On 17 November 2015 the Legal Services Commissioner, John McKenzie (the Commissioner) filed an Application for Disciplinary Findings and Orders against the Respondent, John Patrick Miskell (the Respondent).
In the application the Commissioner sought the following orders:
(1) A finding that the Respondent is guilty of professional misconduct.
(2) The Respondent is publicly reprimanded.
(3) If, at the time the Tribunal makes its order the Respondent holds a practicing certificate, the Respondent's practising certificate be suspended until such time as the Respondent complies with the s 660 notice.
(4) If, at the time the Tribunal makes it orders the Respondent does not hold a practicing certificate, no practicing certificate be issued until such time as the Respondent complies with the s 660 notice.
(5) The Respondent is to pay the costs of the application as agreed or assessed.
(6) Such further orders as the Tribunal sees fit.
On 17 November 2015 the Commissioner also filed an affidavit affirmed by him on 13 November 2015.
On 30 March 2016 the Respondent filed a Reply to application for disciplinary findings.
On 10 May 2016 the Respondent filed the following affidavits:
1. The affidavit of Owen O'Donnell sworn on the 9 May 2016;
2. The affidavit of John Keesing sworn on the 10 May 2016;
3. The affidavit of Dr Carlo Penna sworn on the 9 May 2016.
On 25 May 2016 an Instrument of Consent bearing the signatures of the Commissioner and the Respondent was filed pursuant to s 564 of the Legal Profession Act 2004 ("the Act"). This instrument was dated 23 May 2016 and includes an Agreed Statements of Facts.
The hearing of the application took place before us on 29 June 2016. Ms Millar, solicitor appeared for the Commissioner and Mr Beauchamp of Counsel appeared for the Respondent (who was also present). The affidavits referred to above were received without objection.
At the hearing we suggested to the parties that the Instrument of Consent be amended in two respects: first, that the word "publicly" be deleted from proposed consent order 2 and, secondly, that a heading be inserted above par 17. That heading should contain these words "Further Considerations Responsive to both Grounds". A direction was made to the parties (and not opposed) to file an amended Instrument of Consent containing these two alterations. Accordingly, an amended Instrument of Consent was filed on 30 June 2016. It is signed by both the Commissioner and the Respondent and bears the date 29 June 2016.
In these reasons we will refer to the contents of the amended Instrument of Consent filed 30 June 2016. Apart from the two alterations referred to above it is identical in its terms to the Instrument of Consent filed on 25 May 2016.
[3]
Agreed statement of facts
The amended Instrument of Consent seeks the following orders by consent:
1. The Respondent is guilt of professional misconduct in relation to Grounds 1 and 2.
2. The Respondent is reprimanded.
3. The Respondent is to pay the Applicant's costs of and incidental to the filing and hearing of the Application in the agreed sum of $2,000.
4. The Tribunal notes the Respondent's undertaking to comply with the recommendations, medication and, if need be, treatment of a psychiatrist, recommended by the Respondent's doctor.
The amended Instrument of Consent contains the following grounds and facts:
Ground 1: The Solicitor failed to comply with a requirement under s660 of the Act without reasonable excuse.
6. On 12 March 2015, Djekovic, Hearne & Walker solicitors, acting for the Complainant, lodged a complaint with the Office of the Legal Services Commissioner ("the OLSC") about the conduct of the Solicitor ("the Complaint").
7. The OLSC wrote to the Solicitor in relation to the complaint by letters dated 24 March 2015 and 10 April 2015. The Solicitor did not respond to the letter dated 24 March 2015 or the letter dated 10 April 2015.
8. The OLSC wrote to the Solicitor on or about 21 May 2015 seeking information about the complaint. The Solicitor did not respond to the letter dated 21 May 2015.
9. On about 5 June 2015, the Legal Services Commissioner ("the Applicant") issued a notice to the Solicitor pursuant to s660 of the Act requesting further information and documents relating to the complaint ("the Notice dated 5 June 2015"). The Notice dated 5 June 2015 was personally served on the Solicitor on 19 June 2015. The Solicitor did not provide a response to the Notice dated 5 June 2015.
