Council of the New South Wales Bar Association v Nagle

The proposed consent orders

1. The Instrument of Consent contained a number of submissions in support of consent orders and a number of findings which were proposed by the parties. They are; Submissions and consent 34. The Applicant and the Respondent submit that findings and orders should be made by consent in accordance with the Instrument of Consent which contains this Agreed Statement of Facts. 35. The Respondent consents to the Tribunal making the findings and orders set out in the Instrument of Consent which contains this Agreed Statement of Facts without conducting or completing a hearing in relation to the complaints the subject of these proceedings. 36. In light of this Agreed Statement of Facts and the submissions by each of the parties, the Applicant and the Respondent submit that the public interest is adequately served by the reprimand and the undertaking and that the conduct of a hearing is not required. Respondent's ill health 37. The Respondent suffers from ischaemic heart disease, hypertension and hypercholesterolemia. Over the last two years he has been hospitalised on multiple occasions, most recently from 23 October 2018 to 26 October 2018 following a heart attack. 1. Ground 1 in the Application for Disciplinary Findings and Orders filed 7 September 2017 ("Application") [16] is dismissed. 2. In respect of Ground 2 in the Application [17] the Tribunal finds that the Respondent was guilty of unsatisfactory professional conduct in borrowing money from his client, The client, in April 2014, contrary to Rule 47 of the NSW Barristers' Rules 2014 ("Barristers' Rules") (as they then were). 3. Ground 3 of the Application [18] is dismissed. 4. In respect of Ground 4 in the Application [19] the Tribunal finds that the Respondent was guilty of unsatisfactory professional conduct in that in or about January 2014 the Respondent did not disclose to his client, the client, all the matters required to be disclosed under s.309 of the Legal Profession Act 2004, which applied at the time, in the case of a direct access retainer between a barrister and a client. 5. In respect of Ground 5 in the Application [20] the Tribunal finds that the Respondent was guilty of unsatisfactory professional conduct in stating in his letter dated 28 January 2014 to The client "…the Legal Profession Act requires me to enter into a 'fees agreement' with you in respect of all work to be done by me…" in circumstances where there was no such requirement under the Legal Profession Act 2004. 6. In respect of Ground 6 in the Application [21] the Tribunal finds that the Respondent was guilty of unsatisfactory professional conduct in that in or about 2014 the Respondent failed to provide a disclosure to his client, the client, of the matters required under Rule 24 of the Barristers' Rules in the circumstances of accepting a direct access brief from The client. 7. In respect of Ground 7 in the Application [22] the Tribunal finds that the Respondent was guilty of unsatisfactory professional conduct in that the Respondent proposed and purported to agree to a term of a fees agreement that would enable the Respondent to charge his client, the client, GST at a higher rate than could lawfully be imposed or recovered. 8. In respect of Ground 8 in the Application [23] the Tribunal finds that the Respondent was guilty of unsatisfactory professional conduct in that in or about November 2014 the Respondent made demands for payment of money from his client, the client, otherwise than in accordance with the statutory procedure for giving his client a bill. 9. In respect of Ground 9 in the Application [24] the Tribunal finds that the Respondent was guilty of unsatisfactory professional conduct in that by an email dated 18 November 2014 the Respondent communicated with (a named) Magistrate ex-parte without the knowledge of his client, the client, or the opponent and in that email falsely represented that his instructions had been withdrawn. 10. In respect of Ground 10 in the Application [25] the Tribunal finds that the Respondent was guilty of unsatisfactory professional conduct in that the Respondent communicated with (a named) Magistrate ex-parte by email sent on 18 November 2014 without the knowledge or consent of his client, the client, or the opponent, which email was in fact, and in terms, inappropriate. 11. In respect of Ground 11 in the Application [26] the Tribunal finds that the Respondent was guilty of unsatisfactory professional conduct in that in an email sent to (a named) Magistrate on 18 November 2014 and in open court on 19 November 2014 the Respondent made representations that were disparaging to his client, the client, and detrimental to the client's best interests. 12. Ground 12 in the Application [27] is dismissed. 13. Ground 13 in the Application [28] is dismissed. 14. Ground 14 in the Application [29] is dismissed. 15. In respect of Ground 15 in the Application [30] to [31] the Tribunal finds that the Respondent was guilty of unsatisfactory professional conduct in that in respect of the conduct found in respect of Grounds 2, 4, 5, 6, 7, 8, 9, 10 and 11 in the Application, the Respondent's conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. 16. In respect of the unsatisfactory professional conduct found in respect of Grounds 2, 4, 5, 6, 7, 8, 9, 10, 11 and 15 there be an order reprimanding the Respondent. 17. The Respondent undertakes to the Tribunal and to the Applicant that the Respondent will not at any time in the future do any of the following in any Australian jurisdiction or outside Australia: (a) apply to be admitted to practice as a legal practitioner, including as a barrister, solicitor/barrister or solicitor (or similar title); (b) seek or undertake employment or any other form of engagement, in any capacity, within any legal practice or by any legal practitioner including a barrister, solicitor/barrister or solicitor (or similar title); (c) seek or undertake employment or any other form of engagement with any person or entity in any role that is connected with the provision of legal services; (d) provide or offer to provide any person or entity with legal services or services connected with the provision of legal services. (e) represent that he is a legal practitioner, barrister, solicitor/barrister or solicitor (or similar title). 18. Note that the undertaking given by the Respondent in [17] above does not prevent the Respondent from teaching legal subjects at (a named) University or a similar institution. The Respondent undertakes to the Tribunal and to the Applicant that he will use best endeavours to ensure that any teaching institution with which he is associated does not represent that the Respondent is a legal practitioner, barrister, solicitor/barrister or solicitor (or similar title). 19. The Respondent is to pay the Applicant's costs as agreed or assessed. 20. The matter be listed on a date to be fixed for directions as to further proceedings in relation to the complainant's claim for compensation. 21. Order that the Respondent refrain from taking any action to enforce the fees agreement dated 28 January 2014 with the client. 22. Order that the Respondent refrain from making any claim against the client in respect of fees or disbursements or both arising out of or in connection with (the named matter involving the client).
2. As noted above the paragraph numbers referred to in the body of the Instrument of Consent are a reference to the corresponding paragraphs contained within the original Application filed in the Tribunal. We have not reproduced those paragraphs or the omitted parts of the Application because we have determined to make orders which reflect the consent position adopted by the parties, and it is not necessary that these matters be reproduced.

