Council of the Law Society of New South Wales v Simms

NCAT Occupational|2017-04-11

Introduction

These proceedings were commenced on 8 January 2016 when the applicant filed an Application for Disciplinary Findings and Orders dated 21 December 2015. We will refer to the parties as the applicant and the respondent.
The Applicant sought the following orders: 1. The solicitor be reprimanded; 2. The solicitor pay a fine; 3. The solicitor pay the Society's costs as agreed or assessed; and 4. Such further or other order as the Tribunal thinks fit.
The grounds for application (including particulars as set out in the Application) are as follows: GROUNDS FOR APPLICATION (INCLUDING PARTICULARS) Sonia Elizabeth Simms is guilty of professional misconduct in that she has practised outside the terms of her practising certificate. Particulars In these Particulars: 'Ms Bewsher' means Ms Elizabeth Enid Bewsher, chief financial officer and company secretary of Kisimul Holdings Pty Limited. 'the Solicitor' means Sonia Elizabeth Simms. "the firm" means EH Tebbutt & Sons. 1. From 12 February 2010 to date, the Solicitor has been the holder of a Practising Certificate which has only entitled her to practice as a non- principal of a legal practice. 2. From 2 January 2013 to 3 October 2014, the Solicitor was employed as a non-principal solicitor by the firm. 3. The following emails were sent by the Solicitor from her email address soniasimms@simmslawyers.com to Ms Bewsher and signed "Sonia Simms Solicitor Simms Lawyers": (i) Email at 9:04pm on 22 February 2013 (ii) Email at 5:08pm on 24 February 2013 (iii) Email at 6:06pm on 24 February 2013 (iv) Email at 6:10pm on 24 February 2013 (v) Email at 12:06pm on 1 March 2013 (vi) Email at 4:37pm on 9 April 2013 and in which she held herself out as being entitled to practice on her own account and in which (with regard to e-mails (iii) and (v)) she purported to give legal advice. 4. By email from the Solicitor (from her email address soniasimms@simmslawyers.com) to Ms Bewsher at 8:22am on 26 February 2013 in reply to an email from Ms Bewsher on 25 February 2013, the Solicitor stated, relevantly: "I have had a look at the two employment agreements - they both look okay to me, subject to the following qualifications: 1. The employing entity needs to be changed, 2. There was no Annexure A (confidentiality agreement) or Annexure B (Kaliber call centre rules) 3. The Fair Work Information Sheet that is offered - is there a link so that I can have a look at it? 4. Do we expect these casuals to earn over the threshold for super? Sorry, I know that you gave ma (sic) a rough idea of the shifts these employees will be working, but I have forgotten. Do you know what specific award these employees will come within? I see no problem going ahead using this template until further notice (it is actually much better than some I have seen!), and as this contract gives us the flexibility to change it later so if we find we have overlooked something we can alter". 5. By email from the Solicitor (from her email address ) to Ms Bewsher at 3:35pm on 3 March 2013 the Solicitor stated, relevantly: "I have been looking at a number of ATO rulings with respect to the question of whether the incentive payments would be subject to GST, and to be honest I have come up with both answers (and a maybe!). Would it be possible for you to provide me with a scenario of how and when and why these payments would be made and to whom? Also, and I don't think that there is anything to worry about, but I have been thinking a little more about those employment contracts, but can you please confirm what award the call centre staff fall within? and signed as "Sonia Simms Solicitor Simms Lawyers". 6. In Supreme Court Proceedings No. 2013/299293, the Solicitor filed a Notice of Appearance 8 October 2013 therein nominating herself as the Solicitor on the record for the Defendant ("the Notice of Appearance"). 7. By email from the Solicitor (from her email address ) to email xx at 4:44pm on 11 October 2013 the Solicitor forwarded the Notice of Appearance to Mr Greg Artup and signed the email "Sonia Simms Solicitor Simms Lawyers". 8. By letter dated 11 September 2013 from the Solicitor, on a letterhead styled "Simms Legal" to the Directors of Kisimul Holdings Pty Ltd, the Solicitor stated, relevantly, "We act for Clear Position Pty Limited...". The letter was signed by the Solicitor as "Sonia Simms Solicitor". The Solicitor's conduct in paragraph 3 - 8 above was in contravention of the conditions on her then Practising Certificate.

Applicant's Evidence

The following evidence was tendered by the applicant: 1. Affidavit of AM Foord dated 21 December 2015 - Exhibit A; 2. Affidavit of AM Foord dated 22 February 2016 - Exhibit B; 3. Affidavit of A McNeill dated 22 December 2015 - Exhibit C; 4. Affidavit of E Bewsher dated 18 December 2015 - Exhibit D; and 5. Affidavit of G Artup dated 21 December 2015 - Exhibit E.
The respondent did not object to the tender of the above Exhibits on the basis that they were accepted as evidence of correspondence sent and received but not on the basis of the truth of the underlying facts contained in the correspondence. The Applicant accepted the objection and the tender of the Exhibits was received on that basis.

