COURT OF APPEAL · Saturday, 19 March 2016 Page 1 of 23 COURT OF APPEAL Number (3) Date Matter 1 17 June 2015 Kumar v Legal Services Commissioner Complaint / Findings / Question:

Saturday, 19 March 2016 Page 1 of 23

COURT OF APPEAL

Number (3) Date Matter 1 17 June 2015 Kumar v Legal Services Commissioner

Complaint / Findings / Question:

The Legal Services Commissioner applied to the (former) Administrative Decisions Tribunal, for findings that Vijay Kumar was guilty of professional misconduct and for an order that his name be removed from the Roll of Practitioners on the bases:

1. Kumar had deliberately and dishonestly misappropriated $12,000 from the proceeds of the settlement of a conveyance by one of his clients (Mr Malik).

2. Kumar had contravened s 674 of the Legal Profession Act 2004 (NSW) by obstructing or misleading an investigator attempting to undertake an audit of Mr Kumar’s practice over the period from 23 March 2010 to 3 March 2011, thereby constituting professional misconduct.

3. Kumar had deliberately misled the Commissioner as to his whereabouts on 1 February 2011, in the course of an investigation, such as to amount to professional misconduct.

Decision: Following a hearing, Kumar was found guilty of professional misconduct on three separate bases.

Penalty / Result:

Following a further hearing, the Tribunal ordered that Kumar’s name be removed from the Roll of Practitioners, that he pay compensation to Mr Malik “in the amount of $3,000, on the basis that part-payments totalling $9,000 have been made”, and that he pay the Commissioner’s costs. Kumar challenged the three adverse findings and Basten, Sackville and Leeming decided that his challenges failed, in that there was no appellable error made out and the appeal was dismissed.

2 5 August 2015 Donaghy v Council of the Law Society of NSW (No 2)


Geoff Donaghy, is a Solicitor practising in Lismore. In late 2009, Donaghy was the subject of a complaint by Reg Graycar, Barrister, in relation to the non-payment of her fees and subsequent failure to communicate by Geoff Donaghy.

Decision: The complaints were investigated by the Council of the Law

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Society of New South Wales, following which Donaghy was reprimanded pursuant to a summary procedure under s 540 of the Legal Profession Act 2005 (NSW). Donaghy sought review of that decision by the Tribunal. In August 2012, the Tribunal dismissed the application for review and reprimanded the Donaghy. In 2013, that decision it was set aside by the Court of Appeal on the ground that the Tribunal did not afford Donaghy procedural fairness. The matter was remitted to the Tribunal. On 9 April 2014, the Tribunal (now the Civil and Administrative Tribunal) set aside the Council’s decision after finding that the practitioner engaged in unsatisfactory professional conduct, holding that as the practitioner was not, in the Tribunal’s view, “generally competent and diligent”, the summary procedure was not available to the Council. The Tribunal remitted the matter to the Council for reconsideration of possible disciplinary proceedings. The Tribunal making these findings was constituted identically to a Tribunal which earlier made adverse findings in relation to the practitioner in an unrelated matter. Donaghy appealed this decision alleging in part that the Tribunal’s decision was affected by a reasonable apprehension of bias. At the hearing of the appeal, the Council conceded that the decision should be set aside.

1. The Court of Appeal: (1) Allowed the appeal and set aside the orders made by the Tribunal on 9 April 2014. (2) In place thereof order that Donaghy’s application to review the decision of the Council of the Law Society of 1 September 2011 is dismissed.

Penalty / Result:

Donaghy was reprimanded pursuant to a summary procedure under s 540 of the Legal Profession Act 2005 (NSW)

3 30 September 2015

Council of the New South Wales Bar Association v Dwyer


Mr Dwyer engaged in legal practice over a period of approximately seven months after the surrender of his practising certificate. He did so in relation to seven different matters on instructions from five different solicitors. His conduct in engaging in legal practice without holding a