10. On or about 6 July 2015, the OLSC wrote to the Solicitor extending the time for compliance of the Notice dated 5 June 2015 until 10 July 2015. The Solicitor did not provide a response to the letter dated 6 July 2015.
11. On or about 16 July 2015, the Applicant issued a notice to the Solicitor pursuant to s 660 of the Act requesting further information and documents in relation to the complaint ("the Notice dated 16 July 2015"). The Notice dated 16 July 2015 was personally served on the Solicitor on 11 August 2015.
12. On 17 August 2015, the Applicant wrote to the Solicitor, extending the time for compliance with the Notice dated 16 July 2015 until 31 August 2015. The Solicitor did not respond to the Notice dated 16 July 2015.
13. On 7 September 2015, the Legal Services Commissioner wrote to the Solicitor seeking an explanation for the Solicitor's failure to comply with the Notice dated 16 July 2015, by 23 September 2015. The Solicitor did not respond to the letter dated 7 September 2015.
14. The Solicitor admits that there was a failure by the Solicitor to comply with the requirements of section 660 of the Act, without reasonable excuse, and accepts that such failure constitutes professional misconduct.
Ground 2: The Solicitor breached Rule 43.2 of the Solicitors' Rules 2013.
15. Paragraphs 6-14 above are repeated.
16. The Solicitors admits that there was a failure by the Solicitor to comply with the requirements of Rule 43.2 of the NSW Professional Conduct and Practice Rules 2013 ("Solicitors' Rules"), and accepts that such failure constitutes professional misconduct.
Further Considerations responsive to both Grounds
17. The Solicitor has, as at 10 May 2016, provided the Applicant with the information and documents sought in the s660 notices issued on 5 June 2015 and 16 July 2015.
18. In his Reply, filed on 30 March 2016, the Solicitor has apologised to the Applicant for his failings as outlined in this Agreed Statement of Facts.
[4]
Evidence and submissions
Annexed to the affidavit of the Commissioner dated 13 November 2015 were copies of the correspondence with the Respondent and that correspondence included a notice issued pursuant to s 660 of the Act dated 5 June 2015 and a further notice under s 660 of the Act dated 16 July 2015. Ms Millar for the Commissioner relied upon her submissions filed and dated 2 June 2016 and, in addition, made oral submissions. The substance of her submissions is described in the following paragraphs.
On 12 March 2015 a complaint was made to the Commissioner about the Respondent. These proceedings were commenced in relation to the failure of the Respondent to comply with the s 660 notice dated 16 July 2015. The earlier notice was issued on 5 June 2015 but was not pleaded in this application because it was inadvertently not signed.
With effect from 1 July 2015 the Act was repealed and replaced by the Legal Profession Uniform Law Act (the Uniform Law). This complaint was made prior to commencement of the Uniform Law and accordingly by reason of the transitional provision contained in cl 26 of Sch 4 of the Uniform Law this complaint is to continue to be dealt with in accordance with the provisions of the Act as opposed to the Uniform Law.
Clause 26 (contained in Sch 4 of the Uniform Law) is in the following terms:
26 Current complaints and investigations
(1) This clause applies to -
(a) a complaint made under old Chapter 4 but not disposed of before the commencement day; or
(b) an investigation referred to in old Chapter 4 that had begun but had not been completed before the commencement day.
(2) On and after the commencement day -
(a) the complaint or investigation is to continue to be dealt with in accordance with the provisions of the old legislation; and
(b) for that purpose, the complaint or investigation is to continue to be dealt with by the entity responsible for dealing with it under those provisions (the current entity).
(3) Subclause (2)(b) does not apply if a local regulation or other legislation of this jurisdiction directs that another entity referred to in this Law (the substituted entity) is to deal with the complaint or investigation instead of the current entity.
(4) The substituted entity may have regard to anything done by the current entity before, on or after the commencement day but before the direction takes effect.
