Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Law Society of New South Wales v Carbone [2011] NSWADT 32
• Hearing dates: 17 – 18 June 2010
• Decision date: 21 February 2011
• Jurisdiction: Legal Services Division
• Before: Currie JS, Judicial Member; Isenberg N, Judicial Member; Bubniuk L, Non-Judicial Member.

Decision

 

1. The Respondent be publicly reprimanded;

 

2.That the Respondent is fined the sum of $2,000 which is to be paid within 6 calendar months of the date of these orders and if not so paid, the Respondent's practising certificate is cancelled until such time that the payment is made in full;

 

3.The Respondent is ordered to pay the costs of the Applicant; and

 

4. In the event of the Respondent next applying for a Practising Certificate it shall be condition of the issue of that Practising Certificate that the Respondent satisfactorily complete all four modules of the Risk Managment Course provided by LawCover within one year of being issued with that Practising Certificate. 

 

• Catchwords: Findings of Professional Misconduct and Unsatisfactory Professional Conduct
• Cases Cited: Law Society of NSW v Shalovsky (2008) NSW ADT 14; Law Society of NSW v Carbone [2009] NSW ADT 20; Law Society of NSW v Carbone (no. 2) [2009] NSW ADT 321; Legal Services Commissioner v Knudsen [2000] NSW ADT 62; Law Society of NSW v Cunningham [2003] NSW ADT 138; Law Society of NSW v Mavrakis [2005] NSW ADT 13; Law Society of NSW v Tsolakis [2000] NSW ADT 21; NSW Bar Association v Howen No. 2 [2003] NSW ADT 235
• Category: Principal judgment
• Parties: Council of the Law Society of NSW (Applicant); Domenic Carbone (Respondent)
• Representation: Ms C Webster (Applicant); Mr T Williams (Respondent)
• File Number(s): 092025

Introduction

1               This is a matter in which disciplinary Orders are sought by the Council of the Law Society of New South Wales on the basis of allegations of failure, without reasonable excuse, by a legal practitioner to comply with a Notice under s660 of the Legal Profession Act 2004 ("the Act of 2004") and related conduct, in respect of two of the practitioner's clients.

 

2               Section 660 and its predecessor section, s152 of the Legal Profession Act 1987, set up a statutory procedure for the issue of a notice to a legal practitioner where the issue of such a notice is required for the purpose of conducting an investigation into a complaint. Compliance in full with such a notice is an important element in the effective and efficient investigation of complaints, and central to the proper operation of Part 6 of the Act of 2004.

 

The Law Society's case as initially pleaded

3               The Law Society, by its original Application for Original Decision dated 21 August 2009 and filed on that date, sought Orders that:

 

1. "the solicitor pay a substantial fine

 

2. the solicitor be publically reprimanded

 

3. the solicitor's practising certificate be suspended until he complies with the Notice pursuant to s660 of the Legal Profession Act 2004; and

 

4. the solicitor pay the Applicant's costs of the proceedings".

 

4               The original Application goes on to allege that Domenic Carbone ("the Practitioner") while practising as a solicitor, was guilty of professional misconduct and unsatisfactory professional conduct.

 

5               The Application then sets out Particulars on which it relies. There are seven grounds. They are in the following terms:

 

"Professional Misconduct

 

i             The solicitor, without reasonable excuse, failed to comply              with a Council requirement under s660 of the Legal              Profession Act, 2004.

 

 

ii             The solicitor failed to assist the Law Society in the              investigation of a complaint.

 

iii             The solicitor caused a matter file relating to instructions              received from Mr Gewargis Soro to be destroyed or              otherwise made unavailable in approximately June 2006, in              breach of his obligation to retain same securely pursuant to              Revised Professional Conduct Practice Rule No. 8.2.1.

 

Unsatisfactory Professional Conduct

 

iv             The solicitor failed to disclose costs

v             The solicitor failed or delayed in accounting.

 

vi             The solicitor failed to refund out of pocket expenses.

 

vii             The solicitor failed to respond adequately to              correspondence from both the complainant and the Legal              Services Commissioner".

 

6               The Practitioner, at that time acting on his own behalf, filed a Reply to the Application on 26 February 2010. That document set out a detailed response to each of these 7 Grounds and a response to, and in many cases a rebuttal, of the Particulars supplied by Law Society as part of its Application. These Particulars and the Practitioner's response to them will be discussed under a separate heading below.

 

7               The Law Society later amended its Application, the Amended Application being filed with the Tribunal on 8 March 2010, the only amendment made was to add a fifth class of order sought namely:

 

"such further or other orders as the Tribunal thinks fit".

 

8               The Grounds and the Particulars forming part of the original Application by the Law Society, remained unaltered.

 

Particulars of alleged professional misconduct

9               The Law Society's allegations of professional misconduct relate to the Practitioner's dealings with his client Mr Gewargis Soro, also known as George Soro. The allegations are pleaded extensively in the Particulars in the Application.

 

10           In summary it is alleged that the Practitioner failed to co-operate with enquiries concerning the complaint by Mr Soro initiated by both the Legal Services Commissioner and the Law Society of New South Wales, and that this culminated in a Notice under s660 being served on the Practitioner on 13 December 2006. It is further alleged that the Notice required the Practitioner’s response to be verified by statutory declaration and that the response be received by 21 January 2007, and that the Practitioner failed to comply with these requirements.

