Council of the New South Wales Bar Association v Lott

NCAT Occupational|2017-11-29

REASONS FOR DECISION

On 18 December 2015 the Council of the New South Wales Bar Association (the applicant) filed in the Tribunal an application for disciplinary findings and orders against Patrick Bernard Lott (the respondent).
The application sought 6 orders 2 of which were stated as follows: (1) Findings that the respondent has been guilty of professional misconduct within the meaning of s 497 of the Legal Profession Act 2004 with respect to the conduct contained in each of the Grounds for Application below. Further, or in the alternative to 1, (2) Findings that the respondent has been guilty of unsatisfactory professional conduct within the meaning of s 496 of the Legal Profession Act 2004 with respect to the conduct contained in each of the Grounds for Application below.
There were 6 grounds in the application and each alleged different conduct by the respondent and that by that conduct the respondent: (a) Failed to reach a standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner, that failure being substantial; and (b) Failed in his duty to the court; and (c) Failed in his duty to the client.
By reason of the operation of cl. 26, Sch. 4, Div.7, Legal Profession Uniform Law (NSW) (the Uniform Law), a complaint made but not disposed of prior to the commencement date is to continue to be dealt with under the old law, relevantly the Legal Profession Act 2004 (NSW) (the Act). The conduct of the respondent of which complaint was made occurred in May 2014. The complaint was made in June 2014. The commencement date of the Uniform Law was, for present purposes, 1 July 2015. Both parties agreed that the complaint was to continue to be dealt with under the Act.

No case to answer submission

After the close of the applicant's case counsel for the respondent made a submission that there was no case to answer.
A discussion followed as to whether the respondent should be obliged to elect to call no evidence before the Tribunal would rule on a no case submission. The position taken by the applicant was that it was a matter for the Tribunal as to whether the respondent should be required to elect. The Tribunal ruled on 28 November 2017 that it would allow the respondent to make the submission without being required to make an election not to give evidence.
The no case submissions were completed on 29 November. The Tribunal reserved its decision on the no case submissions and adjourned the further hearing of the application to 21 and 22 March 2018.
On 18 December 2017 the solicitors for the applicant, with the approval of the solicitor for the respondent wrote to the Registrar of the Tribunal stating that the parties were in discussions with a view to narrowing the issues between them and that the parties had agreed that it would be appropriate for the Tribunal members to defer their deliberating on the "interlocutory matter" whilst those discussions were continuing.
After an inquiry by the Tribunal, on 23 January 2018 the parties wrote to the Registrar stating that the parties were continuing their discussions and suggested it might be appropriate for the Tribunal members to resume their deliberations on the preliminary issue with a view to providing a decision in due course.

