Paterson v Law Society of Tasmania

[1990] TASSC 92

Serial No B15/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Paterson v Law Society of Tasmania [1990] TASSC 92; B15/1990

PARTIES:  PATERSON, Kim Bruce
  v
  LAW SOCIETY OF TASMANIA

FILE NO/S:  LCA 144/1989
DELIVERED ON:  1 May 1990
JUDGMENT OF:  Green CJ

Judgment Number:  B15/1990
Number of paragraphs:  33

Serial No B15/1990
List "B"
File No LCA 144/1989

KIM BRUCE PATERSON v THE LAW SOCIETY OF TASMANIA

REASONS FOR JUDGMENT  GREEN CJ

1 May 1990

1. The appellant is a legal practitioner. Pursuant to the Law Society Act 1962 and the Tasmanian Law Societies (Disciplinary Proceedings) Rules 1955 the Disciplinary Committee of the Law Society of Tasmania required the appellant to answer allegations made in an affidavit by the Executive Director of the Law Society. After a hearing the Committee found that the practitioner had been guilty of professional misconduct and ordered that he be suspended from practice for sixteen weeks and that he pay a proportion of the Law Society's costs.

1. A number of allegations were made against the appellant but the only allegation upon which the finding of professional misconduct was based related to the following letter which the appellant sent to a number of clients between November 1988 and March 1989:

"Dear Madam,

RE: IN THE MARRIAGE OF YOURSELF AND...........

We confirm that you have instructed us to advise you and act for you in matters arising out of your marriage.

We confirm that the legislation that governs this matter is the Family Law Act 1975.

Pursuant to that Act there is a scale of costs prescribed for the work that we undertake on your behalf.

Attached hereto is a copy of the Schedule of Costs that is presently applicable.

Approximately every three to six months the Schedule of Costs is varied in accordance with the movements in the Consumer Price Index.

All work that is undertaken by this firm for and on your behalf will be assessed in accordance with the provisions of Order 38 of the Family Law Rules and the second schedule attached thereto, (thereto a copy of the schedule as currently approved is attached hereto) and where certified for by a Judge of the Court will include Counsel's fees at the rate then prevailing as fixed by the Registrar of the Court.

We confirm that on our present instructions our judgment is that you are not eligible to receive a grant of legal aid. Should your financial circumstances change, then you should consult us to review your eligibility for legal aid.

We confirm that it is a condition of our retainer that we render to you on a monthly basis a request for a payment on account of costs and disbursements and it is an express condition of our retainer that such requests must be complied with within thirty (30) days. If such request for payment is not attended to within thirty days, we reserve the right to cease acting for you.

We confirm that we are expressly not asking you to secure our cost in advance of work done and in consideration of that concession, we seek that you execute the aide[i] memoire attached hereto and return same to our office.

It is a condition of our retainer that we have the acknowledgement herewith executed by you and returned to us within seven (7) days of the date hereof.

Yours faithfully,
ZEEMAN KABLE & PAGE

KB PATERSON"

1. The following document was enclosed with that letter:

"'EQUITABLE CHARGE

The     day of         1989

TO: Zeeman Kable & Page
Barristers & Solicitors
68 Paterson Street

LAUNCESTON TASMANIA 7250

Thank you for your letter dated the         day of 1989.

In consideration of you agreeing to act for me from time to time as my solicitors andor agreeing not to immediately demand and sue any moneys now due by me to you, I HEREBY CHARGE all my real estate within the State of Tasmania with the payment to you of all your usual and proper professional charges and disbursements which are now or may hereafter become due by me to you SUBJECT TO the following conditions:

1This charge shall remain of full force and effect for so long as I shall be actually or contingently indebted to you in respect of any professional charges or disbursements whether or not any memorandum thereof shall have been delivered to me.

2I will upon demand execute a proper form of mortgage in terms to be settled by you containing all usual terms over any such real estate in proper registrable form at my expense and will arrange for the production of all titles and the obtaining of all consents required to enable the same to be registered.

.................  ....................

Witness  Client"

1. The Law Society's allegations in respect of that letter were as follows:

"The Law Society of Tasmania makes the following allegations against Mr Paterson in respect of the letter that he sent to . . . . . . . . . dated 3rd February, 1989 and in respect of 28 other letters written to clients in a similar fashion. The sending of the letter and its enclosures was in each instance an attempt to unduly influence the client to enter into a disadvantageous transaction with his firm by taking advantage of the client's ignorance and lack of knowledge and involved the following misrepresentations:

(a)He asserted as a condition of his retainer a right to demand interim payment of his costs and disbursements on a monthly basis without any agreement to that effect complying with the requirements of Order 38 Rule 8 of the Family Law Rules having been made with his client.

(b)He asserted as a condition of his retainer a right to receive payment of his costs and disbursements within thirty days of a request for payment being made without any agreement to that effect complying with the requirements of Order 38 Rule 8 of the Family Law Rules having been made with his client.

(c)He asserted a right to demand security for his costs and disbursements without any agreement to that effect complying with the requirements of Order 38 Rule 8 of the Family Law Rules having been made with his client.

(d)He misrepresented to his clients the nature of the document that he required them to execute."

1. The Disciplinary Committee found that professional misconduct:

"has been established against the Practitioner in that he drafted the last two paragraphs in the standard form letter and under his supervision that letter was sent to 29 clients. Those paragraphs contained the following misrepresentations:

(a)Advice that the solicitors were expressly not asking the client to secure their costs in advance of work done when that was in fact the result achieved by the enclosed equitable charge.

(b)Describing the equitable charge as an aide memorie. [sic]

(c)Referring to the equitable charge as an acknowledgement.

The Law Society allege that the misrepresentations were made to influence clients to enter disadvantageous transactions. Whilst that was the result, we are not satisfied that the Practitioner was motivated by a wish to achieve that objective. No effort was made to check on the return of equitable charges or act on them. They were sent out in order to satisfy a requirement imposed on the Practitioner by his partners. He did not agree with the requirement and did not rely on any of the equitable charges obtained. A more likely explanation for the misrepresentations was a wish on the part of the Practitioner to minimise clients objections to the equitable charge requirement.

In summary the professional misconduct we find established is that the Practitioner knowingly included in a standard form letter three misrepresentations as to the nature of an enclosed equitable charge to secure the Practitioner's firms costs which clients were requested to execute and return. That letter was sent by the Practitioner to 29 clients."

1. The Committee also found itself unable to accept that the misrepresentations contained in the last two paragraphs were "simply the result of a mistake or ineptitude" and expressed the view that "the Practitioner must have appreciated what he was doing".

1. There was no suggestion in the allegations or on the evidence before the Committee that the other members of the appellant's firm were aware of or were in any way involved in the making of the misrepresentations.

1. The appellant appeals against the orders made by the Disciplinary Committee upon the following grounds:

"1That the finding by the Disciplinary Committee that the Appellant was guilty of professional misconduct was against the evidence and the weight of the evidence.

2That the Chairman of the Disciplinary Committee adopted an adversarial role in the proceedings in that he after the Appellant had closed his case and the proceedings were concluded and the Disciplinary Committee had reserved its decision he:

(a)Of his own volition recalled the Appellant; and

(b)cross–examined him

and thereby the Appellant was denied natural justice.

3That the penalty imposed upon the Appellant of 16 weeks suspension from practice from the 22nd day of December, 1989 was manifestly excessive in all the circumstances and further that in imposing such penalty the Disciplinary Committee failed to give any or any adequate or sufficient weight to:

(i)The fact that 16 weeks suspension from practice as a legal practitioner involved a substantial financial penalty to the Appellant in that he would not be able to earn income for a period of sixteen weeks.

(ii)That the penalty imposed hardship and inconvenience upon the partners of the appellant and the Appellant's clients.

4That the Disciplinary Committee exceeded the jurisdiction vested in it pursuant to the provisions of Section 16 of the Law Society Act 1962 in that it failed to hear the application requiring the practitioner to answer the allegations contained in the affidavit of CE Clark sworn the 28th day of September, 1989 and in lieu adopted an inquisitorial role, thus denying the Appellant natural justice.

5That it was not open to the Disciplinary Committee upon the allegations contained in the affidavit of Cyril Elliott Clark sworn the 28th day of September, 1989 and as qualified by the concessions of Mr PR Cranswick QC of Counsel for the Law Society and upon the evidence of the practitioner to find that the Appellant had knowingly included in a standard form letter three misrepresentations as to the nature of the equitable charge enclosed therewith."

Grounds 1 and 5

1. After hearing evidence and submissions from counsel on 16 November 1989 the Disciplinary Committee reconvened on 7 December 1989 when the chairman said:

"Thank you for attending today, gentlemen. We have not in fact reached a decision in this matter and we have brought you back because we have reached some tentative conclusions, but feel that it is appropriate that we bring them to your attention before we go further with our deliberations.

With that in mind, I have prepared a document which sets out those tentative conclusions, and I would ask you to read them, then we will have a brief discussion of them."

1. The document referred to was as follows:

"TENTATIVE FINDINGS

We are not satisfied that the allegations referable to Order 38 Rule 8 have been substantiated.

Our tentative view in relation to the alleged misrepresentation of the nature of the document is that that allegation is made out but before proceeding further we wish to give the parties an opportunity to be heard.

Counsel for the Law Society stated that it was not contended that the Practitioner acted dishonestly. We are not clear what was intended by that concession bearing in mind that it is alleged that the Practitioner attempted to unduly influence clients to enter disadvantageous transactions by, inter alia, the misrepresentation. This allegation involves an element of knowledge on the part of the Practitioner. We could hardly find that he had attempted to influence the clients by the misrepresentation if he did not know of it.

We are concerned that the Practitioner's case may have been conducted on the assumption that we are constrained by the Law Society's concession from finding that the Practitioner had any knowledge of the misrepresentation. We do not consider ourselves to be so constrained. Before making any finding on the Practitioner's knowledge of the misrepresentation we will hear both parties and give consideration to any applications to re–open the evidence.

In taking this course we have in mind the special nature of the jurisdiction we are exercising. See the passage at page 141 of the New South Wales Court of Appeals decision in Re Vernon (sic): Ex Parte Law Society of NSW (1966) 84 WN (NSW). 136

Reference is made to that passage solely from the point of view of the special nature of the disciplinary jurisdiction. The Practitioner in this matter has given evidence and there is no suggestion he has engaged in a battle of tactics."

1. The relevant passage from Veron's case reads as follows:

"From the earliest times, and as far back as the recollection of the individual judges of this Court goes, disciplinary proceedings in this jurisdiction in this State have always been conducted upon affidavit evidence and not otherwise. They are not conducted as if the Law Society (the successor to the Law Institute) was a prosecutor in a criminal cause or as if we were engaged upon a trial of civil issues at nisi prius. The jurisdiction is a special one and it is not open to the respondent when called upon to show cause, as an officer of the Court, to lie by and engage in a battle of tactics, as was the case here, and to endeavour to meet the charges by mere argument."

1. During the course of the hearing before the Committee there were a number of exchanges between counsel for the Law Society and the chairman of the Committee as to whether the Law Society was alleging that the appellant knew that the representations were false. I am satisfied that at various stages of the hearing counsel for the Law Society did appear to be characterising the misrepresentations in different ways: at one stage it appears that the Law Society was alleging that the misrepresentations were made negligently, at another that they were made recklessly and at another stage that they were made knowingly. However for the following reasons I am not satisfied that the ways in which counsel characterised the Law Society's allegations precluded the Committee from making the finding which it did or resulted in any injustice to the appellant:

1The Committee's function was to determine the allegations as they were made in the Executive Director's affidavit and I agree with the logic of the observation made in the Tentative Findings that an allegation that a practitioner had attempted to unduly influence a client to enter into a transaction by means of a misrepresentation necessarily involves an allegation that he knew that the statement was a misrepresentation.

2Counsel for the appellant emphasised in his submissions to the Committee that the case that had to be determined was that contained in the Executive Director's affidavit and not some other case.

3Any confusion about the nature of the Law Society's case which might have arisen out of the way in which counsel characterised it was finally dispelled by explicit statements made by counsel for the Law Society that "there is a lot of reference being made to a concession about dishonesty and so on. Our position is that the inference is open that the practitioner knew those three representations were false" and "this practitioner has told you that he did not mean to mislead but it seems to be uncontradicted that he did try to induce 29 clients to sign and return the onerous equitable charge. We say that the evidence is overwhelming that he did in fact know what he was doing, and on any objective view it was misleading "

4In a letter to the Law Society dated 19 May 1989 which supplemented an earlier letter the appellant had written in response to a request from the Law Society to furnish an account of his conduct in relation to this matter the appellant specifically directed his attention to the question of his state of mind when he wrote the letters complained of by saying inter alia that he could only put his action in using the words appearing in his letter "down to inadvertence" and that he had "no intention of seeking to mislead any client". During the course of the hearing also the appellant gave evidence relevant to his intention and state of mind when he sent the letter.

5By publishing the Tentative Findings the Committee expressly raised the issue of whether the misrepresentations were made knowingly and thereafter both counsel had the opportunity of examining the appellant further and making further submissions about that issue.

1. I turn to the question of whether the Committee's findings were supported by the evidence.

1. The appellant does not dispute that the statements made in the letter complained of in fact misrepresented the nature of the document referred to.

1. In a letter to the Law Society the appellant sought to explain how the two paragraphs came to be included in the letter complained of:

"In November 1987 the partners agreed that in relation to non–property Family Law matters instructions would be accepted in cases where the client was not legally aided and did not provide security for costs only upon the basis that the client was interim billed on a monthly basis. It was agreed that the basis upon which instructions would be accepted would be advised to the client at the outset of a new matter.

The letter settled by Mr Zeeman was identical in all respects with the letter that was sent to .......... save and except that in lieu of the last two paragraphs of the letter dated the 3rd of February 1989 addressed to  ............ there appeared the following paragraphs:

'If you have any queries as to the matters referred to herein, please feel free to contact us.

'We ask that you sign and return to us the attached copy of this letter by way of acknowledgment that you accept those terms.'

In November 1988 concern was expressed by my partners at a number of very substantial and long overdue accounts in Family Law matters where the firm had obtained no security for its costs. It was considered that where appropriate some security should be obtained and Mr Zeeman settled an equitable charge in the form attached to your original letter to me dated the 20th of March 1989 for tht (sic) purpose.

Some time subsequent to the 23rd of November 1988 I considered that the original letter as settled by Mr Zeeman was no longer appropriate, and amended the letter by the deletion of the two last paragraphs hereinbefore referred to and the addition of the two last paragraphs as they appear in the letter to ........... This was done unilaterally and without reference to my partners.

On no view of any partnership policy was it appropriate to write to ............. in the terms I did or indeed in any terms. I cannot explain how I came to use the words 'aide memoire' in the form of the letter. I acknowledge that it is quite inappropriate but can only put it down to inadvertence. I had no intention of seeking to mislead any client."

1. During the course of his evidence before the Committee the appellant gave the following evidence as to how the statements complained of came to be included in the letter:

"Can you explain, or would you explain, please, to members of the Committee, why the alterations took place, or how they came to take place? –––– Well, I do not have any specific recollection of the alteration, but the position was this: that the first time that the equitable charge came back, I have checked to make sure that the right attachments were to it. Under the 1987 attachment the shell letter had attached to it a duplicate of it, which the client was asked to sign the duplicate and return, and the scale of charges. Under the new regime it had attached to it the equitable charge and the scale of charges, and the first time it came back and I saw the equitable charge it occurred to me that something had to be done to the letter, and I did it there and then, while signing general mail."

................

"Well, to the best of my recollection, I was signing the bundle of mail on one occasion – I, quite frankly, favour the proposition in the morning – I picked up this particular letter, whichever one it was – the first time there came an equitable charge on – recognised that we were no longer asking for a duplicate letter to come back, and amended the words. I gave no consideration to the use of the words 'aide memoire' and perhaps Mr Chairman can say that this is typical of the pomposity for which I have been at fault for 54 years."

...............

"Right. Well, you know with absolute certainty what you did then, when you made that first change? ––– Oh, yes.

Now, would you go back and tell me what that was again, please? ––– Yes. The position was, as I recall it, was that the mail came in on one occasion–I rather favour in the morning – general mail to sign. I came to one of these letters. I then perceived that something had to happen to it. There and then on the spot I made the amendment and either myself walked around to the word processing section, or put it on tape and did that, or alternatively gave it to a clerk.

I assume you wrote the alterations on to the letter that was no longer appropriate? ––– Well, I may not have, because I am a great dictator. I am not a great drafter. I am agreat [sic] dictator. I cannot answer that letter positively.

Because you would be appalled, as you have described, about this, you presumably checked that, did not you? –– I cannot recall having seen a handwritten alteration.

Well, did you even isolate the first file to see what you had done on that particular file? ––– No, because I knew what I had done. I made a terrible mistake.

Well, do you know you have made a mistake? Did you use the phrase 'aide memoire', or did someone mistype what you had written, or mistype what you had – – – ? –– I just accept it as my mistake, Mr Chairman."

.....

"Would you tell us again, if you would, why it was that you used the term 'aide memoire' to describe the equitable charge? ––– Well, I simply did not give it any proper consideration or any consideration as to what effect that was having. It was done very much, as I recall it, on the run."

............

"I want to ask you to tell us how much of what you have told the Committee is specific recollection – in other words, when you say you corrected the letter and it was done in a hurry and so on, do you remember doing any of this specifically? ––– Well, quite frankly, I do. It is just simply one of those things that sticks in my mind that I, on a busy morning, I made that alteration."

1. In my view it would have been open to the Committee to have regarded the appellant's evidence as to his state of mind when he made the alteration as unsatisfactory. In particular the appellant appears to have given contradictory evidence as to whether he could specifically remember altering the letter.

1. Bearing in mind the unsatisfactory nature of the appellant's evidence, that it was patent that the statements made in the letter misrepresented the nature of the document and that it was open to the Committee to find that the words appeared in the letter as the result of a deliberate decision by the appellant to alter the original letter and that the appellant wrote or dictated the words which were used, I am in no doubt that it was reasonably open to the Committee to reject the suggestion that the misrepresentations were the result of mistake or ineptitude and to draw the inference that the appellant must have appreciated that the statements were misrepresentations.

1. Although the Committee expressly found that it was not satisfied that the appellant was motivated by a wish to induce clients to enter into disadvantageous transactions it was nevertheless satisfied that the appellant's action amounted to professional misconduct. I am satisfied that that conclusion was correct. It is a serious enough matter if a solicitor negligently misrepresents to a client the nature and therefore the effect of an instrument which imposes obligations upon the client but to do so knowingly particularly when the result of the execution of the instrument is to confer rights upon the practitioner is plainly conduct which would be regarded as disgraceful or dishonourable by practitioners of good repute and competency.

1. I reject grounds 1 and 5.

Grounds 2 and 4

1. Following the publication of the Tentative Findings to which I have already referred a discussion ensued between the chairman and counsel. The chairman said that the Committee was of the view that notwithstanding the way in which counsel for the Law Society had characterised the case up to that point it was open on the evidence and was within the scope of the allegations made in the Executive Director's affidavit for the Committee to find that the misrepresentations had been made knowingly but that the Committee were concerned that the issue had not been sufficiently put to the appellant when he gave his evidence. The chairman went on to say:

"Now, that being the case, we do not feel that the view of the Law Society restrains our approach to it. We have made that clear. And we feel that in that situation it is only fair that the practitioner be given the opportunity to give further evidence. And, in fact, if I can indicate to you that if neither yourself or Mr Cranswick wish to take advantage of the legal practitioner being–giving further evidence, it is my intention to recall the practitioner, because I do not believe it would be right for us to go away and consider a finding without having put to him those sorts of things. It would be a complete denial of natural justice."

1. Counsel for the appellant responded:

"If that is what you wish to do, then I would not seek to stand in your way. I did not see a need for that in view of his evidence, which I have considered very, very carefully. If that is what the Committee wishes to do, that is a matter entirely for the Committee.

THE CHAIRMAN:      I understand that.

MR GUNSON: Well, if that is to be the proper course, or the course that the Committee wishes to take, then it seems appropriate that I not address you further at this point, and if you wish to recall him, then that is appropriate."

1. The appellant was then resworn. During the course of a restatement of the Committee's position by the chairman to the appellant the chairman said:

"We have already indicated that we are considering a finding that the misrepresentations which were made were made knowingly, as distinct from being the result of a mistake or simply lack of attention. We are concerned that that – that aspects of that sort of a finding have not been put to you in cross–examination at all, and feel that it is important that we give–that that be done, and that is why I am going to ask you questions. I am sorry that that, in a sense, puts me in a situation of cross–examining you, and I apologise for that, but I cannot see any other means of going at it."

1. Counsel for the appellant then expressed disquiet at the notion that the chairman was going to cross examine the appellant. After some further exchanges the chairman said that he thought that:

"The easiest course is to proceed at the moment and you can judge it after–make your assessment after we have proceeded."

1. The chairman then asked the appellant a number of questions. Some questions were asked with a view to clarifying or obtaining further particulars of answers which the appellant had given previously. Some questions were leading in form but no questions were asked with a view to firmly putting a particular proposition to the appellant nor could the examination have been regarded as hostile or as amounting to a serious attempt to test the credit of the appellant.

1. During the course of the hearing before me I heard submissions as to the nature of the proceedings before the Committee and as to whether and if so to what extent they could be characterised as inquisitorial in nature. In my view in order to determine these grounds it is not necessary or desirable for me to attempt to fit these proceedings into some rigid category nor do I find it necessary to explore the question of the extent to which in appropriate cases the Committee might have the power or the obligation to call evidence of its own motion. It is sufficient to say that the manner in which the Committee is obliged to conduct such proceedings must be informed by inter alia the considerations that the Law Society carries the burden of persuasion, that the Committee has a duty to act fairly and impartially in considering the evidence before it and that because disciplinary proceedings involve the public interest which the Committee has a duty to protect there would be cases in which the Committee would have an obligation to intervene in the proceedings in a way which would not ordinarily be regarded as appropriate for a court which was hearing ordinary civil proceedings which were purely inter partes. The primary issues raised by these grounds of appeal are whether the course adopted by the chairman resulted in any unfairness or denial of natural justice to the appellant or constituted such a gross procedural irregularity that it resulted in a miscarriage of justice. In my view in order to determine those issues it is not necessary for me to characterise the proceedings before the Committee with any more precision than I have. In considering those issues I have particular regard to the following:

1The grounds of appeal are not based upon an allegation that the Committee exhibited actual or apparent bias.

2In no respect could it be said that the appellant was denied natural justice. The publication of the Tentative Findings and the adjournment which followed it gave the appellant ample notice of the matter which was concerning the Committee and he and his counsel were given every opportunity to be heard before during and after his examination by the chairman.

3Save for his expression of disquiet at the indication by the chairman that he proposed to cross examine the appellant, counsel for the appellant did not object to what took place. Further, notwithstanding that at the beginning of his examination of the appellant the chairman invited counsel for the appellant to reassess his position at a later state in the proceedings in fact counsel made no further submissions about the matter.

4No application or submission was made to the Committee that they should disqualify themselves from further proceeding with the hearing.

5In my view having reached the tentative conclusion which I have held the Committee were entitled to reach that it was open to them to find that the appellant made the misrepresentations knowingly, I think that it might well have been contrary to natural justice had the chairman not taken the course he did.

1. I am not satisfied that either of those grounds as drawn has been made out. Further, looking at the grounds and the proceedings more broadly I am not satisfied that the course taken by the Committee resulted in any unfairness or injustice to the appellant.

Ground 3

1. Counsel for the Law Society expressly submitted to the Committee that it "should consider whether it is appropriate" to strike the name of the practitioner off the roll. The Committee declined to take that step but imposed the lesser penalty of suspending the appellant from practice for 16 weeks.

1. The Committee's findings upon the primary issue of whether the appellant had been guilty of professional misconduct included the following findings:

"Circumstances which add to the gravity of the misrepresentations are:

(a)the letter concluded with a requirement that the 'acknowledgement' (equitable charge) be executed and returned with (sic) seven days. Family law clients are frequently under considerable emotional and financial strain. This requirement should not have been imposed without any explanation of the equitable charge or reference to independent legal advice.

(b)The scope of the equitable charge is not limited to the family law matter for which the practitioner was engaged but extended to all costs incurred by the client with the Practitioner's firm 'which are now or may hereafter became due'.

(c)The letter was a standard form letter on solicitor and client costs, dealing in some instances with matters which were disadvantageous to the client. It was the sort of letter which a practitioner should have been meticulously scrupulous in preparing.

Mitigating factors are:

(a)The letter did not seek to allow the practitioner to charge costs above the prevailing Family Law scale.

(b)The equitable charge was readily identifiable as such, there is nothing in the charge itself to conceal its nature. It was as clear and apparent as such a document could be.

(c)The effect of the practitioner's evidence is that the letter and the equitable charge were in essence issued by him as a formality to satisfy the requirements of his partners. They were never acted on or followed up by him:

(i)Notwithstanding that the letter asserted that it was a condition of the retainer that the equitable charge be executed and returned within seven days, the practitioner did not cease to act for any of the clients who did not provide the equitable charge.

(ii)No system was put in place to check whether the equitable charges had been executed and returned

(iii)The equitable charges which were returned were not processed, that is, assessed for stamp duty and registered or filed.

(iv)No interim bills were issued."

1. I think one can fairly assume that the Committee also had regard to those circumstances when it determined the penalty. I am not persuaded that the Committee overlooked any relevant mitigating factors or that it was in error in its characterisation of the factors which it regarded as aggravating.

1. I do not think that there is any substance in the second part of this ground. I am not persuaded that possible hardship to a practitioner's partners is a relevant consideration. It may be that in exceptional circumstances hardship to particular clients might be relevant to the determination of a proper penalty – e.g. it might justify the temporary suspension of the operation of an order suspending a practitioner from practice so as to enable him to complete a particular piece of work for a client – but I am not persuaded that such circumstances existed here.

1. The relationship of solicitor and client is founded upon trust and that entails inter alia an obligation on the part of a solicitor to ensure that any assertions of fact he makes to his client are accurate and that any opinions he expresses are genuinely held by him. A fortiori is that the case when the assertion or opinion affects the legal relationship between the solicitor and his client. In this case the appellant misrepresented to each client the nature of an instrument which imposed obligations upon the client and conferred a potential benefit upon the appellant and his firm. In my view that amounted to serious misconduct for which an order of suspension was appropriate. I am not satisfied that the Committee failed to give sufficient weight to the financial consequences of the order it made. I am not satisfied that the penalty which was imposed was inappropriate or could be characterised as manifestly excessive.

1. The appeal is dismissed.

tasInLaw edit: The judgment has "aid".

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