 

11           The Particulars state that one day after the due date, namely on 22 January 2007, the Practitioner forwarded a response to the s660 Notice but that that response did not comply with a Notice and was not, as required, verified by statutory declaration.

 

12           The Particulars, in this regard, go on to describe the course of correspondence between the Law Society and the Practitioner. It is alleged (in paragraph 21) that no subsequent statutory declaration has been provided by the Practitioner. (Subsequently, and seemingly in anticipation of the hearing, a statutory declaration was provided, dated 16 June 2010.)  There were apparently further allegations as part of the complaint that the Practitioner's hourly rates were not disclosed to Mr Soro.  The Practitioner indicated in his correspondence to the Law Society that his hourly rates had in fact been orally disclosed to Mr Soro.

 

13           In its letter dated 16 September 2008, the Society told the Practitioner that before submitting its report to its Professional Conduct Committee, it was desirable to give the Practitioner a final opportunity to provide information and documents which thus far had not been made available to the Society. In that letter the Practitioner was expressly warned that failure to assist in this regard may well result in a finding by the Professional Conduct Committee that the second limb of the Society's complaint, namely that the Practitioner had failed to assist the Society in the investigation of the complaint, had in fact been made out.

 

14           The Law Society alleges at (at paragraph 25) that there has been no substantive response to the Society's letter of 16 September 2008.

 

15           The Particulars go on to allege that the Practitioner did write to the Society in a letter dated 19 January 2009 disputing the validity of the s660 Notice. In respect of Ground (iii), the destruction of Mr Soro's file relating to common law and workers' compensation issues, the Practitioner's position was that, as no request had ever been made for the file prior to its destruction and that contrary to the assertions by the Society's investigator, the solicitor's destruction of the file was properly undertaken and not in breach of Practice Rule 8.2.1.

 

16           The Law Society concludes that in respect of Ground (i), the Practitioner failed without reasonable excuse to comply with the Notice and that s676 of the Legal Profession Act 2004 deems that to be professional misconduct.

 

17           In relation to Ground (ii), failure to assist the Law Society, the Particulars allege that, by reason of the inadequacy of his response to the s660 Notice, and by reference to the course of correspondence generally, the Practitioner failed to assist the Law Society in its investigations of the complaints made by Mr Soro. It is alleged that that failure constituted professional misconduct either under s497(1)(a) of the Legal Professional Act 2004 or at common law.

 

18           In relation to Ground (iii) destruction of Mr Soro's file, the Law Society alleges (at paragraph a 29 of the Application) that the Practitioner's destruction of the matter file in relation to Mr Soro's common law and workers' compensation issues in June 2006 constituted professional misconduct under s497(1)(a) of the Legal Profession Act 2004, being a breach of Revised Professional Conduct Practice Rule No. 8.2.1. It is to be noted that the Practitioner did not keep separate files for the common law and workers' aspects of Mr Soro's instructions.

 

Particulars of alleged unsatisfactory professional conduct

19           The particulars of the Practitioner's unsatisfactory professional conduct all relate to the Practitioner's client Mrs Adams.

 

20           The Particulars in the Application set out a very lengthy description of the allegations as to the Practitioner's conduct and in particular his alleged failure to account properly to Mrs Adams for various amounts received in respect of her District Court proceedings.

 

21           In summary, it is alleged that following a rehearing of Mrs Adams' original claim by Garling DCJ, judgment was entered in favour of Mrs Adams on 18 June 2003 in the sum of $22,084 plus costs, against the first defendant.

 

22           It is further alleged that on 3 July 2003 the Practitioner forwarded his memorandum of costs in the amount of $44,000 plus disbursements in the amount of $16,706.20 to the solicitor for the first defendant and that on 4 September 2003 the solicitor for the first defendant sent the Practitioner a bank cheque in favour of Mrs Adams for the sum of $19,875.60 representing verdict monies less 10% payable to another party under the judgment ($2,208.40).

 

23           It is then alleged, in summary, that the Practitioner entered into arrangements with his client Mrs Adams relating to the so-called "gap" between party and party costs and solicitor-client costs. Mrs Adams did not speak English well, nor read English and as such was reliant on third parties. There is nothing in the Practitioner's case to indicate that any professionally accredited interpreter or translator was engaged by the Practitioner to communicate effectively with Mrs Adams.

 

24           Upon a complaint being made to the Legal Services Commissioner, there ensued further correspondence between the Practitioner and the Commissioner, apparently relating to Mrs Adams' complaint that the Practitioner had failed to adequately explain the current position concerning the accounts and in particular the position following the assessment of the party and party costs by a Costs Assessor who issued her a certificate as to Determination of Costs on 15 April 2005.

 

25           By letters on 1 June and 1 July 2005 the Commissioner put to the Practitioner that the Practitioner had not responded fully to Mrs Adams’ enquiry concerning these costs issues and that the Practitioner had failed to provide the Commissioner with information which might allow him to make a proper determination of the complaints.

