Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Council of the Law Society of NSW v Sandroussi [2012] NSWADT 40
• Decision date: 12 March 2012
• Jurisdiction: Legal Services Division
• Before: The Hon G Mullane, Judicial Member; D Fairlie, Judicial Member; C Bennett,Non-Judicial Member

Decision

1) The Respondent Solicitor is found guilty of professional misconduct and publicly reprimanded;

2)The Respondent Solicitor is fined $6,000 to be paid as to $2,000 on or before 1 September 2012; $2,000 on or before 1 March 2013; and $2,000 on or before 1 March 2014.

3)The Respondent Solicitor must pay the Law Society's costs of and incidental to the proceedings, as agreed or as assessed under the Legal Profession Act 2004.

4)Until 1 March 2017 the Law Society of NSW must not issue or renew any Practising Certificate of the Respondent unless:

4.1)he has complied with any requirements (whether by Legislation, Rules or a Condition of a Practising Certificate sought to be renewed) for him to undertake Continuing Legal Education; and

4.2) there is no amount payable but unpaid under order 2 or order 3.

• Catchwords: Solicitor - Disciplinary Proceedings - Non-compliance with Condition of Practising Certificate (MCLE) - Non-compliance with Undertakings to Law Society - Failure to Respond to correspondence from Law Society
• Legislation Cited: Legal Profession Act 2004; Legal Profession Regulation 2005; Revised Professional Conduct and Practice Rules 1995; The Mandatory Continuing Legal Education (Continuing Professional Development) (MCLE/CPD) Scheme; Practising Certificate Rules
• Cases Cited: The Council of the Law Society of NSW v Panopoulos [2010] NSWADT 208; Legal Services Commissioner v McCarthy, (unreported) ADT 2 June 2008; NSW Bar Association v Howen [2008] NSWADT 148 at [59-62]; Legal Services Commissioner v Piper [2006] NSWADT 12; Law Society of NSW v Hinde [2005] NSWADT 199 at [37-41]
• Category: Principal judgment
• Parties: The Council of the Law Society of NSW (Applicant); Antoine Sandroussi (Respondent)
• Representation: Council of the Law Society of NSW (Applicant); Legal Services Commissioner (Applicant); A Sandroussi (Respondent in person)
• File Number(s): 112016, 112025

LEGAL SERVICES DIVISION

Hon G Mullane (Judicial Member), Mr D Fairlie (Judicial Member) and

Mr C Bennett (Non-Judicial Member)

REASONS FOR DECISION

INTRODUCTION

1 This was a hearing of disciplinary proceedings against the Respondent Solicitor. It was a hearing together of proceedings commenced by the Council of the Law Society of NSW by its application filed with the Tribunal on 23 June 2011 and proceedings commenced by the Legal Services Commissioner against the Respondent Solicitor commenced by an application filed on 7 September 2011.

2 These are the Reasons in relation to the proceedings commenced by the Law Society of NSW.

ORDERS SOUGHT

3 The Law Society sought the following orders:

1) That the Solicitor be reprimanded;

2) That the Solicitor be fined;

3) That the Solicitor pay the costs of the Applicant of and incidental to the application; and,

4) Such Orders as the Tribunal sees fit.

GROUNDS OF THE APPLICATION

4 There are four Grounds to the Application and they are:

1. The Practitioner has contravened a condition of his Practising Certificate;

2. The Practitioner has failed to respond to correspondence;

3. The Practitioner has failed to comply with his Undertaking of 22 June 2007 to the Law Society of NSW ;

4. The Practitioner has failed to comply with his Undertaking of 27 June 2008 to the Law Society of NSW.

THE EVIDENCE

5 The evidence in the hearing of this Application comprises:

(1) The Application of the Law Society filed with the Tribunal on 23 June 2011;

(2) The Affidavit of Anne-Marie Foord, Manager of the Professional Standards Department of the Law Society, filed on 23 June 2011;

(3) The Respondent's Reply filed 5 October 2011;

(4) The Respondent's admissions in oral submissions including, "It is undeniable I failed to comply with the undertaking":, and his statement that he has "no defence to breach of the undertakings";

(5) Also in the Reply, the Respondent admitted Grounds 1, 3 and 4, and did not dispute particulars in relation to each Ground that are set out in the Application; and

(6) The Respondent said he does not admit Ground 2 (Failure to respond to correspondence). He said, "I endeavoured to reply to correspondence from the Society as and when I became aware of such correspondence.

THE PARTICULARS OF THE GROUNDS

6 The following are the particulars of the Grounds as set out in the Application. They are not disputed by the Respondent and are established by the evidence.

1. Between 7 April 2006 and 10 April 2007 the Solicitor was a non principal Solicitor practising with the law practice of Sally Khadi.

2. Since 11 April 2007 the Solicitor has been the principal of AYS Legals.

3. Practising Certificates issued to the Solicitor and entitling him to practice from, at least, 1 July 2006 were conditional upon him completing mandatory continuing legal education in accordance with the requirements of the Legal Profession Act, 2004 and the Legal Profession Regulation 2005.

4. By letter dated 22 June 2007, the Solicitor wrote to the Society's Registry and advised that:

"l have not been able to fully comply with the MCLE Requirements for the year ending 30 June 2007 and this for financial reasons.

I hereby undertake to comply with the above requirements within 90 days." [emphasis added]

5. By letter dated 3 August 2007 the Registry wrote to the Solicitor noting that

" ...the Licensing Committee has considered your request for an extension of time to comply with the Mandatory Continuing Legal Education Rules. This extension has been granted until 30 October 2007, and is conditional upon receipt of the completed undertaking within seven (7) days of receipt of this letter."

6. The Solicitor did not provide the undertaking sought by the Society nor did he otherwise reply to the Registry's letter of 3 August 2007.

7. By letter dated 6 February 2008 the Registry wrote to the solicitor noting that they had no evidence of the solicitor's compliance with his MCLE requirements by 30 October 2007. The Solicitor did not respond to this letter.

8. By letter dated 27 June 2008 the solicitor advised the Registry, in part, that

"At .the time of renewal of my practising certificate for the year 2006/2007, I made an undertaking to the Law Society to complete my MCLE point for the previous year within 90 days.

Shortly thereafter on 22 June 2007, I left Australia to Bahrain on a business trip and did not come back until 10 August 2007. The reason I came back was to dispose of my clients as I had begun work with a Bahraini company who required me to be in Bahrain for an extended period of time.

I left Australia back to Bahrain on 15 September 2007 without being able to attend to my MCLE requirement and remained in Bahrain until 2 June 2008 when I came back to Australia.

Due to the above, I was unable to attend to my MCLE for two consecutive years and was, in addition, unwillingly in breach of my undertaking to the Law Society.

I hereby apply to the Law Society for a further extension to enable me to comply with my MCLE requirements for the last two years undertaking to fulfill those requirements within a period of 90 days form (sic) the date of this letter. [emphasis added]

As for the breach to my undertaking for the year ending 30 June 2007, I hope that you would be kind enough to extend the period of the said undertaking and allow it to coincide with the undertaking I made in the previous paragraph. Failing which, I submit myself to the Law Society's ruling in that regard. "

9. By post script to his letter of 27 June 2008 the Solicitor applied "for a partial exemption as I was not practising in Australia for the months July 07, then from 15 September 2007 until 30 March 2008."

10 . By letter dated 1 July 2008 the Registry wrote to the Solicitor noting that a further extension of time to comply with the Mandatory Continuing Legal Education Rules was granted until 30 September 2008.

11.By further letter dated 1 July 2008 the Society granted the Solicitor a partial exemption of 7.0 units of MCLE for the year 2007/2008 on the grounds of absence from practice due to unemployment. The Solicitor was required to comply with the further 3 units of MCLE, as well as the MCLE requirements

for the 2006/7 year, by 30 September 2008.

12. By letters dated 29 October 2008 and 18 February 2009 the Registry wrote to the Solicitor advising that they held no evidence that he had complied with his undertakings to comply with the MCLE requirements by 30 September 2008, and requested evidence of such compliance. The Solicitor .did not respond to the letter of 29 October 2008.

