Council of the Law Society of New South Wales v Searle

Complaints

1. On 16 February 2017 the Legal Services Commissioner referred a complaint from the Husband to the Law Society for investigation. The Solicitor was informed of the complaint on 25 July 2017, and responded by letter of 14 August 2017. At its meeting on 14 December 2017 a sub-committee of the Law Society's Professional Conduct Committee resolved that the Solicitor be informed of and invited to respond to the issues of unsatisfactory professional conduct and professional misconduct involved in the complaint, and that subject to any submissions appropriate orders be sought on referral to the Tribunal. The Solicitor responded on 10 January 2018, and to a further letter from the Law Society, on 11 January 2018. The Professional Conduct Committee resolved on 15 February 2018 that proceedings be initiated in the Tribunal, deferring the question of the orders to be sought pending further submissions from the Solicitor. Those submissions were received on 27 February 2018. The application by the Law Society was lodged on 13 August 2018.
2. The Law Society contends that: 1. In attaching without prejudice correspondence to an affidavit, the Solicitor breached s 117C of the Family Law Act 1975 (Cth) and rule 10.02 of the Family Law Rules 2004 (Cth), and that conduct constitutes unsatisfactory professional conduct within the meaning of s 296 of the Uniform Law; and 2. In threatening to use material that may lead to criminal proceedings in settlement negotiations the Solicitor is guilty of professional misconduct within the meaning of s 297 of the Uniform Law and at common law.
3. In her Reply to the application filed on 1 November 2018 the Solicitor: 1. Admitted the conduct the subject of complaint 1, but did not admit that the conduct constituted unsatisfactory professional conduct, while admitting that such conduct could be capable of being characterised as unsatisfactory professional conduct; 2. Admitted the conduct the subject of complaint 2 and that that conduct constituted professional misconduct, and consented to a reprimand and an appropriate fine.
4. The Reply included a detailed response to the Law Society's application. In relation to complaint 1, the Solicitor did not admit paragraph 9, that in seeking to rely on the affidavits which annexed offers to settle the proceedings the Solicitor breached s 117C of the Family Law Act and rule 10.02, stating that: 1. rule 10.02 of the Family Law Rules 2004 and s 117C of the Family Law Act could not apply to the letters of 10 June and 16 June 2016 as they were issued before proceedings commenced and so the complainant could not be "a party to proceedings to which this section applies"; 2. s 117C of the Family Law Act could not apply to the 2 September 2016 letter as it was an interim arrangement only for part of the proceedings and not an offer "to settle the proceedings"; 3. rule 10.02 and s 117C arguably did not apply to the 5 July or 18 September letters as they were not purportedly made under the rules or by reference to the rules and accordingly could not be "made in accordance with any applicable Rules of Court".
5. In relation to complaint 2, the Solicitor: 1. Admitted that she did not provide a copy of the photographs to the Husband's legal representative, and said that he did not ask for a copy; 2. Admitted that the basis for her allegations in the email statement were the photographs, and also said that the basis for the allegations included instructions from the Wife; 3. Admitted that one of the photographs showed the Husband and his step-daughter sitting on his lap wearing a bikini but bare breasted in a setting that appeared to be by a swimming pool with the Husband dressed in shorts, and said that instead of the estimated age of the step daughter at 15 or 16, she was informed by her client that the photograph depicted a girl aged between 11 to 13, and on her inspection she considered that the photographs depicted a girl aged 11 to 13; and 4. Did not admit that in making the email statement she had breached rule 21.4 of the Solicitors' (Conduct) Rules, saying at the time she genuinely believed that the allegations made by her had a proper basis, that she informed her client of the seriousness of the allegations and the possible consequences, and that the client then instructed her that she wished the allegation to be made.

