Quinones v Council of the Law Society of New South Wales

NCAT Occupational|2022-11-30

sef v NSW Legal Services Commissioner [2020] NSWCATOD 85 Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 270; [1957] HCA 46 Category: Principal judgment Parties: Joseline Quinones (Applicant) Council of the Law Society of New South Wales (Respondent) Representation: Counsel: G D Wendler (Applicant) R Pietriche (Respondent)

Solicitors: Applicant (self-represented) Council of the Law Society of New South Wales (Respondent) File Number(s): 2022/00033203 Publication restriction: Nil

Summary

Joseline Quinones (the Solicitor) seeks administrative (or merits) review of the outcome of disciplinary action taken against her by the Professional Conduct Committee (the Committee) as delegate of the Council of the Law Society of New South Wales (the Council).
By letter dated 28 January 2022, the Council advised the Solicitor that the Committee had on 27 January 2022 resolved that in its opinion the Solicitor had engaged in unsatisfactory professional conduct. That resolution related to a single, but protracted, aspect of the Solicitor's conduct, relating to her briefing a barrister (the Complainant) in that the Solicitor had failed to: 1. Pay the Complainant's invoice dated 17 September 2019; 2. Take monies into trust for the Complainant's fees, which was a condition of his costs agreements; 3. Advise her client of the Complainant's costs agreements; and 4. Pay the Complainant's invoice "within the time period specified".
The Committee also resolved to: 1. reprimand the Solicitor under the Legal Profession Uniform Law 2014 (NSW) (Uniform Law), s 299(1)(b); 2. require the Solicitor to undertake and complete ethics training with the Professional Support Unit of the Law Society within 6 months of the notification of the resolution: Uniform Law, s 299(1)(e); and 3. require the Solicitor to provide an apology to the Complainant, in a form approved by the Director, Legal Regulation, within 3 months from notification: Uniform Law, s 299(1)(c). (the Decision)
The Committee gave written reasons for the Decision.
The Solicitor sought review of the Decision, which were the proceedings before us.
In a somewhat inauspicious start, the Solicitor had neither sought a stay of, nor complied with, the requirements to complete ethics training or apologise to the Complainant.
The proceedings had a protracted history. By the time the hearing commenced, the Solicitor had, recently, resolved the issue of her debt to the Complainant by payment of a compromised sum. She maintained, initially, that the Decision was not the correct and preferable one. However, by the time Solicitor was part way through cross-examination by the Council, her barrister indicated that the Solicitor's position had changed; she accepted that she had engaged in unsatisfactory professional conduct in respect of the circumstances leading to the complaint and that the protective orders set out in the Decision were broadly appropriate. We agree and will substantially confirm the outcome reflected by the Decision, but with different reasoning to that adopted by the Council. We will also confirm the first two protective orders with appropriate extensions of time, despite our concerns as to the Solicitor's candour and truthfulness in evidence, an issue we shall return to.

Relevant law unrelated to the nature of the review proceeding

A solicitor, on briefing a barrister, may accept a costs agreement by their conduct and assumes personal responsibility for paying the fees incurred unless they advise the barrister in advance that they will not accept personal responsibility.
Uniform Law, s 180 provides, relevantly: 180 Making costs agreements (1) A costs agreement may be made - (a) between a client and a law practice retained by the client; or (b) between a client and a law practice retained on behalf of the client by another law practice; or (c) between a law practice and another law practice that retained that law practice on behalf of a client; or (d) between a law practice and an associated third party payer. (2) A costs agreement must be written or evidenced in writing. (3) A costs agreement may consist of a written offer that is accepted in writing or (except in the case of a conditional costs agreement) by other conduct.
The Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) ("Conduct Rules") provide at r 35: 35 Contracting with third parties 35.1 If a solicitor instructs a third party on behalf of the client, and the solicitor is not intending to accept personal liability for payment of the third party's fees, the solicitor must advise the third party in advance.

