Council of the Law Society of New South Wales v McGuire

BACKGROUND 1For a number of years and certainly since 2007, Mr Ben McGuire has been issued with a Practising Certificate by the Law Society of New South Wales (the "Society") containing certain conditions. The Practising Certificate that has been regularly issued to Mr McGuire is referred to as an "unrestricted/corporate and non-lawyer entity Practising Certificate" meaning that the holder is entitled to engage in legal practice as a solicitor in the course of employment by a corporation (other than an incorporated legal practice) or a non-lawyer entity. At all material times Mr McGuire supplied "practising details" to the Society and nominated Virgin Management Asia Pacific Pty Ltd as the employer ("Virgin Management"). This employment ultimately led Mr McGuire to spend a considerable amount of time outside Australia and also involved him working out of London. 2At all relevant times Mr McGuire was also employed by Solus Lupus Pty Ltd ("Solus Lupus"). Mr McGuire was the sole director and shareholder of Solus Lupus and that company was described as a vehicle through which he provided consulting services to a range of clients. Solus Lupus was not an incorporated legal practice or a licensed mercantile agent. At no relevant time did Mr McGuire, in renewing his Practising Certificate, identify Solus Lupus as an employer. 3For some period of time Mr McGuire provided assistance to his mother and other members of his family in relation to an ongoing, bitter, family dispute. The family dispute had its origins in the termination of his mother's defacto relationship with a Mr Robert Brennan. The breakdown of that relationship appears to have had consequences for a number of the members of the family and they have been involved in considerable litigation over the years. 4Mr Brennan was moved to make a complaint to the Legal Services Commissioner alleging that Mr McGuire's dealing with him during this acrimonious family dispute had been undertaken by Mr McGuire in his professional capacity as a solicitor rather than in his personal capacity. That complaint was referred to the Society for investigation and subsequently the Society commenced proceedings under s 551 of the Legal Profession Act 2004 alleging that Mr McGuire was guilty of professional misconduct. 5Mr McGuire has, at all relevant times, vigorously denied the allegations and has asserted that he was not acting as a solicitor in his correspondence with Mr Brennan in relation to a debt owed to another family member but at all times he was acting in his personal capacity. While exchanging voluminous correspondence with the Society during and after its investigation, Mr McGuire steadfastly asserted that he had not been informed in what way it was alleged that he had acted contrary to the terms of his Practising Certificate. The Society failed to satisfy Mr McGuire in relation to this matter ultimately leading to the Tribunal considering a Notice of Motion filed by Mr McGuire seeking various types of relief, including the termination or Stay of the investigation by the Society and a Stay of proceedings in the Tribunal. That Application was the subject of a separate determination by the Tribunal (see Council of the Law Society of New South Wales v McGuire [2011] NSWADT 133). That decision of the Tribunal also provides a concise summary of the issues that have arisen between the parties. 6The decision of the Tribunal allowed Mr McGuire to seek further and better particulars from the Society but it appears the responses to those requests failed to satisfy Mr McGuire. Ultimately, the Tribunal determined that the matter be listed for hearing at which time any further interlocutory matters would be dealt with in light of the first decision given by the Tribunal and that the substantive matter would also be determined. That hearing took place on 12 and 13 March 2012.