Instrument of consent

On 14 March 2017, the applicant filed in the Tribunal registry, an instrument of consent under s 564 of the Act. The instrument was signed by the solicitor for the applicant, the solicitor for the respondent and by the Legal Services Commissioner.
It was clear from the instrument that for the time being at least, the no case submission was not being pursued by the respondent.
The instrument contained the following consent: The parties consent to the Tribunal making findings and orders and, without completing a hearing, as follows: 1. An order that Grounds 1 to 4 of the Application for Disciplinary Findings and Orders filed on 18 December 2015 ("the Application") be dismissed. 2. In respect of Ground 5 a finding that the respondent has engaged in unsatisfactory professional conduct in that the respondent breached an undertaking that he volunteered to the Federal Circuit Court of Australia, and in so doing: (a) Failed to reach a standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner; (b) Failed in his duty to the court; and (c) Failed in his duty to the client. 3. In respect of Ground 6 a finding that the respondent has engaged in unsatisfactory professional conduct in that the respondent made false statements to the Federal Circuit Court of Australia as to when he was briefed to appear for his client, and in so doing failed to reach a standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. 4. An order reprimanding the respondent in respect of each finding of unsatisfactory professional conduct. 5. An order the respondent pay 50% of the applicant's costs of the proceedings as agreed or assessed.
The instrument also contained the following statement of agreed facts: 1. Without prejudice to their respective rights to adduce evidence in the event that the Tribunal declines to make the findings and orders set out in this Instrument of Consent the parties agree to the following facts. 2. The respondent was admitted to practice in New South Wales on 4 December 2009. The respondent was issued a practising certificate in Queensland on 23 August 2010. The respondent was issued with a practising certificate as a barrister in New South Wales on 21 October 2011. The respondent currently holds an unrestricted practising certificate. 3. On 1 May 2014 the respondent was introduced to, and conferred with, a person ("the Husband") who was the applicant in family law proceedings being conducted in the Federal Circuit Court of Australia, reference, SYC5680 of 2002, which ultimately bore the pseudonym Zandas & Zandas ("the Proceedings"). At that time the Proceedings were listed for a final hearing from 28 to 30 May 2014 inclusive. 4. On 1 May 2014 the respondent asked a solicitor known to him, Mr Zubin Hiramanek ("Mr Hiramanek") whether he would act as solicitor for the Husband in the Proceedings. Mr Hiramanek agreed to do so. 5. The Husband had previously retained other solicitors, whose retainer he terminated on 2 May 2014. Those solicitors would not then release their file to the Husband as there were unpaid fees and they claimed a lien over the file. 6. On 6 May 2014 the respondent and Mr Hiramanek had a conference with the Husband. 7. On 13 May 2014 the respondent gave a fee disclosure and costs agreement to Mr Hiramanek. 8. In the week leading up to 16 May 2014 the respondent did work with respect to the matter, including settling an affidavit of the brother of the Husband. 9. On Thursday, 22 May 2014 Mr Hiramanek forwarded to the respondent by email certain material including an updated financial statement, an affidavit sworn by the respondent in the proceedings ("the Wife") and an amended response. Those documents had been filed by the Wife in the proceedings on 21 May 2014. 10. On or about Thursday, 22 May 2014 the Husband's former solicitors released their file. That file was delivered to the respondent at his home by Ms Lyons at about 7:30 pm on Thursday 22 May 2014. 11. The matter was called on for hearing on Wednesday, 28 May 2014 before Judge Scarlett sitting at Sydney in the Federal Circuit Court of Australia. The Wife was represented by counsel. The Husband was represented by the respondent. Judge Scarlett informed the parties that the proposed third day of the hearing (Friday 30 May 2014) was no longer available. 12. In respect of ground 5 of the Application for Disciplinary Findings and Orders filed on 18 December 2015: (a) At the opening of proceedings on 28 May 2014 the respondent's opponent, Ms Beck, handed up a case outline to the Court. The respondent had not done so. (b) Between 12.03 pm and 12.27 pm the following exchange occurred: His Honour: it won't be the first time that I've received a case outline at the end of the first day of the hearing. You are going to complete it at some stage, are you, Mr Lott? Mr Lott: Your Honour, I can give you an undertaking that I will have that to you by the start of court tomorrow. (c) At the opening of proceedings on 29 May 2014 the respondent had not prepared a case outline. (d) During the morning session of court on 29 May 2014, the following exchange occurred: His Honour: I've received a case outline from your learned friend. Mr Lott: Yes. His Honour: I haven't received one from you. Mr Lott: No. No. I did give your Honour an undertaking which is why I was going to ask for a bit more time…. 13. In respect of ground 6 of the application for Disciplinary Findings and Orders filed on 18 December 2015: (a) in the course of the proceedings on 28 May 2014, the respondent made the following statements: (i) Statement 1: And that is indeed the case that… the complete file from Dimocks only arrived two days - the Friday. (ii) Statement 2: Mr Hiramanek and I are both working as hard as we can to get up to speed on the practitioner's folder that was delivered to us at 5 pm on Friday. (b) In the course of the proceedings on 29 May 2014, the respondent made the following statement: (i) Statement 3: I am in the most difficult position I've been in any matter. I've accepted this brief on the Friday. The solicitors filed a notice of appearance, your Honour can see, 19th of this month. Previous legal representatives wouldn't release the material until the Friday when the bill was paid. (c) Statements 1 and 2 were false in that the file from the former solicitors had not arrived on the previous Friday, 23 May 2014 but rather at 7.30 pm on Thursday, 22 May 2014. (d) Statement 3 was false in that the respondent had been involved since 1 May 2014 and had been formally retained at least on 13 May 2014. 14. In making statements 1, 2 and 3, the respondent did not exercise the necessary degree of diligence in ensuring his statements to the Court reflected the circumstances of his retainer and the supply to him of documents relevant to the retainer. 15. The respondent has not previously been the subject of any disciplinary findings.

Hearing on 21 March 2018

At the hearing on 21 March 2018, counsel for the respondent informed the Tribunal that: 1. The agreed facts had been negotiated between the parties. 2. The parties had agreed that the proposed orders were within the permissible range and referred us to Council of the New South Wales Bar Association v Breeze [2015] NSWCATOD 152 at [8], [17] - [24]. 3. The applicant accepted that grounds 1 - 4 should be dismissed. 4. It was not proposed that the respondent would give further evidence. (In fact, because of the no case submission, the respondent had not given any evidence to the Tribunal.)

Section 564 Legal Profession Act 2004

Section 564 (1) provides that the Tribunal may, with the consent of the Australian legal practitioner concerned contained in a written instrument, make orders under Part 4.8 of the Act without conducting or completing a hearing in relation to the complaint. However S 564 (10) of the Act provides as follows: In deciding whether to make orders under this Part 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.

The grounds in the application

As we mentioned there were 6 grounds in the application. Each followed a similar drafting pattern. Each alleged a different breach of duty which was immediately followed by an allegation that in breaching the duty the respondent committed three identical failures. The details of these failures were given and these details were followed by the relevant particulars for each ground. We will set out here the wording for grounds 1, 5 and 6. Ground 1 7. The respondent failed to prepare adequately for a matter being heard by the Federal Circuit Court of Australia, and in so doing: (a) Failed to reach a standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner, that failure being substantial; and (b) Failed in his duty to the court; and (c) Failed in his duty to the client. In that: 8. When the file was not made available to him, the respondent did not make other arrangements to obtain a copy of the filed pleadings, affidavits and other court documents, or return the brief. 9. When the file was available, the respondent did not allocate sufficient time to reading it in preparing for hearing. 10. The respondent relied upon correspondence and his client's instructions to attempt to ascertain the issues for hearing, rather than the filed pleadings, affidavits and other court documents. 11. The respondent did not ensure that his client filed affidavit evidence for a final hearing and an updated financial statement. Particulars 12. At all material times the respondent was and is a lawyer and an Australian legal practitioner within the meaning of s.6 of the Legal Profession Act 2004. 13. The respondent was admitted to practice in New South Wales on 4 December 2009. The respondent was issued a practising certificate in Queensland on 23 August 2010. The respondent was issued with a practising certificate as a barrister in New South Wales on 21 October 2011. The respondent currently holds an unrestricted practising certificate, not subject to conditions. Receiving the brief 14. The respondent was contacted by Tracey Lyons on 30 April 2014 and asked whether he was able to assist with some family law proceedings. 15. On 1 May 2014 the respondent had a conference with Tracey Lyons and with his client (" Zandas"), who was the applicant husband in family law proceedings brought in the Federal Circuit Court. Those proceedings were listed for final hearing on 28 and 29 May 2014. 16. On 2 May 2014 Zandas terminated the retainer of his existing solicitors by email. Those solicitors retained their file as professional fees remained unpaid. 17. At some point between 1 and 6 May 2014 the respondent asked a solicitor known to him, Mr Zubin Hiramanek, whether he was able to act for Zandas. Hiramanek agreed to act. 18. On 6 May 2014 the applicant had a conference with Hiramanek and Zandas. The retainer 19. On 13 May 2014 the respondent entered a costs agreement with respect to the matter. 20. On or about 13 May 2014 the respondent attempted to contact another barrister whom he had been informed was acting for Zandas' wife, who was the respondent in the family law proceedings. 21. On 16 May 2014 the respondent settled an affidavit of the brother of Zandas. When he did so he had not seen any of the brief. 