practising certificate was exacerbated by his recovery of fees in relation to six of those seven matters. The total amount of fees recovered in relation to the six matters was $22,240, including GST. Mr Dwyer’s conduct was further exacerbated by his representing and advertising, falsely, an entitlement to engage in legal practice and by his correspondence and dealings with solicitors and clients in relation to the seven matters. It was also further exacerbated by his appearance in the Supreme Court of New South Wales without disclosing that he was not entitled to appear. In addition, Mr Dwyer misled the Council in relation to his conduct on different occasions, including occasions that involved a failure to disclose information in connection with his application for a practising certificate. Significantly, he made a false statutory declaration and must be taken to have made that declaration knowingly. His conduct in falsely representing that the copy of the letter to St George Bank that he provided to the Council was a true copy was tantamount to fraudulent. Mr Dwyer’s conduct in contravening the Legal Profession Act and in misleading the Council is conduct that would be regarded as disgraceful and dishonourable by his peers. Engaging in legal practice without a practising certificate undermines the system of regulation of Australian legal practitioners, the principal objective of which is to protect the public. The conclusion is inevitable that Mr Dwyer knowingly endeavoured to circumvent that system, exposing his clients to unacceptable risks. Mr Dwyer’s conduct strikes at the heart of the obligation of candour that is expected of a legal practitioner. Mr Dwyer’s conduct demonstrates a disregard for the law and a pattern of dishonesty. It is not the conduct of a person who is a fit and proper person to remain on the Supreme Court Roll. The only conclusion open to the Court is that Mr Dwyer is not a fit and proper person to remain on the Supreme Court Roll and his name should be removed. In circumstances, it is appropriate to make such declarations in order to reassure the public that acting as a barrister without a practising certificate will not be tolerated.




Decision: 1 Declare that Christopher Charles Dwyer is guilty of professional misconduct. 2 Declare that Christopher Charles Dwyer is not a fit and proper person to remain on the roll of persons admitted as lawyers maintained by the Court pursuant to s 22 of the Legal Profession Uniform Law (NSW) 2014 (Supreme Court Roll). 3 Declare that Christopher Charles Dwyer is not a person of good fame and character.

Penalty / Result:

Order that the name of Christopher Charles Dwyer be removed from the Supreme Court Roll

SUPREME COURT OF NEW SOUTH WALES

Number (4) Date Matter

4 25 June 2015 Comeskey v The New South Wales Bar Association


Whether fit and proper person to hold a practising certificate – failure to disclose disciplinary proceedings, complaints and convictions in New Zealand.

Decision: Christopher Patrick Comeskey, is on the roll of barristers and solicitors in New Zealand. On 13 June 2014, he applied for admission as a legal practitioner in New South Wales by a notice under the Trans-Tasman Mutual Recognition Act 1997 (Cth). Appealed against decision of The Council of the New South Wales Bar Association to refuse his application for admission as a legal practitioner in New South Wales. There is a duty of candour in application for practising certificate under Legal Profession Act, as well as under mutual recognition legislation. Appeal was dismissed.

Penalty / Result:

Application for admission as a legal practitioner in New South Wales was refused.

5 2 July 2015 Montenegro v Law Society of New South Wales

Complaint / Findings /

Mr Montenegro (the solicitor) appealed from a decision of the Council of the Law Society of New South Wales (the

http://www.austlii.edu.au/au/legis/cth/consol_act/tmra1997350/

http://www.austlii.edu.au/au/legis/cth/consol_act/tmra1997350/

http://www.austlii.edu.au/au/legis/nt/consol_act/lpa179/


Question: Council) refusing his application for a practising certificate for the 2015 financial year, made by resolution of the Council on 15th January 2015.

Decision: On 15th January 2015, the Council resolved to refuse Mr Montenegro’s Application for a Practising Certificate for the year ended 30 June 2015 on the basis that the Council is not satisfied that he’s a fit and proper person to hold the certificate. Council considered the solicitor’s history of convictions both before and after his admission, the facts of each offence, the extent to which the solicitor had made adequate disclosure when applying for admission and for practising certificates, and the explanation given by the solicitor. The Council concluded: The applicant’s disclosures to the LPAB, the Law Society and the Bar Association were less than full and frank. And, over a period of 6 years, he had failed on numerous occasions to fully and frankly disclose all the matters he was required, under the Act and Legal Profession Regulation, 2005, to disclose to the LPAB, the Law Society and the Bar Association.

Campbell J was satisfied that the disclosure of the serious criminal convictions of malicious damage and theft which occurred in 2000 when the solicitor was around 19 years of age were adequately disclosed to the LPAB and may not be revisited.

