reasons for decision
1These proceedings involved five separate Applications brought by the Council of the Law Society of New South Wales ("the Law Society"), between 2009 and 2012, against Mark Joseph Flynn ("the Solicitor"). All told, the five Applications contained sixteen separate allegations of professional misconduct or unsatisfactory professional conduct against the Solicitor. The Solicitor has been admitted since 1987 and, until March 2012, practised on his own account at Ballina in northern NSW.
2The allegations were in the following terms:
[2]
Matter No 092029 - Filed 14 October 2009
Unethical Conduct - producing false trust account records.
The Solicitor breached his written undertaking given on 23 February 2004.
The solicitor attempted to mislead Pickering Priestley.
Failure to comply with undertaking- in breach of Rule 26.
Failure to comply with undertaking dated 8 December 2008.
Communicating with another solicitor's client.
Harassing Ms Julie Beckers with more than 30 phone calls and/or text messages in six hours.
The solicitor's initial invitation for dinner and subsequent remarks to "wear something sexy" etc were most improper in view of the solicitor/client relationship, particularly in regards to a Family Law client.
3The Law Society asserted that the matters in this Application amounted to professional misconduct on the part of the Solicitor, and sought orders that his Practising Certificate be cancelled for two years, and thereafter that he only be allowed to practise as an Unconditional Non- Principal. Orders were also sought that the Solicitor pay a substantial fine, that he be publicly reprimanded, and that he pay costs.
4Matter No 092032 - Filed 3 December 2009
1.The Australian Lawyer, without lawful excuse, failed to comply with a requirement under Section 660 of the Legal Profession Act 2004.
5In this matter the Law Society also asserted that the Solicitor was guilty of professional misconduct, and sought orders that he be publicly reprimanded, be fined and pay the Law Society's costs.
6Matter No 102021 - Filed 23 August 2010
Communicating with the client of another Solicitor.
In attending on Mrs Weston on 11 October 2006 and attempting to procure her signature to an Authority and in preparing the letter dated 24 January 2007 the Solicitor attempted to intervene in and undermine the solicitor/client relationship between Mrs. Weston and her solicitor, Mr Lewis.
Endeavouring to charge the Estate of the late Pauline Magarry for items not permitted by Workers Compensation Legislation.
Failure to transfer the file of the late Pauline Magarry to the Solicitor for the Estate.
7The Law Society alleged that grounds 1 and 2 in this Application amounted to professional misconduct, and grounds 3 and 4 to unsatisfactory professional conduct. It sought an order that the Solicitor's name be removed from the Roll and he pay costs, that this matter, and proceedings 092032, be joined with the original matter 092029, and that, subject to relevance, the evidence in each Application, be evidence in the other Applications.
8Matter No 122005 - Filed 7 March 2012
Failure to disclose costs.
9In this matter the Law Society asserted that the conduct amounted to unsatisfactory professional conduct, and sought orders that the Solicitor be reprimanded, pay a fine, and pay costs. It also sought an order that the matter be joined with the preceding three Applications.
10Matter No 122012 - Filed 27 June 2012
1.The practitioner appended the signature of Margaret Anne Williamson on a document entitled "Written Notice of Pleading" (the Section 182 Notice) and in doing so, purported to have signed his signature before her as a Justice of the Peace.
2.The practitioner misled or attempted to mislead the Tweed Heads Local Court when he faxed the Section 182 Notice to the Registrar at the Tweed Heads Local Court purporting to show that he had signed the Section 182 Notice in the presence of M Williamson JP
11The Law Society asserted that these matters amounted to professional misconduct on the part of the Solicitor, and again sought orders that his name be removed from the Roll. When this matter was commenced in June 2012, a hearing date had already been fixed in the following month for the other four matters. After this hearing date had been vacated and a new date fixed for October, it was agreed between the parties that this matter should also be determined with the other matters.
12The Solicitor filed a Reply to each Application. Many matters in the Applications were admitted, but a number of the principal allegations were denied.
13In Matter No 092029, Ground 1, the Solicitor denied that he had produced a false trust account record. He also denied, in part, Grounds 3 and 4. He admitted the other allegations, including Grounds 7 and 8.
14The allegations in Matter No 092032 were admitted. Grounds 1 and 2 in Matter No 102021 were denied (the Solicitor's response to Ground 1 was expressed as a non-admission, rather than a denial, but this had no bearing on the manner in which the Law Society proceeded with its case). Ground 3 was admitted, but Ground 4 was denied.
15The Ground in Matter No 122005 was denied. Lastly, the two Grounds in Matter No 122012 were admitted, although the Solicitor's Reply in this matter made reference to "the mitigating circumstances contained in the Affidavit filed by the Respondent dated 11 October 2012 filed herein".
16The proceedings had been set down for hearing in February 2012, and then in July 2012. Both hearing dates were vacated, on or just prior to the hearing commencing, after medical evidence had been tendered on behalf of the Solicitor that he would be unable to attend.
17The proceedings were then relisted on 15 October 2012. Although they had been set down for three days, the hearing of the evidence was concluded on the first day, and the matter was then adjourned to 3 December 2012, for submissions. The Solicitor had earlier been represented by solicitors, but he appeared in person on 15 October and 3 December.
18The parties agreed that the five Applications should be heard together and that the evidence in each should be evidence in the others. The Law Society's written evidence comprised:
1.Two affidavits of Raymond James Collins, both sworn 2 October 2009
2.The affidavit of Raymond James Collins sworn 19 August 2010
3.The affidavit of Anne- Marie Foord sworn 6 March 2010
4.The affidavit of Anne- Marie Foord sworn 26 June 2010
5.The affidavit of Richard Gerald Flynn sworn 26 June 2012
6.The letter from the Law Society to Dr BruceWestmore dated 14 September 2012
7.The report of Dr Westmore dated 2 October 2012.
These affidavits and reports were tendered without objection.
19The Solicitor tendered the following written evidence without objection:
1.Two affidavits of Mark Joseph Flynn both sworn 28 January 2011
2.The affidavit of Mark Joseph Flynn sworn 3 August 2011
3.The affidavit of Mark Joseph Flynn sworn 7 May 2012
Nine affidavits or letters as to character, sworn or dated between June 2011 and September 2012, from Messrs Lord, Marshall, Beaver, Breen, O'Connor, Pignat, and Minter, and from Ms Lord and Ms Kennedy.
