Council of the Law Society of New South Wales v Ho

Evidence

1. The Law Society's evidence consisted of the following affidavits which were tendered without objection: 1. Affidavit of A M Foord dated 31 August 2018 (Exhibit A); and 2. Affidavit of T M Gibson dated 12 November 2018 (Exhibit B).
2. The solicitor's evidence consisted of the following affidavits which were tendered without objection: 1. Affidavit of the solicitor dated 29 January 2019 (Exhibit 1); 2. Affidavit of the solicitor dated 9 May 2019 (Exhibit 2); 3. Affidavit of J I Eyden dated 8 May 2019 (Exhibit 3); 4. Affidavit of N H Huq dated 8 May 2019 (Exhibit 4); and 5. Affidavit of L Ah Sing dated 10 May 2019 (Exhibit 5).
3. In addition, the solicitor gave oral evidence before the Tribunal and was subject to cross examination. The effect of the solicitor's evidence may be summarised as follows: 1. He recognised that the conduct the subject of the application was dishonest, dishonourable and lacked integrity. He described the period during which he worked with the solicitor (Mr Sun) for the purposes of gaining experience. He started work on 26 October 2016 on an unpaid basis. From January 2017 he was paid and in late March 2017 he took leave to return to South Africa. In August 2017 he returned and formally resigned his employment; 2. His decision to sign a statutory declaration in the name of Mr Sun was not undertaken on the "spur of the moment", but he had decided to do so a few days prior to the date of that declaration; 3. During the period that he prepared and submitted the documents to the Law Society, he was extremely stressed, having financial difficulties and concerned about his professional and financial future. He was also isolated in the sense of having migrated from South Africa without having developed a network of friends or contacts upon whom he could rely. During the period leading up to the submission of the documents to the Law Society, his father had been diagnosed with cancer; 4. He believes he is now fit to practise and that the stressors of the past have reduced. He has regular employment and is in receipt of an income sufficient to pay his rent and expenses; and 5. He decided not to approach his former employer for his signature to confirm his period of service because he had had a falling out and did not want to "lose face". He stated that he had learnt from the experience how to deal with his pride and loss of face.

Law Society's Submissions

1. The Law Society's submissions may be summarised as follows: 1. The jurisdiction of the Tribunal is protective, not punitive (Law Society of New South Wales v Bannister (1993) 4 LPDR 24) but the duty to protect the public is not confined to the protection of the public against further misconduct by the particular practitioner. It extends to protecting the public from similar defaults by other practitioners and therefore has an element of deterrence. The society's function is also educative (Law Society v Walsh [1997] NSWCA 185); 2. The Tribunal should not make an order for the removal of the practitioner's name from the roll unless persuaded of the solicitor's probable permanent unfitness to practise (New South Wales Bar Association v Cummins [2001] NSWCA 284). The question for the Tribunal is present fitness, that is whether it can be satisfied now that the solicitor is a person who may properly be held out to the public as a fit and proper person to be entrusted with the duties and responsibilities of a solicitor; 3. The solicitor has made a false statutory declaration, attempted to mislead the Law Society and appended Mr Sun's signature to a document without Mr Sun's knowledge or authority and submitted that document to the Law Society. The deceitful nature of the solicitor's conduct evidences a lack of integrity and candour on his part. He was prepared to lie to the Law Society to further his career ambitions and to act fraudulently to avoid "losing face"; 4. While the solicitor has expressed contrition for his actions, he has provided insufficient evidence that he would act differently if faced with a similar set of circumstances in the future; 5. The character references provided are not from legal practitioners (with one exception). They should be afforded little weight; and 6. The Tribunal can be satisfied that the unfitness demonstrated by the solicitor's conduct is a present unfitness which is permanent, or at least indefinite, and so justifies an order recommending removal of the solicitor's name from the roll.
2. Mr Flax for the Law Society submitted that if the Tribunal were not disposed to recommend that the solicitor's name be removed from the roll, then the appropriate course would be to make an order for the solicitor to be reprimanded and pay a substantial fine in the order of $15,000.00 to $20,000.00. Mr Flax submitted that it would not be appropriate to allow the solicitor to practise even on a restricted basis as an employee because that would not be consistent with the need to protect the public.

