The Council of the Law Society of NSW v Autore

What was the Solicitor's misconduct in this matter?

1. We found, in relation to the First 371 Notice, that the Solicitor chose not to respond to the Notice, that he had failed to comprehend the Law Society's role, and that it was not for him to unilaterally form a view as to whether the information required by the Notice was relevant to the Law Society's investigation. We noted that the Solicitor had a clear statutory obligation to respond, and, consequently, compliance with the Notice was mandatory, not optional.
2. In relation to the Second 371 Notice, we found that the Solicitor agreed that he did not respond to two of the questions but that his claim that he was unaware, in 2016, of the ability to fax documents, was disingenuous. The Solicitor ultimately agreed that he had not provided a response within the specified time. Again, we observed that the Notice required mandatory compliance.

Legal principles as to Orders in legal disciplinary matters

1. It is well established that the Tribunal's disciplinary jurisdiction is concerned with the protection of the public and that the Tribunal's role is aimed at protecting clients and members of the public from harm that could be caused by dishonest, incompetent or non-diligent legal practitioners. It is not punitive. See Council of the Law Society of NSW v Weller [2017] NSWCATOD 38 at [40].
2. We consider that, in determining the appropriate Orders to be made, there are several factors beyond the proven misconduct, to be considered, and these are addressed below.

The Solicitor's professional conduct history

1. The Solicitor has a regrettable professional history, as set out in Mr Lean's affidavit. He has been reprimanded on a number of occasions: twice by the Legal Services Commissioner (both in 2013 for "breach of undertaking - failure to respond to the OLSC", and "failure to provide an itemised bill" and "delay in transferring the client's file"), twice by the Law Society (1990 and 1996, for "unethical conduct" and "negligence"). He was reprimanded in 2012 by the Administrative Decisions Tribunal for "failure to comply with Notices" and "failing to assist the Society with the investigation of a complaint": Council of the Law Society of NSW v Autore [2012] NSWADT 139. On 23 November 2017 this Tribunal found the Solicitor had engaged in professional misconduct by failing to comply with an undertaking and failing to pay barrister fees: Law Society of NSW v Autore [2017] NSWCATOD 168. On 9 January 2019 the Tribunal found the Solicitor had engaged in professional misconduct by failing to comply with a Notice issued under s 371 of the Uniform Law: Council of the Law Society of New South Wales v Autore [2019] NSWCATOD 10.

Solicitor's age and professional experience

1. The Solicitor was admitted on 5 July 1985. The Law Society submitted that due to the Solicitor's significant experience, he should have been aware of the gravity of his misconduct and, consequently, deserves a severe sanction: Council of the New South Wales Bar Association v Davison [2005] NSWADT 252 at [143]; affirmed in Davison v Council of the New South Wales Bar Association [2007] NSWCA 227.
2. The Law Society submitted that given the Solicitor's previous misconduct, including misconduct involving failures to comply with Notices issued under s 660 of the LPA 2004 and s 371 of the Uniform Law, the Tribunal may legitimately conclude that the Solicitor has not learned from his previous indiscretions despite being provided with opportunities to rectify his behaviour.
3. We agree that it is disappointing, to say the least, that the Solicitor has, since as early as 1990, continued to engage in conduct on multiple occasions that has brought him to attention.

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

1. 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.
2. 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'
3. 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.
4. 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.
5. However, it is the Solicitor's ongoing denial of responsibility in these matters which presents a serious concern.
6. 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.
7. 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.

Illness or stressors suffered by the Solicitor

1. The Solicitor claimed in his affidavit that "at the time" [presumably, referring to his compliance obligations] "pressure and work demands" clouded his judgment and he lacked appreciation of what was occurring around him.
2. During the Stage 1 hearing the Solicitor tendered an affidavit by Associate Professor Gordon Davies, Consultant Psychiatrist which stated that the Solicitor had consulted him between June 2012 and August 2014 for treatment for Moderate Depression, and, since that time, had required no further treatment. Although Associate Professor Davies was required for cross-examination, he was not able to participate in the hearing. We found that the evidence of Associate Professor Davies did not advance consideration of whether the Solicitor had complied with the First 371 Notice.
3. We observe that, even on the basis of Associate Professor Davies' evidence, the Solicitor had not required treatment for any psychological condition for at least two years before the first of the Notices was issued. Consequently, we consider the Solicitor's explanation of "pressure and work demands" which "clouded [his] judgment" to fall short of, in any way, excusing his conduct.

What are the appropriate Orders to be made?

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Quantum of fine (Second Application only)

1. 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.
2. 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].
3. 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.
4. 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.
5. 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.

COSTS

1. Clause 23(1) of Schedule 5 of the Civil and Administrative Tribunal Act 2013 requires the Tribunal to make orders requiring an Australian legal practitioner whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the LS Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist. We are not satisfied of any such circumstances.

ORDERS In respect of each matter: 1. The Solicitor is reprimanded. 2. No further practising certificate is to 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) dated 3 July 2017 and 27 September 2016. 3. The Solicitor is to pay the Applicant's costs, as agreed or assessed. 4. In addition, in respect of matter 2018/00179034, the Solicitor is fined $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 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: 27 February 2023