Evidence of the Respondent

Counsel for the respondent tendered the following evidence: 1. The affidavit of the respondent dated 27 April 2016 - Exhibit 1; 2. The affidavit of the respondent dated 19 August 2016 - Exhibit 2; 3. The affidavit of R Kirby dated 6 March 2017 - Exhibit 3; 4. The affidavit of L Ellison dated 7 March 2017 - Exhibit 4; 5. The affidavit of P O'Loughlin dated 6 March 2017 - Exhibit 5; and 6. The affidavit of N Kourea dated 6 March 2017 - Exhibit 6.
There was no objection to the tender of the above exhibits.

Applicant's Submissions

The applicant submitted (and the respondent did not disagree) that these proceedings are to be considered having regard to the provisions of the Legal Profession Act 2004 (LP Act). The issue arises because the LP Act was repealed as from 1 July 2015 by the Legal Profession Uniform Law Application Act 2014 (the Application Act). Schedule 2 of the Legal Profession Uniform Law Application Amendment Act 2015 (Uniform Law Amendment Act) made a range of amendments from 1 July 2015 reflecting the commencement of the Application Act from 1 July 2015. Clause 26 of Schedule 4 of the Uniform Amendment Act contains transitional provisions. In summary, the effect of those provisions is that a complaint or investigation that had begun but had not been completed before 1 July 2015 is to continue to be dealt with in accordance with the provisions of the LP Act. The complaint giving rise to these proceedings commenced in September 2014.
We agree with the applicant's submissions. Accordingly, the statutory power of the Tribunal to make orders, having made a finding of professional misconduct or unsatisfactory professional conduct is found in s 562 of the LP Act. Such orders include those sought by the applicant.
The applicant submitted that the respondent has been guilty of professional misconduct. The applicant states that the definition of professional misconduct is, for all intents and purposes open ended. Section 497 of the LP Act states the following: 497 Professional misconduct (1) For the purposes of this Act: Professional misconduct includes: (a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and (b) conduct of an Australian legal practitioner 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 practitioner is not a fit and proper person to engage in legal practice. (2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.
The statutory definition is an inclusive one and therefore, the applicant submits, one must turn to the common law for guidance. The applicant submits that the common law concept of professional misconduct includes conduct in pursuit of professional activities which would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency: see the Council Of The New South Wales Bar Association V Sahade [2007] NSWCA 145 at [54] per Basten, JA which noted the adoption for legal practitioners of the test propounded in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. In that case, Lopes LJ stated: If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful and dishonourable by his professional brethren of good repute and competency, then it is open to the General Medical Council to say that he has been guilty of "infamous conduct in a professional respect".
The applicant submitted that the concept of professional misconduct has a wide breadth. In Bechara v Legal Services Commissioner [2010] NSWCA 369, McClellan CJ at CL stated that there are no fixed categories of professional misconduct. Much depends on whether the conduct falls outside generally accepted standards of common decency and common fairness.
The applicant relied upon the High Court decision in Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563 where Rich J stated: A charge of misconduct as relating to a solicitor need not fall with any legal definition of wrong doing. It need not amount to an offence under the law. It was enough that it amounted to grave impropriety affecting his professional character and was indicative of a failure either to understand or practice the precepts of honesty or fair dealing in relation to the Courts, his clients or the public. The particular transaction the subject of the charge must be judged as a whole and the conclusion whether it betokened unfitness to be held out by the Court as a member of the profession in whom confidence could be placed, or on the other hand, although a lapse from propriety was not inconsistent with general professional fitness and habitual adherence to moral standards, was to be reached by general a survey of the whole transaction.
The applicant submitted that the allegation against the respondent is that she practiced outside the terms of her practising certificate. Such conduct, if so proven, is clearly professional misconduct: see specifically Mee Ling v Law Society of New South Wales [1974] 1 NSWLR 490.
In Mee Ling Reynolds JA said: The issue of an annual practising certificate to solicitors is not a mere formality, nor is it only a device for raising revenue. The legislative scheme makes it clear that protection of the public is involved.
The applicant submits that the respondent's conduct ought not to be seen in the light foreshadowed in her reply, but rather as a deliberate series of acts clearly designed to assign to her rights which were only available to a legal practitioner holding a practising certificate with an unrestricted right of practice. Such conduct clearly raises the various concerns summarised by the applicant's submissions.
The applicant made submissions concerning the jurisdiction of the Tribunal which, in the context of proceedings of this type, is protective rather than punitive. The Tribunal's function is also educative: see Law Society of New South Wales v Foreman (2) (1994) 34 NSWLR 408 at [441]. In addition, 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. Thus it is relevant to take into account the effect the orders sought would have upon the understanding of the profession and the public as to the standard of behaviour required of legal practitioners.
The applicant went on to submit that, having regard to the seriousness of the alleged conduct, the appropriate orders are those sought in the application. The applicant added that having regard to the nature and "somewhat limited extent of the respondent's conduct and the principles enunciated [in the cases cited] "...that there is no present need for an order that would remove the respondent from the Roll but that the conduct would nevertheless be seen as one of such a serious nature that the respondent, the profession and the public should be sent an appropriate message of such seriousness and impropriety".