22. At some point before 22 May 2014 Zandas paid his outstanding account with his prior lawyers. His file was made available to him on that date. Receipt of the brief and preparation 23. At approximately 7:30 pm on Thursday, 22 May 2014 a brief consisting of the former solicitor's was delivered to the respondent at his home. 24. Prior to that time, the respondent had not made any efforts to inspect the Court file or otherwise make any arrangements to view any of the pleadings or affidavits filed in the family court proceedings. 25. On 23 May 2014 the former solicitors for Zandas filed a notice of withdrawal. 26. The respondent commenced his preparation for the hearing after 4 pm on 27 May 2014. 27. Prior to the hearing of the matter on 28 and 29 May 2014 the respondent had not: (a) Advised that Zandas prepare a further affidavit; (b) Advised that Zandas prepare an updated financial statement; (c) Prepared a case outline; (d) Apprehended that there were parenting orders in issue as well as property orders; (e) Apprehended that there was a dispute over a loan made by Zandas' brother to either a company operated by Zandas or to Zandas personally; (f) Attempted to return or pass the brief, or to make a timely application for the vacation of the fixed hearing dates. Ground 5 64. The respondent breached an undertaking that he gave to the Federal Circuit Court of Australia, and in so doing: (a) Failed to reach a standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner, that failure being substantial; and (b) Failed in his duty to the court; and (c) Failed in his duty to the client. In that: 65. The respondent gave an undertaking to the Federal Circuit Court of Australia on Wednesday, 28 May 2014 that he would have a case outline to Judge Scarlett by the start of court on the following day. 66. The respondent did not provide a case outline to Judge Scarlett on 29 May 2014. Particulars 67. At the outset of the hearing on 28 May 2014 counsel for the wife had prepared and handed up a case outline annexing a list of documents and a minute of the proposed orders. The respondent had not done so. 68. Between 12 noon and about 12:30 pm on 28 May 2014, the first day of the hearing, the respondent gave an undertaking to the Court that he would have an outline at the start of court on the following day. Judge Scarlett warned the respondent You know I hold people to undertakings. 69. The respondent did not prepare a case outline for the Court prior to the commencement of business on 29 May 2014 or at any other time. Between 12:30 pm and 3 pm the question of the breached undertaking was raised, Judge Scarlett asking: did I or did I not speak to you about the advisability of giving undertakings? Ground 6 70. The respondent made false or misleading statements to the Federal Circuit Court of Australia as to when he was briefed to appear for his client, and in so doing: (a) Failed to reach a standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner, that failure being substantial; and (b) Failed in his duty to the court; and (c) Failed in his duty to the client. In that: 71. On 28 May 2014 the respondent stated to the Court that: (a) And that is indeed the case that… the complete file from Dimocks only arrived two days - the Friday (Statement 1) (b) Mr Hiramanek and I are both working as hard as we can to get up to speed on the practitioner's folder that was delivered to us at 5 pm on Friday (Statement 2) 72. On 29 May 2014 the respondent stated to the Court that: (a) … those legal representatives at the time were changed last week. I've accepted the matter, so I accept all the conduct… (Statement 3) (b) Between Friday and yesterday, your Honour, a great deal of catching up and a great deal of contemplation as to whether the matter was ready (Statement 4) (c) Well I've only been in this matter since Friday… I've aged considerably since Monday morning too, your Honour, and certainly sleepless nights (Statement 5) (d) I am in the most difficult position I've been in any matter. I've accepted this brief on the Friday. The solicitors filed a notice of appearance, your Honour can see, 19th of this month. Previous legal representatives wouldn't release the material until the Friday when the bill was paid. (Statement 6) (e) Now, your Honour might be reluctant to grant that leave, but I flagged it with your Honour, because this is getting above and beyond what I was first informed on Friday afternoon it would be. I've - I have done work for associates of the applicant in the past and I accepted it on the basis that all the ducks would be in a row, or very close to it, clearly they are not. (Statement 7). 73. To the extent that each of those statements suggests that the respondent was first briefed on Friday, 23 May 2014 they are false and misleading.

