115 In a postscript to this letter, dated 30 July 1999, he reiterated that his involvement in the case was suspended, specifying 12 noon on 29 July as the time when this occurred. This postscript was preceded by two headings: 'Formal Notice Suspending Work Pursuant to Fee Agreement' and 'Protection in Relation to Professional Indemnity Insurance'.
116 On 9 August 1999, the Barrister sent a fax to Mr Evers, referring to a letter from Mr Evers dated 28 July (which is not in evidence), asking for an urgent conference regarding fees and threatening to return the brief on 23 August if all outstanding fees were not paid by that day.
117 On 18 August, the Barrister wrote to Mr Evers enclosing a 'Memorandum of Advice' purporting to 'confirm' his 'recollection' of a five-minute consultation with Mr Evers on 13 August. In the course of a review of what had occurred during his retainer, he wrote that he had informed Mr Evers at that consultation that he would not 'come back into this case' unless (a) outstanding fees were paid and (b) sufficient funds were placed in Mr Evers' trust account to cover 'the detailed preparation of the case for hearing' and 'the cost of the trial'. As mentioned earlier, the trial had been fixed to commence on 15 November, with an estimated duration of three weeks. The Barrister said also that he had told Mr Evers that if the fees were not paid by 23 August, 'his further involvement in this case would be unilaterally terminated, without further notice'.
118 In the final paragraph of this 'Memorandum of Advice', the Barrister wrote that it should be read 'in conjunction with my Letter of Demand addressed to my instructing solicitors and dated 17 August 1999'. This letter was not in evidence in these proceedings.
119 In a strongly worded letter dated 19 August 1999 to the Barrister, Mr Evers wrote that he had been 'shocked' to receive the letter of demand and memorandum of advice following his 'diplomatic approach' on 13 August. He set out a number of reasons why the total amount demanded by the Barrister should not be paid, including that the lengthy opinion written and charged for by the Barrister did not adequately serve the required purposes and that Mr and Mrs Flanagan had been anxious to keep costs to a minimum. He concluded by saying that he would refer the disputed memoranda of costs to an appropriate authority for assessment and that the amount assessed would be paid by his firm to the Barrister, in the absence of payment by Mr and Mrs Flanagan.
120 On or about 19 August 1999, Mr Evers gave a copy of the Barrister's fourth memorandum to Mr and Mrs Flanagan. According to Mrs Flanagan's affidavit in these proceedings, Mr Evers said to them: 'This is not going to get paid. It will have to be assessed.'
121 In a letter to Mr Evers dated 20 August 1999, relating to the outstanding fees, the Barrister suggested that 'we have an urgent conference, to see if we are able to settle this matter'. He added that if it could not be settled, we will have to revert to our respective positions and take the appropriate action'. He enclosed a second 'Memorandum of Advice', comprising 46 pages of double-spaced text, explaining why in his view the work that he had done was in conformity with his retainer and justified in the circumstances. He indicated that he would have no objection to a copy of the Memorandum of Advice being supplied to Mr and Mrs Flanagan.
122 In the concluding paragraphs of the Memorandum, the Barrister repeated his suggestion of an urgent conference, to settle the issue of outstanding fees. He added that he would be prepared to act in the forthcoming mediation, fixed for 20 September, and/or the trial, fixed to commence on 15 November, if this issue could be satisfactorily resolved and arrangements made for payment of the further fees that would be incurred.
123 On 6 September, the Barrister wrote to Mr Evers suggesting a 'timetable' for the payment of the outstanding fees by Mr and Mrs Flanagan by instalments. He proposed initial payments of $10,000 for disbursements and $50,000 on account of costs by 20 September, a further payment of $50,000 by 15 October and payment of the balance of $40,441.05 by 1 November 1999.
124 A single-page file note tendered by the Barrister purported to record a 30-minute conference with Mr Evers on 23 September 1999, in which, it would appear, 'an off the record settlement of say $60,000 to $70,000' was proposed, presumably by the Barrister. This 'off the record conference' was referred to by the Barrister in a short letter to Mr Evers dated 28 September.
125 In a letter dated 12 October 1999 to Mr Evers, the Barrister indicated that he was 'prepared to compromise in order that a quick settlement can be achieved' in relation to the outstanding fees. He asked Mr Evers to telephone him to arrange negotiations.
126 On 8 November 1999, the Barrister applied to the Supreme Court for assessment of the fourth and fifth memoranda of costs. On the same day, he wrote in yet another Memorandum of Advice that he was still prepared to enter into settlement negotiations, even though he had made this application.
The Bar Association's submissions on penalty
127 Mr Menzies contended that the evidence just outlined demonstrated three important matters, which provided significant support for his claim that the Barrister should be removed from the roll. These are as follows.
128 First, the Barrister was evidently filling in his working days performing tasks for Mr and Mrs Flanagan because he had virtually no other professional commitments. He was consciously enlarging the scale of the work required by his retainer.
129 Secondly, the Barrister admitted that he would have accepted the full amount charged if it had in fact been paid without objection. Moreover, as he made the diary entries, noting smaller amounts for the day's work in expectation of having to compromise eventually, he was conscious each day of his intention to charge in the first instance fees which might not be at all justifiable.
130 Thirdly, despite this claim that all along he anticipated and was prepared to accept a reduced amount by way of compromise, his initial stance in his correspondence with Mr Evers regarding the fees was an aggressive one. He said that unless they were paid in full within a stipulated period, he would withdraw from the case. He did in fact purport to withdraw, in his 'postscript' dated 30 July 1999. He made further threats to withdraw on 9 and 18 August. It was only after Mr Evers' letter to him dated 19 August, in which Mr Evers vigorously disputed the amount of the costs and threatened to refer them to an assessor, that the Barrister suggested, in his reply of 20 August, that they have an 'urgent conference' to discuss a compromise. In his letter of 6 September, he still required full payment, though he suggested that it could be by instalments. It was not until 23 September that a compromise figure of $60,000 - $70,000 was mentioned.
131 In the light of this evidence, Mr Menzies submitted that the Barrister exhibited no genuine contrition regarding his conduct. Any apparent contrition, he said, 'rings hollow in the circumstances where, had he been able to get away with it, he would have continued to charge and claim what he claimed'. Furthermore, there was no admission by the Barrister as to the facts, let alone culpability (except on the lesser charge of unsatisfactory professional conduct), until late in the present hearing.
132 A basic proposition urged by Mr Menzies was that the scale of overcharging was 'egregious' and 'intolerable'. The fact that it resulted chiefly from overservicing rather than charging an excessive rate for each hour or day worked did not diminish the seriousness of the Barrister's conduct, since he was, in effect, 'turning this case into a job'. Furthermore, the total amount ultimately charged, exceeding $150,000, was grossly out of proportion to the scale of Mr and Mrs Flanagan's claim.
133 In contrast to the situation in Veghelyi (Veghelyi v. The Law Society of New South Wales, Unreported, Court of Appeal, NSW, 6 October 1995 (BC950549)), where numerous clients were subjected to overcharging, it was only in one matter that the Barrister engaged in such conduct. But in Mr Menzies' submission, the repeated overcharging of Mr and Mrs Flanagan on virtually a daily basis was 'equivalent' to the overcharging of a number of clients.
134 In all these circumstances, Mr Menzies submitted, it was insufficient for the Tribunal merely to accept an undertaking not to practise. Only an order striking the Barrister off the roll would serve 'the very powerful public interest in general deterrence'. His response to some specific arguments of Ms Anderson, noted below, as to why on grounds of sympathy we should refrain from this severe measure was that such considerations should not be allowed to prevail where the Tribunal's duty to make an order for removal was clearly established.
The Barrister's submissions on penalty
135 Ms Anderson advanced a number of reasons why acceptance of the Barrister's undertaking not to seek a future practising certificate, coupled with a reprimand or, as suggested by us, an order suspending his practising certificate, was entirely sufficient to serve the professional and public interests involved.
136 She placed reliance, in this context, on some further observations of Mahoney JA in Veghelyi. Near the beginning of his judgment, at 2, his Honour made some critical comments on the length of time - nearly four years - that had elapsed between the orders made by the Legal Profession Disciplinary Tribunal and the hearing in the Court of Appeal. He then noted that the Law Society had satisfied itself that because Mr Veghelyi, the solicitor charged, was no longer practising the determination of his final position was less urgent than it otherwise would have been. Mahoney JA then added that 'if he was a person not fit to be a solicitor, the position of the public was protected by his undertaking not to practise'.
137 Referring again to Veghelyi, Ms Anderson submitted that the present case involved much less serious misconduct, since it occurred on only one occasion. Moreover, in considering the scale of overcharging, it should be borne in mind that the costs assessor took account of the costs invoiced in the first three memoranda, totalling $91,470. In the absence of any finding by him that these were excessive, the true picture was therefore that the Barrister charged about $240,000 when he should, when the assessor's determination is taken into account, have charged about $120,000. On this basis, the Barrister charged twice, not nearly five times, what was fair and reasonable. This scale of overcharging was distinctly less than anything characterised as 'gross' in Veghelyi.
138 In Ms Anderson's submission, the overcharging occurred because, in grappling with Mr and Mrs Flanagan's difficult situation, the Barrister became unduly obsessive. He also became unduly concerned about the prospect that, if he did not discharge his brief thoroughly, he might be liable in professional negligence. In these ways, he 'lost the plot'.
139 It was not, moreover, a case of charging clients for work that had not been done, but of spending, through a clear error of judgment, an excessive period of time performing the required tasks. Furthermore, Mr Evers had been, in the words of the costs assessor, 'extremely lax' in the manner in which he briefed the Barrister. This compounded the difficulties that the Barrister faced.
140 Ms Anderson sought to dispel any inference of dishonesty or deviousness arising from the evidence contained in the diaries or the tax return. She claimed that the Barrister's recording of the fees that, for each day's work, he expected to be able to obtain ultimately through a compromise was entirely in accordance with a common recognition that barristers do not always receive the full amount of the fees that they charge.
141 She disputed also Mr Menzies' contention that the entries in the pocket diary were sufficient to rebut any claim that the Barrister showed contrition. There were, she submitted, a number of other clear indications that the Barrister acknowledged, and was very sorry for, the deficiencies in his conduct. He had said this clearly in an affidavit filed in these proceedings. More importantly, he had elected, even before he finally conceded the factual allegations, not to subject Mr and Mrs Flanagan to cross-examination on the affidavits that they had filed, on account of concern for the distress to which this would expose them.
142 Ms Anderson indicated that the Barrister had been in practice for some 30 years and that during this time he had been found guilty of only one professional misdemeanour. This occurred in 1982 and took the form of speaking to a witness who was under cross-examination. The penalty was a fine.
143 She relied also on three positive character references annexed to the Barrister's affidavit. They were from Mr Bruce Stratton QC and from Mr Peter Dwyer and Mr Glen Miller of Counsel. Each of these referees stated that they were aware of the charge laid and proved in 1982 and of the nature of the present informations. They all said that they believed the Barrister to be of good fame and character. Mr Dwyer and Mr Miller said that, according to their assessment of him, the matters alleged in the informations would not have occurred by virtue of dishonesty or deviousness on his part.
144 Ms Anderson drew attention to some unhappy aspects of the Barrister's early life, upbringing and present circumstances, the nature of which was set out in his affidavit. She emphasised that, seeing that he was relinquishing practice in any event after 30 years of professional life, an order removing him from the roll would be highly distressful for him. It would be all the more distressful because his daughter was currently studying law with a view to practice.
145 On these grounds, Ms Anderson submitted that an order removing the Barrister from the roll would be excessively severe and hurtful to him having regard to the level of misconduct in which he had engaged, and was not necessary to protect professional and public interests in the light of his undertaking to relinquish legal practice.
Our conclusions on penalty
146 As indicated above at [74], Mr Menzies submitted that the Tribunal could conclude that the Barrister's conduct in relation to the fourth and fifth memoranda of costs amounted to professional misconduct without having made a finding that he was guilty of 'dishonourable' or 'disgraceful' conduct, as defined in authorities such as Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. But he argued that, in view particularly of the Barrister's knowledge of Mr and Mrs Flanagan's 'vulnerability' (in both the senses that we have outlined), the Tribunal should in fact make such a finding.
147 When the evidence that we have just outlined is taken into account, this submission should in our view be accepted. What this evidence shows is that, from an early stage, the Barrister was conscious of the fact that he was devoting such a large amount of time to his work for Mr and Mrs Flanagan that his charges, if calculated at his hourly rate of $250, were highly likely to be excessive. Yet in his correspondence with Mr Evers, the stance that he adopted for nearly two months after he rendered the fourth memorandum of costs was, in the ways that we have outlined at [112 - 124] above, most aggressive. It was not until 23 September - three months after this memorandum - that he actually suggested a significantly reduced figure by way of compromise.
148 Even allowing for delays on Mr Evers's part in responding to the Barrister's communications, we believe that it was 'dishonourable' and 'disgraceful' on the Barrister's part to maintain over several weeks this demand for full payment of a grossly excessive amount by way of costs. The same epithets apply to his threats to cease acting for Mr and Mrs Flanagan - whom he knew or ought to have known to be under extreme pressure - unless within a short period of time they, or their solicitor, complied with his demand. He made these threats when he knew, or should have known, that they were likely to believe that a newly briefed barrister would have insufficient time to prepare to represent them adequately at the forthcoming mediation or, if it failed, at the forthcoming trial.
149 We agree also with Mr Menzies' characterisation of the level of overcharging as 'egregious' and 'intolerable'. We do not accept Ms Anderson's argument that the costs assessor implicitly held the costs charged in the first three memoranda - totalling $91,470 - to have been fair and reasonable, and that therefore, seen overall, the Barrister should be treated as having charged Mr and Mrs Flanagan twice, not nearly five times, a fair and reasonable amount for his services. The reason why we reject this argument is that the cost assessor was not asked to determine the reasonableness of the costs charged in the first three memoranda. He did not have before him the material on which he could do so. The level of the Barrister's overcharging must be assessed, as Count 2 alleges, by reference to the fourth and fifth memoranda only.
150 We also agree with Mr Menzies's submission regarding contrition, to the extent that it drew attention to the lateness of the Barrister's acknowledgment that his behaviour had been improper.
151 We have given careful consideration to whether, in the light of these conclusions, we should accede to Mr Menzies' argument that, even allowing for the effect of the Barrister's undertaking never to seek a practising certificate and the power that we have to declare that he should in any event be prohibited from applying for one for a specified period, the only proper order is one removing him from the roll.
152 In this context, we are conscious of the consideration, recently emphasised by the Court of Appeal in New South Wales Bar Association v Cummins [2001] NSWCA 284, that decisions of the Court, and by extension this Tribunal, in cases of improper conduct by lawyers play an important role in assuring the public that high standards of professional integrity are and must continue to be maintained by lawyers. We also acknowledge the force of Mr Menzies' contention that, in appropriate cases, practitioners who are found guilty of professional misconduct should be removed from the roll in order to deter others from engaging in similar behaviour.
153 With reference specifically to the difference between removal from the roll and suspension from practice, and to the significance in these circumstances of acceptance of a practitioner's undertaking not to practise in the future, we have obtained useful guidance from three interstate cases that were not cited to us at the hearing. In each of them, it is emphasised that, in cases of serious professional misconduct, lesser measures such as these may not serve all the purposes that are served by an order of removal.
154 In the case of In re a Practitioner (1984) 36 SASR 590, the practitioner, over three and a half years, persistently misappropriated trust funds for his own benefit, thereby defrauding his partners. Although ultimately there was no loss either to his partners or to clients, the Supreme Court of South Australia held that suspension was an inadequate response. At 593, King CJ explained this as follows:-
The proper use of suspension is, in my opinion, for those cases in which a legal practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner.