Law Society of New South Wales v Youssef

NCAT Occupational|2018-10-12|Before: Smart J

Introduction

Mouna Youssef was admitted to practice as a solicitor in 2012. In March 2015 she opened her own office as a sole practitioner and was soon very busy with a raft of client matters. As usually happens, a trust account investigator from the Law Society of New South Wales called on her towards the end of the first year of practice to carry out a first routine trust account inspection. Ms Youssef had some difficulties in doing the month end trust bank reconciliations and the trust investigator spent time providing her with guidance.
The investigator identified some outstanding trust accounting issues which needed to be addressed. There were a number of exchanges between the trust investigator and Ms Youssef seeking to ascertain progress so the investigator could complete his review. Problems arose in scheduling appointments largely because of Ms Youssef's busy practice and months later, the investigator was still seeking Ms Youssef's co-operation and chasing documents which she had been asked to provide.
This culminated in the trust investigator sending a notice under section 370 of the Legal Profession Uniform Law (NSW) No.16a to Ms Youssef on 17 June 2016 requesting access to the outstanding trust records and client files within seven days. That same day, Ms Youssef acknowledged receipt of the Notice and indicated she would have the materials ready within a few days. However, this did not happen. Ms Youssef was caught up in client, court and other commitments, and was also making arrangements to get external help with her trust accounting issues. While small amounts of material were provided to the Law Society at various times from February 2017 onwards, it was not until December 2017, some 18 months after the Notice was issued, that the last of the requested material was provided to the Law Society. In the meantime, the Professional Conduct Committee of the Law Society had resolved that Ms Youssef's conduct may amount to professional misconduct and that proceedings be initiated.
The main issue the tribunal must consider is whether Ms Youssef's conduct constitutes professional misconduct as the Law Society contends or whether it constitutes something less, for example unsatisfactory professional conduct, and what consequences flow from any finding on that issue.

