Legal Services Commissioner v McCarthy [2010] NSWADT 269 (15 November 2010)

Last Updated: 15 November 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Legal Services Commissioner v McCarthy [2010] NSWADT 269


DIVISION:
LEGAL SERVICES DIVISION

PARTIES:
APPLICANT
Legal Services Commissioner

RESPONDENT
Maurice John McCarthy



FILE NUMBERS:
092026

HEARING DATES:
29 June 2010

SUBMISSIONS CLOSED:
13 September 2010



DATE OF DECISION:
15 November 2010

BEFORE:
Patten D - Deputy PresidentMullane G - Judicial MemberBennett C - Non-Judicial Member





LEGISLATION CITED:
Legal Profession Act 2004

CASES CITED:
Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
LSC v Knudsen (No. 2) [2006] NSWADT 245

TEXTS CITED:


APPLICATION:
Professional misconduct – failure to comply with s 660 notice – order for supervision

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
N J Beaumont, counsel
RESPONDENT
B W Collins QC with J Hutton, counsel


ORDERS:
1. The solicitor is guilty of professional misconduct
2. The solicitor is reprimanded
3. The solicitor is ordered to pay a fine of $10,000
4. The solicitor is ordered to undertake a period of 2 years of practice under supervision, such supervision dating from today, to be constituted as follows :
a)By the solicitor at least once during each calendar month telephoning an officer of the Legal Services Commissioner (LSC) and reporting to her or him whether any client has complained about his professional conduct since his last report, as to the general nature and number of matters currently handled by him and as to any change in his circumstances relating to the manner and conduct of his practice
b) By the solicitor within 7 days of receiving a written complaint from a client providing a copy of that complaint to the LSC
5. The solicitor is ordered to pay the costs of the LSC as agreed upon or assessed
6. In case any difficulty arises in the implementation of Order 4, each party to have liberty to apply on 7 days notice to the other.


Reasons for Decision:

REASONS FOR DECISION

1 These proceedings were initiated by a complaint of the Legal Services Commissioner (LSC) dated 6 August 2009. It alleged that Maurice John McCarthy (the solicitor) failed to comply with a Notice issued pursuant to s 660 of the Legal Profession Act 2004 (the Act) without reasonable excuse.

2 Section 660 of the Act is in the following terms:

660 Requirements in relation to complaint investigations

(1) For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, an investigator may, by notice served on the lawyer, require the lawyer to do any one or more of the following:

(a) to produce, at a specified time and place, any specified document (or a copy of the document),

(b) to provide written information on or before a specified date (verified by statutory declaration if the requirement so states),

(c) to otherwise assist in, or co-operate with, the investigation of the complaint in a specified manner.

(2) For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, the investigator may, on production of evidence of his or her appointment, require any associate or former associate of a law practice of which the lawyer is or was an associate or any other person (including, for example, an ADI, auditor or liquidator but not including the lawyer) who has or has had control of documents relating to the affairs of the lawyer to give the investigator either or both of the following:

(a) access to the documents relating to the affairs of the lawyer the investigator reasonably requires,

(b) information relating to the affairs of the lawyer the investigator reasonably requires (verified by statutory declaration if the requirement so states).

(3) A person who is subject to a requirement under subsection (1) or (2) must comply with the requirement.

Maximum penalty: 50 penalty units.

(4) A requirement imposed on a person under this section is to be notified in writing to the person and is to specify a reasonable time for compliance.

(5) A person who is subject to a requirement under subsection (1) or (2) is not entitled to charge the investigator for doing anything in compliance with the requirement.

3 The LSC is an investigator for the purposes of s 660 (see s 658 and s 495) and by virtue of s 498(1)(f) failure to comply with the requirements of a notice under the Act or the regulations "is capable of being unsatisfactory professional conduct or professional misconduct".

4 The notice to the solicitor, the alleged non-compliance with which founded the complaint (hereafter "the notice"), was given on or about 20 March 2009 and omitting formal parts was in the following terms:

I, Steve Mark, Legal Services Commissioner, hereby require you to provide me with the following information and documents pursuant to section 660 of the Legal Profession Act 2004:

1. In relation to the complaint by Ross McNally:

A) In your letter of 15 September 2008 you enclose a copy of an account dated 15 March 2005. This Office was unaware of this account up until now despite our many requests for you to provide details of all information related to this case. As you will see from Mr McNally’s response, he says he never received this account either and he believes that it was only recently created. He says that if you had this account all along and did not recently create it, why didn’t you send it to him as per his numerous requests. Please address this point.

