Legal Services Commissioner v DRA

The Stage 2 Hearing

1. On 26 November 2018 the application was again listed for the purposes of conducting the next stage of the hearing (the Stage 2 Hearing). The purpose of the hearing was to consider the appropriate orders to be made as a consequence of the earlier finding that the Solicitor had been guilty of professional misconduct.
2. There was no dispute that the Registry and the Applicant had complied with the directions made by the Tribunal in the Liability Decision. In addition, the Solicitor has filed evidence and submissions and there was no objection to the fact that that material may have been filed after the time provided by the directions.
3. What now follows is our consideration of the evidence and submissions considered at the Stage 2 Hearing.

Evidence at the Stage 2 Hearing

1. The Applicant tendered the following material: 1. The affidavit of John McKenzie dated 14 November 2018 (Exhibit A); 2. The affidavit of John McKenzie dated 11 July 2018 (Exhibit B); and 3. The affidavit of Kevin Kwan affirmed 14 November 2018 (Exhibit C).
2. There was no objection to the above affidavits and nor were the witnesses required for cross-examination.
3. The Solicitor tendered the following material: 1. The statement of the Solicitor dated 30 October 2018 (Exhibit 1 - inclusive of annexures); 2. The affidavit of the Solicitor dated 21 November 2018 (Exhibit 2); 3. References, namely the statement of Alan Marchant dated 19 November 2018, the statement of Matthew Whitby dated 19 November 2018 and the statement of Melissa Berenger dated 22 November 2018 (collectively marked Exhibit 3); and 4. The results of blood tests taken on 21 September 2018 and 20 November 2018 (Exhibit 4).
4. Ms Withana took objection to the following: 1. Par 27 of Exhibit 1 concerning the Solicitor's dependency on alcohol. We ruled that that sentence should not be struck out, but the evidence would be accepted as evidence of the Solicitor's opinion; 2. The second sentence in par 30 of Exhibit 1 in which the Solicitor states that there had been a significant decline in his mental health. The objection was that that evidence could not be accepted as evidence of an expert. We agreed but ruled that the sentence should be accepted as evidence of the Solicitor's opinion; and 3. Par 44 of Exhibit 1 in which the Solicitor states that he had become increasingly physically and psychologically dependent upon alcohol. Again, the objection was to the effect that it could only be accepted as the opinion of the Solicitor. We agreed and ruled that the sentence should be accepted on that basis.
5. In relation to other objections raised by Ms Withana, we briefly record our rulings: 1. Pages 22 - 47 in the folder provided to the Tribunal were rejected; 2. Page 96 - the bottom half of this page was rejected under the heading 'Medications'; 3. The bottom half of page 99 from the heading "Intervention and Results" was rejected; and 4. Page 101 was rejected.
6. Two blood tests, one dated 21 September 2018 and the other dated 19 November 2018 were the subject of submissions made by Mr Mack to the effect that they indicated that the Solicitor had substantially reduced the intake of alcohol since 21 September 2018. These blood tests were objected to by Ms Withana. We ruled that they would not be rejected, but given very little weight. This was because they were tendered in isolation without the supporting evidence of an expert as to their provenance or explaining their meaning.
7. The Applicant did not wish to cross-examine the Solicitor or the Solicitor's witnesses.