The applicant seeks costs and relies upon Sch 5, cl 23(1) of the Civil and Administrative Tribunal Act 2013 (NCAT Act).
At the hearing the applicant made submissions referring to aspects of the affidavits of the respondent. In par 17 of Exhibit 1 the respondent provides some background as to the circumstances in which she came to send emails to Ms Bewsher, the chief financial officer of Kisimul Holdings Pty Limited (Kisimul). Paragraph 17 states that the respondent's husband was approached by a director of Kisimul to become involved as a consultant to that company. The respondent's husband was then an undischarged bankrupt and the respondent understood that there had been discussions between her husband and the director of Kisimul which might result in "family interests" of the respondent taking up an equity position in Kisimul.
The applicant submitted that the respondent commenced holding herself out as being entitled to practice on her own account from February 2013. From 22 February 2013 a number of emails were sent by the respondent to Ms Bewsher. The applicant submitted that the evidence shows that the respondent met Ms Bewsher in January 2013. The respondent says that she was encouraged by what Ms Bewsher said to believe that she (the respondent) had a good prospect of obtaining legal work from Kisimul. In early February 2013 the respondent commenced work as an employed solicitor with a firm of solicitors in the city of Sydney.
The applicant relies upon a number of emails which we set out below so as to enable one to understand the applicant's submissions: 1. Email sent at 9:04pm on 22 February 2013: Date: Fri, 22 Feb 2013 21:04:23 +1100 Subject: From: soniasimms@simmslawyers.com To: email xx HI Liz, Got caught up this afternoon - here's my legal address. Will be in touch over the weekend. Thanks again for your time today - it was invaluable for me. Kind Regards, Sonia Simms Solicitor Simms Lawyers BSc(Hons) LLB (Hons) MStat 1. Email sent at 5:08pm on 24 February 2013: From: Sonia Simms [mailto:soniasimms@simmslawyers.com Sent: Sunday, 24 February 2013 5:08pm To: Liz Bewsher Subject: Invoice Please find attached invoice for legal services provided to Kisimul Holdings Pty Limited for the period 15 January 2013 to 15 February 2013. The details of the bank account are included on the invoice. Kind Regards, Sonia Simms Solicitor Simms Lawyers BSc(Hons) LLB (Hons) MStat 1. Email sent at 6:06pm on 24 February 2013: Date: Sun, 24 Feb 2013 18:06:07 +1100 Subject: Re various From: soniasimms@simmslawyers.com To: email xx CC: email xx Dear Liz, Thanks for your time last Friday, and apologies for the delay in getting back to you. Under separate cover I have sent the invoice for legal services to Kisimul Holdings Pty Limited. I have had some thoughts about the business and discussed a number of matters about the most appropriate way to approach this. Kisimul Holdings Pty Limited I have decided that I will personally become a director of Kisimul Holdings and Sonia Simms Pty Limited will be the shareholder. I will prepare the ASIC form 484 - I understand that you hold the corporate key. Can you please confirm. I will also be seeking an indemnity from the existing director (Adam McNeill) against any pre existing liabilities of the company. I will also prepare this document. Loan The loan amount, which I understand from the cash flow sheet to be $44,000 will be to Sonia Simms. I can also prepare this document for execution by the directors of the company, but until such time this is the advice as to whom the loan is to be. Further Legals I will check up for you on those other questions you raised, including as to whether the incentive payments are subject to GST and report back. Please do not hesitate in contacting me should you wish to discuss any of these matters further. King Regards, -- Sonia Simms Solicitor Simms Lawyers BSc(Hons) LLB (Hons) MStat 1. Email sent at 6:10pm on Sunday 24 February 2013: Date: Sun, 24 Feb 2013 18:10:05 +1100 Subject: From: soniasimms@simmslawyers.com To: email xx; email xx Hi again Liz, I've sent various emails to both your Hotmail and Kailber accounts. Trust you get them all. Regards, -- Sonia Simms Solicitor Simms Lawyers BSc(Hons) LLB (Hons) MStat 1. Email sent at 12:06pm on Friday 1 March 2013: Date: Fri, 1 March 2013 12:06:40 +1100 Subject: Re: Received and recorded. Liz RE: Invoice From: To: email xx CC: email xx Hi Liz, I'd like to direct the funds owed to Simms Legal from Kaliber (as per my invoice below) to a different account for this invoice only, if that's okay. The details are: BSB XXX XXX Account: XXX XXXXX I'd appreciate acknowledgement of this email. Kind Regards, Sonia Simms PS I am on to the GST issue, I have just had so many demanding clients this week I am woefully behind. Hope the employment process for the casuals went well this week. 1. Email sent 9 April 2013 at 4:37pm: From: Sonia Simms [mailot: Sent: Tuesday, 9 April 2013 16:37 To: Elizabeth Bewsher Cc: email xx Subject: March 2013 Invoice -- Sonia Simms Solicitor Simms Lawyers BSc(Hons) LLB (Hons) MStat Mobile: XXX 04309 Invoice March.pdf attachment 1. Email sent at 8:22am on 26 February 2013 the text of which was set out in par 4 of the Application and therefore appears earlier in these reasons; and 2. Email sent at 3:35pm on 3 March 2013 the text of which appears in par 5 of the Application and therefore appears earlier in these reasons.
The applicant also relies upon correspondence sent by and actions taken by the respondent in connection with proceedings brought in the Supreme Court of New South Wales in September and October 2013. These are: 1. Letter dated 11 September 2013 under the letter head "Simms Legal" addressed to Kisimul Holdings Pty Limited which stated: We act for Clear Position Pty Limited and attach by way of service: 1. Creditors Statutory demand for payment of debt; and 2. Affidavit of Sonia Elizabeth Simms sworn September 11 2013 Please address any communication in relation to the demand to this office. Yours faithfully Simms Legal Sonia Simms Solicitor 1. On 8 October 2013 the respondent filed a Notice of Appearance, the relevant parts of which stated: Legal representative Sonia Elizabeth Simms Contact name and telephone Sonia Elizabeth Simms (xxx) Contact email soniasimms@simmslawyers.com

