The Council of the Law Society of NSW v Russell [2008] NSWADT
[2008] NSWADT 268
•25 September 2008
CITATION: The Council of the Law Society of NSW v Russell [2008] NSWADT [2008] NSWADT 268 DIVISION: Legal Services Division PARTIES: APPLICANT
RESPONDENT
The Council of the Law Society of New South Wales
Michael MacGregor RussellFILE NUMBER: 072039 HEARING DATES: 21 July 2008 SUBMISSIONS CLOSED: 21 July 2008
DATE OF DECISION:
25 September 2008BEFORE: Brennan J - Judicial Member; Currie J - Judicial Member; Costigan M - Non-Judicial Member CATCHWORDS: Solicitor – Disciplinary application MATTER FOR DECISION: Principal matter LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: Allinson v General Council of Medical Education and Registration [1894] QBD 750
Briginshaw v Briginshaw [1938] 60 CLR 336
Clyne v New South Wales Bar Association (1960) 104 CLR 186
Ex parte Brounsall (1778) 2 Cowp 829, 98 ER 1385
Ex parte Lenehan (1948) 77 CLR 403
Ex parte Macaulay (1930) 30 SR(NSW) 193
Fraser v Council of the Law Society of New South Wales [1992] 5 LPDR 12
ncorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655
Johns v Law Society of NSW [1982] 2 NSWLR 1
Kennedy v The Council of the Incorporated Law Institute of New South Wales [1940] 13 ALJR 563
Law Society of New South Wales v Bannister [1993] 4 LPDR 24
Law Society of New South Wales v Foreman [1994] 1 LPDR 1
Law Society of New South Wales v Foreman [1994] 84 NSWLR 408
Law Society of New South Wales v Young [1999] NSWADT 78
Law Society of New South Wales v Young (No 3 ) [2001] NSWADTAP 38
Myers v Elman [1940] AC 282New South Wales Bar Association v Evatt (1968) 117 CLR 177
Re Demetrious [1993] 3 LPDR 3
Re Hodgekiss [1959] 62 SR(NSW) 340
Re Poole (1869) LR 3 CP 350
Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93
Stephens v Hill (1842) 10 M&W 28, 152 ER 368
Ziems v The Prothonotary (1957) 97 CLR 279REPRESENTATION: APPLICANT
RESPONDENT
L Pierotti, solicitor
G Lindsay SC, barristerORDERS: 1. That the Solicitor pay a fine of $10,000 by two instalments each of $5,000 the first of such instalments to be made on 30th September 2009 and the second instalment to be made on 30th September 2010 provided that in the event of either instalment not being paid on or before the due date then the practising certificate of the Solicitor shall be cancelled until such instalment is paid in full
2. That the Solicitor be publicly reprimanded
3. That the Solicitor shall not be entitled to apply for a local practising certificate other than a restricted certificate entitling him to practise as an employed solicitor under the supervision of an Australian legal practitioner for a period of 4 years from the date of these orders
4. That the Solicitor is to continue consulting Dr Robert Hampshire at the rate of not less than one consultation every 3 months from the date of these orders for a period of 3 years provided that in the event that Dr Robert Hampshire is unwilling or unable to continue consultations with the Solicitor then the Solicitor is to consult such other practising psychiatrist who is willing to provide reports in terms of order 5 hereof as the Solicitor may elect from time to time until the expiration of the three year period of this order and subject to the terms of order 5 hereof
5. That the Solicitor provide authorisation in writing to Dr Robert Hampshire and to any psychiatrist subsequently consulted by the Solicitor in accordance with these orders to permit the psychiatrist to report on the consultations with the Solicitor to the Manager of the Professional Conduct Division of the Law Society of New South Wales by 30th September each year for 3 years commencing on 30th September 2009
6. The Tribunal notes that Dr Robert Hampshire has in his evidence expressed to the Tribunal his willingness to provide annual reports to the Law Society if requested
7. That the Solicitor pay the costs of the Society of and incidental to these proceedings on the ordinary basis as agreed or assessed.
1 On 15th November 2007 the Council of the Law Society of New South Wales (“the Society”) filed an Application for disciplinary action (“the application”) against Michael MacGregor Russell (“the solicitor”) pursuant to section 551 of the Legal Profession Act 2004 (“the LPA Act”). The Society alleged that the Solicitor was guilty of professional misconduct as set out in the following allegations:
- (a) Mislead and or attempted to mislead his client.
(b) Mislead and or attempted to mislead the Department of Immigration and Multicultural Affairs.
(c) Fabricated a VETASSESS Certificate which he subsequently produced to his client.
2 The Society provided the following particulars of grounds of complaint:
(a) Michael MacGregor Russell [‘The Solicitor”} was registered as a Migration Agent on 2 May 1997.
(b) The Solicitor was introduced to Mr A’s brother some time in 2002.
(c) In 1999 Mr A’s brother had previously made a skilled visa application in respect of Mr A. That application had been rejected in February 2000.
(d) As a result of changes to the relevant migration law, Mr A again sought to make a skilled visa application and for that purpose the Solicitor was so instructed by Mr A’s brother. It was, however, necessary to lodge an assessment application in any visa application with the Department of Immigration and Multicultural Affairs.
(e) On 14 April 2003, on behalf of Mr A, the Solicitor lodged an application for a skills assessment with VETASSESS.
(f) By letter dated 24 July 2003 [received by the Solicitor on 31 July 2003], the Solicitor was informed by VETASSESS that Mr A’s application had been rejected. The Solicitor handed a copy of the negative assessment to A’s brother shortly after its receipt.
(g) The Solicitor advised Mr A’s brother that he had been led to believe by VETASSESS that the assessment by it would be positive and that, in those circumstances, the negative assessment must have been a new decision.
(h) In view of the negative assessment from VETASSESS, the Solicitor did not lodge an application for a visa on behalf of Mr A.
(i) Mr A’s brother continued to make regular contact with the Solicitor expressing his concern about the negative decision and “pushing” the Solicitor to obtain a copy of documents which would support the advice which the Solicitor had provided to him and to the effect that “DIMA had intended to issue a positive assessment”;
(j) At some stage the Solicitor created a fraudulent VETASSESS [positive] assessment for A and handed same to A’s brother in about October 2003. That assessment was undated.
(k) On or about 14 July 2004, after fresh material was obtained by the Solicitor, a further application in relation to Mr A was made to VETASSESS.
(l) On 23 December 2004 VETASSESS issued a further negative assessment in relation to Mr A;
(m) On 14 January 2005 Mr A’s brother wrote to the Minister for Immigration complaining of the VETASSESS’ assessment and advising that some time after September 2003 the Solicitor had received a positive assessment from VETASSESS.
(n) By letter dated 4 February 2005, in response to a letter from the Department of Immigration and Multicultural Affairs, the Solicitor informed the Department that there had been positive skills assessment made by VETASSESS and that same had then been replaced by a negative assessment. He said that he had received the positive assessment, ‘probably by fax’.
3 The Council sought the following orders:
- i. The solicitor’s name be removed from the Local Roll;
ii. The solicitor pay the costs of and incidental to the proceedings before the Administrative Decisions Tribunal; and
iii. Such further Orders as to the Tribunal seem fit.
4 On 20th June 2008 the Solicitor filed a Reply to the application in which he admitted the conduct alleged in each of the three allegations and acknowledged that the particulars in the application each correctly set out the position.
5 At the commencement of the hearing the Society sought an order pursuant to section 561 of the LPA Act :
- “That , to the extent that any particulars to the Application may fall outside the 3 year period limitation provided in section 506 of the (LPA) Act, the failure of the Council of the Applicant to make a determination under section 506(2) be disregarded for the purposes of these proceedings”.
The application related to three of the particulars of the allegations and Senior Counsel for the Solicitor advised the Tribunal that his client did not oppose this order which was then made.
6 6. The Society’s application was supported by an Affidavit of Raymond John Collins sworn 12th November 2007 (“the Collins Affidavit”). The Collins Affidavit detailed the various procedural and jurisdictional matters required to be established in relation to the application and had annexed to it a copy of the notice of decision of the Migration Agents Registration Authority dated 20 November 2006 which suspended the Solicitor as a migration agent for a minimum of 3 years. The decision made certain findings of fact in relation to the conduct of the Solicitor but the Tribunal finds that it should accept the notice as evidence of the suspension order only. The Tribunal has in reaching its findings on the facts relied upon other material before it, which is referred to below.
7 7. The Society also relied upon a letter dated 20th April 2007 from Messers Horowitz & Bilinsky sent on behalf of the Solicitor to the Society. The letter was admitted into evidence without objection and it detailed the circumstances and the relevant conduct of the Solicitor. The relevant material was repeated in the Solicitor’s affidavit sworn on 17th June 2008 and confirmed in his oral evidence at the hearing.
8 The evidence leaves the Tribunal having applied the test in Briginshaw v Briginshaw [1938] 60 CLR 336 comfortably satisfied that the allegations particularised have been established. The Tribunal finds:
The quoted parts of this paragraph are from the Solicitor’s affidavit of 17th June 2008. The Solicitor did not resile from any of these statements in his oral evidence.
a. The Solicitor misled or attempted to mislead his client into believing “that the assessment application to VETASSESS was to be a positive assessment and that the negative assessment received was a new decision” when there had only been “one decision by VETASSESS in 2003 and that was a negative assessment”;
b. The Solicitor misled or attempted to mislead the Department of Immigration & Multicultural Affairs in a letter to the Department when he “wrongly and improperly suggested that a positive assessment had been received when in fact it had not”,
c. The Solicitor fabricated a VETASSESS certificate (which in his affidavit he refers to as ‘ a document’) in that he “improperly created a document by cut and paste showing a positive outcome and gave such copied document to the brother” of his client who instructed the Solicitor on behalf of the client.
9 The Solicitor admitted the facts particularised and that his conduct amounted to professional misconduct. It is apparent from the correspondence before the Tribunal that the Society regarded the facts as not being “in contest” as early as February 2007. The Tribunal finds it significant and indeed consistent with the Solicitor’s approach to these proceedings that he did not oppose the order referred to in paragraph 5 above. At the hearing as the Solicitor’s Counsel indicated the substantial issue was the question of the proper order to be made.
10 The conduct of the Solicitor is claimed to constitute professional misconduct at common law. The often quoted description of “infamous conduct in a professional respect” in Allinson v General Council of Medical Education and Registration [1894] QBD 750 has long been adopted as a description of professional misconduct and this has stood the test of time and been applied in numerous instances over the years. In that case at 763 Lopes L J said:
“It is important to consider what is meant by ‘infamous conduct in a
professional respect’. The Master of the Rolls has adopted a definition
which, with his assistance and that of my brother Davey. I prepared.
I will read it again: if it be shown that a medical man, in the pursuit of
his profession, has done something with regard to it which would be
reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency’ then it is open to the General Medical Council to say that he has been guilty of ‘infamous conduct in a professional respect’.”
11 The Tribunal finds that the conduct of the Solicitor in misleading his client, in misleading the Department and in fabricating a document satisfies in each instance the “disgraceful or dishonourable” test in Allinson. The Tribunal accordingly finds that the Solicitor is guilty of professional misconduct.
12 The Solicitor was cross-examined and the Tribunal was favorably impressed by the frank and open manner in which he gave evidence. The original misconduct in the complaint occurred over 5 years ago in 2003. The three findings against the Solicitor all relate to his seeking an immigration visa for one client. He describes his actions from the viewpoint of 2008 as “crazy”. It is clear that the Solicitor at the time of his misconduct was under intense pressure from his client’s brother who bullied and intimidated him while seeking a positive outcome of the visa application and his approach to the Solicitor became more and more aggressive over time. The Solicitor felt in this matter that he was under pressure that he had not previously nor has he subsequently experienced. His evidence was responsive to questions put to him and the Tribunal finds that he sought to detail the circumstances of his conduct but not in any way to justify it.
13 The Solicitor acknowledged his weakness in succumbing to the pressure he experienced and expressed his confidence that he would not commit that sort of conduct again. He regarded this as a measure of his development in the years since his misconduct. The Tribunal accepts that the remorse expressed by the Solicitor for his behaviour is genuine. He has apologised to his client and to his client’s brother. He has the ongoing support of his employer who continued his employment after these issues were brought to his notice and allocated him work in other areas when the Solicitor was suspended as a Migration Agent on 20 November 2006. Most importantly the Solicitor accepted that he needed help and from 2006 he commenced to see a psychiatrist, Dr Robert Hampshire, who has since seen him on some 15 to 20 occasions over 18 months.
14 Dr Hampshire swore an affidavit and was cross-examined. His evidence gave clarity to an understanding of the Solicitor’s state of mind. He referred to the client’s brother having intimidated and bullied the Solicitor and explained that this took the form not of a threat to bash or hurt the Solicitor but rather of becoming nagging, angry, demanding, repetitive and insistent that the Solicitor came up with a satisfactory explanation for the unsuccessful visa application. Dr Hampshire said the intimidation took a subtle form. He reported that in response to the intimidation and bullying the Solicitor “felt defenceless, vulnerable, helpless and manipulated.” The brother would sit in the waiting room for 2 hours waiting to get an appointment to see the Solicitor when there was no appointment available so he waited until the Solicitor saw him. Sometimes he would see the Solicitor 4 or 5 days in a row. He was constantly harassing the Solicitor to be successful and get his brother into the country. It was Dr Hampshire’s opinion that it was in the face of that subtle but strong bullying that the misconduct occurred.
15 Dr Hampshire found that the Solicitor does not have a psychiatric illness or any personality disorder. He referred to the “brutality and bullying nature of the (Solicitor’s) upbringing and that in the behaviour of the client’s brother the Solicitor “experienced a replication of the trauma of his adolescence”. The psychiatrist also indicated that the Solicitor is now aware of his vulnerability to bullies and that his insights have grown so that he has a very clear understanding of the seriousness of his misconduct and the implications of it. Dr Hampshire stated that the Solicitor had continued to see him because “he needs someone to talk to and trust”. In his opinion the Solicitor is unlikely to succumb again.
16 The solicitor in cross-examination was asked if he needed to keep seeing Dr Hampshire. In reply he indicated that he was now fully aware of his susceptibility to bullying and aggressive clients and knows how to deal with those clients. He did not feel he needed to continue seeing Dr Hampshire but he wished to as part of a monitoring exercise so if a problem were to arise he could discuss it with the doctor.
17 The Solicitor has been employed by his present employer since 2001. The employer provided an affidavit and was cross-examined. He was very supportive of the Solicitor. In his view the Solicitor’s misconduct in this matter does not reflect his real character. He expressed confidence that there would be no recurrence of the misconduct. The employer was aware of the Solicitor’s shame and distress. He recalled the Solicitor bringing the matter to him telling him that he had made a terrible mistake, misleading a client and creating a (false) document. These matters had been discussed with the Solicitor many times and the employer expressed his confidence in the Solicitor and his conviction that the misconduct would not happen again. In his opinion the Solicitor would in future avoid the situation that gave rise to these complaints. The employer, who was admitted to practice in 1979, has been the principal of his own firm since 1988 and his confidence in the future conduct of the Solicitor is very significant in the Tribunal’s consideration of the proper orders to be made.
18 Supporting affidavits were also filed from the Solicitor’s wife and one from a former employer. Neither deponent was required for cross-examination.
19 The Solicitor and his wife have been married for 14 years and have 2 children aged 11 and 5. The family is dependant upon the Solicitor’s earnings. The prime responsibility of the Tribunal in matters of this nature is the protection of the public and this material in the wife’s affidavit does not assist the determination of whether the Solicitor’s name should be removed from the Roll. However the evidence is proper for consideration if, for example, imposition of a fine and the terms of payment are under consideration.
20 The deponent of the remaining affidavit had employed the Solicitor for about a year between 1998 and 1999 and had recommended his own clients to the Solicitor subsequently for immigration advice. He had seen the application in this matter and was aware that the Solicitor had admitted the misconduct alleged. In that knowledge this practitioner of some 37 years standing regarded the Solicitor as a person of integrity and expressed the opinion that his misconduct was entirely out of character.
21 Two solicitor practitioners provided additional character references for the Solicitor in relation to the complaint against the Solicitor to the Migration Agents Registration Authority (”the prior proceedings”) and these were annexed to the Collins affidavit. The prior proceedings related to the creation of the fraudulent VETASSESS assessment and the misleading of the client and the Department and both references were provided in the knowledge of the complaint to the Authority and the Solicitor’s admitted misconduct. The two solicitors had been responsible for supervising the Solicitor as an employee during the years 1997 to 1998 and between 1999 and 2001. Both referees were, like the Solicitor, also registered as migration agents. One wrote of the Solicitor being intelligent and hard working, committed to his clients, trustworthy, loyal and diligent. In his view the conduct that gave rise to the complaints was completely out of character. The second referee indicated that he had never had any cause for concern as to the Solicitor’s professional competence “or any ethical or integrity issues”.
22 In this matter where the Tribunal has found that the conduct of the Solicitor amounted to professional misconduct there remains a real issue for determination, that is the proper order to be made. The Council of the Society concluded in 2007 that the conduct in question was such as to make a strike-off order appropriate as sought in the application and on which the Tribunal was addressed by Mr Pierotti. The view of the Council is clearly not one that should be disregarded but it is not determinative. It warrants and has received careful consideration by the Tribunal. The views of the Society obviously do not resolve the question of the proper order to be made and indeed the Society at the hearing addressed on a variety of orders that could be made dependant upon the gravity of the misconduct as assessed by the Tribunal and other factors to which reference is made below.
23 The Tribunal in this matter when faced with an application for a strike-off order has to determine the fitness to practice of the Solicitor as at the time of the hearing in 2008. In Johns v Law Society of NSW [1982] 2 NSWLR 1 the Court of Appeal dealt with a solicitor whose professional misconduct occurred some years before a strike-off order was sought. Moffitt P (with whose reasons Hope JA agreed) said at 9:
- “Where there is misconduct prima facie requiring at that time a striking off order on the basis of then unfitness, the substance of the question whether when the matter comes for decision some years later is not dissimilar to the question arising upon an application for re-admission, namely whether it appears that there is material before the court to lead it to conclude that the past proved unfitness has been changed to fitness”.
24 The Society submitted that at the times of the three acts of misconduct the evidence of his conduct established that the Solicitor was unfit to practise. Reference was made to Kennedy v The Council of the Incorporated Law Institute of New South Wales [1940] 13 ALJR 563 where Rich J said in relation to misconduct:
- “It was enough that it amounted to grave impropriety affecting his professional character and was indicative of a failure either to understand or to practice the precepts of honesty or fair dealing in relation to the courts, his clients or the public. The particular transaction must be judged as a whole and the conclusion whether it betokened unfitness to be held out by the court as a member of a profession in whom confidence could be placed, or on the other hand, although a lapse from propriety, was not inconsistent with general professional fitness and habitual adherence to moral standards, was to be reached by a general survey of the whole transaction.”
25 The Tribunal is of the view that the misconduct of the Solicitor if considered at the time it occurred without further evidence could be found to demonstrate unfitness to practice issues involved in determining the proper orders to be made are much more complicated and following Johns’ case (supra) have to be assessed at the time of the hearing not the time of commission.
26 Section 562 of the Legal Profession Act 2004 provides the Tribunal with a wide range of orders it can make as it thinks fit where professional misconduct or unsatisfactory professional conduct is established to the Tribunal’s satisfaction. The Tribunal may make a single order or a combination of orders. The wide discretion involved in section 562 is consistent with the wide range of conduct that has to be considered by the Tribunal from time to time. There are three issues that the Tribunal has found particularly important in reaching it’s decision, namely the gravity of the misconduct, the fitness to practise and the protective aspect of any contemplated orders.
27 The misconduct in this matter involved fraudulent behaviour. A false document was created by the Solicitor and he misled his client and a government department. The Society’s submissions included reference to two very different decisions involving the fraudulent creation of documents these being Law Society of New South Wales v Foreman 1994 84 NSWLR 408 and Law Society of New South Wales v Young [1999] NSWADT 78 and before the Appeal Panel, Law Society of New South Wales v Young (No 3) [2001] NSWADTAP 38.
28 In Foreman the Tribunal found that professional misconduct had been established where the solicitor firstly by her having deliberately misled the Family Court of Australia and secondly by her having propounded a false document namely a reconstructed time sheet that differed from the original time sheet (Law Society v Foreman [1994 1 LPDR 1). The Tribunal dismissed a further nine complaints against Miss Foreman and a third finding by the Tribunal of failing in her evidence to conduct herself with complete honesty and candour was overturned by the Court of Appeal. The Tribunal ordered Miss Foreman to pay a fine of $20,000 together with 60% of the Society’s costs on a solicitor and client basis. The Society appealed and the Court of Appeal by majority ordered that the name of the solicitor be removed from the Roll.
29 In Foreman Giles AJA at 472 referred to the evidence Miss Foreman gave to the Court in relation to the reconstructed time sheet where she accepted that a document produced under subpoena as if it came into existence in September 1989 had been manufactured in October 1991 yet she denied that this was utterly appalling conduct for a solicitor to engage in. His Honour said also at 472:
- “While it may be accepted that the solicitor had many years of unblemished practice behind her and that her conduct could be seen as an anomalous departure from proper professional standards, it was deliberate and for self-advancement and I do not see it in that way. The solicitor’s assurance in the course of her evidence that there would be no repetition of her conduct, because she would never again be in the unique position which caused her to act in an uncharacteristic way, a way which she regarded as wrong, was ashamed of, and had led to humiliation, is undermined by the finding that her conduct was deliberate and with consciousness of its implications. Further, I am not persuaded that the solicitor fully appreciated the gravity of her conduct. While she expressed the feelings I have summarised, at times it seemed to me that it was the shame and humiliation she had brought on herself that most exercised her mind”.
30 The Tribunal takes the view that these findings may be contrasted with the situation in this present application. Miss Foreman was clearly engaged in a battle with her fellow partners to maintain her position and the specialty of Family Law in the firm and also battling her then former client who was denying having signed a costs agreement. It appears that she failed to appreciate her feeling of self-justification in the course she took which is consistent with her acknowledging wrong doing while failing to see that her conduct was “utterly appalling”. In this matter Mr Russell’s actions occurred in a totally different context where he was subject to bullying and intimidation, had the “black cloud” experience described by Dr Hampshire and not challenged by the Society. He had no personal financial battle with his client or his employer (he was not a partner as was the case in Foreman). He has undertaken consultations with a psychiatrist regularly over a period of some 18 months to identify why he succumbed to the bullying and intimidation and to enable him to recognise and avoid any similar situations he might encounter in the future.
31 The Society in its submissions placed emphasis on various statements of the Court of Appeal in Foreman. Kirby P (who did not support a strike of order and proposed instead a suspension) referred (as did Mahoney JA) to Issacs J in Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 where His Honour said:
- “There is therefore a serious responsibility on the Court – a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential. It is not a question of what he has suffered in the past, it is a question of his worthiness and reliability for the future.”
32 Kirby P went on to say in Meagher at 413:
- “It is still true today, as it was in 1909, that high standards are expected of legal practitioners, in their dealings with clients and the courts. This is so that members of the public, litigants, other practitioners and the courts themselves can have confidence in the integrity of those who enjoy special privileges as legal practitioners.”
33 Meagher was an application for restoration to the Roll though the same issues of fitness arose as were considered in Foreman and these same issues are for determination in this matter on the basis of the view that the Tribunal takes of the facts and circumstances established.
34 There are further references to Foreman upon which the Society relied. At 448 Mahoney JA in reference to the pressure on the solicitor at the time of her misconduct described as firm pressure and budget pressure, he said:
- “It was necessary that she work hard and long to achieve her budgets; that she had done. But those pressures did not involve a demand that she falsify the documents as she did. The need which she felt to do that arose from a different thing: the need she felt to ensure that the original documents prepared for production to the court were consistent with the documents which in July 1990 she had already altered. The pressure to which she has referred has no causal relation to that.”
The Tribunal takes the view that these findings of Mahoney JA put the misconduct established in Foreman at a higher level than is established by the evidence in this present matter. The motivation for the misconduct in Foreman has clearly been found to relate in part at least to a personal trait or character fault. Mahoney JA referred at 448 to “detailed falsification of the documents, she persisted in it for some time, and she confessed to it only after she had been discovered in what she had done” which contrasts to the circumstances established in relation to Mr Russell.
35 The Society referred the Tribunal to a further passage of the decision of Mahoney JA in Foreman where His Honour said at 450:
“I do not find that Miss Foreman will, in the future, again falsify a t
- document of this kind. That, I think is not the case made against her. The case for the Law Society has been put in several ways. But the suggestion has been essentially that, in relation to the present matter, she is likely in the future to act in other ways, which, in the sense here relevant, are unacceptable in a solicitor. In my opinion, that case has been made……….I think that, if put in a position of pressure in which she would be sufficiently embarrassed or worse, she would act in a way not acceptable in a solicitor of the Court. At the least, she would be apt to do so.”
36 Finally in relation to Foreman the Society drew attention to the final findings of Mahoney JA at 451:
- “If permitted to practise, Miss Foreman would be required from time to time to place documents before the Court and to give undertakings and assurances to the Court and to other practitioners. In so far as it may be relevant for this purpose, I think that for the present the Court and other practitioners would, or might well, feel that in prudence they should check the accuracy or the reliability of what she did. If they did not and she were again found to have acted improperly, it might be said of them that they acted imprudently in trusting to her word. A person in that position is not a person to be held out as fit and proper to practice.”
37 It should be stressed that the role of the Tribunal is protective not punitive although the dividing line between the two objects is at times hard to discern from some of the decided cases. In this context a strike-off order clearly protects the public as the practitioner in consequence loses his right to practise and the public is no longer at risk of the practitioner’s misconduct. The imposition of a suspension, restrictions or conditions on practice rights, fine and/or a reprimand and the other available orders all have the effect of confronting the practitioner with the gravity of the misconduct established as well as sending to the profession, the courts and the public at large the Tribunal’s view of such misconduct and these pronouncements also act as a protection to the public. The Tribunal finds that the following lengthy extracts from the decision of Sheller JA (with whom Gleeson CJ and Handley JA agreed) in The Law Society of New South Wales v Bannister [1993] 4 LPDR 24 at [27 to 28] are of assistance in understanding the Tribunal’s role:
- “It is sometimes said that the jurisdiction of the Tribunal and of this Court invoked by complaint against a solicitor is not to punish the solicitor but to protect the public. In New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-4 the Court referred to Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-2 and said: “The power of the Court to discipline a barrister is, however, entirely protective and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved.” However the distinction between the two stated objectives of protection and punishment is blurred and can be misleading. Obviously where a barrister or a solicitor has been convicted and punished for a serious offence the jurisdiction of the court to disbar the barrister or remove the name of the solicitor from the roll can be said to have nothing to do with punishment, see Ziems v The Prothonotary (1957) 97 CLR 279 at 286 . In Ex parte Brounsall (1778) 2 Cowp 829, 98 ER 1385 a solicitor had been convicted of stealing a guinea and had suffered imprisonment for nine months and also branding on the hand. On an application to strike him off the roll and in answer to an argument advanced on the solicitor’s behalf that he had already received sufficient punishment, Lord Mansfield at 830 and 1385 said that the defendant’s having been burnt in the hand was no objection to his being struck off the roll. “And it is on this principle, that he is an unfit person to practise as an attorney. It is not by way of punishment; but the Court on such cases exercise their discretion, whether a man whom they have formally admitted, is a proper person to be continued on the roll or not”. See also Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 at 680. Such cases illustrate that the supervisory jurisdiction of the Court and of statutory bodies such as the Tribunal is directed in part to ensuring that the requirement enshrined in the Charter of Justice that persons admitted to practise as solicitors be fit and proper persons or, in the language of section 16 of the Legal Profession Act 1987, of good fame and character is maintained. It follows that if a solicitor is shown not to be a fit and proper person he or she should be removed from the roll. The order for removal is not punitive but protective. Accordingly it is no answer for the solicitor to say that he or she has already been punished for the conduct which shows unfitness.
But the supervisory jurisdiction of the Court and the Tribunal is also directed to protecting the public more generally by maintaining and encouraging appropriate standards of professional behaviour. In Myers v Elman [1940] AC 282 at 319 Lord Wright speaking of this jurisdiction “said: “The underlying principle is that the Court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally~ as was said by Abinger CB in Stephens v Hill (1842) 10 M&W 28, 152 ER 368. The matter complained of need not be criminal. It need not involve peculation or dishonesty a mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor’s duty to ascertain with accuracy may suffice. It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve personal obliquity. The term professional misconduct has often been used to describe the ground on which the Court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realise his duty to aid in promoting in his own sphere the cause of justice.”
38 After a reference to the situation in England Sheller JA (in Bannister) continued:
- “In Ex parte Macaulay (1930) 30 SR (NSW) 193 at 193-4 Street CJ speaking for himself and the other members of the Full Court said: “...unless the Court insists on a high standard of conduct on the part of solicitors - unless the Court punishes severely any lapse from the proper standard - the public will never be properly safeguarded and the profession will never retain the respect which it ought to have in the community.”
In Re Hodgekiss [1959] 62 SR (NSW) 340 at 343 Owen J referred to the Statutory Committee’s being — given wide powers, including the power to strike the names of offenders from the roll, “(f) or the purposes of punishing members of the profession who fail to maintain proper standards of honour and honesty and of protecting members of the public.”
These statements need to be understood as applicable within the context of a protective jurisdiction. By way of illustration retribution, a purpose of criminal punishment is no part of the Court’s purpose in making an order against a solicitor in the exercise of its supervisory jurisdiction. The exercise of the power to remove from the roll, suspend or fine a solicitor is directed to protecting the public by ensuring that those unfit to practise do not continue to hold themselves out as fit to practise and that high standards are maintained. The maintenance of such standards involves deterring the offender from repeating the offence and deterring others who might be tempted to offend. I understood Mr Hughes QC, who appeared for the Solicitor, to concede that the element of deterrence is involved in the exercise of the supervisory jurisdiction.
When the jurisdiction of the Tribunal is invoked under Part 10 Division 7 of the Act to conduct a hearing into a complaint of professional misconduct by a legal practitioner, the primary consideration is to protect the public by preventing a person unfit to practise from holding himself or herself out to the public as a legal practitioner in whom members of the public might repose confidence. But the Tribunal must also act so as to deter the offender in the future and any other practitioner minded to behave in like manner. In the case of a solicitor these elements together or separately may call for the removal of the solicitor’s name from the roll or the imposition of a substantial fine. Subjective considerations which would mitigate the sentence imposed by a criminal court may be significant if the protective exercise being undertaken by the Tribunal requires that they be taken into account. For example a solicitor who reports his misconduct to the Law Society immediately may be treated differently from one who does not, simply to encourage solicitors guilty of misconduct promptly to report it. On the whole, however, mitigating circumstances are of considerably less significance than in the criminal sentencing process.
In Johns v Law Society of New South Wales (1982) 2 NSWLR 1 at 9-10, Moffitt P said that where there is misconduct prima facie requiring at some time past a striking off order on the basis of then unfitness, the substance of the question whether a strike off order should be made when the matter comes for decision some years later is not dissimilar to the question arising upon an application for re-admission, namely whether it appears that there is material before the court to lead it to conclude that the last proved unfitness had been changed to fitness. But even so in allowing a solicitor to continue to practice where he has been shown in the past to be unfit to do so the court is giving, as was pointed out by Willes J in Re Poole (1869) LR 4 CP 350 at 353, the sanction of the court for saying that, prima facie at least, the Solicitor is worthy to stand in the ranks of an honourable profession to whose members people ignorant and otherwise might resort for assistance in the conduct and management of their affairs and in whom they are in the habit of reposing unbounded confidence. The normal consequence of the misappropriation by a solicitor of a client’s money is that his name be removed from the roll. In Ex parte Macaulay at 194 Street CJ said that where a solicitor had been proved guilty of theft he should not, unless in very exceptional circumstances, ever be allowed again to be held out to the public as a solicitor in whom confidence might be reposed; compare Ex parte Lenehan (1948) 77 CLR 403 at 422. This is not only to protect the public in need of assistance in managing their affairs from reposing confidence in the person concerned on the basis that he is a solicitor but also to deter others from behaving in the same way in the future.
39 The Society acknowledged that misleading conduct and falsification of documents does not always lead to a striking-off order. Indeed as a matter of fairness the Tribunal was referred to the decision in Young (supra) which produced a very different outcome from Foreman.
40 In Young the solicitor admitted and was found to have been guilty of professional misconduct in having forged Letters of Administration in two Estates, propounding documents in those two estates knowing them to be false and misleading her client and her client’s husband. The outcome in Young on the professional misconduct findings consisted of a fine, a public reprimand and a supervisory order while a separate fine was imposed in relation to an unsatisfactory professional conduct finding. In determining the orders considered appropriate the Tribunal in Young found that the solicitor had since the forgeries and other misconduct become once more fit to practice. In the decision the Tribunal at [4 & 5] listed ten specific matters which it had taken into account on the fitness issue and these were as follows:
- 1. The solicitor made initial confession in the Stone Estate to the Law Society before anyone from the Society came to her. She was no doubt expecting this to happen but she got there first.
2. The solicitor made voluntary confession of the matters in the Brebner estate which may well have escaped detection if she had not told her solicitor of it.
3. She is genuinely contrite and realises the enormity of what she has done. And contrite for the actions rather than the discovery.
4. She had worked for more than ten years in an exemplary and legally competent fashion before the commission of the actions of which we have heard.
5. Many of the fellow practitioners have given glowing character evidence which refer, if not in actual words, at least in the sense, to what happened there as an aberration or being out of character.
6. Her former partners have confidence in her and are prepared to give her their continued support.
7. Her workload has been reduced by the amount of files referred to by her in her affidavit as being between 230 and 280. She now has files of “probably about 150”.
8. Whilst the developmental problems with her son are on going, the initial shock of the diagnosis has been accepted.
9. Ms Young has agreed, through her solicitors, to pay the costs of the Law Society of these proceedings amounting to $6,353.00.
10. If Ms Young were to be struck off the roll of Solicitors, there would be a number of members of the public who would be disadvantaged. Whilst there are many solicitors in Sydney capable of doing Family Law work, there is no doubt that Ms Young is able to provide a specialist service to her clients. Moreover, her clients, because of their difficulties, would in many instances be unprepared to accept a similar relationship with another solicitor, particularly as matters come close to a hearing.”
41 Without endorsing the decision in Young the Tribunal notes that it indicates how the Tribunal in that case looked closely at the particular circumstances of that matter. The factors listed do not in the view of the Tribunal as presently constituted include matters which could be said to indicate the “fitness” required at the time of hearing to negate the need for a strike-off order which appears on the facts to have been a proper expectation at the time the misconduct occurred. The Appeal Panel clarified at [1] that the Society did seek a strike-off order and the Tribunal at first instance referred at [9] to the solicitor’s evidence “that the pressure of work and her child’s ill health contributed to the offences with which she has been charged”. The forgery of two grants of Letters of Administration purporting to be issued by the Supreme Court of New South Wales is an extreme form of forgery by a legal practitioner and certainly in the view of this Tribunal an even more grave offence than the fabrication of a VETASSESS certificate.
42 There are significant differences between Young and this present matter. The explanations detailed in the former are pressure of work and the ill health of the solicitor’s child. In this matter there is evidence of bullying and intimidation and specialist psychiatric evidence that not only explains what led to the misconduct but also provides professional assurance by the specialist that the Solicitor now understands what led to his succumbing to the bullying and intimidation and that the Solicitor now knows how to recognise and deal with such situations if they arise in the future. The present case is clearly a stronger one than Young for the Tribunal to find that present day “fitness” has been established. Mr Russell to his credit as the Society acknowledged readily admitted the facts and that his conduct amounted to professional misconduct. He has shown genuine contrition for his actions and has satisfied the Tribunal of his excellent standing and competence as a solicitor. The Tribunal is satisfied of his good standing in the profession from the character evidence provided and accepted by the Society. It is greatly impressed by the support of his employer who while he accepted that he could readily have dismissed the Solicitor chose to stand by him and support the Solicitor in whom he continues to have trust and faith. The costs of the Society have not been quantified but the Solicitor through his Counsel accepted his liability in that regard.
43 It is hard to see in the Tribunal’s view that a partner taking on too much work is a factor that diminished the gravity of Ms Young’s misconduct nor that her child’s ill health in any way excused or explained what the Tribunal at [23] described at the time of her forgeries as “irresponsibility and contempt for the ethics which had been her guide until then”. There are some common threads between Young and this present matter but there is also in the Tribunal’s view a big difference in that Mr Russell’s misconduct is explained by medical evidence and that same medical source strongly supports a personal growth in the Solicitor and a comfortable satisfaction that he has learnt to overcome the source of his prior difficulty and in the professional opinion of his treating psychiatrist is able to avoid such difficulties and is capable of practice alone or on his own (i.e. as a sole practitioner) or as an employee.
44 It is well established that not all findings of professional misconduct should result in a strike-off order. Mr Lindsay SC for the Solicitor referred by way of example to the two disciplinary decisions. In Re Demetrios (1993) 3 LPDR 3 the solicitor signed as witness to the signatures of both mortgagees when he only saw one of them sign. He was fined $4,000. The other case was Fraser v Council of the Law Society of New South Wales (1992) 5 LPDR 12 where the solicitor gave a false certificate in relation to the explanation of the terms of a mortgage when he had never spoken to either mortgagor. The decision of the Tribunal to strike the solicitor from the Roll was overturned by the Court of Appeal which substituted a fine of $7,000.
45 In relation to the Solicitor’s misconduct Mr Pierotti asked the Tribunal if it was satisfied that on Dr Hampshire’s evidence, on the Solicitor’s evidence and certainly on the employer’s evidence the likelihood of this reoccurring is about zero or less. The evidence of all three was subject to cross-examination but it was not seriously challenged and certainly not shaken. The Tribunal is comfortably satisfied that the Solicitor understands his prior weakness, has the knowledge, will and skills as well as the support to deal with any similar situations in the future and is now, notwithstanding his prior grave misconduct, fit to practise. In reaching that conclusion the Tribunal is most conscious of its responsibilities in the protective aspect of its jurisdiction which remains even though it has found the Solicitor now fit to practise. The Tribunal finds it proper to discharge that responsibility by the provision of orders tailored to meet the individual circumstances of this matter.
46 In Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 at [54] the Court of Appeal in a unanimous judgment in a complaint made under the Legal Profession Act 1987 stated:
- “If the Tribunal or Appeal Panel is of the view that a person is presently unfit to practice, but after a particular period of time will once again be fit to practice, then suspension for that period of time is the appropriate order. Suspension is achieved by orders under section 171C(1)(b) and (c). Removal from the roll is appropriate only when a legal practitioner is unfit to practice, and suspension for a particular period is not appropriate.”
47 The Tribunal has already made a number of findings which impact upon the terms of the resulting orders which it finds proper. It is conscious of the serious view of the misconduct taken by the Council of the Law Society and finds that it is appropriate after consideration of all the evidence particularly the affidavit and oral evidence at the hearing and the submissions made at the conclusion of that evidence that it is appropriate for the Tribunal to propound different orders from those considered appropriate by the Council. The Tribunal has also taken into account as one of a number of factors but by no means the major factor the fact that the Solicitor has been suspended from his specialist practice as a migration agent for at least three years as a result of the misconduct which is the subject of this decision.
48 The Tribunal wishes to record its displeasure at the grave misconduct of the Solicitor in 2003 and 2005 by imposing a fine of $10,000 together with a public reprimand. The fine is to be paid by two instalments as a reflection of the Solicitor’s circumstances. It is the express desire of the Tribunal to send a clear message not only to the Solicitor but also to the profession of the most serious view it takes of the fabrication of documents and misleading conduct by practitioners. The orders take into account the medical evidence but they in no way are to be thought to diminish the grave nature of the misconduct involved.
49 The Solicitor has indicated his willingness to accept restrictions and conditions on his practising certificate, to continue consulting Dr Hampshire and for those consultations to be the subject of reports by the psychiatrist to the Society. Dr Hampshire indicated his willingness to continue consultations with the Solicitor and to provide reports on the Solicitor to the Society. At the hearing the Society supported the making of such orders in the event that no strike-off order was made. The Tribunal has found it appropriate to make orders reflecting the acceptance of the same by the Solicitor and the submissions of the Society as a further reflection of the seriousness with which it regards the misconduct. The precise terms of these actual orders are formally set out above.
50 The Tribunal finds it proper in all the circumstances of this matter that the Solicitor should pay the proper costs of the Society on the party/party basis as agreed or assessed.
51 Section 562(8) of the Legal Profession Act 2004 requires the Tribunal where it makes an order publicly reprimanding a legal practitioner to publish the order and a statement of its reason for making the order. Under subsection (9) this obligation to publish is satisfied if the Tribunal provides the Commissioner with sufficient information to enable the Commissioner to exercise the Commission’s powers or functions in respect of the Register of Disciplinary Action required to be kept under Part 4.10 (Publishing disciplinary action). The Registrar of the Tribunal is accordingly requested to provide the required information to the Commissioner as expeditiously as possible.
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