On 28 January 2020, the Council of the Law Society of New South Wales (the Council) applied to the Occupational Division of the Tribunal for disciplinary findings and orders under the Legal Profession Uniform Law (NSW) (Uniform Law) in respect of Barry Bunton (the Solicitor). The Council alleges that the Solicitor is guilty of professional misconduct because he failed to comply with an undertaking he gave to the Law Society, on 12 May 2016, to attain three continuing professional development (CPD) points by 10 August 2016. The Council seeks orders that he be reprimanded and pay the costs of the Council as agreed or assessed.
On 8 April 2020, submissions were taken in relation to whether the Tribunal should dispense with a hearing under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act), and neither party opposed that course. We are satisfied that this matter can be appropriately dealt with on the papers, the parties having acknowledged this at an earlier call-over, and we will make an order that a hearing in relation to the application be dispensed with.
[2]
Application for disciplinary findings and orders
The allegations against the Solicitor in the application dated 28 January 2020 (the application) were originally made in an application lodged with the Tribunal on 16 April 2019 (proceedings 2019/00119317). By order of 7 August 2019, the Tribunal found that those proceedings were affected by procedural defects and, by consent, dismissed the proceedings without any order for costs. The Council seeks to recommence the proceedings pursuant to cl 23(5)(a) of Sch 9 to the Legal Profession Uniform Law Application Act 2014 (NSW) (the Application Act). That section provides:
Any proceedings commenced in a court or tribunal by an authorised delegate or subdelegate that were terminated on a relevant invalidity ground during the relevant period at the instigation of an authorised delegate or subdelegate -
(a) may be recommenced under the authority of this clause by the same delegate or subdelegate in the court or tribunal on the basis of the applications and other documents by which those proceedings were last commenced.
Pursuant to cl 23(6) to Sch 9 of the Application Act, the Council may do so where, as here, the proceedings are recommenced no later than 6 months after the day on which operation of this clause commenced, which was 22 November 2019.
The particulars grounding the application are as follows:
1. The Respondent:
(a) was admitted as a lawyer in New South Wales on 8 March 1985; and
(b) currently holds, and since 18 July 1985 has held, a New South Wales Practising Certificate.
2. On 12 May 2016, the Respondent provided a written undertaking to the Law Society to attain three Continuing Professional Development points by 10 August 2016 (Undertaking).
3. During the period 12 May to 10 August 2016, the Respondent did not attain any Continuing Professional Development points.
4. In the circumstances referred to in paragraphs 2 and 3, the Respondent breached the Undertaking.
Those allegations are evidenced by the following affidavits filed and served by the Council: affidavits of Nadya Justine Haddad and Terrie Maree Gibson of the Law Society. This evidence is relied upon by the Council and unchallenged by the Solicitor.
The orders sought by the Council are as follows:
1. the Respondent be reprimanded.
2. the Respondent pay the costs of the Applicant as agreed or assessed.
3. such others orders as the Tribunal deems fit.
[3]
The Solicitor's position
On 30 April 2020, the Solicitor notified the Tribunal that he does not contest the orders sought by the Council in the application, and that the parties have agreed to the quantum of the Council's costs that he has agreed to pay.
The Solicitor also indicated to the Tribunal that he would not be filing a reply, affidavit evidence or submissions in the proceedings, and, by consent, requested that the Tribunal vacate its orders of 8 April 2020 which required him to do so (Orders 1 and 5). On 6 May 2020, the Tribunal ordered that Orders 1 and 5 be vacated.
[4]
Jurisdiction and findings
There is no dispute between the parties that the Uniform Law applies, and we find that it does apply to these proceedings. We are satisfied we have jurisdiction to determine the application: Uniform Law, ss 300 and 302.
The relevant facts are also not in dispute and we make the following findings:
1. The Solicitor was admitted as a lawyer in New South Wales on 8 March 1985;
2. The Solicitor currently holds, and since 18 July 1985 has held, a New South Wales Practising Certificate.
3. On 12 May 2016, the Solicitor provided a written undertaking to the Law Society to attain three Continuing Professional Development points by 10 August 2016 (Undertaking).
4. During the period 12 May to 10 August 2016, the Respondent did not attain any Continuing Professional Development points.
In so doing:
1. the Solicitor breached the Undertaking; and
2. the Solicitor has not demonstrated any reasonable excuse or explanation for the breach of the undertaking.
[5]
Whether the Solicitor is guilty of professional misconduct
The Council contends that the Solicitor is guilty of professional misconduct. The relevant provisions of the Uniform Law are set out below:
296 Unsatisfactory professional conduct
For the purposes of this Law, unsatisfactory professional conduct includes conduct of the lawyer occurring in connection with the practice of law that fall short of the standard of competence and diligent that a member of the public is entitled to expect of a reasonably competent lawyer.
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; …."
While we note that the Solicitor does not contest the Council's proposed orders and the characterisation of his conduct as professional misconduct, it is nonetheless our task to consider whether it is appropriate to characterise the conduct of the respondent as professional misconduct. The question is whether the Solicitor's conduct in breaching an undertaking to the Law Society constitutes professional misconduct because it is unsatisfactory professional conduct which involves a substantial failure to reach or maintain a reasonable standard of competence or diligence.
We refer to, and agree with, what was said in Council of the Law Society of NSW v Powell [2019] NSWCATOD 24 at [20] - [21]:
"… the legal profession is an honourable one and legal practitioners are expected by the community, by fellow practitioners, and by the relevant regulatory authorities to behave honourably always. It is an everyday occurrence in all areas where lawyers practice that legal practitioners provide undertakings to fellow practitioners and to a wide range of commercial and statutory entities both on their own behalf and on behalf of their clients. Other legal practitioners and commercial and statutory entities rely on compliance with those undertakings in their everyday activities. Such reliance is integral to the efficient and effective functioning of a whole range of activities within our community. It is essential that undertakings given by legal practitioners be genuinely provided and that they be honoured. It is for these reasons that prima facie, a breach by a legal practitioner of an undertaking, whether given during legal practice or not, will arguably constitute a most serious matter, and may in relevant circumstances, adversely impact upon the integrity of the profession in the eyes of the public.
In addition, a practising certificate constitutes an authority to carry on practice as a legal practitioner. The authority so granted creates a privilege in the hands of the practitioner. Any breach of any condition imposed on the right to practice must also, per se, be a matter to be taken seriously."
In Law Society of New South Wales v Thompson [2018] NSWCATOD 57, the Tribunal emphasised "the fact that it is an egregious wrong for any legal practitioner to fail to honour an undertaking. So much of the litigation and commerce between solicitors depends upon oral and written undertakings being honoured". The Tribunal further commented that the giving of an undertaking as a solicitor is "one of the cornerstones of our profession as lawyers and it is a very serious matter".
There have been many decisions of this Tribunal concerning breaches by solicitors of undertakings, and relevantly to these proceedings, undertakings given by solicitors to the Law Society.
It may generally be accepted that, in the absence of countervailing considerations, if the undertaking has not been honoured, the practitioner will be guilty of professional misconduct: Council of the Law Society of New South Wales v Lewis [2019] NSWCATOD 100; Law Society of New South Wales v Thompson [2018] NSWCATOD 57; Council of the Law Society of NSW v Marando [2018] NSWCATOD 194.
This includes instances specifically involving failure to comply with undertakings to complete mandatory continuing legal education (MCLE) or continuing professional development: Council of the Law Society of NSW v Arraj [2014] NSWADT 117 and Council of the Law Society of NSW v Sandroussi [2012] NSWCATOD 40.
