And a little further on:
"Q. Ms Nguyen, I'm referring you to page two of Mr Collins' affidavit the second page of the application, the statement there ticked under 'G' lawyer for applicant was misleading according to you, isn't it?
Well, I don't - I mean I didn't notice that -that having ticked and I didn't write my name in there so.
You say that's not your signature now?
It is my signature but I didn't write -= in my details as the solicitor for the….
No, I'm not asking about details, I'm asking you whether, having signed a statement, a signature with a date that says that you're the lawyer for the applicant would you agree with me that you are either the lawyer or otherwise that signature misleads the Court?
I didn't realise it would be considered misleading to the Court.
Could you answer the question, Ms Nguyen, please? Do you agree with me that signing and dating the document as lawyer for applicants is misleading?
If you mean by misleading that it was incorrect that I was these - the solicitor then - then yes.
Q. No, I'm sorry, Ms Nguyen, it's not difficult, is it, to understand that when you're filling out a court document that asks a question, this application was prepared by and there's an option. That if you, as you suggest, are not the lawyer it is misleading to have it ticked lawyer.
A. In that case then yes." [T54 L34 to T55 L19]
25 At T58 and 59 the Respondent was cross-examined about the information sheet filed on 3 April 2003:
"Q Page - the short affidavit that I've just been referring you to, I've been referring you to pages 1 and 2, would you jump ahead to page ten please?
A Yes, I've got it.
Q That's headed 'Information sheet?'
A Yes.
Q Can I ask you to jump ahead a little bit to page twelve, there's a para or a block headed 'E, signature of applicant or lawyer.' You see that?
A Yes.
Q That's your signature?
A Yes, it is.
Q You notice the tick lawyer or applicant?
A I notice it now.
Q Whose writing is 'Michelle Nguyen' underneath?
A It's not my handwriting.
Q So you say that although the document says that you prepared it and you signed - by the way did you date it, is that your writing the date?
A That's my writing.
Q You've dated it, you signed it and it's ticked the information sheet was prepared by the lawyer and you say you didn't notice.
A Yes, because that part had already been completed. That part had already been completed, the - the boxes had already been ticked and my name had been inserted.
Q Is it your custom, Ms Nguyen, that when you prepare certain documents for court you don't - you rely on others to prepare them and tick boxes and you just sign?
A It's not always a practice but sometimes we have the staff completing the forms.
Q And you don't read them?
A Well I normally read them.
Q Is this just one of those exceptions that you didn't read properly?
A Yes, because I wasn't - I wasn't acting for the - I wasn't acting for - for the applicant. I wasn't being paid to do this I was just agreeing for the firm's details to go on as a favour so that the mail be lost.
MOLLOY: What Mr Pierotti is putting to you is why couldn't you have simply - for those who prepared the document - simply put in the name of the client, that is, the applicant Ms Le care of your firm without having to put your name as the solicitor for the applicant. That's what he's really putting to you. Did that ever occur to you?
WITNESS: No, it didn't - it - we didn't realise that - we didn't - we didn't think of that at the time." [T58 L32 to T59 L33]
26 The admission of the Court record of appearances made on 11 April 2003 is in the view of the Tribunal significant in considering whether the Society has established the third complaint which relates to the second Application and this will be referred to later, as will the question of whether the facts particularised can be relied upon by the Society as establishing the professional misconduct alleged.
27 At the hearing the Respondent tendered Affidavits from the following which apart from the Respondent's affidavit were admitted into evidence without objection:
(i) Respondent sworn 15 January 2008 [admitted subject to the deletion of all of paragraph 8 apart from one sentence];
(ii) Minh Trieu Hong Le sworn 15 January 2008;
(iii) Thri Lung Le sworn 15 January 2008;
(iv) Veronica Siow sworn 5 August 2008;
(v) Andrew Lee sworn 6 August 2008;
(vi) Mohammed Alsalami sworn 8 August 2008;
(vii) The Venerable Thich Phuoc Dat sworn 7 August 2008.
28 Evidence establishing relevant particulars of complaints made by Law Society:
In relation to some of the particulars, evidence was provided to the Tribunal from a number of sources and in the hearing there was not a dispute as to significant evidentiary matters. The thrust of the Respondent's case was that the facts alleged by the Society did not establish any of the complaints of professional misconduct alleged. The Tribunal is of the view that it is necessary for it to make findings on the facts before seeking to determine the legal consequences of those facts. The Tribunal in dealing with the evidentiary matters does not refer to every piece of evidence that might be relied upon to establish each particular but rather has detailed the facts established which had satisfied the Tribunal of the factual basis of the particulars and some material relevant to important matters particularised in the numbered paragraphs as follows:
i. The Respondent's professional situation deposed to from the Society's records in paragraph 12 of Mr Collins' first Affidavit were admitted into evidence and not challenged by the Respondent;
ii. The employment of the Employed Solicitor and status of her practising certificate were deposed to in paragraph 13 of Mr Collins' first Affidavit and not disputed;
iii. Mr Minh Le confirmed the place of living of his wife, the Employed Solicitor in the oral evidence already referred to.
iv. Evidence that the Employed Solicitor had a brother Luy Van Tran is contained in paragraph 10 of the Affidavit of Thi Lung Le and was not contested.
v. There is evidence of the birth of the child Andrew in various documents including the Application for court orders which was verified in the affidavits of both parents. His name is shown in that document as "Drew Tan" but the name "Andrew Tan" is used subsequently including in the paragraph 3 of Kim Linh Duong's Affidavit of 15 May 2003 admitted as an annexure to the first Collins Affidavit.
Evidence of Mr Tran and Ms Duong coming to live at the grandmother's residence in Bankstown is contained in paragraph 7 of Mr Tran's affidavit of 10 June 2003 (referred to in vii. below).
Evidence of Mr Tran's relocation to Vietnam in 2001 and return to Australia in about May 2003 are contained in paragraphs 36 and 56 of his Affidavit sworn 10 June 2003 in the Family Law proceedings which affidavit was annexed to the first Collins Affidavit and admitted without objection.
The Solicitor deposed to acting for Ms Duong on the Application for Court orders in paragraph 3 of her affidavit of 15 January 2008. The Consent Orders which were referred to elsewhere in this Decision were a separate Exhibit C in the proceedings admitted by consent.
The Solicitor deposed in paragraph 3 of her Affidavit that she acted in this matter. The Tribunal is comfortable in adopting the inference that the Application was filed by the staff of the Solicitor on the date of 2 August 2002 which appears on the Application.
The terms of these Consent Orders particularised complied with the order admitted into evidence.
There does not appear to be any direct evidence of Andrew's having been removed without consent. The Tribunal is, however, satisfied that this did occur on or about the date alleged by reason of the Application for Recovery Order and the evidence of various witnesses in relation to the recovery proceedings.
The Respondent denied having made the second Application. A copy of the Application filed on 4 April 2003 in the Fairfield Local Court is annexure "D" to the second Affidavit of Mr Collins. The Application bears the signature of the Respondent as Lawyer in Part G on page 2 as does the Lawyer's Declaration in Part H of the form, also on page 2. A copy of the Information Sheet filed with the Application is annexure "P" to Mr Collins' second Affidavit. In her oral testimony the Solicitor acknowledged that the three signatures purporting to be hers in those two annexures ("D" and "P") were in her handwriting. In her Affidavit the Respondent in relation to these issues simply stated:
"9. I further say that I did not prepare or lodge the Application for the Recovery Order on Mrs Le's behalf"
In her evidence in chief (T50 L20-L50) when asked of her involvement in the second Application, the Respondent said at line 20:
"The extent of my involvement in that particular Application was that my then Employed Solicitor, who is now my business partner asked me whether the details of the firm could be inserted on the Information Sheet for the Application so that the Court could respond - could correspond to our office rather than to - then - rather than to her mother's house. And what My Yen [sic the Employed Solicitor] told me the reason for that was, was because her mother doesn't read, doesn't understand English and also her mother has other boarders living at the house and they were concerned that if …….. the Court sent mail to her mother's house that her mother firstly might not know what it was and that also the other tenants might get the mail by mistake.
Q You were asked what did you say, or what did you do?
A I agreed to it
Q And what other role did you play in relation to documentation?
A I didn't play any other role."
The Respondent was cross-examined at length in relation to these matters. The Respondent indicated that her Employed Solicitor did not tell her who had prepared the Application The Respondent said at T53
"My Yen [meaning the Employed Solicitor] told me that she had given her mother a copy of these brochures."
The cross-examination continued:
"Q Why would it be relevant to give her a copy of documents when they were supposedly acting for themselves and you were only going to be a mailbox?
A Because we thought that it was the requirement of the Court…………."
Later at T53 L40 her evidence continued as follows:
"Q Well, isn't 'H' asking you the Lawyer's Declaration to sign that you gave various documents to the Applicant or Applicants? Isn't that what it's asking you?
A {witness) Yes, that's what it's asking.
Q And you signed it saying you had?
A Yes.
Q And you notice against the word the letter 'H' the Lawyer's Declaration '(complete only if lawyer is filing Application)' close brackets?
A I didn't notice that.
Q Can I ask you, Ms Nguyen, what did you notice about the Application before you signed it?
A I just understood that my role - that - the details of the firm were just going to be inserted so that the Court could correspond directly to the office.
Q But that's not what it says, it is?
A No.
Q Could you answer the question, Ms Nguyen, please? Do you agree with me that signing and dating the document as lawyer for Applicants is misleading? If you say you are not the lawyer.
A In that case, then, yes."
Further evidence as to the situation of the Employed Solicitor is in the Tribunal's view important in this context. The Employed Solicitor was a Solicitor who had a Restricted Practising Certificate. The Respondent was a sole practitioner. At the conclusion of the cross-examination the Solicitor was asked by the Presiding Member:
"Q Was it the practice of your firm that Ms Tran [being the Employed Solicitor] could accept instructions on behalf of the firm, from clients?
A Yes"
The Tribunal also has before it the evidence in Exhibit E of the appearance of the Employed Solicitor before that at Fairfield Local Court on the recovery order Application on 11 April 2003 and the Tribunal accepts that the Employed Solicitor appeared on that day for Andrew's grandmother and that previously the Respondent had acted for Andrew's mother in relation to the Consent Orders.
The fact that the recovery order was made was not in dispute and there was quite an amount of evidence relating to the Order in the recovery proceedings. Exhibit E and the Annexure "E" to Mr Collins' second Affidavit are in the circumstances sufficient to satisfy the Tribunal that this particular has been established.
The letter from the Federal Police to the Registrar of the Local Court Fairfield dated 26 May 2003 being Annexure "E" to Mr Collins' second Affidavit was admitted into evidence and the Tribunal is satisfied from reading that letter that the recovery of Andrew by the Federal Police was made as alleged.
xvi. xvii. The transcript of proceedings before the Tribunal both by way of background and on the basis of four specific matters which are referred to elsewhere in this Decision are evidence of these matters. There is clear evidence Ms Duong instructed The Legal Aid Commissioner to seek parenting orders and the Application was filed and sought orders and was returnable before the Court on 26 May 2003. The Tribunal is satisfied that the facts necessary to establish those particulars have been established.
Evidence on 19 May 2003 of service of the third application and supporting documents on the grandmother, Mrs Le,is established to the Tribunal's satisfaction by the Affidavit of Duane Lionel Langley sworn 20 May 2003 which was annexure "F" to the second Collins Affidavit admitted into evidence without objection. Some reliance appears to be placed by the Respondent upon the basis that the matter was listed for mention. The Tribunal finds that this is not an appropriate matter for the Respondent to rely upon. The practice of the Federal Magistrates Court at that time was to list Applications on specific days. It is a matter of practical convenience that defended matters were then often given a timetable when other matters were given an adjourned date. In some matters, particularly in relation to urgent children's issues, if the business of the Court permitted, matters were heard either on an interim or a final basis and either ex parte or as a contested hearing. The third application was a serious contested case involving a young child and it was before the Court on 26 May 2003 on which date, after the matter was stood down in the List, during which time it appears the learned Magistrate (as Ryan J. then was) read some of the material in those proceedings in Chambers. On resumption after lunch the Court made Interim Orders suspending the existing Parenting Orders which dated back to the Consent Orders (the first Application) and made various Orders pending further Order including an Order that the child live for the moment with his mother. Those Orders are annexed to the first Affidavit of Mr Collins commencing at Page 17.