Legislation

1. Section 117C of the Family Law Act 1975 provided at the relevant time: Offers of settlement (1) This section applies to proceedings under this Act other than the following proceedings: (a) proceedings under Part VI; (b) proceedings under Division 6, 9 or 13 of Part VII; (c) proceedings to enforce a decree or injunction made under Division 6, 9 or 13 of Part VII. (2) If: (a) a party to proceedings to which this section applies makes an offer to the other party to the proceedings to settle the proceedings; and (b) the offer is made in accordance with any applicable Rules of Court; the fact that the offer has been made, or the terms of the offer, must not be disclosed to the court in which the proceedings are being heard except for the purposes of the consideration by the court of whether it should make an order as to costs under subsection 117(2) and the terms of any such order. (3) A judge of the court is not disqualified from sitting in the proceedings only because the fact that an offer has been made is, contrary to subsection (2), disclosed to the court.
2. Rule 10.02 of the Family Law Rules 2004 provided: 10.02 Open and 'without prejudice' offer (1) An offer to settle is made without prejudice (a without prejudice offer) unless the offer states that it is an open offer. (2) A party must not mention the fact that a without prejudice offer has been made, or the terms of the offer: (a) in any document filed; or (b) at a hearing or trial. (3) If a party makes an open offer, any party may disclose the facts and terms of the offer to other parties and the court. (4) Subrule (2) does not apply to: (a) an application relating to an offer; or (b) an application for costs.

Issues

1. The issues to be determined are: 1. Whether the conduct in complaint 1 constitutes unsatisfactory professional conduct as defined in s 296 of the Uniform Law; 2. Whether the conduct in complaint 2 constitutes professional misconduct as defined in s 297 of the Uniform Law and/or at common law; and 3. What is the appropriate sanction.

Hearing

1. The Solicitor provided an affidavit sworn on 7 November 2018, and gave oral evidence. In her affidavit evidence the Solicitor provided a chronology in relation to the complaints.
2. In relation to complaint 1 she stated at [45] that she believed the correspondence attached to both affidavits demonstrated that the Husband's response in the Family Court proceedings offering the Wife nothing for her interim or final claims and seeking indemnity costs against her based on his position that the Wife had not made any substantial contributions during the course of the relationship was not the Husband's position at all. She believed that the Husband's statement in his affidavit was inconsistent with his conduct in sending or causing to send the correspondence the subject of complaint 1. The Solicitor stated that the correspondence was tendered as to offers which were generally "without prejudice" but not all correspondence was marked as such; that at the first conference the barrister acting for the Wife had been briefed with the Wife's first affidavit but made no comment on it; and that on 19 September 2016 at a conference with the barrister there was a conversation about the second affidavit, including tendering of the affidavits under the exemption in the Evidence Act. The Solicitor stated: 50. By this stage, I knew that the other side was taking the point that all five pieces of correspondence were "without prejudice" correspondence. I believed at the time that there was an argument that the complainant's evidence in his affidavit contradicted his position in the correspondence. That said I accept I was wrong in that belief and the documents should not have been disclosed to Watts J. 51. At the hearing of the application before Watts J on 19 September 2016, there was no secrecy or subterfuge as to the fact that the correspondence was annexed to the affidavits. On the contrary, the issue was flagged and fully ventilated by both counsel….At no point in oral submissions did senior counsel for the complainant submit to the Court that the argument regarding implied waiver lacked reasonable prospects of success.
3. The Solicitor referred to the reasons for judgement on the implied waiver point, and responded to the Court's statement of views in terms similar to those used in her Reply (at [13]) above.
4. In relation to complaint 2, the Solicitor summarised her discussions with the Wife about the photographs, and stated that at the time she considered they would be relevant to the proceedings. She repeated her statement that she considered the daughter in the photographs to be aged between 11 to 13 years. At [61] she stated that up until the time she ceased to act she considered that the photographs might be used at trial.
5. The Solicitor stated that with the benefit of hindsight she realises she became too involved in the matter and this clouded her judgment. She felt sorry for her client, was angry the complainant had threatened to deport the Wife, and she realises now that she allowed her personal feelings to impact on her professional judgment. At the time she did not think she was doing anything inappropriate. She now accepts she used the photographs inappropriately and in an unlawful manner and unreservedly apologises for her conduct to the complainant and to the Law Society.
6. In relation to the "without prejudice" documents she has reflected on her conduct. She does not think it was inappropriate to attach the correspondence to the first affidavit, but it was inappropriate to attach the correspondence to the second affidavit on 18 September 2016 and to seek to read both affidavits in support of the application on 19 September 2016. By that stage she knew the Husband's lawyers were taking the point that the correspondence was of a "without prejudice" character notwithstanding that four of them were not marked as such, and she should not have put that correspondence before a judicial officer.
7. The Solicitor states that this has been a very salutary and embarrassing experience, and it has required her to disclose her conduct to colleagues whose opinion she respects and values. She has a very clear understanding of what she did wrong and will never repeat the conduct.
8. In oral evidence the Solicitor stated that she was appalled by her behaviour, she does not know what she was thinking. She was angry with the Husband. This matter affected her because the Wife had moved to live with him and did not work and was kicked out by him. The conduct occurred not because she was under stress in dealing with the work but because she overstepped the mark to help the client. She now realises it was reprehensible and ridiculous.