Failure to honour an undertaking constitutes a breach of Rule 6.1 of the Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015, which provides that:
A solicitor who has given an undertaking in the course of legal practice must honour that undertaking and ensure the timely and effective performance of the undertaking, unless released by the recipient or by a court of competent jurisdiction.
Where that undertaking was given to the Law Society, the non-compliance is particularly serious: Council of the Law Society of New South Wales v Morgan [2015] NSWCATOD 71 and Council of the Law Society of New South Wales v Powell [2019] NSWCATOD 24.
If the undertaking also relates to the solicitor's obligation to complete CPD, which is a statutory condition of the solicitor's practising certificate (Uniform Law, s 52), the seriousness of the issue is in our view compounded, as the solicitor is, through his or her default, also in breach of that condition.
The Solicitor in the present matter does not offer any explanation that might provide a reasonable excuse for his conduct, and accordingly, we do not propose to address whether there may have been mitigating factors or reasons that interfered with his capacity to attend the required number of CPD units in the time stipulated in the Undertaking. He concedes that his conduct amounts to professional misconduct.
As the former Administrative Decisions Tribunal said in Council of the Law Society of NSW v Sandroussi [2012] NSWADT 40 at [39]:
The clients, the public, other members of the profession and the courts are entitled to expect a solicitor to be a person of honesty and integrity and to comply with legal requirements in relation to his Practising Certificate and undertakings given by him to the Law Society. They are entitled to expect a solicitor will be committed to continuing legal education as part of achieving and maintaining competence.
In our view, breach of the undertaking to the Council is a substantial failure by the Solicitor to maintain a reasonable standard of competence and, in the context in which it arose, is also demonstrative of a failure to apply a reasonable level of diligence.
We find the Solicitor guilty of professional misconduct.
[6]
Penalty
It is well-established that the jurisdiction of both the courts and the Tribunal in legal professional disciplinary matters is protective, not punitive. In Law Society of New South Wales v Walsh [1997] NSWCA 185 it was said that the Court's duty to protect the public is not confined to the protection of the public against further misconduct by the particular practitioner who is the subject of disciplinary proceedings. It extends to protecting the public from similar defaults by other practitioners. We think the same obligation lies on the Tribunal.
The Tribunal's power is to be exercised in a manner that is likely to achieve the maintenance of a high standard of conduct within the profession, which will continue its good reputation. In considering the matter of penalty, we have considered specific deterrence and protection of the public as necessary aims as they relate to the Solicitor and the accompanying aims of general deterrence and education of the legal profession.
Having found the Solicitor guilty of Professional Misconduct, the Tribunal may make "such orders as it thinks fit": Uniform Law, s 302.
Whilst we are satisfied that the finding of professional misconduct is made out, the penalty imposed should be reflective of the seriousness of the offence. We think that a reprimand is an appropriate penalty. There is no evidence of the Solicitor having any other relevant adverse disciplinary history and he has readily admitted his misconduct, and the seriousness of it. He has also co-operated with the Law Society and has demonstrated a clear understanding of the seriousness of his conduct in the way he has presented his response to the application to the Tribunal. We are conscious that an order of this kind will be given publicity through the internet and should not be regarded as an insignificant penalty.
Such order is also proportionate with other analogous matters previously determined to which we were referred by the Council.
[7]
Costs
In relation to costs, cl 23(1) of Sch 5 to the NCAT Act provides that, despite s 60 of the Act, the Tribunal must make orders requiring a respondent lawyer whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay the costs of the complainant, being the Council, unless the Tribunal is satisfied that exceptional circumstances exist.
The respondent has not put forward any evidence establishing exceptional circumstances and concedes that he should pay the Law Society's costs. The amount of those costs is agreed in the sum of $1,200.
[8]
Decision and Orders
Having found the respondent guilty of professional misconduct, we make the following orders:
1. The respondent is reprimanded.
2. The respondent is to pay the applicant's costs of the proceedings, fixed in the sum of $1,200.
[9]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 22 June 2020