Campbell J: “The matter of most obvious concern . . . concerns the adequacy of disclosure of the significant driving convictions arising out of the series of events of 13th October 2002, 20th October 2002, 4th November 2002 and, in particular, 26th June 2004. Of particular concern are [Montenegro] says about the circumstances in which the charges in relation to the events of 20th October 2002 were withdrawn, his failure to accurately disclose the sentence passed, his non-compliance with orders resulting in him being resentenced to a suspended jail term and the non-disclosure of the drive whilst disqualified conviction on 26th June 2004. In context, the particular concern is his inability to explain the circumstances in which the charges were withdrawn in a meaningful way. This may strongly suggest

http://www.austlii.edu.au/au/legis/nsw/consol_reg/lpr2005270/

http://www.austlii.edu.au/au/legis/nsw/consol_reg/lpr2005270/


that even now, when he is of mature years, he does not have a fully developed appreciation of a lawyer’s exacting obligation of candour in his or her dealings with the Court, and authorities charged with responsibility for regulating the profession.” “On the other hand, I bear in mind that he did disclose some of the offending which occurred on 20th October 2002, including exceeding the speed limit by more than 45 kilometres per hour and I am prepared to accept . . . that he was simply mistaken when he specified that he received a s 10 bond.” “Because of [Montenegro’s] inability to explain fully the circumstances in which the charges were withdrawn, perhaps, at least in part due to the long effluxion of time, the Bar Council and the Council formed a view that the solicitor, as a 21 year old university student, had been party to a perversion of the course of justice. I am not satisfied that the evidence justifies a finding of such egregious misconduct, and that is not the ground on which either of them refused a practising certificate. Much weight was put on the content of the fact sheets prepared by the police. The general experience of the courts suggests that such documents are not always entitled to be afforded considerable weight. Nor should, in my view, the regulatory authorities treat them as presumptively highly reliable until the lawyer by contrary evidence rebuts them. The Facts sheet . . . is hardly fulsome, consisting of two short paragraphs . . . . They are clearly hearsay and were not prepared by the officers involved, but were compiled from checks on the police computer system. Part of the offending was the provision of a false name to police, and that matter, although the charge was subsequently withdrawn, was disclosed to the LPAB in the solicitor’s application for admission.” “What seems to have happened is that after the convictions imposed in his absence on 6th November 2002 were annulled (I interpolate the Magistrate must have been persuaded there was a satisfactory explanation for his non-attendance) the lawyer representing [Montenegro], who was entitled to the civil liberties enjoyed by all of us in the accusatorial criminal justice system, persuaded the police


that they could not win. I infer that the officers involved were not available given, as I have said, the hearsay nature of the short facts compiled in relation to the matter. The decision to withdraw the charges was entirely within the prosecutor’s discretion. The evidence does not justify a finding that either the solicitor, or his legal representative, connived to secure that withdrawal corruptly. “I accept [Montenegro’s] explanation that the inadequate disclosure of the sentence passed and the need to be resentenced is explained by his failure to put the facts before the LPAB with due diligence. There is no suggestion of dishonesty.” “Dealing with the offence of 26th June 2004, which was not disclosed at all, I accept that again this was a failure of due diligence and that the solicitor relied upon incomplete records. The matter was dealt with in the name Miguel Cortes, which, at that time, he was lawfully using. What is important in this regard is that he did disclose to the LPAB that he used other names to drive when he was otherwise disqualified. He was in error when he said that he had no additional offences since 2002, but he clearly accepted the wrongfulness of his conduct and asked the LPAB to accept that he had changed. As at 20th June 2004, he was not using a “false” name, but a name that he had lawfully adopted. The point is, he disclosed sufficient information to persuade me he was not deliberately suppressing information.” “Serious traffic offences are, of course, treated by the legislation as raising questions about a lawyer’s fitness. That is why they are required to be disclosed by reg 11. The very thorough investigation carried out, especially by the Bar Council, shows, that since 2004 his previously appalling record has greatly improved.” “This leads me to the offending of 24th and 25th April 2010. As the judgments in Zeims demonstrate, drink driving offences, even those not involving personal injury or death, are considered seriously when deciding questions of professional fitness. I would think that driving whilst disqualified offences are no less serious. The concern is that they may evince a disregard of lawful processes which is completely inimical to the observance of proper professional