Below the above under the description "signature of legal representative" the signature of the respondent appears. 1. Email from the respondent from her email address sent on 11 October 2013 to the solicitor for the opposing party which stated: Herewith annexed appearance in the matter 2013/299293 filed 9 October 2013. Mr Peter O'Loughlin of counsel has been retained on behalf of the defendant. We note first return on 28 October 2013. Yours faithfuly Sonia Simms Solicitor Simms Lawyers BSc(Hons) LLB (Hons) MStat Mobile: XXX

Based upon the actions of the respondent described in the above paragraphs, the applicant submitted that the Tribunal will be satisfied that the respondent's course of conduct during the period of January/February 2013 and again in September/October 2013 demonstrates that the respondent at various times practised outside the requirements of her then current practising certificate which restricted her to work only for her employer. The applicant submitted that although there was no evidence that the respondent was paid for her services, that fact is not relevant.

Respondent's Evidence and Submissions

The respondent filed two affidavits, dated 27 April 2016 and 19 August 2016. In addition, the respondent gave oral evidence and was subject to cross examination. The respondent was admitted as a solicitor in 2010 having previously obtained a degree of Bachelor of Science with Honours, a degree of Master of Statistics and a Bachelor of Laws with Honours. She commenced employment as a Law clerk in 2007 and following admission as a solicitor worked with a law firm. She incorporated a company called Sonia Simms Pty Limited in March 2010 to be used as a vehicle to provide for her husband's consultancy services and also to provide services for work undertaken by her in business separate from her permanent employment. She registered the business name "Simms Enterprises". The company was used to provide statistical services.
The respondent's evidence stated that in 2012, she completed a course in legal practice management with the College of Law and planned to commence practice on her own account early in 2013. As part of this plan she registered the email address soniasimms@simmslawyers.com in December 2012. The respondent's affidavit referred to her meeting with Ms Bewsher in January 2013 and that, as a consequence, she believed that she had a good prospect of obtaining legal work from Kisimul. Her affidavit stated that she understood that if she were to open a legal practice on her own account she would need to apply to the Law Society for a full practising certificate and arrange the necessary professional indemnity insurance.
In early February 2013 the respondent commenced working as an employed solicitor with a city law firm.
In respect of the email sent at 9:04pm on 22 February 2013, the respondent says that she sent her email address to Ms Bewsher for the "new firm that I hoped to establish".
In respect of the email sent at 5:08pm on 24 February 2013 the respondent says that the attached invoice constituted an invoice prepared by her husband. She further says that although the email referred to "legal services", she had in fact not carried out legal services for Kisimul at that time. Her affidavit stated that she is unsure whether she sent the email or whether her husband composed and sent it.
In respect of the email dated 26 February 2013 to Ms Bewsher, the respondent says that she commented on the employment agreements which had been sent to her because she was about to become a director of Kisimul and wanted to ensure that the company's contractual arrangements "were in order". She stated that she did not charge Kisimul for these comments.
The respondent also states in her affidavit of 27 April 2016 that the "things that I did" were done "in my capacity as a new director and representative of Sonia Simms Pty Limited which was to become a 50% shareholder in the venture" (referring to a proposed venture in Kisimul). She further states that she was "genuinely intending to follow all proper procedures to establish practice on my own account in early 2013" and that she had completed the necessary practice management course in December 2012. She acknowledges that the invoices prepared by her husband on behalf of Sonia Simms Pty Limited and which were initially submitted to Kisimul for "legal services" were "quite inappropriate".
In her affidavit of 19 August 2016, the respondent acknowledges that in connection with the Supreme Court proceedings referred to earlier, she forwarded documents under a covering letter which had a letter head with the words "Simms Legal" and that she had signed the letter as "Sonia Simms Solicitor". She also acknowledges that she filed a Notice of Appearance in the Supreme Court proceedings. Her affidavit states that: I now fully appreciate that before obtaining a practising certificate which allowed me to practice on my own account, it was quite wrong of me to have nominated myself as solicitor on the record or to employ the references to "Simms Lawyers"
She states that she did not continue to act in the matter on behalf of Clear Position Pty Limited and took steps to engage another firm. Her affidavit goes on to state the following: When I did these things in September and October 2013, I was under a great deal of personal, family and financial pressure and I can only think that such pressure affected my judgement. The email address that was used in the documents was one that I had established in December 2012 in preparation to me establishing my own independent practice.
She expressed her regret and apologies to the Tribunal and the Law Society for her actions.
Further evidence emerged in cross examination of the respondent. In relation to the email sent on 22 February 2013 at 9:04pm, the following exchange took place: Q. You signed it as Sonia Simms, solicitor, Simms Lawyers, didn't you? A. Yes I did. Q. And you don't accept that you were inferring by that email that you were acting in the capacity of a solicitor. A. I was not inferring that I was acting in a capacity as a lawyer practising on my own. That was not my intention. Q. What do you mean by the signature block, Sonia Simms, solicitor, Simms Lawyers? A. It was not meant to mean that I was practising by myself.
In respect of the email dated 24 February 2013 sent at 6:06pm, the following exchange occurred during cross examination: Q. Look at about point 6, the heading Further legals. A. Yep. Q. Did you not mean to convey to Ms Bewsher that you were looking at legal issues? A. No, I was looking at the legal issues surrounding the things to do with Kisimul Holdings and Sonia Simms becoming a shareholder and me becoming a director including that I'd done some searches and things like that on the company as it stood.
In respect of the email dated 26 February 2013 sent at 8:22am to Ms Bewsher, the following exchange occurred during cross examination: Q. See the first email? That's from you, isn't it? To Ms Bewsher. A. That's correct. Q. And you're saying, in that email you're not giving her any advice? A. No, I'm not.
In respect of the letter dated 11 September 2013 under the letter head "Simms Legal" addressed to Kisimul Holdings Pty Limited, the following exchange occurred during cross examination: Q. The letter, for the record, is from Simms Legal, it is signed by you, Sonia Simms solicitor, it's directed to the Directors of Kisimul and it states, correct me if I misread it, "We act for Clear Position Pty Ltd and attach by way of service." It concludes, "Please address any communication, in relation to the demand, to this office." You're not telling this tribunal that you did not author that letter? A. I believe that my husband authored this letter and I believe that there is correspondence to the law society where he states that, and that was my electronic signature that he used. Q. So you deny being the author and/or the communicator of this letter? A. That's correct. And that's been communicated to the law society. Q. There's no evidence from your husband in these proceedings, is there? A. Not that I'm aware.
In respect of the Notice of Appearance filed on 8 October 2013, the following exchange took place: Q. You knew when you filed the appearance it was wrong, didn't you? A. No, I didn't. Q. You thought you were entitled to appear as the solicitor for Clear Position. Is that your answer? A. No, I didn't think I was entitled to appear as the solicitor for Clear Position. Q. Well, if you didn't think you were entitled to and you didn't think, why then did you file the appearance as Sonia Simms Solicitor? A. I thought I was entitled to work as Sonia Simms, director of Clear Position. Q. But that's not how it came out, is it? A. No.
The respondent relied upon the affidavits of R Kirby, L Ellison, P O'Loughlin and N Kourea, as evidence of her good character. One deponent was Mr Kirby, a Senior Partner of the firm which employed the respondent during 2013. His evidence was that the respondent always conducted the work in respect of which she was responsible entirely professionally and observed the highest ethical and professional standards. He stated that he was "happy to provide this reference as to the general professional integrity and high standards of which Sonia has otherwise shown consistently throughout the course of my association with her".
The affidavit of Mr Ellison SC stated that he had known the respondent since late 2011. He records that the respondent is ashamed and embarrassed as to what has happened and had no hesitation in admitting to Mr Ellison that what she did was wrong. The affidavit of Mr O'Loughlin, barrister states that he has considered her to be a practitioner who "was ethical, professional and aware of her inability to practice other than as an employed solicitor". He considers the respondent to be "an able, ethical and professional solicitor". The affidavit of Natasha Kourea records that the respondent acted for Ms Kourea in relation to difficult litigation in which Ms Kourea engaged the firm which employed the respondent to act for her. Ms Kourea says that she cannot speak highly enough of the respondent's "ability, her ethical standards and her loyalty".
The respondent has filed written submissions and senior counsel for the respondent made oral submissions at the hearing. The following is a summary of those submissions.
