Law Society of New South Wales v Ciampa [1999] NSWADT 13 (24 March 1999)

Last Updated: 8 April 1999

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION: Law Society of New South Wales -v- Ciampa [1999] NSWADT 13

REVISION DATE:

DIVISION: Legal Services

APPLICANT:

The Council of the Law Society of New South Wales

RESPONDENT:

Carmelo Ciampa

FILE NUMBERS: 9720

HEARING DATES: 07/10/98, 08/12/98

SUBMISSIONS CLOSED: 22/12/1998

DECISION DATE: 24/03/1999

JUDICIAL MEMBER: A T Martin Presiding Judicial Member

LAY MEMBER: R F Turner Judicial Member

LAY MEMBER: P O Miller Member

APPLICANT KEYWORDS: Prescribed statutory/professional rules breach; Professional misconduct - solicitor

MATTER FOR DECISION: Principal matter

PRIMARY LEGISLATION CITED: Legal Profession Act 1987

APPLICANT REPRESENTATIVE: L W Pierotti instructed by R J Collins

RESPONDENT REPRESENTATIVE: In person

ORDERS: 1. The Respondent be and is hereby reprimanded.

2. The Respondent to pay a fine of $10,000 within 90 days.

3. A Practising Certificate not to be issued to the Respondent until the expiration of 3 years from the date of decision.

4. The Respondent to pay such costs of the Applicant (including the costs of the handwriting expert but excluding the costs of 7 October 1998) as may be agreed between the parties or as may be determined by the Tribunal.

DECISION:

1 The Council of the Law Society (the "Society") has by its Amended Information of 31 July 1998 complained of professional misconduct against Carmelo Ciampa (the "Solicitor").

2 The grounds of the complaint are:

that between October 1994 and 30 June 1995, in contravention of the conditions of his Practising Certificate issued by the Society,

the Solicitor acted as a solicitor on his own account for Mrs Kay May;

that between 1 July 1995 and 6 September 1995, the Solicitor acted as a solicitor for Mrs Kay May without being a holder of a Practising Certificate issued by the Society;

that the Solicitor acted for T E Cranney and E H Gallo and R W & K Stanshall in breach of the conditions of his Practising Certificate;

that the Solicitor attempted to mislead the Society in its investigation.

3 On 29 June 1990 the Solicitor was admitted to practise and held a Practising Certificate until 30 June 1995 and thereafter has not held a Practising Certificate. The Practising Certificate held by the Solicitor was a Certificate that restricted him to practise only as an employee and not on his own account or in partnership.

4 Until about August 1993 the Solicitor was employed as solicitor by Matthew Folbigg solicitors at Parramatta. In August 1993 the Solicitor was employed by Citibank Limited where he remained until some time in mid or late 1995.

5 The Solicitor held a Practising Certificate until 30 June 1995 and that Certificate was subject to the restriction that:

"The holder of this Certificate is not entitled to engage in private practice on his/her own account or as a partner of another solicitor unless the Law Society is satisfied, on the basis of evidence submitted by the holder that:

(a) the holder has completed a period of 12 months, in aggregate, of approved practice as an employed solicitor; and

(b) that at least one of the solicitors with whom the holder intends to enter partnership has held an unrestricted practising certificate in NSW for not less than 3 years."

6 The Society claims and the Solicitor concedes that he has never been entitled to practise on his own account and has only ever held a restricting practising certificate allowing him to work as an employee and furthermore that after 30 June 1995 he has not held a Practising Certificate of any kind issued by the Society.

Kay May

7 In October 1994 Mrs Kay May telephoned the Solicitor and according to her said:

"My grandparents have died and I have a form to fill out which I do not know what to do with. I need a solicitor".

The Solicitor then visited Mrs May at her home at about 7 o'clock one evening at which time the Solicitor told Mrs May and her husband that:

"I am a solicitor at Citibank".

8 There was no discussion about costs and Mrs May's assumption was that because he was solicitor that he would charge her for his work. At this first meeting the Solicitor gave Mrs May his business card upon which was printed:

MEL CIAMPA B.EC, S.A.B.(Dip. Law)

Solicitor

This card included his work and home telephone numbers and his address stated as being:

"PO Box 6740

WETHERILL PARK".

9 Parbery & Nesbitt were the solicitors acting on behalf of the Estate and its administration.

10 Between October 1994 and September 1995 the Solicitor advised Mrs May and corresponded with her and with Parbery & Nesbitt. On 6 September 1995 the Solicitor rendered Mrs May a Statement of Account for his costs and this Statement of Account was as follows:

"RE: ESTATE OF SMITH

TO: My costs of acting on your behalf in relation to

- administration of Estates of Hughie Matthew Smith and

Ivy Louisa Smith including correspondence to the

solicitors for the Administrator; correspondence

- to you, numerous telephone attendances on the

- solicitors for the Administrator, numerous telephone

- attendances on you, perusing various affidavits and

- Application for Letters of Administration,

- attendance on you to obtain instructions and advise,

- attendance on you to execute and attest affidavits,

- and Application, perusing Letters of Administration,

- for H M Smith, perusing Letters of Administration,

- for I L Smith, perusing correspondence from the

- solicitors for the Administrator, perusing

- correspondence from you, various other attendances,

- all due care and skill; exceeding, but say $550.00

Disbursements

Postage $15.00

Telephone $ 5.00

Travelling Expenses $15.00

Sundries $10.00 $ 45.00

Total Due and Owing $595.00"

11 In a letter to Parbery & Nesbitt dated 3 November 1994 the Solicitor had advised that he had:

"Been instructed to act on behalf of Mrs Kay May, who is one of the beneficiaries of the above Estate."

In this and subsequent correspondence with Parbery & Nesbitt the Solicitor referred to Mrs May as "my client".

12 On 5 September 1995 Mrs May withdrew her instructions from the Solicitor. By letter dated 6 September 1995 the Solicitor stated (inter alia):

"As discussed, I will forward my file in this regard upon receipt of payment of the balance due on the attached Statement of Account".

This letter as other correspondence from the Solicitor contained the heading of his name and address as follows:

"MEL CIAMPA B.EC, S.A.B.(Dip. Law)

Solicitor

PO Box 6740

WETHERILL PARK NSW 2164

Phone: [phone]."

13 The Solicitor submitted that the relationship between him and Mrs May was not that of a solicitor and client and that he the Solicitor was providing Mrs May with his assistance as a favour to her. Mrs May denied in evidence that was the fact.

14 When the Solicitor was cross examined to explain why he had rendered a Statement of Account to Mrs May his reply was:

"In hindsight the rendering of that account was a mistake. I genuinely never intended to charge this woman . . .".

15 The Solicitor further submitted even if the understanding of Mrs May was that the relationship was one of solicitor and client, he the Solicitor did not wilfully or with reckless indifference cause Mrs May to understand the relationship was other than solicitor and client.

16 The Solicitor further submitted that the work and assistance that he gave Mrs May was not legal work. "Legal work" for Mrs May required neither legal qualifications nor legal expertise and furthermore he submitted that he did not wilfully with reckless indifference undertake legal work on behalf of Mrs May due to his reasonably held belief that the assistance which he provided to her did not constitute legal work. The Solicitor gave evidence before the Tribunal as to this belief.

17 The Tribunal has little difficulty in finding that the relationship of the Solicitor and Mrs May was that of solicitor and client and the Solicitor acted as a solicitor for her and that the work that he performed and charged her for was legal work. In so doing the Solicitor acted wilfully by acting with reckless indifference contrary to the restrictions on his Practising Certificate and the fact that he did not have a Practising Certificate at all after 1 July 1995 notwithstanding his belief that he had not acted as a solicitor or performed legal work for Mrs May.

18 The Tribunal finds the conduct of the Solicitor practising as a solicitor in breach of the conditions of his Practising Certificate between October 1994 and 30 June 1995 and acting or practising as a solicitor after 1 July 1995 until 6 September 1995 without any practising certificate to be wilful and to constitute professional misconduct.

T E Cranney and E H Gallo (now McFarlane)

19 Whilst the Solicitor was employed by Matthews Folbigg solicitors at Parramatta he acted as an employed solicitor for T E Cranney and E H Gallo with respect to the purchase of a property for $112,000 from W E Tydd Pty Limited.

20 After the Solicitor left the employ of Matthews Folbigg the firm received an authority from Cranney and Gallo dated 25 August 1993 such authority been worded:

"Re: Our Sale

Kindly be advised that I do not wish to have your firm act on my behalf in this matter any further and I would ask that all documents held by you in this regard and any further correspondence be forwarded to me c/- PO Box 6740, Wetherill Park, NSW, 2164".

Significantly it will be noted that the address to which the documents were to be sent was the postal address of the Solicitor.

21 The Solicitor had signed the transfer of the property as the transferee's solicitor. He says that he signed in that capacity whilst still employed by Matthews Folbigg. The Law Society on the other hand say that this was some evidence that the Solicitor had acted as a solicitor for Cranney and Gallo after he left Matthews Folbigg. The Tribunal accepts the evidence of the Solicitor as it is not unusual for a solicitor sign a transfer well before a conveyancing transaction is completed and we have no reason to believe otherwise in this case.

22 According to Mr Cranney following completion of the purchase and the completion of the sale of his property he received a Statement of Account from the Solicitor dated 31 March 1994 which apparently was the date of the settlements of the purchase and sale.

23 The Statement of Account was headed with the name of the Solicitor as a solicitor at his postal address at Wetherill Park. Relevantly this Statement of Account contained the following entries:

"TO: My costs of acting on your behalf in:

- relation to your purchase, reduced as

agreed $620.00

TO: My costs of acting on your behalf in:

- relation to your sale, reduced as agreed $620.00

TO: My costs of acting on your behalf in:

- relation to discharge of Mortgage with

ANZ Bank, reduced as agreed $120.00"

Disbursements

Government enquiries $146.00

Courier fees $ 24.50

Agents fee $ 30.00

Telephone, postage and sundries $ 25.00

Registration fees $ 50.00

TO: Amount paid for stamp duty on purchase $2,414.00

TO: Amount paid to ANZ to discharge Mortgage $12,755.5"

24 The Solicitor submitted that he had not acted as a solicitor in these conveyancing transactions and that by reason of a long standing personal relationship with both Mr Cranney and Ms Gallo he had offered and agreed to assist them in completing these transactions. He stated that this was the true nature of his involvement in the transactions and indeed relied on the evidence of Ms Gallo (now McFarlane) that he had assisted her to settle the sale and purchase, and following the settlement she had paid him a sum of money for some expenses which he had incurred on her behalf in recognition of his assistance which he had given.

25 It is abundantly clear that the Solicitor acted for Cranney and Gallo in these conveyancing transactions as a solicitor and carried out the usual work that a solicitor would perform in such a transactions and charged fees for such work. The work which the solicitor performed as set out in the Statement of Account from the Solicitor of 31 March 1994 included apart from acting on the sale of one property and the purchase of another property, the discharge a mortgage with the ANZ Bank, the engagement of agents and couriers, making government enquiries, paying registration fees and the lodgement of the transfer of the purchase. It is also clear from this Statement of Account that the disbursements of $275.50 and the Solicitor's costs of $1,360.00 were deducted by the Solicitor in payment to himself on the settlement and completion of these conveyancing transactions.

26 The Tribunal finds that the Solicitor in so acting for Cranney and Gallos in these conveyancing transactions did so in wilful disregard of the restrictions in his Practising Certificate and that his conduct was intentional and constitutes professional misconduct.

Stanshall

27 Matthews Folbigg acted for Mr and Mrs Stanshall on the purchase of a property for $120,000 and it appears that whilst the Solicitor was employed by Matthews Folbigg he had the conduct of this conveyancing transaction. After the Solicitor left the employment of Matthews Folbigg Mr and Mrs Stanshall gave a written authority to Matthews Folbigg (in identical terms with the authority given by Cranney and Gallo above) requesting that all documents held by Matthews Folbigg be forwarded to them care of the Solicitor's postal address at Wetherill Park.

28 The Solicitor had signed and accepted the transfer of the property on behalf of the transferees. It is alleged by the Law Society he did this after he left the employment of Matthews Folbigg. However the Solicitor denies that that was the case. The Tribunal accepts the transfer may well have been signed by him whilst still in the employment of Matthews Folbigg.

29 According to Mr Stanshall the Solicitor assisted him to settle the purchase. Following the settlement he paid him a small sum of money in cash for some expenses which he had incurred upon his behalf. He did not otherwise pay the solicitor for the assistance which he rendered to him and his wife.

30 In cross-examination, Mr Stanshall agreed that other than obtaining a council certificate and a pest inspection he did not do any other work for the purchase and the Solicitor had handled all that other work.

31 There is no evidence that the Solicitor charged Mr and Mrs Stanshall a fee for any work he may have performed. The evidence presented does not comfortably satisfy the Tribunal that he acted as a solicitor for Mr and Mrs Stanshall in this conveyancing transaction and accordingly the Tribunal dismisses this charge.

Misleading the Law Society

32 The Law Society alleged that the Solicitor attempted to mislead it in its investigation - the particulars of that allegation being:

33 That the Solicitor in a letter to the Law Society dated 18 September 1995 in answer to the Law Society's letter of 14 September 1995 (in which letter the Society had advised the Solicitor that it had initiated a complaint pursuant to section 135 of the Legal Profession Act because the Solicitor was "practising as a solicitor without the requisite practising certificate") said "as a rule, I do not do this sort of thing since leaving private practice in August 1993". In a letter to the Society of 15 March 1996 in response to the Society's letter dated 12 March 1996 concerning the complaint of Kay May the Solicitor stated (inter alia) that he was only involved in an "isolated incident". By its letter of 1 August 1996 the Society invited the Solicitor to disclose "any similar relevant matters". By letter dated 7 August 1996 the Solicitor responded saying that he was "unaware of any other conduct on my part which may constitute a contravention of the relevant Act. However, if you provide details to clarify this remark I would be more than willing to let you have my comments".

34 At the time that the Solicitor wrote his letter of 7 August 1996 he would have been aware that he had acted for Cranney and Gallo in two conveyancing transactions and in saying that he was unaware that any other conduct might have constituted contravention of the Act he was evasive and this reply can only be regarded as an attempt by him to mislead the Society. The Society wrote to the Solicitor on 18 November 1997 enclosing copies of authorities from Cranney and Stanshall, and from two other persons addressed to Matthews Folbigg and requested information as to in what way the Solicitor had acted for these persons after leaving the employment of Matthews Folbigg. The Solicitor in his response of 21 November 1997 stated that "The people who signed the subject authorities were all friends of mine". The only reason they had instructed Matthews Folbigg to act on their behalf was because he working there. On his departure from Matthews Folbigg these people no longer wished to have their matters handled by that firm. Accordingly the Solicitor assisted them in arranging the release of their files. Half of these people instructed new solicitors. In relation to those people that he assisted he made it very clear that he was not acting as their solicitor. They were happy to proceed on this basis because they were friends and they then effectively acted on their own behalf. These statements that the Solicitor made were not accurate, particularly in respect to the matters of Cranney, and the Tribunal finds that the Solicitor did attempt to mislead the Society in making his responses in his letters of 7 August 1996 and 21 November 1997.

35 Honesty and candour are essential attributes for a legal practitioner and the Solicitor had a duty to be candid with the Law Society when it investigated a complaint or complaints into his professional conduct. Failure by a solicitor to display such honesty and candour can amount to professional misconduct. The Tribunal finds that the Solicitor was guilty of professional misconduct in that he attempted to mislead the Society when giving his responses to questions put by the Society as to his practice as a solicitor since leaving the employment of Matthews Folbigg.

Will for T E Cranney

36 The Society submitted that the Solicitor prepared and charged for the preparation of the will of Mr Cranney at a time when he held a restricted practising certificate and was not entitled to act for Mr Cranney on his own account.

37 Tendered into evidence was a copy of the will (undated) together with a notice from the Solicitor advising Mr Cranney that he should, inter alia:

"1. You should keep this copy with your private papers.

2. You should tell your executor/executrix that the original will was deposited with Mel Ciampa (eg your solicitor or bank) of 13 Darling Street, Abbotsbury on 11/5/94."

38 This document was dated 11/5/94 and in his handwriting the Solicitor wrote at the foot thereof "received $70 in full payment for will". Under that writing was his signature. The Solicitor submitted, that the Law Society had not established the date this will had been prepared. But it is clear from the documents themselves that the will was prepared or at least executed on or about 11 May 1994 whilst the day of the month and month of the date of the will was not stated in the will, the year was stated to be "one thousand one hundred and ninety four". The Solicitor maintained that as with Mrs McFarlane he had no recollection of having been paid any sum for the preparation of wills. It was clear that the will was prepared prior to the sale of her house. This meant that the wills were prepared whilst the solicitor was still in the employ of Matthews Folbigg. However the document identifies the year and indeed the date on which payment of the $70 for the fee for the preparation of the will was received by the Solicitor at a date long after the Solicitor left the employ of Matthews Folbigg.

39 The Tribunal has no difficulty in finding that the Solicitor prepared and charged for the will of T E Cranney in or about May of 1994 when he held a restricted practising certificate and was not entitled to act for Mr Cranney on his account in preparing and charging for this will.

40 The Tribunal further finds this conduct of the Solicitor was wilful insofar as it was an intentional act or acts. Consequently the Tribunal finds that the Solicitor was guilty of professional misconduct.

SUBMISSIONS OF LAW

Law Society

41 The Society quoted a number of authorities to support their submission that at the relevant times the Solicitor was acting as a solicitor and doing legal work.

42 These authorities were:

Cornall v Sylvester Finbar Nagle (Supreme Court Victoria 25 March 1994, Taylor v Richardson 1938 2KB 691, In re Sanderson, ex parte The Law Institute of Victoria (1927) VLR 394, The Barristers Board v Palm Management Pty Limited (1984) WAR 10, Yael Jimenez (LPDR No 2 of 1992), Charles Alroy Goldberg (LPDR No 1 of 1991 and Christopher John Kirkbright (LPDR No 2 of 1990).

43 These authorities where relevant supported the findings of the Tribunal that the Solicitor was the acting as a solicitor and doing legal work in the matters of Kay May, Cranney and Gallo and Cranney re his will.

The Solicitor

44 The Solicitor submitted by the information filed the Law Society sought to show that he had been guilty of professional misconduct within the meaning of Section 127(1)(a) of the Act. Section 127(1)(a) provides:

"For the purpose of this part, "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;".

45 The Solicitor's submission was that this section requires that a minimum standard be met in the provision of legal services by a solicitor but this section did not set requirements with regard to the status of a legal practitioner. There was not evidence produced by the Law Society to show that he had failed to reach a reasonable standard of competence and diligence and that the evidence of the Law Society revolved solely around his status at the time of him having allegedly acted as a legal practitioner.

46 Subsection 2 of Section 127 of the Act provides:

"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 standards of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner or interstate legal practitioner".

47 The NSW Solicitors Manual (at paragraph 3080) makes the following observations in relation to the definition of unsatisfactory professional conduct:

"An important element of the definition of unsatisfactory professional conduct is its measure of an acceptable standard of competence and diligence. The standard is set by reference to what a member of the public is entitled to expect of a reasonably competent legal practitioner. It does not follow that the standard is to be measured merely by public expectation. The persons by whom such a standard can be assessed most accurately, it may reasonably be argued, are legal practitioners who themselves profess the proper standards and are able to make an informed judgement as to the standards which a member of the public is entitled to expect of a reasonably competent practitioner".

48 When measuring the proper standards recognised by legal practitioners it is relevant to look at the general law. In Allinson's Case (1894) 1QB750 professional misconduct is stated to be something done by a person in pursuit of the person's profession, "which would be reasonably regarded as disgraceful or dishonourable by (the person's) professional brethren of good repute and competency". Again the concept of professional misconduct is illustrated by the statement of Mr Justice Rich in Kennedy's Case (1939) 13ALJ563 in which he said that professional misconduct "need not fall within any legal definition of wrong doing. It need not amount to an offence under the law. It is enough that it amounts to grave impropriety affecting (lawyers) professional character and is indicative of a failure to either understand or to practice the precepts of honesty or fair dealing in relation to the courts (the lawyers) clients or the public".

49 The Solicitor submitted that Section 127 was directed towards the conduct of a solicitor and not his or her status. But the complaint of the Law Society is directed to the conduct of the Solicitor in acting as a solicitor without a practising certificate which entitled him to act as a solicitor on his own account or without a practising certificate at all. If he had held such an unrestricted certificate at the relevant time he would have held professional indemnity insurance which he did not hold or pay for with a restricted certificate. Such insurances are of course a protection to the public who deal with solicitors in the belief that a solicitor acting has professional indemnity insurance.

50 The Tribunal has little difficulty in finding that the Solicitor in acting as a solicitor contrary to the restrictions in his practising certificate or without any practising certificate acted without an acceptable standard of competence and diligence when measured with the proper standards professed by legal practitioners, being standards which a member of the public is entitled to expect of a reasonably competent solicitor.

51 The Solicitor submitted that whilst after the expiration of his practising certificate he was no longer able to practise as a solicitor this however did not prohibit from merely holding himself out as a solicitor. In support of this submission he quotes Cornell v Superannuation Systems (Aust) Pty Limited (1989) VR43 where Tadgell J held that merely professing to practise as a solicitor does not in itself, and in the absence of greater involvement, amount to practising as a solicitor.

52 The Tribunal agrees with this statement of the law. However the facts as determined by the Tribunal do not support a finding that the Solicitor in the relevant matters merely professed to be himself a solicitor. In each of the three cases there was a real involvement in the Solicitor performing legal work and charging fees for that work.

53 The Solicitor also submitted that in considering the nature of assistance claimed by him to be provided to Mrs May the case of Law Society v Waterlow (1883) 8APP Cas 407 was relevant. In that case Lord Selbourne said that in the context of an application for probate it is permissible for a non qualified person to carry out related functions provided that a qualified person is actually obtaining probate. In our view this statement is of no relevance to the matter of Mrs May. The Solicitor did perform legal work and charged his fee for that work. The Solicitor in further support of this submission referred to the words of Pape J in Associated Securities v Asiz (1974) VR699 when he said "I am disposed to take the view that generally speaking an unqualified person who performs some ministerial acting in connection with legal process is not thereby purporting to act as a solicitor".

54 The Tribunal rejects the submissions of the Solicitor as it rejects his other submissions that at the relevant times he was not acting as a solicitor or that he was not performing legal work.

Conclusion

55 The Solicitor held a restricted practising certificate from 1 July 1990 to 20 June 1995. He has not applied for a practising certificate since 30 June 1995 and it appears that the Solicitor has no present intention of endeavouring to renew his career as a solicitor.

56 The Tribunal has found the solicitor guilty of professional misconduct in three matters. This misconduct was serious and in each case the explanations of the Solicitor to the Tribunal lacked candour and indeed to an extent were evasive notwithstanding that his own documents clearly set out what he had done as a solicitor and the work that he had charged for. It is therefore a matter for the Tribunal to decide whether or not the Solicitor is a fit and proper person to remain a solicitor.

57 Whether the Tribunal imposes that ultimate penalty or a lesser penalty depends upon consideration of the jurisdiction of this Tribunal. As stated by Giles AJA in the Law Society Informant LPDR No 4 1994 Page 30:

"The jurisdiction of the Tribunal and of this Court in disciplinary matters is exercised to protect the public, not to punish the solicitor. The object of protection of the public may require that a legal practitioner be removed from the roll, be suspended from practice, or only be permitted to practise under particular circumstances, where the practitioner is not fit to be held out to be entrusted, at all, for a time, or without qualification, with the heavy responsibilities attendant upon the office. The public is protected by ensuring that those unfit to practise do not continue to hold themselves out as fit to practise. But the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct, and deterring others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues who practise in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with."

58 The Law Society has sought orders for the Solicitor to be reprimanded and a substantial monetary penalty be imposed. The Society also seeks an order for the Solicitor to pay the costs of these proceedings.

59 Two matters concerning costs we deal with as follows:

1. Costs of the Day 7 October 1998

The adjournment of the hearing on that date was partly if not substantially due to the fact that the Society had served two affidavits on the Solicitor by posting these documents to him on Thursday 1 October 1998 at his post box address at North Rocks. However the Solicitor did not see these affidavits until 7 October 1998 although part of one of these affidavits was read over to him on the telephone by an officer of the Society prior to 7 October. The Tribunal will make no order as to the costs of 7 October 1998.

2. A handwriting expert was engaged by the Law Society on 14 October 1998. The Society having served on the Solicitor by registered post a Notice dated 7 October 1998 stating that unless he admitted certain facts in the Notice to Admit Facts within 7 days the Society would then qualify a handwriting expert. The Solicitor did not reply until 19 October 1998 at which time the Society had already briefed the handwriting expert on 14 October 1998. In the circumstances the Tribunal considers that in any order that may be made for costs against the Solicitor the costs of the handwriting expert should be included.

Penalty

60 The Tribunal is of the opinion that the orders sought by the Society that the Solicitor be reprimanded and a substantial monetary penalty be imposed fall short of orders that adequately protect the public. An order is needed to deter the Solicitor from repeating the misconduct and also deter others who might be tempted to fall short of the high standards required of them by acting as solicitors without the appropriate practising certificates. Whilst it is not known whether the Solicitor intends to resume his career as a solicitor nevertheless the Tribunal is of the opinion that there be should a period of time during which the Solicitor is suspended from holding a practising certificate.

Orders

61 The Tribunal orders that:

1. The Respondent be and is hereby reprimanded;

2. The Respondent pay a fine of $10,000 within 90 days;

3. A practising certificate is not to be issued to the Respondent until the expiration of 3 years from the date hereof;

4. The Respondent pay such costs of the Applicant (including the costs of the handwriting expert but excluding the costs of 7 October 1998) as may be agreed between the parties or as may be determined by the Tribunal.

I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL.

REGISTRAR / ASSOCIATE