B) You will appreciate that Mr McNally is attempting to recover what he was awarded by the court and what is now owed by Mr Dennis, including your costs. You say that your costs are in the vicinity of $7,000 for the work concerning the second defendant’s costs issues but that you do not intend to issue a tax invoice or pursue this. You will appreciate that Mr McNally will not be able to pursue costs from the defendant if there is nothing to show the costs incurred. Please indicate how the $7,000 is calculated.

C) The main allegation Mr McNally made about you to this Office was that you failed to provide him with an itemised account so that he could pursue costs as per the costs order that is in his favour. Please advise why, despite this matter being considered at this Office for more than two years now, you have failed to produce this so that Mr McNally can proceed with his matter. I ask that you provide this itemised account and address the above points so that this matter can be finalised.

2. In relation to the complaint by Steven and Janice Jankovic:

A. Have you searched for Mr and Mrs Jankovic’s documents in your storage facility?

B. If you have searched for Mr and Mrs Jankovic’s documents in your storage facility, what was the result of your search?

C. Have you discussed the costs dispute with the Jankovic’s legal representative, Mr Murray Edwards?

Your response to this Notice must be received by my Office by 5.00pm on 24 April 2009. The address of my Office is:

Level 9 (OCBC Building)

75 Castlereagh Street

SYDNEY NSW 2000

[DX 359 SYDNEY]

Please note that a failure to comply with this Notice by the specified date may amount to professional misconduct, may attract a maximum penalty of 50 penalty points and may result in the institution of proceedings against you by way of Application in the Legal Services Division of the Administrative Decisions Tribunal.

5 As appears from the notice itself there had been previous correspondence between the LSC and the solicitor regarding matters pertaining to his clients Ross McNally and Steven and Janice Jankovic. In order to place the present complaint in its proper context, it is necessary to make a brief reference to the events which preceded the notice.

6 Mr and Mrs Jankovic made a complaint to the LSC on 18 March 2005. They claimed that the solicitor had been acting for them in a claim against a Mr Stephen Beckton for recovery of a large sum of money, since July 2002. They listed as the main issues of their complaint "total lack of communication", "total lack of progress" and "time involved will now mean that both criminal and civil cases will be difficult to proceed with".

7 What transpired immediately thereafter is not entirely clear but what is clear is that by 12 December 2008 the complaint by Mr and Mrs Jankovic had not been entirely resolved as on that date the LSC wrote to the solicitor as follows:

I am writing about your conversation with Jim Milne of this office on 20 November 2008 and about the attached correspondence and about your message to Jim Milne on 5 December 2008.

Mr and Mrs Jankovic are still disputing your costs, as you are aware. Following the refund of some monies from the Trust Account of McCarthy Legal they continue to dispute over $3,000 in costs. That is a matter that may well be resolved between you, the Jankovic’s and their legal representative Mr Murray Edwards.

In addition to their concerns about costs Mr and Mrs Jankovic also complain about your failure to return documentation to them.

I am aware you are searching your files for the lost documents, but as of 5 December 2008 you had not gained access to your storage facility.

I ask you to confirm in writing the results of your searches.

8 The solicitor did not reply to this letter nor to a follow up letter dated 4 February 2009. The solicitors continued failure to provide the information sought in relation to Mr and Mrs Jankovic became the second subject of the notice.

9 Mr McNally complained to the LSC about the solicitor’s conduct on 31 July 2007. He said that the solicitor had been acting for him in proceedings before Toronto Local Court. He listed his complaints as "cannot get to talk to solicitor no matter what I do", "cannot get any kind of billing account to date" and "cannot get any progress reports and not acting in my best interests". Mr McNally elaborated upon these matters as follows:

I have not been able to speak to Mr McCarthy despite numerous attempts via telephone and fax (copies of faxs sent are attached to document). When Mr McCarthy is in attendance at his office he is still unavailable for communication for supposed various reasons and regardless of repeated requests has not returned correspondence even though I am easily accessible by phone, fax and post. When trying to contact Mr McCarthy through his office I am always just asked to leave my name and telephone number and told that he will receive the message and contact me.

I am growing to be quite concerned that Mr McCarthy may not be acting in my best interests due to his inability to open the lines of communication with me, along with some of his previous actions which includes my being issued with a bill for $23,483.80 (ten days before the appointed court date) with instruction that this was to be paid to secure any further and ongoing service from him in this matter. Whilst Mr McCarthy waited on payment of this money he practised complete non-communication with me which left me in a situation of no knowledge of preparations regarding the impending court hearing. Only after Mr McCarthy received the money did he manage to contact me.

Another cause for my alarm is the matter of the financial account. I have been insisting on being provided with a current bill after receiving a verdict in this matter on the 20^th September, 2005 as the financial circumstances surrounding this litigation have left me financially depleted. I have been upfront with Mr McCarthy about my monetary concerns as this case has progressed and have continuously asked where I stand with this matter. Mr McCarthy’s response has only been that he would arrange a payment system if there were any expenses that I could not cover. This I found to be very unsettling and I feel that I might be placed in a position of unending, insurmountable debt at the mercy of Mr McCarthy’s discretion.

Yet another financial aspect of this matter is the approximately $15,000.00 I was awarded in the September 2005 verdict. I have no idea as to the progress of, or the success in, the retrieval of these monies as Mr McCarthy will not take the time to impart any information to me even after I have repeatedly tried to contact him.

After employing Mr McCarthy’s services and having paid him a total of $29,483.80 to date, I would have expected Mr McCarthy to have behaved in an efficient, courteous and professional manner whilst looking after my legal best interest unfortunately this does not seem to be Mr McCarthy’s intent. I still have not received a current account nor have I communicated with Mr McCarthy despite my attempts to do so and this situation has been ongoing for months.

10 Documents before us indicate that Mr McNally first consulted the solicitor about January 2003 and that in June 2005 there was a hearing of his claim against PHD Pest Management before Elliott LCM in the Local Court at Toronto. This led to Mr McNally being awarded a verdict for $15,358.84 plus costs and interest on 20 September 2005.

11 Following Mr McNally’s complaint, it appears that there was investigation of it by the LSC and some response by the solicitor. On 5 November 2008 the LSC wrote to the solicitor in these terms:

I refer to your correspondence to this office dated 15 September 2008. Mr McNally was sent a copy of your correspondence and I now enclose his comments for your response. I would appreciate it if you could address the issues raised in his response. In addition to this, please address the points below.

You will appreciate that the core concern of Mr McNally throughout the life of this complaint has been your failure to fully account for the money paid to you by Mr McNally so that he can pursue Mr Dennis for costs awarded in his favour.

1) In your letter of 15 September 2008 you now acknowledge that Mr McNally paid you a total amount of $29,483.80. You have previously informed this Office that Mr McNally paid you a total of $19,483.80. I am aware that you have recently accessed the hard-drive from your previous practice, McCarthy Legal, and you say that this accounts for the difference in figures.

Please advise why, after two years of this complaint being considered at this Office, you have now checked the hard-drive and confirmed what was paid to you. Please also confirm how you came to conclude there was a discrepancy of $10,000 and how this was overlooked in your earlier responses to this Office.

2) In your letter of 15 September 2008 you enclose a copy of an account dated 15 March 2005. This Office was unaware of this account up until now despite our many requests for you to provide details of all information related to this case. As you will see from Mr McNally’s response, he says he never received this account either and he believes that it was only recently created. He says that if you had this account all along and did not recently create it, why didn’t you send it to him as per his numerous requests. Please address this point.

Please advise why you have not previously forwarded this account to this Office. In addition to this, please provide any evidence that demonstrates this account was sent to Mr McNally.

3) In your letter of 15 September 2008, you say that Mr McNally currently owes you the amount of $8,727.07 but that you will not pursue it unless Mr McNally pursues his complaint.

This Office has never been informed that there were any accounts outstanding. Please explain how you came to the amount of $8,727.07 and what work this included.

I request that you provide a ledger, which sets out all invoices issued to Mr McNally, and the monies received, as well as copies of all receipts issued. If this money was outstanding at the time McCarthy Legal was closed why didn’t you pursue this amount?

