Law Society of New South Wales v Knudsen [2006] NSWADT 49 (16 February 2006)

Last Updated: 16 February 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL LEGAL SERVICES DIVISION

CITATION: Law Society of New South Wales v Knudsen [2006] NSWADT 49


PARTIES: APPLICANT
Council of the Law Society of New South Wales
RESPONDENT
Peter Stanley Knudsen



FILE NUMBERS: 052022

HEARING DATES: 3/11/2005 & 30/11/2005

SUBMISSIONS CLOSED: 30/11/2005



DECISION DATE: 16/02/2006

BEFORE: Chesterman M - ADCJ (Deputy President)Durbach A - Judicial MemberO'Neill A - Non Judicial Member





LEGISLATION CITED: Legal Profession Act 1987
Legal Profession Act 2004

CASES CITED: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
Law Society of New South Wales v Green [2001] NSWADT 142
Law Society of New South Wales v Hammond [2006] NSWADT 23
Law Society of New South Wales v Kekatos [2005] NSWADT 79
Legal Services Commissioner v Browne [2004] NSWADT 63
Veghelyi v Council of the Law Society of New South Wales, unreported, Supreme Court of New South Wales, 6 September 1989

APPLICATION: Professional Misconduct - fail to assist & cooperate with investigation
Professional Misconduct - fail to comply with s. 152 Notice

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
L Pierotti, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT
A Diethelm, barrister

ORDERS: 1. We make a finding of professional misconduct under Ground 1 of the Information
2. We dismiss Ground 2 of the Information
3. The proceedings are set down for further directions at 9.30a.m. on 16 March 2006


Reasons for Decision:

REASONS FOR DECISION

The matters alleged against the Respondent solicitor

1 By an Information filed on 23 June 2005, the Applicant, the Law Society of New South Wales (‘the Law Society’), alleged that the Respondent solicitor (‘the Solicitor’) was a legal practitioner within the meaning of s 128 of the Legal Profession Act 1987 (‘the Act’) and had been guilty of professional misconduct on two grounds while practising as a solicitor.

2 These two grounds were as follows:-

1. The legal practitioner, without reasonable excuse, failed to comply with a Council requirement under Section 152 of the Legal Profession Act, 1987.
2. The legal practitioner has failed to assist the Law Society in the investigation of a complaint.

3 In the course of cross-examination, the Solicitor indicated that he did not dispute any of the particulars, which were set out in Schedule 1 of the Information. In outline, as amplified by copies of correspondence annexed to affidavits dated 21 June 2005 and 12 October 2005 sworn by Raymond Collins and tendered by the Law Society, they disclosed the following events.

4 On 20 January 2005, the Professional Conduct Committee of the Law Society (‘the Professional Conduct Committee’) made a complaint alleging unethical conduct and gross negligence against the Solicitor. The former ground was elaborated in one brief particular and the latter in four brief particulars. They both concerned his handling during 2002 and 2003 of a matter for two clients, David and Suzanne White, who were in dispute with Hawkesbury City Council (‘the White matter’).

5 By a letter dated 3 February 2005, the Law Society conveyed the text of these complaints to the Solicitor. The letter then stated:-

To enable the Professional Conduct Committee to fairly consider this matter, you are required to provide me with your written response to the complaint, together with copies of any document that may offer support of your account, within 14 days of the date of this letter.

6 On 14 February 2005, while giving evidence in proceedings in another matter in this Tribunal, the Solicitor, having indicated that he had previously had difficulties dealing with ‘some administrative matters’ in his practice, went on to say the following:-

Look I think I’m getting better – for example I had a further letter from the Society in relation to this White matter only 10 days ago and I have already drafted a virtual final answer to it ...

7 The Solicitor did not respond to the Law Society’s letter of 3 February 2005, or to reminder letters from it dated 18 February 2005 and 21 March 2005. Both of these letters included a request that he forward to the Law Society his file in the White matter. They also drew his attention to the provisions of s 152 of the Act. The former letter made reference to his statement in the Tribunal on 14 February 2005 that he had ‘already drafted’ his reply to the letter of 3 February 2005. The latter letter stipulated 1 April 2005 as the date by which he should comply with the requests contained in it.

8 On 11 April 2005, pursuant to a resolution dated 7 April 2005, the Professional Conduct Committee issued a notice under s 152 of the Act requiring that within 21 days of service of the notice the Solicitor should provide to the Law Society both (a) a statutory declaration setting out information outlined in a number of questions regarding his handling of the White matter and (b) a number of specified documents, including his file on this matter.

9 There were in fact eight numbered questions, three of which were subdivided so as to produce thirteen subsidiary questions. In contrast to the letter of 3 February 2005, this notice did not require a ‘response’ from the Solicitor, but the provision of information on a significant number of specified matters.

10 We will call this notice ‘the Second Notice’ since, in circumstances soon to be described, the Law Society had served an earlier notice under s 152 on the Solicitor during 2004.

11 The Second Notice was personally served on the Solicitor on 12 April 2005. He did not respond to it as required, within 21 days of service.

12 On 5 May 2005, the Professional Conduct Committee resolved to make a complaint against the Solicitor comprising the two grounds subsequently set out in the Information. By a letter dated 11 May 2005, it notified the Solicitor accordingly and sought his response, in the same terms as it had used in its letter of 3 February 2005. The Solicitor did not respond within the time stipulated.

13 On 2 June 2005, the Professional Conduct Committee resolved that, subject to any submissions, (a) it was satisfied that there was a reasonable likelihood that the Tribunal would find the Solicitor guilty of professional misconduct on these two grounds and (b) proceedings with respect to the complaint should be instituted in the Tribunal pursuant to s 155(2) of the Act. It invited submissions by the Solicitor on or before 15 June 2005.

14 On the same day as this resolution, a letter was hand-delivered to the Solicitor’s office advising him of the terms of the resolution and indicating that if no submissions were received from him the Committee would ‘reconsider this complaint on the information presently available’. He did not respond to this letter.

15 As already stated, the Information was filed in the Tribunal on 23 June 2005.

16 At the hearing, Mr Pierotti, appearing for the Law Society, indicated to us that the Law Society relied upon all these matters in support of Ground 2 of the Information. So far as Ground 1 was concerned, it relied only on the Solicitor’s failure since 12 April 2005 to comply with the requirements of the Second Notice.

17 Mr Pierotti also stated that the allegation made in Ground 2 was that of professional misconduct at common law only. The Law Society was not asserting that the Solicitor had committed the statutory form of misconduct set out in ss 152(1)(c) and 152(4) of the Act. These provisions apply when a legal practitioner has failed, without reasonable excuse, to comply with a requirement contained in a written notice from a specified authority (including the Law Society) to ‘otherwise assist in, or cooperate with, the investigation of’ a complaint ‘in a specified manner’.

The matters put forward by the Solicitor

18 This statement by Mr Pierotti resolved in the Solicitor’s favour an issue that the Solicitor had raised in his Reply. In this document, filed on 4 October 2005, the Solicitor denied any allegation of having failed to comply with s 152(1)(c) of the Act.

19 A more substantial issue also raised in the Reply was the effect of a statutory declaration that the Solicitor had sworn on 11 February 2005, in response to an earlier notice under s 152 of the Act, dated 5 February 2004, that the Law Society had sent to him.

20 Like the Second Notice, this notice (‘the First Notice’) required him to supply specified information regarding the White matter within a stipulated period of time (in this instance, 14 days). It contained six numbered questions, one of which was divided into two subsidiary questions.

21 The relevant part of the Reply was headed ‘Allegation 1: Failure to comply with section 152 Notice without reasonable excuse’. It read as follows:-

The Respondent admits the allegation except to the extent that the Notice dated 11 April 2005 required the Respondent to provide information which had already been required by a Notice dated 5 February 2004 and which had been provided by the Respondent in his Statutory Declaration dated 11 February 2005.

22 In an affidavit dated 30 September 2005 and admitted in these proceedings, the Solicitor said that he sent this statutory declaration of 11 February 2005 (which he called the ‘First Statutory Declaration’) to the Law Society in response to the First Notice. Copies of a number of letters were annexed to this declaration. After he had sent the First Statutory Declaration to the Law Society, his counsel drew his attention to some typographical errors and errors of form in it, and prepared a correcting statutory declaration in draft.

23 The Solicitor also said in his affidavit that when on 14 February 2005 he gave evidence to the Tribunal (see [6] above) he believed that the First Statutory Declaration, together with the correcting statutory declaration, provided sufficient answers to the matters raised in the Law Society’s letter of 3 February 2005. After the Second Notice was served on him on 12 April 2005, he similarly believed that the First Statutory Declaration, with its annexures, provided sufficient answers to the questions put to him in the Notice.

24 Finally, the Solicitor said in his affidavit of 30 September 2005 that on 29 September he had made a further statutory declaration (‘the Second Statutory Declaration’) which included the corrections to the First Statutory Declaration and constituted a sufficient response to the Second Notice.

25 The First and Second Statutory Declarations and the correcting statutory declaration were all annexed to the Solicitor’s affidavit of 30 September 2005.

26 In his affidavit of 12 October 2005, Mr Collins stated that the Second Statutory Declaration, which the Law Society received on 4 October, did not comply with the Second Notice in two respects. These were (a) that it was not received on or before the due date and (b) that the documents that it required to be produced were not produced.

27 During cross-examination, the Solicitor stated that these documents were in fact produced to the Law Society on 31 October 2005. The Law Society did not challenge this.

The extent of the Solicitor’s compliance with the Law Society’s requirements

28 A significant issue thrown up by the Solicitor’s reply and affidavit is the extent, if any, to which by sending the First Statutory Declaration to the Law Society he complied with (a) the Law Society’s requirement, in its letter of 3 February 2005, that he provide a response to the complaint set out in the letter, or with (b) the Second Notice, which was served on him on 12 April 2005.

29 The Solicitor’s position, asserted in his affidavit of 30 September 2005, was that both when giving evidence to the Tribunal on 14 February 2005 and when he received the Second Notice on 12 April 2005, he believed that the contents of the First Statutory Declaration, along with its annexures, provided sufficient answers to the matters raised in the letter of 3 February 2005 and to the questions in the Second Notice. (It will be recalled that the First Statutory Declaration was sent to the Law Society on or soon after 11 February 2005.) He qualified this by referring, in the former context, to what he called ‘the correcting statutory declaration’. He admitted, however, that the correcting statutory declaration was not sent to the Law Society until 30 September 2005.

30 We will consider in turn the adequacy of his responses to the two separate communications from the Law Society.

31 The letter of 3 February 2005. This letter indicated that the Solicitor was ‘required’ to send to the Law Society his ‘written response’ to the complaint that the Law Society had made against him, together with copies of any document that might support his account. The complaint, it will be recalled, comprised two grounds, with accompanying particulars.

32 Without going into details, it is sufficient to say that the First Statutory Declaration contained material which could be said to constitute a response to the first ground of the Law Society’s complaint, as particularised (unethical conduct), and to two out of the four particulars accompanying the second ground (gross negligence). Its format was, however, that of answers to the particular questions asked in the First Notice and it made no mention of the complaint.

33 The Solicitor did not indicate to the Law Society at any stage that it should treat this material in the First Statutory Declaration as representing his response to the complaint. In fact, by saying under oath in the Tribunal on 14 February 2005 that he had ‘already drafted a virtual final answer’ to the letter of 3 February, he gave the Law Society to believe that he would soon be sending another communication that would constitute the required response. The Law Society, in its reminder letter of 18 February 2005, made it clear that this was how it interpreted his statement in the Tribunal.

34 It was not until the Solicitor filed and served his affidavit of 30 September 2005 that the Law Society received any indication from him to the effect that it should have treated the First Statutory Declaration as containing the response required in its letter of 3 February 2005. This indication was, moreover, qualified by his saying in the affidavit that ‘the correcting statutory declaration’ should also have been taken into account. This declaration was not, however, sent to the Law Society until 30 September 2005.

35 In these circumstances, we are bound to find that the Solicitor did not comply with the terms of the requirement, stated in the letter of 3 February 2005, that he provide a ‘response’ to the Law Society’s complaint. Far from indicating, as he could easily have done, that the relevant passages in the First Statutory Declaration should be treated as his response, he misled the Law Society, through the evidence that he gave in the Tribunal, into thinking that a further declaration, already drafted, would soon be forthcoming by way of response. He then failed to provide any response at all until more than seven months had elapsed. He did not provide the file on the White matter, as required by the Law Society, until more than eight months later.

36 In so finding, we do not overlook the important consideration that in pursuing its investigation of the complaint that it had recently laid, the Law Society could easily discern that the relevant passages in the First Statutory Declaration, which it received some eight or nine days after its letter of 3 February 2005, set out the Solicitor’s side of the story with regard to some at least of the matters raised in the complaint. It could then proceed to test the veracity and accuracy of what the Solicitor said in those passages. It is not as if the Law Society was left totally in the dark as to what the Solicitor claimed to be the true position on these matters. This factor significantly reduced the degree of hindrance to the investigation caused by the Solicitor’s failure to comply with the terms of the requirement to provide a response.

37 The Second Notice. As indicated above, this Notice under s 152 of the Act, served on the Solicitor on 12 April 2005, required the provision of information on a significant number of specified issues relating to the White matter, and also required the production of the Solicitor’s file on this matter, together with other relevant documents. It did not merely require a ‘response’.

38 Mr Diethelm, who appeared for the Solicitor in these proceedings, pointed out that the material in the First Statutory Declaration contained answers to two of the eight numbered questions in the Second Notice and a further four of what we have called the thirteen subsidiary questions. To this extent, he submitted, the Solicitor’s obligation under s 152(1) to provide verified information in response to the Notice had been fulfilled, as pleaded in the Solicitor’s Reply to the Information.

39 Implicit in this submission and, indeed, in the relevant passage in the Reply is an acknowledgment that the material in the First Statutory Declaration left unanswered a substantial proportion of the questions in the Second Notice. The questions not answered included (a) a group of questions regarding the alleged failure by the Solicitor to respond on behalf of his clients (Mr and Ms White) to a request for further and better particulars from Hawkesbury City Council; (b) some of a group of questions seeking an explanation for there having been no appearance on his clients’ behalf at a court hearing; and (c) his dealings with his clients after this hearing.

40 With regard to these questions, there was undoubtedly a failure to supply the required answers until the Second Statutory Declaration was received by the Law Society, more than five and a half months after service of the Second Notice.

41 There was, furthermore, a failure to produce to the Law Society the Solicitor’s file on the White matter, or indeed any other relevant documents within the range required in the Notice, until 31 October 2005.

The Solicitor’s state of mind during the periods of non-compliance

42 According to the Solicitor’s affidavit, between February and September 2005 he acted in the belief that by sending the First Statutory Declaration on 11 February 2005 he sufficiently complied with the requirements of both the letter of 3 February 2005 (which he had already received) and the Second Notice (which was served on him subsequently). For two reasons, however, we find that either this assertion should not be accepted at all or it can only be accepted on the basis that the Solicitor was reckless in forming and adhering to such a belief.

43 The first reason is that the belief is at odds with what he said at the Tribunal hearing on 14 February 2005. His statement there was clearly based on his recognition that the letter of 3 February 2005 required more information than he had already furnished in the First Statutory Declaration.

44 Secondly, it is immediately obvious from reading both the letter of 3 February 2005 and the Second Notice that, in very different ways from each other, they addressed different issues from those raised in the First Notice. In particular, the Second Notice was manifestly longer than the First Notice and could be seen on the most cursory of readings to refer to different aspects of the White matter.

45 The Solicitor’s own stance on this matter was that due to a number of relatively recent events in his personal life that imposed particularly severe stress on him, and to a continuing psychological condition, he experienced very great difficulty, if not an out-and-out ‘incapacity’, when called upon to respond to ‘administrative’ matters such as official inquiries into his professional behaviour. By contrast, he said, he maintained high professional standards in his dealings with clients.

46 The recent events to which he referred included a stabbing attack upon him by his wife in July 2003, radical prostate surgery in March 2004 and major abdominal surgery in August 2004.

47 This explanation received support from written and oral evidence given by Mr Norman Rees, a clinical psychologist. The Solicitor had consulted Mr Rees following the attack on him in July 2003, had maintained occasional contact by telephone during 2004 and the early part of 2005 and had attended a series of consultations during November 2005. Mr Rees expressed the opinion that the traumatic events of 2003 and 2004, coupled with the Solicitor’s determination to maintain a difficult marriage, had given rise to a state of depression, one of the consequences of which was that he ‘compartmentalised’ the various issues in his life as a ‘coping device’. Specifically, he would put wholly to one side matters such as the Law Society’s investigations while continuing to provide professional services of high quality to his clients.