Complaint 1

1. The Law Society submits that the inclusion of the five offers in the affidavits was prohibited by s 117C(2) of the Family Law Act and r 10.02(2) of the Family Law Rules, consistent with the findings of Watts J in Cottard v Crichton [2016] FamCA 819. The Solicitor was put on notice by letter dated 1 July 2016 from the Husband's legal representatives that the Husband objected to the inclusion of those documents. Despite that, the Solicitor settled the second affidavit and annexed a further three offers from the Husband. The Law Society submits that in breaching s 117C and r 10.02 the Solicitor is guilty of unsatisfactory professional conduct.
2. The Solicitor submits that the Tribunal is not being asked to construe the relevant provisions of the Family Law Act and Family Law Rules. Those provisions referred to by Watts J were not the subject of submission either by counsel retained by the Solicitor for the Wife or senior counsel for the Husband. The Solicitor accepts that, in hindsight, she should not have sought to rely on this material and accepts it would be open to the Tribunal to find that her conduct in attaching the correspondence fell short of the standard of competence and diligence that a member of the public would be entitled to expect of a reasonably competent lawyer. However the issue is finely balanced: both parties were represented by counsel and neither counsel nor the judge identified at the hearing the operation of s 117C or r 10.02; there was nothing underhand or dishonest in how the evidence was deployed, and it was the subject of argument before the judge albeit under a different legislative provision; had the argument under that legislative provision, being s 131(2) of the Evidence Act, succeeded, it would have been open to the Court to dispense with r 10.02; and the conduct did not negatively affect the Husband or his position in the hearing. The Tribunal should not be persuaded that the Solicitor's conduct in attaching the correspondence to affidavits constituted unsatisfactory professional conduct.

Discussion and findings

1. Section 296 of the Uniform Law defines unsatisfactory professional conduct: 296 Unsatisfactory professional conduct For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.
2. The Solicitor acknowledges that she settled the Wife's two affidavits, to which were annexed the correspondence of 10 and 16 June 2016, 5 July 2016, 2 September 2016, and 18 September 2016. While the correspondence annexed to the first affidavit may not have been marked "without prejudice", it contained offers of financial settlement. The correspondence annexed to the second affidavit included correspondence marked "without prejudice", and also contained offers of financial settlement. The Solicitor acknowledges that she received the letter dated 1 July 2016 from the Husband's representative objecting to the inclusion in the first affidavit of without prejudice communications. She acknowledges that by the time of the hearing on 19 September 2016 she knew the Husband's representatives were taking the point that all five pieces of correspondence were "without prejudice" correspondence.
3. Notwithstanding the Solicitor's reservations as to the basis of his Honour's reasoning, the decision in Cottard v Crichton [2016] FamCA 819 supports the Law Society's contention that s 117C of the Family Law Act and r 10.02 of the Family Law Rules applied to each of the settlement offers attached to the affidavits. After ruling that the evidence objected to, being the written communications made in connection with an attempt to negotiate a settlement of the dispute, did not attract the provisions of s 131(2)(g) of the Evidence Act and accordingly attracted the confidentiality accorded by s 131(2) and upholding the objections, his Honour referred to s 117C(1) and (2) of the Family Law Act and rules 10.01 and 10.02 of the Family Law Rules. His Honour held: 61. The material to which objection is taken are without prejudice offers in writing by or on behalf of the husband to settle all or part of the case and accordingly are offers in accordance with the applicable Rules of Court which attract the protection of s 117C(2) of the Act. 62. By virtue of s 8 of the Evidence Act, s 117C(2) of the Act overrides s 133 of the Evidence Act. 63. For this additional reason, the documents should not have been attached to the wife's affidavit nor mentioned at the hearing.
4. The Tribunal finds, based on that decision, that the Solicitor's conduct in annexing the settlement communications was in breach of s 117C(2) of the Family Law Act. The Solicitor, as an experienced family law practitioner and former Chair of the Family Law Committee, could reasonably be expected to have formed an independent view as to the appropriateness of including the settlement correspondence in the affidavits, and not simply have left it to counsel briefed to appear. The Tribunal is satisfied that the inclusion of the correspondence in the affidavits settled by the Solicitor, in particular after being on notice that objection was taken, was conduct that fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. That conduct was unsatisfactory professional conduct as defined in s 296 of the Uniform Law.

