Law Society of New South Wales v Nazarian [2002] NSWADT 229 (8 November 2002)

Last Updated: 28 February 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL LEGAL SERVICES DIVISION

CITATION: Law Society of New South Wales -v- Nazarian [2002] NSWADT 229

PARTIES: APPLICANT

Council of the Law Society of New South Wales

RESPONDENT

Sibouh Nazarian

FILE NUMBERS: 022011

HEARING DATES: 10/09/2002, 01/10/2002

SUBMISSIONS CLOSED: 01/10/2002

DECISION DATE: 08/11/2002

BEFORE: Fox R - Judicial MemberStaff C - Judicial MemberKennedy A - Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Legal Profession Act 1987

CASES CITED: Milios LSTR No. 3 of 1998

Law Society v. Veneris [2000] NSWADT 160

APPLICATION: Professional Misconduct - fail to comply with s. 152 Notice

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

D Barton, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT

No appearance

ORDERS: 1.The Legal Practitioner be publicly reprimanded

2.That the Legal Practitioner be fined the sum of $2,000.00 payable within 28 days of the date of these orders

3.That the Legal Practitioner's Practising Certificate not be renewed until such time as he has complied with the requirements of s.152 of the Act

4.The Legal Practitioner pay the costs of the Society as agreed or as assessed.

Reasons for Decision:

1 The Council of the Law Society of New South Wales ("the Society") informs the Administrative Decisions Tribunal, Legal Services Division ("the Tribunal") that Sibouh Nazarian ("the Legal Practitioner") while practicing as a Solicitor was guilty of professional misconduct on the grounds that the Legal Practitioner, having been duly served with a Notice issued pursuant to s.152 of the Legal Profession Act 1987 ("the Act") has, without reasonable excuse, failed to comply with the requirements of that Notice.

2 The particulars of the Legal Practitioner's professional misconduct were stated as follows:

(i) The Legal Services Commissioner forwarded a complaint under Part 10 of the Act to the Society.

(ii) In the course of investigating the complaint, on 9 August, 2001 the Professional Conduct Committee resolved:

That pursuant to Section 152 of the Legal Profession Act, 1987, the legal practitioner is required:

To provide, verified by statutory declaration, the information set out in Schedule 1 hereto to the Manager of the Professional Standards Department, Law Society of New South Wales by the 24th day of August 2001:

SCHEDULE 1

1. Whether or not the solicitor was present at the Bidura Children's Court at about 11.15 on the morning of 12 January 2001.

2. Whether or not the solicitor, at that place and time, said words to the effect of "She shouldn't be in uniform, she'd look better out of it" addressing these words to an uniformed sheriff's officer about another sheriff's officer also present at that time.

3. Whether or not the solicitor, at that place and time, heard words spoken by a sheriff's officer at that place words to the effect of "I think you had better stop there".

4. Whether or not the solicitor at that place also said words to the effect of:

"You know, on the cover of that magazine, what is it " FM or something."

5. Whether or not the solicitor heard words said to him at that place and time by another sheriff's officer to the effect of "Well why don't you go ahead and organize it then."

6. Whether or not the solicitor, at that place and time, said words to the last speaking sheriff's officer "Just keep your mouth shut".

7. Whether or not the solicitor, at that place and time heard the last speaking sheriff's officer say to him "I suggest you keep your mouth shut because what you've just said can be perceived as harassment."

8. Whether or not the solicitor at that time and place said words to the effect of "Oh, harassment" and after a pause said "Is there a solicitor in the house?".

9. Whether or not the solicitor, at that time and place then heard the last speaking sheriff's officer say to him words to the effect "Well, you might just need one."

10. Whether or not the solicitor, at that time and place said words to the effect of:

"That's it. I'm not going to be polite to court staff any more".

FURTHER RESOLVED that if the legal practitioner is unable to comply with the preceding resolution, the legal practitioner must provide a statutory declaration to the Manager of the Professional Standards Department, Law Society of New South Wales by 24th day of August 2001 stating the reasons for the inability to comply with this resolution.

3 The Information was listed for hearing on 10 September, 2002 after directions hearings on 3 June, 2002, 3 July, 2002 and 13 August, 2002.

4 At the hearing on 10 September, 2002, Mr Barton appeared for the Society. There was no appearance on behalf of the Legal Practitioner, nor had he filed a Reply to the Information.

5 Mr Barton tendered an Affidavit of Raymond John Collins sworn 5 April, 2002 being the evidence that the Society relied upon. Mr Barton also tendered a further Affidavit of Service of the Information and Particulars on the Legal Practitioner sworn 9 August, 2002 affirming that a further copy of the Information and Particulars was served on the Legal Practitioner.