Solicitor's Submissions

1. The following paragraphs summarise the submissions put on behalf of the solicitor.
2. An order for involuntary removal of the name of a practitioner from the roll of solicitors will be made only if the probability is that the solicitor is permanently unfit to practise. Unless the Tribunal is persuaded that that probability exists, the proper order to make would usually be one of suspension or fine instead of removal: Law Society of New South Wales v Maharaj [2017] NSWCATOD 79 at [35] - [37]. Here, the solicitor accepts that an act of dishonesty of the kind in which he engaged is prima facie incompatible with a determination that he is a fit and proper person to engage in the practise of law. He accepts that he bears the responsibility of convincing the Tribunal that a strike off recommendation is not appropriate. The question for the Tribunal is whether the solicitor is presently and probably permanently unfit to practise.
3. The following facts and circumstances are relied upon in support of the solicitor's plea for the Tribunal to impose any penalty short of a strike off recommendation: 1. The solicitor has described the personal hardships and ill-health he was experiencing at the time of submitting the application: paragraphs 40 - 42 of his affidavit (Exhibit 1); 2. The solicitor's evidence as to his depressed and anxious state of mind at the time is fortified by the professional opinion of the psychiatrist, Dr Fisher who examined the solicitor at the Law Society's request in January 2018. Dr Fisher concluded that the solicitor had experienced a period of being depressed for about four to six weeks prior to submitting his application to the Law Society. The solicitor relies on the decision of Legal Services Commissioner v Long (Legal Practice) [2012] VCAT 193 where the Tribunal said: 17. A legal practitioner's mental condition may significantly reduce his moral culpability for the offending conduct, as distinct from his legal responsibility for it, such that denunciation is not a particularly relevant sentencing objective. 18. There may also be the need for 'sensible moderation' of general deterrence because an offender may not be an appropriate medium for making an example to others. 1. The solicitor also relies upon the character references described below: 1. the letter of Robin Wheatley, a South African attorney; 2. the affidavit of J A Eyden (Exhibit 3); 3. the affidavit of N H Huq (Exhibit 4); and 4. the affidavit of L Ah Sing (Exhibit 5). 1. The referees, other than Mr Wheatley, are not lawyers, but are, nevertheless, in a position to testify as to his honesty and integrity. Both Mr Sing and Mr Huq are accountants who, as members of their own profession, are required to comply with certain fundamental principles, including integrity in the performance of their work; and 2. The solicitor's supervisors at his current employment (at Woolworths) who are Mr Huq and Ms Eyden convey that the solicitor has worked diligently, enthusiastically and has earned the respect and support of his colleagues and superiors.
4. The solicitor submits that he has at all times fully cooperated with the Law Society, frankly admitted his wrong doing and endeavoured to learn from his mistakes. He has voluntarily enrolled in and completed a legal ethics course, written a letter of apology to Mr Sun and has admitted the allegations by not contesting liability in these proceedings.
5. Since the events in question, the solicitor has now developed a support network through church and work and has developed an awareness of mental health issues and the importance of seeking help at an appropriate time.
6. The solicitor relied upon the Tribunal's decision in Council of the Law Society of New South Wales v Renfrew [2019] NSWCATOD 63. In that case, the Tribunal found that the evidence led the Tribunal to form the view that it is unlikely that the respondent would err in the same manner again. The solicitor was found to have expressed remorse and had given a very frank explanation of her conduct.
7. The solicitor also relied upon the decision in Legal Services Commissioner v Wen [2016] NSWCATOD 36. That case involved the solicitor forging a signature and lodging a "bogus" affidavit with a court. In that case, the Tribunal found a number of factors that favoured a conclusion that an order striking off the solicitor should not be made. Those factors were described in paragraph 59 of that decision as follows: Accordingly, despite the seriousness of the offence, we have concluded that an order of striking off should not be made. In summary, the following factors favour such an approach in this case: (a) the practitioner's youth and inexperience; (b) the problematic nature of the supervision and direction provided to him in his work environment; (c) his shame and remorse for what he did, which was unconditional once he was confronted with the complaint; (d) the isolated nature of the misconduct, serious as it was; (e) acceptance of his evidence that he acted as he did out of a misguided notion of loyalty to the client; (f) the efforts he has made since migrating from China as young man to qualify in law in Australia, and enter practice; and (g) his good prospects of not reoffending.
8. In the Renfrew matter, the Tribunal made an order that the solicitor was to be prohibited from engaging in legal practice except as an employed solicitor supervised by a solicitor with an unrestricted practising certificate. In the Wen case, the Tribunal ordered that the solicitor's practising certificate be suspended for three months.
9. In conclusion, counsel for the solicitor submitted that the Tribunal should make orders to the following effect: 1. That the solicitor be reprimanded; and 2. That the solicitor is not to apply for a practicing certificate before the end of three months from the date of the order.
10. In addition, counsel submitted that it would be unnecessary to impose an order that the solicitor not apply for an unrestricted practising certificate because the solicitor in any event needs to acquire between 18 months to two years' experience on a supervised basis before applying for an unrestricted practising certificate.
11. In response to the suggestion by the Law Society that a fine might be appropriate, counsel said that the solicitor did not have the capacity to pay a substantial fine.