4) You will appreciate that Mr McNally is attempting to recover what he was awarded by the court and what is now owed by Mr Dennis, including your costs. You say that your costs are in the vicinity of $7,000 for the work concerning the second defendant’s costs issues but that you do not intend to issue a tax invoice or pursue this. You will appreciate that Mr McNally will not be able to pursue costs from the defendant if there is nothing to show the costs incurred. Please indicate how the $7,000 is calculated.

Finally, the main allegation Mr McNally made about you to this Office was that you failed to provide him with an itemised account so that he could pursue costs as per the costs order that is in his favour. Please advise why, despite this matter being considered at this Office for more than two years now, why you have failed to produce this so that Mr McNally can proceed with his matter. I ask that you provide this itemised account and address the above points so that this matter can be finalised.

I ask that you provide your response to this matter by 19 November 2008.

12 The solicitor did not respond to the letter nor to two follow up letters dated 21 November 2008 and 17 December 2008. However he apparently telephoned the office of the LSC on 2 February 2009 prompting a further letter to him of 3 February 2009:

I refer to the complaint made about you by Mr McNally on 3 August 2006 and my letters to you of 5 November 2008, 21 November 2008 and 17 December 2008.

We have not received your response to our letters as requested.

On 2 February 2009 Mr Milne of this office spoke with your secretary, Lynda. Lynda advised that you had requested an extension to 5pm on 20 February 2009 to provide your response. I confirm that your request has been granted.

I have taken your response as an undertaking that you will provide your reply to our letters no later than 5pm, 20 February 2009. Your failure to comply with this undertaking may result in disciplinary action against you.

If you disagree with my understanding of your undertaking to respond to this complaint, please advise us immediately, no later than 5pm, 6 February 2009.

I look forward to receiving your response.

13 Having received no satisfaction in the meantime, the LSC sent the notice to the solicitor under cover of a letter dated 20 March 2009:

As you are aware, this office was established to deal with complaints about solicitors and barristers in New South Wales. I advise that the Commissioner has initiated a complaint about your conduct in relation to your breach of undertaking given by Mr Jim Milne on 27 February 2009, your breach of undertaking given to the Commissioner on 7 February 2007 and your obstruction of the investigation of the complaints made about you by Steven and Janice Jankovic and Ross McNally. A copy of his record of decision is enclosed.

I ask that you kindly provide your response to the allegations as made and that you provide any information you consider may assist with my assessment of these complaints by no later than 10 April 2009.

Please also find enclosed a section 660 notice issued to you in relation to the complaints made by Steven and Janice Jankovic and Ross McNally. You will note your response to the 660 notice is required by no later than 24 April 2009. As you are aware, failure to comply with a section 660 notice by the due date may amount to professional misconduct.

I look forward to receiving your response to the Commissioner’s complaint by no later than 10 April and your response to the section 660 notice by no later than 24 April 2009.

14 Thus it was that the present complaint came before this Tribunal for hearing on 20 May 2010 when Ms Muston, solicitor, appeared for the LSC and Mr Donohoe of counsel for the solicitor. It was indicated that the solicitor did not dispute his failure to comply with the notice but Mr Donohoe sought an adjournment in order that a report might be obtained as to the state of his client’s mental health. Ms Muston did not consent to the application and made reference to the solicitor’s appearance before the Tribunal on previous occasions for similar matters, to the number of times this matter had been before the Tribunal and to the solicitor’s past failure to comply with the Tribunal’s directions. Mr Donohoe proffered an undertaking that the solicitor would not practice during the adjournment period.

15 In the result, the Tribunal granted an adjournment until 29 June but ordered that the solicitor’s practising certificate be suspended until further order.

16 When the matter was called on for hearing on the adjourned hearing date, Mr N Beaumont of counsel appeared for the LSC and Mr B W Collins QC with Mr J Hutton for the solicitor.

17 At the outset, Mr Collins indicated that the solicitor disclaimed reliance on any medical basis for his conduct. He tendered a report from psychiatrist Dr Rodney Morice to the effect that he could find no evidence for the presence of any psychiatric condition.

18 The hearing then proceeded. Mr Beaumont reading the affidavits of the LSC Mr Mark, sworn 20 August 2009 and 11 February 2010 annexing documents relevantly summarised above.

