New South Wales Bar Association v LH (No 2)

[2005] NSWADT 156

CITATION:	New South Wales Bar Association v LH (No 2) [2005] NSWADT 156
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the New South Wales Bar Association RESPONDENT LH
FILE NUMBER:	042014; 052005
HEARING DATES:	20/06/2005, 21/06/2005
SUBMISSIONS CLOSED:	06/21/2005
DATE OF DECISION:	07/08/2005
BEFORE:	Officer D QC - Judicial Member; Norton S SC - Judicial Member; Quayle C - Non Judicial Member
APPLICATION:	Unsatisfactory Professional Conduct - failure to notify Legal Aid Commission - Unsatisfactory Professional Conduct - failure to provide costs disclosure - Unsatisfactory Professional Conduct - receiving money on behalf of another
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Aid Commission Act 1979 Legal Profession Act 1987
CASES CITED:	Advanced Gaming Technologies Pty Limited v Ahearn [1999] NSWSC 45 New South Wales Bar Association v Nguyen [2002] NSWADT 264 R v William Vincenzo Favero [1999] NSWCCA 320 The Council of the New South Wales Bar Association v LH [2004] NSWADT
REPRESENTATION:	P Brereton, barrister N Williams SC, barrister
ORDERS:	1.The respondent is found guilty of unsatisfactory professional conduct on three grounds; 2.The respondent has 21 days from the date of receiving this decision to file any further evidence he seeks to rely on with respect to outcome; 3.The applicant has 14 days thereafter to file any evidence it wishes to rely upon on the question of outcome; 4.The matter will then be relisted for submissions on outcome.

BACKGROUND

1 In this matter there were two informations which were heard together evidence in one being evidence in the other pursuant to an order made by the Tribunal on 16 March 2005. The information which was first in time was filed on 26 March 2004 and became Exhibit B in the proceedings and the second in time was filed on 2 March 2005 but became Exhibit A. Both informations concerned complaints about the conduct of a barrister, LH, when he acted on a direct access basis for a client who was facing committal proceedings in certain drug related matters.

THE INFORMATION

2 The information filed on 2 March 2005 in matter number 052005 contained two grounds. Ground 1 alleged:

“… That the barrister is guilty of unsatisfactory professional conduct in that he failed to notify the New South Wales Legal Aid Commission of a change in the means or circumstances of his client Mr Eli Geadah (“the client”), where he knew, or ought reasonably to have suspected, that the Legal Aid Commission might terminate the provision of legal aid or alter the nature and extent of legal aid”.

3 The second ground alleged:

“That the barrister is guilty of unsatisfactory professional conduct or professional misconduct in that he received money on behalf of another person contrary to Section 38P of the Legal Profession Act 1987 (NSW) and Rule 77 of the New South Wales Barrister Rules”.

4 The information which was filed on 26 March 2004 in matter number 042014 (Exhibit B) also was composed of two grounds. The first alleged:

“That the barrister failed to provide any costs disclosure or amended cost disclosure to his client, Mr Eli Geadah (“the client”), as required by Division 2 of Part 11 of the Act”.

5 The second ground alleged:

“That the barrister failed to account to the client for monies received by him from or on behalf of the client”.

6 Exhibit B has been the subject of a decision in a preliminary matter, The Council of the New South Wales Bar Association v LH [2004] NSWADT handed down on 8 September 2004 by a Tribunal similarly constituted to the Tribunal which heard this substantive matter except the presiding judicial member was R B S McFarlane QC.

7 The information, Exhibit A, sought the following orders:

1. That LH is guilty of unsatisfactory professional conduct or professional misconduct or both.

2. Such further or other orders as are provided for in Section 171C(1)(a)-(f) of the Act as the Tribunal thinks fit.

3. The barrister pay the costs of the Bar Council.

8 The information Exhibit B sought the following orders:

1. That the time for filing the information be extended to the date the information was filed.

2. That LH is guilty of unsatisfactory professional conduct.

3. Such further or other orders as are provided for in Section 171C(1)(a)-(f) of the Act as the Tribunal thinks fit.

4. The barrister to pay the costs of the Bar Council.

9 As noted above order 1 was made after a preliminary hearing in 2004.

REPLY

10 With respect to the information Exhibit A the barrister filed a reply on 11 April 2005 which became Exhibit C. The respondent did not admit the grounds in paragraphs 1 and 2 of the information but made substantial admissions with respect to the facts, matters and circumstances set out in paragraph 3(a) to (w).

11 With respect to the information which became Exhibit B the barrister filed a reply on 28 June 2004. The barrister denied the ground in paragraph 2 of the information and did not admit the ground in paragraph 1. With respect to the facts, matters and circumstances set out in paragraph 3(a) to (w) the barrister made substantial admissions.

HEARING

12 The hearing of the principal matter commenced on 20 June 2000 and was completed on 21 June 2005.

EVIDENCE

13 The following exhibits were received by the Tribunal:

Exhibit A Information filed 2 March 2005

Exhibit B Information filed 26 March 2004

Exhibit C Reply filed 11 April 2005

Exhibit D Reply filed 28 June 2004

Exhibit E Affidavit of Rosemary MacDougal sworn 26 March 2004

Exhibit F Affidavit of Rosemary MacDougal sworn 19 May 2004

Exhibit G Folder containing Exhibits to Exhibit F

Exhibit H Affidavit of Philip Allen Selth sworn 25 February 2005

Exhibit J Affidavit of Rosemary MacDougal sworn 1 March 2005

14 On behalf of the respondent the following documents were received:

Exhibit 1 Affidavit of the barrister sworn 5 May 2005

Exhibit 2 Affidavit of Peter Michael Gwozdecky sworn 27 May 2005

Exhibit 3 Affidavit of Anthony Pascali sworn 14 June 2005

15 The barrister gave some short oral evidence chiefly concerning his practice at the bar and was cross examined.

FACTS

16 In his opening counsel for the informant provided an outline which included facts said not to be in dispute. Counsel for the barrister agreed subject to a few minor exceptions that the facts contained in that opening were not disputed. The facts set out in the opening were as follows:

a) On or about 15 May 2001, LH received instructions to act for Mr Geadah on a direct access basis. The instructions were to appear for Mr Geadah at a committal hearing, which was initially set down for four days in the Local Court beginning on 4 June 2001. The committal hearing concerned charges against Mr Geadah to supply large commercial quantities of cocaine and heroin and for holding goods that were suspected of having been stolen.

b) On or about 24 May 2001, Mr Geadah was granted legal aid for representation in the Local Court on the committal proceedings. The legal aid was granted from 22 May 2001 and LH was identified by the Legal Aid Commission as, Mr Geadah’s representative.

c) At all times during the course of LH’s retainer by Mr Geadah, LH was a private legal practitioner representing a legally assisted person.

d) LH appeared at the committal for Mr Geadah on 4, 5, 6 and 7 June 2001. On 7 June 2001, the committal was adjourned part heard to 25 June 2001 for a further 4 days of hearing.

e) On or about 7 June 2001, LH rendered a memorandum of fees to the Legal Aid Commission in the sum of $9,171.80. The Legal Aid Commission allowed and paid the sum of $3,850 on account of this memorandum of fees.

f) On or about 8 June 2001, Mr Geadah informed LH that he wished to retain senior counsel to lead LH upon the resumption of the committal.

g) On or about 9 June 2001, LH said to Mr Geadah that Mr Bellanto QC had agreed to appear at the resumption of the committal hearing for 3 days for a fee of $20,000 and that LH would instruct and brief Mr Bellanto QC and appear for 2 days for a total fee of $12,500.

h) On or shortly after 9 June 2001, LH was informed by Mr Geadah or by persons on his behalf that the fees quoted for Mr Bellanto and LH’s services would be paid, from moneys made available to Mr Geadah from family members by way of loan.

i) LH agreed with Mr Geadah or persons on his behalf that the fees payable to Mr Bellanto would be paid in advance to LH and that he would pay Mr Bellanto.

j) Payments were made by Mr Geadah, or on his behalf, to the credit of an investment account conducted at the Commonwealth Bank of Australia and styled the LH Family Trust, being an account controlled by LH as follows:

i. 13 June 2001 $5,000.00

ii. 14 June 2001 $9,000.00

iii. 20 June 2001 $1,000.00

iv. 20 June 2001 $2,000.00

v. 22 June 2001 $9,000.00

Total $26,000.00
k) On or about 23 June 2001, Ms Romy Alfaro, a legal clerk retained by LH, alleges she gave to Mr Geadah a handwritten document that set out the matters that had been discussed by LH and Mr Geadah on 9 June 2003 in relation to fees. The document was signed by Ms Alfaro and was prepared and provided to Mr Geadah following a private conversation between Ms Alfaro and Mr Geadah on 23 June 2001. LH was unaware that the document had been prepared or given to Mr Geadah until sometime afterwards.

l) The committal proceeded on 25, 26, 27 and 28 June 2001 and was adjourned part heard to 22 October 2001 for a further 4 days of hearing. LH appeared for Mr Geadah on 26 June 2001 (until approximately midday) and on 28 June 2001. Mr Bellanto appeared for Me Geadah on 25, 27 and 28 June 2001.

m) Payments were made by LH to Mr Bellanto as follows:

i. 19 June 2001 $7,000.00

ii. 20 June 2001 $2,000.00

iii. 28 June 2001 $5,000.00

Total $14,000.00
n) LH incurred and paid disbursements including $5,000 for the services Ms Alfaro (for work as a legal clerk and typist) and $1,000 on account of the professional fees of Mr Gwozdecky of counsel (who appeared for Mr Geadah for part of 26 June 2001).

o) On or about 12 October 2001, LH said to Mr Geadah that the cost for the resumed committal would be $20,000, being $12,000 for Mr Bellanto for 3 days appearance and $8,000 for LH (including the cost of his legal clerk).

p) Payments were made by Mr Geadah, or on his behalf, to the credit of an account conducted at the Commonwealth Bank of Australia and styled the LH Family Trust, being an account controlled by LH as follows:

i. 19 October 2001 $10,000.00

ii. 23 October 2001 $8,000.00

Total $18,000.00
q) The committal proceeded on 22, 23, 24 and 25 October 2001 and was adjourned part heard to 21 December 2001. LH appeared for Mr Geadah on 22 and 25 October 2001. Mr Bellanto appeared for Mr Geadah on 22, 23 and 24 October 2001.

r) Payments were made by LH to Mr Bellanto as follows:

i. 19 October 2001 $8,000.00

ii. 24 October 2001 $3,000.00

iii. 1 November 2001 $1,000.00

Total $12,000.00
s) LH incurred and paid disbursements of $2,000 for the services of Ms Alfaro.

t) On or about 1 November 2001, LH was retained by Mr Geadah to appear before the NSW Crimes Commission.

u) LH said to Mr Geadah that he would charge $4,000 for the appearance before the NSW Crimes Commission.

v) On or about 6 November 2001, LH appeared for Mr Geadah before the NSW Crimes Commission.

w) On or about 26 November 2001, LH’s retainer was terminated.

17 The barrister gave evidence that he was born in 1963 and practiced for 10 years as a chartered accountant before qualifying and being admitted as a barrister in 1995. He has always practiced from Sydney Chambers. Prior to 2001 he had never held a junior brief in a criminal matter. His first experience with Legal Aid in a criminal matter was in a case involving Mr Geadah’s brother which commenced in about April 2001.

18 In cross examination the barrister was taken to paragraph 7 of his affidavit which dealt with the allegation of receiving funds. He said he now accepted that he should not have agreed to cash deposits being made by associates of Mr Geadah directly into his bank account on behalf of Mr Bellanto QC. He stated that he realised it was inappropriate at the time but that he did not fully realise he was contravening an important bar rule. The barrister indicated he had agreed to the proposal because Mr Geadah and his family urged him to do so, his leader did not advise him not to do it and it was “a short term thing”.

19 The barrister admitted he could no longer recall if he informed Bellanto that cash would actually be paid by direct debit into his bank account prior to the deposits being made. The barrister conceded that further deposits were made directly into his account to cover the adjourned committal hearing in October but said this was done by the associate of his client who had details of his account rather than because of any fresh agreement.

20 With respect to paragraph 6 of his affidavit the barrister agreed he had not given any written fees disclosure nor had he advised the client of his rights to review. The barrister said he believed he was not required to make such a disclosure in writing because the fees were a “lump sum fee in advance” which was “not to be refunded”. The barrister gave basically the same reasons for not providing the client with any detailed written account of how the money was dispersed. The barrister maintained, however, that he had made full oral disclosures as to how the money had been disbursed and this was not challenged by the informant.

21 The barrister was taken to page 92 of Exhibit G which is a handwritten note referred to in paragraph (k) of the facts. In his letter of 4 June 2002 to the Association the barrister indicated that that was a “formal written fee disclosure on my behalf” (Exhibit G page 79). He indicated to the Tribunal, however, that he did not seek to rely on that document as being a written disclosure.

22 It was put to the barrister that he had informed by Mr Geadah in a conversation which took place on or about 8 June 2001 that if the client could fund senior counsel for the further hearing of the committal he would have to inform Legal Aid of this fact. The barrister agreed with that proposition and further agreed that he had told the client he would have to inform Legal Aid that he could privately fund senior counsel and that in those circumstances the grant would have to be terminated and the client would have to fund both senior and junior counsel.

23 The barrister indicated that the client then gave him an undertaking he would terminate Legal Aid. The barrister agreed that this undertaking was not given in writing and that he had at no stage prior to the termination of his retainer checked with either the client or Legal Aid that the matter had been attended to.

24 The barrister then indicated in response to a question in cross examination that it had not occurred to him that the provision of private funds for the conclusion of the committal may have been a matter relevant to the memo of fees rendered by him on 8 June 2001 to Legal Aid but not paid until after 20 June.

25 The barrister conceded that in hindsight the availability of funds sufficient to fund senior and junior counsel may amount to a change of circumstances within the meaning of the section but indicated he did not “see it that way at the time”.

26 The barrister agreed that paragraph P of the reply Exhibit D should read $4,000 and $2,000 rather than $6,000 and $4,000. The barrister indicated that he now accepted he should not have received money on behalf of another and that it would have been prudent to make a fees disclosure in writing. He maintained that an oral accounting of the disbursements of the funds was given to the family but it would have been more prudent to provide documents. He indicated his reasons for not providing a written account of how the funds was dispersed was because the funds in fact represented a lump sum fee paid in advance and there had been no contemporaneous complaint.

27 In re-examination the barrister indicated that his records showed the amount of $12,000 had been paid to Mr Bellanto and not the sum of $12,600 as suggested in the report of the Bar Association dated 15 July 2004.

28 Exhibit G contains some 199 pages of documents. The Tribunal was not taken to those documents except when pages were brought to the attention of the barrister in cross examination. Because of the agreement as to the basic facts reached between the parties the balance of those documents have not been read.

LEGISLATION

Legal Profession Act, 1987

29 Section 38P of the Legal Profession Act provides:

“(1) A barrister is not, in the course of practising as a barrister, to receive money on behalf of another person unless authorised under this section.

(2) The regulations may authorise a barrister to do so. ….”

30 Section 127 provides:

“(1) For the purposes of this Act professional misconduct includes:
a. unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence, or

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

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

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

(2) For the purposes of this part unsatisfactory professional conduct includes conduct (whether consisting of an act or omission) occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.”

31 Regulation 26J of the Legal Profession Regulations 1994, which applied as at 2001 provided:

“(1) A barrister may, in the course of practising a barrister, receive money in advance for costs to accrue due to, or to be paid by the barrister.

(2) This clause does not affect any trust to which money received by a barrister is subject, or any obligation of a barrister under such trust.”

32 Costs is defined in Section 3 of the Act “includes fees, charges, disbursements, expenses and remuneration”.

33 Rule 77 of the New South Wales Barristers Rules provides:

“A barrister must not, in the barristers professional work, hold, invest or disburse any funds for any other person”.

34 Disclosures of matters relating to costs were dealt with in Sections 175 to 185 of the Act.

35 Section 175(1) provides:

“(1) A barrister or solicitor must disclose to a client in accordance with this division the basis of the cost of legal services to be provided to the client by the barrister or solicitor.

(2) The following matters are to be disclosed to the client:

a) The amount of the costs, if known,

b) If the amount of the costs is not know, the basis of calculating the costs,

c) The billing arrangements,

d) The clients rights under Division 6 in relation to a review of costs,

e) The clients rights under Division 4 to receive a bill of costs.

f) Any other matter required to be disclosed by the regulations.

3. The disclosure to a client is not required to be made by a barrister or solicitor who is retained on behalf of the client by another barrister or solicitor. However the disclosure to the client is to include the costs of the barristers or solicitors so retained.”

36 Section 176 deals with a barristers obligation to disclose costs to the barrister or solicitor who retains that practitioner. Section 177 provides that a barrister must disclose to a client an estimate of the fees if the actual amount has not been disclosed under Section 175.

37 Section 178 provides:

“(1) A disclosure under the division it to be made before the barrister or solicitor is retained to provide the legal services concerned, unless this section otherwise provides.

(2)If it is not reasonably practical to make the disclosure before the barrister or solicitor is retained, the disclosure is to be made as soon as practicable after the barrister or solicitor has been retained. ….”

38 Section 179(1) provides:

“A disclosure under this division must be made in writing and be expressed in clear plain language …”

39 Section 180 provides:

“A disclosure is not required to be made under this division when it would not be reasonable to be required to do so”.

40 Section 181 provides that regulations may be made. Section 182 sets out the effects of non disclosure including:

“(4) Any failure referred to in this section does not of itself amount to a breach of this Act, however, the failure is capable of being unsatisfactory professional conduct or professional misconduct”.

41 Rule 114 of the Barristers Rules provides:

“(1) It would not be reasonable for a barrister to make a disclosure under Section 176 and subsection 177(2) of the Legal Profession Act when:
(a) The barrister has, whether or not in relation to the legal services to be provided to the client by the barrister, given to the solicitor on whose instructions the barrister is acting in writing a statement which remains current and which indicates the basis upon which the barrister charges and his or her rate or rates;

(b) The barrister proposes to charge and does charge for those services in accordance with that basis and rate or rates.

(2) It would not be reasonable for a barrister to be required to make a disclosure under Section 176 and subsection 177(2) of the Legal Profession Act when the costs for the legal services to be provided to the client by the barrister have been fixed by statute or regulation.”

42 Apparently no rules have been drafted to remove the obligation to disclose the basis of costs to clients contained in Section 175 of the Act.

Legal Aid Commission Act 1979

43 Section 35 of the Legal Aid Commission Act 1979 provides that the Commission shall not grant Legal Aid unless “the applicant in each person associated with the applicants” satisfies a means test. An associated person is defined in subsection 4 as a spouse or defacto partner or

“(b) any person who is financially responsible for, or who provides financial support to, the applicant”.

44 Section 36 of the Act empowers the Commission to impose conditions by way of contribution and subsection 2 provides that the amount of that contribution “shall be paid in such manner and within such time, as the Commission directs”.

45 Section 38 empowers the Commission to terminate the provision of Legal Aid or to alter the nature and extent of the grant. In exercising that power the Commission may make enquiries including enquiries as to the means test set out in Section 35.

46 Section 38A provides:

“(1) Where:
(a) A legal assisted person or a private legal practitioner representing a legally assisted person becomes aware of a change in the means or circumstances of the legally assisted person or in any other matter relating to the grant of Legal Aid to the legally assisted person, and

(b) The change is of such a nature that the legally assisted person or private legal practitioner, as the case may be, ought reasonably to suspect the Commission might terminate the provision of Legal Aid or alter the nature and extent of the Legal aid, the legally assisted person or private legal practitioner, as the case may be, shall forthwith notify the Commission in writing of the change”.

47 The submissions on behalf of the informant were primarily in writing and have become Exhibit K. As the combined informations contained basically four grounds these reasons will review the submissions made by both parties with respect to each ground in the order they were addressed upon by counsel for the respondent.

RECEIVING MONEY ON BEHALF OF ANOTHER

48 On behalf of the applicant it was submitted that the prohibition in Section 38P reflects a fundamental difference between how barristers and solicitors practice law. Solicitors who have trust accounts are subject to onerous obligations aimed at safeguarding those funds. Counsel for the applicant referred the Tribunal to the decision of this Tribunal in New South Wales Bar Association v Nguyen [2002] NSWADT 264 where a finding of professional misconduct was made against a barrister who had held funds of another in a trust account.

49 It was submitted that the barrister’s evidence as to why he acted as he did was not very satisfactory but that on any view of the evidence the barrister had received money and held it in circumstances which amounted to a breach of Section 38P of the Act.

50 Mr Williams on behalf of the barrister made some general observation about the undesirability of a barrister acting by way of direct access to a client. The Tribunal was referred to the decision of the Court of Criminal Appeal in R v William Vincenzo Favero [1999] NSWCCA 320. Mr Williams also highlighted the barrister’s relative inexperience and that he was clearly out of his depth and that there were very few people in his chambers at the time who could have provided him with assistance. It was further submitted that the grounds set out in Exhibit A arose out of information contained in the barrister’s reply. This claim was later withdrawn.

51 Specifically with respect to the ground of receiving money on behalf of another Mr Williams submitted that the circumstances were unusual. He accepted that it was no answer that Mr Bellanto had accepted the money when it came from the barrister’s account as the barrister was no longer sure of exactly what he had told Mr Bellanto. Mr Williams highlighted that there was no dishonesty and no misappropriation and that therefore the Tribunal ought to determine that the matter amounted to unsatisfactory professional conduct rather than professional misconduct.

52 Mr Williams stressed that the Tribunal should look both at the evidence the barrister gave in response to cross examination and to his early letters extracts of which are contained within Exhibit G and to find that in all the circumstances there had been no deliberate flouting of the rules by the barrister. It was submitted that the facts of the Nguyen case were distinguishable.

FINDING

53 The Tribunal finds that in acting as he did the barrister breached the provisions of Section 38P of the Legal Profession Act 1987 and that in all the circumstances that breach amounted to unsatisfactory professional conduct.

54 The Tribunal accepts that the circumstances of the case were unusual and that the barrister acted under the mistaken belief that because he would hold the funds at the request of his client for only a short period of time without any obvious objection by his leader no harm would be done. The barrister did not suggest that he sought Mr Bellanto’s advice on what to do with the funds.

55 The Tribunal notes that there was no misappropriation of the funds and no dishonesty involved. It is also clear that the funds related entirely to the barrister’s own fees, disbursements to be incurred in the running of the case Mr Bellanto’s fees. The case is clearly distinguishable from the matter of Nguyen particularly because the funds involved related to costs and disbursements. Regulation 26J allows barristers in certain circumstances to receive costs and disbursements in advance. No reliance was placed on this section by the barrister nor was it submitted that Mr Bellanto’s fees were costs to be paid by the barrister. The matter of Nguyen related to substantial funds which were paid into an account in Vietnam supposedly to fund some joint venture involving livestock. There was no suggestion that the funds were restricted to costs received in advance. There was a significant delay in the return of the money and not all of the funds were accounted for.

56 The Tribunal agrees with what was said in that case in that the prohibition against barristers receiving money belonging to others is strong and soundly based but says in the circumstances of the present case it amounted to no more than unsatisfactory professional conduct.

FAILURE TO NOTIFY THE LEGAL AID COMMISSION

57 On behalf of the applicant it was submitted that when the barrister became aware that there were private funds available to pay the fees of senior counsel and of himself this constituted a change in the means and circumstances of the client so as to trigger the requirement that the barrister notify the Legal Aid Commission as required by Section 38A of the Act. It was submitted that the Act places an obligation both on the legally assisted person and the private legal practitioner to independently notify the Legal Aid Commission of any such change in circumstances.

58 The Tribunal was referred to the letter to the private practitioner granting Legal Aid on 24 May 2001 (page 127, 128 Exhibit G). That letter advised the barrister that both he and the client must be honest with the Commission and that he had a duty to inform the Commission of anything which may damage the clients case or which might reflect a change in circumstances. It was also pointed out that Legal Aid is not free and that although there had been no requirement to pay a contribution that could be reviewed.

59 Mr Williams submitted that the Tribunal should look not just at Section 38A but at Sections 35, 36 and 38. The major thrust of his argument was that the provisions of Section 38A were never triggered because the client had indicated to the barrister that he would terminate the grant of Legal Aid. It was submitted that the provision addresses the situation where there is an ongoing relationship with Legal Aid. As the client had indicated he would terminate the grant the fund of Legal Aid would be preserved without the need of the barrister notifying the Commission of the change in circumstances. It was submitted that the fact that the client was still a legally assisted person at the time the undertaken was given was not in itself sufficient to activate the requirement to notify.

60 In reply to that submission Mr Brereton for the applicant pointed out that although a fee note had been sent on 7 June 2001, prior to the conversation, payment was not approved until 20 June 2001 which was after the supposed termination. Mr Brereton submitted that the obligation arose because of the change of circumstances notwithstanding that the barrister believed the grant would be terminated because Legal Aid was not in fact cancelled, the barrister never checked with either the client or the Commission to ensure that it had been cancelled and that in any event the Legal Aid system would not work if all the obligations could be delegated to the client particularly if that client was in gaol.

FINDING

61 The Tribunal finds that the barrister failed to notify the Legal Aid Commission of a change of circumstances when he ought reasonably have suspected that the Commission might terminate the provision of Legal Aid and/or alter the nature and extent of the Legal Aid and this amounts to unsatisfactory professional conduct. The Tribunal is of the opinion that the client was still a legally assisted person when the barrister became aware of the change of circumstances and that the barrister therefore had an obligation under the Act to notify the Commission independent of any obligation on the client. The Tribunal notes, however, that no further claim was made on the Legal Aid fund. It was suggested by Mr Williams that such a finding would be unduly onerous on those who act on behalf of legally assisted clients. The Tribunal does not accept that the writing of one letter to the Commission could be regarded as unduly onerous.

COSTS DISCLOSURE

62 It was submitted on behalf of the applicant that as the barrister now accepted that he did not make any costs disclosure in writing and that he failed to make any disclosure whether in writing or orally to the client of his rights to receive a bill of costs and to have costs reviewed there should be a finding of unsatisfactory professional conduct. Mr Brereton submitted that Section 180 of the Act was of no assistance as it had to be read in conjunction with Section 181 and in fact no regulations or barristers rules had been formulated which excused that requirement with respect to direct access clients. It was submitted that Rule 114 of the Barristers Rules clearly only applied to disclosures required under Sections 176 and 177. The Tribunal was referred to the decision of Levine J in Advanced Gaming Technologies Pty Limited v Ahearn [1999] NSWSC 45 particularly at paragraph 33. It was submitted that the conversation about fees occurred on or about 8 June 2001 and fees were not received until 13 June 2001 thus allowing ample time for a disclosure to be made. Further it was noted that no such disclosure was made prior to the resumption of the committal in October of 2001.

63 The Tribunal was also referred to Section 182(4) of the Act which provides that a failure does not amount to a breach of the Act but is capable of being unsatisfactory professional conduct or professional misconduct. It was submitted there were no exceptional circumstances that would excuse compliance and in particular no evidence that the client was familiar enough with their rights to render such disclosure irrelevant.

64 Mr Williams on behalf of the barrister submitted that there had been a disclosure but it was not in writing. He conceded that the disclosure fell short of the requirements of the Act but submitted that the matter was not so serious as to justify a finding of unsatisfactory professional conduct. Mr Williams indicated that he relied on the general observations referred to earlier in this decision.

FINDING

65 The Tribunal finds as a fact that the barrister did not make any disclosure in writing to the client and that such disclosure as he did make did not cover the client’s right to a review of costs or to receive a bill of costs. The fact that a oral disclosure was made is not in issue.

66 There would be instances where a failure to provide a costs disclosure in writing would not amount to unsatisfactory professional conduct. When dealing with a direct access client, however, this would rarely be the case. The Tribunal notes the relative inexperience of the barrister but cannot accept that the fact that the fees were paid lump sum in advance excuses the need for a proper disclosure to be made. On one view the fact that the money is to be paid in advance of the services being rendered would require more rather than less disclosure. There will therefore be a finding of unsatisfactory professional conduct on this count.

FAILURE TO ACCOUNT

67 Mr Brereton acknowledged that there was no specific provision in the Act requiring a written accounting to the client. He also confirmed that there was no suggestion that the barrister failed to make an oral account to the client or to those associated with him. It was submitted, however, that the failure to account in writing can amount to unsatisfactory professional conduct particularly when it is associated with the failure to make the necessary initial disclosures and the failure to refrain from mingling the client’s money in his own personal account.

68 Mr Williams submitted that there should be no finding of unsatisfactory professional conduct as an oral accounting was sufficient in all the circumstances.

FINDING

69 The Tribunal finds that there was no unsatisfactory professional conduct on behalf of the barrister with respect to the alleged failure to account. The Tribunal accepts that written accounting supported by clear documentary records would have been preferable but notes the problem really arose out of the barrister’s decision to accept the client’s funds into his own account and this matter has already been dealt with.

ORDERS

1. The respondent is found guilty of unsatisfactory professional conduct on three grounds

2. The respondent has 21 days from the date of receiving this decision to file any further evidence he seeks to rely on with respect to outcome

3. The applicant has 14 days thereafter to file any evidence it wishes to rely upon on the question of outcome

4. The matter will then be relisted for submissions on outcome.