Council of the Law Society of NSW v Coren - [2019] NSWCATOD 61 - NSWCATOD 2018 case summary — Zoe

NSWNSWCATOD

Council of the Law Society of NSW v Coren

[2019] NSWCATOD 61

NCAT Occupational|2018-09-17

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2018-09-17

Catchwords

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
BRJ v Council of the New South Wales Bar Association [2016] NSW SC 146
Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32
Law Society of NSW v Walsh [1997] NSWCA 185

Source

Original judgment source is linked above.

Catchwords

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750BRJ v Council of the New South Wales Bar Association [2016] NSW SC 146Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32Law Society of NSW v Walsh [1997] NSWCA 185

Judgment (14 paragraphs)

[1]

What are these proceedings about?

Mr Nicholas Mitchell Coren ("Mr Coren") was admitted as a solicitor on 27 August 1999 and from 28 October 2011 he practised on his own account under the name of The Law Practice.
Mr Coren is a party to an agreed statement ("the Agreed Statement of Facts") which forms an annexure to an instrument of consent ("the Instrument of Consent") made pursuant to section 564 of the Legal Profession Act 2004 (the LPA").
It is uncontested and is conceded in the Agreed Statement of Facts that between mid-2012 and May 2013, in the course of acting for particular clients, Mr Coren committed substantial breaches of his trust account obligations to those clients under Part 3.1 of the LPA and misappropriated the funds of some of them. It is also uncontested and conceded in the Agreed Statement of Facts that he acted for a client (through her tutor) in a professional negligence action against that client's former solicitors and that between September 2011 and April 2013 he failed to inform either his client or her tutor of any of the major developments in the matter, including ultimately the fact that the District Court had entered a verdict for the defendants and had ordered Mr Coren client to pay the defendant's costs.

[8]

Mr Coren's evidence and concessions

Mr Coren attended the hearing in person, unrepresented. He tendered his affidavit affirmed on 22 May 2018. Paragraphs [5] to [14] were not read, but the affidavit was admitted without objection.
In that affidavit Mr Coren demonstrated considerable insight into his conduct and considerable remorse for it. For example, in relation to his failure to keep the client who was the subject of the complaint in Ground 19 or her tutor informed of progress of her matter, Mr Coren says, at [15] of his affidavit the following: "..I accept that this was a manifest failure of my duty to my former client. I cannot recall what happened in this situation. At this time, in April 2013, my professional life and business was falling apart and my mental health was in a terrible depressed state. It was my usual practice over many years in the Law for me to contact clients by telephone and/or letter to advise them of the details of any judgment or determination in proceedings involving them. I simply do not know why this did not happen with (this client). Again, I apologise for failing to communicate with (her) on this issue and generally."
In that affidavit at [16] Mr Coren says he is not seeking to be excused for his conduct and he confirms that he consents to the orders sought in the Application. He goes on in paragraphs [17] and [18] to say: "[17]… although it is not an excuse, I believe that my conduct occurred during a time in 2012/2013 when I was suffering quite severely from psychological illness… [18] During this time in 2012/2013, I failed to uphold the necessary ethical and character standards required of me and that I had applied for many years previously in my involvement with the Legal Profession"
In the final paragraphs of the affidavit Mr Coren says : "I am extremely remorseful for my conduct. I recognise my failures and the seriousness of my conduct. I apologise to my former clients, the profession, my former friends and colleagues in the profession, the Court the Tribunal and generally for my behaviour."
Indeed his insight into his conduct and what appeared to be genuine contrition was reflected in his short address to us. In referring to his established misconduct and the likelihood that we would remove his name from the Roll he concluded with the words: "I wish I could turn back the clock".
Of course, by operation of the Instrument of Consent Mr Coren consents to the findings of professional misconduct and unsatisfactory professional conduct set out in the instrument and the Agreed Statement of Facts and as well as the proposed orders: namely his removal from the Roll and a costs order.

