The Council of the Law Society of NSW v Autore - [2020] NSWCATOD 161 - NSWCATOD 2020 case summary — Zoe

NSWNSWCATOD

The Council of the Law Society of NSW v Autore

[2020] NSWCATOD 161

NCAT Occupational|2020-03-09|Before: Legislation Amendment J

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2020-03-09

Before

Legislation Amendment J

Source

Original judgment source is linked above.

Judgment (12 paragraphs)

[1]

Background

By Applications filed on 15 May 2018 (First Application) and 6 June 2018 (Second Application), the Council of the Law Society of New South Wales (the Law Society) contended that Anthony Autore (the Solicitor) was guilty of professional misconduct.
In the First Application it was contended that the Solicitor had failed to comply with the requirements of a Notice issued pursuant to s 371 of the Legal Profession Uniform Law Act 2014 (Uniform Law) dated 3 July 2017 (the First 371 Notice), served on him on 21 July 2017 and which required a response by 14 August 2017.
In the Second Application it was contended that the Solicitor had failed to comply with the requirements of another Notice issued pursuant to s 371 of the Uniform Law dated 1 August 2016 (the Second 371 Notice), served on him on 5 September 2016 and which required a response by 27 September 2016.
Both Applications were heard by the Tribunal on 28 November 2018 as to Stage 1 (liability) only. On 15 April 2019 we delivered our Reasons for Decision: Council of the Law Society of NSW v Autore [2019] NSWCATOD 55 (the Stage 1 Decision), in which we found the Solicitor's conduct the subject of each Application was established, and that the Solicitor was guilty of professional misconduct both under s 297 of the Uniform Law and at common law. Appropriate orders were to be determined in Stage 2 proceedings.
Meanwhile, on 25 June 2019 the Tribunal (differently constituted) delivered its decision in Council of the Law Society of NSW v DXW [2019] NSWCATOD 101 (DXW) in which the Tribunal held that there was no valid delegation of functions by the NSW Legal Services Commissioner (LS Commissioner) to permit the Law Society to initiate proceedings under the Uniform Law.
After the Tribunal's decision in DXW, on 26 August 2019, an Order was made anonymising the Solicitor's name in the Stage 1 Decision as "DZH".
Following the assent of the Justice Legislation Amendment Act (No 2) 2019 (NSW) on 22 November 2019, the Legal Profession Uniform Law Application Act 2014 (NSW) was amended by the insertion of cl 23 contained in a new Part 5 to Sch 9 pursuant to which decisions, determinations and other actions taken under the authority of a delegation purportedly given in 2015 to, inter alia, the Law Society by the LS Commissioner were validated.

[6]

Solicitor's attitude and whether he has an appreciation of wrongdoing

The Law Society submitted that the Solicitor's failure to comply with both Notices demonstrates a dismissive or obstructive attitude to the Society and its function in investigating disciplinary complaints.
We discussed the Solicitor's attitude to the First 371 Notice in the Stage 1 Decision at [8] to [19]. In summary, the Solicitor had contended that: 1. as the Society already had the information it sought, he was absolved from compliance with the Notice, 2. the Notice was an abuse of the Society's power, 'invalid', and had been improperly used as a form of 'interrogatories ' 3. the Notice exceeded the parameters of s. 371 of the Uniform Law in that it required the production of a medical report (which the Solicitor did not have), and 4. the Notice was unreasonable, with the Solicitor describing himself as a 'hostage'
The Solicitor contended in relation to the Second 371 Notice that the ultimate dismissal of the complaint which gave rise to the Notice meant that the Notice should not have been issued.
We observe that in Council of the Law Society of New South Wales v Autore [2019] NSWCATOD 10 (9 January 2019) the conduct was also in relation to failure to comply with a s 371 Notice. The Notice in that matter was issued in May 2017, so there is some overlap in time with the present two matters.
However, it is the Solicitor's ongoing denial of responsibility in these matters which presents a serious concern.
In its Stage 2 decision in Council of the Law Society of New South Wales v Autore [2019] NSWCATOD 72 the Tribunal said at [9] and [13]: 9. It is significant that the respondent continues to demonstrate a lack of understanding of his obligations. Notwithstanding that his conduct has been the subject of criticism in other proceedings, he fails to acknowledge that it was wrongful. In these, and in other proceedings, he should have adopted a more cooperative approach with the applicant. … 13. It is significant that the respondent continues to demonstrate a lack of understanding of his obligations. Notwithstanding that his conduct has been the subject of criticism in other proceedings, he fails to acknowledge that it was wrongful. In these, and in other proceedings, he should have adopted a more cooperative approach with the applicant.
These remarks reflect our own observations of the Solicitor's lack of appreciation of the gravity of his conduct. While the Solicitor wrote in his affidavit that he was deeply saddened as to his current situation, beyond that, there was no evidence of remorse or contrition, nor importantly, an understanding of the error of his ways.