In cl 1 of Sch 4 the expression "old legislation" is defined to mean the statutory provisions repealed by the Legal Profession Uniform Law Act.
The Commissioner submits that as these proceedings relate to a complaint made under the Act this Tribunal may make orders in accordance with s 564 of the Act.
The Commissioner submits that the Respondent has admitted his failure to comply with the s 660 notice dated 16 July 2015 without reasonable excuse. The effect of s 676(3) and 676(4) of the Act is that an Australian Lawyer who is subject to a requirement under s 660 must not, without reasonable excuse, fail to comply with the requirement contained in the s 660 notice. Contravention of ss 676(2) or (3) constitutes professional misconduct.
The Commissioner submits that it is clear from the facts as agreed in the amended Instrument of Consent and the applicable legislation that the respondent's conduct in relation to Ground 1 amounts to professional misconduct.
The Commissioner submits that the serious consequences that apply for failing to comply with a requirement under s 660 reflect the important obligations of a solicitor to cooperate with, and assist, the regulatory authority in the circumstances of that authority investigating conduct that could amount to unsatisfactory professional conduct or professional misconduct and to ensure that such investigations proceed without impediment.
Ms Millar submitted that it was appropriate for the Tribunal to have regard to the view of the Commissioner that the orders proposed in the Instrument of Consent were appropriate. Ms Millar referred to the decision in Council of the New South Wales Bar Association v Butland [2009] NSWADT 177 where the Tribunal said that the Tribunal does not act, nor should it be seen as merely a rubber stamp. Nevertheless, the consent of the parties and the Legal Services Commissioner are matters that deserve significant weight. In addition Ms Millar referred to Council of the New South Wales Bar Association v Berwick [2016] NSWCATOD 81 in which Members of the Tribunal stated that:
35… we are of the view that if we are persuaded as to the accuracy of the agreed facts and consequences, and that the findings and orders which the parties propose are an appropriate remedy in the circumstances thus revealed, it is consistent with principle and highly desirable in practice for the Tribunal to accept the parties' proposal and therefore make the proposed findings and orders.
Ms Millar referred us to the decision in Council of the Law Society of NSW v Autore [2012] NSWADT 139 which also concerned a failure to comply with s 660 notices. In that case, notwithstanding the solicitor's extensive evidence from his treating psychiatrist as to his depressive state at the time, the Tribunal was satisfied that there was no "reasonable excuse" within the meaning of s 676(3).
Ms Millar submitted that the Respondent has sought to explain his conduct by reference to difficulties he was facing at the time. These difficulties are described in the affidavit of Dr Penna and concern depression and other health issues.
The Commissioner noted that the Respondent has accepted that the explanation provided by the Respondent does not constitute "a reasonable excuse" as required by s 676(3) of the Act for the failure to comply with the s 660 Notice dated 16 July 2015.
[5]
Ground 2 - the solicitor breached rule 43.2 of the Solicitors' Rules 2013
Rule 43.2 of the Solicitors Rule is as follows:
A solicitor must respond within a reasonable time and in any event within 14 days (or such extended time as the regulatory authority may allow) to any requirement of the regulatory authority for comments or information in relation to the solicitor's conduct or professional behaviour in the course of the regulatory authority investigating conduct which may be unsatisfactory professional conduct or professional misconduct and in doing so the solicitor must furnish in writing a full and accurate account of his or her conduct in relation to the matter.
The Commissioner submitted that the Respondent's failure to comply with Solicitors' Rule 43.2 extended over a greater period of time than his failure to comply with the s 660 notice. The first request for information made by the Commissioner to the Respondent in relation to the complaint was on 24 March 2015. Further requests were made on 10 April 2015 and 21 May 2015 prior to the issue of the s 660 notice dated 5 June 2015.
The Commissioner drew attention to the decision of Smart J in Veghelyi v Council of the Law Society of New South Wales, unreported, Supreme Court 6 September 1989 in which his Honour said:
It is important that solicitors respond promptly to the 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.