[9]

Finding of professional misconduct

Through the Instrument of Consent and the Agreed Statement of Facts the parties acknowledge and agree that Mr Coren's conduct set out in the Agreed Statement of Facts in respect of Grounds 1 to 9 and 15 to 18 constitutes professional misconduct. We agree.
The uncontested facts establish that during the period under consideration Mr Coren engaged in multiple breaches of the basic trust account obligations set out in Division 2 of Part 3.1 of the LPA and that in addition he misappropriated the funds of 5 of his clients. Some of the misappropriations were for quite substantial amounts. For example, in respect of the client identified in Grounds 1 and 2 Mr Coren misappropriated $25,000 and in respect of the client identified in respect of Grounds 8 and 9 he misappropriated $22,000.
We find that that conduct and the other instances of conduct set out in the Agreed Statement of Facts constitutes disgraceful and dishonourable conduct and would be regarded as such by Mr Coren's peers of competence and repute. That is the oft-cited common law test of professional misconduct and associated from Allinson v General Council of Medical Education and Registration [1894] 1 QB 750.
Meagher JA set out the relevant principles, with particular reference to but not restricted to trust account obligations, in The Prothonotary of the Supreme Court of New South Wales v Demetrios [2015] NSWCA 258, where he said, at [21]: "Legal practitioners are expected to act and must act with scrupulous honesty when discharging their obligations generally, and specifically with respect to the receipt and payment of monies on behalf of clients. There is an unqualified expectation that they adhere to those standards.
His Honour relied on the explanation provided by Ipp JA in Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32: 'The trust and confidence which clients place in their solicitors are basic elements of the administration of Justice in this country. Violations by legal practitioners of trust accounts betray that trust and harm the public confidence in the legal system. This explains the sacrosanct nature of trust accounts and the acute concern that courts have when practitioners, in breach of their fiduciary obligations, Miss use trust accounts for their own benefit.'
It must follow that Mr Coren's conduct amounted to professional misconduct and we found accordingly.

[10]

Unsatisfactory professional conduct

Again, through the Instrument of Consent and the Agreed Statement of Facts the parties acknowledge and agree that Mr Coren's conduct set out in the Agreed Statement of Facts in respect of Ground 10 constitutes unsatisfactory professional conduct. We agree.
Under section 496 of the LPA, 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. In Mr Coren's affidavit that [18] he concedes that his conduct during the relevant period amounted to a failure on his part: "… to uphold the necessary ethical and character standards required of me…"
With specific reference to the client affected by the alleged unsatisfactory professional conduct (being the client described in Ground 19) Mr Coren admits that his failure to provide details of the judgment against that client: "… was a manifest failure of my duty to my former client."
The Supreme Court case of BRJ v Council of the New South Wales Bar Association [2016] NSW SC 146 ("BRJ") appears pertinent. That case involved disciplinary proceedings against a barrister who claimed that her conduct, including persistent failure to attend Court punctually, arose from her anorexia nervosa. Adamson J gave a detailed exposition of the development of the concept of unsatisfactory professional conduct. Her Honour found, at [57] that the barrister was late because of the physical consequences of her mental condition. Her Honour concluded that she did not consider that the cause of the barrister's lateness (repeated as it was) deprived her conduct of its character as unsatisfactory professional conduct. Relevantly, she commented, at [61] that although the barrister's medical condition may have provided some explanation for her conduct, since it compromised her judgment: "… it did not deprive her conduct of its character as unsatisfactory professional conduct."
Adamson J concluded, at [63], that the compromise of the barrister's judgment by reason of a mental condition : "… may explain her breach of the NSW Barristers Rules. However, her mental condition was not such as to render it any less a breach, or to deprive it of its character as unsatisfactory professional conduct."
We believe those comments to be equally applicable to Mr Coren's case and find that his conduct amounts to unsatisfactory professional conduct.

Council of the Law Society of NSW v Coren

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Judgment (14 paragraphs)

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Cases Cited (3)