[8]

What are the appropriate Orders to be made?

The Law Society submitted that a reprimand is an appropriate order to make for each of the First and Second Applications, as it has the effect of identifying professional standards, the establishment and maintenance of which protects the public: Prothonotary of the Supreme Court of New South Wales v Chapman (unreported CA(NSW), 14 December 1992 at 22 per Cripps JA. We agree that the Solicitor should be reprimanded in respect of his conduct in each matter.
On 17 January 2019 the Solicitor's practising certificate was suspended and a manager appointed to his law practice for a period of two years. The Solicitor, in his affidavit described himself as "retired" and that, while he is seeking work, he does not intend to practise law.
The Law Society submitted that, having regard to the passage of time since the filing of the Applications and the fact that the Solicitor does not presently hold a practising certificate, nor had he applied for a practising certificate, there is no utility in making an order for the suspension of his practising certificate. We agree that to make such an order in the circumstances would be futile.
We observe that, in order to resume practice, the Solicitor would be obliged to apply for a practising certificate. Section 302 of the Uniform Law permits the Tribunal to make any Order that it thinks fit, including Orders directing that a practising certificate is not granted to the Solicitor before the end of a specified period; and that the Solicitor does not apply for a practising certificate before the end of a specified period The Law Society submitted that, should the Tribunal be minded to make such an Order, the specified period should be until such time as the Solicitor complies with the First and Second 371 Notices. Implicit in this suggested Order, is that the Solicitor respond in a fashion satisfactory to the Law Society, especially given that in relation to the Second Notice, the Solicitor purported to provide a response.
We agree that no further practising certificate should be issued to the Solicitor until such time as he has complied with the Notices issued to him pursuant to s 371 of the Legal Profession Uniform Law (NSW) and dated 3 July 2017 and 27 September 2016.

[9]

Quantum of fine (Second Application only)

The maximum fine which can be imposed under the Uniform Law following a finding of professional misconduct is $100,000: s 302(1)(1) Uniform Law. In addition to the matters considered above, the quantum of any fine imposed may be impacted by the Solicitor's means.
The purpose of imposing a fine is to mark the Tribunal's disapproval of the Solicitor's conduct: Law Society of New South Wales v Walsh [1997] NSWCA 185 at 40 per Beazley JA; Law Society of New South Wales v Shad [2002] NSWADT 236 at [70]. Although the jurisdiction of the Tribunal in disciplinary matters is exercised to protect the public, not to punish the legal practitioner, the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct, and deterring other practitioners from falling short of the high standards required of them: see, for example Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 470. The fine to be imposed must convey to the legal profession and to the community in general that such conduct is unacceptable: Russo v Legal Services Commissioner [2016] NSWCA 306 at [82].
The Law Society pointed to the seriousness of the Solicitor's conduct; his previous disciplinary record; an ongoing disregard for his obligations as a legal practitioner; his attitude to the proceedings. So as to deter the Solicitor and other practitioners from repeating the misconduct or engaging in similar conduct, a fine in the range of $15,000 to $20,000 was proposed.
The Solicitor said in his affidavit that he has no income and is undertaking unspecified "voluntary work" which we presume is unremunerated. He said he is looking for work. We accept that he is not practising as a solicitor and does not intend to practice "in Law". He said he has "no savings at all", although said he is "living on" savings. His assertions were unsupported by evidence; consequently, his purported impecuniousness is unproven.
We observe that in 2012 the Administrative Decisions Tribunal found the Solicitor had engaged in professional misconduct by failing to comply with a Notice issued under s 660 of the Legal Profession Act 2004, which is broadly similar to the Solicitor's conduct in this matter. In addition to the Solicitor being reprimanded and ordered to pay the Society's costs, he was fined $3,000: Council of the Law Society of NSW v Autore [2012] NSWADT 139. Nonetheless, the Solicitor was not deterred from engaging in the same misconduct, both the subject of these matters and as described in Council of the Law Society of New South Wales v Autore [2019] NSWCATOD 10. We consider this to be a significant factor in deciding that the Solicitor should pay a substantial fine. We have referred above to the deterrent element of any penalty and consider that a fine of $15,000 should be imposed.