Consideration

1. It is not necessary to dwell on the characterisation of the solicitor's conduct. The solicitor unequivocally engaged in professional misconduct. The conduct has been established to our satisfaction and indeed it has been admitted by the solicitor. The conduct can only be described as disgraceful and dishonourable.
2. The above conclusions would usually lead to the finding that the solicitor is permanently or at least indefinitely unfit to practise and that the appropriate order should be one by which the Tribunal recommends that his name be removed from the roll. However, in this case, we are not satisfied that the solicitor is permanently or indefinitely unfit to practise. Rather, we are of the opinion that the solicitor's conduct was caused by the particular circumstances impacting on him at the relevant time (October 2017) and that the solicitor's conduct is not likely to be repeated. As a consequence, we are of the opinion that the solicitor should be permitted to continue to practise, albeit for a longer period under supervision than might usually be the case. Our reasons for coming to this view are set out in more detail in the paragraphs that follow.
3. The evidence establishes that at the time the solicitor engaged in the conduct upon which this application is based, the solicitor was adversely affected by a number of significant stressors. He was in personal financial difficulty as a consequence of the previous years' experience of living in Australia. He had worked for a period on an unpaid basis, worked for a period for the modest wage of $800.00 per month. He paid rent of $200.00 per week and paid for his other expenses from savings. He returned to South Africa and was obliged to extend that trip because of the illness of his father.
4. On his return from South Africa, his relationship with his supervising solicitor had broken down and he formally resigned his employment. His financial plight worsened.
5. In January 2018 the solicitor saw Dr R F Fisher, consultant psychiatrist whose report is in evidence. In the opinion of Dr Fisher, the solicitor experienced a period of being depressed for about four to six weeks before submitting his application for a practising certificate to the Law Society. The report described the circumstances which precipitated the state of depression experienced by the solicitor. Dr Fisher said that the solicitor made "several errors of judgement whilst in an anxious and depressed state".
6. The evidence is that the solicitor clearly recognises the significance of the errors he made and is genuinely remorseful. This is confirmed in Dr Fisher's report.
7. The solicitor is in his earlier 30's, was admitted to practise in South Africa in 2011 and came to Australia in 2015. Since the events in question, he has obtained employment and has produced references from two colleagues at his workplace who supervise him. Both attest to his honesty and integrity. A third colleague who has known him for twenty years also attests to his honesty. Whilst references of this kind are to be treated with caution, they are also not to be ignored. In this case, they lend support to the view that the solicitor's conduct was an aberration. The further reference from a South African lawyer reported that in his dealings with the solicitor, the solicitor had displayed the highest ethical standards. These references, when considered in conjunction with Dr Fisher's diagnosis, support the view that the solicitor's conduct is unlikely to be repeated.
8. Having seen and heard the solicitor give evidence before us, we are satisfied that he clearly understands the significance of his wrong doing. We are also of the view that the circumstances impacting upon him at the time explain, although do not excuse, his conduct. We are satisfied that his circumstances have changed in the sense that he has developed a stronger network of relationships in Australia through work and the church and the consultancy services offered by the Law Society. These changes give us confidence that were the solicitor to face stressors in the future, he would be able to deal with them more appropriately rather than as he did in 2017.
9. In conclusion, we are of the view that the solicitor is likely to engage in legal practise in the future, if he is not prohibited from doing so, in a manner which is in conformity with the usual and high ethical obligations imposed upon the profession and will conduct himself with honesty and integrity.
10. The Law Society seeks a reprimand. As was stated in Council of the New South Wales Bar Association v Lott [2018] NSWCATOD 99, a reprimand is a serious matter "It marks the disgrace of a member of an honourable profession inherent in the misconduct (Solicitors Manual - The College of Law - Vol 1 [33,060, F/N3 and 4])". As a signal to the solicitor and to the profession generally, that the solicitor's conduct is to be condemned, we are of the view that he should be reprimanded and should not be permitted to practise on an unsupervised basis until after the time he has practised on a full-time basis for three years under supervision. The orders that we make are intended to achieve that objective.
11. The Law Society submitted that were we to make an order falling short of a recommendation that the solicitor's name be removed from the roll, we should impose a heavy fine on the solicitor. We are disinclined to do so for the reason that the evidence indicates that the solicitor has no capacity to pay. The experience of these proceedings and the publication of this decision are sufficient in our view to deter the solicitor from repeating similar conduct or otherwise engaging in conduct which could be categorised as professional misconduct.
12. In the circumstances of this matter, we are satisfied that the orders we propose to make adequately reflect the need to ensure that the interests of the public are protected.
13. Finally, the Law Society sought an order for costs. This was not opposed by the solicitor. We note that cl 23 of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) provides that having found the solicitor guilty of professional misconduct, the Tribunal is obliged to order that the solicitor pay the Law Society's costs unless exceptional circumstances exist. No exceptional circumstances have been suggested by either party and nor do we see that to be the case. The Solicitor must therefore pay the Law Society's costs.

Orders

1. The solicitor is guilty of professional misconduct and the Tribunal orders: 1. The respondent is publically reprimanded; 2. the respondent must not apply for, or be issued with a practising certificate authorising him to engage in legal practice other than as an employee of a legal practice, corporation or government authority before the expiry of a period in which he has practiced on a full time basis for an aggregate of 3 years under the supervision of a solicitor with a practising certificate allowing that solicitor to supervise the respondent; and 3. The respondent is to pay the applicant's costs as agreed or as assessed. 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2019