New South Wales Bar Association v Amor-Smith [2003] NSWADT 239 (5 November 2003)

Last Updated: 2 December 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL LEGAL SERVICES DIVISION

CITATION: New South Wales Bar Association v Amor-Smith [2003] NSWADT 239

PARTIES: APPLICANT

Council of the New South Wales Bar Association

RESPONDENT

John Amor-Smith

FILE NUMBERS: 022016, 022017

HEARING DATES: 12/05/03-16/05/03, 18/08/03-19/08/03

SUBMISSIONS CLOSED: 19/08/2003

DECISION DATE: 05/11/2003

BEFORE: Chesterman M - ADCJ (Deputy President)Norton S SC - Judicial MemberKirkby E - Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

District Court Rules

Legal Profession Act 1987

Legal Profession Reform Act 1993

Legal Profession Regulation 1994

Supreme Court Rules

CASES CITED: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750

D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198

De Pardo v Legal Practitioners Complaints Committee [2000] FCA 335

Evatt v New South Wales Bar Association [1968] HCA 20; (1968) 117 CLR 177

Franconi v Legal Practitioners Complaints Committee [2001] WASCA 431

Re Law Society of the Australian Capital Territory and Roche (2002) 171 FLR 138

Law Society of New South Wales v. Foreman (1994) 34 NSWLR 408

Law Society of New South Wales v Veghelyi [1991] 7 LPDR 13

Legal Practitioners Conduct Board v Hannaford [2002] SASC 260; (2002) 83 SASR 277

Re a Legal Practitioner of the Supreme Court of Western Australia, Unreported, Supreme Court of Western Australia, 12 February 1997 (BC9700434)

Re Maraj (a Legal Practitioner) (1995) 15 WAR 12

New South Wales Bar Association v Cummins [2001] NSWCA 284

In re a Practitioner (1984) 36 SASR 590

Veghelyi v. The Law Society of New South Wales, Unreported, Court of Appeal, NSW, 6 October 1995 (BC950549)

Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN (Pt 1) (NSW) 136

APPLICATION: Professional Misconduct - fail to disclose billing arrangements

Professional Misconduct - fail to disclose costs

Professional Misconduct - overservice and overcharge

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

P Menzies QC and M T McCulloch, counsel

RESPONDENT REPRESENTATIVE: RESPONDENT

Days 1-5: M Williams SC

Days 6 and 7: T Anderson, counsel

ORDERS: 1 Declare that the Respondent is guilty of professional misconduct

2 Order that the name of the Respondent be removed from the roll of legal practitioners

3 Order that the Respondent pay the Informant's costs of these proceedings

Reasons for Decision:

1 In these proceedings two informations were laid by the Council of the New South Wales Bar Association (`the Bar Association') against the Respondent (`the Barrister'), who is a legal practitioner within the meaning of s 128 of the Legal Profession Act 1987 (`the Act'). They were heard jointly.

2 The original complainants were respectively Mr Karl Michael Evers, a solicitor, in one of the informations (022016), and Mr Bernard Flanagan and Mrs Anelle Flanagan (`Mr and Mrs Flanagan'), in the other (022017).

3 Each of the two informations alleged professional misconduct and/or unsatisfactory professional conduct against the Barrister. They both related to professional activities of the Barrister, who held a practising certificate at the time, in the course of a retainer by Mr Evers to act on behalf of Mr and Mrs Flanagan in District Court proceedings.

4 The retainer of the Barrister commenced around 10 November 1998 and continued until August 1999. During this period, he rendered five memoranda of fees to Mr Evers for payment by Mr and Mrs Flanagan.

5 In each of the informations, it was alleged that the Barrister was guilty of professional misconduct and/or unsatisfactory professional conduct under two counts. The wording of these counts was the same in both informations.

6 Count 1 stated that the Barrister failed to make any disclosure of estimated costs as required by s 177 of the Act and failed to make any disclosure of billing arrangements as required by s 176.

7 The particulars relating to Count 1 alleged that on or about 11 November 1998 the Barrister provided to Mr Evers a document headed `Statement Pursuant to Bar Rule 114(1) - Fee Disclosures'. This statement set out the scales of fees that he normally charged. It purported to satisfy the requirements of the Legal Profession Reform Act 1993 and Bar Rule 114(1). But it did not disclose the billing arrangements as required by s 176(1)(c) of the Act or contain an estimate of the likely amount of the costs likely to be charged to Mr and Mrs Flanagan, as required by s 177(1). The Barrister made no further disclosure in relation to his fees.

8 Count 2 stated that the Barrister overserviced and overcharged, in that he undertook unnecessary work, spent unreasonably long periods of time undertaking work and improperly charged for matters (relating to providing an advice on legal issues and amendments to pleadings).

9 The particulars to Count 2 indicated that, out of the five memoranda of fees that the Barrister rendered to Mr Evers for payment by Mr and Mrs Flanagan, only the fourth and the fifth, rendered on 24 June and 29 July 1999 respectively, were the subject of complaint. Earlier, the Barrister had rendered, and Mr and Mrs Flanagan had paid, three memoranda of fees. These were dated 5 December 1998, 11 January 1999 and 15 February 1999 and were respectively for the amounts of $40,000, $47,000 and $4,470.

10 It was alleged in the particulars that both the work for which the Barristers charged in the fourth and fifth memoranda and the amounts charged were excessive, having regard to the terms of the Barrister's retainer, the nature of the issues in the proceedings and the amounts already paid by Mr and Mrs Flanagan (which totalled $91,470) pursuant to the first three memoranda of fees.

11 As further set out in the particulars to Count 2, the Barrister's retainer was terminated at some date in August 1999. On or about 8 November 1999, the Barrister filed an application in the Supreme Court for assessment of the costs claimed in the fourth and fifth memoranda. On 30 May 2000, a costs assessor determined that a fair and reasonable amount of costs to be paid to him was $32,825 and substituted this amount for the total of $151,441.05 reflected in these two memoranda.

12 In fact, this figure of $32,825 included an amount of $325 representing part of the fee paid by the Barrister on the application for assessment. The amount actually determined to be fair and reasonable was $32,500. In the particulars, however, the figure stated was $32,825.

Developments during the hearing

13 On 15 May 2003, at the conclusion of the Bar Association's written case, Mr Williams SC, who then represented the Barrister, made an application for dismissal of the informations in so far as they alleged professional misconduct against the Barrister. He indicated that his client was prepared to concede that the allegations contained in Count 2 of the informations would, if proved, amount to unsatisfactory professional conduct. Mr Menzies QC, counsel for the Bar Association, consented to the question that was raised by the application being argued.

14 We ruled that we could and would hear and determine the application, exercising the powers conferred by s 73 of the Administrative Decisions Tribunal Act 1997 on the Tribunal to determine its own procedures.

15 We ruled in addition that, with appropriate adaptations, we would adopt the procedure prescribed for an application for dismissal made under Pt 34 r 7 of the Supreme Court Rules and Pt 26 r 7 of the District Court Rules. Sub-rule (iii) of the latter Rule permits such an application to be made in civil proceedings:

so far as concerns any cause of action on which the plaintiff claims.

16 Under sub-rule (iv) of this Rule, if the application is refused, the defendant may adduce evidence or further evidence.

17 In conformity with the authorities on this procedure in the Supreme Court and the District Court, Mr Williams and Mr Menzies submitted, and the Tribunal agreed, that two further principles should apply. The first was that the Tribunal should take the Bar Association's evidence `at its highest', that is, as if all of it had been proved in full to the satisfaction of the Tribunal. Secondly, this application by the Barrister should be dismissed if, after considering the Bar Association's evidence in this way, the Tribunal concluded that it reasonably could, not necessarily would, find the Barrister to be guilty of professional misconduct.

18 After due consideration, we concluded that we should dismiss the application. There was, in our view, evidence on which we could reasonably find the Barrister to have been guilty of professional misconduct, bearing in mind that the Bar Association's evidence at that stage was to be taken `at its highest'. We delivered an ex tempore judgment setting out our reasons for this conclusion.

19 After we delivered this judgment on 15 May 2003, the Barrister's case in defence was opened. It continued until the end of the following day, at which point the proceedings were adjourned to recommence on 18 August 2003.

20 Shortly after the recommencement, Ms Anderson, who had taken over the conduct of the Barrister's case from Mr Williams, indicated to us that her client no longer contested any of the factual allegations made in the informations, the accompanying particulars and the evidence that the Bar Association had brought forward. She did not concede, however, that they amounted to professional misconduct. Mr Menzies argued however that this conclusion necessarily followed from the factual concession that she had made on her client's instructions.

21 In a second ex tempore judgment, we held, rejecting this argument by Mr Menzies, that the Barrister's concession on factual matters should not be treated as akin to a plea of guilty to the Bar Association's charge of professional misconduct. Instead, it was for the Tribunal to determine whether the now uncontested facts alleged by the Association did or did nor amount to professional misconduct.

22 In the same judgment, we held that, having regard to our judgment of 15 May 2003 and our reconsideration of both the evidence and the relevant authorities, we were satisfied that aspects of the Barrister's conduct did in fact amount to professional misconduct.

23 In this judgment, we repeat, with some amendments and in greater detail, the reasoning and conclusions contained in the two ex tempore judgments. We consider that the additional material is important in establishing the basis for the orders that we make in this judgment by way of disciplinary `penalty'. This topic is not one that we addressed in the two ex tempore judgments.

24 The conclusions that we reached - first (on 15 May 2003) that the conduct alleged against the Barrister could reasonably be characterised as professional misconduct, then subsequently (on 18 August) that it should be so characterised - were based solely on the matters set out in Count 2. This Count, it will be recalled, alleged overcharging and overservicing.

25 It was our opinion that the evidence relating to Count 1 could not support such a finding. It is convenient to set out here our reasons for this conclusion.

Count 1: Insufficient disclosure in relation to costs

26 Count 1 alleged that the Barrister failed to provide a statement regarding the billing arrangements and an estimate of likely costs, as required respectively by s 176 and s 177 of the Act. These provisions are as follows:-

176 Obligation to disclose basis of costs to instructing practitioner

(1) A barrister or solicitor who is retained on behalf of a client by another barrister or solicitor must disclose to that other barrister or solicitor in accordance with this Division the basis of the costs of legal services to be provided to the client by the barrister or solicitor.

(2) The following matters are to be disclosed to the other barrister or solicitor:

(a) the amount of the costs, if known,

(b) if the amount of the costs is not known, the basis of calculating the costs,

(c) the billing arrangements,

(d) any other matter required to be disclosed by the regulations.

177 Obligation to disclose estimated costs

(1) A barrister or solicitor must disclose to a client in accordance with this Division an estimate of the likely amount of the costs of legal services to be provided to the client by the barrister or solicitor, if the amount of the costs is not disclosed under section 175.

(2) A barrister or solicitor who is retained on behalf of a client by another barrister or solicitor must disclose to that other barrister or solicitor in accordance with this Division an estimate of the likely amount of the costs of legal services to be provided to the client by the barrister or solicitor, if the amount of the costs is not disclosed under section 176.

(3) A barrister or solicitor who has disclosed to a person an estimate of the likely amount of the costs of legal services is to disclose to that person any significant increase in that estimate.

27 Under ss 182 and 183, it is indicated that any failure to comply with s 176 or 177 `does not of itself amount to a breach of this Act', but is `capable of being unsatisfactory professional conduct or professional misconduct'.

28 Section 180 of the Act states, however, that a disclosure under either s 176 or s 177 need not be made where it would not be `reasonable' to be required to do so. Furthermore, s 181 states that, subject to the Legal Profession Regulation 1994, the Barristers Rules may make provision, with the approval of the Attorney General, as to when it would not be `reasonable' to require a disclosure to be made under either section.

29 Rule 114(1) of the Barristers Rules, which commenced on 20 July 1997, does make provision to this effect. It is as follows:-

114(1) It would not be reasonable for a barrister to be required to make a disclosure under section 176 and sub-section 177(2) of the Legal Profession Act when:

(a) the barrister has, whether or not in relation to the legal services to be provided to the client by the barrister, given to the solicitor on whose instructions the barrister is acting in writing a statement which remains current and which indicates the basis on which the barrister charges and his or her rates;

(b) the barrister proposes to charge and does charge for those services in accordance with that basis and rates or rates.

30 At the commencement of his retainer, on 11 November 1998, the Barrister provided to Mr Evers a statement of the basis on which his charges would be calculated. It purported to comply with Rule 114. It set out daily rates for appearing in different courts and hearings and set out an hourly rate of $250 for work done in preparation for hearings.

31 Mr Menzies argued that compliance with Rule 114 was insufficient where a barrister had not previously fulfilled the more detailed requirements of ss 176 and 177. In particular, he said, the requirement in s 177 to provide an estimate of the likely costs to be charged could not be avoided merely by reliance on Rule 114.

32 Mr Williams' argument in response was that, even though it may not have been the intended consequence, s 181 clearly indicated that compliance with a Rule such as Rule 114 made it unnecessary for a barrister to comply with s 176 or s 177. It was, he said, impossible to interpret Rule 114 as applying only to `subsequent' indications of likely costs, as opposed to the first communication on this matter from a barrister to a solicitor.

33 Our conclusion was that, despite its apparent effect in largely nullifying the requirements of s 176 and (in particular) s 177, Rule 114 was indeed applicable and had been complied with.

34 We consider further that, if this view is incorrect, the Barrister could still justifiably claim that he reasonably believed Rule 114 to be applicable and that his letter of 11 November 1998 to Mr Evers therefore constituted sufficient compliance with the law. In such circumstances, even if he did fail to comply with s 176 and/or s 177, it would not be appropriate, having regard to the wording of ss 182 and 183, to find that his breach or breaches amounted to professional misconduct.

35 We accordingly do not make an adverse finding against the barrister on Count 1.

Count 2: Overcharging - the relevant conduct of the Barrister

36 The matters raised by Count 2 require a fuller examination. Because of the Barrister's concession regarding the facts relied upon, it is not necessary to review the evidence at length. But its principal features must be outlined.

37 The District Court proceedings in which the Barrister was retained to represent Mr and Mrs Flanagan arose out of a domestic building dispute in Newcastle. Mr and Mrs Flanagan filed the originating process in 1993. They alleged defective workmanship against seven defendants who had been involved in the construction of a home for them. The home was in fact demolished, as a result of expert advice as to the nature and scale of the defects.

38 The litigation proceeded in a leisurely fashion. A very large amount of material was discovered between the parties. By November 1998, when the Barrister became involved, the case had called for a great deal of labour and expense and had shown every sign of becoming very expensive indeed.

39 In or about May 1996, Mr Evers agreed to act for Mr and Mrs Flanagan on a contingent fee basis, with a view to resolving the matter through mediation. He engaged the Barrister in November 1998 because Mr Terrence Lynch, another member of counsel whom he had initially briefed, had to return the brief on account of other commitments.

40 It was agreed at the outset between Mr Evers, Mr and Mrs Flanagan and the Barrister that it would be appropriate for the Barrister to deal directly with Mr and Mrs Flanagan rather than consistently operating through Mr Evers.

41 At this point, Mr and Mrs Flanagan were facing the prospect of having their claims struck out because they had not complied with a direction to prepare and file a Scott Schedule in proper form. Their strong preference was that the matter should be mediated or settled.

42 At an initial conference on 12 November 1998, however, and on a number of later occasions during the period of his retainer, the Barrister advised Mr and Mrs Flanagan that they could not get a beneficial outcome by way of settlement or mediation unless they and he were fully prepared for litigation. At this conference, he also notified them of his rates of charging and suggested that the first set of tasks that he would undertake was likely to incur costs in the region of $20,000.

43 At this same conference, Mr and Mrs Flanagan indicated to the Barrister that the damages to which they considered themselves entitled - which included significant amounts for loss of business profits and for emotional distress suffered by themselves and their children - were in the vicinity of $1.4 million. Neither the Barrister nor Mr Evers appears to have told them, until some months later, that the monetary limit on the District Court's jurisdiction in a building case was (and still is) $750,000. During 1999, however, the Barrister did advise them that their expectations regarding loss of business profits and damages for emotional distress (particularly in relation to their children) seemed unrealistic.

44 The Barrister's activities throughout the period covered by the first three memoranda of costs - that is, from 11 November 1998 (or thereabouts) to 15 February 1999 - comprised reading the discovered documents, giving advice on the preparation of a revised Scott Schedule (which was in fact done by Mr and Mrs Flanagan themselves), preparing a preliminary advice and an advice on evidence, and attending a number of interlocutory hearings. The third of these memoranda of costs was rendered on 15 February 1999.

45 During this period, Mr and Mrs Flanagan notified the Barrister several times, either directly or through Mr Evers, that they were very concerned on the matter of costs. This concern was one of the reasons why they themselves prepared the revised Scott Schedule.

46 By way of example, their concerns were communicated to the Barrister in the initial discussions (before he was briefed) between him and Mr Evers; in a note on the brief which was handed to him in November 1998 by Mr Lynch; in the initial conference involving him, Mr Evers and Mr and Mrs Flanagan on 12 November 1998; in a further meeting between him and Mr and Mrs Flanagan in December 1998; in conversations between Mr Evers and the Barrister on or about 21 January, 1 February and 12 February 1999; and in a telephone conversation between the Barrister and Mrs Flanagan on 4 February 1999.

47 Despite this, in the period from 15 February 1999 to 24 June 1999 (when the fourth memorandum of costs was rendered), the Barrister went ahead with a number of very time-consuming tasks. This was in response to instructions from Mr Evers to comply, `albeit to a minimal level', with court requirements for bringing the matter to trial: that is, through the preparation of the Scott Schedule and of an advice on evidence and on quantum. The aim, communicated in broad terms to the Barrister, was to make it possible for Mr and Mrs Flanagan, rather than the Barrister, to conduct the case at trial. Mr Evers told the Barrister that this was on account of their wish to keep costs down.

48 The tasks that the Barrister performed, pursuant to these instructions, included the following in particular: preparing a further memorandum of advice which was very lengthy indeed; drafting major amendments to the statement of claim; preparing written submissions to support an application for amendment of the statement; and appearing in an interlocutory application.

49 During this period, Mr and Mrs Flanagan's concerns about escalation of costs continued to be conveyed to him. We will cite some examples of this.

· As just indicated, the Barrister was told by Mr Evers that his brief did not extend to representing Mr and Mrs Flanagan at the hearing because of their concern about costs.

· On or about 5 March 1999, Mr Evers said in a telephone conversation with him that Mr and Mrs Flanagan did not have `unlimited resources'.

· In a telephone conversation with the Barrister on 6 April 1999, Mrs Flanagan told him that she and her husband did not want a site inspection by relevant experts to go ahead as it might cost up to $10,000. She said words to this effect: `We cannot afford those costs. We are trying to keep a lid on costs.'

· In a letter dated 3 June 1999 to the Barrister, Mr Evers reiterated that his clients did not have unlimited resources and that they wished to extricate themselves on the most cost-effective basis - for example, through mediation.

50 In addition, the Barrister was, or should have been, aware of the fact that Mr and Mrs Flanagan were under considerable personal stress at the time when his retainer commenced, and remained under stress during the period of the retainer. There are a number of ways in which this aspect of their situation was or should have been evident to him.

51 First, as already mentioned, a major component of their damages claim was that the negligence of the defendants, resulting in the demolition of their home, had caused continuing personal strain to them and to their children.

52 Secondly, Mrs Flanagan stated in her affidavit that at the first conference with him, on 12 November 1998, she was very distressed at the prospect that the suggested mediation might fail and that she and her husband would have to pay the costs of all the defendants to date. She then stated as follows:-

[The Barrister] appeared to be sympathetic to my distress and suggested means by which this might be alleviated such as counselling, a spell at a health retreat and going to Church.

53 Thirdly, an important strand in the treatment of Mr and Mrs Flanagan by the Barrister is that he required them to do a great deal of work themselves. This was notably in preparing, with expert assistance, a revised Scott Schedule, although as we have said, it was Mr and Mrs Flanagan's choice to do this in order to cut costs. They made it clear to him that this work placed huge demands upon them. For example, in a passage in a fax sent to the Barrister on 20 April 1999, Mrs Flanagan wrote as follows:-

Unfortunately, ... we have had a `hellish' last six months, in that we have been forced to a stage of legal proceedings (with associated legal costs) which were never anticipated and our time has been spent almost entirely in pursuance of experts to assist in the preparation of a `proper' Scott Schedule and to provide further expert reports.

... we are understandably very, very nervous as to the outcome of the Show Cause action on Thursday and the financial implications for us if we are not successful.

54 Fourthly, the Barrister, in a meeting with Mr and Mrs Flanagan on 5 February 1999, while emphasising the enormous amount of work remaining to be done by them, compounded the pressure already placed upon them by suggesting that they were mistaken, indeed `nuts', in going as far as they had in the litigation.

55 Mr and Mrs Flanagan told Mr Evers more than once about their concerns as to escalating costs and the stress that they were experiencing. They also told him, notably in a letter dated 21 January 1999, that they were not happy about the work that the Barrister was doing. As indicated above, Mr Evers conveyed some of these concerns to the Barrister, but he did not make the Barrister aware of the full extent of them.

56 Despite this apparent failure on Mr Evers' part (about which we will make no critical comment, as he did not appear and was not represented at the hearing), we are satisfied (a) that the Barrister knew all along that Mr and Mrs Flanagan were very concerned about the costs of their case becoming excessive and (b) that he knew, or ought to have known, that they were under very great personal stress during the period of this retainer.

57 At no time between February and the beginning of June 1999 did the Barrister indicate clearly to Mr and Mrs Flanagan or to Mr Evers that the work that he was carrying out would lead to charges of the order of $150,000. He did indicate in broad terms, both to them and to Mr Evers, that his memorandum of advice would be of substantial length. But he said nothing to convey any impression of the large amount that he ultimately charged.

58 As we have already indicated, a Supreme Court costs assessor determined that a fair and reasonable amount of costs to be paid to the Barrister for the work to which the fourth and fifth memoranda of costs related was $32,825 (including an amount of $325, representing part of the fee paid on the application) and substituted this amount for the total of $151,441.05 reflected in these two memoranda.

59 It is clear from the assessor's determination, which was in evidence, that subject to one qualification the assessor did not find the Barrister to have charged at an excessive rate for each hour or day spent on the case, or to have charged for hours or days which he did not in fact devote to the case. The qualification was that, as the Barrister himself conceded, he applied his normal hourly rate of $250, rather than an appropriately reduced rate for clerical services, to numerous hours which he himself spent photocopying material for research purposes.

60 Subject to this, the very large discrepancy between the amount that he charged and the amount that the assessor determined to be fair and reasonable was attributable solely, in the assessor's view, to the Barrister having devoted an inordinate amount of time to the tasks that he carried out pursuant to his retainer. Having read the documentary material that the Barrister prepared, particularly a very lengthy memorandum of advice, we entirely endorse this opinion. A great deal of it was clearly superfluous to the requirements of the situation.

61 In our judgment, the best way to characterise the Barrister's conduct is that (a) he levied an excessive charge per hour for his photocopying and (b) generally, he overcharged because, to quote from Count 2 of the informations, he `undertook unnecessary work and spent unreasonably long periods of time undertaking work'.

62 As we said earlier, the Barrister's retainer was terminated during August 1999. At that stage the case brought by Mr and Mrs Flanagan was set down for trial on 15 November 1999, with an estimated duration of three weeks. But it went to mediation in September 1999. They obtained a payment of $203,000 in the mediated settlement.

63 Mr and Mrs Flanagan have not made any payment, either to Mr Evers or direct to the Barrister, pursuant to the fourth and fifth memoranda of costs.

Overcharging as grounds for a finding of professional misconduct

64 Although s 127(1) of the Act is expressly concerned with the meaning of professional misconduct, it does not bear upon this case. It provides amongst other things that professional misconduct includes any conduct that is given this description by any other provision of the Act. In s 208Q(2), it is declared that `the deliberate charging of grossly excessive amounts of costs' is professional misconduct. But this provision was not relied on by the Bar Association, either in the informations and the accompanying particulars or in argument. For present purposes, the relevant principles for determining the scope of professional misconduct are accordingly those of the common law.

65 In making its submission that the Barrister's rendering of the fourth and fifth memoranda of costs amounted to professional misconduct at common law, the underlying proposition put by the Bar Association was that gross overcharging, whether or not accompanied by fraud, could and should be so characterised, particularly if the clients who were subjected to overcharging were `vulnerable'.

66 The principal authority that Mr Menzies cited in support of this proposition was the case of Veghelyi v. The Law Society of New South Wales, Unreported, Court of Appeal, NSW, 6 October 1995 (BC950549). Two statements in the judgment of Mahoney JA are in point. The first is as follows: (BC950549 at 8):-

It is, in my opinion, now established, that gross overcharging as such may constitute professional misconduct and that, on an application such as this, it is not necessary to prove in addition that the lawyer was guilty of fraud or the like.

67 His Honour then cited Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN (Pt 1) (NSW) 136 and Evatt v New South Wales Bar Association [1968] HCA 20; (1968) 117 CLR 177 as authorities.

68 The second passage (at 9) is as follows:-

A solicitor's entitlement to remuneration is conventionally stated in terms of what is fair and reasonable in the circumstances ... Where charges are so far beyond that as to be grossly disproportionate, professional misconduct may be involved.

69 His Honour explained also, at 8 - 9, that gross overcharging was likely to constitute professional misconduct where the clients concerned could be described as `vulnerable':-

Clients are, or may frequently be, in a vulnerable position vis-à-vis their solicitors; the presumption of influence is, I think, based at least in part upon the fact that when making decisions clients ordinarily or at least frequently place trust in their solicitors. They ordinarily are not in a position to know without investigation what work must be done and what charges are fair and reasonable; they ordinarily assume that the solicitor will make only such charges.

Solicitors are, on the other hand, informed, or in a position to inform themselves, of what work may be required and what are fair and reasonable charges. They are, in that sense, in a position of advantage and trust is placed in them. Clients are entitled to be protected against the abuse of that advantage. It is, I am inclined to think, the fact that an advantage has been misused which may, in a particular case, warrant what the solicitor does being categorised as professional misconduct.

70 Mr Menzies also referred us to dicta of Kirby P in Law Society of New South Wales v. Foreman (1994) 34 NSWLR 408 at 422-423, where similar views are expressed. We will quote two sentences at page 422:

No amount of costs agreements, pamphlets and discussion with vulnerable clients can excuse unnecessary over-charging by legal practitioners where it goes beyond the bounds of professional propriety. Time charges have a distinct potential to result in overcharging...

71 The point made by Kirby P in the second sentence is relevant in these proceedings for obvious reasons. In the same case, at 435-437, it was elaborated by Mahoney JA, with reference also to the duties of legal practitioners to `vulnerable' clients.

72 Mr Menzies referred also to the joint judgment of the Court of Appeal in Re Veron. At 144, the Court stated that the question whether the charging of a fee substantially greater than would be allowed on taxation constitutes professional misconduct is `a question of degree and dependent on the facts of the individual case'.

73 We have found these authorities, notably Veghelyi, to be very helpful. We have also obtained useful guidance from a discussion of the relationship between professional misconduct, gross overcharging and procedures for taxation of costs, in two further judgments. One is the judgment of French J, in the Federal Court of Australia, in De Pardo v Legal Practitioners Complaints Committee [2000] FCA 335 (a case to which Mr Williams referred), particularly at [40 - 47]. The other is the judgment of Ipp J, in the Supreme Court of Western Australia, in D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198, particularly at 207-214.

74 The principles stated in Veghelyi made it possible, in Mr Menzies' submission, for the Tribunal to make a finding of professional misconduct without deciding whether the barrister was guilty of `dishonourable' or `disgraceful' conduct, as defined in well-known authorities on the common law meaning of professional misconduct, such as Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. We are inclined to agree.

Whether the Barrister engaged in `gross overcharging'

75 In his judgment in Veghelyi, at 17, Priestley JA stated that a result reached by a taxing officer such as the costs assessor in this case must be taken as `the equivalent of a ruling binding both [parties]', as to what was a `fair and reasonable charge'.

76 We note in this context that the Barrister did not seek to challenge the assessor's determination relating to the fourth and fifth memoranda of fees, either here or elsewhere.

77 The amount determined by the costs assessor to be `fair and reasonable' ($32,500) was only a little more than one-fifth of the amount actually charged by the Barrister ($151,441.05). The costs assessor said in his determination that the amount charged was `excessive and out of all proportion to the subject matter of the litigation'.

78 By way of further illustration of the discrepancy between the barrister's fees and the amount determined by the costs assessor, we would cite the following. The fourth memorandum included fees for preparing a further amended statement of claim in the litigation being conducted by Mr and Mrs Flanagan and written submissions in support of a notice of motion for leave to file this pleading. The memorandum indicates that the Barrister spent some 161 hours on this task. His fees, costed at $250 per hour, were approximately $40,000. The costs assessor's ruling was that a fee of $10,000 was appropriate in the circumstances for these tasks.

79 In Veron (at 142-144), D'Alessandro (at 214) and De Pardo (at [44 - 46]), it is pointed out that assessments by taxing officers and determinations in disciplinary proceedings as to whether there has been gross overcharging depend on different criteria, and that a taxing officer's finding that a practitioner has charged a fee substantially larger than would be allowed on taxation does not necessarily show that the practitioner has been guilty of gross overcharging, such as might support a finding of professional misconduct.

80 We accept, nevertheless, the Bar Association's submission that overcharging to the extent revealed in this case must be characterised as `gross'. On this issue, the judgments in Veghelyi again provide guidance. In relation to one of the invoices for costs rendered by the respondent solicitor in that case, the amount charged was about 60% more than the amount determined by the taxing officers. Specifically, the solicitor charged $4,143.79, whereas the taxed amount was $2,548.69. It was held by the Legal Profession Disciplinary Tribunal (Law Society of New South Wales v Veghelyi [1991] 7 LPDR 13 at 27) and confirmed by the Court of Appeal (BC950549 at 19) that this constituted `gross' overcharging, having regard to all the circumstances.

81 In other instances discussed in Veghelyi, as also in the facts at issue in Veron (see the judgment at 144-146), the discrepancies between the amounts charged and the amounts assessed were significantly wider. In three interstate cases which we have consulted - Re a Legal Practitioner of the Supreme Court of Western Australia, Unreported, Supreme Court of Western Australia, 12 February 1997 (BC9700434), Franconi v Legal Practitioners Complaints Committee [2001] WASCA 431 and Re Law Society of the Australian Capital Territory and Roche (2002) 171 FLR 138 - rulings of gross overcharging were made where the discrepancies between the amount of costs charged and the amount assessed as fair and reasonable by a taxing officer were either similar to, or wider than, the instance from Veghelyi that we have just outlined. These authorities provide, in our judgment, a sound basis for holding that the charges rendered by the Barrister in his fourth and fifth memoranda in this case constituted `gross' overcharging.

82 In reaching this conclusion, we have taken account of the principal ground - namely, that of devoting grossly excessive amounts of time to the relevant tasks - on which the costs assessor found his charges to be excessive. In this connection, we have reviewed the products of the Barrister's labours in so far as we could. Principally, this has involved a critical reading of the very lengthy memorandum of advice that he prepared.

The specific nature and circumstances of the Barrister's overcharging

83 In Mahoney JA's judgment in Veghelyi, and in the short passage that we have quoted from Kirby P's judgment in Foreman (see [69, 70 above], it is indicated that an important factor to consider in determining whether one or more instances of gross overcharging should be held to constitute professional misconduct is whether the client or clients involved should be characterised as `vulnerable' and, if so, whether or not the practitioner knew or should have known this.

84 In our opinion, the admitted facts outlined above at [45 - 57] demonstrate that Mr and Mrs Flanagan were indeed `vulnerable' during the period when the Barrister performed the tasks for which he claimed costs in the fourth and fifth memoranda, and the Barrister knew or should have known that this was the case.

85 They were `vulnerable', as the Barrister knew or (in our judgment) should have realised, not just in the sense, as described by Mahoney JA, that they were susceptible to undue influence by reason of having little knowledge or means of knowledge regarding the work required to be done and the amount that could fairly be charged for it. They were also `vulnerable' in the more conventional sense that their capacity to deal with the very difficult situation in which they found themselves was unduly weakened by a number of factors.

86 In summary, the Barrister knew, or should have known, that they were `vulnerable', in both senses, in at least the following ways. They had become locked into very lengthy, demanding and expensive litigation. They were given to believe by the Barrister (with no significant dissent from Mr Evers) that the only way in which they could extricate themselves without further financial loss (and with the hope, at least, of success to some degree) was to commit further labour and expense. They were entirely reliant on the Barrister and Mr Evers for professional advice on how best to proceed. Their financial resources were limited. They had no means of foreseeing the ultimate level of the costs that they might be called on to pay to the Barrister, since neither he nor Mr Evers enlightened them on this matter. They and their children had suffered significant personal stress as a result of the failure of the defendants to exercise due care and skill in building a home for them. This stress was sustained, if not enhanced, by the demands placed on them by the litigation. These included the onerous tasks of compiling the revised Scott Schedule and making the necessary preparations for representing themselves at the trial.

87 In support of his contention that, even allowing for these matters, the overcharging in the fourth and fifth memoranda should not be held to constitute professional misconduct, but was unsatisfactory professional conduct only, Mr Williams advanced the following four submissions.

88 First, at the commencement of the Barrister's retainer, Mr and Mrs Flanagan were, to their knowledge, facing a long and expensive battle to achieve any sort of acceptable result in their litigation. Their hope that such a result might be achieved simply and cheaply through mediation was unrealistic.

89 Secondly, they knew, and accepted, that the costs that might arise from the initial work done by the Barrister could be in the vicinity of $20,000. At some time during December 1999, they recorded in their own files a calculation that, by that time, the costs incurred were likely to have risen to about $62,000. Then during February 1999, they paid invoices rendered by the Barrister totalling $91,470 without, so far as he knew, raising any objection. They were, accordingly, fully on notice of, and acquiesced in, the possibility that subsequent invoices rendered by him would be for large sums.

90 Thirdly, the Barrister himself believed, honestly and on reasonable grounds, that the substantial quantity of work for which he charged - having indeed spent on it the number of hours that he claimed to have spent - was necessary in order to bring the case to a stage where, at the trial, Mr and Mrs Flanagan could adequately represent themselves. He did in fact indicate to Mr Evers that he considered it essential to take very great care in this preparatory work, both for their sakes and in order to avert the possibility that he himself might be found guilty of professional negligence.

91 Fourth and finally, Mr Evers - as the costs assessor stated in his determination - was `extremely lax in the manner he briefed counsel'. Furthermore, Mr Evers did not sufficiently convey to the Barrister the significant concerns that Mr and Mrs Flanagan had raised with him, from as early as January 1999, regarding the work being performed by the Barrister or the possibility, which they foresaw, that they might be confronted with an excessive bill for costs.

92 In our opinion, these aspects of the case are important. But they are not sufficient to excuse the Barrister for failing to ensure, particularly on account of Mr and Mrs Flanagan's `vulnerability', that either (a) the amount of work that he did in the lead-up to the trial of their claim was kept within reasonable limits, so that his bill would not be excessive, or (b) that they were advised unambiguously as to the number of hours that he was spending on their claim, in order that they could take whatever steps remained feasible for them to control their liability for costs.

93 Had the Barrister given warnings along these lines to Mr and Mrs Flanagan, they would have been in a position to insist more strongly - as indeed Mr Evers said in his letter of 3 June 1999 that they had already done - that the Barrister should complete the necessary work to a minimal level, or alternatively, should have advised them that it would be best for them to take their chances, even if not fully prepared, in a process such as mediation.

94 Since it had been agreed that he should deal directly with Mr and Mrs Flanagan where necessary, rather than through Mr Evers, it was not appropriate for him to rely on Mr Evers to protect their interests by these means.

95 We also take account of two further factors, both of which were mentioned above at [43]. One is that the best possible outcome achievable in the District Court claim brought by Mr and Mrs Flanagan was an award of $750,000 plus costs. The other is that, as the Barrister himself indicated to them, they were unlikely to obtain a substantial proportion of the damages to which they considered themselves entitled.

96 In the light of these matters, given also that by February 1999 the Barrister had already rendered invoices for more than $90,000, he should in the ensuing months have recognised, and made clear to them, that the level of legal expense to which his work was now committing them - even before they reached the stage of a hearing of the claim - was or would become entirely out of proportion to the amount of damages that, if successful, they were likely to obtain.

97 For all these reasons, our conclusion is that the gross overcharging represented in the fourth and fifth memoranda of costs must, in the particular circumstances of the case, be characterised as professional misconduct.

98 We turn now to consider the question of what order or orders we should make by way of penalty.

The different disciplinary `penalties' considered by the Tribunal

99 The range of orders that the Tribunal may make when it has made a finding of professional misconduct or unsatisfactory professional conduct against a barrister is set out in s 171C(1) of the Act. This subsection provides as follows:-

171C Determinations of Tribunal

(1) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct, the Tribunal may do any one or more of the following:

(a) order that the name of the legal practitioner be removed from the roll of legal practitioners if the legal practitioner is guilty of professional misconduct,

(a1) order that the name of the interstate legal practitioner be removed by the appropriate regulatory authority of another State or a Territory from the roll of that State or Territory that corresponds to the roll of legal practitioners if the interstate legal practitioner is guilty of professional misconduct,

(b) order that the legal practitioner's practising certificate be cancelled,

(c) order that a practising certificate not be issued to the legal practitioner until the end of the period specified in the order,

(c1) order that the appropriate regulatory authority of another State or a Territory cancel the interstate legal practitioner's practising certificate or order that an interstate practising certificate not be issued to the interstate legal practitioner until the end of the period specified in the order,

(d) order that the legal practitioner pay a fine specified in the order, not exceeding $50,000 if the legal practitioner is guilty of professional misconduct or not exceeding $5,000 if the legal practitioner is guilty of unsatisfactory professional conduct,

(e) publicly reprimand the legal practitioner or, if there are special circumstances, privately reprimand the legal practitioner,

(f) order that the legal practitioner undertake and complete a course of further legal education specified in the order,

(f1) in the case of a barrister who is a public notary, order that the barrister cease to accept instructions in relation to notarial services,...

(g1) in the case of a locally registered foreign lawyer, order that the registration of the foreign lawyer under Part 3C be cancelled,

Note. This section applies to locally registered foreign lawyers. See section 48ZV.

(h) if applicable, make a compensation order,

(i) make ancillary orders.

100 On 19 August 2003, at the commencement of her submission on penalty, Ms Anderson, who by then had taken over from Mr Williams as counsel for the Barrister, informed us that the Barrister had not renewed his practising certificate as a barrister since its expiry on 30 June 2003.

101 Ms Anderson further indicated that he now undertook to the Tribunal that he would never again seek to obtain a practising certificate, either as a barrister (under s 27 of the Act) or `as a solicitor'. In fact, the Act provides in s 28 that the form of certificate issued to a legal practitioner who wishes to practise as a solicitor is one authorising practice `as a solicitor and barrister'. It is clear from Ms Anderson's statement that her client's undertaking extends to both forms of certificate.

102 Ms Anderson submitted that, in view of the lapse of the Barrister's practising certificate and his undertaking never to seek another certificate, it was not necessary, once the undertaking was accepted by the Tribunal, for it to order that he be removed from the roll under s 171C(1)(a). Instead, she argued, the professional and public interest in the integrity of the legal profession would be sufficiently protected if we ordered, under s 171C(1)(e), that he be reprimanded.

103 In Mr Menzies' submission, acceptance of the Barrister's undertaking, even if coupled with a reprimand, would not sufficiently demonstrate to the profession and the public the seriousness of the Barrister's misconduct. He argued that we were bound, in the circumstances, to order removal from the roll.

104 Mr Menzies also indicated that the Bar Association sought an order for costs. Ms Anderson's response was that, if such an order were made it would be tantamount to `an extremely large fine', seeing that senior counsel had been retained. This would constitute a further reason for ruling that a reprimand, rather than removal from the roll, was a sufficient order by way of penalty.

105 Near the conclusion of submissions on penalty, we sought comments from both counsel regarding a further possible form of order, namely, an order under s 171C(1)(c) that a practising certificate should not be issued to the Barrister until the end of a specified period. We indicated that while, in view of his undertaking, the practical impact of such an order would be insignificant, the order would indicate in a public fashion our view of the level of misconduct in which the Barrister had engaged.

106 Mr Menzies indicated, after taking brief instructions, that such an order would be `a fallback position' so far as his client was concerned. But he still pressed for removal from the roll. Ms Anderson said, understandably, that her client would obviously prefer such an order to removal.

Further evidence relevant to penalty

107 In arguing for an order under s 171C(1)(a) removing the Barrister from the roll, Mr Menzies placed significant weight on three components of the evidence in this case that have not yet been outlined in this judgment (and were not mentioned in the two judgments that we gave in the course of the hearing).

108 First, entries that the Barrister made in his business diaries during the period of his retainer, together with his income tax return for the tax year 1998-99, suggested that during the period of the retainer the Barrister did not have significant professional commitments other than his work pursuant to the retainer.

109 Secondly, his pocket diaries during the period of the retainer contained notations of various money amounts on the days on which, according to his memoranda of costs, he did this work. The individual amounts entered in the diaries were significantly less than those entered for the same days in the memoranda of costs. An example put to the Barrister in cross-examination is that for the work that he did on 24 February 1999 the entry in the fourth memorandum of costs was $1,750, whereas the entry in the pocket diary was only $600.

110 In cross-examination, the Barrister described the diary entries as his record of what he believed he would ultimately receive by way of remuneration. He said that at the time he recognised that, due to the large scale of the tasks that he was undertaking (notably, the task of providing a sufficiently comprehensive advice on law and evidence to enable Mr and Mrs Flanagan to represent themselves at the trial), his fees `would, in all probability, have to be compromised at a later time'. He believed, he said, that `ultimately in the wash-up there would have to be a substantial reduction' and that in fact he would have been prepared to accept a sum in the vicinity of $60,000 - $70,000 in lieu of the amount of about $150,000 that he actually charged.

111 Mr Menzies put it to the Barrister that, notwithstanding his expectation that he would have to accept a reduced amount by way of compromise, he would have accepted the full amount that he charged if it had been paid without objection. The Barrister conceded this, but added that he knew all along that there would have to be a compromise.

112 Thirdly, there was correspondence between the Barrister and Mr Evers following the Barrister's rendering to Mr Evers, on 24 June 1999, of the fourth memorandum of costs. This was for $150,316.05 (the fifth memorandum simply added a couple of items, bringing the total to $151,441.05). The relevant aspects of this correspondence are as follows.

113 The affidavit of Mr Evers, who did not give oral evidence, does not refer to any immediate response on his part when he received the fourth memorandum.

114 In a letter dated 29 July 1999 to Mr Evers, which enclosed the fifth memorandum of costs and also dealt with other aspects of Mr and Mrs Flanagan's case, the Barrister wrote as follows:-

As fees have been outstanding since 24 June 1999, covering the period 24 February 1999 up to and including 23 June 1999, I formerly (sic) advise my instructing solicitors that my retainer in this matter will be suspended indefinitely, pending the payment of outstanding fees.

In short, it is with regret that I advise my instructing solicitors that I shall carry out no further work in relation to this matter until such time as outstanding fees have been paid.

115 In a postscript to this letter, dated 30 July 1999, he reiterated that his involvement in the case was suspended, specifying 12 noon on 29 July as the time when this occurred. This postscript was preceded by two headings: `Formal Notice Suspending Work Pursuant to Fee Agreement' and `Protection in Relation to Professional Indemnity Insurance'.

116 On 9 August 1999, the Barrister sent a fax to Mr Evers, referring to a letter from Mr Evers dated 28 July (which is not in evidence), asking for an urgent conference regarding fees and threatening to return the brief on 23 August if all outstanding fees were not paid by that day.

117 On 18 August, the Barrister wrote to Mr Evers enclosing a `Memorandum of Advice' purporting to `confirm' his `recollection' of a five-minute consultation with Mr Evers on 13 August. In the course of a review of what had occurred during his retainer, he wrote that he had informed Mr Evers at that consultation that he would not `come back into this case' unless (a) outstanding fees were paid and (b) sufficient funds were placed in Mr Evers' trust account to cover `the detailed preparation of the case for hearing' and `the cost of the trial'. As mentioned earlier, the trial had been fixed to commence on 15 November, with an estimated duration of three weeks. The Barrister said also that he had told Mr Evers that if the fees were not paid by 23 August, `his further involvement in this case would be unilaterally terminated, without further notice'.

118 In the final paragraph of this `Memorandum of Advice', the Barrister wrote that it should be read `in conjunction with my Letter of Demand addressed to my instructing solicitors and dated 17 August 1999'. This letter was not in evidence in these proceedings.

119 In a strongly worded letter dated 19 August 1999 to the Barrister, Mr Evers wrote that he had been `shocked' to receive the letter of demand and memorandum of advice following his `diplomatic approach' on 13 August. He set out a number of reasons why the total amount demanded by the Barrister should not be paid, including that the lengthy opinion written and charged for by the Barrister did not adequately serve the required purposes and that Mr and Mrs Flanagan had been anxious to keep costs to a minimum. He concluded by saying that he would refer the disputed memoranda of costs to an appropriate authority for assessment and that the amount assessed would be paid by his firm to the Barrister, in the absence of payment by Mr and Mrs Flanagan.

120 On or about 19 August 1999, Mr Evers gave a copy of the Barrister's fourth memorandum to Mr and Mrs Flanagan. According to Mrs Flanagan's affidavit in these proceedings, Mr Evers said to them: `This is not going to get paid. It will have to be assessed.'

121 In a letter to Mr Evers dated 20 August 1999, relating to the outstanding fees, the Barrister suggested that `we have an urgent conference, to see if we are able to settle this matter'. He added that if it could not be settled, we will have to revert to our respective positions and take the appropriate action'. He enclosed a second `Memorandum of Advice', comprising 46 pages of double-spaced text, explaining why in his view the work that he had done was in conformity with his retainer and justified in the circumstances. He indicated that he would have no objection to a copy of the Memorandum of Advice being supplied to Mr and Mrs Flanagan.

122 In the concluding paragraphs of the Memorandum, the Barrister repeated his suggestion of an urgent conference, to settle the issue of outstanding fees. He added that he would be prepared to act in the forthcoming mediation, fixed for 20 September, and/or the trial, fixed to commence on 15 November, if this issue could be satisfactorily resolved and arrangements made for payment of the further fees that would be incurred.

123 On 6 September, the Barrister wrote to Mr Evers suggesting a `timetable' for the payment of the outstanding fees by Mr and Mrs Flanagan by instalments. He proposed initial payments of $10,000 for disbursements and $50,000 on account of costs by 20 September, a further payment of $50,000 by 15 October and payment of the balance of $40,441.05 by 1 November 1999.

124 A single-page file note tendered by the Barrister purported to record a 30-minute conference with Mr Evers on 23 September 1999, in which, it would appear, `an off the record settlement of say $60,000 to $70,000' was proposed, presumably by the Barrister. This `off the record conference' was referred to by the Barrister in a short letter to Mr Evers dated 28 September.

125 In a letter dated 12 October 1999 to Mr Evers, the Barrister indicated that he was `prepared to compromise in order that a quick settlement can be achieved' in relation to the outstanding fees. He asked Mr Evers to telephone him to arrange negotiations.

126 On 8 November 1999, the Barrister applied to the Supreme Court for assessment of the fourth and fifth memoranda of costs. On the same day, he wrote in yet another Memorandum of Advice that he was still prepared to enter into settlement negotiations, even though he had made this application.

The Bar Association's submissions on penalty

127 Mr Menzies contended that the evidence just outlined demonstrated three important matters, which provided significant support for his claim that the Barrister should be removed from the roll. These are as follows.

128 First, the Barrister was evidently filling in his working days performing tasks for Mr and Mrs Flanagan because he had virtually no other professional commitments. He was consciously enlarging the scale of the work required by his retainer.

129 Secondly, the Barrister admitted that he would have accepted the full amount charged if it had in fact been paid without objection. Moreover, as he made the diary entries, noting smaller amounts for the day's work in expectation of having to compromise eventually, he was conscious each day of his intention to charge in the first instance fees which might not be at all justifiable.

130 Thirdly, despite this claim that all along he anticipated and was prepared to accept a reduced amount by way of compromise, his initial stance in his correspondence with Mr Evers regarding the fees was an aggressive one. He said that unless they were paid in full within a stipulated period, he would withdraw from the case. He did in fact purport to withdraw, in his `postscript' dated 30 July 1999. He made further threats to withdraw on 9 and 18 August. It was only after Mr Evers' letter to him dated 19 August, in which Mr Evers vigorously disputed the amount of the costs and threatened to refer them to an assessor, that the Barrister suggested, in his reply of 20 August, that they have an `urgent conference' to discuss a compromise. In his letter of 6 September, he still required full payment, though he suggested that it could be by instalments. It was not until 23 September that a compromise figure of $60,000 - $70,000 was mentioned.

131 In the light of this evidence, Mr Menzies submitted that the Barrister exhibited no genuine contrition regarding his conduct. Any apparent contrition, he said, `rings hollow in the circumstances where, had he been able to get away with it, he would have continued to charge and claim what he claimed'. Furthermore, there was no admission by the Barrister as to the facts, let alone culpability (except on the lesser charge of unsatisfactory professional conduct), until late in the present hearing.

132 A basic proposition urged by Mr Menzies was that the scale of overcharging was `egregious' and `intolerable'. The fact that it resulted chiefly from overservicing rather than charging an excessive rate for each hour or day worked did not diminish the seriousness of the Barrister's conduct, since he was, in effect, `turning this case into a job'. Furthermore, the total amount ultimately charged, exceeding $150,000, was grossly out of proportion to the scale of Mr and Mrs Flanagan's claim.

133 In contrast to the situation in Veghelyi (Veghelyi v. The Law Society of New South Wales, Unreported, Court of Appeal, NSW, 6 October 1995 (BC950549)), where numerous clients were subjected to overcharging, it was only in one matter that the Barrister engaged in such conduct. But in Mr Menzies' submission, the repeated overcharging of Mr and Mrs Flanagan on virtually a daily basis was `equivalent' to the overcharging of a number of clients.

134 In all these circumstances, Mr Menzies submitted, it was insufficient for the Tribunal merely to accept an undertaking not to practise. Only an order striking the Barrister off the roll would serve `the very powerful public interest in general deterrence'. His response to some specific arguments of Ms Anderson, noted below, as to why on grounds of sympathy we should refrain from this severe measure was that such considerations should not be allowed to prevail where the Tribunal's duty to make an order for removal was clearly established.

The Barrister's submissions on penalty

135 Ms Anderson advanced a number of reasons why acceptance of the Barrister's undertaking not to seek a future practising certificate, coupled with a reprimand or, as suggested by us, an order suspending his practising certificate, was entirely sufficient to serve the professional and public interests involved.

136 She placed reliance, in this context, on some further observations of Mahoney JA in Veghelyi. Near the beginning of his judgment, at 2, his Honour made some critical comments on the length of time - nearly four years - that had elapsed between the orders made by the Legal Profession Disciplinary Tribunal and the hearing in the Court of Appeal. He then noted that the Law Society had satisfied itself that because Mr Veghelyi, the solicitor charged, was no longer practising the determination of his final position was less urgent than it otherwise would have been. Mahoney JA then added that `if he was a person not fit to be a solicitor, the position of the public was protected by his undertaking not to practise'.

137 Referring again to Veghelyi, Ms Anderson submitted that the present case involved much less serious misconduct, since it occurred on only one occasion. Moreover, in considering the scale of overcharging, it should be borne in mind that the costs assessor took account of the costs invoiced in the first three memoranda, totalling $91,470. In the absence of any finding by him that these were excessive, the true picture was therefore that the Barrister charged about $240,000 when he should, when the assessor's determination is taken into account, have charged about $120,000. On this basis, the Barrister charged twice, not nearly five times, what was fair and reasonable. This scale of overcharging was distinctly less than anything characterised as `gross' in Veghelyi.

138 In Ms Anderson's submission, the overcharging occurred because, in grappling with Mr and Mrs Flanagan's difficult situation, the Barrister became unduly obsessive. He also became unduly concerned about the prospect that, if he did not discharge his brief thoroughly, he might be liable in professional negligence. In these ways, he `lost the plot'.

139 It was not, moreover, a case of charging clients for work that had not been done, but of spending, through a clear error of judgment, an excessive period of time performing the required tasks. Furthermore, Mr Evers had been, in the words of the costs assessor, `extremely lax' in the manner in which he briefed the Barrister. This compounded the difficulties that the Barrister faced.

140 Ms Anderson sought to dispel any inference of dishonesty or deviousness arising from the evidence contained in the diaries or the tax return. She claimed that the Barrister's recording of the fees that, for each day's work, he expected to be able to obtain ultimately through a compromise was entirely in accordance with a common recognition that barristers do not always receive the full amount of the fees that they charge.

141 She disputed also Mr Menzies' contention that the entries in the pocket diary were sufficient to rebut any claim that the Barrister showed contrition. There were, she submitted, a number of other clear indications that the Barrister acknowledged, and was very sorry for, the deficiencies in his conduct. He had said this clearly in an affidavit filed in these proceedings. More importantly, he had elected, even before he finally conceded the factual allegations, not to subject Mr and Mrs Flanagan to cross-examination on the affidavits that they had filed, on account of concern for the distress to which this would expose them.

142 Ms Anderson indicated that the Barrister had been in practice for some 30 years and that during this time he had been found guilty of only one professional misdemeanour. This occurred in 1982 and took the form of speaking to a witness who was under cross-examination. The penalty was a fine.

143 She relied also on three positive character references annexed to the Barrister's affidavit. They were from Mr Bruce Stratton QC and from Mr Peter Dwyer and Mr Glen Miller of Counsel. Each of these referees stated that they were aware of the charge laid and proved in 1982 and of the nature of the present informations. They all said that they believed the Barrister to be of good fame and character. Mr Dwyer and Mr Miller said that, according to their assessment of him, the matters alleged in the informations would not have occurred by virtue of dishonesty or deviousness on his part.

144 Ms Anderson drew attention to some unhappy aspects of the Barrister's early life, upbringing and present circumstances, the nature of which was set out in his affidavit. She emphasised that, seeing that he was relinquishing practice in any event after 30 years of professional life, an order removing him from the roll would be highly distressful for him. It would be all the more distressful because his daughter was currently studying law with a view to practice.

145 On these grounds, Ms Anderson submitted that an order removing the Barrister from the roll would be excessively severe and hurtful to him having regard to the level of misconduct in which he had engaged, and was not necessary to protect professional and public interests in the light of his undertaking to relinquish legal practice.

Our conclusions on penalty

146 As indicated above at [74], Mr Menzies submitted that the Tribunal could conclude that the Barrister's conduct in relation to the fourth and fifth memoranda of costs amounted to professional misconduct without having made a finding that he was guilty of `dishonourable' or `disgraceful' conduct, as defined in authorities such as Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. But he argued that, in view particularly of the Barrister's knowledge of Mr and Mrs Flanagan's `vulnerability' (in both the senses that we have outlined), the Tribunal should in fact make such a finding.

147 When the evidence that we have just outlined is taken into account, this submission should in our view be accepted. What this evidence shows is that, from an early stage, the Barrister was conscious of the fact that he was devoting such a large amount of time to his work for Mr and Mrs Flanagan that his charges, if calculated at his hourly rate of $250, were highly likely to be excessive. Yet in his correspondence with Mr Evers, the stance that he adopted for nearly two months after he rendered the fourth memorandum of costs was, in the ways that we have outlined at [112 - 124] above, most aggressive. It was not until 23 September - three months after this memorandum - that he actually suggested a significantly reduced figure by way of compromise.

148 Even allowing for delays on Mr Evers's part in responding to the Barrister's communications, we believe that it was `dishonourable' and `disgraceful' on the Barrister's part to maintain over several weeks this demand for full payment of a grossly excessive amount by way of costs. The same epithets apply to his threats to cease acting for Mr and Mrs Flanagan - whom he knew or ought to have known to be under extreme pressure - unless within a short period of time they, or their solicitor, complied with his demand. He made these threats when he knew, or should have known, that they were likely to believe that a newly briefed barrister would have insufficient time to prepare to represent them adequately at the forthcoming mediation or, if it failed, at the forthcoming trial.

149 We agree also with Mr Menzies' characterisation of the level of overcharging as `egregious' and `intolerable'. We do not accept Ms Anderson's argument that the costs assessor implicitly held the costs charged in the first three memoranda - totalling $91,470 - to have been fair and reasonable, and that therefore, seen overall, the Barrister should be treated as having charged Mr and Mrs Flanagan twice, not nearly five times, a fair and reasonable amount for his services. The reason why we reject this argument is that the cost assessor was not asked to determine the reasonableness of the costs charged in the first three memoranda. He did not have before him the material on which he could do so. The level of the Barrister's overcharging must be assessed, as Count 2 alleges, by reference to the fourth and fifth memoranda only.

150 We also agree with Mr Menzies's submission regarding contrition, to the extent that it drew attention to the lateness of the Barrister's acknowledgment that his behaviour had been improper.

151 We have given careful consideration to whether, in the light of these conclusions, we should accede to Mr Menzies' argument that, even allowing for the effect of the Barrister's undertaking never to seek a practising certificate and the power that we have to declare that he should in any event be prohibited from applying for one for a specified period, the only proper order is one removing him from the roll.

152 In this context, we are conscious of the consideration, recently emphasised by the Court of Appeal in New South Wales Bar Association v Cummins [2001] NSWCA 284, that decisions of the Court, and by extension this Tribunal, in cases of improper conduct by lawyers play an important role in assuring the public that high standards of professional integrity are and must continue to be maintained by lawyers. We also acknowledge the force of Mr Menzies' contention that, in appropriate cases, practitioners who are found guilty of professional misconduct should be removed from the roll in order to deter others from engaging in similar behaviour.

153 With reference specifically to the difference between removal from the roll and suspension from practice, and to the significance in these circumstances of acceptance of a practitioner's undertaking not to practise in the future, we have obtained useful guidance from three interstate cases that were not cited to us at the hearing. In each of them, it is emphasised that, in cases of serious professional misconduct, lesser measures such as these may not serve all the purposes that are served by an order of removal.

154 In the case of In re a Practitioner (1984) 36 SASR 590, the practitioner, over three and a half years, persistently misappropriated trust funds for his own benefit, thereby defrauding his partners. Although ultimately there was no loss either to his partners or to clients, the Supreme Court of South Australia held that suspension was an inadequate response. At 593, King CJ explained this as follows:-

The proper use of suspension is, in my opinion, for those cases in which a legal practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner.

155 In Re Maraj (a Legal Practitioner) (1995) 15 WAR 12, the practitioner had failed on four separate occasions, despite numerous requests, to account in due time for moneys owing to a client. In one of these cases, he had given a false and misleading explanation. On two previous occasions, he had been found guilty of unprofessional conduct pursuant to complaints alleging similar behaviour. The Supreme Court of Western Australia held that suspension for two years coupled with acceptance of an undertaking not to return to private practice was an insufficient penalty and that he should instead be removed from the roll.

156 At 24, Malcolm CJ, with whom Kennedy and Franklyn JJ agreed, observed as follows:-

...in order to protect the public and the reputation of the profession the consequences for the practitioner may need to be more severe than if the only object of the proceedings were punishment.

157 At 25, Malcolm CJ stated that when it must be determined whether a practitioner guilty of misconduct should be struck off, `the only question is whether the practitioner is a fit and proper person to remain a member of the legal profession'. If in such a case, he said, the practitioner is not struck off, this `would constitute a failure both to protect the public and to protect and maintain the reputation of the profession'.

158 In Law Society of South Australia v Murphy [1999] SASC 83, a practitioner was found to have been guilty of unprofessional conduct in the course of acting in thirteen matters. He paid his own fees from his trust account, he repeatedly failed to answer queries, he neglected to take action as instructed, he failed to reply to requests from the Legal Practitioners Conduct Committee for an explanation of his actions, he failed to account adequately to a client and he overcharged a client to the extent of about $10,000. During part of the relevant period and at the time of the hearing, he suffered from depression. He offered an unqualified undertaking never to practise again. The Court held, however, that he should be removed from the roll of practitioners.

159 In a judgment with which Millhouse and Prior JJ agreed, Doyle CJ stated that this conclusion was based on a finding by the Court that the practitioner was not a fit and proper person to practise law. In so finding, the Court took account of both the practitioner's past unprofessional conduct over a substantial period of time and his current depressive illness. Doyle CJ explained this as follows:-

[35]... I cannot say that the conduct that is not attributable to the depression would itself, if it stood alone, warrant removing the name of the practitioner from the Roll. But the depression to which some of the conduct is attributable itself indicates that the practitioner is not presently fit to practise, and that there is no reason to think that that condition will be of short duration.

[36] In combination, the lack of any excuse for part of the conduct, and the fact that the explanation for the balance is a condition that makes the practitioner medically unfit to practise, and likely to remains so for some time, in my opinion lead to the conclusion that the practitioner's name should be removed from the Roll.

160 In discussing the alternative measure of accepting an undertaking never to practise again, Doyle CJ made the following observations:-

[30]... In considering whether to accept the undertaking the Court does not consider whether Mr Murphy's wrongdoing is adequately acknowledged by accepting an undertaking from him that will almost certainly ensure that, unless the Court releases him from the undertaking, he causes the public no harm. Nor does the Court consider whether the acceptance of the undertaking will be a sufficient punishment for Mr Murphy. Nor is there much scope for considering extenuating circumstances, or the showing of mercy, as the Court might if the power of the Court were exercised by way of punishment.

[31] The issue for the Court is whether, in view of the admitted conduct, Mr Murphy is fit to remain a member of the legal profession, If his conduct demonstrates that he is not, in my opinion the ordinary course must be an order that his name be removed from the Roll, even if something less would be an adequate punishment for him or even if something less is likely to ensure that he would not be able to practise as a practitioner....

[33] The Court has also to consider the maintenance of public confidence in the profession, and must ensure that only those who have observed the required standards are permitted to remain members of the legal profession.

[34] By allowing a practitioner to remain on the Roll of Practitioners, the Court holds the practitioner out as a fit and proper person to practise. There is a certain incongruity in allowing a practitioner to remain on the Roll even though it has been demonstrated that the practitioner is not a fit and proper person to remain a practitioner...

[37] In my opinion, acceptance of the undertaking would not adequately reflect the significance of the conduct of the practitioner and the significance of his present condition.

[38] As well, acceptance of the undertaking would mean that should Mr Murphy seek at some later time to obtain a Practising Certificate, he would not face the hurdle of establishing that he is fit to be a practitioner, but the lesser hurdle of satisfying the Court that he should be released from his undertaking.

[39] Finally, although this is of lesser weight, if the undertaking were broken, it would be necessary to allege and prove the breach, and then to move the removal of Mr Murphy's name from the Roll on the basis of that further breach.

[40] I accept that there may be cases in which it would be appropriate for this Court to accept an undertaking of the type proffered. But this is not such a case.

161 The principle stated in these authorities that we consider to be of particular importance in these proceedings is as follows. Even if acceptance of an undertaking such as the Barrister is prepared to make sufficiently protects the public from the possibility of further misconduct on his part, this is not a sufficient measure, even if coupled with suspension for a specified period, if he has in fact shown himself not to be a fit and proper person to remain a member of the profession. It is not sufficient because it will not adequately protect the reputation of the profession and maintain public confidence in the profession.

162 We have given careful and anxious consideration to the present case. Our conclusion is that it has been sufficiently established that the Barrister's behaviour shows him to be unfit to remain a member of the legal profession. In our judgment, any lesser penalty would convey to the public a message that the standards of conduct required of members of the legal profession are insufficient to provide adequate protection to clients. The outcome, particularly if similar penalties were imposed in other like cases, would be to lower public confidence in the profession.

163 On the Barrister's behalf, the most telling submission by Ms Anderson was that, in contrast to the facts in Veghelyi and, indeed, in the authorities that we have just outlined, the misconduct found against him occurred in the course of one retainer only. We do not agree with Mr Menzies' contention that the repeated overcharging of Mr and Mrs Flanagan on virtually a daily basis was `equivalent' to the overcharging of a number of clients over a significant period of time. In Ms Anderson's submission, what occurred was that the Barrister failed to respond satisfactorily to the challenges of a single brief, which raised particular difficulties and was, moreover, not properly defined or supervised by his instructing solicitor. In consequence, he developed an obsessive concern to attend meticulously to every detail of the issues raised, with the consequence that he devoted a grossly inordinate amount of time to the brief.

164 It cannot be the case, however, that misconduct on a single occasion only, or in the context of a single retainer, can never provide sufficient grounds for removal from the roll. In Legal Practitioners Conduct Board v Hannaford [2002] SASC 260; (2002) 83 SASR 277, for instance, a practitioner was struck off on the ground that he received money on account of costs from a client who was facing a charge of murder, he paid this money into his office account, not a trust account, and he then applied for and obtained legal aid to pay his costs of defending the client. There was no evidence of prior misconduct, but the Supreme Court of South Australia nonetheless held him to be unfit to remain in practice and ordered that he be removed from the roll.

165 A number of factors impel us to our conclusion that the Barrister is not fit to remain in legal practice. The principal ones are these. He was aware all along - and indeed made diary notes which recorded his awareness - that he might in due course have to accept a lesser figure than he charged in his fourth and fifth memoranda of costs. The amount charged was very substantial indeed - more than $150,000 - particularly for lay clients whom he knew to be in financial difficulties and who were unlikely to obtain in their litigation a sufficient amount to make such an outlay worthwhile, even if they were successful. But the Barrister continued nonetheless to demand full payment over a period of nearly three months in a distinctly aggressive manner. He accompanied some of his demands for payment with threats to cease acting for Mr and Mrs Flanagan in the impending proceedings - that is, in the mediation and, if it proved necessary, the trial - if his costs were not paid in full and further funds made available to cover his future costs. The latest of these threats was made on 18 August 1999, when the mediation was only a little more than a month away. He did not try to shield Mr and Mrs Flanagan from knowing what he required: in fact, in his letter of 20 August 1999, he suggested that they might be given a copy of his Memorandum of Advice of that date. He was fully aware that his demands for full payment and his accompanying threats were capable of enhancing substantially the very heavy pressure to which Mr and Mrs Flanagan were already subject. Finally, he conceded in the present proceedings that if they had yielded to this pressure and paid the full account, he would have accepted their payment.

166 As it turned out, Mr Evers, when giving the memoranda of costs to Mr and Mrs Flanagan on 20 August 1999, relieved some of the pressure on them by saying that the costs would not have to be paid in full, but would be assessed. The Barrister, however, was not in a position to know that Mr Evers would advise them to this effect, and could not legitimately rely on his doing so.

167 The nature of this misconduct sets the present case apart from all of the above-mentioned cases in which practitioners have been found guilty of professional misconduct on the ground that they engaged in gross overcharging. The common pattern in these cases was that a practitioner received funds on behalf of a client under an award of damages or the settlement of a dispute, then in accounting to the client paid an excessive amount to himself by way of costs. There was nothing to suggest that the clients were `vulnerable', in the popular sense, as they had in fact been successful at a trial or in achieving a settlement of their claim.

168 This was the pattern of overcharging, for instance, in Evatt v New South Wales Bar Association [1968] HCA 20; (1968) 117 CLR 177; Franconi v Legal Practitioners Complaints Committee [2001] WASCA 431; Re Law Society of the Australian Capital Territory and Roche (2002) 171 FLR 138; Re a Legal Practitioner of the Supreme Court of Western Australia, Unreported, Supreme Court of Western Australia, 12 February 1997 (BC9700434); Veghelyi v. The Law Society of New South Wales, Unreported, Court of Appeal, NSW, 6 October 1995 (BC950549); and Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN (Pt 1) (NSW) 136. In three of these six cases - Franconi v Legal Practitioners Complaints Committee, Re Law Society of the Australian Capital Territory and Roche and Re a Legal Practitioner of the Supreme Court of Western Australia - the practitioner was not struck off, but suffered a suspension, with or without a fine. In the second and third of these three cases, this lesser penalty (compared with removal from the roll) was imposed even though the overcharging occurred on several occasions. But in none of this group of six cases was the overcharging found to have been accompanied by conduct, such as occurred in the present case, amounting to exploitation of the weakness of lay clients in a distinctly vulnerable position.

169 We have given consideration to three further matters relied on by Ms Anderson. One is the Barrister's long period in practice - some 30 years - with only one prior misdemeanour, which was of a very different nature to what we are dealing with here. In this context, we note however a comment of Doyle CJ in Law Society of South Australia v Murphy [1999] SASC 83, at [20]. This is to the effect that a practitioner who is no longer immature should adhere to the standards that can legitimately be expected of a mature person. The second matter is that the Barrister expressed contrition in his affidavit in these proceedings and he chose not to subject Mr and Mrs Flanagan to cross-examination. Thirdly, three professional colleagues testified as to his good character and repute.

170 We have noted two other matters raised by Ms Anderson: namely, some specific reasons why removal from the roll would be particularly distressful for the Barrister, and some aspects of his personal background. We must agree with the submission of Mr Menzies, however, that such considerations should not be allowed to prevail if our duty to order removal is clearly established. This submission receives support from the judgment of Doyle CJ in Murphy, at [30] (quoted above at [160]).

171 Being satisfied that the Barrister is guilty of professional misconduct, we declare to this effect. On this basis, we make two orders.

172 We order under s 171(1)C(a) of the Legal Profession Act 1987 that the name of the Barrister be removed from the roll of legal practitioners.

173 We order under s 171E of the Legal Profession Act 1987 that the Barrister pay the Bar Association's costs of these proceedings.