Grounds 2, 3 and 4

Ground 2 alleged that the respondent failed to adequately present his client's case to the Federal Circuit Court of Australia.
Ground 3 alleged that the respondent failed to understand the issues in his client's case before the Federal Circuit Court of Australia.
Ground 4 alleged that the respondent displayed a general lack of competence and diligence.

Section 564 orders

The approach that the Tribunal should adopt when dealing with proposals for consent orders under s 564 of the Act has been given consideration by the Tribunal in a number of cases, including Council of the New South Wales Bar Association v Breeze [2015] NSWCATOD 152. In that case the Tribunal was of the view that the approach of the predecessor to this Tribunal in Council of the New South Bar Association v Butland [2009] NSWADT 177 remains applicable (see Breeze at [20]).
In Butland the Tribunal made the following statements: 29. Section 564 (1) and (10) of the Legal Profession Act makes plain that the Tribunal has a discretion whether or not to make orders consented to in an instrument of consent under that section. The Tribunal does not act, nor should it be seen, as merely a "rubber stamp" ….. Nonetheless, the consents of the parties and the Legal Services Commissioner are matters that deserve significant weight. 30. These circumstances are similar to, and some guidance can be derived from, cases where courts exercising regulatory or disciplinary powers are presented with joint submissions by the parties (often including the relevant regulator) as to the appropriate civil penalties and consent orders which they request the Court to make.… 33. If the necessary adjustments to these principles are made to take into account the express statutory regime under s 564 of the Legal Profession Act and the particular nature of the disciplinary powers being exercised by the Tribunal, we believe they provide useful guidance as to the exercise of the Tribunal's discretion in cases such as the present.
In Breeze the Tribunal not only considered the question whether the proposed consent orders were within the permissible range, but also, despite their conclusion that they were within the permissible range, whether there were any public interest factors that would cause the Tribunal to conduct and complete a hearing - see [24]. In our view there are no public interest factors in this case that would cause the Tribunal to conduct a complete hearing.

Unsatisfactory professional conduct

We are of the view that the conduct referred to in par 12 of the statement of agreed facts attached to the instrument of consent, means that the respondent engaged in unsatisfactory professional conduct within the meaning of s 496 of the Act. We will therefore make a finding in respect of ground 5 that the respondent has engaged in unsatisfactory professional conduct in that the respondent breached an undertaking that he volunteered to the Federal Circuit Court of Australia, and in so doing: 1. Failed to reach a standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner; 2. Failed in his duty to the court; and 3. Failed in his duty to the client.
We are of the view that the conduct referred to in par 13 of the statement of agreed facts attached to the instrument of consent means that the respondent engaged in unsatisfactory professional conduct within the meaning of s 496 of the Act. We will therefore make a finding in respect of ground 6 that the respondent has engaged in unsatisfactory professional conduct in that the respondent made false statements to the Federal Circuit Court of Australia as to when he was briefed to appear for his client, and in so doing failed to reach a standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

Ground 6

We note that par 73 of the application relates to ground 6 and alleges in effect that the statements referred to were false and misleading. We note that par 3 of the instrument of consent does not make any allegation that the respondent made misleading statements. Accordingly no finding in relation to ground 6 will be made by the Tribunal that the respondent made misleading statements.

Dismissal - grounds 1 - 4

At the hearing on 21 March 2018 the parties agreed that if there were to be orders for dismissals in relation to grounds 1 - 4, the more appropriate wording for the dismissals was that the Tribunal should dismiss so much of the applicant's application filed on 18 December 2015 as seeks orders in respect of grounds 1 - 4.

The statement of agreed facts

The statement of agreed facts appears to the Tribunal to be thorough and consistent. There is no reason for the Tribunal to doubt the accuracy of those agreed facts and the Tribunal will proceed on the basis that they are accurate.

Hearing on 21 March 2018 and exercise of discretion

Although it was clear from the consent recorded in the instrument of consent that the parties were agreed that the Tribunal should make an order that grounds 1 - 4 be dismissed, no submission was made during the hearing on 21 March 2018 as to why grounds 1 - 4 should be dismissed.
A possible view of the facts is that the late delivery of the brief resulted in the respondent's failure to prepare adequately (ground 1) and that his failure to prepare adequately contributed to his failure to adequately present his client's case (ground 2), his failure to understand the issues (ground 3) and his general lack of competence and diligence (ground 4).
Another possible view of the facts is that the respondent was unable to fulfil his undertaking to the court because of his failure to prepare adequately. We note that in par 12 of the respondent's written submissions presented on the no case application, it was said: "Both parties have proceeded on the basis that Grounds 1 to 4 are to be dealt with together because the Grounds deal with the same conduct and, in part, rely on the same particulars."
In our view the analyses carried out in pars 30 and 31 above provide a reason why grounds 1 - 4 should be dismissed. Those analyses show the connection between grounds 1 - 4 and the connection between grounds 1 and 5. The applicant might well have formed the view that in those circumstances it was appropriate to limit the findings of unsatisfactory professional conduct to grounds 5 and 6.
In our view what we have said in pars 30 - 32 above are possible reasons why the Tribunal should exercise its discretion under s 564 of the Act and make orders under Part 4.8 of the Act. When there is also taken into account (a) the fact that both parties have consented (see par 22 above) and (b) the proposed findings and reprimands, we are of the view that we should exercise our discretion and make the findings and orders sought.

Should the respondent be reprimanded

The main purpose served by disciplinary proceedings is protective. Disciplinary proceedings aim to protect members of the public from misconduct by lawyers (Lawyers Professional Responsibility - Dal Pont, 5th edition [23.20]). The protection of the public is not confined to the protection of the public against similar defaults by the lawyer in question. It extends also to the protection of the public against similar defaults by other lawyers and has, in this sense, the purpose of publicly marking the seriousness of what the instant lawyer has done (Law Society of New South Wales v Foreman [1994] NSW CA 69; (1994) 34 NSWLR 408 at 441 per Mahoney JA).
A reprimand is a serious matter. It marks the disgrace of a member of an honourable profession inherent in the misconduct (Solicitors Manual - The College of Law - Vol 1 [33,060, F/N3 and 4]).
In our view a reprimand should bring home to the respondent and other members of the profession the seriousness of giving an undertaking to a court and the care which must be taken by members of the profession as to the accuracy of statements made to judicial officers. We are therefore of the view that reprimands are appropriate in this case.

Orders

The Tribunal makes the following findings and orders: 1. So much of the applicant's application filed on 18 December 2015 as seeks orders in respect of grounds 1 - 4, is dismissed. 2. In respect of ground 5 in the applicant's application filed on 18 December 2015, a finding that the respondent has engaged in unsatisfactory professional conduct in that the respondent breached an undertaking that he volunteered to the Federal circuit Court of Australia, and in so doing: 1. Failed to reach a standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner; 2. Failed in his duty to the court; and 3. Failed in his duty to the client. 1. In respect of ground 6 in the applicant's application filed on 18 December 2015, a finding that the respondent has engaged in unsatisfactory professional conduct in that the respondent made false statements to the Federal Circuit Court of Australia as to when he was briefed to appear for his client, and in so doing failed to reach a standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. 2. An order reprimanding the respondent in respect of each finding of unsatisfactory professional conduct. 3. An order that the respondent pay 50% of the applicant's costs of the proceedings 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 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: 28 June 2018

Legal Profession Act 2004(NSW)

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Judgment (17 paragraphs)

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