Applicant's Submissions

1. The Applicant's submissions may be summarised as follows: 1. In the light of the Solicitor's evidence, in particular, his evidence explaining his conduct and his personal circumstances consistent with the duty described in Re Veron; Ex parte Law Society of New South Wales [1966] 1 NSWR 511 at [515] - and his evidence of insight and active efforts towards rehabilitation, the Applicant no longer seeks the Solicitor's removal from the roll; 2. The Applicant seeks orders to the effect that the Solicitor be reprimanded and that should he apply for a practising certificate, he should draw to the attention of the relevant authority the fact of these proceedings and the proceedings set out in the Liability Decision. In addition, the Applicant sought costs; 3. Disciplinary proceedings, and thus disciplinary orders principally have a protective function to protect the public and the integrity of the profession from the misconduct of lawyers; Wentworth v NSW Bar Association (1992) 176 CLR 239 at [252]. A related objective is maintaining proper standards in the legal profession and setting an example to other lawyers: De Pardo v Legal Practitioners Complaints Committee [2000] 97 FCR 575 at [42]; 4. The question for the Tribunal is to determine whether the Solicitor is unfit to practise. The question of fitness to practise is "to be decided at the time of hearing" as opposed to at the time of the impugned conduct is said to have occurred: A Solicitor v The Council of the Law Society of New South Wales [2004] 216 CLR 253 at [268]. That is, the proper enquiry is one of present fitness to practise; 5. Whether a practitioner fully appreciates and understands the wrongfulness of their conduct is of central importance to a Tribunal in determining whether there is a risk of recurrence of further misconduct; and 6. Acknowledgement of error is an indispensable starting point in determining that a solicitor is not unfit. Contrition is also an important consideration in determining the appropriate orders to be made and may, if accepted as honest, indicate no occasion for protection exists: Childs v Walton (unreported) 13 November 1990 (Samuels JA with whom Priestley JA and Meagher JA agreed).
2. The Applicant submitted that the Solicitor's evidence discloses that at the time of the events of 5 October 2014, the Solicitor had been diagnosed with alcoholism but had only intermittently engaged in treatment. The Solicitor's evidence explained that he experienced anxiety and depression since in or around September 2017 coinciding with the pending proceedings in this matter and that that explains his untreated alcoholism and onset of anxiety and depression causing him to disengage and ignore the proceedings before the Tribunal, including not attending the hearing in February 2018.
3. The Applicant submitted that the Solicitor's evidence displays that it is apparent that he now understands the gravity of his conduct and has remorse for that conduct and sufficient insight to understand the causes of that conduct, and to begin to address the underlying alcohol and depression related problems that lead to that conduct. He has committed to a course of rehabilitation with a realistic and honest understanding of his limitations. It is clear he understands the need for ongoing and demonstrated rehabilitation should he wish to remain in legal practice.
4. The Applicant accepted that the Solicitor is genuinely contrite and has an understanding of the wrongfulness of his conduct, the seriousness of his failure in respect of that conduct and his failure to confront the proceedings and provide an adequate explanation. His intention to practise law in the future, together with his insight into his behaviour and contrition, indicate that in the Applicant's view, he is at low risk of reoffending and unlikely to be an ongoing risk to the professions' reputation or the public should he practise again.
5. The Applicant accepts that the conduct was isolated in nature in light of the Solicitor's disciplinary history and explicable in the light of his untreated (or poorly treated) alcoholism, depression and anxiety. There is no evidence so far as the Applicant is aware to suggest that the Solicitor has engaged in similar conduct to the conduct of the evening of 5 October 2014. Accordingly, there is no protective utility in striking off the Solicitor and removing his name from the roll. The Applicant accepts that Solicitor's evidence indicates that he is not, at the time of this hearing, presently unfit to remain in practice.
6. In respect of the character statements attesting to the Solicitor's good character, the Applicant submitted that the Tribunal should place little weight on two of the testimonials as they were provided by non-lawyers.
7. In support of the proposed orders, the Applicant submitted that they are appropriate in circumstances where: 1. The Solicitor is a fit and proper person to remain on the roll for the reasons outlined above; 2. The Solicitor has no disciplinary history by way of disciplinary action; 3. The Solicitor does not presently hold a practising certificate and has not since 1 July 2016; and 4. The publication of reasons for the misconduct finding (as well as, in time, the reasons for and form of penalty) will serve as a public disavowal of the Solicitor's conduct and will also serve to achieve specific and general deterrence.
8. The Applicant seeks an order for costs and points to the provisions of cl 23(1) of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NCAT Act).

Solicitor's Submissions

1. At the conclusion of the Applicant's submissions, Mr Mack tendered the proposed draft orders which Ms Withana indicated could be made with the Applicant's consent. In summary, they provide for the Solicitor to be reprimanded, for the Solicitor to be required to disclose the proceedings to the appropriate regulatory authority in the event that the Solicitor applies for a practising certificate and an order for costs. In addition, the orders make provision for the anonymisation of these proceedings such as to remove the Solicitor's name from this decision and from the earlier published Liability Decision.
2. The Solicitor accepts that the orders now proposed are appropriate and, in addition, the Solicitor seeks an order pursuant to s 64(1)(a) of the NCAT Act that his name where appearing in the Liability Decision be replaced with a pseudonym, and where appearing in any further publically available reasons, be replaced with a pseudonym.
3. We elaborate upon these submissions seeking anonymisation in the following paragraphs. Section 64(1)(a) and (4) of the NCAT Act provide: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal)... … (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
4. The Solicitor submitted that the discretion when read with other powers of the Tribunal is broad enough to encompass anonymisation of reasons previously published by the Tribunal. The other powers include the power of the Tribunal to "determine its own procedure in relation to any matter" (s 38 of the NCAT Act) and the power to make "any amendment to any document filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice" with any such amendments being able to be made "at any stage of the proceedings" and "on such terms that the Tribunal thinks fit" (ss 53(1) and (2) of the NCAT Act).
5. Notwithstanding, the existence of the discretion, the "touchstone", is one of open justice which is reflected in s 49 of the NCAT Act (as it relates to a hearing). The relevant principles are contained and applied in a decision of Deputy President Boland ACDJ in Council of the Law Society of NSW v CZD [2017] NSWCATOD 31. A further example of the exercise of the discretion is contained in Law Society of New South Wales v CQS [2016] NSWCATOD 100.
6. The Liability Decision has been publicly accessible since it was published. Relevant background material was not before the Tribunal and was not available to the Applicant. The reasons why it was not available are explained in the statement of the Solicitor who states, inter alia, that he "put his head in the sand and felt unable to participate". The nonparticipation of the Solicitor does not reflect a carefree attitude to the process of the Tribunal. Rather, his nonparticipation was a function of his underlying mental health and alcohol addiction.
7. The Solicitor frankly concedes that he was aware that the proceedings would not go away and that his drinking largely continued "through the first half of 2018".
8. The Solicitor's counsel submitted that the Tribunal should consider the appropriate consequential order and also the exercise of the discretion in s 64 in light of the Solicitor's recent attempts to remain sober and his recent success in doing so. The disclosure of the Solicitor's name in the decision and the reasons contained in the Liability Decision no doubt will cause the Solicitor embarrassment and distress. Indeed, his evidence was that he was "horrified" by the events described in the Liability Decision. His evidence was that the events have resulted in a sense of despair and disappointment at the extent to which "my inability to overcome my dependence on alcohol has resulted in the current disciplinary proceedings".
9. The Solicitor's submissions state that the underlying cause of the Solicitor's conduct has been his alcoholism in combination with his mental health. Managing these issues will prevent reoffending.
10. In relation to the protective function of the Tribunal, the Solicitor's submission is that the Tribunal can take a level of comfort from the proposed orders as they will ensure that the relevant regulatory authority is apprised of both the Liability Decision and this decision and therefore can obtain up-to-date information regarding the Solicitor's underlying condition.
11. The submissions further state that the issue of general deterrence, public disavowal and public interest need to be balanced against the effect of publication on the Solicitor and his future. In particular, the Tribunal needs to balance: 1. The future employment prospects of the Solicitor if details of the matter are publically accessible; 2. The facilitation of the Solicitor's re-entry into the legal profession; 3. The Solicitor's contrition and remorse; 4. The Solicitor's ongoing rehabilitation; 5. The Solicitor's growing insight into his alcoholism and mental health condition; 6. The Solicitor's self-awareness in relation to his condition as evidenced by the non-renewal of his practising certificate since the events which have resulted in these proceedings came to his attention; and 7. The overall utility and public interest in assisting individuals afflicted by mental illness and addiction to maintain a full life in the broader community and integration into the workforce wherever possible.
12. The Solicitor's submission concludes by stating that the Solicitor submitted that the public interest function served in the naming of the parties to proceedings is, in this instance, outweighed by public interest in supporting and facilitating the Solicitor's continuing rehabilitation and future career development.