The law relevant to these review proceedings

A negligent act by a solicitor might not infringe disciplinary standards, even though unacceptable: In the matter of Spero Pitsikas (1995) 1 LPDR 5; Legal Services Commissioner v Livers [2017] NSWCATOD 117 at [22].
The Uniform Law, s 296 also provides, relevantly: 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.
The Uniform Law goes on to provide, relevantly, at s 299: 299 Determination by local regulatory authority - unsatisfactory professional conduct (1) The designated local regulatory authority may, in relation to a disciplinary matter, find that the respondent lawyer or a legal practitioner associate of the respondent law practice has engaged in unsatisfactory professional conduct and may determine the disciplinary matter by making any of the following orders - (a) an order cautioning the respondent or a legal practitioner associate of the respondent law practice; (b) an order reprimanding the respondent or a legal practitioner associate of the respondent law practice; (c) an order requiring an apology from the respondent or a legal practitioner associate of the respondent law practice; (d) an order requiring the respondent or a legal practitioner associate of the respondent law practice to redo the work that is the subject of the complaint at no cost or to waive or reduce the fees for the work; (e) an order requiring - (i) the respondent lawyer; or (ii) the respondent law practice to arrange for a legal practitioner associate of the law practice - to undertake training, education or counselling or be supervised; (f) an order requiring the respondent or a legal practitioner associate of the respondent law practice to pay a fine of a specified amount (not exceeding $25,000) to the fund referred to in section 456; (g) an order recommending the imposition of a specified condition on the Australian practising certificate or Australian registration certificate of the respondent lawyer or a legal practitioner associate of the respondent law practice. (2) If the designated local regulatory authority proposes to determine a disciplinary matter under this section - (a) the designated local regulatory authority must provide the respondent or associate and the complainant with details of the proposed determination and invite them to make written submissions to the designated local regulatory authority within a specified period; and (b) the designated local regulatory authority must take into consideration any written submissions made to the designated local regulatory authority within the specified period, and may, but need not, consider submissions received afterwards; and (c) the designated local regulatory authority is not required to repeat the process if the designated local regulatory authority decides to make a determination in different terms after taking into account any written submissions received during the specified period; and (d) the rules of procedural fairness are not breached merely because no submissions are received within the specified period and the designated local regulatory authority makes a determination in relation to the complaint, even if submissions are received afterwards. (3) If the designated local regulatory authority determines a disciplinary matter under this section, no further action is to be taken under this Chapter with respect to the complaint. (4) If a complaint contains both a consumer matter and a disciplinary matter and the designated local regulatory authority has already made a determination of the consumer matter under section 290, the designated local regulatory authority may, in subsequently making a determination about the disciplinary matter, take into account the determination already made about the consumer matter, but not so as to make further orders under that section.