The respondent does not concede that she practiced as a legal practitioner outside the conditions of her practising certificate. She acknowledges that the use of the email address (soniasimms@simmslawyers.com) during 2013 ought not to have occurred. The respondent acknowledges that the Tribunal may conclude that she has been guilty of unsatisfactory professional conduct. However, she resists the applicant's submissions that her conduct amounted to professional misconduct.
The respondent submitted that it is relevant to take into account the factual context in which the relevant events occurred in 2013. In 2010, soon after her admission to practice, her now estranged husband became bankrupt as a result of a business failure and the respondent became the main income earner for the family (consisting of the respondent, her husband and two young children). The company called Sonia Simms Pty Limited was incorporated in 2010. This was a vehicle intended to be utilised to provide Mr Simms consulting services as an IT specialist to third parties. Towards the end of 2012 she gave notice of termination of her then employment with a solicitor and completed the Law Society's practice management course as a prerequisite to obtaining an unconditional practising certificate. She registered the name "Simms Lawyers" as the prospective name for her new firm and she also obtained the email address referred to above. These events were preparatory to commencing sole practice.
At the same time, her husband was negotiating with Kisimul to take on a consultancy role and the respondent had discussions with a view to taking up an equity position in that company as well as becoming a director. At the same time, the respondent accepted employment with a city firm of solicitors and began her employment there in early February 2013, retaining her restricted practising certificate. The respondent stated that she sent the email address (soniasimms@simmslawywers.com) on 22 February 2013 to Ms Bewsher at a time when she was then planning to open her new firm.
The respondent's submissions also state that on 11 September 2013, the respondent (as the only director of Clear Position Pty Ltd) forwarded a statutory demand to Kisimul under cover of a letter which had the letter head "Simms Legal".
The respondent's submissions state that her behaviour was never dishonest, her actions were consistent with her then intentions to establish sole practice, she was distracted by her commercial dealings with Kisimul, she did not provide legal services to Kisimul and was not paid for such services, and that the use of the name "Simms Lawyers" and the associated email address was wrong. The preparation of invoices to Kisimul by her husband for work described as "legal services" was wrong. However, no payment was ever made or received upon those invoices. Her actions in going on the record with respect to the Supreme Court proceedings for a short period were "stupid, inappropriate and should not have occurred". However, the respondent quickly rectified the position by engaging another firm to represent Clear Position. The respondent submitted that she was entitled to give Kisimul advice, not because it was a client, but because it was a company in which she had an interest. She was also entitled to assist Kisimul by providing views as to the employment contracts which Kisimul was intending to employ.
The respondent submitted that the conduct of the respondent does not satisfy the definition of "professional misconduct" as contained in s 497 of the LP Act and that the common law concept of professional misconduct is not appropriate because the respondent's conduct was not disgraceful or dishonourable. The matters complained about by the applicant relate to conduct which do not constitute "practice" as a solicitor at all.
In oral submissions, senior counsel for the respondent elaborated upon the submissions summarised above. These submissions were that the facts which occurred early in 2013 (February, March and April) do not constitute practising on a proper view of that expression. The references to legal work were all in the future because the respondent was contemplating that she would establish a practice. The respondent's conduct may be described as "stupid" in that it was stupid for her to send out emails which referred to the firm Simms Lawyers which then had no existence. However, the conduct cannot be described as disgraceful or dishonourable which is the relevant test for the Tribunal to apply.
Senior counsel for the respondent conceded that the respondent's conduct later in the year concerning the Supreme Court proceedings was harder to defend. He described the filing of the Notice of Appearance as "outside the bounds of what should have been done". In any event, within a short space of time, she arranged for another firm to take over the conduct of the proceedings. The respondent's conduct was not, when taken as a whole, disgraceful or dishonourable.
Senior counsel said that there have been no comparable cases concerning a solicitor who was qualified only to be an employee but has stepped over the boundary as the respondent has done in this case.
However, senior counsel for the respondent conceded that the respondent had been guilty of unsatisfactory professional conduct. A competent solicitor would not have engaged in the conduct which the respondent undertook.

Fine

Neither party's submissions contained any comment on whether the respondent should pay a fine, notwithstanding that that was one of the orders sought by the applicant. Accordingly, after the hearing the Tribunal caused a letter to be submitted to the parties directing that submissions be filed concerning whether and if so, in what amount, a fine should be imposed upon the respondent.
The substance of the applicant's submissions for the imposition of a fine are summarised as follows: 1. The LP Act provides that the maximum fine which the Tribunal may impose is $10,000.00 in the case of unsatisfactory professional conduct not amounting to professional misconduct or $75,000.00 in the case of professional misconduct (see s 562(7)); 2. The purpose of disciplinary orders is not to punish the practitioner but fines are imposed to mark the seriousness with which the Tribunal views the practitioner's conduct and one of the principle purposes of disciplinary orders is to publicly mark the seriousness of what the solicitor has done (see Law Society of NSW v Foreman); 3. A fine may be at the "lower end of the scale" where the practitioner has a good record and demonstrates contrition: see Law Society of New South Wales v Graham [2005] NSWADT 114 and Law Society of New South Wales v Konstantinidis (No 2) [2005] NSWADT 87); 4. The applicant's submissions refer to a number of cases where fines have been imposed ranging from $2,000.00 to $48,000.00; 5. The applicant submitted that absent evidence of financial stress or other mitigating factors, this matter does not fall within the Cummins range but would more likely to fall at the higher end of the spectrum. The reference to Cummins is a reference to the case of Council of the Law Society v Cummins [2015] NSWCATOD 116 where a fine of $2,000.00 was imposed in respect of a practitioner acting contrary to practising certificate conditions and where the practitioner had had limited financial resources; and 6. The applicant submitted that a fine in the range of $5,000.00 would send the appropriate message to both the profession and the public that the respondent's conduct amounted to professional misconduct of a serious nature and will not be tolerated.
The substance of the respondent's submissions concerning the imposition of a fine are summarised as follows: 1. The applicant has asked for a reprimand which has been conceded on behalf of the respondent to be the appropriate order; 2. After the hearing had concluded and the respondent had travelled from overseas to give her evidence directed to the case as presented at the hearing where no mention was made of a fine, and returned to her current employment overseas, the matter of a fine is now resurrected. The respondent submitted that it is not a fair or an appropriate case for a fine to be imposed in these circumstances. The applicant had previously agreed, and the respondent understood, that there would be a single hearing and not a two stage hearing. By now taking the path which the applicant has taken, the respondent has been prevented from putting forward her financial circumstances to demonstrate that the impact of a fine upon her would be unfair and severe; 3. In any event, this is not a case for a fine to be imposed in addition to a public reprimand. The finding of the Tribunal will be adequate to mark the conduct of the solicitor publically in this case. The applicant concedes that no protective orders are sought such as suspension of or conditions to be attached to the respondent's practising certificate. There is "no conceptual basis for imposing a fine"; and 4. Given evidence of the personal circumstances of the respondent and her estranged husband, the Tribunal could infer that a fine would impose significant additional hardship upon the respondent as she attempts to "rebuild her life, her career and her family".

