Council of the Law Society of NSW v Powell

NCAT Occupational|2018-02-08

Introduction

These proceedings are constituted by an Application for disciplinary findings and orders brought by the applicant Council of the Law Society of NSW pursuant to the provisions of the Legal Profession Uniform Law (NSW) ("the Uniform Law"). At the conclusion of the hearing which we conducted on 8 February 2019 we found that the respondent was guilty of professional misconduct and made certain protective and other orders. These Reasons for Decision constitute our reasons for having done so.
The Application alleges that the respondent is guilty of professional misconduct because she contravened a condition of her practising certificate and failed to comply with an undertaking given when applying to the applicant on 23 June 2014 for variation of her practising certificate.
The parties entered into an Instrument of Consent under s 144 of the Uniform Law by which agreement was reached that the respondent's conduct particularised in that document amounted to professional misconduct and sought that the Tribunal make orders by consent that the respondent be reprimanded and ordered to pay the costs of the applicant.
Section 144 is in the following terms; 144 Consent orders (1) The Tribunal may, with the consent of the respondent lawyer contained in a written instrument, make orders without conducting or completing a hearing in relation to the complaint. (2) Consent may be given before or after the proceedings were initiated in the Tribunal with respect to the complaint. (3) If consent is given before the proceedings were initiated, an investigation of the complaint (whether commenced or not) may be dispensed with, and any investigation of the complaint already being conducted may be suspended or terminated. (4) This section does not apply to consent given by the respondent lawyer unless the lawyer and the NSW Commissioner have agreed on the terms of an instrument of consent. (5) Without limiting what may be included in the instrument of consent, the instrument is to contain an agreed statement of facts (including as to the grounds of complaint) and may contain undertakings on the part of the respondent lawyer. (6) The instrument of consent must be filed with the Tribunal. (7) Nothing in this section affects the procedures regarding the initiation of proceedings in the Tribunal where consent was given before the proceedings are initiated. (8) If consent was given before the proceedings are initiated, the proceedings are nevertheless to be initiated with respect to the complaint in the same way as if the consent had not yet been given. (9) The Tribunal is to be constituted in the same way as for the conduct of a hearing into the complaint. (10) In deciding whether to make orders pursuant to an instrument of consent, the Tribunal may make such inquiries of the parties as it thinks fit and may, despite any such consent, conduct or complete a hearing in relation to the complaint if it considers it to be in the public interest to do so.

During the period 1 July 2014 to 30 June 2017, the Respondent engaged in legal practice as the principal of Helen Powell Legal Pty Ltd. 6. As at 30 June 2017, the Respondent had not completed a Practice Management Course. 7. In the circumstances referred to in paragraphs 1 to 6 above, the Respondent: (a) contravened a condition of her Practising Certificate; and (b) failed to comply with her 23 June 2014 undertaking to the Society.

Factual background

We note firstly that the parties had reached an agreement on those factual matters which are contained in the Instrument of Consent. We also received into evidence on behalf of the applicant affidavits of A-M Foord (its solicitor), T M Gibson (Head of Licensing & Scheme), S H Coupland (director of FRMC Pty Ltd) and N J Carter (College of Law). The respondent tendered into evidence an affidavit and gave sworn evidence. Some additional factual material was received on a consent basis. We shall refer to relevant portions of this evidence in our reasons.
On 23 June 2014 the respondent completed a "Variation of a Practising Certificate to practice as a principal or solicitor on the record" form. In her application the respondent said that she wished to vary her existing practising certificate to enable her to practice as a sole practitioner from 1 July 2014 by establishing a new practice. She indicated that her practising certificate was currently subject to a condition that required her to complete a Practice Management Course. In so doing, her attention was drawn to the following notation: You will need to complete a Practice Management Course through the College of Law or FRMC Legal. In the Interim, you may provide the following undertaking: I undertake to complete the next applicable Practice Management course when there is a position available.
The respondent signed that undertaking where indicated on the form. At the end of the form she completed a Declaration in which she stated inter-alia that the contents of the application were true and correct.
A representative of the applicant wrote to the respondent on 2 February 2016 stating that it had not yet received confirmation of completion of the approved Practice Management Course in compliance with her undertaking. She was asked to forward confirmation of having done so, or if she had not done so she was asked to contact one of the two nominated course providers and forward confirmation of her enrolment within 14 days. Finally, the letter said; "Please note that a breach of practising certificate conditions and undertakings is a matter for referral to the Society's Professional Standards Department." The respondent did not reply to this letter.
A further reminder letter was forwarded by the applicant to the respondent on 5 October 2016. The respondent did not reply to this letter until 8 November 2016 when she left a voicemail message for a Registry Compliance Officer of the applicant and forwarded an email communication to that officer later that day. In that communication the respondent asked that no action be taken against her and conceded that she had not completed the required course. She said; ….it is not for lack of commitment or desire. Instead this tardiness arises from a lack of finances. The cost of the course is more than the profit I have made for the last 6 months. My practice is extremely small and exclusively provides Wills, Enduring guardianships and Powers of Attorney the clients of one accounting firm as a service to that firm. If they do not have anyone to refer them I do not (sic) complete any legal work this work is drafted by using up-to-date LEAP precedents. This subscription to LEAP has used all the profits so far.
Later that day, after receiving a notification that the matter had been referred to "Professional Standards" which would require an appropriate explanation, the respondent again communicated by email with the Registry Compliance Officer saying; "It may also be relevant that I have no employees and will not be running any matters using a trust account. My firm is really just a service to the accountant's clients."
During her evidence the respondent explained that at the time that she signed the undertaking she did not appreciate that the two providers of the course that was relevant to her only provided face-to-face courses of 3 days' duration, located only in Sydney. Furthermore, they cost around $2000. The respondent lives a considerable distance from Sydney which would necessitate the expense of accommodation as well as the course fee, and she said that she was facing a total cost of the order of $3000.
Apart from the expense of undertaking the course, the respondent said that she had 5 children and at the time one of the children was suffering from an eating disorder.
In her evidence the respondent told us that once she realised that she had committed to undertake a course which was beyond her financial capabilities and for which she had no time to attend because of her family circumstances she became anxious and distressed and unable to confront the problem. She now recognises that in hindsight she would have been better off confronting the problem at the time and dealing with it in the best way possible.
We approach these proceedings with some sympathy for the respondent's circumstances. It is common knowledge that there are many practitioners who live in large regional areas some inconvenient travelling distance from Sydney, and that the cost of attending a three-day course including travelling and accommodation costs as well as what appears to be a substantial fee for such a course may create an inappropriate impediment. Furthermore, it is common knowledge that there are many educational and other courses which are available online through prestigious tertiary institutions, and perhaps some or part of the courses required by the applicant could be undertaken in this way.
Of course, whilst there must be some sympathy for the respondent's circumstances as we have outlined them, when faced with the difficulty in undertaking the course, there are three matters about which legitimate criticism can be made of the respondent. Firstly, she should not have signed the undertaking given to the applicant in connection with her application to vary her practising certificate without having first checked what was required of her in giving that undertaking, and secondly she should have advised the applicant as soon as she was aware of her inability to comply with her undertaking, as she now concedes. Thirdly, by the same conduct the respondent breached a condition of her then practising certificate.
The respondent provided additional background information in her affidavit and in her oral evidence. She had been employed as a solicitor until 6 June 2014. In 2010 she had sustained serious injuries in a motor vehicle accident and thereafter had difficulty in working full-time as a solicitor. Her inability to work full-time brought about the termination of her employment. In anticipation of this occurring the respondent had determined to become a teacher and enrolled in a postgraduate course at the University of Newcastle for this purpose, which was a 15 minute drive from her home. Whilst pursuing those studies, which she eventually completed, the respondent decided to enter practice on her own providing a limited range of services for clients of her husband's accounting firm whom he referred to her. These were confined to drafting simple wills, powers of attorney and enduring guardian appointments, utilising a set of precedents provided by LEAP. The establishment of this practice was the catalyst for the application made to the applicant with the accompanying undertaking, which is at the heart of these proceedings. Whilst the respondent did not provide any details of her income from this limited practice, the general tenor of her evidence is that her income was less than the cost of subscribing to the LEAP precedent service.

Is the respondent guilty of professional misconduct?

The Instrument of Consent was formulated on the basis that the respondent conceded that she was guilty of professional misconduct. Misconduct of this kind is defined in the Uniform Law by reference firstly to the definition of unsatisfactory professional conduct. The relevant provisions of the Uniform Law are set out below; 296 Unsatisfactory professional conduct For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. 297 Professional misconduct (1) For the purposes of this Law, professional misconduct includes - (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) (remainder of section omitted)
In determining whether to make the orders sought by the parties we must consider, for ourselves, whether it is appropriate to characterise the admitted misconduct of the respondent as professional misconduct. We observe firstly, as is well known, that the legal profession is an honourable one and legal practitioners are expected by the community, by fellow practitioners, and by the relevant regulatory authorities to behave honourably always. 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.
In addition, 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 also, per se, be a matter to be taken seriously.
We assess the misconduct of the respondent as falling short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. Furthermore, we regard that misconduct as constituting a substantial failure to maintain a reasonable standard of competence and diligence. In the circumstances we agree that the appropriate characterisation of the respondent's misconduct is professional misconduct as defined in the Uniform Law, and we so find.

Protective orders

It is next necessary to determine what appropriate orders should be made. The range of orders is set out in the Uniform Law in ss 299 and 302. It is not necessary that we set out these provisions.
We observe, as is well known, that the purpose of the orders that may be made consequent upon a finding of professional misconduct is to protect the public from inappropriate conduct by legal practitioners and the enhancement of the integrity and reputation of the legal profession within the community. An important consideration is the deterrent effect that the orders will have, not only upon the legal practitioner who is the respondent to these proceedings, but upon the legal profession generally (lest they be tempted to fall into the same errors of judgement as befell the respondent).
In considering this matter we have regard to the views expressed by the Legal Services Commissioner in his letter of 5 February 2019 addressed to the applicant's solicitor. These views reflect those held by the person charged with the overall responsibility of regulation of the legal profession in New South Wales - particularly in initiating and dealing with complaints concerning its members.
The Commissioner considered the protective nature of the orders that are to be made and particularly "the deterrent and educative effect that the proposed consent orders will have upon the understanding in the profession generally and amongst the public of the standards of behaviour required of lawyers…." and concluded that the orders proposed in the Instrument of Consent would appropriately reflect disapproval of the respondent's conduct.
In so concluding, the Commissioner noted several mitigating factors including that the conduct was an "isolated departure" from acceptable standards and not a repetitive course of conduct because it had occurred on one occasion only. We acknowledge that essentially, the respondent's misconduct consisted in giving an undertaking and not complying with it. However, we are concerned that her breach persisted over a lengthy period she continued to practice in breach of a condition on her practising certificate. Accordingly, we would view this aspect of the matter in a more serious light.
However, we agree with the Commissioner that mitigating factors include: the respondent's admission of the seriousness and gravity of her misconduct; she is remorseful for her conduct and has expressed contrition and apologised; she cooperated with the applicant in its investigations and made "timely and frank admissions" regarding her misconduct; and she participated in the Instrument of Consent that included all relevant admissions. The Commissioner also highlighted her personal circumstances.
If it were not for the aggravating factor, which we have referred to above, we would have been inclined to have made the orders set out in the Instrument of Consent. However, we are satisfied that it is also appropriate to order the respondent pay a fine of $1000 in addition to the orders proposed by the parties.

Costs

Schedule 5 cl 23 (1) of the Civil and Administrative Decisions Tribunal Act 2013 (No 2) relevantly provides that the Tribunal must make orders requiring a respondent lawyer whom it has found to have engaged in professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant) unless the Tribunal is satisfied that exceptional circumstances exist.
We have found the respondent to have engaged in professional misconduct and there is no evidence of exceptional circumstances before us. It is therefore appropriate that we make a costs order against the respondent.

Orders

Consequent upon the finding of professional misconduct which we have made, the following are the orders made by us in these proceedings; 1. The respondent is reprimanded 2. The respondent is to pay a fine of $1000 3. The respondent is to pay the costs of the applicant as assessed in default of agreement

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 February 2019

At a glance

Court

Decision date

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Judgment (8 paragraphs)

Parties

Cited By (10)