standards. The solicitor’s failure to disclose the third matter is inexplicable. But that conduct is certainly less disgraceful than the commission of a second drink driving charge immediately following his release from the police station which matter was disclosed and accepted by the Disclosure Committee subject to the administration of an admonition. Again, the issue is not the nature of the offending but the disclosure. This incident also raises questions about whether the solicitor’s understanding of proper professional conduct, and the obligation of candour, is sufficiently well developed in someone who should be, by now, a very experienced lawyer. The urinating in public is, of course, very unseemly but is not of itself conduct which disqualifies him from holding a practising certificate and I will put it to one side. “Concerning the 29th January 2014 offence [an offence of damaging property], the substance of that matter was disclosed and the Disclosure Committee resolved to take no action. The matter of concern in relation to his fitness is that when stopped and questioned about the matter by police, he did not simply exercise his right to silence, but told what must have been an obvious lie in an attempt to avoid detection. As I have said more than once, this is conduct inappropriate in a practising lawyer. Was he required to disclose to the Law Society, “I initially lied to the police, but later thought better of it and I only did so because my judgment was affected by being drunk”? I think the answer is that a paragon would have. What he was required to disclose under s 55 of the 2004 Act, read in accordance with reg 11, was “the nature of the offence” and this he very substantially did. He should not have lied to the police. His state of intoxication may explain why he did, but it also discloses a lapse in moral fortitude. Whether a lawyer tells the truth always matters, but I accept that he did make a full disclosure to the Court and accepted responsibility by pleading guilty to the offence. In my judgment sufficient information was disclosed to the Law Society about this matter to discharge the solicitor’s professional obligations. “The shortcomings in his compliance with his obligations of candour and disclosure do raise a question about whether or not the solicitor is a fit and proper person to hold a local


practising certificate. In particular, I am satisfied that he may have obtained a practising certificate in the past because of information which was incorrect, in terms of being incomplete, and therefore apt to be misleading, but not dishonestly so. The question is whether all of the circumstances of the case warrant a finding that he is a fit and proper person to hold a local practising certificate, notwithstanding these considerations. The real concern is the shortcomings in his understanding of the obligation of complete candour. To a lesser extent the 2010 and 2014 convictions suggest moral failings relevant to his professional standing when under the influence of alcohol. Given his comparative youth when the pre-admission offending occurred, and the disclosure of the substance of his pre-admission convictions to the Board, I am of the view that the shortcomings in his disclosure at that time are explained in part by his youth, but also by a lack of due diligence born of a want of a full understanding of what is required of him as an Australian lawyer. The evidence does not allow me to find that his medical condition contributed to his failure to disclose the 2010 drive whilst suspended. Again, I would put this shortcoming down to an ongoing want of a full understanding of the required standard. “Having given the matter full and anxious consideration, I am persuaded that the circumstances I have sought to fully describe in these reasons warrant a finding that he is a fit and proper person to hold a restricted local practising certificate provided the ongoing concerns I have expressed are addressed by the imposition of appropriate conditions . . .. The precise formulation of those conditions ought to be left to the good judgment and experience of the Council if and when the solicitor re-applies, but they should require the solicitor to undertake and complete further legal education or training in the high standards of professional conduct required of Australian lawyers. This condition should be bolstered by a period of supervised legal practice. Moreover, given what seems to be a problem with his conduct and judgment when affected by alcohol, [Montenegro] should be required to undergo counselling or medical treatment to address that issue, to the satisfaction


of the Council. “In making this decision, I record that I have been influenced to some degree by the good opinion of the solicitor expressed by the lawyers who have given evidence on his behalf.”

Penalty / Result:

Appeal allowed. Set aside the decision of the Council of the Law Society of New South Wales refusing to grant Montenegro a local practising certificate. Declare that as at 15th January 2015, . . . circumstances warrant a determination that he is a fit and proper person to hold a restricted local practising certificate subject to the imposition of the following additional conditions: (a) Montenegro undertake and complete to the satisfaction of the Council further legal education and training in the standards of professional conduct and ethics required of Australian lawyers; (b) Montenegro undertake and complete a period of supervised legal practise as specified by the Council; and (c) Requiring Montenegro to undergo counselling or medical treatment to assess and address the question of alcohol abuse and to provide evidence to the Council of compliance with this condition.

6 25 November 2015

Roulstone v New South Wales Bar Association


Roulstone appealed against a deemed refusal of his application to the Bar Association of New South Wales for a practising certificate. It was submitted for the Bar Association that Roulstone’s appeal must fail because he is not a fit and proper person to hold a barrister’s practising certificate for two reasons, namely: “(a) That Mr Roulstone may have breached undertakings given by him to the Court and/or an injunction restraining him from engaging in specified conduct; (b) Mr Roulstone has failed to provide a candid explanation of the circumstances surrounding the aforementioned breaches, in disregard of his duty of candour as a barrister.” Serious allegations made by the Bar Association of breach of undertaking given to the Supreme Court by Roulstone and


breach of an order made by the Supreme Court against Roulstone prohibiting him from communicating with former clients. Question for the Court was whether the evidence established communications by Roulstone in breach of the undertaking or order.

Decision: Hall J held that the evidence was not capable of establishing any breach by Scott Roulstone of either the undertaking or order.