5.The report from Dr Petroff to the Law Society dated 23 March 2009
6.The report from Dr Petroff to the Law Society dated 14 April 2009
7.The report of Dr Petroff dated 24 August 2010
8.The report of Dr Diamond dated 1 June 2009
9.The reports of Dr Pearson to the Law Society dated 17 December 2009, 21 January 2010, 1 April 2010, 27 May 2010, 23 July 2010, 24 September 2010 and 2 December 2010
10.The report of Dr Hagan dated 31 May 2012
11.The report of Dr Hagan dated 22 June 2012
12.The report of Dr Hagan dated 13 July 2012
13.The report of Ms Morrison (a psychologist) dated 1 June 2012
A pathology report dated 8 June 2006
A report of an ultrasound from Dr Hellwege dated 19 June 2012
16.The report of Dr Pearson dated 3 July 2012
17.The report of Ms Enter (a psychologist) dated 12 October 2012 and a letter to her dated 10 October 2010
20At the commencement of the hearing, the Solicitor also sought to tender a further affidavit from him, sworn 11 October 2012, but not yet filed. Ms Webster SC, who appeared for the Law Society, informed the Tribunal that she objected to substantial parts of the affidavit being read, on the grounds of relevance.
21After a short adjournment, the Solicitor indicated that he did not press the majority of the paragraphs in this affidavit, on the basis that the material in them would be raised by him in his submissions. The balance of the affidavit was tendered without objection.
22Of the Law Society's deponents, only Mr Collins was cross-examined by the Solicitor. The Solicitor was also cross- examined by Ms Webster. We now turn to our findings in relation to each of the sixteen Grounds.
[3]
Grounds 1, 2 and 3 in Matter No 092029
23Each of these three complaints arises from the same transaction. The Law Society asserts in its Particulars that when taking over the conduct of a personal injury claim on behalf of a Mr Fowler, from his former solicitor Mr Priestley, the Solicitor gave a written undertaking to pay Mr Priestley's reasonable costs and disbursements within 7 days, and that he would not release any funds to Mr Fowler unless he retained an amount in trust sufficient to cover Mr Priestley's costs.
24On 15 April 2004, the Solicitor received settlement proceeds of $122,518.35 from the defendant's insurer, which were paid into his trust account. The same day, he paid $10,000 to Mr Fowler and paid the balance to himself for costs and disbursements, leaving a nil balance in his trust account.
25On 8 June 2004, Mr Priestley forward to the Solicitor a copy of his account in assessable form, and sought confirmation that the Solicitor retained sufficient funds in his trust account. The Solicitor replied that "as a result that the verdict that was entered into (was) by consent, we have insufficient funds in our trust account to pay your account."
26Mr Priestley then engaged other solicitors on his behalf who wrote to the Solicitor seeking his acknowledgment that he remained personally bound by his undertaking, to which the Solicitor replied that he was happy to be bound by his undertaking to pay Mr Priestley's costs as agreed or assessed.
27When Mr Priestley's solicitors then reminded him that the original undertaking also obliged him to retain in trust an amount to cover these costs, the Solicitor responded stating " we confirm that the sum of $88,880.42 (being the amount claimed by Mr Priestley), is currently retained in trust". He also forward to Mr Priestley's solicitors a document described as "a copy of trust account ledger confirming retention of $88,880.42".
28This document, according to the Law Society's Particulars, purported to show that the amount of $88,880.42 had been held in trust since the receipt of the settlement proceeds on 15 April 2004. This was false as the Solicitor's records in fact showed that this amount had only been paid into trust on 24 June 2004, from a personal account held jointly with his wife.
29These matters, in the Law Society's opinion, constituted, firstly, unethical conduct on the part of the Solicitor, by the production of a false trust account record, secondly, a breach of his February undertaking, by failing to retain funds in his trust account to pay Mr Priestley, and also by failing to pay him within 7 days of the receipt of the funds.
30Thirdly, in the Law Society's view, the Solicitor's initial response to Mr Priestley, that the consensual nature of Mr Fowler's settlement was the reason that he was left with insufficient funds to pay him, and then the production of the document purporting to show that funds had been retained since April 2004, were each attempts to mislead Mr Priestley.
31In his Reply the Solicitor admitted the majority of these factual matters, but denied in each case, that his relevant conduct was unethical or misleading or deceptive.
32In his first affidavit sworn on 28 January 2011, he said that the undertaking was placed on the file, and was not given to his accounts department, so that his staff distributed the funds, when received, without reference to the undertaking.
33In relation to the trust account document, he admitted that it contained "errors"' namely the date funds were received into the Trust Account, and the identity of the depositing party, but said that it correctly showed that there were funds in the account on 24 June 2004, immediately before Mr Priestley was paid. He also said that it was not intended to be Trust Account statement.
34Under cross- examination by Ms Webster, the Solicitor said that although he was always aware of the undertaking, it was due to an oversight that he did not retain any funds in his trust account, to pay Mr Priestley.
35He also maintained his position under cross - examination that the document which the Solicitor sent to Mr Priestley's solicitors on 24 June 2004, was only an extract from his trust account, because "it was a typed document, it didn't form part of the trust records".
36Even if we were to accept that his initial failure to honour the undertaking was due to an oversight, that of itself does not excuse the breach. In any event when reminded of its terms on 8 June, the Solicitor continued to prevaricate and did not pay Mr Priestley's costs for a further two weeks.
37We also do not accept the Solicitor's interpretation of the document that he created. The document bears the heading Statement of Trust Account. Moreover the Solicitor's covering letter dated 24 June 2004 refers to it as "a copy of Trust Account Ledger." In our view a recipient would reasonably assume that the document whilst obviously not a photocopy of the ledger, was a restatement of the actual record.
38In any event that issue does not go to heart of this complaint. However the document is to be described, a recipient would reasonably expect the financial information which it contained, to be accurate. But this was not the case. The document records a deposit of $88,880.42 into the trust account on 15 April 2004. In fact this amount was not paid into the account until 24 June. Under cross- examination the Solicitor conceded that there were no funds in the trust account between 15 April and 24 June 2004.
