Council of the Law Society of NSW v DZH

Application 2018/15334

1. On 19 July 2012 the Tribunal's predecessor, the Administrative Decisions Tribunal (ADT) in Council of the Law Society of NSW v Autore [2012] NSWADT 139 found the Solicitor guilty of professional misconduct in failing to comply with statutory notices requiring information and documents. The ADT ordered that the Solicitor undergo a regime of psychiatric treatment until his therapist advised otherwise. He (or his therapist) was to provide evidence to the Law Society at 3-monthly intervals as to his compliance with the treatment. No Orders were made that made his practising certificate conditional upon compliance with the treatment regime.
2. The power of the Law Society to conduct complaint investigations (s 282 LPUC) and to make a complaint (s 266 LPUC) were summarised in the Affidavit of Anne-Marie Foord sworn 14 May 2018 (Exhibit A1). Ms Foord's affidavit also sets out the history of the matter.
3. The Law Society initiated a complaint for investigation against the Solicitor relating to whether he had complied with Orders of the ADT. In the course of investigation of the complaint the Law Society issued a Notice pursuant to s 371 LUPL (the 371 Notice) dated 3 July 2017.
4. The 371 Notice required the Solicitor to respond to a series of 10 questions set out in Schedule 1 to the 371 Notice and, subject to his response to those questions, produce documents specified in Schedule 2. The information sought related, in essence, to his psychiatric treatment pursuant to the ADT's Orders. The 371 Notice was served on the Solicitor on 21 July 2017 (see affidavit of Andrew Jones Exhibit A2). The 371 Notice required a response within 21 days after service - that is, by 14 August 2017. The Solicitor did not respond to the 371 Notice.

Validity of Notice

1. The Solicitor's case was that the Law Society already had the information it sought and that, consequently, he was absolved from compliance with the 371 Notice. He claimed that the 371 Notice alleged that he had not complied with the ADT's Orders. On a plain reading of the 371 Notice and the covering letter, this is clearly not alleged.
2. In his letter to the Law Society of 4 October 2017 the Solicitor suggested that the 371 Notice was an abuse of the Law Society's power. In cross-examination, he said that the 371 Notice was 'invalid' and had been improperly used as a form of 'interrogatories'. He contended, apparently for the first time, that he had received legal advice that the 371 Notice was improperly issued because it contained "interrogatories". He said he had made that claim to the Law Society officer who had issued the 371 Notice but had not formally raised his concern because he was "not an expert".
3. Section 371(1)(b) however clearly permits the Law Society to request a solicitor to provide "written information". We do not consider framing that request in the form of questions to be in any way improper. Further, framing the request for information in that form provides clarity as to what is required and provides a logical framework for the 371 Notice.
4. The Solicitor also contended that the 371 Notice exceeded the parameters set out in s 371 in that it required the production of a medical report (which he did not have). We observe that s 371(1)(a) specifically refers to the production of documents. That he did not have the medical report is discussed below.
5. The Solicitor also contended that the 371 Notice was unreasonable. In his evidence and submissions, the Solicitor said that he could not comply with some aspects of the ADT's Orders because they were matters outside his control, describing himself as a "hostage".
6. There was some evidence that the Law Society may already have had all the available relevant medical reports. We consider it was open to the Solicitor, if he held a reasonable belief that the Law Society already had all the relevant documents or that such document(s) were not within his control, to respond to the 371 Notice accordingly. He chose not to do so.

Failure to respond to the 371 Notice.

1. On 18 August 2017 a complaint was made against the Solicitor for failing to comply with the 371 Notice (the 371 complaint). By letter dated 21 August 2017 the Solicitor was informed of the 371 complaint and his submissions were requested by 14 September 2017. When no response was received, the Law Society sent a further letter, dated 18 September 2017 to the Solicitor requesting his submissions to the 371 complaint by 4 October 2017. By letter dated 4 October 2017 the Solicitor responded to the 371 complaint and contended, in part, that the 371 Notice was an abuse of [the Law Society's] power. He also contended that "this matter was finalised."
2. On 10 October 2017 the Law Society again wrote to the Solicitor asking that any further submissions be made by 24 October 2017. The Solicitor's letter of that date did not address his failure to respond to the 371 Notice, and instead referred to his understanding of correspondence sent by his treating psychiatrist, Consultant Psychiatrist, Associate Professor Gordon Davies (Professor Davies), to the Law Society and enclosing another letter from Professor Davies dated 14 October 2017. Another letter from the Solicitor to the Law Society dated 6 November 2017 also did not address the failure to respond to the 371 Notice.
3. The Solicitor filed a Reply and an Affidavit in these proceedings. The Solicitor disagreed with the Law Society's contention that he had failed to comply with the 371 Notice. In his Reply, the Solicitor agreed that the 371 Notice was issued; that it required compliance by 14 August 2017; and that he had not provided a response to the 371 Notice. We also note that in his Reply the Solicitor agreed that "[he] continues to fail to comply with the requirements of the Notice."
4. The Solicitor's Affidavit was the subject of some objections and a number of paragraphs were rejected as these paragraphs were in the nature of submissions.
5. The Solicitor claimed he had had a reasonable belief that "the matter" was closed because Professor Davies had supplied the Law Society with a medical report dated 29 August 2014. The Solicitor described the investigation as a "storm in a tea cup".
6. We agree with the Law Society's submission that the Solicitor appeared to have failed to comprehend the Law Society's role. Irrespective of the outcome of the investigation of whether the solicitor had complied with the ADT's Orders, the Law Society was required to investigate it, in the course of which investigation it issued the 371 Notice. It was not for the Solicitor to unilaterally form a view as to whether the information required by the 371 Notice was relevant to the investigation. The Solicitor had a clear statutory obligation to respond to the 371 Notice: It is important that solicitors respond promptly to the [Law] Society when it asks for a reply in response to complaints which have been made. … Replies to the Law Society in respect of complaints warrant a high priority. Such replies should be full and complete and deal directly with complaints made: Veghelyi v The Council of the Law Society of New South Wales (Unreported, Supreme Court of New South Wales, 6 September 1989) at [6].
7. Nonetheless, the Solicitor professed to be aware that the role of this Tribunal was not to determine whether or not he had complied with the ADT's Orders, but to determine if he had failed to comply with the 371 Notice.
8. The requirements of s 371 are mandatory and not, as the Solicitor would appear to suggest, optional.

Other contentions by the Solicitor

1. The Solicitor pointed to his annual practising certificate continuing to be issued. He contended that he was entitled to rely on this as an indication that there was no issue with his compliance with the ADT's Orders. The Solicitor cross-examined Ms Foord and gained a concession that, in some circumstances, a failure to comply with a Tribunal Order, as was alleged, might or might not be an issue when considering the issue of a Practising Certificate. It was further conceded, any breach of the Order may have been overlooked in the issuing process.
2. The Solicitor relied on an affidavit of Professor Davies, sworn on 5 October 2018. Professor Davies was required for cross-examination but was not able to attend, either in person or by telephone. His affidavit was tendered without objection, subject to weight. Professor Davies wrote of the Solicitor's consultations with him between June 2012 and August 2014 for treatment for Moderate Depression and that the Solicitor had required no further treatment since that time. The affidavit did not, in our view, advance consideration of the matter at hand, namely whether the Solicitor had complied with the 371 Notice.
3. In NSW Bar Association v Howen [2003] NSWADT 117 at [40] the Tribunal held that although the forerunner to s 371 [namely s 152 Legal Profession Act 1987] contains a sanction to encourage compliance, its primary purpose is not to create the circumstances in which legal practitioners may be found guilty of professional misconduct but to facilitate investigations.
4. Further: "Notwithstanding mitigating factors, failure to comply with a notice under section 152 of the Act is professional misconduct. A section 152 Notice is an important device for assisting the Councils and the Commissioner to investigate and resolve complaints against practitioners. Failure to comply with a notice may frustrate an investigation or make the investigation more difficult, time consuming and costly. We cannot deal with failure to comply with a section 152 notice as if the failure were a trivial matter." NSW Bar Association v Howen (No 2) [2003] NSWADT 235 at 23.
5. The Tribunal's comments are equally applicable in matters under the current legislative framework.
6. We agree with the Law Society's contention that his failure was a clear breach of the requirements of s 371 LUPL.

Application 2018/179034

1. In support of its application the Law Society relied on the Affidavits of Anne-Marie Foord sworn 30 May 2018 (A3) and Andrew Jones sworn 5 September 2016 (A4). The Solicitor was not permitted to file his Reply nor any Affidavit evidence in these proceedings because he had not complied with an earlier (self-executing) direction by the Deputy President as to the filing of material by him. We did, however, have the opportunity of hearing his oral evidence.
2. In this matter also, the Law Society again alleged that the Solicitor had failed to comply with the requirements of a s 371 Notice dated 1 August 2016, served on him on 5 September 2016 (the 371 Notice) and which required compliance by 27 September 2016. The 371 Notice required a response to 7 questions set out in the Schedule, and that the response be verified by Statutory Declaration.
3. The Solicitor provided a response to the 371 Notice dated 27 September 2016 which was received by the Law Society on 6 October 2016. The response addressed only some of the questions in the 371 Notice. The response was not verified by Statutory Declaration, nor was it provided within the specified time.

Failure to answer questions

1. The Solicitor agreed that he did not respond to questions 6 and 7 of the 371 Notice.

Unverified response

1. The solicitor's response of 27 September 2016 was by way of letter, and not, as specified in the 371 Notice, verified by statutory declaration. When this was brought to his attention, in a letter from the Law Society dated 26 October 2016, the Solicitor provided to the Law Society by facsimile on 10 November 2016 a statutory declaration ostensibly made 27 September 2016 but not witnessed until 5 October 2016. The Solicitor could not explain the disparity in the dates, conceding that the 27 September 2016 date was an error, and that the statutory declaration had been made on 5 October 2016.

Late response

1. In his evidence the solicitor said that he had numerous discussions with the Law Society officer who had issued the 371 Notice. There was no evidence that at any stage did he asked for more time to comply with the 371 Notice.
2. The Solicitor's (unverified) response was dated 27 September 2016 - the due date - but was not received by the Law Society until 6 October 2016, which, the solicitor described as "a couple of days out of time". The Solicitor contended that he had attempted to comply with the time requirement but that it was because of a delay being experienced in the DX system that his response was received late. At best, in our view, his claim demonstrated to us some naiveté in relying on the DX system to deliver the document the very day it was due.
3. He claimed to be unaware of faxing documents in 2016. He said he did not develop the practice of faxing documents until 2017. This is plainly incorrect as his verified response was faxed to the Law Society on 10 November 2016. We consider such a claim to be disingenuous.
4. He ultimately agreed that he had not provided his response within time.
5. The Law Society wrote to the solicitor on 16 November 2016 and 8 and 23 December 2016 noting his failure to comply with the 371 Notice and inviting written submissions. Despite these reminder letters, the Solicitor did not provide any further response.
6. We were informed that the substantive complaint, which gave rise to this 371 Notice, was ultimately determined in favour of the Solicitor (in 2018). The Solicitor contended that because the complaint had been dismissed and because of certain matters relating to the complainant, the 371 Notice in this matter should not have been issued. However, we observe that the resolution of the substantive complaint was about a year and a half after the issue of this 371 Notice. We repeat our observations in relation to Howen.
7. Whether the substantive complaint would or could be made out is not relevant. The 371 Notice required mandatory compliance on the part of the Solicitor, which he failed, on his own admission, to do.

Does the Solicitor's failure to comply with each of the 371 Notices amount to professional misconduct?

1. Section 297 of LUPL provides: 297 Professional misconduct (1) For the purposes of this Law, "professional misconduct" includes - (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer 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 lawyer is not a fit and proper person to engage in legal practice. (2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an Society for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.
2. Section 298(h) of LUPL provides that unsatisfactory professional conduct or professional misconduct includes conduct consisting of a failure to comply with the requirements of a notice under this law.
3. Section 466(6) makes the Solicitor's failures also open to a finding of either professional misconduct or unsatisfactory professional conduct.
4. The Law Society submitted that the Solicitor's conduct would also be regarded as disgraceful and dishonourable by reputable members of the legal profession: per Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 (Allinson) and, as such, constituted professional misconduct at common law. Professional misconduct at common law includes conduct in the pursuit of professional activities that would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency: see for example, The Council of the Bar Association of New South Wales v Sahade [2007] NSWCA 145. The breadth of the concept was discussed in Bechara v Legal Services Commissioner [2010] NSWCA 369 at [44] by McClellan CJ at CL.
5. This Tribunal and its predecessors have dealt with numerous matters involving breaches of s 152 of the Legal Profession Act 1987 and s 660 of the Legal Profession Act 2004. Notwithstanding those strict provisions, a breach without reasonable excuse, has been found to amount to professional misconduct. We do not consider that in this matter the Solicitor has satisfactorily demonstrated that he had a reasonable excuse not to comply with the Notices.
6. We consider that in each matter the Solicitor's conduct involves a substantial and consistent failure to reach or maintain a reasonable standard of competence and diligence in his failure to comply with each Notice. However, we do not consider his conduct would necessarily justify a finding that he is not a fit and proper person to engage in legal practice: per s 297 (1)(b).
7. Having said that, we consider that it is important that when a solicitor is the subject of a statutory requirement associated with his or her practice as a solicitor, that that obligation is complied with. Further, we consider failure by solicitors to comply with their statutory obligations means the Law Society's investigatory role in maintaining the professional standards of conduct is severely hampered.
8. Compliance with both Notices remains outstanding - some considerable time after their issue. The Solicitor, it seemed to us, remains adamant that he need not comply with the Notices.
9. For these reasons, we conclude that the Solicitor's conduct would be regarded as either disgraceful or dishonourable by professional colleagues of good repute and competency.
10. We have come to the view that the Solicitor's failure to comply with his obligations in each matter has been established and that this conduct amounts to professional misconduct in each matter: per Allinson. The Solicitor's explanations, such as they were, do not alter our conclusion.

Tribunal's finding as to the Solicitor's conduct

1. We are satisfied that the Grounds for each application are established. Consequently, we find that the Solicitor is guilty of professional misconduct in each matter, for the reasons enunciated above.
2. As discussed, the question of Orders is to be dealt with separately. The date for the hearing of the Stage 2 proceedings will be notified to the parties by the Registrar.

Orders 1. Professional misconduct found. 2. The date for the hearing of the Stage 2 proceedings will be notified to the parties by the Registrar.

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

Amendments 06 September 2019 - Orders made 29 August 2019 pursuant to s 64 of the Civil and Administrative Tribunal Act that the name of the respondent is to be anonymised 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: 06 September 2019