Complaint 2

1. The Law Society submits that in light of the Solicitor's admissions the Tribunal can be satisfied that the Solicitor's conduct in threatening to use material that may lead to criminal proceedings in settlement negotiations constitutes professional misconduct, both as defined in s 297 of the Uniform Law and at common law, being conduct in the pursuit of professional activities that would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency (Allinson v General Council of Medical Education and Registration [1894] 1 QB 750).
2. The Solicitor submits that it is common ground that her conduct constituted professional misconduct. Her submissions address the issue of whether the Tribunal should find that she is unfit to practise law and likely to remain unfit to do so in the foreseeable future.

Discussion and findings

1. Section 297 of the Uniform Law defines professional misconduct: 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.
2. The position paper prepared for the conciliation conference and the email of 16 November 2016 are in evidence. None of the photographs referred to are in evidence in these proceedings. Other than in relation to the dispute as to age of the child (namely whether she appeared to be 15 or 16, or 11 to 13 years old), the Solicitor accepts the description of the photographs provided to the Law Society by the Husband's then representative in a letter dated 11 October 2017. The Solicitor accepts in submissions that she sought to use material that she considered relevant to the proceedings improperly and unlawfully. The Tribunal is satisfied that the Solicitor's admission that her conduct constituted professional misconduct both under s 297 of the Uniform Law and at common law was appropriately made, and finds that the Solicitor is guilty of professional misconduct both as defined in s 297 and at common law.

Penalty

1. The Law Society seeks orders recommending that the Solicitor's name be removed from the Roll, that the Solicitor pay a substantial fine, and that she pay the costs of the Law Society.
2. The Solicitor contends that the exercise of the protective jurisdiction would be better served by a reprimand, an appropriate fine, and an order for costs.
3. At the conclusion of the hearing the Tribunal indicated to the parties that it was of the preliminary view that it was open for the Tribunal to recommend that the name of the Solicitor be removed from the Roll, however the Tribunal had significant reservations in making such an order. The Tribunal invited the parties to provide submissions addressing the principles relevant to determination of a substantial fine, and the form of orders for further professional development to be undertaken by the Solicitor should the Tribunal consider such an order to be appropriate.
4. In those supplementary submissions the Law Society maintained its position that the appropriate disciplinary order is for the Tribunal to recommend that the Solicitor's name be removed from the Roll. The Law Society provided submissions to assist in consideration of whether an order imposing a fine should be made, and if so, quantum. The Solicitor confirmed her position that a public reprimand is appropriate, and that she consents to an order for payment of the Law Society's costs, and stated that she agrees with the form of order for further professional development focussing on ethics as proposed by the Law Society. The Solicitor submitted that a fine in the order of $5,000 would be appropriate.

Law Society submissions

1. The Law Society submits that the Solicitor's professional history and former office-holding permitted her to appreciate fully the seriousness of her misconduct. It was not merely a matter of knowing that a solicitor should not seek to adduce evidence of settlement negotiations contrary to the Court Rules or seek to gain an advantage for her client by making allegations of criminal offences against the other side, but a matter of understanding the significance accorded to such conduct by the law and the heightened seriousness of offences when committed by a person with her background and experience. The Solicitor's assertion in responding to the Law Society's notification of the complaint that the proceedings were "contentious defended litigation" cannot provide an explanation for the misconduct, and nor can the Solicitor rely on the fact that the position paper and email statements were made pursuant to instructions, by virtue of rule 17.1 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015.
2. The Law Society submits that in considering the Solicitor's insight, contrition and remorse, the Tribunal may have regard to the Solicitor's attitude in responding to the complaints. Her initial response was dismissive, and while it is accepted that the Solicitor was entitled to contest the complaints, her failure to appreciate the incorrectness and gravity of her misconduct goes towards a finding of unfitness to practise.
3. The Law Society submits that the character references from those persons who are not legally qualified should be afforded less weight than references from someone legally qualified and experienced. While four of the references on which the Solicitor relies are from legal practitioners, where the misconduct is serious that character evidence carries less weight.
4. The Law Society submits that while prior disciplinary proceedings involving the Solicitor in 2016, when findings of professional misconduct and unsatisfactory professional conduct were made in Legal Services Commissioner v Searle [2016] NSWCATOD 23, did not involve similar conduct, the Tribunal may find that the previous disciplinary sanctions had little deterrent effect.