Penalty / Result:

Appeal allowed. A declaration that the deemed refusal of Roulstone’s application to the Bar Association of New South Wales for a practising certificate for the period from 1 July 2014 to 30 June 2015 be set aside. Order that the New South Wales Bar Association grant to Roulstone a local practising certificate for the year ending 30 June 2016.

7 29 February 2016

BRJ v Council of the New South Wales Bar Association


Three grounds for the complaint: 1. During the period from about 14 July 2010 until about 21 December 2011, BRJ failed on numerous occasions to attend Court promptly for rostered duty as a Specialist Domestic Violence Panel Practitioner appointed by Legal Aid NSW. 2. On or about 31 May 2011, BRJ (as landlord) entered into a residential tenancy agreement with her client (as tenant), in respect of [certain] premises in breach of BRJ’s fiduciary duties owed to her client and in breach of rule 16 of the New South Wales Barristers’ Rules (as then applicable). 3. From at least 5 October 2011 until 22 November 2011, BRJ acted for [that client] in proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care and Protection Proceedings) in circumstances where the client’s interest in the matter was in conflict with BRJ’s interest in regaining possession of the Premises. BRJ’s conduct in acting for [the client] in these circumstances was in breach of her fiduciary duties owed to her client and in breach of rule 95 of the New South Wales Barristers’ Rules. NCAT found, in respect of Ground 1 of the complaint, that the plaintiff’s psychiatric disorder “caused her lateness for

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court”. NCAT expressed its conclusions, which included its reasons for not making a reprimand, as follows: “The Tribunal concludes from . . . evidence that the [BRJ’s] judgment was affected so that she did not appreciate that her physical disabilities were causing her to be late for court. In those circumstances the Tribunal is of the view that it is not appropriate that [BRJ] be reprimanded in respect of her conduct the subject of [Ground 1] of the complaint. Further, the Tribunal concluded from the medical evidence that BRJ’s judgment and cognition were affected by the anorexia nervosa with the result that she did not have sufficient comprehension of her conduct nor the ability to properly reason in relation to her conduct. In those circumstances the Tribunal is of the view that it would not be appropriate that she be reprimanded for her conduct set out in [Grounds 2 and 3] of the complaint . . .. Further, if BRJ’s judgment and cognition had not been affected, a reprimand would be an appropriate order to make.”

NCAT decided that, as no disciplinary action was being taken, it was not necessary to make a declaration that BRJ was guilty of unsatisfactory professional conduct. BRJ appealed against the decision of NCAT. She did not challenge any of the orders made by NCAT (which did not include disciplinary action). However, she challenged NCAT’s findings that she engaged in unsatisfactory professional conduct in three respects. The question was whether NCAT erred in finding unsatisfactory professional conduct where conduct arose out of psychiatric disorder.

Decision: Mental element did not alter the characterisation of unsatisfactory professional conduct. Adamson J was not persuaded that the Supreme Court should set aside the findings of NCAT. “It was appropriate that they be made to record formally the Tribunal’s satisfaction that [BRJ] had engaged in unsatisfactory professional conduct as particularised in the application. Their making was consistent with, and advanced, the purposes of protection of the public in that


the findings served to educate the public and the profession as to the appropriate standards, as well as to restore public confidence in the profession.” Accordingly, Adamson J found that there was no error in NCAT’s approach.

Penalty / Result:

BRJ’s appeal was dismissed.

CIVIL & ADMINISTRATIVE TRIBUNAL OF NEW SOUTH WALES

Number (31) Date Matter 8 20 March 2015 Legal Services

Commissioner v O’Donnell


8 grounds of complaint: Grounds 1-3 related to withdrawals from the Solicitors trust account which were categorised as improperly charged fees, misappropriations, and/or borrowing of a clients funds contrary to rule 12 of the Solicitors Rules – found proved. Ground 4 alleged breach of rule 10 of the Solicitors Rules in relation to the preparation of a Will. Ground 5 alleged that the Solicitor misled or attempted to mislead Lloyd & Lloyd Solicitors and the Guardianship Tribunal of NSW. Ground 6 alleged that the Solicitor made a false declaration to the Law Society of NSW in relation to his trust account. Ground 7 alleged that the Solicitor misled or attempted to mislead a trust account investigator. Ground 8 alleged that the Solicitor misled or attempted to mislead the office of the LSC.

