Council of the Law Society of New South Wales v Winter [2019] NSWCATOD 57 | Case summary

Law Society's submissions

The Law Society submits that having regard to the findings by the Tribunal culminating in conclusions of professional misconduct, removal of the Solicitor's name from the Roll is the appropriate consequential order. That is necessary in the present case primarily for the protection of the public, not just from the prospect of future transgressions of the Solicitor but from similar defaults by other practitioners.
The Law Society submits that the Solicitor's conduct demonstrates his unfitness to remain on the Roll, based on the Tribunal's findings that: 1. the Solicitor's conduct in communicating to Mr Cains that he was a director of Ronro was deliberate and not inadvertent and that the Solicitor knew the representations he made were false; 2. the Solicitor as an experienced legal practitioner who had previously been appointed as a director and managed the administrative work of Ronro, knew the significance of the term "director"; 3. the Solicitor's conduct consisted of ongoing and persistent failures to meet the required standard of professional competence and diligence; 4. the Solicitor ought to have known that Ronro could not and did not validly instruct him to act in the conduct of the litigation with Groz.
The Law Society submits that the Tribunal should be satisfied that the unfitness demonstrated by the proven conduct is a present unfitness that is probably permanent or at least indefinite, and so justifies an order removing the Solicitor's name from the Roll. The nature of the conduct in question constituting professional misconduct is essentially dishonest, leading to a conclusion of unfitness that is probably permanent. The Solicitor's name should be removed from the Roll because it is the only appropriate sanction to be ordered having regard to the seriousness of the findings made against him.
In oral submissions, the Law Society submits that if the Tribunal is not minded to recommend removal of the Solicitor's name from the Roll, an alternative sanction is a reprimand and a fine of an amount sufficient to reflect the seriousness of the matters.