Supplementary submissions

1. As noted above, the Law Society maintained its position that the appropriate disciplinary order is for the Tribunal to recommend that the Solicitor's name be removed from the Roll. The Law Society submits that if the Tribunal determines to impose a fine, the seriousness with which the Tribunal views the conduct impacts on the quantum of the fine. In that regard the Law Society noted that previous decisions involving practitioners found to have engaged in similar conduct may be of assistance in the calculation of the quantum of a fine. The Law Society identified two decisions of the State Administrative Tribunal of Western Australia in which fines were imposed following findings of threatening conduct by a legal practitioner: Legal Practitioners Complaints Committee v Segler [2009] WASAT 91, and Legal Profession Complaints Committee v Amsden [2014] WASAT 57, both of which it submits were distinguishable. Previous decisions in which a NSW Court or Tribunal has imposed a fine of at least $20,000 following findings of misconduct are Legal Services Commissioner v Bryden and Hagipantelis (No 3) [2012] NSWADT 225, and Russo v Legal Services Commissioner [2016] NSWCA 306. The Law Society submits that if the Tribunal makes orders imposing a reprimand and a fine, the quantum of the fine should be at the upper end of the fines imposed having regard to both the seriousness of the Solicitor's misconduct and her attitude during the course of the investigation.

The Solicitor's submissions

1. The Solicitor submits that the Tribunal should not be persuaded of her probably permanent unfitness to practice, having regard to the following matters: 1. Her conduct was not dishonest or untruthful; 2. There was no intentional breach of ethical rules or law; 3. The conduct did not lead to the complainant suffering any compensable loss or damage, nor harm the presentation of his case; 4. The conduct could be characterised as being an isolated example or passing departure from proper professional standards rather than repeated demonstration of such departures; and 5. She has participated in the Tribunal proceedings, substantially admitted the conduct the subject of the complaints, and admitted guilt in the sense of admitting to professional misconduct, throughout the proceedings; and she has expressed insight, contrition and remorse.
2. The exercise of the protective jurisdiction would be better served by a reprimand, and appropriate fine, and an order for costs.

Supplementary submissions

1. In her supplementary submissions the Solicitor confirms her position that a public reprimand is appropriate, and that she consents to an order for payment of the Law Society's costs, which she understands to be in the order of $25,000. The Solicitor agrees with the form of order for further professional development focussing on ethics as proposed by the Law Society, and states that she intends to enrol in Ethics and Professional Responsibility offered by the College of Law at a cost of $1400.
2. In determining the amount of a fine, the Solicitor submits that the Tribunal should take into account that she has expended more than $35,000 in respect of her admitted misconduct, and her taxable income for 2017/18 is modest. She submits that a fine of $5,000 is appropriate, on the basis that that is in line with similar cases; she has been in practice for 31 years and did not come to the attention of the Law Society for most of that period; and her references speak to her substantial contribution to the profession; she has made full admissions in her Reply, and made no attempt to conceal or excuse her conduct in the course of these proceedings.

Discussion and findings

1. Where an order for removal from the Roll is contemplated, the ultimate issue is whether the practitioner is shown to be a fit and proper person to be an officer of the Supreme Court: A Solicitor v Law Society of New South Wales (2004) 216 CLR 253. The Tribunal accepts the submission of the Law Society that where the Tribunal is being asked to make an order under s 302(1)(f) of the Uniform Law recommending that the name of a lawyer be removed from the Roll, the same standard ought to be applied.
2. As discussed by Beazley JA in Law Society of New South Wales v Walsh [1997] NSWCA 185, these disciplinary proceedings are concerned with the protection of the public. That is not confined to the protection of the public against further misconduct by the practitioner, but extends to protecting the public from similar defaults by other practitioners. Any penalty imposed should contain an element of general deterrence, publicly marking the seriousness of what the practitioner has done, and ensuring that the high standards demanded of the profession are maintained. A relevant factor is whether the practitioner understands the error of their ways, and whether the conduct in question is an isolated departure from proper professional standards.
3. Her Honour had summarised the principles guiding the Tribunal in determining whether a solicitor's name should be removed from the Roll at 43, as follows: 1. The Tribunal's power is discretionary; 2. Subject to considerations which would compel the Tribunal to impose a lesser penalty, the protective nature of the jurisdiction calls for the removal of a practitioner's name from the roll when the practitioner has been found not to be of good fame and character; 3. The substantive considerations which might compel a different course are ones which themselves are relevant to and enhance the essential nature of the Tribunal's jurisdiction, which is the protection of the public. An example is where the legal practitioner has reported the subject conduct to the Law Society or Bar Association. The relevance of mitigating conduct of that type is that it encourages practitioners guilty of misconduct to promptly report it; and 4. In general, mitigating factors, such as evidence of a respected reputation, no previously found misconduct, or service to the profession "are of considerably less significance than in the criminal sentencing process" (citing Law Society of NSW v Bannister [1993] 4 LPDR 24 at 13)."
4. Consideration of whether the Solicitor is fit and proper to remain on the Roll is to be determined as at the time of the hearing, and the proper inquiry is as to present fitness to practise. Not every finding of professional misconduct justifies or requires a conclusion that removal from the Roll is the appropriate order: A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253.

The Solicitor's conduct

1. The Solicitor has admitted the conduct the subject of complaint 1 and complaint 2.
2. In relation to complaint 1, although the Solicitor now in her affidavit evidence accepts that the documents should not have been disclosed to the Family Court, she continues to contest the contention that her conduct in annexing the settlement offers breached the Family Law Act or the Family Rules. The Tribunal has found that it did. While in part she continues to rely on the actions of counsel briefed in the matter, the Solicitor, and not counsel, settled both affidavits. The Solicitor acknowledges in her affidavit at [50] that while she believed at the time that there was an argument that the Husband's affidavit evidence contradicted his position in the correspondence, she was wrong in that belief, and the documents should not have been disclosed to Watts J. However, notwithstanding that acknowledgment, at [65] the Solicitor states that she does not think it inappropriate to attach the correspondence to the first affidavit; she does accept it was inappropriate to attach the correspondence to the second affidavit and to seek to read both affidavits in support of the application on 16 September 2016 before Watts J.
3. The conduct the subject of complaint 2 was particularly serious. The Solicitor admits that the statement in the email of 16 November 2016 was made deliberately and in connection with and for the purposes of the settlement negotiations, and in making that statement she sought to gain an advantage for the Wife in the outcome of the proceedings.
4. The Tribunal agrees with the Law Society that the Solicitor's professional history and experience, and her former office holding, meant she should have been able fully to appreciate the seriousness of seeking to adduce evidence of settlement negotiations, or to seek to gain an advantage for her client by making allegations of criminal offences against the other side.
5. The Solicitor submits that the conduct the subject of complaint 2 should be treated as a single instance of misconduct which took place from one afternoon (16 November) to the next morning (17 November), rather than a series of independent breaches. She did not set out to breach her ethical obligations or the law, rather, she sought to use material she considered relevant to the proceedings, improperly and unlawfully. On that basis her conduct can be distinguished from the type of conduct in New South Wales Bar Association v Maddocks [1988] NSWCA 102, New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 and Council of the New South Wales Bar Association v Davison [2007] NSWCA 227. It may be, as submitted by the Solicitor, that neither she nor her client suggested that they would refer the matter the subject of complaint 2 to the authorities. Whether or not she had an obligation to do so, and even if at the time she genuinely believed that the allegations made by her had a proper basis, the Tribunal is of the view that the statement in the email of 17 November could not properly have been made even on her client's instructions.

Insight, contrition and remorse

1. The Solicitor has in her affidavit and oral evidence apologised for her admitted conduct, and states that she has a clear understanding of what she did wrong and will never repeat the conduct. She explains the conduct as attributable to becoming too close and allowing her personal feelings to impact on her professional judgment. The Tribunal accepts that the Solicitor believes that she became too close to her client during the course of the family law proceedings, and that that closeness temporarily impaired the undertaking of her professional duty in relation to the matter. However, the public is entitled to assume that solicitors will maintain professional standards of conduct even in stressful circumstances, and as was the case in Council of the Law Society of New South Wales v King [2018] NSWCATOD 157, such an explanation does not condone the conduct. The Solicitor did not in her oral evidence identify any additional or specific stress at the time.
2. The Tribunal accepts that the Solicitor is apologetic for her conduct. However, the Tribunal is concerned that she continues to contest the basis on which she has admitted that she acted inappropriately in relation to complaint 1. The Tribunal agrees with the Law Society that while she was entitled to contest the complaints, her initial response in her letter of 14 August 2017 to notification of the complaints was dismissive, when she stated "I am astounded to receive this correspondence. It is obvious that the complainant is a disgruntled respondent to my client's application and this 'complaint' is designed to cause me time and effort in responding to it". It was not until the letter responding to the Law Society's letter of 21 February 2018 informing her of the resolution to initiate proceedings in the Tribunal that the Solicitor acknowledged the seriousness of the matters alleged. The Tribunal agrees with the Law Society that this failure to appreciate the gravity of the misconduct is not consistent with the expected professional standards of conduct.