Consideration

The initial issue for determination is whether the respondent's conduct is properly characterised as professional misconduct, as defined in s 497 of the LP Act or as unsatisfactory professional conduct as defined in s 496 of the LP Act. The applicant submitted the former and the respondent concedes the later. Section 498 is also relevant.
Sections 496, 497 and 498 of the LP Act provide: 496 Unsatisfactory professional conduct For the purposes of this Act: Unsatisfactory professional conduct includes conduct of an Australian legal practitioner 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 Australian legal practitioner. 497 Professional misconduct (1) For the purposes of this Act: professional misconduct includes: (a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and (b) conduct of an Australian legal practitioner 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 practitioner is not a fit and proper person to engage in legal practice. (2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters. 498 Conduct capable of being unsatisfactory professional conduct or professional misconduct (1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct: (a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules, (b) charging of excessive legal costs in connection with the practice of law, (c) conduct in respect of which there is a conviction for: (i) a serious offence, or (ii) a tax offence, or (iii) an offence involving dishonesty, (d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration, (e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth, (f) conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice), (g) conduct of an Australian legal practitioner in failing to comply with an order of the Disciplinary Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law), (h) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law. (2) Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention.
It was conceded by the respondent that her practising certificate required her to practice as an employee and did not entitle her to practice on her own account.
In assessing the respondent's conduct, we are required to consider the conduct as a whole (see Kennedy v The Council of the Incorporated Law Institute of New South Wales per Rich J). Accordingly, it is our view that in coming to a conclusion concerning the respondent's conduct, we should have regard to the whole of the conduct which commenced in February 2013 and concluded in October 2013.
The restriction placed upon the respondent's practising certificate was not a mere formality but is designed to protect the public (see Mee Ling v Law Society of New South Wales).
We find that the respondent's conduct in issuing the emails identified in the Application constituted engaging in legal practice. The emails were sent by the respondent for and on behalf of "Simms Lawyers". The respondent's legal qualifications were included. The email of 24 February 2013 (sent at 6:06pm) foreshadowed giving legal advice under the heading "Further Legals". The emails of 26 February and 3 March 2013 provided legal advice. We do not accept the respondent's submissions that the emails were sent only in the respondent's capacity as a potential investor and/or director of Kisimul. The respondent may have been hopeful of becoming an investor and/or director, but the emails clearly, in our view, deal with legal advice and were sent by the respondent in her capacity as a legal practitioner.
We do not think that the respondent's conduct can be excused on the basis that she merely "jumped the gun" by providing legal advice as an unrestricted legal practitioner at a time when she intended to shortly apply for an unrestricted practising certificate. She did not apply for such a certificate in the months that followed the emails and indeed her conduct in accepting employment with a new firm in February 2013 is inconsistent with an intention to shortly apply for an unrestricted practising certificate.
In our view, the filing of the Notice of Appearance constituted a continuation of the respondent's conduct in holding herself out as a practitioner with an unrestricted practising certificate. The filing of the Notice of Appearance (and forwarding it to the opposing legal practitioner) was a misrepresentation of her position both to the Court and to the opposing legal practitioner. It is true that the misrepresentation was corrected relatively quickly by the engagement of another firm to take over the representation of Clear Position.
The respondent invited us to consider that her husband may have either sent or authored some of the offending emails. She does not assert that he did so but rather that he may have done so or he may have authored the emails. During cross examination, the respondent stated that her husband had sent the letter of 11 September 2013. However, she acknowledged that she sent the Notice of Appearance on 8 October 2013. We are of the view that even if her husband sent the letter of 11 September 2013, she was either aware of its contents and authorised its dispatch or, alternatively, became aware later and did nothing to correct the misrepresentation contained in the letter.
Although the conduct of the respondent falls into two distinct parts (one part occurring in early 2013 and the other part in the latter part of 2013), it is our view that taken as a whole, the respondent's conduct could be described as engaging in legal practice and providing legal services and in doing so, she held herself out as being entitled to practice on her own account. In the circumstances where the respondent held a restricted practising certificate such conduct misled, or was capable of misleading, the Court and the recipients of her communications. Furthermore, such conduct breached the statutory restrictions imposed on her entitlement to practice as a legal practitioner. In Bechara v Legal Services the Court of Appeal stated that there are "no fixed categories of professional misconduct" [par 44]. The Court then referred to previous examples of professional misconduct. One example was wilfully misleading the Court (New South Wales Bar Assn v Livesey [1982] 2 NSWLR 231). The Court also said that much depends on whether the conduct falls outside "generally accepted standards of common decency and common fairness".
We reject the respondent's submissions that her conduct may be described as unsatisfactory professional conduct. Her conduct in our view, was more serious than conduct which would fit the description of falling short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner (see s 496).
We are on the view that the respondent's conduct constitutes professional misconduct. It fell outside generally accepted standards of common decency and common fairness and, in addition, it amounted to grave impropriety indicative of a failure to understand or practice the precepts of honesty or fair dealing in relation to Courts, clients or the public (to paraphrase the words of Rich J in Kennedy v The Council of the Incorporated Law Institute of New South Wales).
In the circumstances of this matter, we are of the view that it is not appropriate or necessary to impose a fine upon the respondent. We are of the view that the publication of this decision and of the public reprimand of the respondent as well as the order for the respondent to pay the applicant's costs, constitute sufficient disapproval by the Tribunal of the respondent's conduct. Our reasons are: 1. The scope of the respondent's conduct was limited. It concerned Kisimul, Clear Position and those involved or representing those companies. In addition, it involved the Court but the wrongful conduct with respect to the Court was corrected relatively quickly; 2. We reject the applicant's submission that the conduct is more serious than that disclosed in the Council of the Law Society v Cummins. That case involved a solicitor whose name had been removed from the roll of solicitors in 1983 and who was readmitted in 1996. On readmission, his practising certificate imposed conditions and undertakings limiting his right to practice of that of an employee. In contrast, there is no evidence that the respondent's prior conduct is other than exemplary; 3. There is evidence that the respondent has already suffered considerably as a result of her, and her husband's conduct. She returned to Australia (presumably incurring expense) and gave evidence before the Tribunal. She instructed senior counsel (presumably incurring expense) to represent her and she will be ordered to pay the applicant's costs. A fine on top is not necessary to protect the public or to further mark the Tribunal's disapproval of the respondent's conduct; 4. The respondent has provided impressive evidence from witnesses concerning her character and evidencing her regret and remorse for the conduct in question; 5. There is some force in the respondent's submissions that given the way the proceedings have been conducted, she has been prevented, or at least hampered, in putting forward evidence of her financial circumstances to demonstrate that the impact of a fine upon her would be unfair and severe; and
Accordingly, it is our view that the imposition of a fine in the circumstances of this matter is not necessary.
Having found the respondent guilty of professional misconduct the Tribunal will make the following orders. The order for the respondent to pay the applicants costs follows from cl 23 of Sch 5 of the NCAT Act and there are no exceptional circumstances justifying a different order.

Orders: The Tribunal makes the following orders: 1. Sonia Elizabeth Simms is reprimanded; and 2. Sonia Elizabeth Simms is to pay the applicant's costs 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: 18 July 2017

At a glance

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Judgment (10 paragraphs)

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Cases Cited (6)