Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Law Society of New South Wales v Singh [2011] NSWADT 47
• Hearing dates: 8 December 2010
• Decision date: 09 March 2011
• Before: M Riordan, Judicial Member; D Fairlie, Judicial Member; C Bennett, Non-Judicial Member

Decision

1. That the Solicitor's name be removed from the Roll of Legal Practitioners;

2. That the Solicitor pay the Applicant's costs in the sum of $2,000;

3. That the Solicitor pay these costs within a period of six (6) months from the date of this decision unless the Law Society agrees, upon receipt of appropriate financial evidence from the Solicitor, to extend the time for payment.

• Catchwords: Solicitor - Disciplinary Application
• Legislation Cited: Legal Profession Act 2004
• Cases Cited: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 763; Mee Ling v The Law Society of New South Wales [1974] NSWLR 299; Council of the New South Wales Bar Association v Perry [2007] NSWCA 111; Bar Association of New South Wales v Butland [2009] NSWADT 177
• Category: Principal judgment
• Parties: The Law Society of New South Wales (Applicant); Jaswinder Singh (Respondent)
• Representation: The Law Society of New South Wales ( Applicant); Jaswinder Singh (Respondent in person)
• File Number(s): 102018

REASONS For Decision

1 In this matter the Applicant, the Council of the Law Society of New South Wales ("the Society") made an Application against the Respondent, Jaswinder Singh (the "Solicitor"), alleging that he was a Solicitor within the meaning of the Legal Profession Act 2004 ("the Act") and that while practicing as a Solicitor he was guilty of professional misconduct as follows:

"1. Practicing contrary to conditions of practising certificate;

2. Unethical conduct - making false declaration in practising certificate application;

3. The solicitor misled the Investigator, Mr Gore;

4. The solicitor misled the Investigator, Mrs Young;

5. The solicitor used a false letterhead;

6. The solicitor charged professional costs when he had no entitlement to do so

7. The solicitor created a false practice address."

2 The applicant seeks the following order/s:

"1.That the name of the solicitor be removed from the Roll of Local Lawyers

2.That the solicitor pay the Applicant's costs of the proceedings

3.Such further and other Orders as the Tribunal deems appropriate."

3 The Solicitor's date of birth is not in evidence. However, the Tribunal notes that he was admitted on 7 April 2000 and that he never held an Unrestricted Principal Practising Certificate entitling him to practice on his own account.

4 The Application alleges that the Solicitor engaged in the following conduct:

"A.Practice contrary to conditions of Practising Certificate

(1) On 7 April 2000 the solicitor's name was admitted to the Roll.

(2) At no time since his admission has the solicitor been entitled to practice on his own account.

(3) Between 22 August 2002 and 30 June 2008 the solicitor held a Restricted Non-Principal Practising Certificate issued by the Society.

(4) In March 2006 the solicitor, whilst not entitled to do so, acted for Mr Elie Abdallah in relation to his purchase of a home unit by Contract for Sale dated 23 March 2006.

(5) In October 2006 the solicitor, whilst not entitled to do so, acted for Mr Guven Biber in relation to his sale of a property by Contract for Sale dated 18 October 2006.

(6) On 27 November 2006 on the letterhead of "J & S Solicitors" the solicitor signed a letter addressed to the Firm acting for the purchasers ("the Firm") from Mr Biber directing that a cheque, inter alia, in the sum of $900.00 be made payable at settlement in favour of J Singh.

(7) On 28 November 2006 the Firm requested the incoming Mortgagee to draw a cheque in the sum of $900.00 in favour of J Singh to be handed over at settlement.

(8) The sum of $900.00 paid to "J Singh" on settlement of the Biber matter was a fee, reward or remuneration received by him for legal or conveyancing services rendered by him to Mr Biber.

(9) In April 2007 the solicitor, whilst not entitled to do so, acted for Messrs Joseph and John Tannous in relation to their sale of two properties by Contracts for Sale dated 10 April 2007. Further, the solicitor was paid fees for so acting as he later confirmed.

B.Unethical conduct - making false declaration in Practising Certificate Application

(1) On 14 June 2007 the solicitor signed a Form issued by the Society styled "Application for a 2007/08 Practising Certificate Renewal" which, inter alia, comprised the following Question:

"TRUST MONEY

Have you received, held or disbursed any trust money as defined in s. 243 Legal Profession Act 2004 - see page 6) during the period 1 April 2006 and 31 March 2007?"

To the Question the solicitor placed a cross (x) in the box marked "No".

The Application concluded:

"DECLARATION

I declare that the contents of this application are true and correct."

(2).The solicitor's answer to the Question concerning Trust Money was false as was his Declaration.

C.Mislead the Trust Account Inspector, the Law Society Investigator, use false letterhead, charge professional costs when not entitled to do so and create a false practice address.

(1).On Monday, 27 October 2007 the Trust Account Inspector telephoned the solicitor and spoke to him. During the course of the conversation the solicitor stated that his operating a trust account related to bank transactions for two matters.

(2).During the course of the aforementioned conversation the Trust Account Inspector requested the solicitor to forward to him copies of the clients files, accounting records and a written response to matters raised in the course of the conversation.

(3).On 31 October 2007 the solicitor forwarded a letter to the Trust Account Inspector, which set out details of the three clients for whom he had acted in conveyancing transactions.

4.The solicitor misled the Trust Account Inspector in that rather than sending the documents requested the solicitor forwarded the following:

i.Front page of Contract for Sale dated 23 March 2006 together with settlement statement - purchase by Abdallah;

ii.Further, for this Contract the address, phone and fax details for the Purchaser's Solicitor were altered by the solicitor, thereby misleading the Trust A/C Inspector.

iii.Front page of Contract for Sale dated 10 April 2007 together withsettlement statement - sale by Tannous of 167 Stephen St.

iv.Front page of Contract for Sale dated 10 April 2007 together with settlement statement - sale by Tannous of 169 Stephen St.

5 On 9 October 2008 the Law Society Investigator sent a letter to the solicitor, which said in part:

"I refer to previous correspondence and write to advise that in order to complete my investigations in these matters and report to the Professional Conduct Committee, I require that you produce the entire matter files which were created by you in relation to the matters of Tannous, Abdallah and Biber. It is noted that no documents have been provided in relation to the Biber matter.

The Trust Account Inspector has advised me that the material which you produced to him consisted solely of photocopies of pages 34 to 39 in his report, a copy of which has been provided to you.

Further, it is noted that the contract prepared on behalf of Messrs Tannous contained your contact details and a reference to your document exchange box DX 25419 Merrylands. Please advise as follows:

1)Who is the holder of DX 25419 Merrylands? Is it yourself or any entity with which you are associated? If so, when was the box opened? Is this box still in use? If you are not the box holder or associated with the box holder, on what basis did you utilise the box?

2)Have you acted as a barrister or solicitor for parties other than those listed above at any time since your admission as a solicitor in April 2000? If so, give a list of all other clients for whom you have acted as a solicitor in the period since your admission as a solicitor.

3)It is noted that the contract for sale to Abdallah records your business address as 467 Merrylands Road, Merrylands 2160. What business is conducted from that address? What is your connection with that business?

4)Were you remunerated and/or did you receive any benefit as a result of the provision of conveyancing services which were reported upon by the trust account inspector? Give full particulars."

6 On 30 October 2008 the solicitor sent a letter ("the letter") to the Law Society Investigator which said in part:

"I refer to your letter of 9th October 2008 and as requested enclose herewith documents that I found in relation to the matters of Tannous, Abdallah (sic) and Biber. ...In relation to Biber, I found only a copy of the contract which is enclosed. I do not have any correspondence for it.

1)With respect to DX, I took the box as that was available at the time and was under the impression that it was cheaper than buying postage stamps. I closed the box soon after as had no use for it.

2)I have not acted as a solicitor in any other matter other than the listed above...

3)No business activity is or was carried out from 467 Merrylands Road, Merrylands as it was a made up number that did not exist.

4)No remuneration was received with respect to the above matters other than the costs incurred in completing the transactions such as searches and enquiries etc."

7 By his letter of 30 October 2008 [enclosing a copy of the Contract for Abdallah ("the Contract")] the solicitor misled the Law Society Investigator in that:

1. The Contract shows the solicitor's address as 467 Merrylands Road

2. The Contract shows the solicitor's telephone number as 9682 0588

3. The Contract shows the solicitor's fax number as 9682 5996

8 The counter-part of the contract produced to the Society by the Vendor's Conveyancer, shows the following:

1)The solicitor's address as 167 Merrylands Road, Merrylands

2)The solicitor's telephone number as 9682 5888

The Contract shows the solicitor's fax number as 9682 5869.

The solicitor's statement in the letter that he had closed the DX box was false.

Further, contrary to his statement in the letter that no remuneration had been received by him, the solicitor had received remuneration when acting for Messrs Tannous.

9 On 19 March 2010 the Society issued a Notice ("the Notice") to the solicitor pursuant to s.660 of the Legal Profession Act. Questions 1-5 therein were as follows:

"1. Did you purport to act as a solicitor for the following persons in relation to the conveyancing transactions described:

a) Mr Elie Abdallah in relation to his purchase of a home unit from Helen Sibbald by contract dated 23 March 2003?

b) Mr Guven Biber in relation to his sale of property to David and Louise Robertson by contract dated 18 October 2006?

(c) Messrs Joseph and John Tannous in relation to their sale to Antonio Salerno of two properties by contacts dated 10 April 2007?

2.Do you agree that at no time have you held an unrestricted practising certificate entitling you to practise as a solicitor on your own account in the state of New South Wales?

3.Do you agree that for the purpose of carrying out the transactions referred to in question 1 above.,

a) In the matters of Abdallah and Tannous, you created or caused to be created and utilised in correspondence, letterhead falsely describing yourself as "J Singh Solicitor"?

b) In the matter of Biber, you created or caused to be created and utilised in correspondence letterhead falsely describing yourself as "Jaswinder Singh, Solicitor" and a non-existent firm, "J & S Solicitors."

4. Do you agree that the letterheads described above contained your residential address, 42 Pendant Ave, Blacktown as the address of the non-existent legal firms to which they referred?

5. Do you agree that the contracts referred to in paragraphs 1 (b) and (c) above were:

a) drafted by you?

b) prepared either by you or at your direction?

c) provide details of your mobile telephone number?

d) provide facsimile number 9682 5869, which is that of Laing & Simmons, Real Estate Agents of Merrylands?

e) were witnessed by yourself as solicitor for the vendor or otherwise".

10 On 12 April 2010 the solicitor signed a document which incorporated his response to the 5.660 Notice and to each of the above questions 1 - 5 he answered "Yes".

11 Question 9 (a) of the Notice was as follows:

"9(a) Did you request or accept any fee or reward for acting on behalf of the persons referred to in paragraph I? If so, give particulars."

12 On 12 April 2010 the solicitor signed a document which incorporated his response to the 5.660 Notice and to the above question 9 (a) he answered "Yes, as noted in 19 (a)".

13 Question 17 of the Notice was as follows:

"17(a) Do you acknowledge that the copy the front cover of the Abdallah contract submitted to Mr Gore had been altered, by you or on your behalf, so as to show the address of "Jas Singh" (yourself) as 467 Merrylands Rd, Merrylands, a non-existent address?

17(b) Was your purpose in altering the front cover of the Abdallah contract to obscure the fact that you had, in the original document, recorded your address as 167 Merrylands Rd, Merrylands, and the fact that that address was the address of your then employer, Laing & Simmons, Real Estate Agents?

17(c) Do you acknowledge that the copy of the front cover of the Abdallah contract submitted to Mr Gore had been altered so as to read 9682 6888 as your telephone number when the telephone number which was recorded on the counterpart document was 9682 5888, the then number used by yourself in your employment with Laing & Simmons, Real Estate Agents?

17(d) Do you acknowledge that the copy of the front cover of the Abdallah contract submitted to Mr Gore had also been altered so as to read 9682 5996 as your facsimile number when the telephone number which was recorded on the counterpart document was 9682 5869, a number used by yourself?"

14 On 12 April 2010 the solicitor signed a document which incorporated his response to the 5.660 Notice and to each of the above questions 17 (a-d) he answered "Yes".

15 Question 19 of the Notice was as follows:-

"19(a) Do you agree that in the sales in which your acted for Messrs Tannous that you sought from the vendor's solicitor, Mr Michael Grogan, settlement moneys which included the sum of $1,500.00 payable to J Singh (Bank/Trust chq) on 31 July 2007?

19(b) Do you agree that on settlement of the Tannous matters, you received the sum of $1,500. 00?

19(c) Do you agree that the sum of $1,500.00 paid to "J Singh" on settlement of the Tannous matters was a fee, reward or remuneration received by you for legal or conveyancing services rendered by you to Messrs Tannous?"

16 On 12 April 2010 the solicitor signed a document which incorporated his response to the 5.660 Notice and to each of the above questions 19 (a-c) he answered "Yes".

17 Question 20 of the Notice was as follows:-

"20(a) Do you agree that the DX number 25419 Merrylands contained in correspondence issued on the letterhead showing the words J Singh, solicitor, is that of Laing & Simmons, Real Estate Agents of Merrylands?

20(b) Do you agree that your letter of 30 October 2008 (responding to the Society's letter of 9 October 2008) addressed to myself at Professional Standards Department of the Law Society contains false statements to the effect that (a) you were the holder of DX Box numbered 25419 Merrylands and (b) that you had closed that box as you "had no use for it"?"

18 On 12 April 2010 the solicitor signed a document which incorporated his response to the S.660 Notice and to each of the above questions 20 (a-b) he answered "Yes".

19 The Applicant repeats Paragraph 6 above under the heading of "Practice contrary to conditions of Practising Certificate" commencing with the words "On 27 November 2006 on the letterhead etc. "

20 The receipt of the sum of $900.00 by the solicitor when acting for Mr Guven Biber was contrary to his statement in his letter to the Society of 30 October 2008 that he had received no remuneration when acting in the Biber matter."

The Evidence

21 The following Affidavits were filed on behalf of the Society and were admitted into evidence without objection:

1) Affidavit of Raymond John Collins sworn 7 July 2010 - Exhibit A;

2) Affidavit of Service of Jeffrey Edwards sworn 23 March 2010 - Exhibit B.

3) Affidavit of Leo Sydney Gore sworn 5 July 2010 - Exhibit C;

4) Affidavit of Anne-Marie Foord sworn 25 November 2010 - Exhibit D;

5) Letter from the Solicitor to the Registrar, Administrative Decisions Tribunal dated 2 December 2010 with copies of his Group Certificates for the 2007, 2008 and 2010 Financial Years and Notices of Assessment for the 2008 and 2009 Financial Years attached - Exhibit E; and

6) Copy of the Solicitor's business card, identifying him as the Sales Manager of Laing & Simmons Real Estate Agents at Merrylands - Exhibit F.

22 The Solicitor did not file any Affidavit evidence. However, he filed two Replies, the contents of which conflicted and it was therefore necessary to ascertain what allegations and complaints were disputed.

23 In his first Reply dated 26 October 2011, the Solicitor admitted to acting in the conveyances (x 3) and that he admitted to "these matters from the outset" and that in relation to the declaration regarding Trust monies in his Application for Renewal of his Practising Certificate he stated:

"Either way, it would have been wrong. I made incorrect declaration, unethical yes, professional misconduct I do not believe so. In my view it is like putting a petty thief and a bank robber in the same category and treating same or a minor assault and murder in the same category and handing out the same punishment. I think I am being hung for a minor assault. What about giving someone a second chance?"

However, he denied that he was guilty of professional misconduct.

24 In his second Reply dated 24 November 2010, the Solicitor stated:

"I am the Respondent in these proceedings.

I deny professional misconduct as alleged by the Applicant:

"1(i)I do not admit to practising as a lawyer. At all times I have been employed on a full time basis in a totally separate field to law. I however on 3 different occasion (sic) people I have known in their conveyance of residential property. The conveyance was on 1 occasion for the purchase of a residential unit/apartment and on 2 other different occasion for the sale of a residential house.

(ii)This happened on the 1st occasion in March 2006, 2nd occasion in November 2006 and on the 3rd occasion in April 2007.

(iii)At no time I had any place or property set us as a practise. The address given on the Contracts of Sale were my place of work which is a real estate agency and not a legal practice.

2.I do not admit to making declaration in practising certificate application re: trust money for the purposes of making a false statement.

I mistakenly believed in marking both "Yes" and "no" would be a wrong answer in the circumstances in which the declaration was made.

It was not a day to day operation of trust moneys but in total 3 transactions.

I had no auditor's statement to attach to the Application re: trust money.

3. I do not admit to misleading the investigator, Mr Gore but clearly admitted to what had happened.

In a sudden phone call while I was driving to work I was asked by Mr Gore the number of times the trust account was operated. I replied "2" as I could only recollect 2 at the time instead of 3.

2 days later I corrected that and furnished him the front page Contracts of all 3 transactions when I realised it was 3 and not 2.

The transactions happened over a period of 1 year. I simply didn't remember them all.

4.I do not admit to misleading the investigator Ms Young.

At all times from the outset I admitted to the above matters.

Expressed remorse, apologised and replied to all correspondence in a timely manner.

The phone number, fax number and DX belonged to my employer who had no knowledge of the conveyance transactions and they were altered by me to avoid incriminating my employer.

At no stage I denied to Ms Young about what I had done and happened.

5-7 A name and address had to be given correspondence purposes. The fee obtained mostly were costs incurred in dealing with the matters."

25 The Tribunal asked the Solicitor which of the two Replies he sought to rely upon and he replied "both". As a result of the conflicting statements in the Replies, it was necessary to refer the Solicitor to each Reply and to ask him certain questions regarding the views that he expressed therein.

26 The Tribunal notes that the Solicitor was, however, reluctant to answer the questions asked of him and he repeatedly indicated that he had "admitted to everything that has been alleged" and that he did not realise the severity of it and that he was sorry for it. He also stated that he "... had neither the time nor the resources in which to prepare detailed documents, as he works long hours and has school-aged children and he does not have the time to respond to letters received from the Society and that is that".

27 In relation to his first Reply, the Tribunal asked the Solicitor what he meant in regarding his declaration in his Application for Renewal of his Practising Certificate and whether his statement meant that he knew that however he answered the question concerning trust monies it would be wrong? He replied:

"Yes Ma'am, because I had no, I guess the Restricted Practising Certificate did not allow me to deal with trust monies. I got into circumstances where I had to do it so that if I answered "yes" it would have been wrong and if I answered "no" it would have been wrong and that's how I felt at that time and that's how I answered."

28 The Tribunal asked the Solicitor to confirm that he knew at the time that if he answered "yes" to the question then the Society would know that he was managing trust monies as a restricted practitioner? He replied, "Yes" and stated that he knew that he had no entitlement to deal with trust money and said that he thought that if he answered "yes" he would be asked some further questions and "I did not want to tell them about that." He conceded that he knew that his declaration was false when he made it.

29 However, as the Solicitor denied that he was guilty of professional misconduct, the Tribunal asked him what he understood "professional misconduct" to be. He replied:

"Ma'am, while I believed that everything I have done is wrong, but I didn't think that I went out intentionally to do things wrong and didn't mean to you know do things wrong and I made a mistake. I am not running away from it, but all I am saying is that maybe in my view professional misconduct is a bigger degree and that is how I understand it."

30 The Tribunal asked the Solicitor whether he had studied the Legal Profession Act or the Solicitors' Conduct Rules or the Regulations when he undertook his legal studies. He replied:

"Ma'am, at that time I did, but it's been a long time and I don't practice law as you know...."

31 The Tribunal pointed out that in relation to the conveyancing transactions that he had admitted to, he did practice law. He replied:

"Ma'am, I am not saying that, but what I am saying is that in relation to the detailed conduct ... that is not my day to day activity, I don't do that. That's why I am saying that I have done something. I am not saying that I haven't done it, but I haven't gone and done something to hurt someone or run away with someone's money or anything like that... It is something that just happened a long time ago, as you know it happened 4 or 5 years ago, I am sorry for it."

32 The Tribunal advised the Solicitor that he was avoiding our questions and that his answers were not assisting us to understand his conduct at all. We asked him whether he remained of the view that his conduct did not amount to professional misconduct. He replied:

"Ma'am, probably not, but what I am saying is that I am only saying the degree of my conduct."

33 The Tribunal queried his response of "probably not" and asked him to confirm that this was his current view. He replied:

"Ma'am, I don't know how to answer that, all I am saying is the severity of it, that's all I am saying".

34 The Tribunal noted that on 29 April 2010 (page 29 of Exhibit "A") he wrote a letter to Ms Mary Young of the Professional Standards Department and in the third paragraph of that letter he stated:

"My conduct amounts to professional misconduct. Let it be dealt with accordingly",

Yet, six months later, he put to the Tribunal that it is not professional misconduct. He replied:

"Ma'am, it's not that way what, like I have said earlier, it has been very difficult for me ... it has been very difficult for my family and I didn't actually even know the process of it. I thought the Law Society deals with these matters and I just wanted to get it over and finish this thing because every time that this matter comes up I get a letter at my home I have great difficulties. My wife finds it very difficult. I have difficulty with my children and I just want to finish it off and finish the matter off. That's all. That's what I was saying basically, just finish the matter."

He then stated:

"Ma'am, I have done wrong. There is no denying that. But if, in your opinion, it's something that you know my name need not be struck off that's all I am asking for. But if that's what your opinion is then.... (inaudible)"

35 The Tribunal then asked the Solicitor whether he still held the view that he had not practiced as a lawyer. He replied:

"Ma'am, maybe that has not been put properly because as I have said I have answered these things myself I don't have any legal representation..."

He replied that he doesn't have a legal practice and he does not run a legal practice. However, when specifically asked, he conceded that he had practiced as a Solicitor in relation to the three conveyancing transactions.

36 The Tribunal asked the Solicitor to explain his assertion that he did not mislead Mr Gore? However, he did not respond to that question, although he did state that he had altered the details on the front pages of the Contracts of Sale.

37 In relation to whether he maintained that he had not misled Ms Young, the Solicitor stated:

"Ma'am, my position is that I agree to everything that I have been asked. I didn't go out to mislead Ms Young and the phone number, fax number that has been altered was, I didn't want to implicate my employer."

38 Further, in relation to his assertion in his second Reply, that the fees he obtained from the conveyancing transactions were "mostly costs incurred", the Tribunal asked the Solicitor whether his evidence was that it cost him about $900 to conduct the searches and enquiries necessary for the preparation of a Contract of Sale. He replied:

"Not that much no".

He then stated that he did not refund the balance to his clients but paid it to himself.

39 On behalf of the Society, Mr Boyd submitted that there was ample evidence that supported the complaints and particulars, none of which had been rebutted by the Solicitor. He noted that the Solicitor had not made a single admission against his interest from day one. He had not assisted either the Society in its investigations or the Tribunal and had given stories to the Society and, when he was asked to provide further information so that the Society could get to the bottom of the matters, he did not respond.

40 Mr Boyd referred the Tribunal to the decisions of the Court of Appeal in Mee Ling v Law Society of New South Wales [1974] NSWLR 299; and "Council of the Law Society of NSW v Perry"(decision in 2007) and a decision of the Tribunal in Bar Association of NSW and Butland. He pressed for a protective order to be made and sought an order for the payment of costs, which he nominated as being $2,000.

41 Member Fairlie then referred to the operation of the trust account and expressed concern that the Solicitor was able to go to the Bank and produce either his Practising Certificate or his Law Society member card, or possibly both, and to open a Trust Account and that there seemed to be no further "checks" in place to ensure that he held an unrestricted certificate and was entitled to operate a trust account. He asked Mr Boyd if he could comment on the procedures that were currently in place. Mr Boyd replied "no", but indicated that he would raise the Member's concerns with relevant officers of the Society.

42 The Tribunal notes this apparent loophole, which does not prevent the holder of a restricted practicing certificate from opening a Solicitors' Trust Account and draws it to the attention of the relevant personnel of the Society for their consideration in due course.

43 The Tribunal indicated that we would reserve our decision. However, the Solicitor then stated:

"Ma'am, perhaps you could tell me what you want to hear and then maybe I could answer that?"

44 The Tribunal informed the Solicitor that we had attempted at some length to understand his understanding of the matters that were before us and his responses did not assist us. We would not tell him what we wanted him to say. He stated:

"Ma'am, maybe I am not answering those questions because I don't really know how to answer them, but if you could please tell me what to say...."

45 The Tribunal repeated that it would not tell the Solicitor what his evidence should be and that we had given him every opportunity to explain himself considering that he had not filed any evidence on his own behalf.

46 The Solicitor then asked the Tribunal not to make an order for costs against him as he "could not afford it". However, we informed the Solicitor that where an Application was successful the usual order was that the Respondent pays the Society's costs, as agreed or assessed unless there were exceptional circumstances that supported a decision to not make a costs order. We stated that there was no evidence before us that supported the existence of any extraordinary circumstances.

Findings

47 Based on the evidence admitted in these proceedings, the Tribunal is satisfied that the allegations in the Application have been made out. Accordingly, we find that:

1)The Solicitor practised as a legal practitioner contrary to the conditions of his Practising Certificate;

2)The Solicitor is guilty of unethical conduct in making a false declaration in his Application for Renewal of his Practising Certificate;

3)The Solicitor misled the Trust Account Investigator, Mr Gore;

4)The Solicitor misled the Law Society's Investigator, Ms Young;

5)The Solicitor used a false letterhead;

6)The Solicitor created a false practising address; and

7)The Solicitor charged professional costs when he had no entitlement to do so.

48 The decision of the Court of Appeal in Mee Ling v The Law Society of New South Wales [1974] 1 NSWLR 490 is authority for the proposition that a practitioner who purports to practice, or to hold himself or herself out as entitled to practice, without being the holder of a Practising Certificate or in breach of conditions to which their Practising Certificate is subject may, by that fact alone, be guilty of professional misconduct and that the issue of an annual Practising Certificate is not a mere formality, or a device for raising revenue, but involves the protection of the public. Accordingly, the decision is clearly relevant to the matter before us.

49 In Council of the New South Wales Bar Association v Perry [2007] NSWCA 111, the Court of Appeal considered a matter in which the practitioner practiced as a barrister without a practicing certificate. Although that matter involved a breach of Section 25 of the Legal Profession Act 1987, the Court held that the statutory obligation to have a current practicing certificate continued under the 2004 Act (Sections 14 and 15). The Court held:

"18... Section 25(4) of the 1987 Act declares that a legal practitioner who contravenes that section wilfully and without reasonable excuse is guilty of professional misconduct.

19. The opponent's conduct was wilful and without reasonable excuse. He acted intentionally in practising as a barrister and holding himself out to be a barrister. He knew of the obligation to obtain annual practising certificates, having done so prior to July 2005 and having been reminded of his obligations in the letters from the Bar Association of 30 July 2005 and 1 July 2005. Nothing suggestive of an excuse, let alone a reasonable one, is revealed in the evidence or has been proffered. As to "wilful" and "without reasonable excuse" see McCaffery at [29]-[35].

20. The requirement to hold a current practising certificate serves important functions. The regime exists for the protection of the public: see Mee Ling v Law Society of New South Wales [1974] 1 NSWLR at 490 at 497, 198. McCaffery at [36], [37]; see also s13 of the 2004 Act..."

50 While the decision in "Perry" is of some relevance to this matter, as the Court applied the decision in "Mee Ling", the Solicitor held a practising certificate and practised contrary to the restrictions upon it by practising on his own account and managing trust monies.

51 In New South Wales Bar Association v Butland [2008] NSWADT 120, the Tribunal considered a disciplinary application in which there was medical evidence that at the time the alleged offences occurred, the respondent suffered from Borderline Personality Disorder and still possibly suffered from it at the date of the hearing. The respondent admitted that his conduct amounted to unsatisfactory professional conduct but disputed that he was guilty of professional misconduct. The Tribunal stated:

"9. Unsatisfactory conduct and professional misconduct are defined in the 2004 Act as follows:

"496 Unsatisfactory professional conduct

For the purposes of this Act: "unsatisfactory professional conduct" includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

Professional misconduct

(1) For the purposes of this Act: "professional misconduct" includes:

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and (b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For a finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters."

10 As these definitions are inclusive in nature, it follows that conduct which amounts to professional misconduct under the general law will also fall within professional misconduct to which the 2004 Act applies.

11 The common law concept of professional misconduct includes conduct in pursuit of professional activities which would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency - see The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 at [54] (per Basten JA) which notes the adoption for legal practitioners of the test propounded in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 763 for medical practitioners."

52 After considering all of the evidence in this matter, including the Solicitor's limited oral evidence, the Tribunal has formed the view that the Solicitor's conduct would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency. Accordingly, we are satisfied that he is guilty of professional misconduct.

53 There is no medical evidence or lay evidence that satisfactorily explains the Solicitor's conduct or upon which we can be comfortably satisfied that the Solicitor, has since the time that the misconduct occurred, realized the errors that he made and/or achieved an understanding of his duties and obligations as a Legal Practitioner.

54 Accordingly, the Tribunal is comfortably satisfied that the Solicitor is unfit to practice as a legal practitioner and he is probably permanently unfit to do so and that a protective order is warranted. We therefore order that the Solicitor's name be removed from the Roll of Legal Practitioners.

55 In relation to the issue of costs, we note that almost as an after-thought, the Solicitor asked the Tribunal not to make costs order against him on the grounds that he "could not afford it". However, he did not tender any evidence regarding his alleged financial difficulties and there is no evidence before us of any extraordinary circumstances that would support a decision to not make a costs order.

56 Accordingly, we order that the Solicitor pay the Society's costs in the sum of $2,000, such costs to be paid in full within a period of six (6) months from the date of this decision.

57 However, if the Solicitor applies to the Society for an extension of time supported by appropriate supporting evidence and the Society agrees in writing to an extension of time for payment, the time for payment will be as agreed between the parties.

 

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Decision last updated: 30 March 2011