Character references

1. The Solicitor has provided character references from nine people. One is from a former client who states that the Solicitor had been extremely professional and kind in the course of the proceedings in which she had been involved. One is from a former work colleague who states that the conduct is completely out of character and that the Solicitor is objective and professional.
2. For the reasons given by the Court of Appeal in Re Melvey; ex parte Law Society of New South Wales (1966) 85 WN (Pt1) NSW 289, the Tribunal gives greater weight to the references from Neville Carter AM, Robert Benjamin, Trevor Hall, and Ngoc Hanh Nguyen. All are experienced legal practitioners who have known the Solicitor for many years in a variety of professional contexts, and all support her continuing in practice. Mr Carter states that the conduct the subject of these proceedings "stands in stark contradiction" to what he has observed in the Solicitor's roles in the legal profession since 1987. Mr Benjamin states that he regards her as a "competent, thoughtful and professional solicitor". Mr Hall states that the correspondence the subject of complaint 2 was "clearly not the product of sensible and constructive legal thought processes but was sent off as part of a very wrong decision that was made by her on a particular day". Ngoc Hanh Nguyen states that the Solicitor would be a huge loss to the profession and the public if she were not allowed to continue to practise law.

Prior disciplinary history

1. The Solicitor has previously been cautioned by the Legal Services Commission in 2012 for attempting to mislead a costs assessor on an application for assessment of costs. In 2016, this Tribunal made findings of professional misconduct and unsatisfactory professional conduct against the Solicitor in Legal Services Commissioner v Searle [2016] NSWCATOD 23. The particulars of the complaints brought by the Legal Services Commissioner were that in borrowing money from her clients and in failing to properly identify those funds in accounts, the Solicitor breached: 1. rule 12.3 of the NSW Professional Conduct and Practice Rules 2013; 2. s 255 of the Legal Profession Act 2004; and 3. s 256 of the Legal Profession Act 2004.
2. In those proceedings the Tribunal made orders giving effect to an Instrument of Consent to reprimand the Solicitor, order her to pay a fine of $5,000, and pay the costs of the applicant agreed at $1,000.

