NSW Bar Association -v- Howen [2003] NSWADT 118

BEFORE: Nader J QC - ADCJ (Deputy President); Norton S SC - Judicial Member; Mara A - Member APPLICATION: Professional Misconduct - fail to comply with s. 152 Notice MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 CASES CITED: APPLICANT REPRESENTATION: L McCulloch, barrister RESPONDENT B Connell, barrister ORDERS: 1. That the Respondent is guilty of professional misconduct.; 2. Matter to be relisted to receive evidence and further submissions as to the orders that should be made.

1 These reasons relate to an Information under Part 10 of the Legal Profession Act , 1987, ("the Act") laid by the Council of the New South Wales Bar Association ("the Council") complaining that Alexander Stanislaw Howen ("the Respondent") is guilty of professional misconduct. 2 It is alleged that the Respondent failed to comply with the requirements of a notice dated 11 September 2000 issued by the Bar pursuant to Section 152(1) of the Act in respect of a complaint made against him by Mr Graham Leech ("the Client") and by the Legal Services Commissioner ("the LSC"). More particularly, the Council says that On 5 July 1999 the Legal Services Commissioner received a complaint dated 2 July 1999 made by the Client ("the Client's Complaint"). 3 The substance of the Client's Complaint was that the Respondent, who had been retained directly by the Client, had failed to draft the documents necessary to evidence an agreement made on the Client's behalf by the Respondent when he appeared for the Client in Family Law proceedings. The Client complained that the Respondent failed thereafter to confer with him; to attend subsequent mentions; and to reply to his communications. 4 On 6 August 1999 the LSC wrote to the Respondent requesting a response to the Client's Complaint. There was no response. 5 On 2 September 1999 the LSC sent a further letter to the Respondent requesting a response within 14 days and indicating that, in the absence of a response, a notice would be issued pursuant to Section 152(1) of the Legal Profession Act, 1987 (NSW) ("the Act"). Again there was no reply. 6 On 17 December 1999 the LSC signed a notice ("the First Notice") pursuant to Section 152(1) of the Act seeking information in relation to the Client's complaint. It was served on the Respondent on 22 December 1999. The Respondent did not reply to the First Notice. 7 On 17 February 2000 the Client's Complaint, as well as a complaint initiated by the LSC relating to the Respondent's failure to respond to the First Notice, were referred to the Council for investigation. 8 On 1 March 2000 the Deputy Professional Affairs Director of the New South Wales Bar Association ("the Association") wrote to the Respondent requesting that he furnish urgently his comments in response to the First Notice. No reply was received. 9 On 31 May 2000 the Council resolved that a notice (the Second Notice) issue pursuant to Section 152(1) of the Act including a requirement that the Respondent provide a response, verified by statutory declaration, to the Deputy Professional Affairs Director's letter to the Respondent dated 1 March 2000. The Respondent did not respond to the Second Notice. 10 On 17 July 2000 the Deputy Professional Affairs Director of the Association sent a facsimile message to the Respondent at his chambers at Level 1, 235 Macquarie Street, Sydney, request him to contact her. No response to the request was received. 11 On 12 September 2000 the Council resolved that the Respondent be required, pursuant to Section 152(1) of the Act ("the Subject Notice"), to provide further information within 21 days, that is, by 25 September 2000, verified by statutory declaration. (That arithmetic is not easy to follow.) The information sought concerned the investigations in respect of which the First and Second Notices were issued, as well as the Respondent's failure to respond to correspondence of the Deputy Professional Affairs Director of the Association of 1 March and 17 July 2000, referred to above. 12 The Subject Notice contained an inadvertent error: it was dated 11 September rather than 12 September 2000. It was amended by an endorsement requiring the information requested to be provided by 3 October 2000. The Subject Notice, so endorsed, was served on the Respondent personally on 18 September 2000. The Respondent did not reply to that notice. 13 This last failure is the gravamen of this Complaint. 14 The Subject Notice is set forth hereunder: "NOTICE UNDER SECTION 152(1) OF THE LEGAL PROFESSION ACT 1987 (NSW), AS AMENDED HAND DELIVERED BY PROCESS SERVER Mr Alexander S Howen Queens Square Chambers Complaint by the Legal Services Commissioner and Mr Graham Leech As you are aware, the Bar council is investigating the above two complaints concerning your failure to respond to the Office of the Legal Services Commissioner when its officers were investigating a former complaint, being your failure to provide chamber work and failure to communicate with then your client Mr Graham Leech. I refer to the following: 1. Letters from the Office of the Legal Services Commissioner dated 6 August, 2 September, 13 October and 17 December 1999. 2. Letter from the Bar Association dated 1 March 2000 (copy enclosed). 3. Telephone messages from the Deputy Professional Affairs Director on 22 & 28 March 2000, and further letters from the Bar Association dated 29 and 30 March 2000. 4. The s152 Notice sent by registered post on 8 June 2000 (copy enclosed) and now expired. 5. Facsimile sent to your home facsimile on 17 July 2000. No reply has been received from you for any of the above. As you are aware on 31 May 2000 a professional conduct committee of the New South Wales Bar Association resolved that pursuant to s152 of the Legal Profession Act 1987 to send you a s152 Notice which as mentioned above was not responded to and which is now out of time. At its meeting on 12 September 2000 the professional conduct committee of the New South Wales Bar Association in exercise of the powers delegated to it by the Bar Council of the New South Wales Bar Association resolved that pursuant to s 152(1) of the Legal Profession Act, 1987 as amended, you will be required to provide, verified by statutory declaration this having been served in you by a process server, the following information within twenty one (21) days of the date of this letter, being 25 September 2000: (a) An explanation for your failure to provide chamber work and your failure to communicate with your then client Mr Graham Leech as requested by the Office of the Legal Services Commissioner in its letters of 6 August, 2 September and 17 December 1999. (b) An explanation of your failure to respond to the Office of the Legal Services Commissioner as requested by the Commissioner's letter of 6 August, 2 September, 13 October and 17 December 1999. (c) An Explanation of your failure to respond to the letters of the Deputy Professional Affairs Director dated 1, 29 and 30 March 2000 and to telephone messages left on 22 and 28 March 2000 by the Deputy Professional Affairs Director. (d) An Explanation of your failure to respond to the previous s152 Notice sent my registered mail on 8 June 2000 and your failure to respond to the Deputy Professional Affairs Director's facsimile sent to your home on 17 July 2000. …" After setting forth the terms of section 152 of the Act, the letter proceeds: "I invite your particular attention to s152(4) which deems a failure to respond to a request under s152 without reasonable excuse to be professional misconduct. Please note that a failure to respond to this request within twenty on (21) days ie Tuesday 3 October 2000 without reasonable excuse may result in the institution of proceedings against you by way of Information in the Legal Services Division of the Administrative Decisions Tribunal. If you cannot meet the time frame allotted please contact me immediately on (02) 9232 4055. DATED: 11 September 2000. SIGNED: Elizabeth A W Maconachie Deputy Professional Affairs Director NSW Bar Association." 15 By his Reply, the Respondent admits he failed to comply with the Subject Notice, but says that it was not a valid notice pursuant to section 152(1) of the Act by reason of the fact the Notice was not issued solely or substantially for the purpose of investigating a complaint, but rather for purposes including substantially the making of inquiries about other matters which were not the subject of a complaint. 16 The Respondent also responded in detail to a number of the allegations made by the Information which are, at the most, peripheral to it. We do not propose to consider those matters here. They would have to be the subject of considerably more evidence than was adduced in this case concerning them if we were to make any informed comment on them. 17 The Respondent pleads that, to the extent that the following allegations are not proper particulars of the complaint, they are not admitted, namely: that on 6 August 1999 the Commissioner wrote to the Respondent requesting a response to the Client's Complaint, and that no response was received; that on 2 September 1999 the Commissioner sent a further letter to the Respondent requesting a response within 14 days and indicating that in the absence of a response a notice would be issued pursuant to Section 152(1) of the Legal Profession Act, 1987 (NSW) ("the Act"), and that the Respondent did not reply; that on 13 October 1999 a Notice pursuant to Section 152(1) of the Act was signed by the Commissioner, and that notice was unable to be served on the Respondent. 18 We think that those allegations are proper as raising matters that may provide some insight into the dispositions of the Respondent at the material times. In determining what orders this tribunal should make, related conduct of the Respondent is relevant: the conduct alleged to constitute professional misconduct is best assessed if it is considered in the context of relevant circumstances. 19 The Respondent made certain submissions concerning the matter giving rise to the Client's complaint. As we understand it, their effect was to suggest that the LSC treated it as more serious than it really was and misconceived what was being asked of it by the Client. He submitted that the Client's original complaint was limited to seeking the LSC's influence to improve communication with the Respondent. But, it seems to us that if that were so, the issue of the First Notice provided the Respondent with a perfect opportunity to explain the LSC's error. In fact we do not accept that the communication by Mr Leech to the LSC was limited to seeking the LSC as an honest broker to improve communications: it was a full-blown and serious complaint. 20 The Respondent said that he the Client entered into a settlement with him whereby the Respondent repaid the $1,000.00 fee he had received, a further $1,000.00 in addition, and waived any entitlement to recover the further $2,760.00 in fees owing to him by Mr Leech. The Respondent submitted that Mr Leech withdrew the complaint against the Respondent. He submitted that the Client's Complaint had not been provided to the Respondent prior to the issue of the Notice. He said that no report of the Council had been served upon him prior to the institution of these proceedings. The Respondent alleged that the Council knew that the complaint had been withdrawn and that the Respondent agreed to and did receive a reprimand from the President of the Association, Ms Ruth McColl. 21 It seems to us that the only substantive grounds of defence presented by the Respondent to the charge contained in the Information were: 1. that there was no complaint on foot at the time of the Subject Notice; and, 2. that the Subject Notice sought information about matters that could not further the Council's purpose of investigating a complaint, and it was therefore invalid. 22 In those circumstances, the Respondent contends, he was not under an obligation to respond to the Subject Notice. 23 We dealt with the former of these submissions in matter 012005 of 2001. Our remarks in that matter may be taken as incorporated in these reasons. For the same reasons as we gave there, we reject the submission here. We find that there was an existing complaint at the time of the Subject Notice. 24 Having regard to the absence of information given to the Association by the Respondent concerning Mr Leech's allegations, the Association in its attempts to investigate the complaint and discover the Respondent's side of the matter was entitled to throw a wide net. If the Respondent had provided information when it was earlier sought the area of investigation may well have been narrowed. Knowledge of the Respondents admissions made later cannot be used ex post facto to invalidate inquiries made beforehand. 25 We repeat the reasons given in matter 012005 of 2001 in respect of this submission. Accordingly, we reject it. 26 We find that the Subject Notice was valid, that the Respondent's failure to comply with it was without reasonable excuse. Therefore, by virtue of subsection 152(4) the failure amounted to professional misconduct. 27 This matter, together with matters numbers 012004 and 012005 of 2001, may be relisted in order to receive evidence and further submissions as to the orders that should be made. We offered the Respondent the opportunity to adduce professional evidence that may tend to explain his behaviour. Of course, he is not obliged to accept that opportunity. Accordingly the matters will be listed for directions to ascertain his wishes.

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