19 Mr Beaumont also tendered the solicitor’s reply dated 18 May 2010 and during the course of the solicitor’s evidence, a bundle of documents relating to previous proceedings in the Tribunal against the solicitor. The reply admitted the grounds of the Complaint.

20 The bundle of documents Ex B reveals that the solicitor has been before the Tribunal on three prior occasions as follows:

1. On an application for a finding of professional misconduct and consequential orders made by the LSC on 25 September 2006.

The application particularised two matters related to the complaint of a Ms Lynette Thompson, namely failure to respond to a notice dated 27 June 2006 issued pursuant to s 660 of the Act and breach of an undertaking given to an officer of the LSC.

The application became the subject of an instrument of consent under s 564 of the Act signed on 7 February 2007 whereby with the consent of the Tribunal there was a finding that the solicitor was guilty of professional misconduct. He was publicly reprimanded, ordered to pay a fine of $2,000 and ordered to pay the costs of the LSC. It was also noted that he had undertaken to respond to all written communications from the LSC within 28 days, to respond to telephone calls from the LSC within 3 days and to provide the information required of him by the subject of the relevant complaint by 14 February 2007.

2. On an application for a finding of professional misconduct and consequential orders made on 14 January 2008. The application was grounded on the solicitor’s breach of the undertaking given on 7 February 2007 to reply to all written communications from the LSC within 28 days. It was alleged that he failed to honour this undertaking in respect of certain further information sought in relation to Ms Thompson’s complaint.

On 2 June 2008, the Tribunal found the solicitor guilty of professional misconduct, publicly reprimanded him, ordered him to pay a fine of $2,500 and ordered him to pay the costs of the LSC. Those orders followed a hearing in the absence of the solicitor, the solicitor as recorded in the Tribunal’s reasons having written a letter stating "It is quite obvious the Tribunal will make a finding against me on your assertion. It is equally obvious no purpose can be served by my attendance. Therefore I leave the matter in the hands of the Tribunal to determine it in my absence".

3. A complaint by the Law Society that the solicitor employed a disqualified person without first obtaining approval. On 16 September 2004 he was found guilty of statutory professional misconduct publicly reprimanded and ordered to pay the costs of the Law Society.

21 In the case for the solicitor, Mr Collins read his affidavit sworn 28 June 2010 and a number of affidavits testifying as to the solicitor’s character.

22 The solicitor said that he was born on 10 November 1944 and was admitted to practice as a solicitor on 11 November 1975. For almost his entire professional life he has practised in the Central Coast area of NSW mostly in partnership or on his own account. However at the end of 2006 he sold his practice and joined Brazel Moore Lawyers at Gosford as a senior consultant. He practised there from 1 December 2006 until 23 December 2009 during which time he acted in a variety of substantial matters both litigious and otherwise.

23 The solicitor annexed to his affidavit a letter dated June 2010 responding to the notice. We interpolate that Mr Beaumont conceded that the letter had been received by the LSC within the previous few days and that it adequately responded to the notice. Inter alia the letter stated that the file of Mr and Mrs Jankovic had been sent to their solicitors, Edwards Legal Services, under cover of a letter dated 19 March 2007.

24 Under the heading "My contrition" the solicitor made these observations about his failure to make a timely response to the notice:

37. Rather than devote strenuous efforts to attempting to explain away my failure to respond to the correspondence from the OLSC between December 2007 and February 2009 (OLSC correspondence), and to the s 660 Notice in June 2009, I have tried to take this opportunity to depersonalise the matter and look back over it bearing in mind what I understand should reasonably be expected of an experienced practising solicitor.

38. When thinking on these things, and particularly after reading the statement of my former personal assistant, Ms Linda Harquoil, it seems to me as if I was engaging in some kind of avoidance in which I threw myself into my clients’ work rather than address something that was personally distressing to me.

39. I initially attempted to respond to the s 660 Notice when it came to my attention on 9 June 2009, and requested an extension of time to 16 June 2009. When that deadline passed, and as further time went by, I felt guilty about my failure to respond to it. I absorbed myself in client work and put it to the back of my mind. The more I procrastinated, the more worried and guilty I felt about it, and the less inclined I was to address it. I went through the same mental processes in relation to the OLSC correspondence.

