Council of the Law Society of NSW v Autore

NCAT Occupational|2018-03-22

Introduction

On 23 November 2017, our reasons for decision in Council of the Law Society of New South Wales v Autore [2017] NSWCATOD 168 were published. We found that Anthony Autore (the Solicitor) was guilty of professional misconduct pursuant to the provisions of s 497(1) (a) of the Legal Profession Act 2004 (NSW) (LPA), being conduct which involved a substantial or consistent failure to reach or maintain a reasonable standard of competence or diligence.
We found that the Solicitor was guilty of professional misconduct on three grounds. Firstly because he failed to comply with the undertaking that he gave on 12 May 2014 in relation to the payment of counsel's fees, secondly because he failed to pay those fees and thirdly because he failed to communicate with counsel in relation to the matter. The proceedings were adjourned to be set down for as further hearing to consider the penalty that should be imposed as a result of our findings. That hearing took place on 22 March 2018.
These reasons should be read with our reasons of 23 November 2017, and the evidence in the first proceedings was also considered by us in these proceedings. Additionally the Council for the Law Society of New South Wales, (the Law Society) filed a further affidavit from Ms Foord dated 16 February 2018, and the Solicitor filed his own further affidavit dated 19 March 2018. Both parties also lodged further written submissions.

Payment of Mr McHugh's fees

In his 19 March 2018 affidavit, the Solicitor said that he had paid Mr McHugh's outstanding fees on 15 March 2018 by a direct debit of $12,798.72 into Mr McHugh's bank account. The Law Society did not challenge this evidence.

The Law Society's Submissions on Penalty

The Law Society submitted that the Solicitor's lack of understanding and acknowledgement that a failure by a practitioner to honour an undertaking was a serious matter, should be a matter of "grave concern" to the Tribunal.
When these proceedings were commenced, the Law Society had adopted the position that a reprimand was the appropriate order. However it was now appropriate that the Tribunal consider what alternative or additional orders, including a period of suspension, might be appropriate. However the Law Society's written submissions had been prepared before Mr McHugh's outstanding fees had finally been paid. At the hearing we were informed that the Law Society no longer sought a suspension, but submitted that, in addition to a reprimand, a fine should be imposed.

The Solicitor's Submissions on Penalty

In his affidavit dated 19 March 2018, the Solicitor said at paragraph 11: I apologise to the Law Society in relation to my conduct and have reviewed the events which led to the incident and say that I was under a great deal of financial stress and as a sole practitioner found it difficult not having someone to communicate with and in hindsight (another person) may have assisted me in dealing with the matter in a more efficient manner rather than focusing on the outcome of the payment from the Liquidator/Trustee in the Great Wall/Capocchiano (proceedings).
and at paragraphs 15 and 16: I have been a sole practitioner since 1987 and have assisted many clients …… I have and still enjoy the practice of law ….. and I am sorry for this episode.
In his written submissions, the Solicitor said that he "accepted" responsibility for the breach of his undertaking and that his delay in paying counsel's fees amounted to professional misconduct and "supported" the determination of a reprimand against him.
His affidavit annexed documents relating to the Great Wall/Capocchiano proceedings. These documents revealed that in February 2018 the Federal Court had approved the distribution of monies from the bankrupt estates of Frank and Italia Capocchiano, including a distribution of $339,352.41 to the Solicitor. The Solicitor paid Mr McHugh after he had received this distribution.
He also said in his oral submission to us on 22 March 2018, that although he had often given undertakings to other practitioners in the course of conveyancing transactions, he had never before given an undertaking to a barrister. He now understood that there was no difference between the two.
He repeated that with hindsight, he should have spoken with a senior practitioner about the undertaking and about his belief that he did not have to honour it. He also said that he should have adopted a more cooperative approach with the Law Society. In response to questions from Tribunal members, he said that he was now a more active member of the Illawarra Law Society and met regularly with other sole practitioners in the Wollongong area to discuss practice issues. He was confident that if a professional conduct or ethical issue were to arise in the future, he would seek help from senior colleagues. He added that his practice was now less busy than it had been in 2014 and that he was confident that his decision making abilities had improved.

Cross Examination of the Solicitor

The Solicitor was cross examined on his affidavit. He said that he did not contact Mr McHugh when he made the payment to him and that he had not apologised to him at any time after the publication of our 23 November 2017 reasons. He said that this was because he believed that Mr McHugh did not want to talk to him, but he would now consider contacting Mr McHugh. The Law Society categorised his apology and overall response following the publication of our 23 November 2017 reasons to have been made somewhat grudgingly and at the last minute.
The Solicitor also conceded that Mr McHugh's unpaid fees had no connection with the Great Wall/Capocchiano proceedings. He said that the distribution of funds to him in February 2018, provided him for the first time with funds to pay Mr McHugh, but he accepted that he had not provided any evidence in either hearing that he was under financial stress until that date.

Previous Disciplinary Proceedings

Ms Foord's affidavit annexed a decision of the Administrative Decisions Tribunal Council of the Law Society of NSW v Autore [2012] NSWADT 139, in which the Solicitor had been reprimanded and fined the amount of $3,000 for his failure in 2009 to comply with a notice issued to him under s 660 of the LPA, and for his failure to assist the Law Society with the investigation of a complaint.
Orders made in those proceedings also required him to continue with a course of treatment recommended by his therapist and to inform the Law Society every three months that he was complying. The Solicitor told us that he had complied with that order and that he no longer had the medical condition which had affected him at that time. The Law Society did not dispute this.
Ms Foord's affidavit noted that the Solicitor had also been reprimanded on two occasions in 2013 by the Office of the Legal Services Commissioner. The first matter was noted as a "breach of an undertaking - failure to respond to the OLSC". The second as a "failure to provide an itemised bill and delay in transferring the client file".
The Solicitor said that the first matter concerned an undertaking that he had given to the Office of the Legal Services Commissioner that he would provide an itemised bill by a certain date, which he failed to do. He said that he had underestimated the time it would take to prepare the bill, but that it had ultimately been completed.