 

26           The Practitioner apparently responded in some detail on 11 July 2005, but the Commissioner replied on 9 March 2006 indicating that at no time had the Practitioner provided to the Commissioner a full trust account statement as it relates to Mrs Adams' case. That was requested to be delivered within the following 14 days. The Commissioner also stated that he needed to understand precisely what took place when the case was finalised.

 

27           The Law Society alleges that to date the Practitioner has failed to produce a copy of any trust account statement as requested in the Commissioner's letter of 9 March 2006.

 

28           There were further complaints made by Mrs Adams in respect of out-of-pocket expenses. The Practitioner by his letter of 31 October 2006 to the Law Society maintained that, because his firm did not recover full disbursements as a result of the Costs Assessment (ie a shortfall of $2,793), a refund of out of pocket expenses was not due to Mrs Adams.

 

29           The matter did not rest there. The Law Society continued correspondence with the Practitioner maintaining its view that it had not seen proper authorisation from Mrs Adams as to the payments described in her letter of 16 July 2004. In further correspondence there were allegations put to the Practitioner that he had not properly provided a costs agreement to Mrs Adams and that he had not properly retained Mrs Adams’ file for a period of 6 years pursuant to Revised Professional Conduct Practice Rule 8.2.1.

 

30           There appears to have been further correspondence including a detailed response by the Practitioner to the Law Society by letter dated 22 January 2007. However, in summary it is clear that the Law Society did not find the Practitioner's explanations as to his accounting of moneys in Mrs Adams’ matter to be satisfactory.

 

31           In respect of Ground (iv), failure to disclose costs, the Law Society alleges in the Particulars (paragraph B61 and B62) that the Practitioner failed to disclose costs to Mrs Adams in accordance with Division 2 Part 11 of the Legal Profession Act 1987 and that that constitutes unsatisfactory professional conduct.

 

32           In respect of Ground (v), failure or delay in accounting, the Law Society alleges that the Practitioner's failure to provide Mrs Adams on conclusion of the party-party assessment of costs with a clear statement of account setting out what had been recovered by way of those costs on her behalf and how the sum was calculated, compared with the bill in the lump sum format provided to her by the Practitioner on 8 September 2003, constitutes unsatisfactory professional conduct.

 

33           In relation to Ground (vi), failure to refund out of pocket expenses, the Law Society alleges that Mrs Adams was not informed by the Practitioner as to any costs received from the relevant defendant and that the Law Society had not been informed by the Practitioner as to when he received any amounts for costs and disbursements from that defendant as determined by the Cost Assessor, nor the sum or sums received, except information that there was some receipt of funds between 4 September and 15 September 2006. The Law Society says that the Practitioner's failure to refund to Mrs Adams amounts paid by her for medical reports and allowed by the assessor constitutes unsatisfactory professional conduct.

 

34           In relation to Ground (vii), failure to respond adequately to correspondence, the Law Society says that the Practitioner's failure in his correspondence with the Legal Services Commissioner to properly explain the status of the outcome of the party- party costs assessment in circumstances where the cost assessment was completed by no later than April 2005 constitutes unsatisfactory professional conduct. The Society also alleges that the Practitioner's failure in his correspondence with Mrs Adams to explain the status and outcome of the party-party costs assessment, in circumstances where the assessment was completed by April 2005 and the solicitor received costs from the defendant between 4 September and 15 September 2006, constitutes unsatisfactory professional conduct.

 

The Practitioner's initial reply and general response

35           The Practitioner filed a Reply to the Law Society's original Application, on 26 February 2010. At this stage the Practitioner was acting on his own behalf. The Reply is a lengthy document. In it, the Practitioner responds not only to the particular Grounds raised in the Application, but also responds in detail to each of the matters alleged by the Law Society in its Particulars.

 

36           In essence however, the Reply consists of responses to the Law Society's Grounds as follows:

 

·      Ground (i): failure to comply with s660 Notice. This is denied and in the alternative the Practitioner states that a reasonable excuse pursuant to s660 exists. The Practitioner says this on the basis that the hand-amended document purporting to be the s660 Notice was not identified to the Practitioner as a formal notice nor was he told that a verified response was required. The Practitioner says that so far as he is aware no formal resolution by the Law Society was adopted or provided; that is that the Professional Conduct Committee had not resolved to issue a formal Notice, to his knowledge. He further says that exceptional circumstances existed at the time which would excuse strict technical compliance and that a substantive response to the notice was submitted to the Law Society one day after the time limited  by the Notice and that client complaints were dismissed based on the information provided. He also says that non verification of his response to the Notice did not impact on the substantive nature of the reply. Several other grounds are provided.

 

·      Ground (ii): failure to assist the Law Society in the investigation of a complaint. This is denied. The Practitioner relies on the principles in Law Society of NSW v Shalovsky (2008) NSW ADT 14 to the effect that reliance upon common particulars is duplicitous and must fail. The Practitioner also says that the material before the Tribunal discloses no misconduct in this regard and that the fact adduced in evidence do not warrant a finding of misconduct. He further states that the complaint is lacking in substance or is misconceived under s735(h) of the Administrative Decisions Tribunal Act 1997.

 

·      Ground (iii): the solicitor caused Mr Soro's file to be destroyed or otherwise made unavailable. This ground is also denied by the Practitioner. There are several grounds upon which this is contended, principally that the Law Society did not at all material times request production of the common law file and that the complaint is duplicitous to the complaint already dismissed by the Professional Conduct Committee. The Practitioner further states that no formal Notice was ever issued in respect of the file, that no breach of Solicitors' Rule 8.2.1 has been occasioned and that the material before the Tribunal discloses no misconduct.

 

·      Ground (iv): failure to disclose costs. This is denied. The Practitioner asserts that he disclosed costs in accordance with s175 of the Legal Profession Act and Rule 1.3 of the Professional Conduct and Practice Rules 1995. The Practitioner also asserts that s175 does not specify written disclosure of costs. In the alternative the Practitioner asserts that the document entitled "Costs Agreement" executed by the client on 15 September 2003 is supplemental to verbal disclosure made by the Practitioner. The Practitioner asserts that the facts adduced in evidence do not warrant a finding of unsatisfactory professional conduct.

 

·      Ground (v): failure or delay in accounting. This is denied. In the Reply the Practitioner sets out his account of the facts and states that the facts adduced in evidence do not warrant a finding of unsatisfactory professional conduct.

 

·      Ground (vi): failure to refund out of pocket expenses. Again this charge is denied by the Practitioner. He states that the agreement reached between himself and Mrs Adams only required a refund of out of pocket expenses if the Practitioner recovered all of the disbursements expended in the conduct of Mrs Adams' claim, and that he did not recover all of the out of pocket expenses on a party-party assessment from the costs assessor and accordingly there was no obligation to refund disbursements given the shortfall. He says that otherwise there is not sufficient evidence to establish any entitlement by Mrs Adams to any refund and that the facts adduced in evidence do not warrant a finding of unsatisfactory professional conduct. Other grounds for the denial are provided.

 

Ground (vii): failure to respond adequately to correspondence from both the complainant (Mrs Adams) and the Legal Services Commissioner. This is denied. The Practitioner says that he replied to all of the received correspondence from the complainant and that he addressed the complainant's correspondence of 16 July 2004 when provided with a copy of the same by the Legal Services Commissioner. He says further that the correspondence was effectively replied to in various documents, letters and conferences during September 2003. There are other grounds given including the assertion that the Commissioner misconceived facts. The Practitioner says that the material before the Tribunal discloses no unsatisfactory professional conduct.

 

The Practitioner's amended case and concessions

37           The matter was listed for hearing on 1 March 2010. At that time, Counsel for the Law Society applied for an adjournment based on the late filing of the Reply and affidavit by the Practitioner.

 

38           When the matter was heard by Tribunal on 17 and 18 June 2010, Mr Tom Williams Solicitor appeared for the Practitioner, and sought to file an Amended Reply to the Law Society's Application. This course was consented to by the Law Society. The Amended Reply is discussed in more detail below.

 

39           At the request of the parties the matter was then adjourned for some hours to enable discussions between parties to take place, and upon resumption of the hearing on 17 June 2010 the legal representatives of the parties indicated that concessions had been made in respect of all 7 grounds of the Application. They also indicated that although there was no s564 instrument, the parties requested that the Tribunal proceed with the matter on the basis that no oral evidence would be given by the lay complainants the Practitioner would not be called to give evidence and would not be required for cross examination and that other deponents of affidavits would not be required for cross examination.

 

 

40           The nature of the Amended Reply and the concessions made by the Practitioner indicated a substantial change in the nature of the Practitioner's case and the concessions made by both sides considerably narrowed the matters in issue.

 

41           The parties handed up a document headed "Respondent's Concessions" dated 17 June 2010 ("the Concession Document") although it was clear from the content and the discussion of that document that it also reflected some concessions made by the Law Society.

 

42           As a result of the filing of the Amended Reply and the Concession Document, the Practitioner's case in respect of the various grounds raised by the Law Society in its application, was left as follows:

 

·      Ground (i): failure to comply with s660 Notice. The Amended Reply indicates that the Practitioner admits that the response to the s660 Notice was not provided to the Law Society by the date stipulated, although he says that the information and documents required by the Notice were provided within 2 days of the date set for compliance. The Practitioner admits failing to verify his response to the s660 Notice by statutory declaration as alleged. He denies failing to produce the relevant file as requested and in further answer to the allegation says that the information which he provided to the Law Society was sufficient to enable the Law Society to dismiss all of the complaints which gave rise to the issue of the Notice under s660, and that the Law Society did in fact dismiss such complaints.

 

The Concession Document in this regard indicates that the Practitioner concedes that he failed without reasonable excuse to comply with a Council requirement under s660 of the Legal Profession Act 2004, in that he failed, until 16 June 2010, to meet the requirement to verify the response by statutory declaration.

 

·      Ground (ii): failure to assist the Law Society in the investigation of a complaint. In the Amended Reply the Practitioner says that this ground is duplicitous and says that the Law Society should be required to elect between ground (i) or ground (ii) and failing an election both grounds must be dismissed for duplicity. In the alternative the Practitioner relies on the matter set out in his response to ground (i) and further in the alternative to the extent that the Law Society relies on allegations other than those made in support of ground (i), the Practitioner denies that he failed to assist the Law Society.

 

Subsequently the Law Society confirmed, as was indicated in the Concession Document, that  ground (ii) was not pressed.

 

·      Ground (iii): the Practitioner caused Mr Soro's file to be destroyed or otherwise made unavailable in contravention of Rule 8.2.1. The Practitioner admits that the file was destroyed in June 2006, but denies that destruction was in contravention of Rule 8.2.1. In the Amended Reply the Practitioner further says that no request or call for the common law file was made by the Law Society or by the Legal Services Commissioner, nor was that anticipated by the Practitioner, before destruction of the file. However, in the Concession Document the Practitioner concedes that he caused a matter file relating to instructions received from Mr Soro in July 2000 to be destroyed or otherwise made unavailable in approximately June 2006 and that this was in breach of his obligations under Practice Rule 8.2.1 to retain the file securely.

 

·      Ground (iv): failure to disclose costs. In the Amended Reply the Practitioner denies that there was a failure to disclose orally but admits that there was no written disclosure in accordance with s179. This concession is reflected in the Concession Document, but he refers to particulars provided in his original Reply. This is apparently a reference to the Practitioner's assertion that the intent of the Act had been complied with, and in any event his client had executed a written agreement to deal with the issue of costs prior to any dealing with settlement monies.

 

·      Ground (v): failure or delay in accounting. In the Amended Reply the Practitioner denies this charge.

 

·      Ground (vi): failure to refund out of pocket expenses. In the Amended Reply the Practitioner admits that $2,228.85 claimed by the Law Society by way of reimbursement for expenses paid to the claimant has not been repaid, but denies an obligation to make such repayment. In the Amended Reply the Practitioner further says that at all relevant times he held and continues to hold the belief that in accordance with the terms of the agreement made with Mrs Adams dated 15 September 2003, he the Practitioner was not obliged to make reimbursement of the out of pocket expenses. He goes on to say that if this Tribunal should hold that on a proper construction of that agreement he is obliged to make reimbursement then he will do so.

 

·      Ground (vii): failure to respond adequately to correspondence from both the complainant (Mrs Adams) and the Legal Services Commissioner. In the Amended Reply the Practitioner denies this allegation. However, in the Concession Document dated 17 June 2010 the Practitioner concedes that the did delay in providing a detailed accounting and failed to respond adequately to correspondence from Mrs Adams as a complainant. In that document the Law Society concedes that the aspect relating to the Legal Services Commissioner is not pressed.

 

The Law Society's concessions and preservation of the compensation claim

43           As a result of the discussions between the parties on 17 June 2010, the Law Society also made certain concessions, most of which were reflected in the Concession Document.

 

44           A substantial concession by the Law Society related to Ground (ii) (failure to assist the Law Society in the investigation of a complaint). That Ground was  stated to be "not pressed" by the Law Society.

 

45           In respect of Ground (vi) failure to refund out of pocket expenses, the Concession Document reflects that no finding of unsatisfactory professional conduct is sought by the Law Society in circumstances where the Practitioner had offered, without admission, reimbursement on 31 October 2006 and again on 17 June 2010, and the complainant rejected those offers.

 

46           In relation to that Ground and that particular concession, at the hearing the Tribunal raised with Counsel for the Law Society the issue of the effect of such a finding (ie, that no unsatisfactory professional conduct had occurred in respect of the refund of out of pocket expenses), on the claim for compensation which Mrs Adams, the complainant client, might have in accordance with Part 4.9 of the Legal Professional Act 2004.

 

47           Counsel for the Law Society confirmed that the Law Society did not press the out of pockets matter as an issue of professional conduct but that the Law Society wishes to ensure that any claim which Mrs Adams may have for compensation is not prejudiced by any finding of the Tribunal in light of this matter not being pressed.

 

48           It seems to the Tribunal that the point made by the Counsel for the Law Society is a valid one. That is, if there is an existing claim for compensation by a complainant within the terms of Part 4.9 of the Act, that claim should not be prejudiced by reason only of a concession by the Law Society that no finding against the Practitioner is sought in respect of the action which was the subject matter of the complaint.

 

49           We think it is implicit in the wording and organisation Part 4.9, and indeed it is the just result, that such a claim for compensation would not be prejudiced by such a concession by the Law Society. The Law Society is concerned with the actions or omissions of the relevant legal practitioner only as a matter of professional conduct.

 

50           It would of course be different if a claim for compensation has not, at the time of the Tribunal's judgment, been made and the Tribunal finds no unsatisfactory professional conduct or professional misconduct in relation to the subject matter of the complaint. Section 573 of the Act makes it clear that the Tribunal may only refer to the Commissioner the making of a compensation order (or make a compensation order itself) where it has found a legal practitioner guilty of unsatisfactory professional conduct or professional misconduct in relation to a complaint.

 

51           It is the Tribunal's understanding that this compensation claim has in fact already been initiated by Mrs Adams. Accordingly the Tribunal confirms that any finding it makes in relation to Ground (vi) the failure to refund out of pocket expenses is made without prejudice to that compensation claim by Mrs Adams.

 

52           If however, as at the date of this decision, Mrs Adams has not in fact initiated any compensation claim by way of formal request for a compensation order as contemplated by s570 of the Act, subsection 570(4) may be an impediment to the making of the compensation claim by Mrs Adams. Accordingly, if that is the case, the Tribunal, acting under s.573(2), refers to the Commissioner any claim Mrs Adams has for a compensation order against the Practitioner for an alleged failure to refund out of pocket expenses.

 

53           Finally in respect of ground (vii), which concerned alleged failure to respond adequately to correspondence from both the complainant and the Legal Services Commissioner, the Law Society in the Concession Document conceded that the aspect relating to the Legal Services Commissioner is not pressed

 

The course of the hearing

54           As a result of the discussions between the parties during the adjournment on 17 June 2010 and the parties' respective concessions set out in the Concession Document of that date and by consent and the direction of the Tribunal, the hearing consisted of the admission and reading of certain affidavit evidence, as described below. No witnesses were examined or cross examined. In particular, the Practitioner did not give oral evidence.

 

55           The affidavit evidence relied on by the Law Society consisted of the affidavit of Raymond John Collins sworn on 20 August 2009; the affidavit of James Milne of the Office of the Legal Services Commissioner sworn on 6 August 2009; the affidavit of Almas Adams (ie, the complainant Mrs Adams) sworn on 7 July 2009; the affidavit of Lynda Muston of the Office of the Legal Services Commissioner sworn on 10 July 2009; the further affidavit of Raymond John Collins sworn on 22 March 2010 and the further affidavit of Almas Adams sworn on 9 March 2010.

 

56           Reference was also made by Counsel for the Law Society to the statutory declaration of the Practitioner made on 15 June 2010. Ms Webster, Counsel for the Law Society addressed the Tribunal in detail on the evidence contained in these affidavits.

 

57           Mr Williams, solicitor for the Practitioner relied on the affidavit of Dominic Carbone sworn on 26 February 2010.  Mr Williams then addressed the Tribunal on the evidence.

 

The Tribunal's findings as to professional misconduct and unsatisfactory professional conduct

58           Having considered the evidence and the submissions of the legal representatives of the Law Society and the Practitioner, the Tribunal reached the following conclusions as to the allegations of professional misconduct and unsatisfactory professional conduct by the Practitioner.

 

59           In relation to ground (i), the Practitioner has conceded that he failed without reasonable excuse to comply with a Law Society Council requirement under s660 of the Legal Profession Act 2004 in that he failed to comply with a s660(3) Notice with the specified time , and until 16 June 2010, to meet the requirement to verify his response to the notice by statutory declaration. By operation of subsection s676(4) of the Legal Profession Act 2004, the Practitioner's failure in this regard is deemed to constitute professional misconduct.

 

60           Ground (ii), that the Legal Practitioner failed to assist the Law Society in the investigation of a complaint is not pressed and no finding is made.

 

61           Ground (iii) relating to the destruction or unavailability of the Soro file is subject to a concession by the Practitioner that he caused a matter file relating to instructions received from Mr Soro in July 2000 to be destroyed or otherwise made unavailable in approximately June 2006, in breach of his obligations under Revised Professional Conduct Practice Rule No. 8.2.1. The Law Society submits that the Practitioner's conduct in this regard amounted to professional misconduct. However, having considered the Law Society's contentions in this regard and the detailed explanations by the Practitioner both in his affidavit and through his solicitor, the Tribunal is not satisfied that professional misconduct has been made out.

 

62           Such a breach of Rule 8.2.1 in the opinion of the Tribunal does however involve conduct by the Practitioner which falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner and accordingly constitutes unsatisfactory professional conduct within the meaning of s496 of the Legal Profession Act 2004.

 

63           Ground (iv), including the allegation that the Practitioner failed to disclose costs, was partially admitted by the Practitioner who in the Concession Document conceded that he failed to disclose costs in writing. In all the circumstances, the Tribunal finds that this conduct and the way in which these matter were handled by the Practitioner falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner and therefore constitutes unsatisfactory professional conduct within the meaning of s496 of the Act.

 

64           In relation to ground (v) that the Practitioner failed or delayed in accounting, it was conceded by the Practitioner in the Concession Document that he delayed in providing a detailed accounting and failed to respond adequately to correspondence from the complainant. The Tribunal finds that this conduct falls short of the standard of competence and diligence for the member of the public is entitled to expect of a reasonably competent Australian Legal Practitioner and therefore constitutes unsatisfactory professional conduct within the meaning of s496 of the Act.

 

65           In relation to ground (vi) the Law Society in the Concession Document conceded that no finding of unsatisfactory professional conduct would be sought in the circumstances that the solicitor had offered, without admission, reimbursement on 31 October 2006 and again 17 June 2010 and the complainant rejected those offers. Accordingly, no finding is made by the Tribunal in relation to this ground.

 

66           In relation to Ground (vii), that the Practitioner failed to respond adequately to correspondence from both the complainant and the Legal Services Commissioner, although the Law Society concedes that the matter would not be pressed insofar as correspondence with the Commissioner is concerned, the Practitioner has conceded that he failed to respond adequately to correspondence from the complainant. In the circumstances the Tribunal finds that this action constituted conduct which falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian Legal Practitioner, and therefore constitutes unsatisfactory professional conduct within the meaning of s496 of the Act.

 

The Law Society's submissions as to consequential orders

67           Counsel for the Law Society handed up written submissions as to consequential orders and also made oral submissions on this issue.

 

68           The Society seeks an order that the Practitioner pay a substantial fine in accordance with the s562(4)(a) of the Act of 2004 and further, or alternatively that the Practitioner be reprimanded. The Society seeks in addition that the Practitioner be ordered to pay the Society's costs. It says this on the basis that there are no "exceptional circumstances" for a variation to such an order within the meaning of s566(1) of the Act of 2004.

 

69           Counsel for the Law Society in her oral submissions noted that many complaints underlying a breach of a s660 Notice are ultimately dismissed but that fact alone cannot diminish the importance of a solicitor's duty to comply fully and promptly with such a Notice.

 

70           The Society's written submissions drew the Tribunal's attention to other disciplinary findings against this Practitioner in the matters of Law Society of NSW v Carbone [2009] NSWADT 20; and Law Society of NSW v Carbone (No. 2) [2009] NSWADT 321.

 

71           The first of these judgments records the Tribunal's determination that it was satisfied that one ground of professional misconduct and two grounds of unsatisfactory professional conduct had been established against this Practitioner. The finding of professional misconduct related to a failure to comply with a notice under s152 of Act of 1987, that is, the predecessor section of s660 of the Act of 2004. The Practitioner complied, but only in part, with the notice. The findings of unsatisfactory professional conduct in that matter were in relation to the Practitioner's failure to communicate with his client's new solicitors and failing to transfer the file to the new solicitors. These events occurred in 2005. The Tribunal ordered the imposition of a reprimand, a fine of $2,000 (in default of which the Practitioner's practising certificate would be suspended) and the payment of the Society's costs.

 

72           The Law Society's written submissions also discussed previous Tribunal decisions in relation to s660 Notices.

 

73           In the matter of Legal Services Commissioner v Knudsen [2000] NSWADT 62 at [25], the Tribunal noted the range of consequential orders previously made for failure to comply with such notices; noting 7 such decisions to date. The penalty orders ranged from a public reprimand with costs, a public reprimand with fines of $2,000 and $3,000 and costs, a public reprimand with 12 months supervision and costs, a public reprimand with a fine of $1,000 and 2 years supervision, a public reprimand and a fine of $8,000 and 12 months supervision and costs, to in the most extreme case, cancellation of a practising certificate for a period of more than a year.

 

74           The Law Society's submissions also drew the Tribunal's attention to the matter of Council of the Law Society of NSW v Cunningham [2003] NSWADT 138 where the Tribunal referred to a range of consequential orders made in relation to s152 Notice matters, ranging from a fine of $1,000 through to fines of $4,500.

 

75           Counsel for the Law Society also addressed the Tribunal as to the purpose of Part 10 of the Act of 2004 submitting that the purpose was to benefit the legal profession as well as the public. It was conceded that that Part of the Act operates punitively only as an incident to its main function but that this should not inhibit the Tribunal in imposing a fine for the purpose of encouraging compliance by the Practitioners with proper notices from the Law Society.

 

Practitioner's submissions as to consequential orders

76           Mr Williams, the solicitor for the Practitioner, made oral submissions to the Tribunal in respect of consequential orders.

 

77           Mr Williams drew the Tribunal's attention to the previous proceedings against the Practitioner instituted by the Law Society and the fact that there appeared to be have been little done in respect of Mr Soro's complaint whilst the Law Society pursued the two other hearings referred to in the Law Society's submissions against Mr Carbone.

 

78           Mr Williams contended that the Law Society has conceded that there was a substantial overlap in the investigations of Mr Carbone's actions between the two disciplinary findings referred to in the Law Society's contentions and the current proceedings.

 

79           In Mr Williams' submission firstly, it was manifestly unfair therefore for the Tribunal to consider the Practitioner in any sense as a "repeat offender" when all matters are subject to complaint or possible disciplinary action could have been sent to the Tribunal together. Secondly it was contended that it would be unfair to a similar degree to draw any conclusion that the Practitioner in his dealings with Mr Soro or Mrs Adams could have been governed by the salutary experience of the first set of proceedings before this Tribunal. Mr Williams also contended that the multiplicity of proceedings relating to similar complaints could have an effect as to the costs orders which were appropriate. We understood Mr Williams also to be contending that the Law Society could have brought all proceedings relating to complaints by Mr Soro and Ms Adams to the Tribunal together, and that the Practitioner should not be prejudiced by reason of them being brought "in stages".

 

80           Mr Williams drew the Tribunal's attention to cases before the Tribunal where there had been a failure to comply with a Notice or similar professional conduct requirement but only a limited penalty imposed by the Tribunal. These cases included Mavrakis [2005] NSWADT 13; Shalovsky [2008] NSWADT 14; and Tsolakis [2000] NSWADT 21.

 

81           Mr Williams also addressed the Tribunal as to the inherent seriousness of the complaints and the fact that no allegation of dishonesty or seeking to profit from the client was made against this Practitioner.

 

82           Mr Williams submitted that in the case of the complaints by Mr Soro all that was left of the Law Society's case is that the Practitioner failed to satisfy the Law Society in circumstances where the Law Society had substantial information before it in relation to the complaints, and indeed the Law Society's own committee dismissed the complaints.

 

83           It was put to the Tribunal by Mr Williams that Mr Carbone is "older and wiser" as a result of these various proceedings and, that in light of the Tribunal's primarily protective role this was not an appropriate matter for the imposition of a fine.

 

84           Mr Williams indicated that the Practitioner would be prepared to undertake that within a reasonable period (Mr Williams contended that this should be about 12 months) the Practitioner would complete all modules of a Law Society-approved risk management course.

 

85           Mr Williams concluded by contending that the Practitioner was not dishonest or in any sense a threat but that in these particular instances he had not given enough attention to detail. Accordingly, it was contended, the Practitioner's actions do not merit a punitive order.

 

Tribunal's decision and orders

86           The Tribunal's findings as discussed above amount to a finding of professional misconduct in respect of the failure to comply with the s660 Notice as per Ground (i) and findings of unsatisfactory professional conduct in respect of four of the remaining Grounds namely Grounds (iii), (iv), (v) and (vii). The grounds cover respectively the destruction of the file, the failure to disclose costs, the  failure or delay in accounting, and the failure adequately to respond to correspondence from the complainant.

 

87           The Tribunal has noted the contentions of the solicitor for the Practitioner as to the similar ground covered by these proceedings and the two previous proceedings against the Practitioner in this Tribunal.

 

88           It is true that when compared with the breaches of s660 Notices which have come before this Tribunal on other occasions, there are some aspects of this Practitioner's conduct and breach of the notice which maybe regarded as somewhat technical. However, as was discussed in the matter of Council of the NSW Bar Association v Howen (No. 2) [2003] NSWADT 235, at [23] in relation to a s152 notice, such a notice;

 

" … is an important device for assisting the Councils and the Commissioner to investigate and resolve complaints against practitioners. Failure to comply with a notice may frustrate an investigation or make the investigation more difficult, time consuming and costly. We cannot deal with failure to comply with a s152 notice as if the failure were a trivial matter."

 

89           These comments obviously apply equally where a s660 Notice is involved, as here.

 

90           The Tribunal considered Mr Williams' contention to the effect that all proceedings in relation to complaints by Mr Soro and Mrs Adams might have been brought together. We are not sure whether this would have been possible, feasible, or fair. But of course the Practitioner should not be prejudiced, in the sense of a heavier penalty being imposed overall, by reason only of the separate institution of proceedings.

 

91           The Tribunal agrees with the solicitor for the Practitioner that it should not regard the previous proceedings against this Practitioner in such a way that he should be regarded as a "repeat offender". It is not necessary to do so.

 

92           However, although it is conceded by the solicitor for the Practitioner that he is now "older and wiser", it is clear that there was a period in the professional life of this Practitioner in which he did not devote sufficient attention or detail to, and apparently did not appreciate fully the importance of, full compliance with statutory notices of the type in dispute in this case. Similarly he clearly did not appreciate fully the importance of each legal practitioner complying fully and within time with such a notice.

 

93           The Practitioner has successfully narrowed the grounds of complaint in the unsatisfactory professional conduct allegations made by the Law Society, but it remains clear that his conduct indicates insufficient attention to detail and insufficient compliance with the minimum standards of competence and diligence expected of legal practitioners when dealing with clients.

 

94           The Tribunal considers that this is a matter in which the Practitioner should be subject to a public reprimand. Having considered the authorities cited by both parties, the Tribunal also is of the view that it is important to underline the seriousness with which members of the profession must deal with s660 Notices, and to mark out by its orders in this case the seriousness of a failure to comply fully and promptly with such a Notice.

 

95           Accordingly the Tribunal intends to impose a fine on the Practitioner although, in all the circumstances, the fine need not be a heavy one.

 

96           The Tribunal believes that the Practitioner must pay the costs of the Law Society in respect of all stages of the proceedings.

 

97           Finally, the Tribunal having carefully considered the material produced by each of the parties is inclined to accept the offered undertaking by the Practitioner to complete within a reasonable period suitable modules of a Law Society approved risk management course.

 

98           Accordingly, the Tribunal orders as follows:

 

1. The Respondent be publicly reprimanded;

 

2. That the Respondent is fined the sum of $2,000 which is to be paid within 6 calendar months of the date of these orders and if not so paid, the Respondent's practising certificate is cancelled until such time that the payment is made in full;

 

3. The Respondent is ordered to pay the costs of the Applicant; and

 

4. In the event of the Respondent next applying for a Practising Certificate it shall be condition of the issue of that Practising Certificate that the Respondent satisfactorily complete all four modules of the Risk Management Course provided by LawCover within one year of being issued with that Practising Certificate.

 

 

Decision last updated: 22 February 2011