Decision: Grounds 1-3 related to withdrawals from the Solicitors trust account which were categorised as improperly charged fees, misappropriations, and/or borrowing of a clients funds contrary to rule 12 of the Solicitors Rules – found proved Ground 4 alleged breach of rule 10 of the Solicitors Rules in relation to the preparation of a Will –


where Solicitor was appointed executor and the whole of the estate was bequeathed to the solicitor – found proved. Ground 5 alleged that the Solicitor misled or attempted to mislead Lloyd & Lloyd Solicitors and the Guardianship Tribunal of NSW - established Ground 6 alleged that the Solicitor made a false declaration to the Law Society of NSW in relation to his trust account. Ground 7 alleged that the Solicitor misled or attempted to mislead a trust account investigator – established. Ground 8 alleged that the Solicitor misled or attempted to mislead the office of the LSC – found proved

Penalty / Result: Bernard Kevin O’Donnell is guilty of professional misconduct Bernard Kevin O’Donnell be removed from the roll of local Legal Practitioners

9 31 March 2015 Council of the Law Society of New South Wales v Truong


Solicitor with served with a section 660 of the Legal Profession Act 2004 notice. The terms of the Notice were that the Solicitor was required to produce to the Law Society on or before the fourteenth day after service of the Notice: a. verified by statutory declaration, the specified information; and b. specified documents. Complaint was that Solicitor, without reasonable excuse, failed to comply with a requirement under section 660 of the Legal Profession Act 2004.

Decision: Tribunal decided that the Solicitor failed to comply with the Notice in a number of respects. We have decided also that the time stipulated for compliance by him was reasonable in the circumstances and that the evidence does not establish any ‘reasonable excuse’ for his failures to



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comply. For these reasons, the sole Ground of the Application has been made out. The conclusion that must follow is that the Solicitor has engaged in professional misconduct. The Act does not provide for any lesser finding, such as one of unsatisfactory professional conduct.

Penalty / Result: The Solicitor was reprimanded.

11 5 June 2015 Legal Services Commission v Anderson


The proceedings follow a complaint by Mr Mark Anderson (no relation to the solicitor), Manager of the Melbourne Cricket Club, that the solicitor in effect, by deception, assumed the identity of a deceased member of the club and thereby took benefits of membership to which he was not entitled.

Decision: Professional misconduct was conceded. The Solicitor is guilty of professional misconduct.

Penalty / Result: The Solicitor be reprimanded. The Solicitor pay a fine of $10,000

12 7 September 2015 Council of the Law Society of New South Wales v Wilson


There were a number of grounds of the complaint, including: Wilful breaches of the Legal Profession Act 2004. Misappropriated trust funds. Making five (5) false certifications in claims made to the Legal Aid Commission for payment of fees. Misappropriating $17,275.50 received on behalf of counsel (Solicitor claimed counsel’s fees on a number of occasions where no counsel was engaged. The claims were simply false).

Decision: Finding of Professional Misconduct Penalty / Result: Order that the name of Sonny Wilson be removed

from the local roll of legal practitioners. 13 21 September 2015 Council of the Law

Society v Cummins Complaint / Findings / Failure to comply with conditions imposed upon



Question: his practising certificate, including amongst other conditions to be an employee

Decision: Finding of professional misconduct

Penalty / Result: Solicitor is reprimanded. To undertake within six months of the date of the orders made by the tribunal, and during which the solicitor holds a current practising certificate, the course known as Professional Responsibility, the course, as conducted by the College of Law and therein achieve a pass mark of not less than 50%, the pass mark: Within seven days of receipt of the result of the course provide to the manager of the Professional Standards Department of the Law Society of New South Wales, the manager, the original result notification from the provider of the course. Should the solicitor fail to achieve the pass mark he shall complete any further course in legal ethics as approved by the manager of the Professional Standards Department until such time as he achieves the pass mark. Should the solicitor fail to achieve the pass mark within the time period in 2 above, his practising certificate shall be suspended until such time as he achieves the pass mark. Solicitor pay a fine in the sum of $2,000.

14 13 October 2015 NSW Bar Association v Harkin


The allegations of misconduct made against the respondent divide, broadly, into the following categories: (a) Practising when not entitled to do so. Failure to hold current professional indemnity insurance (PII) in the period 1 July 2011 to 30 June 2012. He did have a practising certificate during this period. Continued failure to hold PII in the period 1 July to 21 August 2012. Failure to hold a practising certificate, 1 July to 15 October 2012. Representations as to his practice status in the


period 1 July to 15 October 2012. (b) Incompetence in various respects in the handling of the cases of Smeekens, Buckley and Buck. (c) The making of false or misleading statements to the Bar Council in relation to explanations given for various non-compliances and failures to comply with formal notices issued as part of its investigation of the complaints.

Decision: It is a grave matter for a lawyer to practise without PII. The respondent was in this situation for the whole of the practice year 2011-2012. He did hold a practising certificate during that year, but it had no validity because of the absence of PII. Accordingly he practised for the whole of that year when not entitled to do so. The position was exacerbated in the first part of the 2012-2013 practice year. As at 1 July 2012 he had neither PII nor a practising certificate. Practice for an extended period without a valid certificate, and in circumstances where no reasonably tenable exception or excuse applies, clearly, in our view, amounts to professional misconduct. It places the community at risk in a very serious way, so far as the absence of cover is concerned. It places at risk public confidence in the standards of the legal profession, in that it undermines reliance on the assurances that people who hold themselves out as entitled to practise law have the qualifications and current certifications that allow them to do that. It treats with disrespect the confidence that courts and other participants in the justice system place in those who hold themselves out as lawyers entitled to practise before them. In this case the respondent has not offered any real explanation for his omissions in this respect. The material we do have before us points to a practitioner who had by 2011 had a small, disorganised practice, with client contacts


occurring in social venues such as clubs and hotels, and advance payments in cash being negotiated and left undocumented. The evidence clearly establishes critical failures to observe the rules relating to barristers. Barristers are strictly regulated in relation to the taking of direct access briefs. The respondent failed to observe the requirements relevant to the direct access clients. Similarly, he failed to observe the requirements in relation to costs disclosure, and in relation to the receiving of payments for services, the trust money rules that apply, and the giving of receipts. Finally he has not refunded the payments to the clients, when obliged to do so. These are major breaches of the standards to be expected of a lawyer, and especially a barrister who must bring a special level of care to any direct access relationship. In at least two of the cases, there were grave failures to keep the client properly informed as to the progress of the matter. Ms Smeekens was particularly badly treated. She was led to believe she could make a common law civil claim for damages in respect of the assault, and had a realistic chance of success. The opposite was the case. Any cause of action was problematic, and there was no realistic likelihood of success, a position exacerbated by the lack of precision of the pleadings drawn by the respondent. She was not told that the proceedings had been commenced, and not told that they had been summarily dismissed, with an order for costs made against her. She only found out these things out after receiving a notice of demand for filing fees from the Court some months later, and after making her own inquires. She was left with a substantial debt. In the case of Buckley and Buck, they made payments on account of fees which have not been refunded. Buckley had two proceedings, and was subject to considerable


delay, inconvenience and costs because of the respondent’s conduct. Harkin’s lack of candour in his communications with the NSW Bar Association may have some explanation in his medical condition and personal circumstances. But we have no reliable evidence in that regard. Clearly, in combination, the failures justify a finding of professional misconduct, as do the repeated failures to respond to notices and other reminders.

Penalty / Result: The Tribunal orders that Harkin’s name be removed from the local roll.

15 29 October 2015 Council of the Law Society of NSW v Greenstein


There were 11 grounds of complaint, including: Failure to pay counsel’s fees Failure to respond to counsel’s correspondence Misappropriated trust monies.

Decision: The Solicitor guilty of professional misconduct Finding that the Solicitor is not a fit and proper person to engage in legal practice

Penalty / Result: The name of the Solicitor David Greenstein be removed from the local roll of legal practitioners

16 23 February 2016 Council of the Law Society of New South Wales v Loris Hendy


The grounds for the application as stated in it were that the solicitor failed to pay or cause to be paid a debt owed by the incorporated legal practice Garrett Walmsley Madgwick Pty Ltd (GWM) trading as GWM Law of which she was a legal practitioner director. The debt in question was owed to MJD Valuers. It was originally $47,505 but merged into a judgment in Gosford Local Court of $50,260.45 plus costs on 17 April 2012.

Decision: Solicitor is guilty of unsatisfactory professional conduct.

Penalty / Result: Solicitor is reprimanded.


17 26 February 2016 Council of the Law Society of NSW v Orford


Grounds in complaint included: Falsely certified he had witnessed the signature of the vendors when two of the developed lots (Lots 7 and 8) were sold. The solicitor concedes that he did not witness the signature of one vendor, Ms Sanaa Halbouni, a vendor of Lot 7 and 8 and in this respect is guilty of professional misconduct; When acting for the vendors of the developed Lot 9 that he failed to ensure the transfer was correctly executed and certified prior to and at settlement. It is asserted that the signature of one vendor of Lot 9, Ms A Cavallaro (Ms Cavallaro) is a forgery; Recklessly failed to protect the interests of the vendors of the developed Lot 8 because he allowed the Certificate of Title to be released without obtaining the full purchase price; Acted on the sale of Lot 9 in the development without obtaining instructions from one vendor, Ms Cavallaro.

Decision: Finding that the practitioner is guilty of professional misconduct as, in each proven instance, his conduct involved a substantial and consistent failure to reach or maintain a reasonable standard of competence and diligence.

Penalty / Result: Penalty not determined yet. 18 29 February 2016 Legal Services

Commissioner v Ge Complaint / Findings / Question:

Five grounds of the complaint: Ground 1: In or about February 2015 Mr Ge forwarded to a legal recruitment firm known as Taylor Root his CV which was to his knowledge false and misleading in material particulars and was intended to mislead, together with a transcript of his academic record which was also to his knowledge false and misleading was intended to mislead In summary, the particulars relied upon the CV


stated that Mr Ge had a “distinction average LLB” when that statement was false. Further, the academic transcript which accompanied the CV was falsified. The academic record gave details of the legal courses undertaken by the defendant from semester 1 of 2008 to semester 2 of 2012. Twenty-one of the entries were altered. In most cases false entries recorded distinction passes when in fact Mr Ge had been awarded only a pass or on six occasions, a credit for that course. Ground 2: On 12 March 2012 Mr Ge, in seeking employment with Gilbert + Tobin, solicitors, forwarded Mr Danny Gilbert a CV which to his knowledge was false and misleading and intended to mislead and subsequently provided the Human Resources Department of Gilbert + Tobin, a transcript of the academic record which to his knowledge was false and misleading in material particulars and was intended to mislead. Ground 3: On 9 April 2013 Mr Ge sent an email and CV to Adam Stapledon of Allen & Overy (Sydney Office) which to his knowledge was false and misleading in material particulars and intended to mislead. Particulars allege that the email referred to contained the following false statement: “My passion in law is also reflected in my high grades (with sixteen Distinctions in law subjects)”. Ground 4: In early 2015 the solicitor provided to Corrs Chambers Westgarth an academic transcript which was to Mr Ge’s knowledge false and misleading in material particulars and intended to mislead”. Particulars allege that the academic transcript was falsified. Ground 5: On 16 February 2015 Mr Ge provided to Allens Linklaters academic transcript which was to his knowledge false and misleading in material particulars and intended to mislead”. The particulars allege that on 7 February Mr Ge


emailed to partners of Allens stating that he was employed in the Sydney Office of Allen & Overy and expressed interest in working in the banking and finance division; that on 12 February 2015 the National Resourcing Manager at Allens Ms Tiffany Rogers requested that Mr Ge provide an academic transcript; that Mr Ge provided a copy of his falsified academic transcript.

Decision: A declaration that Chris Chen Yung Ge is guilty of professional misconduct in respect of each of the five grounds.

Penalty / Result: That Chris Chen Yung Ge be disqualified from holding any practising certificate for a period of two years commencing on 22 February 2016. That from 22 February 2018, any practising certificate be endorsed with the condition that for the period of three years from 22 February 2018 or from the date when any application is made for such a certificate Chris Chen Yung Ge only practise as an employee of a solicitor holding an unrestricted practising certificate.

19 9 March 2016 The Law Society of New South Wales v Gathercole


Grounds of complaint included:

Falsely purported to witness the a signature. Falsely certified that he was personally acquainted with or had otherwise satisfied himself as to the identity of a person whose signature he witnesses. Falsely certified that a person signed the instrument in his presence.

The Solicitor made admissions as to the conduct.

Decision: Solicitor is guilty of professional misconduct

Penalty / Result: Solicitor is Reprimanded Solicitor is fined the sum of $5000

20 16 March 2016 Council of the Law Society of New South Wales v Selim

Complaint / Findings / Grounds of the complaint include:


Question: Solicitor made a false Statutory Declaration. Solicitor she propounded the false Declaration. Solicitor submitted other documents for the purposes of obtaining a loan, which she herself signed but which falsely purported to have been witnessed by a person that she knew had not witnessed them. Attempted to mislead the Law Society in relation to these matters.

Decision: Guilty of professional misconduct in respect of the 4 grounds of the complaint.

Penalty / Result: Solicitor’s name be removed from the Roll.

Documents

COURT OF APPEAL · Saturday, 19 March 2016 Page 1 of 23 COURT OF APPEAL Number (3) Date Matter 1 17 June 2015 Kumar v Legal Services Commissioner Complaint / Findings / Question: