Santisi v New South Wales Bar Association (No 3) [2006] NSWADT 4 (9 January 2006)

Last Updated: 23 January 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL LEGAL SERVICES DIVISION

CITATION: Santisi v New South Wales Bar Association (No 3) [2006] NSWADT 4


PARTIES: APPLICANT
Frank Santisi
RESPONDENT
The Council of the New South Wales Bar Association



FILE NUMBERS: 042014
052005

HEARING DATES: 18/11/05

SUBMISSIONS CLOSED: 18/11/2005



DECISION DATE: 09/01/2006

BEFORE: Officer D QC - Judicial MemberNorton S SC - Judicial MemberQuayle C - Non Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Legal Profession Act 1987

CASES CITED: NSW Bar Association v Jobson [2002] NSWADT 171

APPLICATION: Unsatisfactory Professional Conduct - failure to notify Legal Aid Commission
Unsatisfactory Professional Conduct - failure to provide costs disclosure
Unsatisfactory Professional Conduct - receiving money on behalf of another

MATTER FOR DECISION: Penalty


APPLICANT REPRESENTATIVE: APPLICANT
P Brereton, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT
G Craddock, barrister

ORDERS: 1. The Barrister is publicly reprimanded
2. The Barrister is to undertake the modules described as Engagement, Management and Maximising Costs Recover and Risk Awareness, conducted by LawCover as part of its Risk Management Education Program, at the available session
3. The Barrister pay the Informant’s costs as agreed or taxed.


Reasons for Decision:

REASONS FOR DECISION

Background

1 By an Information filed on 26 March 2004, in proceedings No 042014, there were two grounds specified, it being alleged in that Information that the barrister had been guilty of unsatisfactory professional conduct.

2 By a letter written by the Tribunal's Registry to the solicitor for the New South Wales Bar Association, it was indicated that the Tribunal, in such cases, would follow its policy of preserving the anonymity of the barrister and that in such cases hearings were held in accordance with s.170 of the Legal Profession Act 1987, the detail of which is set out below.

3 Subsequently, by Information filed on 2 March 2005, in proceedings No 052005, two grounds were alleged against the barrister; one involving conduct alleged to be in breach of s.38P of the Legal Profession Act 1987 and that conduct being alleged to be either unsatisfactory professional conduct or professional misconduct.

4 The said two Informations were heard together, with evidence in one being evidence in the other and this was done pursuant to an order made by this Tribunal on 16 March 2005.

5 One hearing was held in relation to both Informations, on 20 and 21 June 2005. The question of whether the hearing was to be in the presence or absence of the public was not further addressed or alluded to. At the conclusion of the hearing there was some very brief mention of the form of the judgment and whether it would reveal the barrister's name or maintain his anonymity.

6 The Tribunal delivered its decision on 8 July 2005 and concluded that the barrister was guilty of unsatisfactory professional conduct on three of the grounds alleged.

7 The matters were then listed for a hearing as to what consequences ought to follow from the Tribunal's findings. As foreshadowed by the solicitors for the Bar Association, when the matter came on for hearing, the Association sought that the proceedings be heard in public, that the barrister's name be published, not only in these Reasons, but also in the Tribunal's Reasons for Decision dated 8 July 2005. Mr Craddock, on behalf of the barrister, opposed each of those courses.

Hearing in the presence or absence of the Public

8 Section 170 of the Legal Profession Act 1987 provides:

170 Certain hearings to be held in private
(1) The Tribunal is to direct that a hearing (or part of a hearing) relating only to a question of unsatisfactory professional conduct be held in the absence of the public unless it is of the opinion that the presence of the public is in the public interest or in the interests of justice.
(2) Nothing in this section affects the generality of section 75 (Proceedings on hearing to be conducted in public) of the Administrative Decisions Tribunal Act 1997 in relation to hearings other than those referred to in subsection (1).

9 Section 75 of the Administrative Decisions Tribunal Act 1997 provides:

75 Proceedings on hearing to be conducted in public
(1)If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.
(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence of matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order that the hearing be conducted wholly or partly in private;
(b) an order prohibiting or restricting:
(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or
(ii) the doing of any other thing that identifies or may lead to the identification of, any such person, ...

10 Mr Brereton, on behalf of the Bar Association, submitted that s.170 and the Tribunal's power to direct that a hearing be held in the absence of the public, only applied where the hearing related solely to a question of unsatisfactory professional conduct. In the present case, Mr Brereton submitted, the original hearing related to two Informations, one of which alleged, in the alternative, professional misconduct. Accordingly, that hearing either was or ought to have been open to the public and any express or implicit direction given by the Tribunal under s.170 to the contrary, ought be discharged or vacated.

11 He submitted that there was no justification, as a matter of construction of s.170, to differentiate between a hearing on liability and a hearing on penalty and that, as the original hearing concerned both unsatisfactory professional conduct and professional misconduct, and was, or ought to have been open to the public, so also, he submitted, should the present hearing. This was so, he submitted, notwithstanding that the Tribunal had found, in its decision of 8 July 2005, that the barrister was guilty of unsatisfactory professional conduct, and not professional misconduct.

12 Mr Brereton submitted that s.170 relates only to the hearing and not to the publication of the Tribunal's decision and he drew attention to the Tribunal's powers under s.170C of the Legal Profession Act 1987 to not only order that the legal practitioner pay a fine (subsection (d)) but to publicly reprimand the legal practitioner, or to order that he undertake and complete a course of further legal education. He submitted that such orders, in the case of unsatisfactory professional conduct, could be inconsistent with an anonymised Reason for Decision, particularly in circumstances where the Tribunal, under subsection (3) is required to publish the order and a statement of its reasons for making the order to publicly reprimand a legal practitioner. Mr Brereton also drew attention to the obligations of the Bar Council and the Commissioner, under ss.171LB and 171LC in relation to the name and identifying particulars of a person and disciplinary action taken against them, disciplinary action being defined to include a public reprimand. He submitted that there ought be no continuation of the anonymised initials, that the Tribunal's website should in the future reflect Mr Santisi's name and that the judgment should, as from today, refer to him by name and be linked back to the judgment previously given on 8 July 2005.

13 Mr Craddock submitted that as in the past these proceedings ought be held in private and that the Tribunal then ought to consider whether or not a public reprimand was warranted. He submitted that s.170 involved the balancing of interests and that it refers, without distinction, to hearings both on liability and penalty. He submitted that this hearing related only to a question of unsatisfactory professional conduct; such was the finding made by this Tribunal. He submitted that there was no public interest in the proceedings over and above an ordinary case and that if a private reprimand were decided upon by this Tribunal then it would defeat that purpose by having the hearing in public. He submitted that there was no perceptible risk to the public interest if the status quo were retained. It either was in the past, and ought to continue, as a private hearing, or it ought be made into a private hearing by direction under s.170.

14 In reply Mr Brereton referred to the construction of s.170 and a decision of this Tribunal in proceedings No. 002023 determined on 17 December 2002.

A Hearing in the presence of the public

15 At the hearing of this matter this Tribunal determined that the hearing would be in the presence of the public and to the extent that there had been any direction to the contrary on an earlier occasion, that direction would be revoked and that the Tribunal would, at a later point of time, publish its reasons.

16 The construction of s.170 of the Legal Profession Act 1987 is not without some difficulty. When read in conjunction with s.75 of the Administrative Decisions Tribunal Act 1997 it seems clear that the starting point is that hearings before the Tribunal are to be open to the public. Section 170 then requires that in relation to a hearing or part of a hearing which relates only to a question of unsatisfactory professional conduct, that the Tribunal issue a direction that it be held in the absence of the public unless it is of the opinion that the presence of the public is in the public interest or the interests of justice.

17 This Tribunal is of the opinion that the wording of s.170 only empowers the Tribunal to issue the envisaged direction when a hearing or part of a hearing relates only to a question of unsatisfactory professional conduct. The submissions, to a greater or lesser extent, embraced the proposition that there was no warrant for distinguishing a hearing on liability on the one hand and penalty on the other. The section, however, seems to envisage that a hearing can be divided into parts for the purposes of the Tribunal's directions under it. It certainly is not clear how such division is to take place, if at all, when one has, as ordered by the Tribunal, one hearing of two Informations, one of which alleges professional misconduct. It would also seem to be somewhat artificial, if the original hearing was in the presence of the public, to subsequently have a hearing on penalty in the absence of the public, if a finding of unsatisfactory professional conduct alone were made.

18 In the present case the original hearing before this Tribunal on 20 and 21 June 2005 related not only to a question of unsatisfactory professional conduct but also to allegations of professional misconduct. It follows that the Tribunal was not empowered in relation to that hearing to issue any direction under s.170 that the proceedings be held in the absence of the public and accordingly, those proceedings were or ought to have been open to the public as required by s.75 of the Administrative Decisions Tribunal Act 1997.