6 The evidence disclosed that on 17 January, 2001, the Office of the Legal Services Commissioner received a complaint from Mr B. Kelly, Sheriff of New South Wales concerning, allegedly, inappropriate conduct by the Legal Practitioner at Bidura Children's Court at Glebe on 12 January, 2001. By letter dated 5 February, 2001, the Professional Standards Department of the Society wrote to the Legal Practitioner enclosing a copy of the correspondence from the Sheriff seeking the Legal Practitioner's response. This letter enquired whether the Legal Practitioner was prepared to provide an apology and noted that this may lead to a resolution of the matter. The Legal Practitioner did not reply. The evidence also disclosed that the Legal Practitioner had been admitted to practice on 30 June, 1989 and that he did not hold a current practicing certificate.

7 A further letter was forwarded to the Legal Practitioner by the Professional Standards Department of the Society on 29 March, 2001 requesting a response to the letter of 5 February, 2001 within seven days. This letter drew the Legal Practitioner's attention to the likelihood that a direction pursuant to s.152 of the Act would be issued if no response was received.

8 By letter dated 7 May, the Professional Standards Division again wrote to the Legal Practitioner noting that no response had been received to their letter of 5 February and advising that the matter had been upgraded to a complaint.

9 On 16 August, 2001 the Legal Practitioner was served with a notice pursuant to s.152 of the Act requiring the Legal Practitioner to provide by verified statutory declaration the information set out in the schedule by 24 August, 2001.

10 On 18 January, 2002, as no response had been received from the Legal Practitioner, the Professional Conduct Committee of the Society resolved to make a complaint pursuant to s.134 of the Act in respect of the Legal Practitioner's failure to respond to a notice pursuant to s.152 of the Act served on the Legal Practitioner. The Committee resolved, subject to any submissions, to refer the matter to this Tribunal and to seek certain orders before the Tribunal including that the Legal Practitioner be publicly reprimanded, be fined and his Practising Certificate be cancelled at the expiry of 10 days from the date of the Tribunal's determination if he had not complied with the requirements of the Notice under s.152.

11 When matter came on for hearing, the Society made an application pursuant to s.44 of the Administrative Decisions Tribunal Act 1997 for leave to file an Information under Part 10 of the Act as a late application upon the grounds that the Information had been filed one day later than the time permitted under Rule 14 (3) of the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998. The reasons advanced in support of the application were pressure of work within the Applicant's Professional Standards Department and that greater delay would be occasioned if the Applicant were to refrain from filing an information and taking instead the necessary administrative action to recommit the decision made under s.155(2) of the Act.

12 Leave was granted by the Tribunal.

Consideration

13 S.152 of the Act is in the following terms:

" 152.1 For the purpose of investigating a complaint, a Council or the Commissioner may require the legal practitioner against whom the complaint is made to provide information or to produce documents, and to verify such information by statutory declaration.

2. If a legal practitioner against whom a complaint is made claims a lien over documents relating to the matter the subject of the complaint the Council of the Commission may require the legal practitioner to waive the lien if satisfied it is necessary for the orderly transaction of the client's business.

3. A requirement under this section is to be notified in writing to the Legal Practitioner and to specify a reasonable time for compliance.

4. A Legal Practitioner who, without reasonable excuse fails to comply with such a requirement is guilty of professional misconduct."

14 On the evidence the Tribunal finds that the Legal Practitioner was provided with every opportunity to reply to letters from the Society and more importantly to the Notice served on the Legal Practitioner pursuant to s.152 of the Act. The Legal Practitioner failed to comply with the Notice and has provided no explanation to this Tribunal for his failure. Such failure is statutory professional misconduct and the Tribunal finds the Legal Practitioner guilty of professional misconduct.

15 The Tribunal has previously noted, on numerous occasions, that it regards very seriously any failure to comply with the requirements of s.152. In Milios LSTR No. 3 of 1998 the former Legal Services Tribunal observed:

"The Tribunal wants it clearly understood by the legal profession that it requires legal practitioners to comply with the provisions of s.152 and that it will view very seriously any failure to comply with the requirements to provide written information verified by statutory declaration unless there is a reasonable excuse."

Similar observations were made by this Tribunal in Law Society v. Veneris [2000] NSWADT 160.

16 Although it is not for us to speculate, this matter, it seems to us, could have been resolved by an appropriate apology. The Legal Practitioner's failure to respond to correspondence from the Society destroyed that opportunity and left the Society with no choice but to issue the s.152 Notice. Failure to comply with that notice or an excuse for such failure to comply virtually mandates the practitioner being found guilty of professional misconduct and suffering the humiliation and embarrassment that flows from any such finding. It is regrettable that the Legal Practitioner has allowed this matter to reach this level.

17 The Tribunal finds that the Solicitor breached s.152 of the Act and that therefore the complaint is established. The Tribunal finds that the Legal Practitioner is guilty of professional misconduct.

18 The Tribunal orders:

(i) The Legal Practitioner be publicly reprimanded;

(ii) That the Legal Practitioner be fined the sum of $2,000.00 payable within 28 days of the date of these orders;

(iii) That the Legal Practitioner's Practising Certificate not be renewed until such time as he has complied with the requirements of s.152 of the Act;

(iv) The Legal Practitioner pay the costs of the Society as agreed or as assessed.