40. I acknowledge that this is a substantial and unacceptable failing. I also acknowledge that this process of avoidance and procrastination is the principal reason for my failure to respond to the OLSC correspondence and the s 660 Notice. Having considered the matter carefully, it now seems to me that the personal issues I put forward as an explanation for my failures to respond in my original affidavit just skirt around the problem and do not address it.

41. After considering the question of my failure to respond to the s 660 Notice and the OLSC correspondence, I then felt obliged to give some thought to the question of whether the process of avoiding or putting off difficult or sensitive matters could blight my professional practice and prejudice my clients’ interests. Having thought about it, I can confidently state to the Tribunal that I know of no occasion when I have gone through the same process of avoidance and procrastination in relation to client work in the past. Chastened by this experience, I can confidently assure the Tribunal that it will not happen again in the future.

25 The solicitor addressed at some length the details of his relationship with Mr McNally and with Mr and Mrs Jankovic seeking to establish, as we understand it, that they had no legitimate cause to complain about his conduct. We see it as no part of our role to determine that issue. It will suffice for us to say that nothing said by the solicitor in our opinion provides a reasonable explanation let alone an excuse for his failure until the day or so before the adjourned hearing date to comply with the notice.

26 The solicitor deposed to his intention upon the lifting of the suspension of his practising certificate to practice on his own account for another 4 or 5 years then retire. He will conduct this practice from home.

27 In proceedings of this nature, evidence of previous good character is of limited assistance in that as the cases frequently emphasise we are not exercising a punitive jurisdiction but rather are seeking to protect the public. Nonetheless we record that the solicitor has involved himself in voluntary work to advance the profession including serving for a time as president of the Central Coast Law Society.

28 Mr Collins read affidavits of Mr Geoffrey Brazel, Mr John Caslia, Brother Paul Coster, Mr Robert Ferry, Mr David Forster, Mr Anthony Girard, Ms Linda Harquoil, Mr David Spencer and Mr Murray Edwards. Mr Foster was cross examined as was the solicitor himself.

29 Mr Brazel spoke highly of the competence of the solicitor as he found him and said that he was surprised to learn of the solicitor’s failure to respond to the notice. He said that he would be willing to assist the solicitor in respect of future problems. Mr Edwards testified to receiving the Jankovic file from the solicitor in March 2007.

30 Mr Caslia, who had been a client of the solicitor over a lengthy period, testified as to his competence and diligence. Brother Paul Coster, who has known the solicitor for 8 years, described him as a loyal and honest friend. Mr Ferry, who has practised as a solicitor on the Central Coast for 33 years, said in effect that the solicitor’s failure to comply with the notice was out of character for the man he knew. He spoke highly of his ability and integrity. Mr Spencer, now a solicitor and previously a police prosecutor who has known the solicitor for about 9 years and who worked with the solicitor at Brazel Moore, spoke of the solicitor as a good mentor and knowledgeable solicitor whose advice was often sought by other practitioners. He described his failure to comply with the notice as out of character.

31 Mr Foster, a barrister, said that he has known the solicitor since commencing practice in 2006 and said that the solicitor briefs him on a regular basis in the Local Court and District Court. His affidavit contained these paragraphs:

6. I am deeply concerned about the matter as in my belief the conduct complained of is out of character for the Respondent. In my dealings professionally, as my instructing solicitor I have found his ethics, enthusiasm, empathy and support for his clients’ causes to be second to none. In my opinion the Respondent has a very conservative and cautious approach to the practice of law. The Respondent will always disclose to a client the merits and difficulties of any matter in which he takes instructions. The Respondent will not commence proceedings in any matter unless he is well satisfied of a good cause of action.

7. The practice of law has in the last decade become increasingly complicated. This is especially so for the suburban solicitor in general practice. I know that the Respondent has kept up to date with the changes to the law. I have always admired the great skill that the Respondent possesses in general practice over a wide area of the law.

8. The current matters before the Tribunal concern the non response to the Legal Services Commissioner in regard to two complaints. In mitigation I can only affirm that the Respondent was an integral part of a very busy multi-partnership firm. I believe that in the Respondent’s general daily business, because of overload of work in the practice, attention to the complaints, in hindsight, should have been attended to in a more timely fashion than they were.

9. I hold the Respondent in the highest regard. I believe he is fit to continue practice as a solicitor.

32 Mr Foster was available for cross examination which somewhat undermined his testimony when it was revealed that the solicitor had not disclosed to Mr Foster his prior involvement in matters before the Tribunal.

33 At the request of counsel, after the close of the evidence, we adjourned in order that written submissions might be made. With Mr Beaumont’s consent, we vacated the previous order for suspension of the solicitor’s practising certificate.

34 In submissions made on behalf of the LSC, it was stated that the LSC no longer contends that the solicitor is permanently unfit to practice. It was accepted that the reply which the solicitor ultimately made to the notice revealed matters which tended to assist him in relation to the underlying complaints which were dismissed.

35 The submission however, correctly, in our view, conceded that having regard to his history the solicitor may well again fail to comply with a notice given by the LSC. It proposed that in addition to a fine and reprimand some degree of supervision should be imposed such as that ordered in LSC v Knudsen (No. 2) [2006] NSWADT 245.

36 Submissions made on behalf of the solicitor accepted that orders should be made as contended by the LSC and suggested that a supervision order could require the solicitor to seek advice from either Mr Collins or Mr Brazel in the event that he receives any further requirement under the Act to provide information or documents.

37 The submission referred to the solicitor’s expression of shame and contrition and to asserted mitigating factors including belated compliance with the notice, and the fact that the solicitor had a satisfactory explanation for the underlying complaints and was not attempting to conceal wrong doing. It was also submitted that the likelihood of the solicitor offending in the future is low inter alia having regard to the limited nature of his future practice and the proposed order for supervision. Reliance was also placed on his previous good character.

38 When we came to deliberate upon the matter the members of this Tribunal were concerned that the submissions had not sufficiently addressed the present fitness of the solicitor to practice and as a consequence the parties were invited to make further submissions focussing on that aspect.

39 Both counsel took advantage of that invitation. Counsel for the solicitor suggested as an alternative to the supervision originally proposed a more rigorous regime of supervision.

40 On the face of it, the conduct of the solicitor in failing to comply with the notice and in failing to honour his undertaking to the LSC is so egregious that it must give rise to doubts about his fitness to practice within the criteria established by Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. On one view of his conduct the solicitor treated the LSC with gross contempt.

41 However the Tribunal is persuaded that contempt is not the explanation for the solicitor’s conduct but rather an inability to face unpleasant situations. However, nothing in the evidence before us gives us confidence that in a similar situation the problem will not recur. For that reason, we are of the opinion that a stronger sanction is required than that imposed in Knudsen or as originally suggested by the solicitor’s counsel. We believe that formal supervision should be ordered for a period pursuant to s 562(4)(c) of the Act. In that regard we propose to adopt the alternative suggestion made by the solicitor’s counsel which will have him making a regular telephone report to the office of the LSC. We have decided that this should continue for a period of 2 years. In addition for the same period we will impose a condition similar to that imposed in Knudsen.

42 On the basis of that supervision for a relatively lengthy period we are comfortable that it is not necessary to prevent the solicitor from continuing to practice even though we find him guilty of professional misconduct.

43 There should also be a public reprimand, the imposition of a fine and an order that the solicitor pay the costs of the LSC. As to the quantum of the fine, the sum of $8,000 was suggested. However in the circumstances of this case the Tribunal is of the opinion that the fine should exceed that amount and proposes to fix the fine at $10,000.

44 The Tribunal makes these findings and orders:

1. The solicitor is guilty of professional misconduct.

2. The solicitor is reprimanded.

3. The solicitor is ordered to pay a fine of $10,000.

4. The solicitor is ordered to undertake a period of 2 years of practice under supervision, such supervision dating from today, to be constituted as follows :

a) by the solicitor at least once during each calendar month telephoning an officer of the Legal Services Commissioner (LSC) and reporting to her or him whether any client has complained about his professional conduct since his last report, as to the general nature and number of matters currently handled by him and as to any change in his circumstances relating to the manner and conduct of his practice.

b) by the solicitor within 7 days of receiving a written complaint from a client providing a copy of that complaint to the LSC.

5. The solicitor is ordered to pay the costs of the LSC as agreed upon or assessed.

6. In case any difficulty arises in the implementation of Order 4, each party to have liberty to apply on 7 days notice to the other.

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


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