Conclusion

1. The Tribunal acknowledges that the Solicitor's misconduct was extremely serious. While she made admissions, and professed remorse, the Tribunal is troubled by the attitude evidenced to the disciplinary process. The Tribunal agrees that the Solicitor's prior disciplinary record reflects a poor understanding of her professional responsibilities, however acknowledges that the conduct the subject of these proceedings could not be regarded as a continuation or repetition of that previous conduct. The most significant factor in favour of the Solicitor is the strong support evidenced in the character references from experienced legal practitioners, who attest to her continuing to be a fit and proper person to remain on the Roll.
2. The matter is finely balanced. The Tribunal has reservations as to the Solicitor's demonstrated understanding of her ethical obligations, however in light of the open acknowledgment of her departure from those obligations, and the character evidence that that departure was out of character, the Tribunal is satisfied that it should not be assumed that misconduct of that kind might continue into the future. As discussed above, the Tribunal accepts that notwithstanding that the Solicitor's misconduct can be attributable to her overstepping the mark to help her client, she had an obligation to maintain professional standards of conduct even in stressful circumstances. However, the Solicitor had had many years of experience as a family law practitioner without evidence of any similar issues, and the Tribunal accepts that there is no reason to expect that to recur. The Tribunal concludes, on balance, that the Solicitor is presently fit to practice, and it would not be appropriate to recommend that her name be removed from the Roll.
3. That said, the significance of the misconduct needs to be acknowledged, and orders made to protect the public against further misconduct by the practitioner, to protect the public from similar defaults by other practitioners, to publicly mark the seriousness of what the practitioner has done, and to ensure that the high standards demanded of the profession are maintained.
4. The Tribunal is satisfied that the appropriate order is to impose a reprimand and a fine and a requirement that the Solicitor undertake further professional development in ethics. A reprimand and a fine demonstrate that the Solicitor is sanctioned for failing to meet expected professional standards. The Tribunal acknowledges that the finding of professional misconduct, which is a serious matter, will of itself prove a deterrent to the Solicitor and, importantly, other legal practitioners. A requirement for further training in ethics will assist in assuring the public that they can be confident that legal practitioners who do not conduct themselves in an appropriate manner will be dealt with appropriately under the relevant legislation which regulates the conduct of the legal profession.
5. In determining the amount of a fine, the Tribunal notes that the maximum fine that can be imposed on a finding of professional misconduct is $100,000: s 302(1)(l). The Tribunal considers that the fine needs to be more than a nominal amount, and, in the context of a second disciplinary proceedings in three years, should be sufficiently high to provide an appropriate indication both to the profession and to the public of the seriousness of what occurred. The Solicitor is an experienced practitioner who has previously played an active role in maintenance of the standards of the profession in her involvement with Law Society committees and the College of Law.
6. In determining an appropriate amount, the Tribunal derives greater assistance from the decisions of the former Administrative Decisions Tribunal and the Court of Appeal to which the Law Society referred than those of the State Administrative Tribunal, not least because the maximum fine that could be imposed under the relevant Western Australian legislation was $25,000. It is relevant, but not determinative, that the Solicitor will be required to pay the Law Society's costs, estimated as in the order of $25,000, and her own costs in the order of $10,000. The Tribunal accepts that the Solicitor's income is modest. The Tribunal is not persuaded that a fine of $5,000, as submitted by the Solicitor, would provide an adequate indication to either the public or the profession of the disapproval of the Solicitor's conduct. The Tribunal is satisfied that a fine of $12,000 should be imposed.
7. The third element of the sanction imposed by the Tribunal is to require the Solicitor to undertake and complete further professional education in ethics. The Solicitor has stated that she intends to complete the course offered by the College of Law. The Tribunal considers that an order in the usual form of order should be made.

Costs

1. Clause 23 of Sch 5 to the NCAT Act provides that 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 costs, unless satisfied that exceptional circumstances exist.
2. The Law Society seeks its costs. The Solicitor accepts that there are no exceptional circumstances in this case to warrant displacing that rule. A costs order is made.

Non-Publication Order

1. The Law Society submits, and the Solicitor agrees, that an order should be made under s 64 of the NCAT Act restricting the publication of the names of the complainant, the Husband, the Wife, and the step-daughter of the Husband from his previous marriage. The names of those individuals are not anonymised in the evidence provided by the parties in these proceedings. The Tribunal agrees that it is desirable that such an order be made, in particular because the findings and orders required to be made concerning the Solicitor's conduct can be made without the need to identify those individuals, and the proceedings between the Wife and Husband are ongoing, and the allegations made involving the step-daughter are serious.

Orders

1. The Orders of the Tribunal are: 1. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, and subject to any further order of the Tribunal, disclosure of the names of the former client of the Respondent (referred to as the "Wife"), the Wife's former de facto partner (referred to as the "Husband") and the step-daughter of the Husband is prohibited; 2. The Respondent is guilty of unsatisfactory professional conduct and professional misconduct; 3. The Respondent is reprimanded; 4. The Respondent is to pay, within 28 days, a fine in the sum of $12,000; 5. The Respondent is to undergo education as follows: 1. the Respondent, at her own expense, is to undertake within six (6) months of the orders made by the Tribunal (and during which the Respondent holds a current practising certificate) a course in Legal Ethics that is approved by the Director, Professional Standards of the Law Society of New South Wales (the Director, Professional Standards), and therein achieve a pass mark of not less than 50% (Pass Mark). Further: 1. the Respondent will, within seven (7) days of receipt of notification of the result of that approved course in Legal Ethics, provide to the Director, Professional Standards, the original result notification from the provider of that course; 2. should the Respondent fail to achieve the Pass Mark, she shall complete any further course in Legal Ethics as approved by the Director, Professional Standards, until such time as she achieves the Pass Mark; and 3. should the Respondent fail to achieve the Pass mark within the six (6) month time period referred to above, her practising certificate shall be suspended until such time as she achieves the Pass Mark; and 1. The Respondent is to pay the costs of the applicant 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. 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: 08 May 2019