39In his written submissions, filed at the conclusion of the proceedings, the Solicitor made the point that, ultimately, in September 2004, Mr Priestley was paid in full, so that the undertaking was honoured. This in our view is not an answer to the complaint. The undertaking obliged him to retain sufficient funds in his trust account and to pay Mr Priestley within 7 days.
40The Solicitor also made the additional claim in his submissions, by way of justification for his actions, that he had been instructed by Mr Fowler not to disclose to Mr Priestley the terms of the settlement. This allegation had not been made previously by him, and there is no evidence to support it. It is also inconsistent with the explanation that the Solicitor first gave to Mr Priestley on 8 June 2004 that the consensual nature of the settlement precluded him from disclosing its terms to Mr Priestley. We do not accept this as answering the complaint.
41We have come to the conclusion that each of these three grounds of complaint in relation to this matter is made out. The document submitted was a false trust account record. His actions did amount to a beach of his original undertaking and his subsequent conduct in relation to the matter amounted to an attempt to mislead Mr Priestley's firm. We find that each of these matters constitutes professional misconduct on his part.
[4]
Ground 4 in Matter No 092029
42This is also a complaint that the Solicitor failed to honour an undertaking. In this instance the Solicitor in his Reply denied the allegation in full, relying on the submission made by his then lawyer, Mr Gye, to the Law Society on 6 November 2006.
43As in the previous matter, the Solicitor when taking over a personal injury matter in 2003 gave an undertaking to the outgoing solicitor "to pay your reasonable costs as agreed or assessed upon successful completion of the matter." He failed to honour his undertaking. He took the point firstly that the undertaking was not personal but only given on behalf of the client. Also, as the fee agreement in place with the previous solicitor had not been signed by the client, his fees should be limited to $250 being the maximum amount prescribed in Schedule 1 of the Motor Accidents Compensation Regulation (No 2) 1999.
44A complaint was then made to the Legal Services Commissioner, who determined that the undertaking was personal and that the previous solicitor was entitled to his reasonable costs as assessed.
45The costs were then assessed in 2006 and were not capped at $250, but the Solicitor continued not to honour the undertaking. Later in 2006 a further complaint was made to the Law Society in relation to the continuing failure to honour the undertaking. Ultimately civil proceedings were commenced against the Solicitor for the amount of the assessed costs and only then were they paid - in late 2007.
46Mr Gye's letter to the Law Society, in response to the complaint to the Law Society, was annexed to Mr Collins' first affidavit. He argued that the assessed costs should be capped at $250 in accordance with Schedule 1 to the Motor Accidents Compensation Regulation because there was no fee agreement.
47The difficulty with this submission is that clause 11(2) of the relevant Motor Accidents Compensation Regulation says that Schedule 1 does apply to such costs "to the extent that they are payable on a Solicitor client basis." We take this to mean that the Regulation is aimed only at absolving a defendant's insurer from paying more than the capped amount of costs to a plaintiff's solicitor where there is no valid fee agreement. The provision says nothing about whether a solicitor remains entitled to recover his reasonable fees from his client.
48This was the conclusion reached by the Law Society in response to Mr Gye's submission, when it resolved to proceed with the complaint. It also determined that the Solicitor's undertaking was in relation to the previous solicitor's own costs. We agree with this view.
49The Solicitor says that he was not notified about the assessment process, but this is disputed by the previous solicitor and is not accepted by the Law Society. He also says that the assessor was not told that there was no signed fee agreement. In any event, from our reading of the Regulation, Schedule 1 does not apply to solicitor/client costs, and it seems likely that the assessor would have reached the same conclusion had the Solicitor attended to press his argument in person.
50In the circumstances, we find that the Solicitor's continuing failure to pay these costs was in breach of the undertaking that he gave in 2003. However, as the meaning of the Regulation may not be wholly free from doubt, and as the Solicitor was supported in his view by his then solicitor Mr Gye, we will give him the benefit of the doubt, and find that it was reasonably open to him to believe that his undertaking was limited to the capped amount of $250. We therefore do not find that his conduct in this matter amounts to either professional misconduct or unsatisfactory professional conduct.
[5]
Ground 5 in Matter No 092029
51This is also an allegation that the Solicitor failed to honour an undertaking, but in this case it was an undertaking given to the Law Society. In his Reply, the Solicitor admitted the allegation and the Particulars in support.
52Nevertheless in his first affidavit and in his written submissions, he referred to a number of mitigating circumstances, so it is necessary that we set out the relevant facts.
53In March 2008, the Law Society wrote to the Solicitor seeking a response from him within 14 days in relation to a complaint from a client. This complaint was not one of the matters that is before this Tribunal and was ultimately dismissed.
54Notwithstanding that he said on a number of occasions that he would respond nothing had been received from him by December that year. The Law Society then wrote to him stating that it would send to him a Notice pursuant to section 660 of the Legal Profession Act 2004, ("the LP Act"). That same day, the Solicitor replied asking the Law Society not to issue the Notice, but undertook to provide his response by 15 December 2008.
55The Law Society did not issue the Notice. Nevertheless no response was received from him until July 2009. In his submissions he said that he was unable to comply, firstly, because the death of a close relative necessitated his travelling to Ireland between 13 and 22 December 2008. He said that he had informed the Law Society of this event, but this did not happen until 18 December (when he was in Ireland) and the 7-day period provided in his undertaking had already expired.
56Thereafter he said that he was involved in a Mediation in Perth until Christmas, and during January "with the office being closed and then holidays ... I was unable to contact the Law Society in respect of the undertaking". In February he said that he was "labouring.... with significant work commitments and personal problems in relation to my medical condition which impaired my ability to provide a response". He did not communicate with the Law Society at all during this period.
57In our view these matters do not answer the complaint and the Solicitor's conduct amounts to a breach of his undertaking to the Law Society on 8 December 2008 and his conduct constitutes professional misconduct.
[6]
Grounds 6, 7 and 8 in Matter No 092029
58Each of these three complaints involves the conduct of the Solicitor on 3 and 4 March 2009 in relation to a former Family Law client, Ms Beckers.
59On 3 March 2009, Ms Beckers terminated her retainer with the Solicitor and instructed another firm. The Solicitor then proceeded to invite her to dinner that evening and suggested that she "wear something sexy". He followed this up with over 20 text and/or voice messages to her between 4.45pm and 11.26pm that evening, none of which she responded to. The next morning she recorded a further 12 missed calls from him.
