On 13 December 2017, the Council of the Law Society of New South Wales ("the Law Society"), filed an Application commencing disciplinary proceedings against Paul Bernard Cummins ("the Solicitor") alleging that he was guilty of professional misconduct.
There were two Grounds of complaint in the Application. The first was that the Solicitor had acted contrary to the conditions of his practising certificate by appearing before the Local Court in Newcastle on behalf of a client on four occasions in 2014 ("Ground 1"). The second was that in 2016, he had attempted to intimidate a barrister by stating that he would report him to the Bar Association without having any basis for doing so ("Ground 2").
The Law Society sought orders that the Solicitor be reprimanded, that he should pay a fine in the amount of $5,000 and that he should pay its costs. The Law Society asserts in its Application, and we agree, that these proceedings are governed by the provisions of the Legal Profession Uniform Law (NSW) ("Uniform Law"), because its investigation into the complaint did not commence until October 2016.
The proceedings were listed before us on 8 June 2018. We were informed that the Solicitor would accept a reprimand, but that he could not afford to pay a fine of $5,000 (the Law Society said on the day that it would accept $1,000). We were also informed that the parties had discussed entering an Instrument of Consent, but that there was one statement in the proposed Agreed Statement of Facts, which was to be annexed to the Instrument of Consent with which the Solicitor would not agree. Accordingly, we proceeded to hear the matter with the Solicitor appearing in person and Mr Flax representing the Law Society.
The Law Society tendered Affidavits sworn by Ms Foord and Mr Preece (the barrister to whom ground 2 refers) ("Counsel"). The Solicitor tendered his Affidavit sworn on 4 April 2018 and relied upon his Reply. He was cross-examined on his Affidavit by Mr Flax. We note that these documents admitted the substance of the allegations against the Solicitor, but sought to explain and to justify his conduct.
After receiving the evidence, including the Solicitor's oral evidence, his responses to questions put to him in cross-examination and his responses to questions put to him by members of the Tribunal, we advised the parties that we were not satisfied that the orders proposed in the Law Society's Application were appropriate. We then directed the Solicitor to file and serve evidence as to why the Tribunal should not make a protective order against him and listed the matter for further hearing on 3 October 2018.
On 3 October 2018, the Solicitor again appeared in person and Mr Flax appeared for the Law Society. He had not filed any evidence or other material with the Tribunal in the intervening period. Mr Flax tendered an Affidavit that he swore on 20 August 2018, which attached correspondence and deposed to a telephone conversation between the Solicitor and himself subsequent to the June hearing. We heard further submissions from the parties regarding the orders that we should make. We have considered these submissions and all the evidence in the determination of this application.
[2]
Relevant Factual Background
Our summary of the facts is taken principally from the Particulars in the Application, which apart from one matter that we will refer to below, the Solicitor appears to accept as being accurate. In relation to Ground 2, we have included some further dialogue between the Solicitor and Counsel that was set out in an annexure to Mr Preece's Affidavit. We find that the relevant facts are as follows:
1. On 13 March 1970, the Solicitor was admitted.
2. On 14 April 1983, the Solicitor's name was removed from the Roll.
3. On 8 March 1996, the Solicitor was re-admitted to the Roll, subject to an undertaking to be noted on any Practising Certificate thereafter issued to him, that he comply with certain conditions and provide an undertaking to the Law Society. We will refer to the conditions and undertaking collectively as "the Undertaking".
4. The relevant parts of the Undertaking were in the following terms:
I. Mr Cummins' right of practice will, until further decision of the Council, be limited to that of employee.
2. Mr Cummins be required to complete the practical legal training course or an equivalent thereof as may be authorised by the Council of the Law Society of New South Wales and prior to applying for the issuing of a practicing certificate.
3. The right of Mr Cummins to be employed in a legal practice, after being issued with a practicing certificate, be subject to undertakings being provided by both he and his employer to the following effect.
Undertakings by Cummins
1. He shall, when having prepared any correspondence in relation to his employment, pass such correspondence to his employer for approval and his employer's signature.
2. He shall make available to his employer, as required, or at least on a monthly basis, all files to which he has attended.
3. He shall receive no monies other than salary or wages in the course of his employment whether they be trust monies or otherwise.
4. Upon ceasing employment with any employer, Mr Cummins is to notify the Society within 10 days of the date of ceasing such employment.
5. Prior to commencement of employment with any practitioner, Mr Cummins is to advise the employer of his name having previously removed from the Roll of Solicitors.