48 A similar view of his situation appeared from the evidence of two professional colleagues of the Solicitor, Mr Jeffrey Phillips SC and Mr Peter Strain of counsel. Both of these witnesses expressed the view also that the Solicitor was a person of integrity, honesty and diligence.

49 This explanation of the Solicitor’s conduct in failing to discharge the Law Society’s requirements is compatible with a finding, which we make, that his claim to have sufficiently complied with them was the consequence of a reckless failure on his part to consider what was in fact required of him, both by the letter of 3 February 2005 and by the Second Notice. He persuaded himself that there was nothing more left for him to do, even though the briefest examination of either document would have shown him that this was not the case.

The issue of professional misconduct

50 We will consider first the claim of professional misconduct through failing to comply with s 152 of the Act, then the claim of common law misconduct by virtue of failing to assist the Law Society in the investigation of a complaint.

51 Failure to comply with s 152. Section 152, so far as relevant, provides as follows:-

(1) For the purpose of investigating a complaint, a Council or the Commissioner may, by notice in writing served on any legal practitioner, require the legal practitioner to do any one or more of the following:
(a) to provide written information, by a date specified in the notice, and to verify the information by statutory declaration,
(b) to produce, at a time and place specified in the notice, any document (or a copy of a document) specified in the notice,...
(4) A legal practitioner who, without reasonable excuse, fails to comply with such a requirement is guilty of professional misconduct.

52 Mr Diethelm submitted that, with respect to the information required in the Second Notice that had already been supplied to the Law Society in the First Statutory Declaration, the Solicitor had a ‘reasonable excuse’ for not supplying it within the time stipulated in the Second Notice. We are prepared to accept that submission.

53 There was however non-compliance, without reasonable excuse, with respect to a significant quantity of information and with respect to the production of documents. These failures to comply persisted over more than five months in relation to the information and more than six months in relation to the documents. In previous decisions, failures over distinctly shorter periods have been held to constitute professional misconduct under s 152(4): see for example Legal Services Commissioner v Browne [2004] NSWADT 63 (delay of only two weeks after stipulated time); Law Society of New South Wales v Kekatos [2005] NSWADT 79 (delay of three months).

54 Mr Diethelm’s submissions, as we understood them, stopped short of claiming that the personal pressures on the Solicitor, coupled with the psychological condition about which we heard evidence, constituted a ‘reasonable excuse’ for these failures to comply. This accords with authorities, such as Law Society of New South Wales v Green [2001] NSWADT 142, rejecting ‘avoidance of issues’ and ‘a "head in the sand" approach’ (see [42]) as instances of a ‘reasonable excuse’.

55 We accordingly find, to the extent and in the circumstances indicated, that the Solicitor committed professional misconduct as alleged in Ground 1 of the Information.

56 Failure to assist the Law Society in the investigation of a complaint. Mr Pierotti submitted that the Solicitor’s failure until 30 September 2005 to comply with the requirement to respond to the Society’s letter of 3 February 2005 and his failure to deliver the file on the White matter until 31 October 2005, taken in conjunction with his failure, to the extent already outlined, to comply with the Second Notice, constituted professional misconduct at common law.

57 He referred in this context to the Allinson test of professional misconduct, namely conduct which ‘would be reasonably regarded as disgraceful and dishonourable’ by ‘professional brethren of good repute and competency’ (see Allinson v General Council of Medical Education and Registration [1894] 1 QB 750). He argued that a practitioner’s failure over several months to cooperate with a professional authority’s investigation of complaints against him or her fell within this range of conduct.

58 On this specific issue, Mr Pierotti relied on the following passage in the judgment of Smart J in Veghelyi v Council of the Law Society of New South Wales, unreported, Supreme Court of New South Wales, 6 September 1989:-

It is important that solicitors respond promptly to the [Law] Society when it asks for a response to complaints which have been made. It will be an unusual and complex case when a delay of more than 14 days is acceptable and often the reply should be delivered within a shorter period such as 7-10 days. Replies to the Law Society in respect of complaints warrant a high priority. Such replies should be full and complete and deal directly with the complaints made.

59 Mr Pierotti also cited Legal Services Commissioner v Browne [2004] NSWADT 63, in which this passage was quoted at [13], and Law Society of New South Wales v Hammond [2006] NSWADT 23. In the latter case, a solicitor’s failure over a period of four and a half months both to assist the Law Society’s investigation and to comply with a notice under s 152 formed the basis for findings of professional misconduct on the same two grounds as are put forward in this case.

60 While acknowledging that practitioners were under a duty to assist official investigations of complaints against them, Mr Diethelm submitted that failure to discharge this duty did not necessarily constitute professional misconduct since it could not always be said to amount to ‘disgraceful’ or ‘dishonourable’ behaviour in accordance with the Allinson test. In the present case, he said, the Solicitor’s lapse from acceptable professional standards was not serious enough to warrant this description.

61 Mr Diethelm sought, in this connection, to rely on some observations in support of the Solicitor in the testimonies of Mr Phillips and Mr Strain. He also argued that although the letter of 3 February 2005 ‘required’, rather than ‘invited’, a response, the Solicitor’s silence, while inappropriate, could properly have been interpreted by the Law Society as implying that he had nothing further to add to what he said in the First Statutory Declaration.

62 We have not found this an easy issue to resolve. While the authoritative remarks of Smart J in Veghelyi must clearly be given great weight, it is significant that they were not made with reference to the issue of professional misconduct. Their context was that of an application by a solicitor, in the course of an appeal against the cancellation of his practising certificate, for an interim order staying the cancellation. We would add that his Honour’s remarks were cited in Browne with reference to professional misconduct by virtue of a breach of s 152(1)(b), not common law misconduct.

63 While we must take due account of the very recent Tribunal decision in Hammond, it is significant that because the practitioner in that case did not appear at the hearing, the matter was not fully argued. The approach taken there would suggest that in any case where a serious breach, without reasonable excuse, of s 152(1)(a) or (b) is found to have occurred, constituting statutory misconduct under s 152(4), a finding of common law misconduct should also be made, on the ground of failure to assist the relevant authority in its investigation of the relevant complaint. We would respectfully differ from any such approach. As far as we are aware, it would be at odds with the outcome in a number of other cases, where in like circumstances a finding of statutory misconduct has been made on its own or in conjunction with findings of one or more quite different species of misconduct.

64 Our opinion along these lines receives support from the existence of a statutory form of professional misconduct created by s 152(1)(c) in conjunction with s 152(4). As outlined above at [17], this arises when a legal practitioner has failed, without reasonable excuse, to comply with a requirement contained in a written notice from a specified authority (including the Law Society) to ‘otherwise assist in, or cooperate with, the investigation of’ a complaint ‘in a specified manner’. As is the case under s 152(1)(a) or (b), if this form of misconduct is to be established against a legal practitioner, a formal notice must have been served. This will draw the practitioner’s attention to the fact that non-compliance without reasonable excuse will amount to professional misconduct.

65 We do not think that the existence of s 152(1)(c) and s 152(4) renders it impossible for a practitioner to be found guilty of professional misconduct at common law on account of failure to assist in the investigation of a complaint. But in view of this component (replicated in the Legal Profession Act 2004) of the statutory regime governing professional misconduct, we believe that the Tribunal should not make a finding of common law misconduct unless the well-established criterion of ‘dishonourable’ or ‘disgraceful’ behaviour is clearly satisfied.

66 We acknowledge the force of Mr Pierotti’s submission that a finding of common law misconduct here would embrace a longer period of non-compliance by the Solicitor than does our finding of misconduct under s 152. It would include the period between the Solicitor’s receipt of the letter of 3 February 2005 and the service of the Second Notice on 12 April 2005. For this reason alone, it would be of significance for the ultimate outcome of these proceedings.

67 We cannot, however, say that we are ‘comfortably satisfied’ (as we must be in order to make the finding sought) that the Solicitor’s conduct in this regard was clearly ‘disgraceful’ or ‘dishonourable’ as required under the Allinson test. It evidently constituted a failure, attributable to recklessness, to abide by proper professional standards. But for reasons explained above at [36], it did not leave the Law Society completely in the dark regarding his response to the allegations against him. Taking this factor into account, we are of the opinion that his failure to assist was not so serious as to amount to professional misconduct at common law.

68 For these reasons, we dismiss Ground 2 of the Information.

69 Since we have found professional misconduct as alleged in Ground 1, this matter must now proceed to a further hearing with regard to what order or orders we should make under s 171C of the Act. In order that this hearing may be scheduled, the proceedings are set down for further directions at 9.30a.m.on 16 March 2006.