The nature of these review proceedings

Once a legal disciplinary decision has been made by the Council under s 299 Uniform Law, the Solicitor may seek administrative review of that decision: Uniform Law, s 314.
In review proceedings of this nature, the relevant statutory scheme and considerations have been thoroughly and helpfully summarised in two earlier decisions of differently constituted Tribunals: Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 and Hall v Council of the Law Society of New South Wales [2020] NSWCATOD 96 ("Hall"). We agree with and adopt the more extensive consideration of the issues contained therein, which we will synthesise as follows: 1. The review in the Tribunal is conducted under the provisions of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), the Uniform Law, the Legal Profession Uniform Law Application Act 2014 (NSW) (Application Act), s 126, and the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act); 2. Section 63 of the ADR Act allows the Tribunal to exercise all of the functions that are conferred or imposed on the original decision maker to make the correct and preferable decision. The Tribunal may determine to affirm, set-aside or vary the original decision, or to remit the matter for further consideration. In addition, we may make any other order we consider appropriate: Uniform Law, s 314(3). 3. Our decision takes effect on the date it is made or such later date as may be specified in our decision. If we vary, or make a decision in substitution for the administrator's decision, our decision is taken to be the decision of the administrator and has effect as the decision of the administrator on and from the date of the administrator's actual decision, unless we order otherwise: ADR Act, s 66. 4. There is no onus of proof on either party. Rather, our task is to determine the matter on the merits. We are not concerned to examine whether there was challengeable error in the process or reasoning by the Council or its delegate: Donaghy v The Council of the Law Society of New South Wales [2013] NSWCA 154. There is no presumption that the Council's decision is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357; [1984] FCA 57. 5. We may consider the material before the original decision-maker as well as any relevant new material put before us: Shi v Migration Agents Registration Authority (2008) 235 CLR 286 ("Shi"); [2008] HCA 31 at [41]-[42], [98]-[99], [124]; Drake v Minister of Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77; [1979] FCA 39. 6. We are entitled to inform ourselves on any matter in the manner we think fit, subject to the rules of natural justice The rules of evidence do not apply to the proceedings unless it involves a question of professional misconduct: NCAT Act, s 38(2) and cl 20 of Sch 5; Uniform Law, s 301(3). A fundamental obligation is to make findings of fact based on logically probative material and we may rightly have regard to the gravity of any allegations made and to the gravity of the consequences that may flow from the making of a particular finding or decision. 7. We may determine our own procedure (unless the NCAT Act or procedural rules otherwise make provision) and should act with as little formality as the circumstances of the case permit to resolve the real issues in proceedings justly, quickly, cheaply without regard to technicalities or legal forms: NCAT Act, ss 36, 38(4). 8. However, our inquisitorial role does not mean that a party can simply present what are said to be facts and leave it to the Tribunal to search out the truth of any and all allegations, in effect shifting the burden of providing the evidence in support of their position to the Tribunal: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26 at [78]. 9. The purpose of the disciplinary proceedings conducted by the Council, and therefore of our review of the Decision on review, is not to punish the practitioner but to protect the public: Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46; New South Wales Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20; Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339. 10. This review involves a two-step process. We must determine whether the Solicitor engaged in unsatisfactory professional conduct, and if so, decide what protective order or orders (if any) are correct and preferable. 11. Our first task is to identify the decision to be reviewed, and the statutory question it answers needs to be identified with some precision "for it marks the boundaries of the review": Shi at [134]-[135] (Kiefel J, as Her Honour then was). The Tribunal stands "in the shoes of the original decision maker" and in so doing should consider itself "as though it were performing the function of that administrator in accordance with the law as applied to that person": Shi at [135]. 12. Natural justice requires that the Solicitor be advised in clear and precise terms, prior to the hearing, of the nature and the particulars of the case to be met: Smith v New South Wales Bar Association (1992) 176 CLR 256 at 270 (Deane J); [1992] HCA 36. This requirement is also embodied in Uniform Law, s 299(2)(a). It is therefore critical to ensure that the particulars of the misconduct alleged against the lawyer are carefully drawn to avoid any ambiguity: Kerin v Legal Practitioners Complaints Committee (1996) 67 SASR 149 at 166 (Debelle J); [1996] SASC 5650; Hall.
As submitted by the respondent, the authorities also establish a number of basic principles with respect to the scope and content of the unsatisfactory professional conduct standard, namely: 1. each case must turn on its own facts and the application of the statutory words, paying close regard to the specific context of the conduct concerned: BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146 ("BRJ") at [98]; 2. the test is an objective one, and the circumstances of the objective conduct, rather than the professional culpability of the practitioner, is of prime, if not sole, relevance: BRJ at [100]; and 3. The concept is not limited to relationships between legal practitioners and members of the public: Donaghy v Council of the Law Society of NSW (No 2) [2015] NSWCA 224 ("Donaghy (No 2)") at [94] (Basten JA).
There is no controversy between the parties that the relevant provisions in the Uniform Law, the Application Act and the ADR Act apply or that the conduct in issue was conduct occurring in connection with the practice of law in New South Wales. We are satisfied that we have jurisdiction to determine the application.

OUR FINDINGS

The factual underpinnings of the Council's findings are, save in respect of one important matter, uncontroversial. They were set out in the Decision, which we have adopted, save as to correction as appropriate, as follows: 1. On or about 16 July 2019, the Complainant was briefed to advise on the appeal of a criminal law matter by the Solicitor, as Principal of Universal Lawyers (the Law Practice). 2. On 25 July 2019, the Complainant advised by email that he would charge $4,000.00 plus GST to review the material and asked for confirmation to proceed on that basis. 3. On the same day, the Solicitor responded to the Complainant: "Yes. Please proceed with the review of material and then I can meet up with you and give you a run down. I appreciate your help." 4. The Complainant wrote again to the Solicitor on 26 July 2019. The email shows that it bore an attachment, described as a cost agreement (the First Cost Agreement). Relevantly, the First Cost Agreement was addressed to "Joy Quinones, Universal Law" and it provided the following outline of the work to be performed and the cost that would be incurred: "For this first step of the appeal, which involves skimming the brief of evidence and trial transcript and identifying documents / reports to discuss at this preliminary stage, one day of preparation will be charged, being a total of $4,400.00 inclusive of GST." 1. On 9 August 2019, the Complainant sent another email to the Solicitor. The email shows that it bore an attachment, described as a cost agreement, for the next part of the work in the matter (the Second Cost Agreement). On the same day, the Solicitor wrote to the Complainant: "Please proceed Lester". Relevantly, the Second Cost Agreement provided the following outline of the work to be performed and the cost that would be incurred: "As part of the first step of the appeal, I will read the transcripts which are currently available for the trial. The transcript is not a complete transcript. It will take me one day to read the transcript currently available. One day of reading will be charged, being a total of $4,400.00 inclusive of GST." 1. On 27 August 2019, the Complainant sent another email to the Solicitor. The email shows that it bore an attachment, described as a cost agreement, for the next part of the work in the matter for work to review additional material provided on 27 August 2019 (the Third Cost Agreement). Relevantly, the Third Cost Agreement provided the following outline of the work to be performed and the cost that would be incurred: "As part of the first steps of the appeal, I will read the additional material provided to me on 27 August 2019, together with further material to be provided, as well as an audio note from my instructing solicitor, I will also meet with my instructing solicitor to discuss this matter in detail, as well as having an audio visual link or teleconference with [the client]. I will charge one day plus GST (being a total of $4,400.00) for this work." 1. Following a meeting with the Solicitor on 5 September 2019, the Complainant sent another email to the Solicitor. The email confirms that the appeal was discussed at the meeting. It bore an attachment, described as a cost agreement, for the next part of the work in the matter outlining the cost for preparing an advice on the prospects of success of an appeal (the Fourth Cost Agreement). Relevantly, the Fourth Cost Agreement provided the following outline of the work to be performed and the cost that would be incurred: "For this next step, I will prepare an advice on the prospects of a successful appeal to the Court of Criminal Appeal for you and for your client. One day of preparation will be charged, being a total of $4,400.00 inclusive of GST." 1. On 6 September 2019, the Complainant wrote to the Solicitor seeking confirmation to proceed with the advice, including the charge for one day. In response, the Solicitor stated: "yes please do Lester." 2. On 17 September 2019 at 9.49am, the Complainant issued an invoice to the Solicitor for the total sum of $17,600.00 (the Invoice). 3. At 9.58am, the Solicitor responded (in part): "[The client] always pays me in smaller amounts. Hence, I will transfer a portion today for you and then continuously pay. I hope you don 't mind this payment method but it is just how [the client] pays me that is all." 1. On 23 September 2019, Ms Karina Diec, an employed Paralegal at the Law Practice, wrote to the Complainant advising that the defendant's family has decided that they were unable to continue to engage the Complainant due to financial constraints. 2. On or about 23 September 2019, the Solicitor retained a new barrister, Mr Gabriel Wendler (Mr Wendler). Relevantly in her correspondence to Mr Wendler, the Solicitor provided a copy of the Complainant's advice and stated: "As previously indicated to you we can confirm that there is prospects (sic) of success in the matter. So as to avoid additional costs to our client we didn't believe it was necessary to ask you for a written Merits Advice as we have concluded that there are grounds in this application. Please find enclosed the notice of intention to Appeal filed on 20th June 2019, and the memorandum of mertis [sic] advice from Mr Fernandez [Forbes Chambers]." 1. On 30 September 2019, the Complainant returned the brief to the Law Practice and stated (in part): "I know you mentioned that [the client] paid you in small amounts. I am just hoping she can make a good start with paying my account, please. " 1. On 16 October 2019 at 9.09am, the Complainant wrote to the Solicitor following up payment. 2. At 9.12am, the Solicitor responded (in part): "Lester I apologise for the delay I was unwell. I am hoping [the client] will be banking funds into trust shortly. Apparently she wanted to wait for some interest to accrue .... Normally she always pays us. I was going to contact you but due to my knee injury I was unable." 1. On 22 October 2019 at 5.35pm, the Solicitor wrote to the Complainant stating (in part): "We normally would not ask this of you, because we know you are an expert in Appeals and we were happy with the work performed, however we were under the impression that the client had a lot more funds than what is available. Universal Lawyers have taken a substantial discount for our services in the matter because of this new information regarding finances, and we seek your assistance in this delicate issue. Would you therefore in good faith reduce the amount the amount owing to you to $8000. I hope you understand this delicate issue." 1. At 6.36pm, the Complainant wrote to the Solicitor stating (in part): "In this matter I was very conscious of fees, and that is why I specifically sought your approval before every step I took in the matter. I sent you four different costs agreements. I have never done this before, but I wanted my costs to be incurred only after you and [the client] were aware of those costs, and gave your approval. And you did give me your approval at each step of the way. I did a substantial amount of work and I could not have been more careful about making my fees understood at each step. For this reason I hope you understand when I say that I am not able to accept less than what I have invoiced you for." 1. At 6.53pm, the Solicitor wrote to the Complainant stating: "To be fair I don't believe the first skimming bundle was truly discussed properly. I truly believe that it is not unfair for you to reconsider the amount." 1. At 6.57pm, the Complainant responded (in part): "I'm sorry if you were not satisfied but please have a look at the four costs agreements I sent where I spelt out every step taken. If there was a problem with fees there was [sic] lots of opportunity to raise this." 1. At 7.06pm, the Solicitor wrote (in part): "As discussed and in good faith the first overview was confusing to be very honest. I am hopeful that you will reconsider the situation my clients are facing. I think it's a conversation best left over the telephone, however it will have to be Monday as I am busy myself/ I am hoping to pay $2000 dollars soon." 1. At 7.11pm, the Complainant wrote (in part): "I'm really sorry to hear this. This is the first time you have raised this issue with me, and it was only after I told you I would not reduce my fee. I would suggest that as there may be some criticism of me and my fees charged it would be best not to speak on the telephone, as things may be misunderstood by both parties. Best to put any concerns in writing so there is a clear record of any concerns raised." 1. On 25 October 2019, the Complainant wrote to the Solicitor (in part): "I didn't reply to your email below any earlier than now because I wanted to think through your email before I replied. I am just concerned about where this is going, in terms of you saying you were not aware of the work I was doing. I could not have been any more clear than a separate costs agreement for each of work that I performed on this matter. … I expected you, as my solicitor, to have taken in on trust sufficient to cover my costs. Clause 7 of my costs agreement set out your requirement to do so." 1. On 29 October 2019, the Complainant sent the Invoice again to the Solicitor for payment. 2. On 14 and 28 November 2019, the Complainant wrote to the Solicitor hastening payment. 3. On 19 and 29 November 2019, the Solicitor advised that she would check with the client about the fees and/or that the client would be banking some funds into the trust account shortly. 4. However, on 2 December 2019 at 12.38pm, the Solicitor wrote to the Complainant and advised that she intended to lodge an application for cost assessment with regards to the Invoice, or alternatively, she offered to pay the sum of $8,000.00 to settle the matter. 5. At 2.40pm, the Complainant responded (in part): "I do not accept your offer. As you have sufficient funds to make a part payment I request payment of that amount as a first payment, after which the remainder of my account will remain payable. If payment of that first amount is not paid by this Friday 6 December regrettably I will be making a written complaint to the Professional Standards Department ... about you, and that complaint will be sent on Monday 9 December and without further notice to you. I regret it has come to this. However you should have never briefed me without having funds in on trust. My four separate costs agreements sent to you were four separate indications to you that you needed to have money in on trust, in accordance with your obligations as a solicitor." 1. At 2.48pm, the Solicitor responded stating: "Please do so and I will do the same. I have conferred with several Barristers regarding your bill and they have advised me accordingly. I will forward a complaint also regarding you[r] inability to compromise." 1. On 13 December 2019, the Complainant lodged the complaint with the NSW Legal Services Commissioner.
All of the above is supported by independent and unchallenged evidence. However, despite that, and despite having sworn two affidavits in the proceedings, the Solicitor alleged for the first time in cross examination that the Complainant's cost agreements were not sent with the emails said to forward them, and were, rather, all forwarded at around the same time on an unspecified, later, date. There was no independent evidence to support that assertion.
We do not accept that allegation by the Solicitor. It is entirely inconsistent with the objectively verifiable documents which we have referred to above, including the emails in evidence which demonstrate that an attachment, said to be the relevant cost agreement, was attached to each relevant piece of correspondence. It is inconsistent with the Solicitor confirming the Complainant was to proceed on each occasion, without raising any concern the agreements were not attached. It is also inconsistent with a specific concession made in cross examination (Record of Hearing at 55:00) that an agreement was attached to one of the emails dated 27 August 2019 and that it "appears" that an agreement was attached to the email of 26 July 2019 as well. Nor is there any explanation provided or which we can identify as to why that specific allegation was not made before the hearing.
As a witness generally, the Solicitor was unhelpful and, despite her legal training and experience, seemingly unable to answer simple questions without moving to advocate for her position at every turn. Direction from the Tribunal did little to alter that course. The Solicitor's counsel's submission that the Solicitor's demeanour in evidence indicated that she is "hypersensitive to criticism" seems apt.
In summary, the Solicitor otherwise maintained, prior to her counsel's concession on her behalf that the complaint was made out, that the Complainant's correspondence and cost agreements were unclear or misleading and that they could not have appropriately led to the invoice ultimately issued. Save in respect of a minor issue, that the proposed meeting contemplated by the Third Cost Agreement with the client never eventuated (at no fault of the Complainant), we disagree. The correspondence between the Complainant and the Solicitor provided a transparent and simple explanation of what the Complainant intended to do and charge, which was acknowledged by the Solicitor at each relevant step. There was an adequate explanation as to why the Complainant was not provided with a single estimate to the conclusion of an appeal from the outset. That was resolved in the advice given following the Fourth Cost Agreement.
Another allegation made by the Solicitor in cross examination, that a charge for a conference at the Solicitor's office was raised for a meeting on 5 September 2019 about the appeal that did not occur, was also inconsistent with the correspondence before us and the subsequent concession by the Solicitor that a meeting at her office did occur, but was only for a "catch-up" and lunch. Had that been the case, one would have expected the email we refer to at 18(2) above to have raised questions from the Solicitor at the time. We do not accept the Solicitor's evidence in that regard.
As is clear from the Uniform Law and the Conduct Rules, the earlier position of long-standing, that a solicitor was personally responsible to protect counsel for their fees and counsel could only seek their fees from the solicitor, has been modified by statute: Kenna v Lloyd [2021] NSWSC 1294 citing Petselis v Tatarka [2019] VSC 8.
Solicitors who are responsible to pay counsel's fees are also able to avail themselves of the ability to have counsel's fees assessed, providing they do so within the stipulated time.
In those circumstances, we do not agree that it constituted inappropriate conduct by the Solicitor worthy of disciplinary proceedings to have failed to pay the Complainant's invoice, simpliciter, or even to have failed to do so in the time stipulated by the invoice. Nor do we think it is necessarily inappropriate conduct to fail to take monies into trust for counsel's fees, where the solicitor has not sought to absolve themselves from personal responsibility for those fees, even if the solicitor has accepted a contractual obligation to do so. Had the solicitor sought to absolve themself from personal responsibility for payment of fees and then failed to comply with a contractual obligation to ensure sufficient monies to cover the proposed fees were collected into trust, different findings may be warranted.
In respect of a failure to advise the client of the Complainant's cost agreements, that aspect of the Complaint was not pressed in submissions in the hearing before us and there is insufficient evidence to make a definitive finding this occurred.
It is clear that "wilful or persistent refusal to pay counsel's fees can amount to professional misconduct on the part of a solicitor": Re Robb (1996) 134 FLR 294 at 310; Law Society of NSW v Davidson [2007] NSWADT 264.
Whilst complaint (1) as particularised is no longer made out, since the applicant has now resolved her dispute with the Complainant and paid an agreed sum, complaint (4) remains. We note the comment of Basten JA in Donaghy (No 2), supra at [97] that: "There is no need to repeat the factual circumstances set out above. So far as the non-payment of fees was concerned, there was a period of two years between the date of counsel's invoice and the date of payment of an agreed sum. The practitioner took issue in his final submissions with the Council's contention that he had "delayed unreasonably" in paying the fees; he submitted that that was not "and has never been, the complaint". That submission was beside the point: the question was whether the non-payment over that period was reasonably likely to be found to constitute unsatisfactory professional conduct. A short delay would clearly not bear that characterisation. Because the Tribunal might well consider it a lengthy delay and one for which no reasonable justification had been provided, the Council was correct in concluding that the non-payment of fees, in those circumstances, fell within the terms of s 540(a)(b)(i)."
Here, the Solicitor failed to remedy her personal obligation to pay the Complainant's fees for a period of over three years. She did so in the context of also failing to seek to have Complainant's fees assessed within the 12 months provided for her to take that course, set out in ss 198(3)-(4) of the Uniform Law (Solicitor's affidavit of 28/10/2022 at par 7). She also failed to pay the sum of $4,400 that she never disputed, within the time required by the Complainant's invoice or to make a substantial payment in an amount properly reflecting the ultimately compromised amount of the fees in a timely way. In the circumstances, that conduct constituted unsatisfactory professional conduct, as eventually conceded by the Solicitor. The Solicitor also conceded through her counsel that findings on these terms would not infringe the principles in Smith v New South Wales Bar Association and Kerin v Legal Practitioners Complaints Committee, supra.

The correct and preferable decision.

By the conclusion of the hearing, the Solicitor conceded that a reprimand and a requirement to undertake specific ethics training were the correct and preferable outcome in the proceedings.
In Law Society of New South Wales v Maharaj [2017] NSWCATOD 79 at [24], the Tribunal set out what we accept to be the principal considerations in respect of the appropriate disciplinary orders to be made, albeit that they do not constitute a closed list. Those considerations apply equally to whether the decision of the Council as to the outcome of the complaints was the correct and preferable one. The list consisted of: 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.
In deciding on the appropriate protective orders to be made following a finding of inappropriate conduct, we are obliged to take into account any failure by the practitioner "to understand the error of [their] ways": New South Wales Bar Association v. Evatt.
We are troubled by the Solicitor's conduct in giving her evidence, and the somewhat incredible suggestion that the cost agreements were not attached to the relevant correspondence, referred to above.
Despite that, however, the Council did not seek to promote a more significant protective outcome. Indeed, given the fact the Solicitor has now resolved her dispute with the Complainant, the Council no longer submitted that an apology was warranted.
We think that the outcome proposed by the parties is the correct and preferable decision. We think one specific focus of the ethics course proposed should be properly reflecting on the factual issues relevant to participation in legal proceedings, and the need for complete candour from a legal practitioner. The parties agreed that more specific wording of the order in respect of the ethics training is warranted.

Costs

In proceedings of this nature, s 60 of the NCAT Act governs costs, meaning that special circumstances warranting an award of costs must be demonstrated: Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115. The parties advised that there were to be no applications for costs.

Orders

Our orders are as follows: 1. The protective orders of the Council of the Law Society of New South Wales dated 27 January 2022 are varied as follows: 1. The Applicant is reprimanded; 2. The Applicant shall, within two months of the date of these orders: 1. complete an ethics tutorial with the Respondent's Ethics Unit which addresses the issues arising in these proceedings; and 2. within seven days of completing that tutorial, is to provide to the Respondent's Director, Legal Regulation (Director) a report which demonstrates, to the reasonable satisfaction of the Director, the Applicant's understanding of matters dealt with in the tutorial. 1. The Applicant is no longer required to provide an apology to the Complainant.

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 04 May 2023 - Order (1) corrected. "28 January 2022" replaced with "27 January 2022". 30 May 2023 - Order (1)(b)(ii) corrected. "Respondent's understanding" replaced with "Applicant's understanding". 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: 30 May 2023

Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015(NSW)

(the ADR Act), the Uniform Law, the Legal Profession Uniform Law Application Act 2014(NSW)

(2021) 106 NSWLR 383

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Judgment (12 paragraphs)

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Legislation Cited (5)

Cases Cited (28)

Cited By (2)