation 2002.

(4) Both paragraphs (k) and (l) of subclause (1) apply to events whether occurring before or after the commencement of this clause.

(4A) A Council may determine that applications made to it for the grant or renewal of a local practising certificate by specified applicants or by applicants of a specified class need not provide, or be accompanied by, particulars of a specified kind that would otherwise be required by subclause (1), if:

(a) the Council reasonably believes that special circumstances warrant the particulars not being disclosed to it (for example, on privacy, safety or security grounds), and

(b) the Council considers that the public interest and administrative convenience in having the particulars disclosed to it are outweighed by any individual interest in the particulars not being disclosed.

(4B) If a Council determines under subclause (4A) that particulars of an applicant’s residential address need not be disclosed, the application must include or be accompanied by a statement:

(a) indicating whether or not the applicant resides in Australia, and

(b) specifying the jurisdiction in which the applicant resides if the applicant indicates that he or she resides in Australia.

  1. Under rule 99 Legal Profession Admission Rules 2005, an application for admission by a previously unadmitted person is to be in and to the effect of Form 10. Under rule 107, when an applicant has satisfied the LPAB of compliance with the admission rules, “and is both eligible for admission and suitable for admission” the Board will approve the applicant as a fit and proper person and issue a compliance certificate.

  2. Under reg 4, the phrase “excluded offence” is defined in terms suggestive of minor traffic offences and parking offences only. More serious traffic offences are not excluded. Specifically, as relevant for present purposes, driving when your driver’s licence is suspended (and applying for a licence in a false name when your licence is suspended) in contravention of s 54(3) Road Transport Act 2013 (NSW) (and its predecessors) is not excluded, nor is driving with a prescribed concentration of alcohol in your breath or blood in contravention of s 110 of the same Act (and prior legislation to the same effect).

  3. Section 55 of the 2004 Act imposes as a statutory condition of a local practising certificate that the holder of the certificate must notify the Council if convicted of an offence required to be disclosed under the Admission Rules, or if charged with a serious offence, within 7 days of the event. A serious offence is defined, in general terms, as an indictable offence, whether or not dealt with summarily.

  4. Show cause events must be disclosed separately. Under s 6 of the Act, a person holding a practising certificate, or an applicant for one, must provide the Council with a written statement about the show cause event and explaining why, despite its occurrence, the lawyer considers himself or herself to be a fit and proper person to hold a practising certificate. Previously disclosed events need not be disclosed again. Section 67 applies to the disclosure of such events occurring during the currency of the practising certificates. Show cause events are defined by s 4 of the Act, putting it generally, as bankruptcy matters, serious offences, or tax offences. It is relevant to note that a pre-admission event is a show cause event that occurs before the lawyer was first admitted to legal practice.

General law principles

  1. As can be seen from the preceding recitation of them, the current statutory provisions requiring disclosure of convictions and serious charges is highly prescriptive. However, that is not to say that the detailed statutory regime has displaced the understanding of the idea of a “fit and proper person” derived from general law principles. Undoubtedly, the concept of “good fame and character” intrinsic to suitability for legal practise embraces personal probity of a high degree in all aspects of the practitioner’s life including, in his or her dealings with the Court, and other admission and regulatory authorities.

  2. The expression “good fame and character” is a hendiadys in the sense of a “figure of speech in which a single complex idea is expressed by two words connected by a conjunction … instead of subordinating one to another” R.W. Burchfield, Fowlers Modern English Usage, (3rd ed (rev) 1998). It is erroneous therefore to attempt to separate them. Even so, character is a reference to a person’s inherent moral qualities: Melbourne v The Queen [1999] HCA 32; 198 CLR 1 at 15.

  3. In the case of In re Davis (1947) 48 SR (NSW) 33 at 36 – 37 Jordan CJ said:

A member of the Bar stands in a peculiarly confidential relationship to his clients and to the Court. His position calls for complete integrity. It is of the utmost importance, in the interests of the community, that none but persons of good character should be admitted to practice as barristers. That this is recognised by the legislature is shown by the emphatic way in which it states in s 9 of the Legal Practitioners Act, that, however a candidate may be qualified in other respects, he must not be admitted as a barrister unless he is a person of good fame and character. In the present case it was the plain duty of Mr Davis to do everything in his power to assist the Board to perform the duty laid on them by s 9.

Although said of a barrister, the principle is equally applicable to Australian legal practitioners practising as solicitors. Section 9 of the 2004 Act perpetuates the vitality of this statement of principle by establishing the question of whether a person is currently of good fame and character as a “suitability matter”.

  1. In that case, the applicant for admission to the Bar had committed an offence of housebreaking in company at the age of 19 for which he was dealt with leniently by the imposition of a good behaviour bond by the Chairman of Quarter Sessions. As Dixon J (as the Chief Justice then was) put it on appeal to the High Court of Australia, the barrister thereafter lead “a life of scrupulous honesty” and “nothing (was) known to the [barrister’s] discredit after his conviction” apart from a single “unseemly piece of behaviour” in public: (1947) 75 CLR 409 at 422. He combined work in war industries with the completion of a law degree, earlier commenced. He graduated in 1945 and was admitted in 1946, 12 years after his offending. Reverting to the judgment of Jordan CJ in the Full Court, the matter that required the barrister’s disbarment, was a deliberate decision to conceal the truth of his criminal records, misleading not only the Admissions Board but also the two solicitors of his acquaintance from whom he obtained certificates of good fame and character. Moreover, he failed to appreciate the seriousness of his dereliction of duty, accepting only “that it would have been better that I should have made the disclosure”. Jordan CJ said (p 37):

In my opinion, a person who could be guilty of so serious and disgraceful a crime, however extenuating certain of the circumstances which may have accompanied it, and then guilty also of concealing it from those to whom, as a man of honour, he ought to have realised it was his plain duty to disclose it, is unfit to be a member of an honourable profession.

  1. The judgments in the High Court were to the same effect. Latham CJ said (at 416 – 7):

It would not be reasonable to require a candidate to disclose to the Board, or even to persons whom he approached with a request for certificates, every wrong doing of his life. But a conviction for housebreaking is so obviously a relevant matter when character is under consideration that there can be no room for doubt in the present case as to the duty to disclose it both to the Board and to the persons from whom he obtained certificates of character.

…

A man may be guilty of grave wrongdoing and may subsequently become a man of good character. If the appellant had frankly disclosed it to the Board and to the two solicitors the fact of his conviction, disclosure would have greatly assisted him in an endeavour to show that he had retrieved his character. But his failure to make such disclosure in itself, apart from the conviction, excludes any possibility of holding that he was in 1946, or had become in 1947, a man of good character.

  1. Dixon J said (at p 420):

It would almost seem to go without saying that conviction of a crime of dishonesty of so grave a kind as housebreaking and stealing is incompatible with the existence in a candidate for admission to the Bar of the reputation and the more enduring moral qualities denoted by the expression, good fame and character, which describe the test of his ethical fitness for the profession.

And at p 426:

… Though concern for an individual who is overtaken by the consequences of past wrongdoing is a very proper human feeling, it is no reason whatever for impairing in his interest the standards of a profession which plays so indispensable a part in the administration of justice.

Housebreaking for the purpose of theft is not a crime the effect of which as a disclosure of character can be considered equivocal. It is not so easy to imagine explanation, extenuation or reformation sufficiently convincing or persuasive to satisfy a court that a person guilty of such a crime should take his place as counsel at the Bar.

But a prerequisite, in any case, would be a complete realisation by the party concerned of his obligation of candour to the court in which he desired to serve as an agent of justice. The fulfilment of that obligation of candour with its attendant risks proved too painful for the appellant, and when he applied to the Board for his certificate he withheld the fact that he had been convicted.

In those circumstances the conclusion that he is not a fit and proper person to be made a member of the Bar is confirmed.

His Honour thought the outcome “inevitable”.

  1. In deciding whether a conviction disqualifies a person from holding a practising certificate, the Council, and the Court, is entitled to consider all of the circumstances attending it: Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; 97 CLR 279 at 286 by Dixon CJ (albeit in dissent); at 288 by Fullager J; and at 303 by Taylor J; McTiernan J at 287, Kitto J, holding otherwise, at 299.

  2. It is also worth noting that Kitto J at 298 observed that “it cannot be that every proof which [a practitioner] may give of human frailty so disqualifies him” of suitability for legal practise. His Honour added:

… it will be generally agreed that there are many times of conduct deserving of disapproval, and many kinds of convictions or breaches of the law, which do not spell out fitness for the Bar; and to draw the dividing line is by no means always an easy task.

  1. It is also well to recall that the Court’s power is not exercised to punish an errant practitioner, but for the purpose of maintaining the proper, “necessarily high” standards required of the legal profession as “a body exercising a unique and indispensable function in the administration of justice”: Ziems at p 286 by Dixon CJ.

The issue about the solicitor’s fitness and propriety

  1. The solicitor represented himself on the appeal. The Council was represented by Mr Maddigan of counsel. The relevant matter that undermined the solicitor’s fitness to hold a practising certificate was said to be the cumulative effect of “a failure on numerous occasions over a period of six years to fully and frankly disclose all matters required under the legislation, and that is disclosure not only to the Law Society in applying for practising certificates, but it is a failure to disclose to the Legal Profession Admission Board and to the Bar Association”: 28.10 - .15T.

  2. It was not said that the nature of the convictions “as now known” is necessarily incompatible with good character: 28.10T. Nor was it put to the solicitor when he gave evidence that “he was fabricating evidence or that he had deliberately lied to the Law Society … or that his non-disclosure was the result of fraudulent concealment”: 39.15 - .30T.

  3. The fact that it was not said, and was not put to him, that the solicitor was intentionally dishonest significantly distinguishes this case from Attorney-General v Bax [1999] 2 Qd R 9 at 13 relied upon by the Law Society. Moreover, for the same reason, to the extent to which the issue relates to whether the solicitor obtained “or attempted to obtain” a practising certificate because of incorrect or misleading information (see s 42(2)(a) of the Act), it is not open for me to find that previous disclosures were incorrect or misleading because of the deliberate suppression of the truth.

  4. On the other hand, the solicitor’s approach of “confession and avoidance” will necessarily lead to the conclusion that prior disclosures were incomplete and for that reason had a tendency to mislead.

  5. Given the solicitor’s concessions, the real issue is that presented by s 42(3) of the Act. That is to say, notwithstanding the deficiency of his previous disclosures, the solicitor “may be considered a fit and proper person to hold a local practising certificate even though [he] is within [one or more] of the categories of the matters referred to in subsection (2)”, if I am satisfied “that the circumstances warrant the determination”.

  6. There is a legal issue about the application of s 42(4), and a related issue arises in relation to reg 11(2)(e). In the case of the former, a matter disclosed in an application for admission determined by the LPAB as not sufficient for refusing admission cannot be re-visited as a ground for refusal to grant or renew, or for suspending or cancelling, a local practising certificate except in circumstances not applicable here. In a case of the latter, convictions once disclosed need not be disclosed again. In this case it is worth reiterating that what is required to be disclosed (except in the case of excluded offences) is “the nature of the offence”. The clear intention of both provisions is that once disclosed and accepted as not disqualifying a person from either admission or holding a practising certificate, as the case may be, the matter may be treated by the solicitor as spent for those purposes. However, I accept a deficient disclosure will not suffice to engage these provisions.

Determination of the adequacy of the solicitor’s disclosures

  1. I reiterate that the solicitor was admitted as an Australian lawyer on 5th December 2008 when he was 27 years of age. By then he had been convicted of a number of offences and other matters had arisen capable of affecting his good fame and character. When making his application for admission, he was conscious of these matters. He recognised this by striking out the following declarations, by which he was required to make relevant disclosures (see Application for Admission Exhibit LWP2 p 36):

6.2   I am and always have been of good fame and character and I have not done or suffered anything likely to reflect adversely on my good fame and character, and I am not aware of any matter or circumstances that might affect my suitability to be admitted as a lawyer.

6.4   I have never been convicted of an offence in Australia or a foreign country.

  1. A disclosure statement was attached and additional information was requested. The additional information was provided on 11th November 2008.

  2. I should say that the solicitor in addition to matters now held against him by the Council, disclosed a number of other convictions: driving whilst his licence was cancelled on 29th of January 1999, receiving, inter alia, disqualification for 12 months; possession of a small amount of marijuana on the 12th of December 1999. The circumstances were that he was pulled over after running a red light whilst driving subject to the disqualification which had been imposed upon him earlier that year. The period of disqualification was extended for 12 months. As no complaint has since been made about the adequacy of the disclosure of these matters they may be put to one side.

  3. On 5th March 2000 the solicitor was convicted at North Sydney Local Court of 3 counts of maliciously destroying property. His disclosure to the Board was in the following terms:

Was out fishing one night at Clifton Gardens. Started drinking alcohol with a group of friends, before we know [sic] it we jus [sic] started overturning bins and destroyed a toilet block.

Paid $1,500 in compensation for damage.

Ordered to perform Community Service 100 hours concurrent.

  1. Complaint is made about the adequacy of this disclosure because it was said the applicant significantly understated the nature of the offences and his role in them. And he misled the LPAB by failing to disclose his dishonesty in initially providing a false identity to the police. The solicitor acknowledges these matters. However, I am of the view that his disclosure was substantially complete and accurate. He was not obliged to produce a copy of the fact sheet upon which the Magistrate proceeded to sentence him. Moreover, his succinct account disclosed that he was drunk, in company and “destroyed a toilet block” (my emphasis). This conveys that very substantial damage was done. He did not mention damage to a parking metre at a no standing sign. These matters, in my view, do not greatly add to the relatively serious nature of the offending. He did mention three counts. Initially providing a false name is a matter of concern, especially as will be shown this was not the only occasion on which he was dishonest in that way.

  2. He disclosed to the LPAB that he was convicted of a number of offences occurring at the Marconi Club on 2nd September 2000. The offences included having in his possession a false drivers licence and stealing a wallet and two mobile phones belonging to various patrons of the club. In his statement to the LPAB he said he did not use the false licence in any manner and overstated the number of phones stolen. He explained he was under the influence of alcohol. He stated he was fined and a good behaviour bond was imposed. He accepts that this disclosure was also deficient. In respect of these matters he did not disclose that he was in company, he overlooked that he had used the false drivers licence to gain entry to the club and that the licence was obtained by deception. As he acknowledges, his disclosure to the Board was incorrect in the sense of being incomplete (even if he overstated the magnitude of the stealing) and misleading in that he stated he did not use the drivers licence for deception. This latter matter he put down to a failure in his memory due to the effluxion of 8 years between the offending and making his application for admission.

  3. On 6th November 2002, the solicitor was convicted in his absence of a series of offences alleged to have occurred in October and November 2002. The offences were not excluded offences within the meaning of reg 4 as it stood at November 2008 when he made his disclosure to the LPAB. Some, but not all of the matters were disclosed. Again, the solicitor admits that his disclosure was incomplete and therefore incorrect and apt to mislead.

  4. The offences occurred on 13th October 2002, 20th October 2002 and 4th November 2002. Convictions in his absence were subsequently annulled and the charges in relation to 20th October 2002 were withdrawn in circumstances it will be necessary to say more about.

  5. On 13th October 2002, the solicitor was charged with providing a false name to the police and driving when his licence was cancelled. Convictions for these offences were required to be disclosed on his application for admission and on an application for a practising certificate under reg 11. The circumstances were that he was pulled over for a random breath test which proved negative and he supplied the same false name he had used in relation to the Marconi Club offences. Once at the Police Station, he supplied his correct particulars. It was then established that he had not renewed his licence after finishing the earlier period of disqualification. He was required to appear at the Liverpool Local Court on 6th November 2002. These matters were disclosed to the Board, but the solicitor did not tell the whole story.

  6. On 20th October 2002, he was charged with an additional five traffic offences. Again convictions entered in his absence were annulled and the charges were subsequently withdrawn in circumstances which it is necessary to relay. However, as the conviction was annulled and the charges subsequently withdrawn, there were no convictions to disclose. The matters were not disclosed in their entirety to the LPAB. But as the circumstances demonstrate, conviction or not, the matters had the capacity to affect his good fame and character and to that extent his suitability for admission and the circumstances ought to have been fully disclosed to the LPAB. The 20th October charges are driving furiously, driving when licence cancelled; stating a false name and address; exceeding the speed limit by more than 45 kilometres per hour and failing to produce his licence upon request.

  1. The facts were that he was clocked driving on the M4 at a speed of 152 km/h in a 90 km/h zone and seemed to be swerving in and out of traffic. The police pulled him over and he did not produce a driver’s licence, saying he did not have it on him giving the same false name and address he had used previously. He explained he was in a hurry, providing or at least adopting the spurious explanation that “his girlfriend’s father had recently died and he was trying to get her home”. He was allowed to leave being informed that infringement notices would be sent to him. His true identity was uncovered when he was arrested for further traffic offences on 4th November 2002.

  2. When responding to the Bar Association’s requirement that he provide additional information in relation to the circumstances, he gave this explanation:

At around 16 years of age I began to use other names, but they were real names of friends. I went to the RTA with their birth certificate, Medicare card and phone bill and said “I lost my licence may I have a replacement” and they would take the photo on the spot and issue it. They were primarily used to get into nightclubs when I was under 18. I rarely used it for actually driving, but I have done so.

I have used the names Steven Morales and Wesam Yousif. I have only changed my name through the Registry of Births, Deaths and Marriages once to Miguel Cortez and back to Cesar Montenegro.

One event I now remember as a result of reading the said charge sheet is the “driving recklessly/furiously 4 Nov 2002” [this is an error it should be 20 October 2002] which was withdrawn together with other charges. I was pulled over heavily speeding and I gave a licence in the name of my friend Wesam Tom Yousif (who I have not spoken to or heard from for maybe 10 years) and my girlfriend-at-the-time made up a story about a family member passing away and I played along so the police let us go. I was charged for those offences and they were withdrawn as I maintained it was not me and the police could not prove it was me.

All I can say is when I did those things I was a wholly different person. I cannot change the past, but I have worked hard and have changed myself. I admit to all this in the interests of honesty.

  1. It is obvious that these circumstances were capable of informing a decision about his fame and character and therefore his suitability for admission as an Australian Lawyer. The manner of his driving is a serious breach of traffic law; as was providing a false name. The most significant aspect of course from the standpoint of a need to maintain proper, high professional standards is the solicitor maintaining “it was not me and the police could not prove it was me”. The police could not prove it was the solicitor because he gave them a false name and was complicit in a concocted story to persuade the police to let him go. A person of good fame and character worthy of observing the high standards of the legal profession would not have behaved in this manner. This is not to suggest that lawyers are not entitled to the civil liberties enjoyed by other citizens such as the right to silence and the requirement that prosecuting authorities prove criminal offences. Evading conviction by engaging in misleading conduct is in a different category.

  2. It may be, as the solicitor says, he was then “a wholly different person” and has now changed. But as in the case of In re Davis that was not for him to decide. It was a matter that he was required to disclose for the decision of the LPAB.

  3. Unlike In re Davis, it may be that the serious traffic matters I am dealing with are not manifestly incompatible with the high standards required of an Australian lawyer. Accordingly, the case does not have those twin elements in it of disgraceful offending and active concealment. But the failure to disclose is a serious one. It may have been disclosed to the Bar Association or to the Bar Council “in the interests of honesty”, but it should have been fully disclosed to the LPAB for the same reason.

  4. The offences of 4th November 2002 were driving when his licence was cancelled, possessing a licence (a learner’s permit) obtained by dishonest means, and the related offence of obtaining a licence by a false statement. Police observed a male person driving the car involved in the 20th October incident travelling west on Liverpool Road. The offside wing mirror was missing and a P plate was displayed at the rear, but not at the front. The police followed the vehicle which turned off Liverpool Road and was out of sight for a short time. When next seen, police observed the person who had been driving entering the front passenger seat. When police challenged him about the change, he stated he only had a learner’s permit and his female companion a provisional licence. The solicitor produced a driver’s licence obtained on 20th October 2002 in the name Miguel Cortes. Police were suspicious of the recently obtained identification. Inquiries uncovered his true identity, but the solicitor denied this and maintained that Cesar Montenegro was his cousin. After arrest he was identified by fingerprints. He revealed his true identity and stated that he had changed his name. This latter part is true. Further inquiries revealed that the solicitor had obtained a learner’s permit on 30th October 2002, falsely stating that his licence had never been disqualified, cancelled or suspended. Further inquiries revealed the previous disqualification which expired on 10th February 2002.

  5. When dealt with on 26th March 2003, he received bonds, subject to conditions, under s 9 Crimes (Sentencing Procedure) Act 1999 (NSW) for the offences of driving when his licence was cancelled. For the other offences to which he pleaded guilty, he was subject to a community service order of 100 hours. He was called up on the breach of bond and an application was made for the revocation of the community service order because of his non-compliance with it. In respect of each matter, on 7th August 2003, the former sentences were revoked and he was re-sentenced to a fixed term of imprisonment of 6 months suspended upon him entering into a s 12 bond for 6 months for supervision under the New South Wales Probation Service. The suspended sentences ran concurrently.

  6. When disclosing the convictions in relation to the offending of 4th November 2002, the solicitor included reference to some of the offences of 20th October 2002 that had been withdrawn, including driving at 45 km over the speed limit, refusing to produce his licence and stating a false name and address. As I have said, he said nothing about the circumstances in which those charges were in fact withdrawn. He wrongly stated that he received the benefit of a bond under s 10 Crimes (Sentencing Procedure) Act, said nothing of the community service order or the conditional s 9 bond, and nothing about his breaches of those orders resulting in him being re-sentenced to two suspended terms of imprisonment.

  7. This series of serious traffic offending at the time he was a law student was explained with the statement “with regards to all the driving offences, I kept driving because I was angry and felt I had lost my licence unfairly”. That explanation may have been viewed benignly because of the incompleteness of the disclosure. He went on to say that he had disclosed all the offences of which he was convicted and:

I honestly believe I have evolved into a person of good fame and character. I have undergone a radical change since my earlier days.

Unfortunately, that statement was not correct.

  1. As part of the punishment for each of his convictions for driving when his licence was cancelled, the Local Court imposed a period of disqualification of 2 years commencing on 26th March 2003. This circumstance was not disclosed to the Board. Nor did the solicitor disclose that on 26th June 2004, he was charged with driving whilst disqualified. The offending was detected when he was stopped for a random roadside breath test which was negative. He gave his name as Miguel Cortez and fingerprinting confirmed his identity as Cesar Montenegro. The matter, for reasons not explained in the evidence, was not dealt with until 30th September 2005, when the Local Court did not proceed to a conviction under s 10 of the sentencing legislation, but required the solicitor to enter into a good behaviour bond of 18 months duration. This is probably where the erroneous statement about the sentence passed for 4th November 2002 offending arose.

  2. He explained his failure to previously disclose these matters in the following terms (Affidavit 10th March 2015, Annexure A, p 6):

Failure to disclose the 2004 [conviction] is explained by the fact that it does not appear in my criminal record for MONTENEGRO. But the onus was on me. I should have been more diligent and requested all relevant documents before making the disclosures to the LPAB, the Law Society, and the Bar Council. I take full responsibility for my deficient disclosures.

He further explained that this matter appeared on his record under the name Cortes that he was then using. He had forgotten about it until the Bar Council requested his record in that name.

  1. The last of these matters occurred more than 3 years before his application for admission. When the last offence occurred he was 22 years of age, studying law. At the time of his admission he was aged 27.

  2. Further offending occurred on 24th and 25th April 2010. At that time, the solicitor did not hold a practising certificate because the practising certificate he had been granted from 1st January 2009 had expired. He was charged as follows:

  1. Between 11.08 pm and 11.15 pm on 24th April 2010 mid-range PCA (0.084); and

  2. 1:05 am on 25th October 2010 mid-range PCA (0.105); and

  3. Driving whilst licence suspended.

  1. The solicitor drove into a service station in the company of another person and was seen to be engaging in the unseemly act of urinating on a toilet door at the service station. Police administered a breath test which was positive and he was taken to Blacktown Police Station where he was charged. Acting under statutory powers, the police suspended and confiscated his licence before he was released. Soon after his release, the police returned to the service station with the intention of obtaining a copy of any CCTV footage. Upon their attendance, they noticed that the applicant’s car was gone. Inquiries revealed that the solicitor had driven it away. The police searched, and found him driving his car. He was again arrested and a second breath analysis showed a higher reading. The solicitor explained he consumed more alcohol whilst driving the car whilst his licence was suspended.

  2. After a number of adjournments due to his severe eczema, he pleaded guilty to all three charges, was fined $800 in respect of each, with court costs. A period of disqualification was also imposed for each offence. For the first PCA offence he was disqualified from driving for 12 months from 24th April 2010; for the second for 2 years from 25th April 2010; and for the driving whilst suspended for 2 years from 2nd November 2010. He was required to enter into in a 2 year good behaviour bond in respect of each matter.

  3. On 27th October 2010, he notified the Law Society of the two mid-range PCA convictions for “the same night”. He omitted to mention the drive whilst suspended conviction. He expressed his “disclosure” as pursuant to both reg 11 and as notification of a show cause event under s 66 of the 2004 Act. None of the offending was a show case event. In response to a request for further information he stated that he did not have a copy of the Facts Sheet. He provided a more or less accurate account, omitting the unseemly behaviour which attracted the attention of police, but again failed to mention the drive whilst suspended charge. In informing the Law Society of his sentence, he mentioned two fines and two 2 year good behaviour bonds. He did not mention the period of disqualification. Nor anything about the drive whilst licence suspended charge.

  4. I repeat that the Disclosure Committee of the Law Society resolved to take no further action other than to remind the solicitor of the requirement of lawyers to comply in all respects with the law. This resolution was communicated to him on 2nd September 2010.

  5. The initial notification of the mid-range PCA matters is dated 27th October 2010 and received by the Law Society on 18th November 2010. Properly, the matter was required to be notified under reg 11 because by undated application received by the Law Society on 17th November 2010, the solicitor applied for a practising certificate, which was granted.

  6. Driving whilst disqualified was an offence under s 25A Road Transport (Driver Licensing) Act 1998 (NSW), now repealed, even though the suspension was by notice given by a police officer rather than a court: s 25A(9). It was not an excluded offence.

  7. The solicitor’s explanation for failing to disclose the matter when he disclosed the PCA matters (affidavit Annexure A p 6), which was that “he had forgotten about [it] and only remembered due to the Bar Council requesting the Facts and CAN sheet for those charges and upon reading them”. He asked rhetorically why would he “disclose the two more serious offences and leave the lessor charge out purposefully? Please see it for what it was – a mere inadvertent non-disclosure”. I would not regard the drive whilst suspended, necessarily, as a lesser offence. He also referred to his illness which was “severely debilitating” at the time. He led emphasis upon this matter in his oral argument.

  8. It is curious that he apparently overlooked the drive whilst suspended charge when, notwithstanding the explanation he has given, his disclosure was made within about two weeks of the conviction and sentences being imposed.

  9. On 15th February 2014, the solicitor gave notice of a further conviction under s 55 of the 2004 Act. He was convicted on 29th January 2014 of an offence under s 195(1)(a) Crimes Act of damaging the four side windows of his girlfriend’s car. The offending occurred on 15th December 2013. He was fined $470. He provided what I would regard as a reasonably full account of the offending, which did not display him in a good light. There was no complaint by his girlfriend to the police. The offending came to light when they were pulled over by police with his girlfriend driving and police noticed the damage. He explained that both used the car and he regarded it as his own. He was not offering an excuse, just an explanation. He accepted responsibility and stated that he had paid for the damage. By resolution dated 20th March 2014, the Disclosure Committee decided to take no further action.

  10. The solicitor’s disclosure was not complete. Further investigation by the Bar Council, including obtaining a copy of the Facts Sheet disclosed that he had initially lied to the police when asked about the damage by suggesting vandals were responsible. In his submissions to the Law Society he explained that he had “blurted out that ridiculous comment which was inaccurate”. In his plea in the Local Court he admitted the inaccuracy and expressed his regret for it. He said to the Law Society “I did not lie where it mattered. I submitted to the Court the exact details of the offence and my part in it. I took responsibility and made restitution”. As I have already observed, it always matters for an Australian lawyer to tell the truth.

Testimonial Evidence

  1. Two affidavits of support by other practising lawyers were read in the solicitor’s case without objection by the Council. Mr Maddigan, however, submitted, correctly, that such material may be of limited weight. In the end it is for the Court to make its own judgment about the solicitor’s fitness and propriety.

  2. The first affidavit is from Nicholas Silva, currently practising as a barrister. He had previously practised as a solicitor and has known the solicitor since 2012. From his affidavit sworn on 17th June 2005, I am satisfied that the solicitor has made full disclosure to him of the matters in issue including the withdrawal of 20th October 2002 charges and the circumstance of the solicitor providing a false name. He is also aware of the solicitor’s medical condition and describes what he has observed about its apparent effect upon him. Mr Silva regards the solicitor as a person of good character and honesty.

  3. Mr Sayar Dehsabzi, practises in his own right as a solicitor in private practice. From his affidavit sworn on 17th June 2005, I am satisfied that the solicitor has made full disclosure to Mr Dehsabzi, including the circumstances of 20th October 2002 offending and how those charges came to be withdrawn. By reference to his letter to the Bar Council dated 26th August 2014, which I taken to have been incorporated in his affidavit, he vouches for the solicitor’s good character.

  4. In his letter of 26th August 2014, Mr Dehsabzi confirms that he is aware of the solicitor’s “current difficulties and lend him my support” [sic]. He confirms that he is aware of his criminal antecedents and notwithstanding them considers him to be “a person of high integrity and ethical values”. He is prepared to employ him if the solicitor continues to be entitled to practice.

  5. Accepting the force of the Council’s submissions, I regard this evidence as being of some weight given what I have said above about the nature of the issues for determination in the case at hand.

Decision

  1. I reiterate that the powers I am exercising are not purely adversarial in nature. However, nor am I called upon in this case to exercise the Supreme Court’s disciplinary powers. I am determining an appeal from an administrative decision made by the Council in the exercise of its regulatory powers. Even so, the Council exercises its powers, and therefore so to the Court on appeal, for the purpose of maintaining proper professional standards for the protection of the public. But the decision is not made in a legal vacuum. The focus in this case is upon the adequacy of disclosure per se, and on what the Council says is the cumulative effect of various inadequacies over a period of years.

  2. I also bear in mind, that I am concerned with the standards of professional people, not paragons: Zeims at 298 by Kitto J. And in this context, it is not said, as I have pointed out, that the full extent of the facts surrounding the solicitor’s offending “of its own force” carries “such a stigma” that he is disqualified from holding a practising certificate. Nor is it said in argument before me that the solicitor told deliberate falsehoods or deliberately concealed the truth. These matters were not put to him in cross-examination. The proceedings may not be strictly adversarial, but considerations of fairness require me to bear in mind that context to the “dispute” I am required to resolve.

  3. I am satisfied that the disclosure of the serious criminal convictions of malicious damage and theft which occurred in 2000 when the solicitor was around 19 years of age were adequately disclosed to the LPAB and by force of s 42(4) may not be revisited. Those matters are not pre-admission events as defined.

  4. The matter of most obvious concern, as I have indicated above, concerns the adequacy of disclosure of the significant driving convictions arising out of the series of events of 13th October 2002, 20th October 2002, 4th November 2002 and, in particular, 26th June 2004. Of particular concern are what the solicitor says about the circumstances in which the charges in relation to the events of 20th October 2002 were withdrawn, his failure to accurately disclose the sentence passed, his non-compliance with orders resulting in him being resentenced to a suspended jail term and the non-disclosure of the drive whilst disqualified conviction on 26th June 2004. In context, the particular concern is his inability to explain the circumstances in which the charges were withdrawn in a meaningful way (see [52]-[53] above; 21.15 - .45T). This may strongly suggest that even now, when he is of mature years, he does not have a fully developed appreciation of a lawyer’s exacting obligation of candour in his or her dealings with the Court, and authorities charged with responsibility for regulating the profession.

  1. On the other hand, I bear in mind that he did disclose some of the offending which occurred on 20th October 2002, including exceeding the speed limit by more than 45 kilometres per hour and I am prepared to accept, because the contrary is not put, that he was simply mistaken when he specified that he received a s 10 bond.

  2. Because of the solicitor’s inability to explain fully the circumstances in which the charges were withdrawn, perhaps, at least in part due to the long effluxion of time, the Bar Council and the Council formed a view that the solicitor, as a 21 year old university student, had been party to a perversion of the course of justice. I am not satisfied that the evidence justifies a finding of such egregious misconduct, and that is not the ground on which either of them refused a practising certificate. Much weight was put on the content of the fact sheets prepared by the police. The general experience of the courts suggests that such documents are not always entitled to be afforded considerable weight. Nor should, in my view, the regulatory authorities treat them as presumptively highly reliable until the lawyer by contrary evidence rebuts them. The Facts sheet, which is reproduced on numerous occasions throughout Exhibit LWP 2 (see for example Vol. 1 pp 329 – 31) is hardly fulsome, consisting of two short paragraphs (on p 331). They are clearly hearsay and were not prepared by the officers involved, but were compiled from checks on the police computer system. Part of the offending was the provision of a false name to police, and that matter, although the charge was subsequently withdrawn, was disclosed to the LPAB in the solicitor’s application for admission.

  3. What seems to have happened is that after the convictions imposed in his absence on 6th November 2002 were annulled (I interpolate the Magistrate must have been persuaded there was a satisfactory explanation for his non-attendance) the lawyer representing the solicitor, who was entitled to the civil liberties enjoyed by all of us in the accusatorial criminal justice system, persuaded the police that they could not win. I infer that the officers involved were not available given, as I have said, the hearsay nature of the short facts compiled in relation to the matter. The decision to withdraw the charges was entirely within the prosecutor’s discretion. The evidence does not justify a finding that either the solicitor, or his legal representative, connived to secure that withdrawal corruptly.

  4. I accept the solicitor’s explanation that the inadequate disclosure of the sentence passed and the need to be resentenced is explained by his failure to put the facts before the LPAB with due diligence. There is no suggestion of dishonesty. For what it is worth had all the facts been put forward, the circumstances would not of their own force have told against his admission as a lawyer.

  5. Dealing with the offence of 26th June 2004, which was not disclosed at all, I accept that again this was a failure of due diligence and that the solicitor relied upon incomplete records. The matter was dealt with in the name Miguel Cortes, which, at that time, he was lawfully using. What is important in this regard is that he did disclose to the LPAB that he used other names to drive when he was otherwise disqualified. He was in error when he said that he had no additional offences since 2002, but he clearly accepted the wrongfulness of his conduct and asked the LPAB to accept that he had changed. As at 20th June 2004, he was not using a “false” name, but a name that he had lawfully adopted. The point is, he disclosed sufficient information to persuade me he was not deliberately suppressing information. And as I have pointed out that was not put to him or said against him before me.

  6. Serious traffic offences are, of course, treated by the legislation as raising questions about a lawyer’s fitness. That is why they are required to be disclosed by reg 11. The very thorough investigation carried out, especially by the Bar Council, shows, that since 2004 his previously appalling record has greatly improved.

  7. This leads me to the offending of 24th and 25th April 2010. As the judgments in Zeims demonstrate, drink driving offences, even those not involving personal injury or death, are considered seriously when deciding questions of professional fitness. I would think that driving whilst disqualified offences are no less serious. The concern is that they may evince a disregard of lawful processes which is completely inimical to the observance of proper professional standards. The solicitor’s failure to disclose the third matter is inexplicable. But that conduct is certainly less disgraceful than the commission of a second drink driving charge immediately following his release from the police station which matter was disclosed and accepted by the Disclosure Committee subject to the administration of an admonition. Again, the issue is not the nature of the offending but the disclosure. This incident also raises questions about whether the solicitor’s understanding of proper professional conduct, and the obligation of candour, is sufficiently well developed in someone who should be, by now, a very experienced lawyer. The urinating in public is, of course, very unseemly but is not of itself conduct which disqualifies him from holding a practising certificate and I will put it to one side.

  8. Concerning the 29th January 2014 offence, the substance of that matter was disclosed and the Disclosure Committee resolved to take no action. The matter of concern in relation to his fitness is that when stopped and questioned about the matter by police, he did not simply exercise his right to silence, but told what must have been an obvious lie in an attempt to avoid detection. As I have said more than once, this is conduct inappropriate in a practising lawyer. Was he required to disclose to the Law Society, “I initially lied to the police, but later thought better of it and I only did so because my judgment was affected by being drunk”? I think the answer is that a paragon would have. What he was required to disclose under s 55 of the 2004 Act, read in accordance with reg 11, was “the nature of the offence” and this he very substantially did. He should not have lied to the police. His state of intoxication may explain why he did, but it also discloses a lapse in moral fortitude. Whether a lawyer tells the truth always matters, but I accept that he did make a full disclosure to the Court and accepted responsibility by pleading guilty to the offence. In my judgment sufficient information was disclosed to the Law Society about this matter to discharge the solicitor’s professional obligations.

  9. The shortcomings in his compliance with his obligations of candour and disclosure do raise a question about whether or not the solicitor is a fit and proper person to hold a local practising certificate. In particular, I am satisfied that he may have obtained a practising certificate in the past because of information which was incorrect, in terms of being incomplete, and therefore apt to be misleading, but not dishonestly so. The question is whether all of the circumstances of the case warrant a finding that he is a fit and proper person to hold a local practising certificate, notwithstanding these considerations. The real concern is the shortcomings in his understanding of the obligation of complete candour. To a lesser extent the 2010 and 2014 convictions suggest moral failings relevant to his professional standing when under the influence of alcohol. Given his comparative youth when the pre-admission offending occurred, and the disclosure of the substance of his pre-admission convictions to the Board, I am of the view that the shortcomings in his disclosure at that time are explained in part by his youth, but also by a lack of due diligence born of a want of a full understanding of what is required of him as an Australian lawyer. The evidence does not allow me to find that his medical condition contributed to his failure to disclose the 2010 drive whilst suspended. Again, I would put this shortcoming down to an ongoing want of a full understanding of the required standard.

  10. Having given the matter full and anxious consideration, I am persuaded that the circumstances I have sought to fully describe in these reasons warrant a finding that he is a fit and proper person to hold a restricted local practising certificate provided the ongoing concerns I have expressed are addressed by the imposition of appropriate conditions under s 50 of the Act. The precise formulation of those conditions ought to be left to the good judgment and experience of the Council if and when the solicitor re-applies, but they should require the solicitor to undertake and complete further legal education or training in the high standards of professional conduct required of Australian lawyers. This condition should be bolstered by a period of supervised legal practice. Moreover, given what seems to be a problem with his conduct and judgment when affected by alcohol, the solicitor should be required to undergo counselling or medical treatment to address that issue, to the satisfaction of the Council.

  11. In making this decision, I record that I have been influenced to some degree by the good opinion of the solicitor expressed by the lawyers who have given evidence on his behalf.

  12. The Council argued that if I allowed the appeal, I should, nonetheless, award it costs given the admitted deficiencies in the solicitor’s compliance with his obligations of disclosure. I understood this argument to be an invocation of a variation of the so-called “indulgence rule”. In my judgment, there is no reason to completely reverse the usual order of things. The solicitor has been successful, or substantially successful, on his appeal. On the other hand, he has been self-represented throughout. In circumstances where all he applied for, and may be entitled to, is a restricted practising certificate, he could not have properly carried on the litigation professionally without the supervision of the holder of an unrestricted practising certificate. Nor has his success been entirely unalloyed. I have in mind the imposition of somewhat onerous conditions with which he must comply if he is to continue to practise at all. It seems to me that there is a measure of success each way and the proper order is a departure from the general rule so that each party bear its and his own costs.

  13. For these reasons, my orders are:

  1. Appeal allowed.

  2. Set aside the decision of the Council of the Law Society of New South Wales made on 15th January 2015 refusing to grant the plaintiff a local practising certificate.

  3. Declare that as at 15th January 2015, notwithstanding that the plaintiff was a person within s 42(2)(a) Legal Profession Act2004, circumstances warrant a determination that he is a fit and proper person to hold a restricted local practising certificate for the purpose of s 48(3)(b) of the Act subject to the imposition of the following additional conditions under s 48(1A) and s 50 of the Act:

  1. The plaintiff undertake and complete to the satisfaction of the Council further legal education and training in the standards of professional conduct and ethics required of Australian lawyers;

  2. The plaintiff undertake and complete a period of supervised legal practise as specified by the Council; and

  3. Requiring the plaintiff to undergo counselling or medical treatment to assess and address the question of alcohol abuse and to provide evidence to the Council of compliance with this condition.

  1. Each party to bear his or its own costs of the proceedings;

  2. Liberty to apply within 14 days on 3 days prior written notice.

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Amendments

03 July 2015 - Order (b): the word "for" replaced by the word "or";


Paragraph 41: the word "convict" changed to "convicted";


Paragraph 51: the word "running" changed to "driving";


Paragraph 79: second sentence - the word "ihn" replaced by the word "in"

Decision last updated: 03 July 2015

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Cases Cited

4

Statutory Material Cited

6

Barakat v Law Society of New South Wales [2014] NSWSC 773
Barakat v Law Society of New South Wales [2014] NSWSC 773
Barakat v Law Society of New South Wales [2014] NSWSC 773