NSW Legal Services Commissioner v Leslie Elias Abboud [2021] NSWCATOD 23 | Case summary

NCAT Occupational|2021-02-08|Before: Emeritus Professor P, Foreman AM

REASONS FOR DECISION

The NSW Legal Services Commissioner ('the Commissioner') filed an application against Mr Abboud, seeking disciplinary findings and orders under the Legal Profession Uniform Law (NSW) ('the Uniform Law') on 13 September 2019. The application was amended on 20 January 2021.
The applicant sought findings of professional misconduct or, alternatively, unsatisfactory professional conduct. Three grounds were pleaded.
Pre-trial processes proceeded, and both parties filed affidavit material.
An Instrument of Consent, containing an agreed statement of facts and proposed orders, was filed on 1 February 2021. At the hearing of the matter on 8 February 2021, both parties requested that the Tribunal make findings and orders in accordance with the Instrument of Consent. The third ground pleaded in the application was withdrawn. A finding of professional misconduct was no longer sought.

Agreed Facts

The agreed statement of facts is as follows: AGREED STATEMENT OF FACTS In respect of the following grounds of complaint Leslie Elias Abboud ("Mr Abboud") engaged in unsatisfactory professional conduct as set out below: Ground 1: Attempted to improperly influence the evidence of expert witness Dr R. Cooke Particulars 1. At all material times, Mr Abboud was employed by Gerard Malouf & Partners ("GMP"). GMP were retained to act as solicitors for the plaintiff, Ms Teneale Ansell, in proceedings commenced in the NSW District Court, Matter no 343540 of 2014 ("the proceedings"). Mr Abboud had carriage of the matter. 2. The defendant was Hunter New England Local Health District, trading as John Hunter Hospital. The plaintiff alleged that the defendant had negligently treated an injury that she had sustained to her left wrist. 3. On or about 1 August 2014, GMP retained Dr Robert Cooke, a senior orthopaedic consultant to provide his expert opinion. Dr Cooke was experienced at giving expert evidence and familiar with the obligations of an expert witness. Mr Abboud had briefed Dr Cooke many times before Ms Ansell's case and had a good working relationship with him. Mr Abboud's email to Dr Cooke 4. X rays of the plaintiff's wrist ("the x rays"), were provided to GMP by email sent from Charlestown Medical Centre to Mr Abboud on 14 July 2016, at 2.21 pm ("CMC email"). 5. On 14 July 2016, at 3.24 pm, Mr Abboud sent an email to Dr Cooke attaching the x rays. The email to Dr Cooke stated "Attached x ray done today for teneale. Only rely on it if it helps us" ("Cooke email"). 6. In drafting the email to Dr Cooke, Mr Abboud intended to say words to the effect of: 'if the x-ray raises no new issues, please don't do another report'. 7. At the time that email was sent on 14 July 2016, Dr Cooke had prepared 5 reports on behalf of Ms Ansell at a cost (to GMP) of $15,200.00, and the experts for both parties were due to participate in a conclave and prepare a joint report on 18 July 2016, prior to commencement of the hearing on 19 July 2016. 8. Mr Abboud did not intend to improperly influence the expert witness. However, Mr Abboud accepts that: (a) The Cooke email was poorly expressed; (b) in its terms, the Cooke email suggested that Dr Cooke should rely upon or refer to the x rays in any subsequent or supplementary report or opinion only if the x rays were helpful to Ms Ansell's negligence claim, but not rely or refer to the x rays if they were harmful to the claim; (c) in its terms, the Cooke email gave rise to a risk that Dr Cooke might be influenced to give evidence which was either not complete or not accurate; and (d) he should have taken more care in drafting the Cooke email. 9. Dr Cooke's evidence was not in fact influenced by the terms of the Cooke email. 10. Mr Abboud admits that his conduct in sending the Cooke email amounts to unsatisfactory professional conduct. Ground 2: Mr Abboud sought to conceal his attempt to improperly influence expert evidence from his opponent and attempted to mislead his opponent Particulars Emails to Tress Cox 11. On 15 July 2016 (at 5.39pm}, Mr Abboud sent an email to Ms Natalie Meadows, a solicitor employed by the defendant's solicitors, Tress Cox ("the 5.39pm email"). 12. The 5.39pm email contained an historical email trail, which included: (a) The Cooke email; and (b) The CMC email. 13. The 5.39pm email also included the Email from Dr Cooke to the Respondent sent on 15 July 2016 at 9:16am (referred to in paragraph 8 above). 14. The 5.39pm email did not attach the x rays. 15. After sending the 5.39pm email, Mr Abboud asked Mr Louis Tang, a junior solicitor employed by GMP, for assistance to send another email to Ms Meadows which attached the x-rays. 16. On 15 July 2016 at 5:41pm, an Email was sent from Mr Abboud's computer and email account to Ms Meadows that (the 5:41pm Email): (a) attached the X-rays; (b) stated in the body of the Email to Ms Meadows: "Attached x-rays done Thursday 14 July 2016. Please provide same to your doctors prior to conclave on Monday"; (c) added the word "Ansell' to the Cooke email; (d) deleted the letter "e" from the word "Teneale" in the Cooke email; and (e) deleted the words "Only rely on it if it helps us" from the Cooke email. 17. Mr Abboud did not: (a) type the 5.41pm email to Ms Meadows; (b) type the amendments to the historical email trail (ie to the Cooke email); or (c) send the 5.41pm email to Ms Meadows. 18. Mr Abboud denies that he sought to conceal the terms of the Cooke email from Ms Meadows or that he attempted to mislead her. 19. However, Mr Abboud accepts that: (a) the words "Only rely on it if it helps us" should not have been deleted from the email without any indication to Ms Meadows that the Cooke email had been modified or redacted; (b) the modification of the historical email chain in the 5.41pm email without any indication to Ms Meadows gave rise to the risk that Ms Meadows and any other reader of the email would be misled as to the terms of the Cooke email; and (c) he ought to have closely reviewed the 5.41pm email to Ms Meadows before it was sent from his email account. 20. Mr Abboud admits that his conduct described in the previous paragraph amounts to unsatisfactory professional conduct.

Section 144 of the Legal Profession Uniform Law Application Act 2014

Section 144 Legal Profession Uniform Law Application Act 2014 ('the Application Act') provides: 144 Consent orders (1) The Tribunal may, with the consent of the respondent lawyer contained in a written instrument, make orders without conducting or completing a hearing in relation to the complaint. (2) Consent may be given before or after the proceedings were initiated in the Tribunal with respect to the complaint. (3) If consent is given before the proceedings were initiated, 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 respondent lawyer unless the lawyer and the NSW Commissioner 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 respondent lawyer. (6) The instrument of consent must be filed with the Tribunal. (7) Nothing in this section affects the procedures regarding the initiation of proceedings in the Tribunal where consent was given before the proceedings are initiated. (8) If consent was given before the proceedings are initiated, the proceedings are nevertheless to be initiated 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 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.
In this matter, the respondent and the Commissioner have agreed on the terms of an instrument of consent in accordance with s 144(4) of the Application Act.

Hearing

Following the filing of the Instrument of Consent, the matter proceeded to a brief hearing.
On the affidavit evidence filed prior to the filing of the Instrument of Consent, there was a dispute of fact as to the circumstances in which the words 'Only rely on it if it helps us' came to be deleted from the email sent from Mr Abboud's computer on 15 July 2016 at 5.41pm.
It was submitted, on behalf of the Commissioner, that, assessing the strength of the evidence, weighed up together with the costs of the four day hearing which had been scheduled in relation to Stage 1 (in which the issue of culpability would be argued and determined), followed by a possible Stage 2 hearing (on penalty), and considering the public interest, including the public interest in the prudent use of public funds, the best course for the matter would be to determine it in accordance with the Instrument of Consent.
It was common ground between the parties that the x-rays the subject of the emails sent on 15 July 2016 favoured Mr Abboud's client. Mr Abboud knew this before the email was sent.
The claim the subject of the emails sent from Mr Abboud's office on 15 July 2016 was determined by a decision of the District Court on 29 July 2016 in Teneale Ansell v Hunter New England Local Health District trading as John Hunter Hospital (unreported). In her judgment, Judge Balla accepted the evidence of Dr Cook that he took no notice of the wording of the email, including the words 'Only rely on it if it helps us'.
The wording of the email to Dr Cook therefore had no practical impact upon the claim.

Unsatisfactory professional conduct

The only allegations against Mr Abboud which are before us are allegations of unsatisfactory professional conduct, on two grounds. Unsatisfactory professional conduct is defined in the Uniform Law as follows: 296 Unsatisfactory professional conduct For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.
We are satisfied that the events set out in the agreed statement of facts establish that Mr Abboud's conduct amounted to unsatisfactory professional conduct in the manner outlined in the allegations and particulars to grounds 1 and 2 in the application as amended on 20 January 2021.

Protective Orders

In the Instrument of Consent, the parties agreed to an order that Mr Abboud be reprimanded. The parties also agreed to an order requiring Mr Abboud to undertake a course in Legal Ethics approved by the Commissioner within 12 months of the date of this decision, provided that Mr Abboud is required to achieve a pass mark of not less than 65% or the equivalent of that mark.
It was put to us in the hearing that Mr Abboud's conduct was partly attributable to the pressure he was under on account of his busy practice. With the assistance of two graduate solicitors and two administrative assistants, in July 2016, Mr Abboud was responsible for 500 cases. His caseload has now been reduced to 130 active cases, with the same level of assistance.
Mr Abboud provided an affidavit to the Tribunal in which he set out, in some detail, his understanding as to why his conduct was unsatisfactory. He also set out his intentions with respect to the careful and ethical instruction of experts in the future. Mr Abboud expressed his awareness of the need to exercise care with respect to all of the communications which are sent from his email address or in his name.
The principles to be considered in relation to the appropriate protective orders to be imposed were summarised in Law Society of New South Wales v Maharaj [2017] NSWCATOD 79 at [24]: It is well-established, without the necessity for resort to authority, that there are four principal aspects to be considered in determining what protective orders are appropriate in any particular case. These are; (1) the gravity of the misconduct (2) the deterrent effect of any protective order on the further conduct of the practitioner (3) the deterrent effect of any protective order on the conduct of other practitioners (4) the enhancement of confidence in the public in the integrity of the profession
We are satisfied that protective orders to the effect of the orders proposed in the Instrument of Consent are adequate as a deterrent in relation to Mr Abboud's future conduct. We are further satisfied that those protective orders are sufficient to operate as a deterrent to other practitioners with respect to like conduct. The protective orders proposed are sufficient having regard to the need to enhance the confidence of the public in the integrity of the legal profession.

Conclusion and Orders

Mr Abboud's conduct in including the words 'Only rely on it if it helps us' in his email of 14 July 2016 to Dr Cooke, a medical expert, with respect to an x-ray relevant to a claim in relation to a wrist injury, amounts to unsatisfactory professional conduct. Further, Mr Abboud's conduct, in failing to review an email sent from his email address to Ms Meadows, a solicitor, on 15 July 2016, so that the email received by Ms Meadows, which included a historical email trail, including the email to Dr Cooke, had deleted from that email the words 'Only rely on it if it helps us' amounts to unsatisfactory professional conduct.
We make the following orders: 1. Mr Abboud is reprimanded. 2. Mr Abboud shall: 1. at his own expense, successfully complete a course in Legal Ethics that is approved by the NSW Legal Services Commissioner ('the first course'), within 12 months of the date of these orders, achieving a mark of not less than 65% or such equivalent as shall be approved by the NSW Legal Services Commissioner ('the required mark'). 2. Within 7 days of receipt by him of his result in the course in Legal Ethics, provide the result to the NSW Legal Services Commissioner. 3. in the event that he does not achieve the required mark in the first course, complete a further Legal Ethics course approved by the NSW Legal Services Commissioner ('the second course') within 12 months of the date of the receipt of his result in the first course. 1. In the event that Mr Abboud does not achieve the required mark in the second course, his practising certificate shall be suspended. The suspension of his practising certificate shall not be lifted, and nor shall a further practising certificate be issued to Mr Abboud until such time as he shall complete a Legal Ethics course approved by the NSW Legal Services Commissioner with the required mark. 2. Mr Abboud is to pay the costs of the NSW Legal Services Commissioner in the sum of $15,000.

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

Amendments 23 February 2021 - punctuation added to cover sheet 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: 23 February 2021

NSW Legal Services Commissioner v Leslie Elias Abboud

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