Council of the Law Society of NSW v Jiao

Evidence before the Tribunal

1. The Law Society filed and served the following affidavits: 1. Affidavit of Neville John Carter sworn 27 March 2019; 2. Affidavit of Cara Daniella Louise Sleeman sworn 1 May 2019; 3. Affidavit of Samuel Harcourt Coupland sworn on 8 May 2019; 4. Affidavit of Nadya Justine Haddad affirmed 14 May 2019; 5. Affidavit of Terrie Maree Gibson sworn 14 May 2019; and 6. Affidavit of Anthony James Lean affirmed 7 February 2020.
2. The Solicitor did not file a Reply nor any other evidence in the proceedings. The file copy of the Orders made on 8 April 2020 record that the Solicitor did not wish to participate in these proceedings, and we accept, by his failure to file any material whatsoever, he does not wish to do so.

What was the alleged misconduct?

1. Ms Haddad's evidence was in relation to her search of the Law Society's records. Prior to commencement of practice on his own account in August 2012 the Solicitor was required by the Law Society to undertake a Practice Management course (Course). Attached to Ms Gibson's affidavit is a copy of the Solicitor's undertaking (the Undertaking) which he provided to the Law Society and dated 10 July 2012, wherein he undertook to: complete the next applicable Practice Management Course where there is a position available.
2. Rule 16(b)(ii) of the Legal Profession General Uniform Rules 2015 sets out that a condition may be imposed on the issue of a Practising Certificate that a solicitor undertake and complete specific legal education or training. According to Ms Haddad's affidavit, it was a condition of each Practising Certificate issued to the Solicitor by the Law Society from 1 August 2012 to 31 July 2018 that he comply with the Undertaking.
3. The Law Society granted a number of extensions to the date by which the Solicitor was required to complete a Course. Evidence was provided by Messrs Carter and Coupland that numerous courses were available each year from 2012.
4. Ms Haddad recorded that from November 2013 the Law Society sought information from the Solicitor about the Course he had undertaken. He appears to have enrolled in a Course which was to take place in March 2014, but did not complete the Course.
5. In correspondence with the Law Society, the Solicitor wrote, in July 2014 that he needed more time to complete the Course, and he was granted an extension of time to January 2015 and was informed that no further extension would be granted. The Solicitor was sent numerous reminders. In June 2018, by way of explanation for his continued non-compliance, the Solicitor informed the Law Society that he had been operating at a loss for 4 years and had not been able to afford to undertake the Course, and that he was engaged in litigation on behalf of a family member, and that there were other difficult family circumstances.
6. Annexed to Ms Haddad's affidavit of 14 May 2019 is an email from Monica Infante of FMRC dated 1 August 2018, confirming that the Solicitor "… has completed FMRC's Sole Principals course held on 25-27 July 2018 as well as any associated assessments". We accept that the Solicitor ultimately completed the Course, in compliance with the condition of his Practising Certificate and the Undertaking, albeit, some 6 years late.

Does the alleged conduct constitute professional misconduct?

1. If the Solicitor's conduct may 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)) it may constitute 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, Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 at [46]. See also Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 at [54].
2. In Bechara v Legal Services Commissioner [2010] NSWCA 369 at [44] of McClellan CJ at CL held that "there are no fixed categories of professional misconduct. Much depends on whether the conduct falls outside 'generally accepted standard[s] of common decency and common fairness'".
3. We also observe that in Council of the Law Society of New South Wales v Winter [2019] NSWCATOD 2 the Tribunal adopted the reasoning in Council of the Law Society of New South Wales v Webb [2013] NSWCA 423 where the term "substantial or consistent failure" in the definition of "professional misconduct" was considered: 22. The distinction made by that definition is between conduct which involves a "substantial" failure to reach or maintain the required standard and conduct which involves a "consistent" failure to do so. The former directs attention to the nature and consequences of the failure, which may be sufficiently serious to raise questions as to the lawyer's competence and diligence and thereby warrant the description "substantial".

Ground 1: Failure to comply with a Practising Certificate condition

1. The Law Society submitted that the Solicitor's breach of his Practising Certificate condition constitutes a failure to maintain a reasonable standard of competence and diligence; and is therefore capable of constituting professional misconduct. Further, as noted above, s 298(a) of the Uniform Law provides that conduct consisting of a contravention of the Uniform Law is capable of constituting professional misconduct. Also, as noted above, s 54 of the Uniform Law requires the holder of a Practising Certificate to comply with its conditions.
2. The Tribunal and its predecessor have, on many occasions, found solicitors guilty of professional misconduct when they have breached conditions of their Practising Certificates. See the recent examples of Council of the Law Society of New South Wales v Lewis [2019] NSWCATOD 100 (Lewis) and Council of the Law Society of New South Wales v Powell [2019] NSWCATOD 24 (Powell).
3. A Practising Certificate is the authority for a legal practitioner to carry on practice as such, creates a privilege in the hands of the practitioner. Any breach of any condition imposed on the right to practice must also, per se, be a matter to be taken seriously: Powell at [21].
4. We consider the Law Society imposed the condition so that the Solicitor would undertake the appropriate practice management training as soon as possible after being issued with a Practising Certificate authorising him to work as the principal of a law practice, and that this was to protect the public so as to ensure that the Solicitor would conduct his practice in accordance with appropriate standards. His failure to comply with that condition, over a number of years, is clearly a consistent failure to maintain a reasonable standard of competence and diligence, and amounts, therefore to professional misconduct. We find that the conduct constituted professional misconduct.

Ground 2: Failure to comply with the Undertaking

1. The Law Society submitted that the Solicitor's failure to comply with the Undertaking constitutes a failure to maintain a reasonable standard of competence and diligence and is capable of constituting professional misconduct.
2. Rule 6.1 of the Legal Profession Uniform Law Australian Solicitor's Conduct Rules 2015 provides: A solicitor who has given an undertaking in the course of legal practice must honour that undertaking and ensure the timely and effective performance of the undertaking, unless released by the recipient or by a court of competent jurisdiction.
3. The Law Society referred us to Riley's Solicitors Manual at [28,030.1]: "The Supreme Court's accreditation of a lawyer upon admission to practice impliedly represents that the lawyer is a person worthy of public trust and confidence ... Fidelity to undertakings given by a lawyer in the course of professional practice is thus an important component of the lawyer's professional responsibility and is directly relevant to the court's continuing accreditation of his or her fitness."
4. This Tribunal (and its predecessor) has, on many occasions, found that solicitors who failed to comply with an undertaking that they provided, were guilty of professional misconduct. Both Lewis and Powell involved undertakings to complete a Course. See also Law Society of New South Wales v Thompson [2018] NSWCATOD 57.
5. In Powell, the Tribunal held, at [20]: It is an everyday occurrence in all areas where lawyers practice that legal practitioners provide undertakings to fellow practitioners and to a wide range of commercial and statutory entities both on their own behalf and on behalf of clients. Other legal practitioners and commercial and statutory entities rely upon compliance with those undertakings in their everyday activities. Such reliance is integral to the efficient and effective functioning of a whole range of activities within our community. It is essential that undertakings given by legal practitioners be genuinely provided and that they be honoured. It is for these reasons that prima facie, a breach by a legal practitioner of an undertaking, whether given during legal practice or not, will arguably constitute a most serious matter, and may, in relevant circumstances, adversely impact upon the integrity of the profession in the eyes of the public.
6. The Tribunal was of a similar view in Lewis, at [55] and [56].
7. We agree with the Law Society's submission that the Solicitor's failure to comply with the Undertaking constituted a substantial and consistent failure by him to maintain a reasonable standard of competence and diligence. We observe, particularly, that the duration of the Solicitor's failure to honour the Undertaking extends at least 6 years, and longer if the original Undertaking is taken into account, before extensions.
8. We find there was a consistent failure by the Solicitor to reach or maintain a reasonable standard of competence and diligence. We find that the conduct constituted professional misconduct.

What are the appropriate Orders?

1. The Law Society sought the following Orders: 1. that the Solicitor be reprimanded. 2. that the Solicitor pay a fine. 3. that the Solicitor pay the Applicant's costs as agreed or assessed. 4. Such other orders as the Tribunal deems fit.
2. Section 302(1) of the Uniform Law sets out the broad power of the Tribunal to make Orders.
3. As expressed in Law Society of New South Wales v Bannister (1993) 4 LPDR 24 at 28 per Sheller JA, the jurisdiction of the Tribunal is protective, not punitive: When the jurisdiction of the Tribunal is invoked under Part 10 ... of the Act to conduct a hearing into a complaint of professional misconduct by a legal practitioner, the primary consideration is to protect the public by preventing a person unfit to practise from holding himself or herself out to the public as a legal practitioner in whom members of the public might repose confidence. The Tribunal must also act so as to deter the offender in the future and any other practitioner minded to behave in like manner. In the case of a solicitor these elements together or separately may call for the removal of the solicitor's name from the roll or the imposition of a substantial fine.
4. In Law Society of New South Wales v Walsh [1997] NSWCA 185 it was said that the Court's duty to protect the public is not confined to the protection of the public against further misconduct by the particular practitioner who is the subject of disciplinary proceedings. It extends to protecting the public from similar defaults by other practitioners. Therefore, it is relevant to consider the effect the Orders sought would have upon the understanding of the profession and the public as to the standard of behaviour required of legal practitioners. Furthermore, the Tribunal's function is educative, "publicly marking the seriousness of what the instant solicitor has done": Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 441.
5. We consider the Solicitor's Practising Certificate condition breach to be serious in nature. As the Tribunal stated in Powell at [57] and adopted in Lewis: .. a practising certificate constitutes an authority to carry on practice as a legal practitioner. The authority so granted creates a privilege in the hands of the practitioner. Any breach of any condition imposed on the right to practice must ... be a matter to be taken seriously.
6. The condition was imposed on the Solicitor's Practising Certificate to protect the public. This is because the Law Society imposed the condition to ensure that the Respondent would undertake the appropriate practice management training as soon as possible after being issued with a Practising Certificate authorising him to work as the principal of a law practice. The Solicitor's breach of the Practising Certificate condition extended over at least six years.
7. We also consider the Solicitor's breach of the Undertaking to be serious. Recently, the Tribunal in Council of the Law Society of New South Wales v Konstantinidis [2019] NSWCATOD 104 said: The importance of practitioners complying with undertakings given cannot be understated. It is of considerable importance to the administration of justice, and in the conduct of affairs entrusted to practitioners, that practitioners can rely upon their colleagues to honour undertakings; ...
8. A reprimand is clearly required, as is a fine.
9. As to the quantum of a fine, the Law Society helpfully referred us to similar matters. In Lewis, the solicitor was reprimanded and ordered to pay a fine in the sum of $4,000. In Powell, the solicitor was reprimanded and ordered to pay a fine in the sum of $1,000. In Council of the Law Society of New South Wales v Kim [2012] NSWADT 45, the solicitor was reprimanded and ordered to pay a fine in the sum of $5,000.
10. In Legal Professional Complaints Committee v Detata [2012] WASCA 214 at [52] and [54] Martin CJ said: It is therefore vital that legal practitioners perform their undertakings, regardless of whether the undertaking was proffered in error or oversight, irrespective of any change in circumstances, no matter how radical and irrespective of any hardship of any legal practitioner concerned...
11. Because the Solicitor chose not to participate in the proceedings we have no current information as to his financial position, his health nor any other matters that might inform our decision as to the quantum of the fine to be paid.
12. The Law Society submitted that the fine would also serve to deter the Solicitor from engaging in similar conduct in the future and deterring other practitioners from behaving in a similar manner. In addition to the reprimand, we consider, having regard to the Solicitor's continued non-compliance over an extended period, that it would be appropriate to impose a fine of $5,000.
13. We observe with some concern that the Solicitor was permitted to continue practising on his own account for some years notwithstanding his failure to comply with a clear obligation affecting his practice, and that it is only now, some 6 or 7 years after that failure, that he is called to account. We assume that his poor record of compliance has alerted the Law Society to the Solicitor's disrespect for his obligations as a legal practitioner and that it has taken, and continues to take, appropriate inspections of his practice to ensure other obligations associated with the practice are being met.
14. We do not consider this observation to be inconsistent with Law Society of New South Wales v Walsh [1997] NSWCA 185, at [40] and Council of the New South Wales Bar Association v Breeze [2015] NSWCATOD 152 which held that disciplinary proceedings are concerned with the protection of the public, rather than being punitive in nature. The Tribunal's orders may be used to mark the community's disapproval of lapses from the high standard of conduct that are legitimately expected of legal practitioners. They also act as a specific deterrent to the legal practitioner involved and as a general deterrent to all other practitioners with a view to maintaining proper standards of conduct within the legal profession.

COSTS

1. Ordinarily, each party to proceedings before the Tribunal pays its own costs except if there are special circumstances to warrant the awarding of costs: s 60 of the Civil and Administrative Tribunal Act 2013 (CAT Act). However, Schedule 5, cl 23(1) of the CAT Act (the Schedule) provides, relevantly that despite s 60, 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, unless the Tribunal is satisfied that exceptional circumstances exist. In this matter the Tribunal finds there are no exceptional circumstances.

ORDERS

1. Having found the Solicitor to be guilty of professional misconduct, we order that: 1. the Solicitor be reprimanded. 2. the Solicitor pay a fine of $5000. 3. the Solicitor pay the Law Society's costs as agreed or assessed.

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 01 July 2020 - Typographical error on coversheet corrected 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: 01 July 2020