19 While it appears clear that this Tribunal did not issue any direction under s.170, certainly the letter to Ms McDougall of 26 May 2004 envisaged that it would do so, in circumstances, however, where there was then only filed an Information alleging unsatisfactory professional conduct.

20 In New South Wales Bar Association v Jobson (2002) NSWADT 171, the Tribunal considered whether the practitioner's conduct on one occasion constituted unsatisfactory professional conduct and whether conduct on another occasion constituted either professional misconduct or unsatisfactory professional conduct. The Tribunal found unsatisfactory professional conduct in respect of the first conduct and dismissed the Information in respect of the second conduct. The Tribunal ordered that the practitioner be publicly reprimanded in respect of the unsatisfactory professional conduct and its reasons concerning a hearing dealing with both allegations were published.

21 In case 002023, involving the New South Wales Bar Association and decided on 17 December 2002, there was no allegation of professional misconduct, and the Tribunal refused an application that its reasons for decision be published on the Tribunal's internet site (in an unanonymised manner). The Tribunal considered that the reasons for decision and the circumstances that gave rise to the public reprimand should not be made public, although the fact of the reprimand was itself, in effect, made in open Court.

22 In the last mentioned decision the Tribunal observed that:

"... the distinction sought to be drawn between the hearing itself and the determination is artificial and not a distinction in accordance with the intention of the Legal Profession Act as set out in s.170, which provides specifically for hearings that relate only to unsatisfactory professional conduct."

23 In the present case there is no doubt that the hearing before this Tribunal in June 2005 was one that involved more than an allegation of unsatisfactory professional conduct. Accordingly, that hearing was or ought to have been conducted in open Court and consistently with the observations in the said cases, the Tribunal's determination of 8 July 2005 was, or ought to have been made public and consistently this hearing of penalty forming, in substance, part of the original hearing, ought also to be held in the presence of the public. As noted above, both Mr Brereton and Mr Craddock suggested that s.170 does not draw a distinction between a hearing on liability and a hearing on penalty and while there are some difficulties with that proposition, the Tribunal is of the opinion that the submission is correct. It follows that this hearing on penalty ought to be in the presence of the public and that this Tribunal does not have the power under s.170 to direct that it be held in the absence of the public. Alternatively, the Tribunal is of the opinion that because the original hearing was or ought to have been held in the presence of the public, it is in the public interest that this hearing relating to penalty be likewise heard and determined. This is not a case where one set of allegations were separate and distinct and could be treated as such. The Informations were ordered to be heard together with evidence in one being evidence in the other. That hearing being public, the public has, in the Tribunal's opinion, a real and legitimate interest in the outcome of that hearing and as such it should, likewise, be in public.

Penalty

(i) Reprimand

24 The parties agree, as does the Tribunal, that a reprimand in the present case is appropriate. Mr Brereton, on behalf of the Applicant, however, has submitted that the reprimand ought to be public, whereas Mr Craddock has submitted it ought to be a private one.

25 Mr Brereton has referred to the detail of the findings made by this Tribunal in relation to all three matters, none of which, he submitted, could be characterised as trivial. Indeed, in relation to the receipt of funds it was pointed out that the barrister had realised that it was inappropriate at the time but that he did not fully realise that he was contravening an important Bar Rule. The barrister indicated, in his evidence, that he had agreed to the proposal because he had been urged by the client to do so, that his leader did not advise him not to do it, and that it was a short term thing. Mr Brereton referred the Tribunal to its findings that the prohibition against barristers receiving money belonging to others was strong and soundly based. In relation to the Legal Aid matter, Mr Brereton submitted that this public system of Legal Aid required that barristers follow the rule and in default, the system was at risk of not working. In relation to the question of the costs disclosure, he submitted that costs disclosures, in writing, are of increased importance when one is dealing with direct access clients. He referred to the Tribunal to its remarks at paragraph 66 of its primary decision in this matter. He submitted that overall there were no special circumstances within s.171C(1)(e) and that accordingly, the primary position that the reprimand be public had not been displaced.

26 Mr Craddock submitted that in relation to the Legal Aid matter that there was no possibility of loss of public funds because of the non-notification of the Legal Aid Commission by the barrister. The Tribunal accepts that there would not have been any claim for contribution for past payments by the Legal Aid Commission, and there could not have been any claim on the Commission by the lay client but only by a nominated practitioner rendering a bill for payment or a new practitioner in circumstances where the grant is assigned to such a person.