Application

These proceedings were commenced on 27 March 2018 when the applicant filed an Application for Disciplinary Findings and Orders dated 26 March 2018. We will refer to the parties as the applicant (referring to the Law Society of New South Wales) and the respondent (referring to the solicitor, Ms Youssef).
The applicant sought the following orders: 1. That the respondent be reprimanded; 2. That the respondent pay the costs of the Society as agreed or assessed; 3. That the respondent be fined; 4. Any further or other orders the tribunal deems appropriate.
During the hearing the parties discussed an order requiring the respondent to undertake and successfully complete an ethics course. The applicant subsequently confirmed that it was seeking such an order and provided the tribunal with an agreed form of order.
The applicant sought a finding from the tribunal that the respondent is guilty of professional misconduct on the following grounds: 1. Failing, without reasonable excuse, to comply with a requirement under section 370 of the Legal Profession Uniform Law (NSW) No.16a. 2. Failing to assist an Investigator in an external investigation.
The Application brought by the applicant originally sought suspension of the respondent's practising certificate pending compliance with a Notice pursuant to section 370 of the Legal Profession Uniform Law (NSW) (the Uniform Law). The respondent has since complied, and the applicant no longer seeks her suspension.
The Application contained the following particulars of the grounds of complaint: 1. Mr Chandra Sivakumar (the Investigator), Trust Account Investigator, attended the respondent's practice on 11 January 2016 (the first visit) for the purpose of carrying out a trust account inspection. A number of matters arose which required the respondent to provide further material to the Investigator. 2. On 18 January 2016 the Investigator forwarded an email to the respondent therein outlining the outstanding trust account issues which had been identified on his attendance on the first visit. The Investigator required that the respondent produce further material. The respondent did not provide the further material required by the Investigator. 3. The Investigator forwarded to the respondent further emails on 22 March 2016, 1 April 2016 and 18 April 2016 seeking to ascertain the progress in addressing the issues highlighted during his first visit (including the production of the additional material). 4. Arrangements were made between the Investigator and the respondent for the Investigator to attend on 26 April 2016 (the second visit). The second visit was confirmed in an email from the respondent on 19 April 2016. 5. On the second visit the Investigator reviewed further records of the law practice. Some material remained outstanding. 6. By email dated 27 April 2016 the Investigator requested that he further attend on 4 May 2016 (the third visit) to review certain matters. In a subsequent telephone call the respondent informed the Investigator that she would not be able to attend the third visit because of work commitments. It was agreed that the third visit would be postponed to 16 May 2016. 7. On 15 May 2016 the respondent emailed the Investigator advising that she was then still in Melbourne and would not be able to return to Sydney until the latter part of the following week. 8. On 23 May 2016 arrangements were made for the Investigator to undertake the third visit on 31 May 2016. The respondent confirmed this arrangement by email dated 26 May 2016. 9. On 31 May 2016 the Investigator was to attend on the rescheduled third visit. Whilst travelling that day to the respondent's office he received an email from the respondent advising that, for various reasons, she was unable to attend on the Investigator and requested that the third visit be again rescheduled. 10. On 17 June 2016 the Investigator sent an email to the respondent. That email enclosed a Notice issued pursuant to Section 370 of the Legal Profession Uniform Law (the Notice). 11. The Notice required that the respondent provide to the Investigator, on or prior to 24 June 2016, certain documentation. 12. By email dated 17 June 2016 the respondent acknowledged receipt of the Notice. 13. By email dated 21 June 2016 the respondent informed the Investigator that she would be attending at the Law Society offices on 23 June 2016 and would then produce the required documentation. 14. The respondent did not attend the Law Society offices on 23 June 2016 nor did she inform the Investigator that she would not be attending that day. 15. By email dated 29 June 2016 the respondent informed the Investigator that she was in the process of having an accountant attend her offices to deal with her trust account. She further indicated that she would further contact the Investigator the following week. 16. Contrary to her advises of 29 June 2016 the respondent did not contact the Investigator as promised. 