Ms Millar submitted that as the relevant ground in this matter is pleaded as a breach of Solicitors' Rule 43.2, the Respondent's failure to comply with that rule amounts to statutory professional misconduct either by s 498(1)(a) (there having been a breach of s 674) or by reason of 671 of the Act. In any event, the Respondent has accepted that his failure to comply with rule 43.2 amounts to professional misconduct.
These proceedings were first listed on 10 February 2016. Since that time the Respondent has complied with the orders of the Tribunal by filing a reply on 30 March 2016. The Respondent has also fully complied with the requests made in the s 660 notice dated 16 July 2015 and the relevant responses were provided by letters dated 26 April 2016 and 9 May 2016.
The Respondent has accepted that his conduct in failing to respond to correspondence from the Commissioner and in particular failing to respond to the notice pursuant to s 660 of the Act amounts to professional misconduct.
The Respondent has had no other disciplinary findings against him.
[6]
Respondent's submissions
Mr Beauchamp made oral submissions on behalf of the Respondent. He submitted that there were mitigating factors and they are referred to in the affidavits of Dr Penna, Mr O'Donnell and Mr Keesing.
Mr Beauchamp submitted that the Tribunal should feel comfortable that the problem which the Respondent had experienced will not reoccur and that the undertaking given by the Respondent to comply with the recommendations, medication and, if need be, treatment of a psychiatrist recommended by the Respondent's doctor should be sufficient in the circumstances.
Mr Beauchamp conveyed that the Respondent expressed his regret in not complying with the requirements of the Commissioner but he also pointed out that the Respondent has, since the proceedings were commenced, fully complied with the Commissioner's requirements.
[7]
Jurisdiction
Although the application was filed after the commencement of the Uniform Law we are satisfied that the provisions of the Act properly apply to this matter. This is because cl 26 of the Uniform Law provides that a complaint or investigation begun but not completed before the commencement of the Uniform Law is to continue to be dealt with in accordance with the old legislation. The old legislation not only contained the requirements set out in s 660 but also provided that the Law Society may make rules for or with respect to engaging in legal practice as a solicitor (see s 703 of the Legal Profession Act 20014). The Solicitor Rules 2013 were made by the Law Society and they include rule 43.2. Clause 26 has the effect of requiring this complaint or investigation to be dealt with in accordance with the provisions of the Legal Profession Act 2004 including the Solicitor Rules 2013. Accordingly we are able to deal with ground 2 which is concerned with a breach of rule 43.2.
Section 564 of the Act provides a specific regime for making consent orders in disciplinary proceedings. Section 562 of the Act provides for the orders which the Tribunal may make and the circumstances in which those orders may be made. Section 562 and 564 are set out below:
562 Determinations of Tribunal
(1) Orders generally
If, after it has completed a hearing under this Part 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 any one or more of the orders specified in this section.
(2) Orders requiring official implementation in this jurisdiction
The Tribunal may make the following orders under this subsection:
(a) an order that the name of the practitioner be removed from the local roll,
(b) an order that the practitioner's local practising certificate be suspended for a specified period or cancelled,
(c) an order that a local practising certificate not be issued to the practitioner before the end of a specified period,
(d) an order that:
(i) specified conditions be imposed on the practitioner's practising certificate issued or to be issued under this Act, and
(ii) the conditions be imposed for a specified period, and
(iii) specifies the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed,
(e) an order reprimanding the practitioner,
(f) an order that the name of the practitioner be removed from the roll of public notaries maintained under the Public Notaries Act 1997.
(3) Orders requiring official implementation in another jurisdiction
The Tribunal may make the following orders under this subsection:
(a) an order recommending that the name of the practitioner be removed from an interstate roll,
(b) an order recommending that the practitioner's interstate practising certificate be suspended for a specified period or cancelled,
(c) an order recommending that an interstate practising certificate not be granted to the practitioner before the end of a specified period,
(d) an order recommending that:
(i) specified conditions be imposed on the practitioner's interstate practising certificate, and
(ii) the conditions be imposed for a specified period, and
(iii) the conditions specify the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed.
(4) Orders requiring compliance by practitioner
The Tribunal may make the following orders under this subsection:
(a) an order that the practitioner pay a fine of a specified amount,
(b) an order that the practitioner undertake and complete a specified course of further legal education,
(c) an order that the practitioner undertake a specified period of practice under supervision,
(d) an order that the practitioner do or refrain from doing something in connection with the practice of law,
(e) an order that the practitioner cease to accept instructions as a public notary in relation to notarial services,
(f) an order that the practitioner's practice, or the financial affairs of the practitioner or of the practitioner's practice, be conducted for a specified period in a specified way or subject to specified conditions,
(g) an order that the practitioner's practice be subject to periodic inspection for a specified period,
(h) an order that the practitioner undergo counselling or medical treatment or act in accordance with medical advice given to the practitioner,
(i) an order that the practitioner use the services of an accountant or other financial specialist in connection with the practitioner's practice,
(j) an order that the practitioner not apply for a local practising certificate before the end of a specified period.
Note. This subsection is not an exhaustive statement of orders that must be complied with by the practitioner.
(5) Ancillary or other orders
The Tribunal may make ancillary or other orders, including an order for payment by the practitioner of expenses associated with orders under subsection (4), as assessed or reviewed in or in accordance with the order or as agreed.
(6) Alternative finding
The Tribunal may find that a person has engaged in unsatisfactory professional conduct even though the complaint or disciplinary application alleged professional misconduct or may find that a person has engaged in professional misconduct even though the complaint or disciplinary application alleged unsatisfactory professional conduct.
(7) Maximum fine
The amount ordered by the Tribunal under this section to be paid by way of fines by any one Australian legal practitioner in connection with the Tribunal's findings about a complaint must not exceed in total:
(a) $10,000 in the case of unsatisfactory professional conduct not amounting to professional misconduct, or
(b) $75,000 in the case of professional misconduct.
If the Tribunal finds that the practitioner has engaged in both professional misconduct and unsatisfactory professional conduct not amounting to professional misconduct, the amount must not exceed $75,000 in total.
(8) Reprimands
If the Tribunal makes an order reprimanding the practitioner, the Tribunal is to publish the order and a statement of its reasons for making the order.
(9) It is sufficient compliance with the requirement to publish an order under subsection (8) if the Tribunal provides to the Commissioner sufficient information to enable the Commissioner to exercise the Commissioner's powers or functions in respect of the Register of Disciplinary Action required to be kept under Part 4.10 (Publicising disciplinary action).
(10) (Repealed)
564 Consent orders
(1) The Tribunal may, with the consent of the Australian legal practitioner concerned contained in a written instrument, make orders under this Part without conducting or completing a hearing in relation to the complaint.
(2) Consent may be given before or after the proceedings were commenced in the Tribunal with respect to the complaint.
(3) If consent is given before the proceedings were commenced, the requirement to conduct an investigation of the complaint (whether commenced or not) may be dispensed with, and any investigation of the complaint already being conducted may be suspended or terminated.
(4) This section does not apply to consent given by the practitioner unless the practitioner, the Commissioner and (if applicable) the relevant Council have agreed on the terms of an instrument of consent.
(5) Without limiting what may be included in the instrument of consent, the instrument is to contain an agreed statement of facts (including as to the grounds of complaint) and may contain undertakings on the part of the practitioner.
(6) The instrument of consent must be filed with the Tribunal.
(7) Nothing in this section affects the procedures regarding the commencement of proceedings in the Tribunal where consent was given before the proceedings are commenced.
(8) If consent was given before the proceedings are commenced, the proceedings are nevertheless to be commenced with respect to the complaint in the same way as if the consent had not yet been given.
(9) The Tribunal is to be constituted in the same way as for the conduct of a hearing into the complaint.
(10) In deciding whether to make orders under this Part pursuant to an instrument of consent, the Tribunal may make such inquiries of the parties as it thinks fit and may, despite any such consent, conduct or complete a hearing in relation to the complaint if it considers it to be in the public interest to do so.
We accept the statements of principle set out in the decision of Council of the New South Wales Bar Association v Breeze [2015] NSWCATOD 152. That decision described the making of orders by the Tribunal as serving primarily to protect the public. However, orders may be used to mark the community's disapproval of lapses from the high standard legitimately expected by the public of legal practitioners. Orders also act as a specific deterrence to the legal practitioner involved as well as a general deterrent to all other practitioners. Orders made under pt 4.8 of the Act assist to maintain the proper standards of the legal profession.
As stated in Breeze, ss 564(1) and (10) of the Act make it plain that the Tribunal has a discretion whether or not to make orders consented to in an Instrument of Consent under that section. The Tribunal does not act, nor should it be seen, as merely a "rubber stamp". Nonetheless, the consent of the parties and the Legal Services Commissioner are matters that deserve significant weight.
[8]
Consideration
We are satisfied as to the accuracy of the agreed facts, and that the findings and orders that the parties purpose are an appropriate remedy in the circumstances. Or, to adopt the language used by the Tribunal's antecedent in Bar Association v Butland we consider that the orders proposed to and consented to by the parties are appropriate and within the permissible range of orders that could legitimately have been made.
We note that by reaching agreement with the Commissioner and jointly proposing the Instrument of Consent with the Commissioner the Respondent has contributed to a saving of public expense involved in a contested hearing and such an approach is reflective of the regret which the Respondent has expressed in failing to comply with the Commissioner's requests.
We have also taken into consideration the factors referred to in the decision in Council of the Law Society of New South Wales v Tsalidis (3) [2012] NSWADT 229. In par 24 of that decision a number of factors were identified for consideration. In this case the length of time during which the Respondent failed to comply with requests or directions to assist the Commissioner was considerable. There were a number of requests made by the Commissioner. However, the Respondent has provided to the Commissioner the information and documents sought in the s 660 Notices. The Respondent has also apologised and has provided evidence which gives us confidence that the factors which contributed to the Respondent not complying with his obligations will not reoccur.
We note that the Commissioner does not seek that a fine be imposed on the Respondent. We are satisfied that it is not appropriate to impose a fine on the Respondent. We note that in the matter of Council of the Law Society of NSW v Autore a fine of $3,000.00 was imposed. However the circumstances were different to these proceedings in that the respondent in the Autore proceedings did not cooperate with the regulatory authority in the manner in which the Respondent has in these proceedings and in particular in the Autore matter there was no Agreed Statement of Facts or Instrument of Consent.
In Council of the Law Society of NSW v Beazley [2014] NSWCATOD 147 the respondent solicitor was fined $1,000.00. The facts in that case included noncompliance with a s 660 notice. Again the parties were not able to enter into an Agreed Statement of Facts or Instrument of Consent.
We are of the opinion that given the factors set out below it is not appropriate to impose a fine on the respondent:
1. The fact that the Respondent has provided the information and documents required in the s 660 notice;
2. The Respondent has cooperated with the Commissioner by agreeing to the Statement of Facts and the Instrument of Consent; and
3. The Respondent's prior clear record.
[9]
Findings and orders
We are satisfied that the grounds of the application have been made out and we are satisfied that the orders proposed in the amended Instrument of Consent are appropriate.
Accordingly, the Tribunal makes the following orders by consent:
1. The respondent is guilty of professional misconduct in relation to grounds 1 and 2 of the application;
2. The respondent is reprimanded;
3. The respondent is to pay the costs of an incidental to the filing and hearing of the Application in the agreed sum of $2,000.00; and
4. The Tribunal notes the respondent's undertaking to comply with the recommendations, medication and, if need be, treatment of a psychiatrist recommended by the respondent's doctor.
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: 22 July 2016