1. Any person who employed the Solicitor was in turn obliged to give an undertaking to the Law Society that he or she was aware of the terms of the Solicitor's Undertaking and would closely supervise his files and provide a monthly report to the Law Society.
2. On 23 November 2007, the Law Society issued a Practising Certificate to the Solicitor, subject to the above Undertaking (the evidence before the Tribunal did not reveal whether the Solicitor had been issued with any Practising Certificates before 2007 or whether he had given the Undertaking when he was first re-admitted, or only in 2007).
3. The Solicitor continued to be issued with annual Practising Certificates subject to the Undertaking until 30 June 2018. Relevantly for these proceedings, he held Practising Certificates subject to the Undertaking between September 2014 and December 2014 and in August 2016.
4. On 17 September 2014, the Solicitor appeared before the Local Court at Newcastle on behalf of Vincent Gerald Ryan ("Mr Ryan"), to have the criminal proceedings against Mr Ryan adjourned without bail until 22 October 2014.
5. On 22 October 2014, the Solicitor again appeared before the Local Court at Newcastle to have the proceedings against Mr Ryan further adjourned without bail until 12 November 2014.
6. On 12 November 2014, the Solicitor again appeared before the Local Court at Newcastle to have the proceedings against Mr Ryan further adjourned without bail until 12 December 2014.
7. On 12 December 2014, the Solicitor appeared before the Local Court at Newcastle on behalf of Mr Ryan. On that occasion, the Magistrate committed Mr Ryan to stand trial before the District Court of New South Wales and refused bail.
8. On this and the previous three occasions the Solicitor, appeared in his own right and not as a solicitor employed by a law practice.
9. On 15 August 2016, Counsel was briefed by Legal Aid NSW to appear for Mr Ryan in the proceedings (R v Vincent Gerald Ryan) in the District Court of New South Wales, at Darlinghurst. The matter was listed for a sentencing hearing as Mr Ryan had previously pleaded guilty to the charges against him. On that day, during an adjournment of the hearing, there was a verbal exchange between the Solicitor and Counsel to the following effect:
Solicitor - I'm not happy that he's pleading guilty.
Counsel - And sorry, you are….?
Solicitor - I represent him and he shouldn't be pleading guilty.
Counsel - You don't represent him, he's represented by Legal Aid.
Solicitor - You need to take these.
Counsel - Look I'm sorry, I don't know who you are, or what you want. I'm not taking your material.
Solicitor - Oh well I'll report you to the Bar Association.
Counsel - Oh well, you do that.
And later:
Solicitor - I'm not happy about this. You need to read the decision of Fisher.
Counsel - Look, who are you?
Solicitor - I'm his solicitor.
Counsel - No you're not - he's represented by the Legal Aid Commission, who has briefed me.
Solicitor - I'm Paul Cummins I've been a solicitor for over 40 years. Mr Ryan has consulted me extensively about the matter. You need to read the unreported decision of Fisher.
Counsel - Look Mr Cummins, I've got nothing to say to you. I ask you to terminate this conversation. You need to go away.
Solicitor - I've been a solicitor for over 40 years. My brother is a QC and owns 2 newspapers. You'll be hearing about this.
On 18 August 2016, Counsel made a written complaint about the Solicitor's conduct to the Office of the Legal Services Commissioner ("OLSC"). The OLSC referred the complaint to the Law Society for investigation. During its investigation of Ground 2, the Solicitor revealed to the Law Society his earlier appearances for Mr Ryan, which caused the Law Society to initiate its own complaint against him (Ground 1).
The matter with which the Solicitor takes issue is the statement attributed to him in subparagraph (13) above: I represent him and he shouldn't be pleading guilty. The Solicitor asserts that he in fact stated: I represented him….
In his complaint to the OLSC, Counsel concedes that the Solicitor may have used the past tense, represented, because the conversation took place near to a bank of air conditioners that were noisy. We will accept that the Solicitor's version of this exchange is accurate, but find that this has no direct bearing on the substance of Ground 2, which arises from the Solicitor's statement to Counsel: Oh well I will report you to the Bar association. That is admitted by the Solicitor.
The later part of the exchange between the Solicitor and Counsel set out in subparagraph (13) above, commencing with the Solicitor's comment: I'm not happy about this, also came from Counsel's complaint to the OLSC. This dialogue is not contained in the Law Society's Particulars, but we have set it out fully because it provides further context to the Solicitor's comments and we consider it is relevant to the Law Society's allegation that he had no basis for making those comments.
The Solicitor also disputes some of the detail of the later part of his exchange with Counsel, particularly that he said: my brother …owns 2 newspapers. He also asserts that his tone of voice throughout the exchange was measured and not threatening. However, we note that the Solicitor did not require Counsel to attend for the purposes of cross-examination on his Affidavit. In any event, we do not consider these differences in recollection to be material to the substance of the allegation.
[3]
Our Findings
In relation to Ground 1, the Solicitor concedes that when representing Mr Ryan in the Local Court, he was not appearing as an employee of a Law Practice, but rather as a Solicitor in his own right and that this was in breach of his Undertaking and the conditions on his Practising Certificate. We are satisfied that Ground 1 has been established.
We find that Ground 2 has also been established and that the Solicitor said to Counsel: Oh well I will report you to the Bar Association. He had no basis for making that comment and we are satisfied that this amounted to an attempt to intimidate Counsel.
We are satisfied that the Solicitor's conduct in relation to Grounds 1 and 2 constitutes professional misconduct at common law, being conduct which would be considered disgraceful or dishonourable by professional colleagues of good repute: Allinson v General Medical Education and Registration Board [1894] 1 QB 750.
We are also satisfied that this satisfies the statutory definition of professional misconduct set out in s 297 of the Uniform Law and that the Solicitor's failure to comply with the conditions on his Practising Certificate contravened s 58 of the Legal Profession Act 2004 (LPA), being the relevant legislation in force in 2014 (now s 54 of the Uniform Law).
[4]
The Solicitor's explanation and alleged justification for his actions
While the Solicitor did not dispute that he was guilty of professional misconduct, he offered an explanation and attempted to justify his actions as follows.
[5]
Ground 1
The Solicitor said that:
1. Vincent Gerald Ryan had been a Roman Catholic priest who was jailed in 1996 for 14 years for sexual offences against boys. He was then released on probation, but further similar allegations were then made against him. As a result, he was charged in 2014 and was on remand pending trial in Newcastle.
2. He was contacted by another priest who had been a school friend, who asked him to assist Mr Ryan by applying to have him released on bail and to arrange representation for him by a Newcastle solicitor and barrister at the subsequent trial. He agreed to do this. He was told that the case was listed for mention in the Newcastle Local Court on 17 September 2014
3. On 17 September 2014, he travelled to Newcastle (throughout this period he resided in Sydney) with the intention of asking one of the Newcastle Solicitors in the Local Court to represent Mr Ryan on this and any future occasions. However, he could not find any local solicitor who was prepared to act for him. As a result, he had no option but to appear himself and he had the matter adjourned on the application of the prosecution, without bail, until 22 October 2014.
4. On the next occasion, again finding no practitioner willing to represent Mr Ryan, he again appeared for him and the proceedings were adjourned without bail until 12 November. The same scenario occurred on 12 November and the proceedings were further adjourned until 12 December 2014.
5. On 12 December 2014, he again appeared and Mr Ryan was committed for trial. He then assisted Mr Ryan to complete a Legal Aid Application, in which he named himself as his legal representative.
6. He asserts that on each of these occasions, he appeared for Mr Ryan 'reluctantly' and that he attended Court on each occasion with the expectation that he would find a local practitioner who would be willing to represent him. However, he was unsuccessful and with hindsight, he realises that he was too optimistic in hoping that he could find a local solicitor to act in the matter. He denies that he was paid any fees by the Church or by any other party for representing Mr Ryan and he did not ask for any payment.
[6]
Ground 2
The Solicitor stated that two years later, he was again contacted by the priest who had asked him to assist Mr Ryan in 2014. He had not been involved in the matter since December 2014. He was advised that in April 2016, Mr Ryan pleaded guilty to the charges against him and that the matter was set down for a sentencing hearing in Sydney on 15 August 2016. He was told that:
The Catholic Church was very concerned that Father Ryan was being forced to plead guilty when it was made known to the Catholic Church that he was innocent, and that although Father Ryan had believed that he had confessed to all the sexual offences he had committed… this latest complaint was brought by one person so belated(ly) late (and) so many years later despite the enormous publicity against Father Ryan in the Newcastle area around the time he was initially before the Court in 1996.
These statements are taken from the Solicitor's letter to the Law Society dated 15 December 2016, which is annexed to Ms Foord's affidavit.
The Solicitor attended the sentencing hearing in the District Court, at Darlinghurst, on 15 August 2016 and this is when his exchange with Counsel occurred. He says that he was concerned that by pleading guilty Mr Ryan may have received a further custodial sentence and he did not believe this was warranted in the circumstances. He said that he wanted to make that point to Counsel, as well as to draw to his attention some previous unreported decisions that he considered relevant to Mr Ryan's case.
In his Affidavit sworn on 4 April 2018, the Solicitor deposed:
I am very remorseful having made the comment to Mr Preece of counsel that I would report him to the Bar Association if Father Ryan was committed to a gaol sentence and I publically apologise. It was not a premeditated allegation but only one suddenly made by me in the heat of the moment which I deeply regret that I made and I am sorry for having made the comment to him.
And:
Although the comment was done in the heat of the moment it was no proper excuse. I admit that it should never (have) been said by me. I am very sorry and deeply regret that I said it and I sincerely hope that Mr Preece will accept my apology and forgive me.
Further, during the hearing on 8 June 2018, the Solicitor told the Tribunal:
I am very sorry for what I did. It was stupid.
For the record, we note that Mr Ryan did not receive a further custodial sentence.
[7]
Ground 1
We do not consider the Solicitor's explanation for his appearances in the Newcastle Local Court to be satisfactory. If we accept that on the first occasion that he travelled to Newcastle, he had a genuine belief that he would be able to find a local solicitor to represent Mr Ryan, that excuse does not explain his appearances before the Court on the three subsequent mentions.
During his first appearance, it was open to the Solicitor to inform the Magistrate of his predicament (that his Practising Certificate did not entitle him to appear as a Solicitor on the record) and to seek leave to appear for Mr Ryan as amicus curiae. However, he did not do so. He conceded in cross-examination that he should have done this, but he did not say anything to the Court during any of his four appearances.
A further reason why we consider the Solicitor's explanation as being unsatisfactory is that, on his own evidence, he did not assist Mr Ryan to apply for Legal Aid until the day of the fourth mention. There is no explanation for why he did not do this on the first occasion, as if he had done so a Legal Aid Solicitor may have been available to represent Mr Ryan on the subsequent mentions.
We also find that the Solicitor's evidence to the Tribunal about whether he was employed as a solicitor during 2014, appears self-serving. Initially, he said that he did not hold a position as an employed solicitor at the relevant time. However, when he was questioned further about this by Tribunal members on 8 June 2018, he said that, upon reflection, he could have been regarded as having part-time employment at that time because, "if there was work available, I would do it". This conflict caused us significant concern as it was clearly to his potential advantage to assert that he was employed at the relevant time as this may have meant that he did not breach the conditions of his Practising Certificate and the Undertaking to the Law Society.
At the very least, we consider that the Solicitor's 'evidence' regarding his employment status at the relevant time demonstrates his lack of insight as to why his appearances before the Newcastle Local Court constituted a breach of the Undertaking and the conditions on his Practising Certificate. He did not seem to appreciate that unless he had actual authority from his Principal to appear for Mr Ryan as a client of the Law Practice, and that Principal had given the required undertaking to the Law Society, the Undertaking would have been breached.
[8]
Ground 2
The Solicitor's initial response to the Law Society dated 30 October 2016, regarding the complaint by Counsel, was both combative and adversarial in its tone. His recent Affidavit did contain an apology to Counsel and a statement of remorse and regret, but given that the events occurred in August 2016 and that he was first informed of the complaint in October 2016, those statements are somewhat belated.
[9]
What is the appropriate penalty?
On 3 October 2018, Mr Flax informed us that the Law Society's instructions remained that it sought the orders set out in the Application, namely that the Solicitor should be reprimanded and fined and pay its costs. We note that the Solicitor did not oppose a reprimand, but he complained that he was unable to pay anything other than a modest fine. He made no submissions regarding the claim for costs and did not lodge any evidence of his financial circumstances or exceptional circumstances.
Mr Flax referred to several decisions of this Tribunal and its predecessors regarding matters where a solicitor had practised contrary to the conditions on their Practising Certificates, namely: Law Society of New South Wales v Jayawardena [2008] NSWADT 187; Law Society of NSW v Singh [2010] NSWADT 26; and Council of the Law Society of New South Wales v Gallego (No2) [2015] NSWCATOD 10.
Mr Flax also referred us to a decision in a matter where the solicitor had made derogatory comments and a threat - In the matter of Karageorge, a decision of the Solicitor's Statutory Committee - No 12 of 1986 (Karageorge). We also considered the recent Court of Appeal decisions in Griffin v The Council for the Law Society of New South Wales [2016] NSWCA 364 (Griffin) and Potkonyak v Legal Services Commissioner (No2) [2018] NSWCA 173 (Potkonyak), in which solicitors were found to have made derogatory comments and threats.
In Griffin, the solicitor was found to have made unfounded allegations and threats in an ex-parte letter that he sent to a Federal Court Judge. The Court of Appeal confirmed the Tribunal's decision that the solicitor should be reprimanded and undergo a further course of legal education.
In Potkonyak, the solicitor was found to have engaged in professional misconduct on several occasions in the Children's Court, in making offensive and unsubstantiated statements about a Children's Court Magistrate and about opposing parties. He was also found to have misled the Court and breached his duty to his client by propounding a completely untenable construction of the Children and Young Persons (Care and Protection) Act 1998. The Tribunal ordered that his name be removed from the Roll and the Court of Appeal upheld this decision.
Karageorge involved a consideration of six separate and unrelated complaints against a solicitor, five of which concerned outrageous ethnic or racial slurs that he made to other practitioners or to members of the public. The sixth complaint was that he was alleged to have said to another practitioner that "It's easy to get a contract out on people, so don't get funny." The Solicitor's Statutory Committee could not be satisfied that the solicitor had used those precise words, so the last ground was found not to have been made out. However, in relation to the other five complaints it found the solicitor's conduct was disgraceful and dishonourable and constituted professional misconduct, but that this did not warrant his name being removed from the Roll. He was fined $5,000.
Regarding the breach of a condition of a Practising Certificate, we note that in Jayawardena, the solicitor, who at all relevant times held a Practising Certificate as a restricted non-Principal, appeared as solicitor on the record and in person for multiple parties in immigration matters between 2005 and 2007 before the Federal Magistrates Court (as it then was titled ). In a prior decision of the Administrative Decisions Tribunal in 2005, the solicitor was found to have engaged in the same conduct in breach of the conditions of his Practising Certificate and he was reprimanded and fined. However, in the 2008 proceedings it was also alleged that he wrote a threatening letter to a former client. The Tribunal did not find that the letter constituted a serious or significant threat and it held:
If this complaint were the only complaint against the Respondent we might have been sympathetic to him and perhaps have simply cautioned him on the basis that his conduct fell at the lower end of the scale of unsatisfactory conduct.
However the Tribunal ordered that his name be removed from the Roll as a consequence of his Practising Certificate breaches.
In Singh, the Tribunal found that an employed solicitor had carried out legal work for a client without his employer's knowledge or consent and that he had attempted to mislead the Migration Agents Registration Authority. He was reprimanded and fined $2,000. The Law Society sought an order that his name be removed from the Roll, but the Tribunal noted his genuine contrition and the character evidence that was tendered on his behalf and did not make a protective order.
In Gallego, the solicitor was found guilty of professional misconduct for signing and/or filing documents indicating or implying that he was the solicitor on the record for a party in legal proceedings when this was not the case, as he held a Practising Certificate that entitled him to practise as a non-Principal at that time. He was reprimanded and fined $2,000.
In relation to allegations of solicitors' threatening behaviour or making derogatory comments, we note that the decisions of the Tribunal and its predecessors indicate a general acceptance that conduct of that type most commonly occurs in the heat of the moment and is rarely premeditated. Tribunals have regarded conduct of that kind as being unacceptable and, in some instances, disgraceful and dishonourable. However, except where the conduct is both egregious and protracted, as was the case in Potkonyak, it has not warranted the making of a protective order, and orders for a reprimand and fine have generally been considered sufficient to satisfy the Tribunal's protective and educative functions.
The same cannot be said of the decisions regarding breaches of conditions of a Practising Certificate. These decisions recognise that solicitors, who appear in Court when they are not entitled to do so, commit a fundamental breach of their duties to the Court and to the person(s) they purport to represent. They indicate that this type of conduct is generally premeditated.
In this matter, we are inclined to accept the Solicitor's assertion that his statement to Counsel was made in the heat of the moment. When considered in the light of his apology and his statement of contrition (albeit belated), we are not satisfied that this conduct alone justifies a recommendation that his name be removed from the Roll.
However, our findings with respect to Ground 1 potentially have more serious consequences for the Solicitor.
On 8 June 2018, we notified the parties of our concern regarding the appropriateness of the orders sought in the application and we ordered the Solicitor to file any further evidence regarding the appropriate orders that we should make. That further evidence could have included character evidence, but he did not lodge any further evidence. We consider this to be significant, given that his name had previously been removed from the Roll and his inaction did not assist us to determine the appropriate orders.
In his oral submissions on 3 October 2018, the Solicitor said that he is now 76 years old and that he is not in good health. He also told us that he had not applied for a Practising Certificate for the period from 1 July 2018 and that he did not intend to practise as a solicitor in the future.
[10]
The Solicitor's further undertaking
After oral submissions on 3 October 2018, Mr Flax suggested to the Solicitor that he may wish to consider proffering an Undertaking to the Law Society, to the effect that he would not apply for any further Practising Certificate.
We advised the parties that we would consider any such Undertaking, if offered by the Solicitor and accepted by the Law Society, when considering the appropriate orders that we should make. However, we expressed our view that any Undertaking should also encompass potential employment as a lay associate of a Law Practice as defined in s 6 of the Uniform Law. We directed that any such undertaking should be filed with the Registry within 14 days.
We note that on 24 October 2018, the Solicitor signed an Undertaking, which was addressed to the President of the Law Society of NSW, and that this was independently witnessed. The Tribunal received this on 2 November 2018, together with a covering letter from the Law Society advising that the Undertaking was received the previous day. It is in the following terms:
I Paul Bernard Cummins of [address] undertake that from the date of this undertaking, I will not, at any time in the future, do any of the following in any Australian jurisdiction or outside Australia:
Apply to be admitted and/or entitled to practice as a legal practitioner, including as a Solicitor, Solicitor/ Barrister or Barrister (or similar tile/role).
Seek or undertake employment or any other form of engagement, in any capacity, within any legal practice or by any legal practitioner including a Solicitor, Solicitor/Barrister or Barrister (or similar title/role).
Seek or undertake employment or other form of engagement with any person or entity in any role that is concerned with the provision of legal services.
Provide or offer to provide, any person or entity with legal services or services connected with the provision of legal services.
The LPA empowered the Tribunal to make an order removing a legal practitioner's name from the roll (s 562 (2) (a)). However, under s 302 (2) (f) of the Uniform Law, the Tribunal is empowered to make an order …recommending that the name of the lawyer be removed from a roll kept by a Supreme Court, a register of lawyers kept under jurisdictional legislation or the Australian Legal Profession Register.
The relevant test to be applied in determining whether a protective order should be made under s 562 (2) (a) of the LPA is whether the legal practitioner is presently not a fit and proper person to remain on the Roll: New South Wales Bar Association v Cummins [2001] NSWCA 284 The Law Society did not suggest that we should apply a different standard under the Uniform Law and we do not consider that a different test should be applied in this matter.
This test is a stringent one and we are satisfied that but for the mitigating factors that we have found, the Solicitor's misconduct would properly justify the making of a protective order. However, in the circumstances and particularly noting the Solicitor's age and apparent ill-health, we are satisfied that his Undertaking to the Law Society provides sufficient protection to the public and that an order recommending the removal of his name from the Roll is not appropriate.
We are satisfied that the Solicitor should be reprimanded. We note that in Council of the Law Society of New South Wales v Braham [2015] NSWCATOD 97, the Tribunal made an order in those proceedings reprimanding the practitioner whilst noting his undertaking that he had ceased practising, although in very different circumstances.
We are also satisfied that the Solicitor should pay a fine of $1,000. In determining the amount of the fine, we have considered that the Solicitor has limited financial means.
In relation to the question of costs, cl 23 (1) of Sch 5 of the Civil and Administrative Tribunal Act 2013 provides:
(1) Despite section 60 of this Act, 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 (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist.
The Solicitor has not adduced any evidence that establishes the existence of any exceptional circumstances and we are satisfied that a costs order should be made.
[11]
Findings and Orders
We find that the Solicitor is guilty of professional misconduct.
We note the terms of the Solicitor's undertaking to the Law Society dated 24 October 2018, and we make the following orders in reliance upon it:
1. The Solicitor is reprimanded.
2. The Solicitor is fined $1,000.
3. The Solicitor is to pay the Applicant's costs, as agreed or assessed.
[12]
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: 14 November 2018