Discussion and findings

The orders that can be made by the Tribunal under s 302 of the Uniform Law include an order recommending that the Solicitor's name be removed from the Roll (s 302(1)(f)); an order that a specified condition be imposed on his practising certificate (s 302(1)(g)); or an order imposing a fine of a specified amount not exceeding $100,000 (s 302(1)(l)). The Tribunal can also make an order reprimanding the Solicitor (s 299(1)(b); s 302(1)).
The approach to be adopted in determining an appropriate order in the circumstances of this case is that held in Law Society of New South Wales v Walsh [1997] NSWCA 185. As discussed by Beazley JA, 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.
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.
We first consider the nature of the conduct in respect of which the Solicitor was found guilty of unsatisfactory professional conduct and professional misconduct. That conduct was serious, in particular the making of false and misleading statements to a self-represented litigant in holding himself out as a director of Ronro. We concluded that that conduct was deliberate and not inadvertent. In other respects, we found that the Solicitor's conduct was recklessly careless: in taking steps to enforce the costs judgment at a time when he ought to have known that Ronro's registration was in jeopardy, and where he ought to have known he did not have valid instructions to act on behalf of Ronro. That conduct misled both Mr Cains, and the Court. While we did not find that the Solicitor had actual knowledge as to the deregistration of Ronro, in circumstances where he ought to have known that there was at least a real prospect that Ronro's registration was in jeopardy, we found that his failure to take the reasonable steps expected of an experienced lawyer was conduct well short of the expected standard of competence and diligence.
We next consider the Solicitor's insight and remorse as to his conduct. In his affidavit of 21 January 2019, the Solicitor gives evidence that: 1. He acknowledges and accepts the reasoning and findings of the Tribunal, and accepts that: 1. He should have investigated the status of Ronro and his failure to do so was reckless and careless, and regrets his failure to investigate the status of Ronro; 2. It was wrong to refer to himself as a director of Ronro, and that action was foolish and ill-considered; 3. He should carefully have considered whether Ronro could provide valid instructions and accepts that he should have known that it could not, and he regrets that he did not pause to make that consideration; 4. His conduct fell short of the standard of competence and diligence expected of a lawyer of 30 years standing with experience in company law, and deeply regrets that; 5. He regrets making the statements to Mr Cains and that in doing so he misled Mr Cains; 6. His failure to make enquiry as to Ronro's status was recklessly careless, and he would not now take any step based on instructions from a corporate client without first searching the client's status; and 7. He did not have valid instructions from his client and as a result misled the Court, and he is devastated that he acted in a way against his own principles and the principles and standards of the legal profession.
The Solicitor states that having examined the reasons which may have led to his actions he concludes that his relationship with the client Ronro was too close, which led to a loss of objectivity and a lack of objective professionalism. He has resolved that he will never accept instructions from any person or entity with which he, or any close relative, has any interest so as to ensure that any possible loss of objectivity that might arise could not cloud his professional judgment. He regrets it has taken the public scrutiny of disciplinary proceedings to arrive at this understanding. He has been publicly embarrassed by his actions and the publication of the decision. That has led to a significant mark on his previously high reputation among friends and colleagues in the profession and outside the profession, including Mr Cains with whom he previously had a good business relationship. The conduct is inconsistent with the accepted standards of the legal profession and also not in accordance with his own standards or expectations. He has nobody to blame but himself. He is sorry his actions could diminish the reputation of lawyers or the law, and is remorseful for his lack of professionalism and lack of insight in acting the way he did. He has been in practice since 11 July 1980 and has never had any other disciplinary complaints or findings made against him.
In his affidavit of 29 January 2019 the Solicitor accepts the finding that cumulatively his conduct constituted professional misconduct, and deeply regrets that his conduct has been found to have fallen so short of the high standards expected of legal professionals and which he has endeavoured to uphold during his legal career.
The Solicitor was not cross-examined on this evidence, and we accept it as evidence of his recognition and acknowledgement of the seriousness of the conduct, and of remorse for it. The Law Society notes that this expression of remorse was not made at an earlier stage of the proceedings. The Tribunal accepts that the findings made against him have been the source of regret for the Solicitor, and that he intends to modify his practice so he can maintain objectivity and avoid any repetition of his conduct.
The Solicitor has provided three character references, all from experienced legal practitioners. Mr Williamson and Mr Coode, both solicitors, state that they have known the Solicitor for many years, and that they regard him as diligent and ethical. Mr Stowe, a barrister, states that he has been briefed by the Solicitor since 2016, and he regards him as a competent and diligent practitioner. All state that they have read the Tribunal's reasons of 2 January 2019, and the Solicitor's affidavit of 21 January 2019. They each confirm the opinion that the conduct is not consistent with their perception of the Solicitor; the Solicitor's remorse; and that notwithstanding the findings, he continues to be regarded by them as a professional, diligent and competent practitioner.
In considering the weight to be given to these character references, we note the decision of the Court of Appeal in Re Melvey; ex parte Law Society of New South Wales (1966) 85 WN (Pt1) NSW 289 referring to the worth and weight to be attributed to evidentiary material which attests to the character and antecedents of a legal practitioner. At 298, the Court (Herron CJ, Sugerman and McLelland JJA) said: A matter which we ought to weigh up on the question of penalty is the character and antecedents of the respondent. He has filed over 100 affidavits which bear on this issue. Thirty of these deponents were barristers or solicitors. The rest were from clients, citizens of repute, professional men and police officers. The trend of these affidavits, speaking generally, is that the respondent was a hard-working man, full of human sympathy and goodwill, and one who did not spare himself in his clients' interests and who was respected and liked by all. This body of evidence is weighty and has caused us to pause and consider at length its effect. One of our chief difficulties is to determine how far each of the deponents knew the significance of the methods which the respondent was employing. We feel that few of the deponents other than those legally qualified were aware of the standards of honour and honourable conduct expected from a solicitor. It is one thing to speak well of a man whom a deponent has met in social or business circles; it is another to speak of him as to his professional dealings with trust funds. We do not think that the lay deponents knew or understood the significance of the dealings by the respondent with his clients' monies, and less still that they understand the real nature of the charges of his professional misconduct.
Each of the three referees has read the earlier decision in these proceedings and has attested in their affidavits to the good character of the Solicitor in their capacity as a legal practitioner. Accordingly the qualifications adverted to in Melvey do not apply. We consider these references should be given considerable weight.
There is no dispute that the Solicitor has been in practice since 1980, the holder of an unrestricted practising certificate since 1981, and has not been the subject of a disciplinary complaint or had any professional disciplinary findings made against him before this complaint. It is not disputed that he notified the Law Society of his bankruptcy as required, and that he was allowed to continue practice with an unrestricted practising certificate subject to conditions during the period of bankruptcy.
The Solicitor submits that that background supports the proposition that the conduct was out of character and isolated. The Law Society submits that as a senior practitioner there may be limited capacity for the Solicitor to remedy or rectify any character defects than might be the case for a more junior practitioner. We agree with the Law Society that the community perception of what can be expected of a senior practitioner is relevant. Having found that during the period December 2014 to March 2015 there were ongoing and persistent failures by the Solicitor to meet the required standard of professional competence and diligence, we also agree with the Law Society that it is relevant that the conduct was not a single lapse. On balance, we agree with the submission of the Solicitor that the conduct was out of character. Having regard to the character references, and to the Solicitor's expressions of remorse, we are satisfied that it is conduct that is not likely to be repeated.
Having regard to all those factors, we conclude that while the Solicitor's misconduct was serious, he has demonstrated insight into what occurred, and why it occurred. We are persuaded that it is most unlikely that he would engage in conduct of this kind in the future in the practice of law, rather, that he would take positive steps to ensure to the best of his ability that such significant departures from the high standards expected of an experienced legal practitioner would not be repeated.
In all the circumstances we are not persuaded that any protective order is required to the effect that we should recommend that the Solicitor should be removed from the Roll. We are of the view 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. We acknowledge that a 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.
As to the amount of a fine, given the seriousness of the conduct and the findings we have made as to professional misconduct, we are of the view that a fine should be more than a nominal amount. In discussion during the hearing on penalty the Law Society submitted that while the amount is a matter for the Tribunal, fines in the order of $10,000 have been imposed in similar matters. We regard a fine of that amount as providing an appropriate indication both to the profession and to the public of the seriousness of what occurred and to ensure the maintenance of the high standards of the profession.

Council of the Law Society of New South Wales v Winter

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Cases Cited (3)

Cited By (2)