27 It is submitted that Mr Santisi was inexperienced and was overwhelmed by the situation he faced, that he had come straight to the Bar and had not obtained the experience that he may have acquired had he been a solicitor, that he went into the area of criminal work and direct access for the first time and this was the first case where he was junior counsel to Silk. It is submitted that while his conduct was inexcusable, it was understandable, bearing in mind Mr Santisi's inexperience. It is submitted that the client suffered no loss, that his case was not compromised and that the only person to suffer in the present case will be the Barrister. Mr Santisi was not dishonest, he was not reckless and not disinterested in his client's case and while he should have obtained advice from a more senior practitioner, he understandably, but inexcusably, didn't.

28 The Tribunal is of the opinion that there are no special circumstances in the present case which would justify it in ordering that the practitioner be privately reprimanded as opposed to publicly reprimanded, as provided for by s.171C(1)(e). The breaches found by this Tribunal were in substance three separate breaches of the barrister's obligations and while they arose out of the one matter, they ought, in the opinion of this Tribunal, to be viewed separately. Each one was a matter of some gravity and while the consequences were not as serious, from a practical point of view, as they might otherwise have been, nevertheless none of the breaches could be viewed as trivial and together, certainly, could not be. While the Tribunal accepts Mr Santisi's evidence in relation to this being his first direct access matter, and that to some extent he was inexperienced, nevertheless he had been a member of the Bar, at the time of the events here in question, for in excess of five years and it could not, in the Tribunal's opinion, be said that his inexperience was such as to warrant or be a significant factor in warranting a finding of special circumstances.

29 In the Tribunal's opinion, there are no special circumstances in the present case warranting a private reprimand and the Tribunal orders that Mr Santisi be publicly reprimanded for the breaches found to have been committed by him.

(ii) Risk Awareness Course

30 The Applicant and the Respondent agree that it would be appropriate that the barrister be ordered to undertake the modules described as "Engagement Management and Maximising Costs Recovery and Risk Awareness" conducted by LawCover as part of its Risk Management Education Program at the available session. This, indeed, had been offered by the Respondent in July 2004. The Tribunal agrees and it is so ordered.

(iii) Costs

31 The Informant seeks an order that the barrister pay its costs as agreed or taxed. Mr Craddock submits that the contest was really one between unprofessional and unsatisfactory conduct and that in substance the barrister was successful in obtaining findings of unsatisfactory conduct alone. Alternatively, he submits that an order should be made for a percentage of the Informant's costs only.

32 The Tribunal agrees with the submissions of Mr Brereton in this respect, that it was not merely a contest between professional misconduct on the one hand and unsatisfactory professional conduct on the other. So much is evident from the submissions which the parties made on the last occasion and so much is evident from the Tribunal's decision delivered on 8 July 2005. Mr Brereton referred to the Council's obligation to institute proceedings in the Tribunal if it is satisfied that there is a reasonable likelihood that the legal practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct (s.155(2) of the Legal Profession Act 1987) and that having formed the opinion which it did in relation to professional misconduct, the Council had no alternative but to institute the proceedings.

33 The Tribunal is of the opinion that it is appropriate that the barrister pay the Informant's costs as agreed or taxed. The Informant was very substantially successful in the issues between the parties, as demonstrated by the Tribunal's decision of 8 July 2005. The Tribunal sees no justification in departing from what would be the usual order and certainly sees no justification for any division of the Informant's costs. It is clear from the pleadings and from the prior correspondence between the parties that there was only a very limited concession by the barrister, not only in fact but in time as well.

(iv) Fine

34 The Informant seeks that the barrister pay a fine of $5,000. The Tribunal is of the opinion that bearing in mind the findings of the Tribunal as to the seriousness of the matter and the other orders proposed by the Tribunal, that such a fine is inappropriate.

(v) Ethics Tutorials

35 The Informant seeks an order that the barrister undertake the next available session course in ethics offered by the Bar Association and attend tutorials, lectures and examinations in this respect. The Tribunal is of the opinion that the nature of the breaches here found by this Tribunal are such as not to warrant the barrister undertaking a general ethics course. The Tribunal is of the opinion that the appropriate response in this respect is this Tribunal's decision, the public reprimand and the risk awareness course previously referred to. The Tribunal declines to make this order.

(vi) Publication

36 For reasons already explained, these reasons will be published with the name of the barrister. The Tribunal's Reasons for Decision dated 8 July 2005 were published without the barrister's name and while that may, on further reflection, have been not an appropriate course, the Tribunal nevertheless does not intend to republish that decision. Anyone reading this decision in whole or in part will readily, no doubt, be referred to this Tribunal's decision of 8 July 2005, which appears on the Tribunal's website.