Reprimand

In our view the Solicitor should receive a reprimand for his conduct which, as we have found, constituted professional misconduct. We also consider that the Solicitor should pay a fine which reflects the serious nature of his conduct and to convey to the legal profession and to the community in general that such conduct is unacceptable - Russo v Legal Services Commissioner [2016] NSWCA 306 at [para 82].

Fine

We were referred to a number of decisions of the Administrative Decisions Tribunal concerning the breach of an undertaking given by a practitioner, where a fine had been imposed after a finding of professional misconduct, or in one instance, unsatisfactory professional conduct. These decisions included Law Society of New South Wales v Waterhouse [2002] NSWADT 204 (a fine of $2,000), Law Society of New South Wales v Hinde [2005] NSWADT 199 (a fine of $3,000) and Council of the Law Society of NSW v Kim [2012] NSWADT 45 (a fine of $5,000).
The Tribunal in each of these decisions took into account relevant mitigating factors when assessing the amount of the fine. Here the Solicitor submitted that his failings were not systemic or widespread, that they did not involve dishonesty (as we had found), and they did not involve any finding as to the manner in which he operated his general office account or his trust account. He said these matters should be considered mitigating factors.
We accept that these matters are relevant to our consideration. We also accept, although there was no direct evidence on the issue, that the Solicitor's income from his legal practice, is not large. Nevertheless Mr McHugh's fees remained unpaid for a lengthy period of time. Also we agree to some extent with the Law Society's submission that the Solicitor's overall level of contrition appeared qualified.
We have also taken into consideration the Solicitor's prior disciplinary record which we have referred to above. In the circumstances we believe that a fine of $5,000 is warranted.

Further Educative Orders

As we have noted, the sanction of a public reprimand and the payment of a fine are intended to convey to the Solicitor as well as to the profession and to the community generally that the Tribunal views a breach of an undertaking given by a practitioner as a serious matter. In addition we believe that the Solicitor should undertake further legal education to ensure that he fully understands and accepts the importance of honouring undertakings.
We believe this further order to be appropriate for two principal reasons. Firstly, in his written submissions, the Solicitor said at paragraph 32: Whilst the failure to pay the complainant's fees may amount to a finding of Professional misconduct at Common Law, there was no refusal to pay those fees or failure to comply with an Order of the Court. In particular, the complainant had not pressed or registered payment of fees based on an Order for Costs ($12,798.72) that were assessed in April 2015.
This submission was directed specifically to the second ground of misconduct that he had failed to pay Mr McHugh's fees, and not directly to his undertaking, but it reveals in our view, a misconception that his failure to honour the undertaking was less serious because Mr McHugh had not obtained a judgment against him.
The second reason was his statement to us at the hearing on 22 March 2018 that he had believed until recently that there was a difference between an undertaking given to another practitioner in a conveyancing transaction and the undertaking that he gave to Mr McHugh to pay his fees.
We have come to the view that it would benefit the Solicitor if he were to successfully complete a legal practitioners' management course with an emphasis on legal ethics and practitioners' dealings with other practitioners. The Solicitor said that he would willingly participate in such a course when this proposal was put to him by the Tribunal.
We have formulated a further order pursuant to our power under s 562(4)(b) of the LPA, to achieve this outcome. The terms of the order which must be complied with within six months, are set out below. We note that similarly formulated orders were made by the Tribunal in Council of the NSW Law Society v Vaughan [2015] NSWCATOD 156 and Council of the Law Society of NSW v Griffin [2016] NSWCATOD 40.
The Law Society also drew our attention to the additional order made in Griffin that the solicitor's practising certificate would be suspended until he had successfully completed the relevant practice course, if he had failed to do so within the time specified. The Solicitor opposed this form of order on the basis that he was now motivated to attend a course of this kind and to address his shortcomings.
We have decided not to include a default suspension order in this instance. However the Solicitor will be required to notify the Law Society at the end of the six month period, that he has successfully completed the course. If he has not complied with the order, the Law Society will be able to take such further action against him as it deems appropriate at that time.

Costs

The Law Society sought the payment its costs of the proceedings including the prior hearing in relation to liability. The Solicitor did not oppose this order, conceding that after the finding of professional misconduct has been made against him, Schedule 5, clause 23 (1) of the CATA obliges him to pay the Law Society's costs, and we so order.

Orders

We make the following orders:
Having found the Respondent Anthony Autore guilty of professional misconduct, the Tribunal orders that: 1. The Respondent is reprimanded. 2. The Respondent is to pay a fine of $5,000, payable within 28 days. 3. Within six months of the date of publication of these Reasons for Decision, the Respondent, at his own cost, is to enrol and to successfully complete, by achieving a pass mark of not less than 50%, the Legal Practice Management - Sole Practitioners course (as modified below), conducted by the College of Law NSW. 4. The course is to contain (in addition to all of the other modules), specific modules which address legal ethics and in particular a solicitor's obligations when dealing with other legal practitioners and the giving and receiving of undertakings in legal practice and their effect. 5. At the time of his enrolment, the Respondent must provide to the Chief Executive Officer of the College of Law NSW, a copy of this order so that the modules can be formulated and provided for in the course to be undertaken by the Respondent. 6. Upon his enrolment and again upon his successful completion of the course, the Respondent must provide written evidence within seven days to the Applicant of each event. 7. The Respondent is to pay the Applicant's costs of and incidental to these proceedings as assessed or agreed.

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: 17 May 2018

Legal Profession Act 2004(NSW)

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