The approach of the Legal Services Commissioner and the applicant's submissions

1. There was tendered into evidence before us a letter from the Commissioner to the applicant's solicitor setting out his views concerning the proposed Instrument of Consent. Notwithstanding that the agreement of the Commissioner is no longer required under the Uniform Law, the Commissioner was prepared to express his views, and we for our part find them of assistance as representing the views of a person with statutory responsibility for enforcing appropriate professional standards of the legal profession in New South Wales.
2. In summary, the Commissioner supported the making of the findings and protective orders set out in the Instrument of Consent. In doing so he referred to a number of matters which, in large measure coincide with those contained within the applicant's written submissions. As we are in agreement with the approach contended for by the Commissioner and the reasons therefor it is not necessary that we set them out in any detail. In addition, in that we agree with and accept the submissions of the applicant, which are not opposed by the respondent, is also not necessary that we refer to them in any detail. They are sufficiently referred to in our reasons which follow.
3. We are comfortably satisfied that it is appropriate to make the findings with respect to each of the extant Grounds contained in the Instrument of Consent, and we so order.

Consideration

1. We firstly observe that the agreed statement of facts represents a compromise position between the parties. Although the respondent had earlier conceded a number of the factual matters contained in the Application and that he was guilty of unsatisfactory professional conduct with respect to those matters, there remained outstanding a number of factual issues which, if a compromise position had not been reached, would have occupied the Tribunal and the parties in a multi-day hearing, and would have required the deployment of resources. In that the parties been able to reach sensible agreement, and in that, as we apprehend it, the gravamen of the misconduct of the respondent may still be appropriately addressed, this provides an incentive to embrace the consent position of the parties, albeit that it is still necessary that we find it appropriate to do so.

Unsatisfactory professional conduct

1. Unsatisfactory professional conduct is defined in the Uniform Law by section 296. A more serious form of misconduct is professional misconduct which is defined in the same legislation, relevantly for our purposes in section 297(1)(a) of that Act. These provisions are in the following terms; 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)
2. As we have said, the respondent conceded that his admitted conduct constitutes unsatisfactory professional conduct, and the applicant asserted that his misconduct should be so characterised. We note for completeness that the Commissioner was of the same view.
3. It is only necessary to traverse the various factual matters contained within the Instrument of Consent to readily appreciate that the respondent, in the course of his practice as a legal practitioner, fell short of the standard of competency and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. We observe firstly that the Barristers' Rules are designed to reflect an appropriate standard of competency and diligence which a member of the public is entitled to expect of a reasonably competent lawyer. Furthermore, provisions of the relevant regulatory legislation are also designed to reflect an appropriate standard. In addition, as is well known, legal practitioners are compelled to conduct themselves appropriately in the course of representing clients in legal proceedings, and in refraining from communicating with judicial officers unless any opponent has been made aware of this.
4. In all the circumstances, it is clear that the conduct of the respondent as conceded by him constituted unsatisfactory professional conduct and we so find.

Professional misconduct

1. We are also required to consider whether the misconduct of the respondent might be characterised as professional misconduct for the purpose of the Uniform Law. In considering this matter we note that the misconduct of the respondent arose out of his dealings with one particular client only, although it extended to a number of dealings with this client as well as the respondent's behaviour before the Local Court. Overall, we agree with the Commissioner that the conduct "was not a prolonged repetitive course of conduct involving multiple clients." Although serious, we do not characterise the misconduct of the respondent as involving a consistent failure to attain the relevant standard or as being sufficiently substantial to warrant characterisation as professional misconduct. We note that this is the position taken also by the applicant.