17. By email dated 4 July 2016 the Investigator reminded the respondent that she had not complied with the requirements of the Notice. 18. By email dated 5 July 2016 the respondent informed the Investigator that she would produce certain documents the following week. 19. The respondent did not attend on 11 July 2016 to produce the documents as promised in her email of 5 July 2016. 20. By email (12 noon) of 11 July 2016 the respondent informed the Investigator that she would be attending on her accountant the following morning and would attend the Society's offices thereafter. The respondent did not attend the Society as promised. 21. As at the date of the Investigator's report - 22 July 2016 - the respondent had not complied with the requirements of the Notice. 22. The respondent complied with the production of the requisite material by way of a series of communications, the last being on 22 December 2017.

Respondent's Reply

The respondent filed a Reply to Application for Disciplinary Findings and Orders (dated 17 April 2018) on 17 April 2018. The substance of the Reply is as follows:

Grounds 1. The respondent admits the whole of ground 1. 2. The respondent admits the whole of ground 2.

Particulars 1. The respondent admits the facts alleged in paragraph 1 of the particulars. 2. In answer to the facts alleged in paragraph 2 of the particulars, the respondent (a) admits that on 18 January 2016, the Investigator sent her an email outlining outstanding trust issues which had been identified and his attendance on the first visit; (b) says that the email noted that those outstanding matters needed to be addressed by her; (c) says that whilst the Investigator's email did not expressly, in such terms, require her to produce further material, that requirement was implicit in the context of the ongoing investigation; and (d) admits that she did not provide any of the further material required by the Investigator between 18 January 2016 and 23 March 2016. 3. In answer to the facts alleged in paragraph 3 of the particulars, the respondent: (a) admits that the Investigator sent an email to her on 22 March 2016 seeking to ascertain her progress in addressing the issues highlighted in his first visit and raised in his 18 January 2018 email; (b) says further that: (i) she emailed the Investigator on 23 March 2016 forwarding statements for the ANZ Trust Bank Account 1963-76E55 (namely the final statement for the account stating "Account Closed" with nil balance and statement number 4 as referred to in the 18 January 2016 email) pursuant to the request for information in paragraph 1 of the 18 January 2016 email; and (ii) the subject matter of the Investigator's emails to her dated 1 April 2016 and 18 April 2016 was not to enquire on her progress in addressing the issues highlighted in his first visit and raised in his 18 January 2018 (sic) email, but rather: 1. the 1 April 2016 email confirmed telephone call the Investigator had with her on the same date to arrange a meeting for 14 April 2016 at the respondent's law practice to review progress in addressing the matters identified in the 18 January 2016 email (on-site inspection) which on-site inspection took place on that agreed date and at the end of which further inspection was scheduled for 21 April 2016; 2. the 18 April 2016 email responded to an email from her of the same date seeking to reschedule the 21 April 2016 inspection to another date, and the Investigator proposing 26 April 2016 to which she agreed. 4. The respondent admits the facts alleged in paragraphs 4 to 8 of the particulars. 5. The respondent admits the facts alleged in paragraph 9 of the particulars save for the words "for various reasons" and says that she advised that the reason she was unable to attend on the Investigator was that she had been required, at the last minute, to take judgment in a matter listed to be handed down and for which she was the only available person who could attend. 6. The respondent admits the facts alleged in paragraphs 10 to 19 of the particulars. 7. The respondent admits the facts alleged in paragraph 20 of the particulars and says further that she emailed the investigator on 8 August 2016 seeking to provide further information to the Investigator in the following week but was informed by the Investigator that her failure to comply with the Notice had been referred to the Professional Standards Department of the Law Society. 8. The respondent admits the facts alleged in paragraph 21 of the particulars. 9. The respondent admits the facts alleged in paragraph 22 of the particulars and further says that she provided the requested information in a series of communications commencing in or around February 2017.

In her Reply as filed, the respondent conceded that her conduct amounted to professional misconduct. On questioning by the tribunal, consistent with the evidence filed by her subsequent to the Reply, the respondent withdrew that admission.

Applicant's Evidence

The applicant relied upon the following evidence: 1. Affidavit of Anne-Marie Foord sworn 26 March 2018 (Exhibit A) 2. Affidavit of Chandrasekaran Sivakumar sworn 26 March 2018 (Exhibit B)
There was no objection to the tender of either of these affidavits and the deponents were not required for cross-examination.

Respondent's Evidence

The respondent relied upon: 1. her Affidavit affirmed on 29 May 2018 (together with exhibit MY1) (Exhibit 1) 2. her Further Supplementary Affidavit affirmed on 2 July 2018 (Exhibit 2). 3. She also relied upon the following evidence: 4. Affidavit of Daniel Petrushnko sworn on 28 June 2018 (Exhibit 3) 5. Affidavit of Jehane Ghabrial sworn on 2 July 2018 (Exhibit 4)
There was no objection to the tender of those four affidavits and the deponents of Exhibits 3 and 4 were not required for cross-examination. The respondent was required for cross-examination and was subsequently cross-examined.
The respondent also relied on her affidavit affirmed on 10 September 2018 (together with annexures A-I) (Exhibit 5). The applicant had no objection to that affidavit except for annexure C, which is a letter from Natalie Obrart dated 31 August 2018. Mr Pierotti for the applicant submitted that, if admitted, that letter should be given limited weight because the author of the letter does not state that she had been made aware of the nature of these proceedings and the alleged conduct which is the subject of these proceedings. The affidavit was admitted on that basis.
In addition, the respondent handed up written submissions to which the applicant did not object.
The respondent was cross-examined on aspects of her various affidavits by Mr Pierotti and was also questioned by the tribunal.

Applicant's Submissions

The applicant submitted that all relevant facts asserted by the applicant have been admitted by the respondent. There is also no dispute on the chronology of events and no dispute that a Notice under section 370 of the Uniform Law was served and that that Notice was not complied with before the requisite deadline. While material was eventually produced by the respondent in answer to the Notice, it was not produced in full until more than five or six months after the deadline. The production was therefore not in accordance with the terms of the Notice.
The only dispute is whether the failure to comply amounted to professional misconduct and whether there was a reasonable excuse that could be relied on by the respondent as an answer to the conduct.
The applicant submitted the conduct which has been described in the Application and admitted to in the Reply constituted professional misconduct by the respondent. The applicant noted that the respondent has stated she acted naïvely but did not behave dishonestly. The applicant accepts that the respondent was not dishonest but states that dishonesty is not a necessary ingredient for a finding of professional misconduct.
The applicant's submission is that on any view, the respondent's conduct can be characterised as conduct of the kind referred to in the decision in Allinson v General Council of Medical Education and Registration [1894] 1QB750 in which Lopes LJ referred to professional misconduct as conduct which would be reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency. The applicant submitted that the respondent's conduct was disgraceful or dishonourable in that she failed to take her responsibilities towards the regulatory body sufficiently seriously and failed to properly prioritise responses to the Notice and cooperation with the Investigator.
The applicant further submitted that the respondent's conduct demonstrated a complete lack of appreciation of her professional responsibilities over a grossly lengthy period of over 18 months where the practitioner failed time and again to comply with requests for production having given assurances to the Investigator of her compliance.
The applicant accepted that the respondent may have changed her practices and that she may have learned a lesson however, the respondent's conduct is not to be seen and judged as her conduct today but in 2016 and 2017 when it occurred.
The applicant noted that the respondent says she had a reasonable excuse in that she was inordinately busy on client matters. The applicant pointed out that respondent did not just use one excuse but a myriad of excuses and she failed to co-operate with the investigator over an extended period of time. Simple requests for information where not complied with for almost 2 years. The s370 Notice required production of a relatively small number of files and documents (as set out in Schedule One to the Notice). The production request was not complex and there was no excuse for the lengthy delay. The applicant asserted that being busy and not prioritising compliance cannot be a reasonable excuse. The applicant further stated that on any view, the respondent's conduct was disgraceful.
The applicant did not submit that the conduct evidences unfitness to practice, however said there cannot be any doubt that the conduct is professional misconduct. The applicant submitted that the tribunal ought have regard to the principles set out in Law Society of New South Wales v Walsh [1997] NSWCA185 where statements were made to the effect that orders made by the tribunal must act as a sign of the profession's disapproval of the conduct and as a deterrent to the profession generally.
This is important for the professional responsibility of a practitioner to his or her regulatory body. It was the respondent's obligation to respond and to respond quickly. She had been asked and directed by the trust investigator to comply and was formally directed in the Notice and still failed to respond in a fulsome and timely way. Solicitors would say that was unacceptable and not what they would expect of professional brethren.
The applicant submitted that the tribunal should find the respondent guilty of professional misconduct and that the practitioner should be publicly admonished by way of a reprimand and the imposition of a fine.
The applicant questioned the respondent's actual appreciation and understanding of her professional responsibilities and of the seriousness of her failures in her conduct towards the regulator. For that reason, during the course of the hearing, the applicant sought an order that the respondent undertake a course of study in professional ethics.

Respondent's Submissions

The respondent filed written submissions and made oral submissions following her testimony. The submissions may be summarised in these terms: 1. the conduct complained of did not amount to professional misconduct. It did not involve dishonesty, fraud or misappropriation and did not involve any clients or members of the public; 2. she is and has always been a fit and proper person to practice. Her failure to comply with the s370 Notice and other requests within the timeframes set out in the various letters and emails from the Law Society is not conduct that would justify finding that she is not a fit and proper person to engage in legal practice; 3. the respondent conceded she had received the Notice and that she failed to comply with it within the specified time and indeed, for a considerable time thereafter; 4. there were extenuating circumstances for her delay that made it impossible for her to act promptly and contends she had a reasonable excuse; 5. she has subsequently (since December 2017) dealt promptly with all requests from the trust account investigator; 6. she now has a trust account that is in order and there are no deficiencies. She completed all her trust accounting obligations in 2018 promptly and with no issues; and 7. she has engaged the services of other professionals to assist in this area to ensure these problems are not repeated in the future. She now has additional legal and administrative staff to assist her to ensure her practice runs smoothly.
The respondent further submitted that the following needs to be taken into account to support her contention that she had a reasonable excuse for her conduct: 1. she was a young and inexperienced practitioner in private practice and the events took place in the first 2 years of her establishing her practice; 2. she was overwhelmed by her workload in her busy practice; 3. she had no assistance (legal or administrative) at the time and was operating as a sole practitioner out of two premises; 4. once she understood the importance of complying with the section 370 Notice, she did comply towards the end of 2017, with reasonable diligence and was not at any time endeavouring to mislead the investigator. 5. she was naive on practice and procedure by not complying on time with the Notice; 6. she is solely responsible for caring for her brother who suffers from Type 1 diabetes and other health issues.
The respondent particularly emphasised that there were no allegations of abusing the trust account and there have been no complaints made by clients. The conduct complained of was strictly in response to an investigation by the trust account investigator.
The respondent submitted she takes her career very seriously and this matter has caused her extreme stress and anxiety. She has always had a high standard in regard to her obligations as a legal professional.
The respondent relies upon the two references by members of the Bar identified above as Exhibits 3 and 4. Each of the references states that the respondent is a solicitor in whom the authors repose their trust and confidence. They value her professional assistance and they attest that she is ethical as well as being competent, hardworking, professional and tenacious. They also attest that the respondent has learned a lesson from this whole experience and is treating the complaint seriously.
The referees state that the respondent has learned how seriously and expeditiously she must treat requests and directions of the trust investigator.
On questioning by the tribunal, the respondent accepted she failed to fully understand her duties as a solicitor to assist the investigator and more broadly, her duty to co-operate and assist with the inquiries of the Law Society. Nevertheless, she denied she should be found guilty of professional misconduct or unsatisfactory professional conduct and she submitted that there should be no reprimand or fine.
In her evidence, the respondent indicated that if it were considered necessary, she was willing to undertake any specified legal ethics courses that the Law Society might consider appropriate and she subsequently agreed a form of order with Mr Pierotti for the applicant.

Jurisdiction

It is not disputed that these proceedings are governed by the Legal Professional Uniform Law (NSW). The relevant provisions of the Uniform Law authorise us to make orders of the kind sought in these proceedings (ss302 and 303).

Consideration

The main issue in this case is whether respondent's conduct constitutes professional misconduct as the applicant contends or whether the respondent's conduct constitutes something less, for example unsatisfactory professional conduct. The respondent does not accept her conduct constitutes either professional misconduct or unsatisfactory professional conduct.
The respondent admits, and the evidence before us demonstrates, that the respondent received a Notice under s370 of the Uniform Law and the respondent did not comply with that Notice within the requisite time. The fact that the defects which led to the Notice being issued have since been remedied by the respondent is not an answer to the conduct complained of. The respondent had an obligation to comply within time, failed to do so and was therefore in breach.
Failure to comply with a notice from a regulatory authority (given pursuant to s370) is capable of constituting unsatisfactory professional conduct or professional misconduct: s298(h) mirrored in s466(6) of the Uniform Law.
For the purposes of the Uniform 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 (s296 of the Uniform Law).
The definition of "professional misconduct" includes, relevantly, (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) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice (s297 of the Uniform Law).
We were referred by the applicant to Adamson J's decision in Burrows v Council for the Law Society of New South Wales (No 3) [2018] NSWSC 737 (at paras 74 - 75) underlining that fact that lawyers have an obligation to communicate honestly and in a timely fashion to the relevant regulatory authority with respect to complaints made about the lawyer. Reference was made to the statement of Smart J in Veghelyi v The Council of the Law Society of New South Wales (Unreported, Supreme Court of New South Wales, Smart J, 6 September 1989) at p6: "It is important that solicitors respond promptly to the [Law] Society when it asks for a reply in response to complaints which have been made. It will be an unusual and complex case when a delay of more than 14 days is acceptable and often the reply should be delivered within a shorter period such as 7-10 days. Replies to the Law Society in respect of complaints warrant a high priority. Such replies should be full and complete and deal directly with complaints made."
These decisions further underline the importance of practitioners' compliance with their obligations to communicate promptly and honestly with the Law Society.
The narrative set out above indicates that the respondent accorded no particular priority to communications from the applicant, let alone a "high priority" in the Veghelyi sense. She had many opportunities to comply and many warnings, but nevertheless failed to comply in a timely way. The production required did not appear to have been particularly unusual or complex and the respondent had ample time even before the s370 Notice was issued.
As we have noted, the respondent's explanations to the Law Society which were repeated before us, referred to pressures and stress that she was under as a busy young practitioner who had recently set up her own practice which she was operating alone. The evidence before the tribunal indicates that she was also confronted with serious health issues with respect to her brother during the relevant period. The impact of the events and circumstances referred to by the respondent as having overwhelmed her at the time, provide an explanation, but not an excuse, for the conduct the subject of the complaint. The explanation suggests to us that the respondent had a rather cavalier way of dealing with matters that she saw as a distraction from the work in her busy practice.
The respondent appeared to try to argue in her written submissions that s466(6) of the Uniform Law is in some way subject to a defence of reasonable excuse. There is no such statutory defence. Section 370(2) uses the words "must comply", with no exceptions. It is open to us to find that, although there was a failure to comply with the s370 Notice, that breach did not constitute either professional misconduct or unsatisfactory professional conduct. However, the legislation does not provide any basis for someone in breach of s370 to assert they had a reasonable excuse.
Because there is no reasonable excuse defence available to the respondent, we have considered her submissions on s466(6) as her reasons to support her contention that she was not guilty of professional misconduct or unsatisfactory professional conduct.
It is evident and admitted that the respondent did not have a full appreciation of the seriousness of the situation she found herself in, and the real possibility that she may be suspended or have her practising certificate cancelled. Her recognition of her obligations came very late after many reminders and warnings.
The respondent's conduct was incredibly naïve and fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. The respondent's evidence both written and on cross-examination, also demonstrated that she needs to better understand the regulatory structures of the profession and her duties in that regard.
As a legal practitioner, the respondent was bound, by statute, to comply with the requirements of the Uniform Law. Professional liability can arise from a dereliction of a practitioner's duties under that legislation. Her repeated silence, non-responsiveness and tardiness in dealing with the investigator's requests, while not deliberately obstructive, was unsatisfactory conduct.
Ordinarily such inordinate delay in communicating with the regulatory authority would suggest conduct amounting to professional misconduct, however the circumstances in this case viewed in their totality, mitigate against such a finding. While the conduct involved significant failures, it did not, in our view, constitute professional misconduct under s297 of the Uniform Law.
Further, while it was highly improper of the respondent to make arrangements with the Investigator and then fail to act as arranged and her conduct did involve significant failures as mentioned above, we also do not accept the applicant's contention that the respondent's conduct constituted professional misconduct in the Allinson sense. Given the particular circumstances, the respondent's conduct does not deserve to be described as disgraceful or dishonourable.
In our view, in all the circumstances, the respondent's conduct more aptly fits within the description of unsatisfactory professional conduct (as described in section 296 of the Uniform Law) rather than professional misconduct (as described in section 297). We feel the particular facts and considerations, just tip the balance against professional misconduct. We find the respondent guilty of unsatisfactory professional conduct.
In summary, the following factors favour the approach we have taken in this case: 1. the respondent's failure to comply with the s 370 Notice did not involve dishonesty, misappropriation or financial or any other detriment to clients; 2. her youth and relative inexperience in running her own busy practice at the time; 3. the lack of support in her practice at the relevant time; 4. there was no suggestion of deliberate obstruction or misleading the investigator: 5. the respondent's contrition and earnestness and her deep regret for her failures to comply and assist; 6. the relatively isolated nature of the unsatisfactory conduct, serious and substantial as it was; 7. acceptance of her evidence that she acted as she did out of a misguided notion to prioritise client matters and needs over and at the expense of, practice regulatory matters; 8. the conduct was wholly inconsistent with the respondent's good reputation with clients and counsel; 9. her acknowledgement of the need to conduct her practice on a regulatory-compliant basis in future; 10. the efforts she has made since 2017 to better manage her orkload, including employing 2 solicitors and engaging expert help with her trust account and practice administration generally, the latter evidenced in her full compliance with the most recent 2018 trust account inspection; 11. her accepting to undertake a course of study in ethics/professional responsibility and acknowledgement of deficiencies in her appreciation of her obligations; and 12. her good prospects of not re-offending.
Against these considerations, we acknowledge the force of much that was said on behalf of the applicant. We acknowledge in particular: 1. the importance of signifying to the profession the seriousness of conduct of this kind, with an appropriate reprimand; 2. the fundamental failure by the respondent in her duty to the regulatory authority, with which all practitioners are bound to comply. Professional responsibility involves recognising how to balance the various duties owed by practitioners including those owed to their clients, to the public and importantly, to their regulatory authority; 3. that there must be some concern at the level of sophistication of the respondent's training in ethics and her ability to recognise her duties and problem situations; and 4. the need for the respondent to develop skills that will enable her to understand her obligations and handle future challenging situations in a resilient and principled way.
We have taken all those factors into account in reaching our conclusion as to the appropriate disciplinary finding in these particular circumstances. Notwithstanding our finding in this case, we do stress that admission to practise as a lawyer carries ethical obligations that should be observed scrupulously from day one. Failures to observe professional standards in dealings with the regulatory body with respect to important communications, carry serious consequences.
Section 302(1) of the Uniform Law provides that if after it has completed a hearing in relation to a complaint against an Australian legal practitioner, the tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the tribunal may make such orders as it thinks fit, including one or more of the orders specified in the section. Those orders include an order reprimanding the practitioner as well as an order imposing a fine.
In determining the appropriate orders that should follow any finding we make, we have considered the submissions made on behalf of both parties and noted that our functions are primarily educative and protective and not punitive in nature (as per Law Society of New South Wales v Walsh [1997 ] NSWCA185). It is relevant to take into account the effect that the orders the tribunal makes will have upon the understanding in the profession and members of the public of the standard of behaviour required of practitioners. In this case, the respondent failed in her communications with the regulatory body and will be publicly admonished with the publication of the tribunal's orders and reasons.
While we appreciate the difficult personal matters that confronted the respondent during the period in which she was in breach of her obligations under s370 of the Uniform Law, the significant delay in complying with those obligations and her lack of appreciation that it is of utmost importance for a practitioner to communicate honestly and act diligently in all professional dealings, not just with clients and professional colleagues but also with the Law Society, is not acceptable. There is no excuse for such conduct. On that basis, we have determined that it is appropriate the solicitor be reprimanded as a deterrent to the profession and a mark of the tribunal's disapproval of the conduct.
However, we are not satisfied that in the circumstances of this matter it is appropriate to also impose a fine and we decline to make such an order.
As to the question of whether the respondent should be required to undertake an appropriate ethics or professional responsibility course, we think that is desirable, as the respondent will benefit from further education in that very important area. We have no doubt that the respondent has learned a lesson and now better appreciates the importance of strict observance of her professional obligations towards the regulator. What we remain concerned about is the kind of excuses the respondent gave for her conduct (even in evidence and submissions to the tribunal) and her failure to observe professional etiquette in her dealings with the trust investigator in promising to produce material at a certain time and then not doing so. It is highly improper of a practitioner not to live up to their word. The overall impression from the material before the tribunal is that the respondent is lacking in her understanding of all the complexities of her duties as a solicitor and still does not fully comprehend what is appropriate to proper compliance with directions by supervisory and regulatory bodies. Successful completion of a course of study will alleviate our concerns.
Having found that the respondent engaged in unsatisfactory professional conduct, the tribunal is obliged to order that the respondent pay the applicant's costs (see s303 of the Uniform Law and clause 23 of schedule 5 of the Civil and Administrative Tribunal Act 2013) unless exceptional circumstances exist. No exceptional circumstances have been suggested by either party.

Orders

The tribunal finds that the respondent's conduct constitutes unsatisfactory professional conduct and the tribunal makes 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, at her own expense, is to undertake within six (6) months of the date of the orders made by the tribunal (and during which the respondent holds a current practising certificate), a course in Legal Ethics that is approved by the Director, Professional Standards of the Law Society of New South Wales (the Director, Professional Standards) and therein achieve a pass mark of not less than 50% (Pass Mark). Further: 1. the respondent will, within seven (7) days of receipt of the result of that approved course in Legal Ethics, provide the Director, Professional Standards, the original result notification from the provider of that course; 2. should the respondent fail to achieve the Pass Mark, she shall complete any further course in Legal Ethics as approved by the Director, Professional Standards until such time as she achieves the Pass Mark; 3. should the respondent fail to achieve the Pass Mark within the six (6) month time period referred to above, her practising certificate shall be suspended until such time as she achieves the Pass Mark.

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: 23 November 2018

At a glance

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Before

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Judgment (13 paragraphs)

Parties

Cases Cited (1)

Cited By (2)