Council of the Law Society of New South Wales v Autore

Judgment (8 paragraphs)

[1]

INTRODUCTION

This is an application by the Council of the Law Society of New South Wales (the applicant) seeking disciplinary findings and orders against Anthony Autore (the respondent). The application alleges that the respondent failed to comply with a notice issued under s 371 of the Legal Profession Uniform Law Application Act 2014 (the Uniform Law). The respondent said he complied with the notice and also said the notice was not authorised by law. Section 371 relevantly provides: 371 Requirements - complaint investigations (1) For the purpose of carrying out a complaint investigation in relation to a 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 or before a specified time and at a specified 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 cooperate with, the investigation of the complaint in a specified manner.
Notice pursuant to s 371 was served on the respondent on 3 May 2017. That notice related to a complaint made against the respondent on 15 March 2016. It is important to emphasise that we are not concerned with that complaint. We are concerned only with the questions whether the respondent has complied with the notice served upon him on 3 May 2017 and whether the notice was lawfully issued.
On 24 May 2017 the respondent wrote to the applicant providing what the applicant says was an incomplete answer to the notice.
On 25 May 2017, a complaint was made against the respondent alleging he had failed to comply with the notice.
The notice required compliance on or before 21 days after service.
On 29 May 2017 a letter was sent by the applicant to the respondent informing him of the complaint and requesting his response by 20 June 2017. No response was received.
On 22 June 2017 a further letter was sent by the applicant to the respondent requesting a response by 14 July 2017. No response was received.

Questions 1 (a)(i) to (ix)

By letter of 24 May 2017 the respondent answered questions 1(a)(i) to (ix) in the following way: I confirm letter dated 28 February 2017, from Mr Williams which he sent to the Society, on instructions accords with my instructions that Mr Sommadossi signed authority of individual transfer of the sum of costs outstanding at the time when a ill (sic) of costs was presented to him in my office at this attendance, each individual authority signed on the date of the authority was given to me by Mr Sommadossi knowing of individual transfer from trust to satisfy my costs outstanding at that particular referable to transfers that were affected. (a) In relation to each of the following tax invoices issued by me to Mr Sommadossi referred to at pages 204 to 210 of the trust report prepared by Mr Ronald Dunlop dated 24 July 2015 (Trust Report)), I specify that the signed authorities located at pages 213 to 220 of the trust reports relate to each of the tax invoices as follows (i) Tax Invoice dated 18 March 2014 in the sum of $46,200 (ii) Tax Invoice dated 10 April 2014 in the sum of $19,800 (iii) Tax Invoice dated 1 May 2014 in the sum of $6,600 (iv) Tax Invoice dated 1 June 2014 in the sum of $6,600 (v) Tax Invoice dated 19 June 2014 in the sum of $77,000 (vi) Tax Invoice dated 1 July 2014 in the sum of $5,500 (vii) Tax Invoice dated 28 July 2014 in the sum of $5,500 (viii) Tax Invoice dated 4 August 2014 in the sum of $5,500 (ix) Tax Invoice dated 25 August 2014 in the sum of $11,000
The applicant contends that the response does not answer that question as the tax invoices are not correlated with the signed authorities. In evidence before the Tribunal on 5 June 2018, the respondent was asked questions about each of the invoices and authorities, commencing with the invoice of 18 March 2014 [T14.24]: PIEROTTI: You say that those invoices and those authorities match. Do I have that right as your response in the notice? AUTORE: I think those authorities matched the time when Mr Sommadossi came in to sign the authority, each time he came in. PIEROTTI: Lets not worry about when - I just want to know what the answer is to question 1A. Your answer appears on its face, the signed authorities located at page 213 to 220 and those are the pages contained in Ms Foord's affidavit, do you see that? Although I think there's a typo. I think she says 214; it's actually 213. From 213, not 214, are the various authorities. You say those authorities at pages 213 to 220 marry up with the bills at 204 to 210. AUTORE: Yes. PIEROTTI: Which one marries which, Mr Autore? AUTORE: They're in date sequence, so the first- PIEROTTI: Well, okay, let's just take it very, very simply. If we take the first authority, which is page 213, which bill does it refer to? AUTORE: 18 March 2014. At T15.17: PRINCIPAL MEMBER: Can I ask this question?. We're dealing with A, which is the amount of $46,200? AUTORE: Yes PRINCIPAL MEMBER: The invoice bears the date 18 March 2014. The authority, am I correct, that relates to that bears the date 30 March 2014? AUTORE: Yes. At 15.33: PRINCIPAL MEMBER: Why was it done retrospectively? The invoice is dated 18 March; the authority post‑dates that as 30 March. AUTORE: Because you send the bill out to the client, you ask the client to come in, you see the client and he signs in front of you. And he signed the trust authority to release in front of me. At T16.12: PIEROTTI. Can I take you to page 214? Which bill does that relate to? AUTORE: The following one, 10 April 2014. PIEROTTI: No, it says monies due under the memo of costs and disbursements that are outstanding. On the previous day, Mr Sommadossi authorised you to pay what was outstanding. You don't have any bill between 18 March and 10 April, so he couldn't have authorised you to take money about something that hadn't been rendered. AUTORE: Is that a double? I don't know what that's… At T19.5: PIEROTTI: Mr Autore, what I'm putting to you, sir, is that your answer on page 2 is nonsensical. It makes… You cannot, as you stand there today, make that assumption that you can relate one invoice with the other until and unless you say invoice X meets with authority Y. AUTORE: No, that's not correct. PIEROTTI: So, you say that the exercise that we've just gone through now explains clearly which one is which? Correct? AUTORE: Yes.

Question 4

In the letter of 24 May 2017 the respondent said: 4. I'm in the process of repairing my computer system and updating it from an XP System to a Windows 10 system. I expect that I will be in a position to attend to producing an itemised bill in between my clients' obligations as I am a sole practitioner and I expect to conclude this within 12 weeks of the date of my response.
In evidence [T25.18]: PIEROTTI: Mr Autore, if you could hold onto the letter. Mr Williams says to the effect, and please correct me where I go wrong, that the itemised bills- I withdraw that. That you, his client, were not able to be certain when the itemised bills would be completed, not that they weren't done, not that they wouldn't be doing[sic], but when they would be completed. Is that not the case? AUTORE: It also talks about- PRINCIPAL MEMBER: You're not answering the question. AUTORE: Well, he[sic] letter goes to the point where I'm not in a position to indicate when the itemised bills will be completed. At T25.31: AUTORE: It is, you will understand, a substantial and not an inexpensive task. And that's what was going through my mind. In respect of the penultimate paragraph of your letter, through the meaning of my statement referred to, it was made abundantly clear given the context which is apparent appeared in my letter of 10 April 2017. As a matter of law, where the amount charged represents an overcharge or gross overcharge requires a comparison between the amounts charged and the amounts which represent fair and reasonable charge for the work charged. And it goes on to say to Ms Lai, as in Nikolaidis(sp), in the present case there is no uncertainty as to how much was charged. There is no basis point to which The Law Society can form any view as to what would constitute fair and reasonable charges. PIEROTTI: Mr Autore, that letter says that the itemised bills have commenced to be prepared, but we don't know when they'll be complete. Correct? AUTORE: Correct. At T26.29: PIEROTTI: Thank you. If you go to page 3 of your letter of the 24th [of May 2017] is your response. AUTORE: Yes, and at that time when- PIEROTTI: No. Let me finish my question. Where in that response do you tell Ms Lai when you commenced the preparation of the itemised account? AUTORE: As of 14 May 2017, my response was that I'm in the process of repairing my computer system. So, as of 24 May, I hadn't commenced. I was in the process of repairing my computer system. You need… If I can at least try to understand allay what I was meaning, I was in the process of repairing my computer system as of 24 May, right? I explained in this sentence that it was an XP system, outdated. PIEROTTI: Let's forget about the system, Mr Autore. Where did you respond to question 4? AUTORE: There. PIEROTTI: What was the date? AUTORE: There was no date that I commenced preparing the bill, but I expected to be in a position to do something. But as of 24 May- PIEROTTI: What did you expect to be in a position to do so? AUTORE: To at least recover information- At T27.18: PIEROTTI: Mr Williams had said that you'd commenced. Ms Lai said when did you commence? And you said, I'm going to conclude it in 12 weeks. Did you answer the question? AUTORE: Well. I would've commenced, but I haven't concluded. PIEROTTI: Mr Autore would you kindly answer my question? Mr Williams in the letter that you've read to the Tribunal, part thereof, said that you'd commenced to produce the itemised bill. Ms Lai's notice asked you when did you commence. Your answer, with respect, sir, says 'I'll finish it in 12 weeks, because I have had a computer crash'. Did you answer question 4? AUTORE: To the best of my ability and the circumstances surrounding my office and the computer system. PIEROTTI: When was the date that you commenced producing the bill, that now you said you hadn't commenced? AUTORE: There's no commencement of the bill. There would've preparation of getting the work or the items of work from the hard system and the computer system.[sic] That's what I mean by commence. At T28.17: PIEROTTI: Mr Autore my only interest is asking you the question, did you tell Ms Lai A) I started it on a day, or B) there is no bill? AUTORE: Well- PIEROTTI: Yes or no? AUTORE: I rang Ms Lai. I rang Ms Lai. I telephoned her. PIEROTTI: In the response- AUTORE: No, Mr Pierotti, if I could just tell you. You asked me whether I- I rang Ms Lai by telephone. I was trying to explain this, she told me I was not to telephone her, talk to her orally, because that's not how she investigates matters. That was the end of my conversation and contact with Ms Lai until today. PIEROTTI: Mr Autore, there's no reference to any date in your reply, is there? AUTORE: No you asked me when I said something to Ms Lai and I'm just telling you now- PIEROTTI: I'm asking you a question, sir. In your reply- AUTORE: No.
Ms Lai was an investigator appointed by the Law Society and it was she who issued the s 371 notice.
With the respondent's letter of 24 May 2017 was a statutory declaration of the respondent which relevantly said: "My response to the New South Wales Law Society on 24 May 2014 in the matter of complaint by the was true and correct."
The respondent filed an affidavit sworn 19 March 2018, much of which was excluded because those parts related to the complaint which is unrelated to these proceedings. Paras 5 to 33 and para 36 were excluded together with its annexures, save for a copy of the letter from the respondent to the applicant bearing date 24 May 2017 and the statutory declaration verifying his response in that letter. The applicant's complaint was also annexed to the affidavit.
The respondent arranged for a copy of the transcript of his evidence to be prepared, and the copy which is on the file is now accepted as being an accurate transcription of the oral evidence given before us. We are grateful for the assistance it provided.
The applicant's case is that the respondent, despite his initial assertions to the contrary, has failed to respond to paragraphs 1(a)(i) to (ix), 2(b), 2(d), 3(i), 3(iii), 3(iv) and 4 of schedule 1 to the notice served upon him.
The respondent has submitted that the notice served upon him requiring the production of documents and information was not authorised by law. He has submitted that what the applicant was seeking to do was to interrogate him and to cross‑examine him. We find no substance in these submissions and dismiss them. The questions were properly asked and authorised by s 371.
The applicant submits that the respondent did not satisfactorily comply with the notice. In cross‑examination ultimately he conceded that the bulk of his responses to the notice were not responsive to the questions asked.
The evidence given in answer to a question addressed to the respondent by the Principal Member is inconsistent with the contents of the first quoted paragraph of his letter of 24 May 2017, quoted in para 15 above and inconsistent also with his answer to question 3(c)iv quoted in para 18.
In respect of question 1, the respondent could not sequentially assign relevant authorities with invoices. This would be a relatively simple task, but throughout his evidence is confusing and contradictory.
In evidence, the respondent sought to relate tax invoices issued on various dates with authorities signed by his client. We found his evidence difficult to follow and sometimes inconsistent. What, however, remains clear is that despite his assertions that he responded to question 1 in the notice, he did not.
The respondent says he encountered difficulties as a result of his failure to have his trust account ledger with him when he came to the Tribunal. We do not know why he did not have it with him.
We have had difficulty understanding all of the respondent's evidence. It was pointed out to us that the last authority was of 4 March 2015 but the last tax invoice was issued in August 2014. If anything, it appears to us that there has been a reconstruction on the part of the respondent to answer the questions put to him by Mr Pierotti.
Question 2 of the notice required the respondent to answer the questions there recited. He did answer questions 2(a) and (c). He did not answer questions 2(b) and (d). So much was admitted by the respondent at T19.34 and T20.16.
The respondent admitted in the course of cross‑examination that he had not answered questions 3(i), (ii), (iii) but said he did answer question 3(iv). That question asked, "What invoice(s) was/were discussed". His answer was "When I showed him the files or bills, he signed the cost authorities and I advised that I was drawing on the monies". Plainly, that is an unresponsive answer to the question asked in the notice, and our conclusion is that he failed to answer any of the questions asked in Item 3 of the notice.
Question 4 required the respondent to give the date upon which he commenced preparation of itemised bills. His response to that question was that he was in the process of repairing his computer system and updating it from an XP System to a Windows 10. He expected that he would be in a position to attend to producing an itemised bill within 12 weeks of the date of his response.
No itemised bill has been produced, nor has his computer system been updated. The respondent has said it was therefore impossible for him to produce an itemised bill, but no answer to the question was given as required. Such answer as was given, was given in evidence, not in compliance with the notice.
The respondent sought to introduce into these proceedings questions relating to the complaint which gave rise to the issue of the s 371 notice. As noted earlier, the evidence in relation to those matters in his affidavit was excluded. Somehow, there was material from other files relating to other matters put into the file in this matter. They have been returned to the Registry to be placed in the appropriate file and they were ignored.
We are unable to agree with the respondent's submission that the applicant has overstepped its mark, and that he has done all he was required to do to comply with the notice. We emphasise that we do not agree that the notice was an exercise in interrogation or cross‑examination. That the notice required information which the respondent said had previously been required, is no answer to the demand for replies to the questions asked in the notice. We do not agree that the respondent properly answered all of those questions.
We make these general comments.
In relation to the applicant's submission that the respondent could not sequentially assign relevant authorities with invoices, we agree. We also agree with the submission that the respondent's evidence was confusing, contradictory and inconsistent.
We find it difficult to accept the respondent's explanation that the preparation of itemised bills could not be achieved because his computer system was inadequate for the task. Solicitors have been preparing itemised bills for many years well before computers became an integral part of their office equipment.
Question 4, however, was not whether in this case itemised bills should have been produced. It asked for the date upon which preparation of itemised bills had commenced. That question was not answered.
The applicant seeks a finding of professional misconduct against the respondent. Section 466 of the Uniform Law relevantly provides: (1) This section applies to a requirement under - . . . (d) section 371 to produce documents, provide information or otherwise assist in, or cooperate with, an investigation; or . . . . . . (6) A failure of an Australian lawyer or Australian-registered foreign lawyer to comply with the requirement is capable of constituting unsatisfactory professional conduct or professional misconduct.
Section 297 of the Uniform Law is in these terms: 297 Professional misconduct (1) For the purposes of this Law, "professional misconduct" includes - (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice. (2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.
Section 298 of the Uniform Law provides that unsatisfactory professional conduct or professional misconduct includes "conduct consisting of a failure to comply with the requirements of a notice under this law ...".
We are conscious of the fact that the notice was served on the respondent on 3 May 2017, and more than 18 months elapsed before the Tribunal adjourned to consider its decision. Very little has been answered. We consider it disturbing that the respondent has consistently failed to acknowledge his obligation to comply with the notice and to fulfil his professional obligations.
We are satisfied that the applicant has established to the required standard, that is, we are comfortably satisfied, that he is guilty of professional misconduct. This is because he failed to comply with a notice properly issued under s 371 of the Uniform Law.
Notwithstanding that the application seeks orders that the respondent be reprimanded and that his practising certificate be suspended until such time as he has complied with the notice, we were invited at the conclusion of submissions, to constitute these proceedings a two stage process, and depending upon the conclusion to which we came in respect of the respondent's conduct, to adjourn the matter for further hearing to determine what orders should flow as a consequence.
We regret the delay in delivering these reasons. That delay was occasioned by the absence of two members of the Tribunal overseas. Their prospective absence was made known to the parties when the Tribunal last adjourned.

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Judgment (8 paragraphs)

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