Protective orders

1. It is next necessary to determine what protective orders should appropriately be made by reference to the finding of unsatisfactory professional conduct having regard to the respondent's circumstances. In making such a determination we acknowledge that the purpose of protective orders is primarily directed to the protection of the public and is not intended to be punitive, although it is not unusual for punitive consequences to be involved. We also acknowledge that protective orders are intended to provide a deterrent effect with respect to the particular legal practitioner, and, significantly, to create a deterrent effect for other legal practitioners, lest they might be tempted to engage in misconduct of the same or a similar kind. Finally, protective orders also play an important part in enhancing public confidence in the reputation and integrity of the legal profession.
2. In determining whether to make protective orders in the consent terms sought by the parties in the Instrument of Consent we have regard to a number of matters; 1. the respondent has co-operated fully with the applicant in its investigations of complaints giving rise to these proceedings; 2. the respondent conceded at an early stage that he was guilty of misconduct covering a number of the grounds contained in the Application as originally framed, and conceded that he was guilty of unsatisfactory professional conduct; 3. the respondent has acknowledged his misconduct in the admissions contained within the Instrument of Consent and has acknowledged that it is appropriate that protective orders be made; 4. the respondent has held a practising certificate predominantly as a barrister but also as a solicitor for a period totalling 29 years since his admission as a Barrister on 8 May 1981. During this period, he has been the subject of three prior adverse disciplinary findings which we do not apprehend to be significant; 5. there is evidence that the respondent suffers from a serious health issue namely ischaemic heart disease and hypertension and hypercholesterolmia which has necessitated a number of hospital admissions; 6. the respondent was a member of the NSW Legislative Assembly from 1988 to 2001 and as such has provided service to the State; 7. the respondent has undertaken not to practice as a legal practitioner or provide legal services in the future, which significantly reduces the need to make a substantial protective order; 8. the respondent has agreed to pay the costs of the applicant.
3. Having regard to all of these matters we conclude that it is appropriate to make protective orders in the consent terms proposed by the parties.

The client's claim for compensation

1. In its Application the applicant also sought the making of directions regarding a claim for compensation by the respondent's client. After discussion with the parties during the course of the hearing we propose to make directions to give the client an opportunity to make such a claim, for the respondent to respond to it, and if necessary, to fix a hearing.

Orders

1. Having regard to; 1. the finding which we have made that the respondent has engaged in unsatisfactory professional conduct and 2. the undertaking that the respondent has made to the Tribunal and to the Council of the New South Wales Bar Association that he will not at any time in the future do any of the following in any Australian jurisdiction or outside Australia: 1. apply to be admitted to practice as a legal practitioner, including as a barrister, solicitor/barrister or solicitor (or similar title); 2. seek or undertake employment or any other form of engagement, in any capacity, within any legal practice or by any legal practitioner including a barrister, solicitor/barrister or solicitor (or similar title); 3. seek or undertake employment or any other form of engagement with any person or entity in any role that is connected with the provision of legal services; 4. provide or offer to provide any person or entity with legal services or services connected with the provision of legal services. 5. represent that he is a legal practitioner, barrister, solicitor/barrister or solicitor (or similar title). (We note that the undertaking given by the respondent in (2) above does not prevent the respondent from teaching legal subjects at (a named) University or a similar institution. The respondent undertakes to the Tribunal and to the Council of the New South Wales Bar Association that he will use his best endeavours to ensure that any teaching institution with which he is associated does not represent that he is a legal practitioner, barrister, solicitor/barrister or solicitor (or similar title)).
2. We make the following orders 1. the respondent is reprimanded 2. the respondent is to pay the applicant's costs as agreed or assessed. 3. the respondent must refrain from taking any action to enforce the fees agreement dated 28 January 2014 with the client. 4. the respondent must refrain from making any claim against the client in respect of fees or disbursements or both arising out of or in connection with the proceedings in the Local Court which are the subject of these proceedings. 5. the Council of the New South Wales Bar Association is to cause within 14 days of this date to be forwarded by email or prepaid post a communication to the client of the respondent, being the client referred to in these proceedings. That communication must advise the client that the Tribunal requires that he inform the Registrar of the Tribunal in writing, with a copy to the respondent at an address nominated in the communication, within a period of 28 days from the date of the communication whether he wishes to make any claim for compensation against the respondent arising out of his engagement of the respondent to represent him in the proceedings before the Local Court, and the details of the amount of the claim and how it is calculated. If the client fails to so inform the Registrar that he wishes to make a claim for compensation and the manner in which the claim is formulated within the time so fixed, or informs the Registrar earlier that he does not wish to make any such claim, the balance of these proceedings will thereby be dismissed administratively. 6. if a claim for compensation is formulated by the client, the respondent is directed to file and serve a reply to that claim within 21 days of receipt, in which event the Tribunal will conduct a Directions Hearing either by way of a formal hearing or a telephone hearing, in its discretion, to fix a timetable for the hearing of the claim for compensation.

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: 19 February 2019