On 24 January 2018 the Law Society of New South Wales ("the Law Society") filed an Application alleging that Mark Paul Marando ("the Solicitor") was guilty of professional misconduct. The grounds were:
1. Failure to honour undertaking given to the Law Society; and
2. Breach of Order of Tribunal
The Orders sought by the Law Society were that:
1. The Lawyer be reprimanded.
2. The Lawyer pay a substantial fine.
3. The Lawyer's practising certificate be suspended until such time as he has completed a Trust Accounting course as required under Order 3 of the Tribunal decision in Law Society of NSW v Marando [2013] NSWADT 267, at [88].
4. The lawyer pay the costs of the Society as agreed or assessed.
5. Any further or other order the Tribunal deems fit.
[2]
Factual and Procedural Background
Order 3 referred to in the preceding paragraph, was an order of the Administrative Decisions Tribunal ("ADT") made in 2013 ("the Order") and was in the following terms:
(3)The respondent is to be permitted to continue practising as a Solicitor on the condition that he shall within 14 days of this decision provide to the Law Society of New South Wales an undertaking that he will commence and successfully complete with a pass mark of at least 50%, a course in Trust Accounting that is approved by the Manager of the Professional Standards Department of the Law Society of New South Wales, such course to commence prior to 31 March 2014, or, if such a course is unavailable prior to that date, the first course thereafter, with the proviso that the course must be completed to the satisfaction of the Law Society on or before 1 July 2014.
The Law Society's Application set out the undertaking given by the Solicitor in compliance with the Order ("Undertaking"). The Undertaking was contained in his letter to the Law Society dated 3 December 2013. It said:
Pursuant to Order 3, I hereby undertake to commence and successfully complete with a pass mark of at least 50%, a course in Trust Accounting approved by the Manager of the Professional Standards Department.
The Solicitor completed a course in legal bookkeeping before 1 July 2014, but before enrolling in the course, he did not ask the Law Society's Manager of Professional Standards whether it met with his approval. On 15 May 2014 the Solicitor was informed that the course did not comply and he was invited to undertake a course at the New South Wales College of Law ("the College of Law") before 1 July 2014.
Nothing then occurred in relation to the Undertaking for three years. The Solicitor did not enrol in a relevant course, and the Law Society did not follow up the Solicitor's non-compliance. On 7 March 2017 it wrote to him asking whether he had complied with the Order and his Undertaking. That prompted the Solicitor to enrol in a course at the College of Law on or about 7 April 2017.
The Solicitor's failure to comply with the Order and his Undertaking until that time, also prompted the Law Society to make the complaint against him which is the subject of these proceedings.
At the time the Law Society filed its Application with the Tribunal in January 2018 the Solicitor had not informed the Law Society whether he had commenced the course at the College of Law in which he had enrolled the previous April, let alone whether he had completed it successfully. As a consequence, the Law Society sought the suspension of his practising certificate until he had complied.
The proceedings were first listed before us on 14 June 2018. By that date the Solicitor had filed a Reply in which he agreed with "all the Particulars of Grounds of Complaint". He had also filed an affidavit dated 30 April 2018, which we will refer to later in these Reasons, in which he sought to explain his non- compliance.
Regrettably however, by that date the Solicitor still had not commenced the course. However we were provided with a number of emails between the Solicitor, the College of Law and the Law Society all sent in the week before the hearing, which noted that the Solicitor had discontinued the course in which he had enrolled the previous April, but that he was proposing to enrol in a two week, face to face course on Ethics and Professional Responsibility conducted by the College of Law in September 2018. The course in which he had previously enrolled, was an on-line course.
We then proceeded with the hearing. At the conclusion of the evidence, it was agreed that the proceedings be adjourned, part heard, until after the College of Law's September course. Consent orders were made for the filing of further evidence and the proceedings were relisted for 9 October 2018.
On that day the Solicitor tendered a further affidavit dated 3 October 2018. This affidavit noted that he had attended the September course, had sat the examination and had received a credit. The course outline and his certificate were annexed to the affidavit.
Mr Pierotti, who appeared for the Law Society, informed us that in the circumstances, the Law Society no longer pressed Order 3, that is the order seeking the suspension of the Solicitor's practising certificate. Orders 1, 2, and 4 were pressed.
The Solicitor informed us that he would accept a reprimand (Order 1) and a fine (Order 2), though not a substantial fine. The fundamental difference between the parties was that the Solicitor submitted that his conduct, the subject of the Application, amounted only to unsatisfactory professional conduct, whereas the Law Society characterised it as professional misconduct.
We heard oral submissions from the parties on this question. At the conclusion of the hearing, the Solicitor requested that he be given the opportunity to make further written submissions. We reluctantly agreed to this course and directed that these be filed within 14 days. We directed the Law Society to file submissions in reply 7 days thereafter, that is, on or before 30 October 2018.
The Solicitor did not file his submissions within the 14 day period, or at all. In its submissions filed on 30 October 2018, the Law Society said that the Solicitor had requested an extension of time by which to make his submissions, but no request had been received by this Tribunal. We have taken the Law Society's submissions into account in these Reasons.
[3]
The Solicitor's Explanations
The Solicitor said that the book-keeping course that he had completed in 2014 was accredited by the Law Society and he had thought that this course would comply with his Undertaking. He was surprised when he was informed by the Manager of the Professional Standards Department in May 2014 that it did not comply.
Thereafter he said that he knew he had an outstanding obligation to complete the course, but did not focus on the time limits contained in the Order. He also set out in his first affidavit, a number of personal and health issues which he said clouded his judgment between 2014 and 2017, which, he said, explained his delay. Also relevant, in his opinion, was the fact that during this period he was not operating a trust account. Further he said that he had found that his day-to-day practice obligations made it difficult for him to prepare for and participate in the on-line course in which he had enrolled in April 2017.
The Solicitor was cross examined on his first affidavit. He conceded that he had made no contact with the College of Law from April 2017 until immediately before the first hearing date in June 2018. It was put to him that the approaching hearing date was the motivating factor for him discontinuing the on-line course, and enrolling in the face to face alternative. He conceded that he had made this decision only a week before the hearing.
In his second affidavit he said that he had opened a new practice on 1 July 2018 and had employed a solicitor and a personal assistant. He said that he believed that he was much more confident with [his] legal practice.
In that affidavit he also said:
7 I am truly sorry for not taking the steps in 2013 and thereafter to comply with my undertaking to the Tribunal and the orders of the Tribunal.
8 Completing the Ethics and Professional Responsibility course not only refreshed my memory regarding trust accounting but also reminded me of the importance of meeting undertakings not only given to a body such as this Tribunal, but giving undertakings in general practice. It also reminded me of such issues in practice such as conflicts of interest and relationships with clients, colleagues and the court.
9 I just wish that I did this course way back in 2014 and I wouldn't find myself in this situation. Had I done so, there was at the time a trust accounting course only.
10 I urge the Tribunal to take into account my whole new lease on life, the benefit I derived from doing the course and to consider what I was going through over the last four years in its deliberations.
11 In addition if you google my name, the decision of 25 November 2013 appears. This (is) caused me great embarrassment over the years and no doubt has effected my business.
12 I was an active participant in all lectures and actually was up front with all my class mates as to why I was doing the course. I welcome you to speak to my lecturer as to how I participated and gave my experience in practice with the students.
13 I again wish to unreservedly apologise to the Tribunal for my errors and can assure you that such mistakes by me will not occur again.
[4]
The Law Society's Position
The Law Society's position was straight forward. It said that the evidence established that the Solicitor had failed for five years to comply with the Order and the Undertaking. The Solicitor had also admitted the allegations. The conduct, it submitted, clearly amounted to professional misconduct.
The conduct could be considered to be professional misconduct under s 297(1) of the Legal Profession Uniform Law (NSW) which conduct includes:
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;
The Law Society also submitted that the conduct would 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 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.
[5]
Our Findings
There have been many decisions given by this Tribunal concerning breaches by solicitors of undertakings, and relevantly for these proceedings, undertakings given by solicitors to the Law Society or to the Office of the Legal Services Commissioner ("OLSC").
All but a few of these decisions have determined that if the undertaking has not been honoured, the practitioner is guilty of professional misconduct. Recent instances are Council of the Law Society of New South Wales v Morgan [2015] NSWCATOD 71, and Council of the Law Society of NSW v Yang (No. 2) [2017] NSWCATOD 111.
In Morgan the Tribunal cited with approval the statement in NSW Bar Association v Howen [2008] NSWADT 148 that:
Non-compliance with an undertaking to a professional organisation is a more serious matter than non-compliance with an undertaking to a fellow practitioner.
In Yang, the Tribunal agreed with that proposition and added:
Further where a condition attaching to the right to practise exists, the failure to comply with such condition raises a fundamental issue, namely whether the practitioner is a fit and proper person to remain on the Roll of solicitors.
Mr Pierotti drew our attention to Legal Services Commissioner v Piper [2006] NSWADT12, where a breach by a solicitor of an undertaking to the OLSC gave rise to finding of unsatisfactory professional conduct only. The undertaking in Piper was that the solicitor would give the highest priority to correspondence received from the OLSC and would respond to correspondence within a reasonable time. This was not an undertaking relating to a condition directly affecting the solicitor's right to practise. Mr Pierotti submitted, and we agree, that this decision can be readily distinguished on its facts.
We have come to the view that the Solicitor's failure to honour the Order and the Undertaking have been established and that this conduct must amount to professional misconduct on the part of the Solicitor. The Solicitor's explanations for his actions, his recent apology and his apparent contrition do not alter our conclusion.
[6]
What is the appropriate penalty
The Law Society submitted that the Solicitor should be reprimanded and, in addition, should receive a substantial fine. We agree with this. The Solicitor failed to honour the Undertaking for almost five years. Further we have found that his evidence does not justify the delay. We agree that a substantial fine is warranted and have concluded that the amount of the fine should be $10,000.
[7]
Costs
In relation to costs, cl 23 (1) of Sch 5 of the Civil and Administrative Tribunal Act 2013 provides:
Despite section 60 of this Act, the Tribunal must make orders requiring a respondent lawyer whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay the costs (including costs of the Commissioner, a Council or the complainant), unless the Tribunal is satisfied that exceptional circumstances exist.
The Solicitor has not put forward any evidence establishing exceptional circumstances and concedes that he should pay the Law Society's costs. We are satisfied that a costs order should be made.
[8]
Findings and Orders
We find the Solicitor guilty of professional misconduct.
1. The Solicitor is reprimanded.
2. The Solicitor is fined $10,000
3. The Solicitor is to pay the Law Society's costs, as agreed or assessed.
[9]
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
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Decision last updated: 07 December 2018