Solicitors:
L Pierotti (Applicant)
L Mutson (Legal Services Commission)
DLA Piper (Respondent)
File Number(s): 1520079
[2]
Reasons for decision
These proceedings instituted by the Council of the Law Society of New South Wales were commenced by application filed on 22 April 2015. The application sought a finding of professional misconduct against Paul Bernard Cummins and consequential orders.
The grounds alleged to support such a finding were:
"Paul Bernard Cummins is guilty of professional misconduct in that he acted contrary to the conditions of his practising certificate in relation to each of the following instances:
1. At 1.58pm on 15 August 2014 the solicitor forwarded an email [from his email address which was stated] to Ms Petrina Tinslay therein describing himself as the solicitor acting for Ann Marie Cummins advising that 'my client has instructed' and signing the email Paul Cummins, solicitor BA LLB ANU.
2. On 6 September 2012 the solicitor forwarded a letter on a letterhead styled 'Paul Cummins, solicitor and barrister' addressed to the Salvation Army New South Wales Property Trust which was signed by him 'Paul Cummins, solicitor' and where in the body of the letter states the solicitor is 'instructed by Ralph Dougherty' and 'my client instructs me to advise you'.
3. On 11 October 2012 the solicitor signed a statement of liquidated claim and filed it in District Court Proceedings, number stated, therein describing himself as the legal representative for the plaintiff and the 'solicitor on record'."
Somewhat belatedly evidencing, if we might say so, a significant lack of insight into his conduct, the solicitor on 27 August 2015 filed a further amended reply which stated:
"I reply to each of the grounds set out in the application as follows:
Grounds: The respondent admits that he acted contrary to the conditions of his practising certificate in relation to each of the three instances referred to in the grounds.
Particulars: Respondents admits each of the allegations in the particulars."
The solicitor was admitted to practice on 13 March 1970. On 14 April 1983 his name was removed from the role of solicitors for professional misconduct. He was readmitted by order of the Supreme Court on 8 March 1996. That readmission was subject to conditions and undertakings. As it happened the solicitor did not apply for a practising certificate until 23 November 2007. Such a certificate was granted to him subject to conditions and undertakings which, as we understand it, replicated the conditions and undertakings imposed and entered into upon his readmission. The conditions imposed upon his practising certificate were:
"The conditions and undertakings by both Mr Cummins and a prospective employer are in the following terms:
1. Mr Cummins right of practice will until further decision of the Council be limited to that of employee.
2. Mr Cummins be required to complete the practical legal training course or an equivalent thereof as may be authorised by the Council of the Law Society of New South Wales and prior to applying for the issuing of a practising certificate.
3. The right of Mr Cummins to be employed in a legal practice after being issued with a practising certificate be subject to undertakings being provided by both he and his employer to the following effect:
Undertakings by employer:
1. No mail authorised by Mr Cummins is to emanate from the office of the employer without being personally signed by the employer.
2. All files dealt with by Mr Cummins shall be reviewed by the employer at the conclusion of the matter or every month, whichever is the earlier, and a report provided to the society within three weeks to the effect that such review has been conducted and advising as to whether there are any matters raised in that review which necessitates adverse comment by the employer.
Undertakings by Cummins:
1. He shall when having prepared any correspondence in relation to his employment pass such correspondence to his employer for approval and his employer's signature.
2. He shall make available to his employer as required, or at least on a monthly basis, all files to which he has attended.
3. He shall receive no monies other than salary or wages in the course of his employment, whether they be trust monies or otherwise.
4. Upon ceasing employment with any employer Mr Cummins is to notify the society within ten days of the date of ceasing such employment.
5. Prior to commencement of employment with any practitioner Mr Cummins is to advise the employer of his name having previously been removed from the role of solicitors."
Thereafter the solicitor each year up to 2014/2015 year applied to renew renewed his practising certificate and on each occasion one was issued to him containing the same conditions and undertakings which we have related. There is no evidence before us as to any application by the solicitor to have the conditions of his practising certificate removed or varied.
The solicitor filed several unverified statements in the tribunal which do not constitute evidence and which we have found unnecessary to consider, but on 1 September 2015 he swore and filed an affidavit which reads:
"1. I am the respondent.
2. I admit that I acted in breach of the conditions of my practising certificate as alleged in the application and greatly regret that I did so.
3. While I do not seek to justify my actions I wish to provide some explanation of the circumstances in which I engaged in the conduct.
4. With respect to the email I sent on 15 August 2014, ground 1 of the application, I had formed the view that Ms Petrina Tinslay to whom the email was addressed has treated my daughter, Ann Marie, badly and had failed unjustifiably to pay monies due to her. I acted emotionally and impulsively in an attempt to assist and protect my daughter. I acknowledge that whatever the merits or otherwise of my views they did not in any way justify my sending of the email in breach of the conditions of my practising certificate.
5. In the case of the letter forwarded on 6 September 2012, ground 2 of the application, the basis for the claim by Dr Dougherty referred to in the letter was child abuse, which Dr Dougherty is alleged to have suffered in the period between 1940 and 1950 when he lived at the Salvation Army Gill Memorial Home for Boys at Goulburn. Child abuse is a matter on which I have strong views having myself been a victim of it. At the time the letter was written Dr Dougherty was in poor health and I felt strongly that I should help him. I realise that I acted emotionally and acknowledge that notwithstanding the merits or otherwise of the claims in the letter, I should not have sent the letter in that form.
6. With regard to ground 3 of the application, I signed the statement of claim on 11 October 2012 not realising that under the rules I was not entitled to do so. I became aware of my error shortly afterwards and immediately prepared an amended statement of claim with Dr Dougherty as the solicitor on the record. Dr Dougherty signed the amended statement of claim on 25 October and it was filed on 29 October 2012.
7. I am 73 years of age. I own a one-bedroom apartment in which I live at Dee Why subject to a mortgage of approximately $25,000. I live on the aged pension of $854 per fortnight which is entirely absorbed by my living expenses. Apart from my apartment my 2002 Toyota Echo car and household and personal effects I have no significant assets. My earnings from practising law during the last few years have been minimal, less than $2,500 per year, in the period 1 July 2012 to 30 June 2015.
8. Whilst my earnings for practising law have been and are likely to continue to be very modest nevertheless I value highly my right to practice, albeit subject to restrictions. If I am permitted to continue to have the right to practise subject to conditions, I will ensure that I strictly comply with those conditions."
When the matter was called on for hearing before us today, Mr L Pierotti appeared for the applicant council, Ms L Muston appeared for the Legal Services Commissioner and Mr G Taperell appeared for the solicitor. We were handed a document headed "Instrument of Consent" signed by Ms Anne-Marie Foord on behalf of the applicant, Mr John McKenzie, the Legal Services Commissioner, and by the solicitor. We were invited to make the orders set forth in the instrument and to find the solicitor guilty of professional misconduct. We are satisfied that the admitted facts do amount to professional misconduct and we so find. We also conclude that the misconduct is at the lower end of the scale and in our view will appropriately be met by the orders we were invited to make. Accordingly we make these orders:
1. The solicitor is reprimanded.
2. The solicitor at his own expense is to undertake within six months of the date of the orders made by the tribunal, and during which the solicitor holds a current practising certificate, the course known as Professional Responsibility, the course, as conducted by the College of Law and therein achieve a pass mark of not less than 50%, the pass mark:
1. The solicitor will within seven days of receipt of the result of the course provide to the manager of the Professional Standards Department of the Law Society of New South Wales, the manager, the original result notification from the provider of the course.
2. Should the solicitor fail to achieve the pass mark he shall complete any further course in legal ethics as approved by the manager of the Professional Standards Department until such time as he achieves the pass mark.
3. Should the solicitor fail to achieve the pass mark within the time period in 2 above, his practising certificate shall be suspended until such time as he achieves the pass mark.
1. The solicitor pay a fine in the sum of $2,000.
2. The solicitor pay the society's costs agreed at $2,000.
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: 22 October 2015