60Initially the Solicitor denied these complaints, suggesting that he was only trying to arrange an orderly hand-over of Ms Becker's files. However, in his Reply filed in April 2010, he admitted each of the three allegations and the supporting Particulars.
61In his written submissions, he said: "This conduct is admitted and I am extremely embarrassed about it. It arose in circumstances where I was consuming excessive alcohol and labouring in respect of my mental illness. I assure the Tribunal that it will not be repeated".
62The Solicitor was admitted to the Currumbin Clinic for the first time less than a week after these events occurred. We will return to the state of his health later in these Reasons. However that does not excuse his conduct, which as he now concedes, was completely inappropriate and unacceptable. In our view, each of the three grounds is made out and the conduct amounts to professional misconduct.
[7]
Matter No 092032
63The only allegation raised in this matter is that the Solicitor failed to answer a Notice issued pursuant to section 660 of the LP Act dated 3 July 2009 and served on him on 27 July within the 21 day period specified, In his Reply he admitted the allegation and conceded that he did not respond to the Notice until 24 August 2009.There is no evidence that he contacted the Law Society during this period seeking an extension of time to answer the Notice.
64In his submissions he stated:
"The Notice required an extensive response. I was labouring at the time with enormous work commitments and problems associated with my mental illness. I rely on the submissions set out below in relation to my medical condition and the medical evidence".
65Section 676(3) of the LP Act says that a Solicitor must not, without reasonable excuse, fail to comply with the terms of a s 660 Notice. Section 676(4) says that a breach is professional misconduct. We do not believe that that any reasonable excuse has been established, and we find that his conduct amounts to professional misconduct.
[8]
Grounds 1 and 2 in Matter No 102021
66This matter was strongly contested by the Solicitor. The Particulars of the complaint were detailed. The relevant paragraphs were as follows:
A. Mrs Margaret Weston ("Mrs Weston") has three daughters, Mrs Julie Unicomb ("Julie"), Mrs Leona Ross ("Leona"), and Mrs Dianne Stephens ("Dianne").
B. In or about August 2004, Mrs Weston was admitted to a nursing home in the Port Stephens area, with her late husband, Mr Weston.
C. On 10 May 2006, Mr Weston died. Disputes arose among Julie, Leona and Dianne about the management of their parents' affairs; especially in relation to Powers of Attorney.
D. Leona retained Mr Chris Lomax of Somerville Laundry Lomax ("Lomax").
E. On 5 June 2006, Lomax wrote to Mr Scott Lewis of Messrs Cunningham & Adams ("Lewis"), who acted for Mrs Weston; seeking a copy of Mr Weston's will, and any Powers of Attorney that might have been applicable up to the date of his death.
F. On 20 June 2006 Lewis responded to the letter from Lomax and stated:
"We confirm that we have received instructions from Margaret Weston, the executor of the Will of the late John Weston...Our instructions from Mrs Weston are not to provide a copy of that Will. We also confirm that we do not have instructions to provide you with a copy of the Power of Attorney of the late John Thomas Weston..."
G. On 9 October 2006, Leona instructed the solicitor to act for her. The solicitor confirmed his instructions in writing to Leona, by letter dated 9 October 2006.
H. The solicitor sent Leona's signed authority for Lomax to transfer Leona's file to the solicitor. The solicitor received the file on 10 October 2006 and it contained, inter alia, Lewis' letter to Lomax dated 20 June 2006.
I. On 11 October 2006, the solicitor visited Mrs Weston at her nursing home. Before the visit, the solicitor sent an email to Leona, foreshadowing the visit, and adding: "we do not propose communicating with the solicitor until we have instructions from your mother..."
J. The solicitor's elderly mother was with him at the time, and he took her to meet Mrs Weston.
K. In anticipation of the visit, the solicitor had prepared an Authority for Mrs Weston to sign during his visit, address to Lewis that stated that she had "....not provided instructions to Cunningham & Adams...not to provide a copy of (her late husband's Will) to Leona Ross...". The authority also stated that Mrs Weston "....[authorised] production of all documents, including copy of Power of Attorney by John Thomas Weston in favour of Julie Unicomb.... to [the solicitor]...".
L. Mrs Weston did not sign the authority as the nursing staff intervened and prevented this from occurring.
M. As at 11 October 2006, when the solicitor visited Mrs Weston, he was aware that Mrs Weston was represented by Cunningham & Adams Solicitors
and
S. The solicitor provided Leona with a letter he had drafted, dated 24 January 2007, for signature by Mrs Weston; and addressed to the Guardianship Tribunal.
T. The second paragraph on page 2 of the letter contained the following:
" I have been legally represented to date but have concerns that I am not being properly represented..."
Further on the letter states:
" I believe my daughter, Julie Unicomb, and my solicitor, Mr Scott Lewis, no longer have my interests at heart..."
U. On 30 January 2007 the solicitor sent an email to Leona attaching a further letter he had drafted for signature by Mrs Weston, addressed to Lewis; indicating that she was seeking advice from the Guardianship Tribunal in relation to her affairs generally.
V. On or about 27 March 2007, the Guardianship Tribunal received an application for Guardianship and Financial Management Orders in respect of Mrs Weston, as well as a letter from Mrs Weston dated 24 January 2007.
67The first allegation is that the Solicitor visited Mrs Weston, the elderly mother of his client in a nursing home, knowing that she had her own solicitor acting for her, and that he sought to have her sign an authority, which would have benefited the Solicitor's client. The second is that by drafting the letter for his client to have Mrs Weston sign and forward to the Guardianship Tribunal, he attempted to intervene in and undermine the solicitor/client relationship between Mrs Weston and her solicitor.
[9]
Ground 1
68In his Reply, the Solicitor said in answer to the allegation that he communicated with the client of another solicitor, that "The Respondent admits that Lewis as at June 2006, acted for Mrs Weston but was not instructed in respect of any material issue at the relevant time nor were there any relevant legal proceedings on foot involving Mrs Weston"
69The Solicitor's reference to the date June 2006 was significant. There was in evidence the letter from Mr Lewis (on behalf of Mrs Weston) addressed to Mr Lomax (Ms Ross' former solicitor) dated 20 June 2006, the content of which is set out in Particular F above. Although the Solicitor disputed that he had received the whole file from Mr Lomax before 11 October, he conceded he was aware of this letter before he made the visit to the nursing home some four months later, presumably because Ms Ross showed it to him when she first instructed him earlier that month.
70The Solicitor maintained that whatever the position was in June 2006, he was entitled to assume some four months later, that Mr Lewis was no longer instructed by Mrs Weston. We do not accept this argument. Firstly, absent any notification from Mr Lewis or Mrs Weston, there was no basis at all for the Solicitor's assumption that Mr Lewis' retainer had been terminated. Secondly, if there were any possibility of doubt about this, the first question the Solicitor should have asked Mrs Weston when he arrived at the nursing home was whether Mr Lewis was still acting for her. However, from his own account of this conversation (deposed to in his affidavit sworn 28 January 2011, it is clear that he did not do so. When cross-examined, the Solicitor confirmed that he did not raise this issue with Mrs Weston.
71Thirdly, the authority that he had prepared for Mrs Weston to sign at the nursing home was addressed to Messrs Cunningham & Adam, Mr Lewis' firm. Also, neither his email to Ms Ross dated 11 October 2011 (set out in Particular I above) nor his letter dated 16 October 2006 to Ms Ross, in which he reported on his meeting with her mother and stated (inter alia) " then we enquired as to whether or not she (Mrs Weston) had consented to her solicitor not providing you with details of your father's will", suggest that the Solicitor was in any doubt that Mr Lewis was still acting for Mrs Weston.
72In his affidavit, the Solicitor also stated that Ms Ross had specifically instructed him that her mother was not legally represented and that he should contact her mother directly. In our view, neither of these matters absolves the Solicitor from his obligation to make his own enquiries as to whether or not Mrs Weston was legally represented and then determining whether it was appropriate for him to contact her directly.
73The second limb of the Solicitor's Reply to this allegation was that Mr Lewis was not instructed in respect of any "material issue" and that in October 2006, there were no legal proceedings on foot involving Mrs Weston.
74The principle that a solicitor should not contact the client of another solicitor, enshrined in NSW in Rule 31 of the Revised Professional and Practice Rules (1995) ("the Solicitors Rules"), is not limited to the precise terms of the first solicitor's retainer. Unless the second solicitor has actual notice that the prior retainer was a limited one, and that in relation to other matters the client was unrepresented, no direct contact should be initiated.
75That was not the case here and in any event, the matters that Ms Ross had consulted the Solicitor about were directly related to the subject matter of Mr Lewis' letter of 20 June 2006. Also there is no basis for the proposition advanced by the Solicitor that the Rule only applies to contentious or potentially contentious situations.
76What transpired at the nursing home on 11 October 2006 also needs to be considered. The Solicitor's account of the meeting was deposed to in his affidavit sworn 28 January 2011. He generally accepted most of the Particulars. However, in his submissions he argued that there was nothing untoward or improper in what he did.
77The two matters that he disputed were that he took his own mother with him to the nursing home in order to make it easier to engage with Mrs Weston. He also denied that it was the nursing home's staff that prevented Mrs Weston from signing the authority and he asserted that that he did not press the issue once the Director of Nursing intervened.
78Even if we were to accept the Solicitor's account of what transpired in relation these two matters, the fact remains that the Solicitor's visit to Mrs Weston was wholly misconceived. He should never have suggested it to Ms Ross, or, if he is to be believed, he should never have followed through on her instructions to make the visit.
79We accept that the Solicitor's visit to Mrs Weston was probably motivated by a sense of injustice that arose from the instructions that were provided by Ms Ross, namely that Ms Ross' sister had benefited from her father's estate at her expense. However, "self help" of the type initiated by the Solicitor was not the appropriate response.
80In our view, the options available to the Solicitor included informing Ms Ross that she could always visit her mother and ask her what had transpired and seek an explanation from her as to why the power of attorney had been granted to her sister. Further, he could have advised Ms Ross to take notes of this meeting as she may wish to put her mother's responses into an affidavit in any subsequent proceedings.
81The Solicitor could also have written directly to Ms Ross' sister (or, if appropriate, to her solicitor) seeking information and undertakings on an urgent basis lest proceedings be commenced against her, or he could have commenced proceedings immediately (as he did the following week). Instead, and seemingly with reckless regard to the consequences, he went to visit Mrs Weston with the intention of having her sign the authority that he had prepared.
82Even if Mrs Weston had not been represented by a solicitor there is another reason that his visiting Mrs Weston was both misguided and not in his client's best interests. During the visit he could have received information from her that was relevant to proceedings that were likely to be commenced by Ms Ross against her sister. In that event, Solicitors Rule 19 may have required him to cease acting for Ms Ross as he would have been required to give material evidence in those proceedings.
[10]
Ground 2
83The Solicitor's answer to this complaint was that he was specifically instructed by his client Ms Ross to prepare both the letter dated 24 January 2006 for her mother to sign and send to the Guardianship Tribunal and the letter dated 30 January 2007 for her mother to sign and send to Mr Lewis. We will confine our comments to the first of these letters, as although the second letter is referred to in the Particulars it is not the subject of Ground 2 itself.
84Again we do not believe that the Solicitor can justify his actions by relying on what he may have been instructed to do by his client. He should have exercised his own judgment. Having found that the Solicitor was aware at that time that Mr Lewis continued to act for Mrs Weston he should not have prepared this draft letter. Rather, he should have counselled his client against acting in the manner that she did. The proper course of action was to write to Mr Lewis voicing his client's concerns and, if appropriate, write to the Guardianship Tribunal in due course.
85We find that both these allegations are made out. Section 498(1) (a) of the LP Act provides that a breach of the Solicitors Rules is capable of amounting to professional misconduct. We find that the breach in this instance does amount to professional misconduct, as does the second allegation that he undermined the existing solicitor/client relationship between Mrs Weston and Mr Lewis.
[11]
Grounds 3 and 4 in Matter No 102021
86In this matter the Solicitor acted for Ms Magarry in relation to a Workers Compensation Claim for an alleged psychological injury. The claim did not succeed and soon thereafter Ms Magarry died. In 2009 her executor requested that the file be transferred to another firm of solicitors.
87The Solicitor sought from the estate payment of what he described in his letter to the executor as "the outlays incurred in respect of the litigation". These amounted to $6,171.80, comprising $3,350.40 relating to medical report fees and the balance of $2,262 was described as relating to internal office disbursements (including photocopying). He did not charge any professional costs as the proceedings had not been successful.
88The executor (as advised by the estate's solicitors) refused to pay these "outlays" on the basis that the Workers Compensation (General) Amendment (Costs in Compensation Matters) Regulation precluded the Solicitor from claiming non-medical disbursements. Also, the Solicitor had no written fee agreement with Ms Magarry and as Ms Magarry's insurer did not use the medical reports in subsequent proceedings for death benefits. The estate refused to pay the fees for obtaining the medical reports. The Solicitor asserted a lien on the file and refused to hand it over until he was paid.
89In May 2009, the Solicitor abandoned the claim for "internal office disbursements" and he released the file, but he continued to press for payment of the medical report fees. The impasse continued until March 2010, when the Solicitor informed the Law Society (by that time a complaint had been lodged on behalf of the estate) that he no longer pressed for payment of the medical report fees.
90In his Reply, the Solicitor admitted that he had no entitlement to the disbursements claimed. However in relation to the allegation that he failed to transfer the file, he said that he was entitled to retain it because he "reasonably believed that the costs would be recoverable from the insurer". In his evidence before the Tribunal he also said that the payment of outstanding disbursements, which we took to include the cost of the medical reports, on the transfer of a file was "very standard local arrangement".
91With respect to the Solicitor, we reject that submission. He was not entitled to payment of the claimed "internal office disbursements" as he subsequently, and properly in our view, conceded. Also, without a fee agreement he had no real entitlement to recover the fees paid for the medical reports, and there was only the possibility that the reports might have been of interest to the insurer. He should have handed over the file when first approached, with a request that he be reimbursed if the reports were relied on subsequently.
92The irony of the Solicitor's predicament has not escaped the Tribunal's notice. In this matter his inability to recover his outgoings was due in part to the absence of a fee agreement with his client. Yet in Ground 4 in Matter No 092029 (see above), his asserted justification for his failure to honour his undertaking was that the previous solicitor did not have in place a valid fee agreement.
93We find both grounds of this complaint established. The Law Society submitted that they amounted to unsatisfactory professional conduct only. We agree with that assessment.
[12]
Matter No 122005
94This complaint is limited to an allegation that the Solicitor failed to provide his client, Ms Edwards, with a written costs disclosure. In his Reply the Solicitor initially denied the allegation, but at the hearing he conceded that there was no written costs disclosure.
95Nevertheless in his evidence before the Tribunal the Solicitor maintained that he did at least discuss his costs with Ms Edwards at the time of a Review Conference in the proceedings in September 2006. Ms Edwards denied this, and as the Law Society pointed out there is no reference to costs in his subsequent correspondence with his client.
96In his submissions, the Solicitor also asserted that this failure was due to an oversight on his part and that before the claim was concluded he did make a written disclosure. He clarified this as meaning that he disclosed his costs in the Authority to Settle and Deduct Form that he had Ms Edwards sign at the conclusion of the matter. None of these matters, in our opinion, answers the complaint.
97The Solicitor's concession at the hearing means that the complaint is established. In our view, this constitutes unsatisfactory professional conduct.
[13]
Matter No 122012
98As noted above, the Application in this matter was only filed on 27 June 2012, after the proceedings had been set down for hearing. The Solicitor consented to this Application being determined at the hearing of the previous Applications.
99The Particulars of the claim were as follows:
1. On 6 February 2012 the Solicitor received a Court Attendance Notice charging him with two offences alleged to have been committed on 6 February 2012, drive whilst licence suspended and perform U-turn at traffic lights. The charges were listed at the Local Court Tweed Heads on 5 March 2012.
2. On 5 March 2012 the Solicitor completed a Written Notice of Pleading ["the Notice"] wherein he pleaded guilty to the charges and gave some explanation for having driven whilst suspended.
3.The Notice required that it be signed before a Justice of the Peace or a "member of the legal profession".
4. The Solicitor signed and dated the Notice. Thereafter, the Solicitor purported to sign the signature of M Williamson JP as the witness to his signature.
5. At or about 8 57 am on 5 March 2012 the solicitor, by facsimile transmission, sent the Notice to the Register at Tweed Heads Local Court.
100In his Reply the Solicitor admitted the Grounds and the Particulars, but in mitigation he relied on the circumstances deposed to in his affidavit sworn 11 October 2012.
101Much of this affidavit was not read. However, the Solicitor's oral evidence and submissions provided the Tribunal with a proper understanding of the issues that he wished to put forward in mitigation.
102The Solicitor stated that while he acknowledged the seriousness of the conduct, at the relevant time his medical symptoms had escalated and he was stressed by the unresolved proceedings before this Tribunal. Also, just prior to that time the Law Society had appointed a Manager to his practice and he believed that on the day that the offence is alleged to have occurred, he was going to be told to vacate his office with a view to his practice being wound up.
103He also submitted that the substance of his statutory declaration was correct and not misleading in any way. He said that he was simply too embarrassed to have the fact that he was pleading guilty to the charge of driving whilst suspended, known to others and that this was the reason why he forged the signature of Ms Williamson (the Justice of the Peace) on the declaration.
104The Solicitor also argued that his actions could be distinguished from what occurred in Foreman's case (Law Society of New South Wales v Foreman (1994) 34 NSWLR 408), as he was not intent on misrepresenting his position to other members of the legal profession.
105The Law Society disputed that the Solicitor had only just been informed that his practice was to be closed. In response the Solicitor said that he recalled that he may have been told by the Manager's assistant some days earlier, that the Manager - Mr R Flynn (no relation of the Solicitor) would be attending that day to direct him to not attend the office any further. However, he could not recall exactly when this occurred.
106Under cross-examination, the Solicitor conceded that on the relevant day he sent the facsimile to the Tweed Heads Local Court before the Manager arrived at the office. Later that morning Mr R Flynn found the facsimile and showed it to Ms Williamson, who confirmed that she had not signed the declaration and that her signature had been forged.
107According to the Law Society, it was significant that the Solicitor had first become aware of these matters before 5 March 2012, because it tended to suggest that his decision to forge Ms Williamson's signature could not be considered "a spur of the moment" reaction to what he had already been told, or was just about to be told by the Manager in relation to his practice.
108We think it more likely than not that the Solicitor's decision to forge the signature was only made on the morning of 5 March. However that does not excuse the seriousness of what the Solicitor did. It was still a conscious act of fraud on his part and the matters that he raised in mitigation do not excuse his conduct.
109While we do accept the Solicitor's proffered distinction between his conduct and that of the solicitor in Foreman's case, in that his forgery was not a misrepresentation to other members of the profession, it was nevertheless intended to misrepresent his position to the Court. We regard that as being of equal severity.
110We find the offence proven and that it clearly amounts to professional misconduct on the Solicitor's part.
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The Medical Evidence
111A considerable amount of medical evidence was tendered by the solicitor. However in his submissions, he accepted that the report of the psychiatrist, Dr Bruce Westmore dated 2 October 2012, provided an accurate statement of his current state of health and that his opinion was consistent with the opinions of his own doctors who had been treating him for the past three years. Dr Westmore was asked by the Law Society to examine the Solicitor just prior to the hearing, and he was briefed with the majority of the prior medical reports. The Solicitor voluntarily attended this examination.
112Dr Westmore concluded that:
1Mr Flynn suffers from a recurring Depressive Illness and alcohol abuse. My preferred diagnosis is that he has episodes of Major Depression, but the differential diagnosis would include a moderate to severe Adjustment Disorder. Both his depression and alcohol abuse are in remission or moving towards remission.
2 Mr Flynn is both presently and will be in the foreseeable future:-
a. Fit to attend the hearing which is listed on 15-17 October 2012. He will be able to respond to the disciplinary application, prepare his defence to all matters and, if he chooses, to represent himself. He will be able to give evidence and withstand cross examination at the hearing.
b. Mr Flynn is presently fit to practise as a solicitor from a psychiatric perspective. I would not be supporting the proposition that he work in a solo practice. His ability to continue practising safely both for himself and his clients will depend on his ongoing health status. I refer specifically to the continuing stability in his mood state and his continuing sobriety from alcohol.
113Dr Westmore recorded that the Solicitor believed that he first became depressed about 15 years ago. That is before any of the matters the subject of these proceedings occurred and soon after his father committed suicide. About a year later, his infant son was diagnosed with retinoblastoma. His son recovered, but lost an eye.
114However his recurring depression remained untreated until 2009 when he first saw the psychiatrist, Dr Petroff. At that time he was also first admitted to the Currumbin Clinic for alcohol dependency. He said that alcohol abuse had first become a problem for him in 2007, just prior to separating from his wife. He was readmitted to the Clinic on three further occasions, the last admission being in February 2012.
115Since that time, the Solicitor told Dr Wetmore that he has not consumed any alcohol and that he attends an Alcoholics Anonymous meeting every week. He has also continued under the care of his primary care physician, as well as Dr Petroff and a psychologist, Ms Enter. In her October 2012 report, Ms Enter concluded that the Solicitor had made remarkable progress since his January 2012 relapse and she reported that he had made significant lifestyle changes. Dr Westmore recommended that this treatment plan continue for the foreseeable future. He also noted that the Solicitor had recently taken up sport again and was attending a gym.
116In summary, there now does not appear to be any controversy between the parties as to the medical evidence, including Dr Westmore's conclusion that from a psychiatric prospective at least the Solicitor is fit to practise as a legal practitioner. We will consider this conclusion further when we come to the question of penalty.
[15]
The Character Evidence
117The Solicitor relied on nine letters or affidavits from the persons listed above in paragraph 19.4, attesting to his good character. They were from clients, a colleague, a barrister whom he briefed, a fellow practitioner, a former policeman, and friends. They represented a broad cross-section of people with whom the Solicitor came into contact in his practice. None were required for cross-examination.
118Each person gave a positive view of the Solicitor's ability as a legal practitioner. However, while Messrs Lord, Marshall, Beaver, Breen and Ms Lord said that they had been provided with details of the matters alleged against the Solicitor, this can only have included the first three Applications as their statements were filed in 2011 and pre-dated the commencement of the fourth and fifth Applications and no supplementary statements were tendered.
119Of the remaining references, none of the referees state that they were informed of the matters that are the subject of the fifth Application. In addition, the Law Society criticised all of the references for their similarity and their generalised nature.
120We are inclined to give these statements little evidentiary weight in our overall determination of the matter.
[16]
What is the Appropriate Penalty?
121On 6 March 2012, the Law Society resolved to suspend the Solicitor's Practising Certificate pursuant to its Powers under s60 of the LP Act. It took this step when it became aware of the matters the subject of the fifth Application (Matter 122012), which occurred the previous day. The suspension took effect from 15 March 2012. The Solicitor did not apply to renew his Practising Certificate in the 2012/13 year and he has therefore not practised since March 2012.
122In its submissions, the Law Society argued that while the allegations in the first and second Applications (Matters 092029 and 092032) involve serious matters of misconduct, they did not justify (whether considered individually or together) the removal of the Solicitor's name from the local roll of lawyers but that the professional misconduct alleged in later Applications (namely Matters 102021 and 122012) did warrant the making of that order.
123As noted above, the Solicitor initially opposed the majority of the orders sought by the Law Society. However, as at the date of the hearing he had revised his position and accepted that his medical condition "may suggest that I am unfit to resume in the short term a personal injury practice as a sole practitioner, but this does not necessarily mean that I should suffer the depravity of an order removing me from the Roll".
124While we regard the Solicitor's use of the word "depravity" as misconceived, he nevertheless asked the Tribunal to make orders that he be publicly reprimanded and fined (this being an "an appropriate fine having regard to his poor financial circumstances") and that he pay the Law Society's costs.
125The Solicitor also stated that he "would accept" an order that he not be entitled to obtain a Practising Certificate as an Unrestricted Principal for a period of two years, but asked for liberty to apply forthwith for a Practising Certificate that entitled him to practise as an employee, subject to his adhering to his ongoing medical treatment regime, and attending ethics and practice management courses "run by" the Law Society.
126Subsequently, in answer to questions from the Tribunal, the Solicitor stated that he "would reluctantly accept" an order that his Practising Certificate be suspended for a specified period, or cancelled, pursuant to our powers under s 562(2, but he maintained that: "It is submitted that in time if I remain compliant with my medical treatment I should in fact be able to resume the role of a sole practitioner."
127An order that a practitioner's name be removed from the Roll is the most severe penalty that the Tribunal can impose under s 562(2) of the LP Act and it should not be made unless the Tribunal is comfortably satisfied as to the Solicitor's "probable permanent unfitness to practice". This was the expression used by McHugh JA, as he then was, in Prothonotary of the Supreme Court of NSW v Ritchard (Court of Appeal 31 July 1987, unreported), and adopted by Spigelman CJ in NSW Bar Association v Cummins [2001] NSWCA 284.
128The Solicitor placed much weight on the conclusion of Dr Westmore in his 2 October 2012 report, namely that he was presently fit to practise as a Solicitor "from a psychiatric viewpoint". However, we are required to consider the issue of fitness to practice from a broader perspective than the Solicitor's mental health.
129There are a number of matters that cause us concern regarding the Solicitor's fitness to practice. First, we are troubled that in relation to two of the matters before us, the Solicitor lacked insight into the inappropriateness of his conduct. These were the matters involving Mr Priestley (where he prepared the misleading trust account record) and the matter involving Ms Ross and her mother, Mrs Weston. In both instances he continued to assert that his conduct was acceptable.
130Secondly, there is the fact that in previous proceedings that were brought against the Solicitor, namely Legal Services Commissioner v Flynn [2007] NSWADT 186, the Solicitor was reprimanded and fined for a number of acts of professional misconduct that occurred in 2002. We note that these included falsely attesting to a power of attorney and an instrument appointing a guardian, neither of which was signed in his presence.
131The Reasons for Decision in the 2007 proceedings indicate that the Solicitor admitted each allegation, but in relied in mitigation upon his health problems - namely "stress and anxiety" for which he had first sought medical help from a psychologist in August 2006. These matters, and his general contrition, were clearly relevant to the Tribunal's decision not to make a protective order in that instance.
132We note that in his first affidavit filed in the matters before us, the Solicitor described the 2007 proceedings as "a shock to his system" and he asserted that he thereafter resolved to change his work practices and general lifestyle. However, as we now know from the evidence in these proceedings, this did not occur until at least until March 2012.
133If the Solicitor were to be entitled to resume practice on some basis, could the Tribunal be satisfied that he would not suffer another relapse and that he would not engage in any further acts of professional misconduct? The Solicitor asked us to accept that he has now come to a realisation that he can no longer drink, even in moderation, and that he needs to maintain his medical treatment plan at all times.
134While not disputing that submission, the Law Society noted that the improvement in the Solicitor's health issues coincided with his ceasing to practise in March 2012 (when his certificate was suspended) and expressed concern that the stresses and pressures of practice could have an adverse effect on his future well-being and cause a relapse of his mental health issues and/or alcohol dependency. The Solicitor strongly disputed that there was any correlation between these two events, saying that his improvement commenced before 2012, but we nevertheless remain concerned about this issue.
135The third matter that we regard as being relevant to the issue of the Solicitor's current fitness to practise is the subject matter of the fifth Application itself. We have found on the evidence that in March 2012 the Solicitor forged the signature of a Justice of the Peace with the intention of misleading the Local Court of New South Wales. This is serious instance of professional misconduct and bears some similarity to the conduct that was found against him in the 2007 proceedings. It appears that the 2007 proceedings did not act as a "wake up call" after all.
136The Law Society urged on us the similarities between this matter and facts in Foreman's case, where the Court of Appeal ordered that the Solicitor's name be removed from the Roll. As we noted above, we do not consider that the Solicitor's conduct had the same degree of premeditation as was evident in Foreman's case, where the practitioner there carefully reconstructed her timesheet to show, falsely, that a cost agreement had been provided to her client.
137Nevertheless the Solicitor's conduct here is not in the category of those "false witnessing" cases, where practitioners have signed documents saying they have witnessed a document being signed, when, in fact they were not present at all (such as Council of the Law Society of NSW v Ly [2011] NSWADT 210).
138In those cases a protective order is rarely made if the practitioner can demonstrate that he or she was not involved in a deliberate deception and gained no benefit from the deception. This is in contrast to decisions such as Law Society of New South Wales v McNamara (1980) 47 NSWLR 72 where the practitioner was found to have deliberately misled the Statutory Committee, and Coe V NSW Bar Association [2000] NSWCA 13, where the practitioner swore an affidavit he knew to be false in Family Court proceedings in which he was a party. In both instances the practitioners were found to be unfit to continue practising and their names were removed from the Roll.
139In this instance the Solicitor was clearly acting to advantage himself and the conduct involved a deliberate deceit. The Solicitor's conduct here, together with the matters discussed in paragraphs 129 - 134 above, lead us to conclude that the solicitor is unfit to practise.
140We do not believe that a continuation of the suspension of his Practising Certificate or its cancellation is an adequate penalty. Also, it is arguable that orders of this kind do not have any utility where the practitioner's certificate has already been suspended and not renewed. Our powers under s562(2)(b) of the LP Act in this regard appear to be limited to suspending or cancelling current certificates only (see s43 of the LP Act).
141We have come to the view that the Solicitor's current unfitness to practise is "probably permanent" according to the test applied in Ritchards' case and Cummins' case cited above. We are not able to say at this time when, if ever, the Solicitor might be fit to resume practising. This means that the appropriate order is that his name be removed from the Roll.
142We should add that we also endorse the comments of Kirby P in Ritchards' case that:
Although the opinion must be reached that the offences warrant at the time of order permanent removal, the removal of a solicitor from the Roll is not necessarily intended to be permanent in fact... People can redeem themselves and demonstrate it later by conduct as a number of cases in this State, both of solicitors and barristers, show. Because that opinion may give encouragement, in due course of time, to an application to be readmitted, it is all the more important that the unfortunate saga of the opponent's misdeeds should be collected and found by the Court.
143We therefore make the following orders:
1 That the name of Mark Joseph Flynn be removed from the Roll.
2 That Mark Joseph Flynn pay the Law Society's costs.
[17]
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Decision last updated: 03 April 2013