There is evidence of the matters alleged in the particulars apart from the last sentence in the Respondent's Affidavit of 15 January 2008 in which she deposes the Employed Solicitor "advised me that she was going to attend Court on 26 May 2006 to 'help her mother out' with the mention of the matter as the matter had been listed urgently and her mother had found difficulty in engaging a solicitor specialising in Family Law on short notice."
She further deposed:
"14. As the firm had not been retained to represent Mrs Le, the view that I held was that this was a personal matter for Ms Tran [that is, the Employed Solicitor] in assisting her family members…..
I did not consider it necessary to advise Ms Tran from assisting her family members in such circumstances……….
I verily believe that the matter was listed for a mention date only, I did not consider it necessary to supervise Ms Tran in relation to her appearance on 26 May 2003"
On cross-examination on the second hearing day at T44 (at L21) the Respondent was asked:
"Q Ms Nguyen, when Ms Tran indicated to you that there was an Application on 26 May you said she indicated she would attend in a personal capacity, is that not the case?
A That's correct.
The final sentence of particular (xix) relates to the appearance on 26 May 2003. The transcript of that day was admitted for limited purposes including the Employed Solicitor's appearance on that day and the Tribunal finds that part of the transcript is acceptable evidence of the matter alleged in the final section of particular (xix). The Tribunal is satisfied that the facts in the Particulars are established, though as with all particulars and the facts supporting them the final phase is for the Tribunal to determine whether the matters alleged can properly be described as professional misconduct.
The only evidence of the facts establishing this particular comes from the Respondent - see for example paragraph 16 of her Affidavit. The Tribunal is satisfied that the facts establish this particular. The Tribunal does not see the issue as to whether the Employed Solicitor might or might not have been a material witness at the hearing of the third application to be relevant to the circumstances of this complaint.
The matters particularised except for the material appearing in the last sentence were admitted and the Tribunal is satisfied that the matters admitted have been established from the transcript of the proceedings before the Federal Magistrate admitted for limited purposes including those particularised facts as well as other evidence before it. The Tribunal finds that the action taken by the Employed Solicitor when she was actually before the Federal Magistrates Court, while it may be a consequence of the Respondent failing to supervise her employed solicitor, the words chosen by the Employed Solicitor in addressing the Court are not evidence against the Respondent in these proceedings.
The Tribunal does not regard the conduct of the Employed Solicitor as alleged as relevant in establishing the complaints of the Society against the Respondent.
The Orders of Federal Magistrate Ryan of 26 May 2003 are part of the evidence before the Tribunal being part of the annexures to the first Affidavit of Mr Collins commencing at page 17 of the document.
29 All of the deponents of Affidavits filed on behalf of the Respondent were called for cross-examination. The Affidavit of the Respondent was approximately 2½ pages in length and in the Tribunal's view the relevant portions of it have already been referred to above.
30 Mr Le, the husband of the Employed Solicitor provided an Affidavit that dealt with the recovery proceedings to which reference has been made.
31 The Affidavit of Ms Thi Lung Le (who is generally referred to in the matter as being the grandmother of Andrew) dealt mainly with the recovery proceedings and the issues canvassed there have already been considered and made the subject of some findings above. Ms Le also deposed to her daughter, the Employed Solicitor, helping her in the third proceedings "as my daughter" and by implication not as a solicitor and she denied that the Respondent acted for her in the recovery proceedings in the matter before the Federal Magistrate. The Tribunal did not find Ms Le's evidence satisfactory on the question of involvement in the proceedings of her daughter, the Employed Solicitor, nor consistent with the evidence of Mr Le and the material in the transcript from the Federal Magistrates Court. The following excerpts from the transcript of her evidence on the second day of the hearing, which were referred to in the Society's Submissions, are significant:
At 65.40 on day 2:
"Q Did you ever ask for your daughter or her employer, Ms Nguyen, to be involved with this Application [being the Recovery Application of 3 April 2003]
A INTERPRETER No, I never get help from any solicitor because I don't know much about the law, the legal system, so I don't get any help from any solicitor.
Q Not even your daughter, Ms Tran?
A INTERPRETER No, even my daughter."
At 67.35:
"Q Who did you show that Application to [referring to the Application of Ms Duong of May 2003 - the third Application]?
A INTERPRETER My daughter read it to me and explained to me that my daughter in law wanted to get her son back and my daughter also advised me to seek the help from a solicitor in order to, you know, to fight for the custody right of my grandson.
Q And you were unable, you say, to get a solicitor in the next seven days, is that correct?
A INTERPRETER Yes, because, you know, I could not find a solicitor, you know, during a very short period of time, that's why I asked my daughter to go with me to the Court to seek adjournment.
Q Did you ask your daughter to try and find a solicitor in the next five or six days?
A INTERPRETER No, I didn't ask my daughter. I asked my son in law to help me."
Again, in relation to not seeking her daughter's assistance, at 68.34:
"Q Why did not you not wish to ask your daughter?
A INTERPRETER I didn't, the reason why I didn't want to ask my daughter because I would like to seek the help from a solicitor specialising in the family law and later I sought the help from a solicitor in Parramatta or Cabramatta, I cannot remember."
32 As indicated earlier in these Reasons there has been other evidence on the action taken by the Employed Solicitor and insofar as that is relevant to complaints against the Respondent and contradicts the evidence of Ms Le, the Tribunal accepts that other evidence.
33 The remaining four Affidavits filed on behalf of the Respondent were expressed to be character evidence and are dealt with separately below.
34 Submissions:
35 The Society submitted that the Respondent had acted for the mother in the Application for Consent Orders in relation to the parenting responsibility and contact for child Andrew that were obtained on 9 August 2002 then acted for the child's grandmother in proceedings for recovery of Andrew of 3 April 2003 which Application was adverse to the interest of Andrew's mother, who was the solicitor's initial client. The recovery proceedings were successful and Andrew was recovered by the Federal Police and returned to the grandmother. In May 2003 Andrew's mother made a further Application to the Federal Magistrates Court for a parenting order in terms that the child should reside with her. Some time prior to the listing of the third Application the Respondent's evidence is that the Employed Solicitor informed the Respondent of her desire to appear in some personal capacity for the grandmother on the return date.
36 It is the Society's submission that the Respondent acted for the grandmother on the second and third Applications but, because of her prior solicitor/client relationship with the mother, she should not have acted for the grandmother in respect of those two later Applications. The Society submitted that the Respondent "failed to take into account the prior solicitor/client relationship with the mother when she did not forbid the Employed Solicitor from attending at all in such a matter" especially when one has regard to the fact that [sic the Employed Solicitor] is the daughter of the grandmother and sister in law of the mother. The Society further submitted that the Solicitor "did not do anything to stop the Employed Solicitor from appearing or advising her as to any limitations which might be applicable to her appearances". Some further reliance is placed upon the transcript before the Federal Magistrate as far as the consequences of the Employed Solicitor's actions are concerned but the Tribunal, having admitted the transcript into evidence for a limited purpose, does not consider it necessary to consider those matters on the conflict issue.
37 The Society submitted that the Respondent's responsibility after August 2002 was "to do all that was within her power to ensure that she and her firm would in the future take no course contrary to the mother's interest, especially in matters involving the same issue for which she had acted for her, namely Orders relating to the child. It was no part of the solicitor's brief to take sides, as it were, in the dispute which arose between the mother and the grandmother. It was, it is submitted, the professional obligation of the solicitor to ensure that she did not act in a manner which was in conflict with the interests of the mother."
The Society further submitted that "conflict was exacerbated when, the Respondent allowed her Employed Solicitor, a close family member of the now opposing parties, to become an active participant in that conflict."
38 The Society asserted:
"A practitioner who allows such a situation as recited above first to occur and secondly to persist is, it is submitted, guilty of conduct which can only be described as 'disgraceful'."
The Tribunal was referred to the comments by the Court of Appeal in Harvey v The Law Society of New South Wales (1975) 49 ALJR 362 at 364:
"The Court's duty is to ensure that those standards of the profession are fully maintained particularly in relation to the proper relationship of practitioner with practitioner, practitioner with the Court and practitioner with the members of the public who find need to use the services of the profession"
39 The Society also referred to the comments of Street CJ in Ex parte Macaulay (1930) 30 SR NSW 193 at 193-4:
"Unless the Court insists on a high standard of conduct on the part of solicitors - unless the Court punishes severely any lapse from the proper standard - the public will never be properly safe-guarded and the profession will never retain the respect which it ought to have in the community".
40 The Society stressed that unlike numerous other conflict cases, there was no issue of a personal advantage to the solicitor involved and stressed that the receipt of a benefit by the solicitor is not the relevant test. It is alleged that the receipt of a benefit by the solicitor is not the relevant test. The Society suggested that "The conduct must be judged on its own terms and at the time of its occurrence".
41 The Tribunal was referred to Law Society of New South Wales -v- Starkey (unreported C/A NSW 205/79), Law Society of New South Wales -v- Moulton (1981) 2NSWLR 736; John Bolster -v- Law Society of New South Wales (unreported C/A NSW 233/82). Copies of these decisions were not provided to the Tribunal.
42 Starky [supra] was a conflict of interest matter where the conflict was as between Solicitor and client in circumstances where the Solicitor, his family members and companies in which he had interests borrowed money from clients of the solicitor without proper security and/or disclosure where the solicitor's interests were found to have been put before those of the solicitor's clients. The Court of Appeal comprising Moffitt P and Hope and Samuels JJA examined carefully the evidence of the solicitor's breaches of his duty to his clients and applied the decision in Harvey [supra]. This reference by the Society did not assist the Tribunal in this instance.
43 In Moulton [supra] the Court of Appeal allowed the Society's appeal against a decision of the Statutory Committee which imposed a fine upon the solicitor and ordered instead that his name be removed from the Roll of Solicitors. The evidence again related to the borrowing of moneys by a solicitor from his clients. The professional misconduct finding by the Committee was not challenged on appeal and the Court applied and referred to both Harvey [supra] and Starky [supra] in what was again a conflict of interest matter involving borrowing of clients' moneys. The reference to this decision by the Society does not provide much assistance to the Tribunal as the type of conflict of interest if very different, although it is worth bearing in mind the comments of Hutley JA in Moulton at 756-7 as to the question to be faced by the Tribunal in conflict cases. His Honour said:
"To treat Harvey's case [1976] 2NSWLR 154, and those which followed it, as representing an innovation in the law is, itself, a confession of deep ignorance in a field in which members of the public are entitled to expect solicitors to have an intimate and ever available knowledge of law. Therefore, it is beside the point to consider the relative degrees of delinquency which other solicitors have exhibited and still more irrelevant to consider whether or not the clients have or have not lost, because what the Statutory Committee and the courts should be concerned with is, not whether the solicitor has been a successful investor, but whether he is fit to be a solicitor. Any such argument assumes also that cases, such as that of Starky and Harvey, provide a benchmark at which removal from the roll can be considered as beginning. This, itself, is, in my opinion, a fundamental misconception of a proper process of evaluation; the question always is, is the solicitor fit to be held out as a member of the profession?
44 Bolster [supra] was another case involving, to paraphrase Moffitt P at 1, a solicitor acting for clients in the lending of moneys to himself and his family and companies in which he or they had an interest without making a full and proper disclosure of his interest and without advising his clients to take independent legal advice.
45 The Society further stressed that the Respondent and her staff members were representing interests contrary to a former client's interest in a matter which at the time was highly contentious a comparatively short time after the original orders. It concluded as part of its submissions in terms that "it would not appear to a reasonable observer, knowing the facts, that justice was being done when the Solicitor could so easily change sides and allow her staff (intimately related the mother and the grandmother) to act in a matter against a former client". It maintained that the solicitor had failed to maintain proper professional standards.
46 The Society then summarised the evidence which, unless further material is detailed below, has already been covered above in these Reasons:
The mother was the solicitor's client;
Subsequently the solicitor acted for the grandmother on the second and third Applications.
It was submitted that the Respondent's explanation for various matters was unconvincing and contradictory. Reference was made to the provision of the two brochures already referred to which it was put was inconsistent with "acting as a mere postbox". The Society in its submissions attacked the Respondent's evidence as "evasive", "a reconstruction" involving "self-justification" although the Respondent denied this in cross-examination. The Society argued that the third Application was merely a continuation of the second Application to determine "who would have final custody of the child". It scorned the solicitor's evidence that she was merely allowing the Employed Solicitor to attend Court so as to assist the grandmother in a personal capacity. The Society submitted that the Tribunal would not be satisfied with the solicitor's evidence of a conversation with the Employed Solicitor in relation to the third application and that there was no evidence from the Employed Solicitor at all; the evidence of both the grandmother and the Employed Solicitor's husband was not wholly responsive to the questions being asked, gratuitously offering information supportive of the Respondent or the Employed Solicitor and displaying a noted reluctance to accept propositions that might be seen to be adverse to the Respondent or the Employed Solicitor.
47 Two solicitors gave character evidence for the Respondent and were asked a hypothetical question which it was asserted was modelled substantially on a neutral situation involving an employed solicitor going to represent a family member against a former client of the firm. The submissions pointed out that one conceded that there would be at least a need for caution and the other indicated that he would certainly caution the solicitor about continuing the matter "due to our obligations as solicitor, we can't act if there is a perceived conflict". Reliance is placed on this evidence by the Society as lending weight to a peer attitude to the conduct of the Solicitor.
48 The Society stressed that there was no suggestion of the Respondent using confidential or privileged information or that there was any legally binding prohibition on the Respondent acting for the grandmother but that the solicitor's duty of loyalty to the mother was wholly in conflict with the newly-acquired obligations/duty to the grandmother and to pursue a position contrary to the mother, as she did, brought her conduct within the definition of professional misconduct. The Society then referred the Tribunal to the description of professional misconduct of Lopez LJ in Allinson -v- General Council of Medical Education and Registration [1894] QB 750 where His Lordship said:
"If it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency then it is open to the General Medical Council to say that he has been guilty of 'infamous conduct' in a professional respect."
49 In addition the Society referred to the comments of Rich J in Kennedy -v-The Council of the Incorporated Law Institute of New South Wales (1940) 13 ALJR 563 where His Honour said:
"A charge of misconduct as relating to a solicitor need not fall within any legal definition of wrongdoing. It need not amount to an offence under the law. It was enough that it amounted to grave impropriety affecting his professional character and was indicative of a failure either to understand or to practise the precepts of honesty or fair dealing in relation to the courts, his clients or the public. The particular transaction the subject of the charge must be judged as a whole and the conclusion whether it betokened unfitness to be held out by the court as a member of a profession in whom confidence could be placed, or on the other hand, although an lapse of propriety, was not inconsistent with general professional fitness and habitual adherence to moral standards, was to be reached by the general survey of the whole transaction."
50 The Society submitted that despite contentions to the contrary on behalf of the Respondent that the Law in relation to an adverse finding is that it is a failure of professional duty on the part of a practitioner to act against a former client, it is the conduct that is important and it raises the question of propriety or otherwise of the professional conduct involved.
51 In relation to the supervision the Society summarised the Respondent's view as being that she merely signed the various originating process in the recovery proceedings (the second Application) and that clearly the Employed Solicitor appeared for the grandmother in both the second and third Application and that the Employed Solicitor "was essentially left to her own devices as to the carriage of those proceedings". The Society further queried whether that if it was accepted that the Respondent was not acting for the grandmother, should she bear responsibility for the actions of the Employed Solicitor? The issue was also raised that the Employed Solicitor having acted indicated a failure to supervise the Employed Solicitor and the Respondent gave legitimacy to her involvement and carte blanche to deal with the Applications without reference to the Respondent. The Society contended that the Respondent's duty was to prohibit the Employed Solicitor from having any role in the Applications and as the Respondent's witness Mr Lee's evidence may be taken as indicating, the Employed Solicitor should have been cautioned from any participation. These were not consent proceedings, but a hotly contested custody matter and not one where it was appropriate for the Respondent to allow her Employed Solicitor to participate in any way "let alone as an advocate for and adviser to an opponent". Submissions were made in relation to the preparation of the recovery Application and that issue has already been dealt with above by the Tribunal as were the contentions raised in relation to the grandmother's evidence.
52 In relation to character evidence the Society referred the Tribunal to the Judgment of Mahoney JA in Law Society of New South Wales -v- Foreman (1994) 34 NSWLR 408 at 448 where His Honour said:
"It is proper to have regard to what the referees have said; that accords with the practice of the Court in such matters………"