Consideration

1. At the conclusion of the hearing, we indicated to the parties that we proposed to make the orders in terms of the draft jointly provided to the Tribunal. What follows are our reasons for coming to the conclusion that those are the appropriate orders.
2. The Solicitor is in his early 40's and was admitted in 2006. We are satisfied that for a number of years, he has been an alcoholic and has suffered mental health issues resulting in anxiety and distress.
3. For a number of years the Solicitor has attempted to deal with his addiction by seeking medical assistance and attending Alcoholics Anonymous meetings. The Solicitor's evidence is detailed and exhibits a very high level of addiction having serious consequence for his daily life including his ability to maintain employment. His evidence reveals, in our view, a genuine and deeply felt sense of shame, embarrassment and regret at what has caused these disciplinary proceedings to be commenced.
4. The Solicitor's evidence is also that he has made recent and somewhat successful attempts to deal with his addiction. His evidence is that he has been sober for the last couple of months and that he is regularly attending meetings of Alcoholics Anonymous. The Solicitor frankly conceded that he cannot give an undertaking that he will never drink again, but he stated that it was his intention to abstain from alcohol on a permanent basis. His further evidence was that although he has not held a practising certificate for the last two years, in the event that it is possible to obtain future employment as a lawyer, he would be keen to do so.
5. We agree with the submissions of the Applicant that the evidence is not such as to enable us to confidently find that the Solicitor is presently unfit to practise. The conduct which gave rise to the finding of professional misconduct was "one off" in the sense that it occurred on a single evening. There is no other evidence of misconduct by the Solicitor.
6. We agree with the submissions that the Solicitor's lack of involvement in the Tribunal proceedings at an earlier stage does not reflect a carefree or disrespectful attitude to either the Tribunal or to his professional obligations. Rather, the Solicitor's lack of participation in the Tribunal proceedings is in our view, reflective of his battle with alcoholism and related mental health issues.
7. In the circumstances, we are of the view that the protective function which the Tribunal must not ignore is sufficiently taken care of by the proposed order requiring the Solicitor to inform the appropriate regulatory authority of these proceedings in the event that he applies for a practising certificate. The regulatory authorities can then make what further enquiries they deem appropriate.
8. A further reason for our decision to find that a reprimand is appropriate in the circumstances is evidence that the Solicitor is genuinely contrite and has an understanding of the wrongfulness of his conduct. We agree with the Applicant that he is at low risk of reoffending and is unlikely to be an ongoing risk to the professions reputation or to the public.
9. In coming to the above conclusion, we have given very little weight to the two testimonial statements of non-lawyers provided by the Solicitor. Broadly speaking, they state that the Solicitor is of good character. However, our findings are very much dependent upon the Solicitor's own evidence.

Anonymisation

1. We now turn to the question of whether it is appropriate to make the order sought by the Solicitor (and not opposed by the Applicant) for this decision to be anonymised and for the Liability Decision to be similarly anonymised.
2. We have been referred to three decisions concerning s 64 of the NCAT Act, namely: 1. Council of the Law Society of NSW v CZD [2017] NSWCATOD 153; 2. Law Society of New South Wales v CQS [2016] NSWCATOD 100; and 3. Council of the Law Society of NSW v CZD [2017] NSWCATOD 31.
3. These decisions refer to and support the well understood principle that the administration of justice should be open, and that departure from that principle should be limited and well explained.
4. The Solicitor's counsel's submissions in support of anonymisation may be summarised as follows: 1. The disclosure of the Solicitor's name in the Liability Decision undoubtedly caused the Solicitor embarrassment and distress. His statement says as much; 2. The Liability Decision records the precise nature of the offence, and therefore the published decision operates as an effective general deterrent to members of the profession. However, publication of the Solicitor's name will not necessarily operate as a deterrent with respect to the Solicitor's own conduct. The underlying cause of that conduct is alcoholism in combination with mental health. Managing those issues will prevent reoffending; and 3. As recorded above, the protective function of the Tribunal is catered for by the order requiring the Solicitor to inform the regulatory authority in the event of an application for the issue of a fresh practising certificate.
5. We agree with the Solicitor's counsel that the publication of the Solicitor's name will not have any added deterrent benefit so far as the legal profession is concerned, and will not operate as a particular deterrent upon the Solicitor himself. Indeed, we accept the Solicitor's evidence that he has found publication of the Liability Decision to be extremely stressful and we are of the view that his own rehabilitation might be assisted by agreeing to make the anonymisation order.
6. Accordingly, we are of the view that it is desirable in the interests of the Solicitor's mental health and his continuing abstinence from alcohol for us to make an order under s 64 prohibiting the disclosure of the name of the Solicitor.
7. In the circumstances, we propose to make the orders proposed by the Solicitor and consented to by the Applicant. Those orders are set out in the following paragraphs.

Orders

1. The Tribunal makes the following orders (using the term "respondent" to refer to the Solicitor): 1. Pursuant to section 562 of the Legal Profession Act 2004: 1. The respondent be reprimanded; 2. The respondent, should he apply for a practising certificate from either the Law Society of NSW or the NSW Bar Association (or equivalent inter-state regulatory authority), must: 1. draw these proceedings to the attention of the relevant regulatory authority from which a practising certificate is sought; and 2. provide the relevant regulatory authority with an updated medical and alcohol treatment report; 1. The respondent pay the applicant's costs; 2. From the date of these orders, pursuant to s 64(1)(a) and (4) of the Civil and Administrative Tribunal Act 2013 and until further order, the name of the respondent or anything that identifies the respondent or is likely to lead to the respondent's identification shall not be disclosed in any of the Tribunal's reasons for decision; 3. Notwithstanding Order 3, there may be disclosure or publication of any of the matters referred to in those orders as follows: 1. where permitted pursuant to s 462 of the Legal Profession Uniform Law; and/or 2. Through the sharing of information between the applicant, the Legal Services Commissioner, the Law Society of New South Wales and the Council of the New South Wales Bar Association as provided in s 158 of the Legal Profession Uniform Law Application Act 2014; and/or 3. through the sharing of information with any entity or body equivalent to the Applicant, the Legal Services Commissioner, the Law Society of New South Wales and the Council of the New South Wales Bar Association in another jurisdiction for the purposes of the performance of the functions of any of the Applicant, the Legal Services Commissioner, the Law Society of New South Wales or the Council of the New South Wales Bar Association or the equivalent entity or body under the Legal Profession Uniform Law, the Legal Profession Uniform Law Application Act 2014 or equivalent legislation in another jurisdiction. 1. Note that s 582(3) of the legal Profession Act 2004 (NSW) (repealed) requires that the name and other identifying particulars of the person against whom disciplinary action is taken, and the kind of disciplinary action taken, must be recorded in the Register of Disciplinary Action. 2. Note that s 577 of the Legal Profession Act 2004 (NSW) (repealed) states that the Register of Disciplinary Action is to include: the full name of the person against whom disciplinary action was taken; the person's business address or former business address; the person's home jurisdiction or most recent home jurisdiction; the particulars of the disciplinary action taken; and other particulars prescribed by the regulations. 3. Note that r 173 of the Legal Profession Regulation 2005 (NSW) (repealed) states that the following must be included in the Register for Disciplinary Action in relation to a person: the person's professional capacity in which the conduct complained occurred; the regulatory authority that took the disciplinary action; the date of the decision and if different, the date the disciplinary action was taken; a description or summary of the conduct that is the subject of the disciplinary action; and the date and jurisdiction of the person's first and each later admission to the legal profession.
2. We also direct the Registry to amend the Liability Decision by anonymising the name of the respondent.

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: 14 December 2018