Xu v Council of the Law Society of NSW

This case concerned an appeal by a solicitor against findings of professional misconduct and unsatisfactory professional conduct made by the NSW Civil and Administrative Tribunal (the Tribunal). The charges arose from two distinct matters: firstly, allegations of sloppy conveyancing in relation to contracts exchanged with a section 66W certificate, where the solicitor allegedly failed to interview a co-purchaser; and secondly, the solicitor's claim of a lien over a client's passport, which was held in connection with a bail application.

The Court of Appeal was required to determine whether the solicitor's conduct in the conveyancing matter constituted professional misconduct or unsatisfactory professional conduct, and whether the solicitor was entitled to maintain a lien over the client's passport. The Court also considered the appropriate penalty and costs orders in light of its findings.

The Court reasoned that while the conveyancing work was indeed sloppy and the signing of an incomplete s.66W certificate was irresponsible, these isolated acts, without evidence of repetition, did not amount to professional misconduct. Instead, they were characterised as unsatisfactory professional conduct, warranting a public reprimand and a reduced fine. Regarding the passport, the Court acknowledged that a solicitor may have a lien over a client's passport, but held that such a lien could not be enforced if its exercise would deprive an impecunious client of their liberty. Consequently, the charge relating to the lien was dismissed. The Court also set aside the Tribunal's order for the solicitor to pay the Law Society's costs, substituting an order for no order as to costs, finding exceptional circumstances due to the mixed success of the parties and the disproportionate cost of separate assessments. The solicitor was awarded the costs of the appeal.