Council of the Law Society of New South Wales v Moody

1. The respondent does not resist the orders proposed by the applicant, with the exception of the proposed order that the respondent pay a fine. The respondent relevantly proposes the following orders be made:

(1) The respondent be reprimanded.

(2) The respondent pay the applicant's costs of the Tribunal proceedings.

1. The respondent submits that in the event the Tribunal orders payment of a fine, the respondent agrees with the applicant's submission that the value of the fine should not exceed $2,000.00.

1. The respondent relies on a testimonial from Mr Duncan Hall dated 6 May 2025, who describes the respondent as "honest and integrous in his dealings" and "someone who understands the bar to which solicitors are called, and seeks to operate to that bar".
2. We note that these views were not challenged by the applicant.

1. The applicant submits that both a reprimand and a fine should be imposed to adequately reflect the seriousness of the respondent's conduct having breached rr 3.1 and 28.1 of the Conduct Rules.
2. The applicant submits although the Tribunal did not find that the respondent had actual knowledge of the tendency of the Article to prejudice the administration of justice, the prohibition in r 28.1 of the Conduct Rules on solicitors publishing material concerning current proceedings which may prejudice a fair trial goes to the maintenance of the integrity of the administration of justice.
3. The Tribunal's finding that the respondent, as a very experienced solicitor who practices in an area where there are often parallel criminal proceedings, ought reasonably to have known the risk of prejudice arising from publication of the Article, supports the imposition of a fine and a reprimand.
4. The imposition of a lesser order such as a caution, as opposed to a reprimand, would not reflect the seriousness of the respondent's conduct in breaching his paramount duty to the court and the administration of justice.
5. Further, the applicant submits, there is a need for both specific and general deterrence. The matter in which the respondent defended the proceedings at the liability stage demonstrated a lack of insight into the nature of the obligation in r 28.1 and the seriousness of any breach, citing similar findings in Ndou v Council of the Law Society of New South Wales [2023] NSWCATOD 111 at [104]. The imposition of a fine in addition to a reprimand would serve to mark the Tribunal's disapproval of the overall conduct and convey to the respondent, the legal profession and the broader community that the conduct is unacceptable.
6. In circumstances where the Tribunal did not find that the respondent had actual knowledge of the requisite tendency of the Article to prejudice, the applicant submits that the fine should be limited to $2,000.00

1. The respondent accepts that he should be subject to a reprimand. A reprimand marks, in a public and permanent way, the extent to which his conduct fell short of the relevant standards; and appropriately reflects the seriousness of the conduct.
2. In this case, the respondent submits, there is an absence of any extra factors that would justify a fine.
3. The respondent submits that the Tribunal can appropriately discharge its statutory function in the protection of the public, by the imposition of a reprimand, without the additional imposition of a fine.
4. The respondent submits that if the Tribunal determines that a fine should be imposed, that the fine amount should be modest. The respondent points to the following factors:

(1) There being no conscious wrongdoing on the part of the respondent, rather a failure to appropriately turn his mind to the risk inherent in publication of the Article.

(2) The respondent having no previous disciplinary history.

(3) The substantial monetary imposition of the costs orders on the respondent, which are not opposed.

1. The following principles are relevant to our determination and are not in dispute.
2. Having found the respondent guilty of professional misconduct, the Tribunal may make "such orders as it thinks fit": Uniform Law, s 302(1).
3. The jurisdiction of the Tribunal is protective, not punitive: Law Society of New South Wales v Bannister (1993) 4 LPDR 24 (Bannister) at 28 (Shellar JA). The protective function contains elements of both individual and general deterrence. As Beazley JA confirmed in Law Society of New South Wales v Walsh [1997] NSWCA 185 (Walsh) at 40:

"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 the disciplinary proceedings. It extends to protecting the public from similar defaults by other practitioners. Thus, it is relevant to take into account the effect the order will have upon the understanding in the profession and amongst the public of the standard of behaviour required of solicitors."

1. By seeking to set, clarify and maintain the appropriate standard of conduct for legal practitioners, and by publicly denouncing misconduct, disciplinary proceedings maintain public confidence in the profession: Council of the Law Society of New South Wales v Sideris (No 2) [2024] NSWCATOD 121 (Sideris (No 2)) at [46].
2. The Tribunal also has an educative function, "publicly marking the seriousness of what the instant solicitor has done": Law Society of New South Wales v Foreman [1994] NSWCA 69; (1994) 34 NSWLR 408 (Foreman) at 441.
3. In Law Society of New South Wales v Maharaj [2017] NSWCATOD 79 at [24], the Tribunal summarised the relevant considerations in determining what protective orders are appropriate in a particular case:

(1) the gravity of the misconduct;

(2) the deterrent effect of any protective order on the further conduct of the practitioner;

(3) the deterrent effect of any protective order on the conduct of other practitioners;

(4) the enhancement of confidence in the public in the integrity of the profession.

1. Whether the practitioner has shown some level of insight into the wrongful nature of the conduct, or contrition for the wrongful conduct, will generally be relevant to protective orders, however an absence of contrition cannot be relied upon to validate a higher penalty: Sideris (No 2) at [51] citing Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [11]- [13] (Leeming JA).

1. A reprimand reflects the seriousness of the impugned conduct and the Tribunal's disapprobation of such conduct: Council of the Law Society of New South Wales v Judah [2022] NSWCATOD 89 at [368].
2. A reprimand is a serious matter and "not a slap on the wrist": Legal Services Commissioner v Sapountzis [2010] VCAT 1124 at [21]. It has "the effect of identifying standards the establishment and maintenance of which protect the public": Prothonotary of the Supreme Court of New South Wales v Chapman (unreported, CA(NSW), 14 December 1992) at 22.
3. A reprimand is a significant penalty, in part because of its public character: Council of the Law Society of New South Wales v Bunton [2020] NSWCATOD 67 at [30]; Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 at [82]. Unlike a caution, a reprimand is a "disciplinary action" and is required to be recorded on the Register of Disciplinary Action maintained by the NSW Legal Services Commissioner: ss 148(e) and 152 of the Legal Profession Uniform Law Application Act 2014 (NSW).

1. A fine is purposed to mark the Tribunal's disapproval of the respondent's conduct: Walsh at [40]; Law Society of New South Wales v Shad [2002] NSWADT 236 at [70].
2. A fine is imposed to convey to the legal profession and to the community that the conduct is unacceptable: Russo v Legal Services Commissioner [2016] NSWCA 306 at [82].
3. A fine, in the context of disciplinary proceedings, is not punitive. Rather, consistent with the Tribunal's protective function, it serves to act as a deterrent so that professional standards may be upheld and serious lapses in conduct of legal practitioners are appropriately dealt with: Legal Services Commissioner v Maddock [2021] NSWCATOD 46 at [48]; Foreman at 470 (per Giles AJA).
4. The Tribunal's role in ensuring the high standards of the profession are maintained involves not only deterring the offender from repeating the offence but deterring others who might be tempted to offend: Bannister at 12. The latter goes to the purpose of general deterrence, where the fine will "mark out" to the profession and the general public the seriousness of the practitioner's misconduct, which cannot be achieved by handing out a fine that is minimal or nominal: Council of the Law Society of NSW v Hunter [2021] NSWCATOD 22 at [72].
5. The Tribunal must consider matters put forward in mitigation by the practitioner in determining the appropriateness of a fine: Council of the Law Society of NSW v Alkhair [2022] NSWCATOD 111 at [184].

(1) Publishing the Article in circumstances where it may prejudice a trial or the administration of justice was a serious departure from the appropriate standard. While we accept the respondent was not aware of the risk, he ought to have known of the risk. Further, the conduct goes to the heart of the administration of justice, thus lending to the seriousness of the departure from the Conduct Rules.

(2) We are satisfied, from the testimonial filed on behalf of the respondent and the respondent's consent to a reprimand and payment of the applicant's costs, that the respondent has gained some insight into his conduct and where and how it departed from the Conduct Rules.

(3) We accept that there was no conscious wrongdoing and that the respondent has had no previous disciplinary history.

1. As to the respondent's submission that we should take into account his agreement to pay the applicant's costs, we accept that the respondent's agreement to pay costs is relevant to demonstrating insight. Nevertheless, as costs are compensatory and not punitive, we do not give the fact that this is a significant financial burden significant weight.
2. On the one hand, we are satisfied it is not necessary to impose the highest level of protective orders to specifically deter the respondent from further similar conduct. On the other hand, as the conduct, publishing of an article on a website, is one which has relevance in an electronic age, and the issues may be nuanced, it is useful to highlight to all practitioners the need for diligence and conscious reflection. This is therefore a case where general deterrence is highly relevant.

1. We are satisfied that the conduct forming the basis of our findings of professional misconduct calls for the imposition of protective orders under s 302 of the Uniform Law.
2. The Tribunal considers that a reprimand is necessary to reflect the Tribunal's disapprobation of the respondent's conduct in publishing (and continuing to publish) material which may prejudice a trial and the administration of justice; notwithstanding that we accept there was no conscious wrongdoing.
3. As to whether a fine should be imposed, the Tribunal considers that the nature of the lapse in professional standards requires that we publicly mark our disapproval of the conduct in a particular way that will meet the objective of general deterrence.
4. Both parties agree that the fine amount should not exceed $2,000.00, principally because the Tribunal did not find that the respondent had actual knowledge of the requisite tendency for the Article to prejudice. The Tribunal accepts this.
5. The Tribunal considers the amount of $1,000.00 to be appropriate, in light of the insight we recognise the respondent has achieved, whilst simultaneously not being trivial in the circumstances.
6. The Tribunal considers that both a reprimand and a fine in the amount of $1,000 should be imposed to adequately reflect the seriousness of the respondent's conduct in circumstances where he is an experienced solicitor practising in an area where there are often parallel criminal proceedings, and he ought reasonably to have known that his publication had the requisite tendency to prejudice the administration of justice.

1. We do not consider anything said in this Stage 2 decision could be linked to the criminal trial openly discussed in the Stage 1 decision. Nonethless, whilst this decision stands to be read alone, it improves comprehension if one has familiarity with the Stage 1 decision. Accordingly, to ensure this decision is not taken out of context, we will initially restrict publication of the reasons for decision to the parties, which is an order sought by the respondent and which we accept is desirable to make.
2. This decision will be published once the criminal trial discussed in the Stage 1 decision is concluded.

1. Costs in disciplinary proceedings are designed to compensate a successful party, not penalise an unsuccessful party: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [44].
2. The respondent agrees that an order should be made that he pay the applicant's costs of the proceedings.
3. For completeness, we note that cl 23(1) to 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 professional misconduct to pay costs (including the costs of the Council of the NSW Law Society) unless the Tribunal is satisfied that exceptional circumstances exist.
4. We are not satisfied that any exceptional circumstances exist here; and the respondent did not suggest otherwise.

(1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal dispenses with a hearing.

(2) The respondent is reprimanded pursuant to s 299(1)(b) of the Legal Profession Uniform Law 2014 (NSW).

(3) The respondent is to pay a fine of $1,000 pursuant to s 302(1)(l) of the Legal Profession Uniform Law 2014 (NSW).

(4) The respondent is to pay the applicant's costs of the proceedings as agreed or 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.

13 October 2025 - Non publication order was vacated on 13 October 2025, decision now published.