13. By letter dated 25 March 2009 the Solicitor advised, in part, that the Society's letter of 18 February 2009 had only come to his attention on the previous day. The letter continued:

"...

The writer also advises that due to financial strain suffered by the practice the writer have (sic) not been able to comply with the MCLE requirements for the above years and kindly requests a further extension in order to comply with the said requirements.

The writer hopes that he will be compliant by no later than 30 June 2009 and hopes that his circumstances will be appreciated by the registry.

.. .the income generated does not enable him to comply with the MCLE requirements as quickly as he had hoped when he re-opened his practice . .... " .

14. By email dated 5 March 2010 the solicitor advised that he had completed 4 MCLE points the previous day; a further I MCLE point would be completed on 23 March 2010 and a further 10 points would be completed on 13 March 2010.

15. By e-mail dated 22 April 2010 the Solicitor confirmed that he had completed the further MCLE attendances on 13 and 23 March 2010.

THE CONDITION OF THE PRACTISING CERTIFICATE

7 The certificate issued to the Respondent in 2006/2007 was conditional upon him completing Mandatory continuing legal education in accordance with the requirement of the Legal Profession Act 2004 and the Legal Profession Regulation 2005, as were the unrestricted practising certificates issued for 2007/2008, 2008/2009 and 2009/2010. This requirement is pursuant to section 50 of the Act, which gives the Council power to impose conditions on the granting or renewal of a practising certificate, including a condition requiring the holder of the certificate to undertake and complete continuing legal education.

8 Rule 42 of the Revised Professional Conduct and Practice Rules 1995 spells out the requirements for Mandatory Continuing Legal Education. Practice management courses are prescribed by Regulation 142 as part of mandatory continuing legal education.

9 Section 57 of the Act empowers the Law Society to impose conditions on practising certificates by legal profession rules. The Mandatory Continuing Legal Education (Continuing Professional Development) (MCLE/CPD) Scheme document issued by the Council of the Law Society provides more detail of the Scheme and is part of the Practice Conditions promulgated by the Law Society .

10 The Practising Certificate Rules are also part of the Practice Conditions and provide that it is a condition of all practising certificates that the holder complete continuing legal education "in accordance with the requirements of the Legal Profession Act 2004 and the Legal Profession Regulation 2005". That was the condition the practitioner breached in each of the 3 successive years 2006/2007, 2007/2008 and 2008/2009. She did not comply until March 2010.

11 It is noted that the Law Society letter to the Practitioner of 18 February 2009 threatened referral to the Professional Standards Department, the Law Society letter to him of 12 August 2009 threatened a formal complaint for breach of the condition of his Practising Certificate and breach of his undertaking, the Law Society letter of 10 September 2009 advised that the Law Society had resolved to make such a complaint, the Law Society letter to him of 28 September 2009 repeated this and advised that the complaint would include failure to respond to correspondence, and, even then, it was only in March 2010 that the Respondent attended courses in order to comply with the Mandatory Continuing Legal Education requirements.

THE BREACH OF THE UNDERTAKINGS

12 On 22 June 2007 the Respondent undertook to the Law Society that within 90 days he would complete the Mandatory Continuing Legal Education requirements for the year ending 30 June 2007. He gave a similar undertaking in writing on 27 June 2007 to complete the requirements within 90 days. He did not comply with either undertaking. Indeed, he did not complete Mandatory Continuing Legal Education requirement for 2006/2007 or any subsequent year until March 2010.

FAILURE TO RESPOND TO CORRESPONDENCE

13 It is common ground that the Respondent Solicitor did not reply to the Law Society letter of 3 August 2007, the Law Society letter of 6 February 2008, and the Law Society letter of 29 October 2008.

THE RESPONDENT'S CASE

14 From the Respondent's correspondence with the Law Society and other evidence, it appears that he did not attend any Continuing Legal Education in 2006/2007.

15 His evidence is that in the period 22 June 2007 to 10 August 2007 he was in Bahrain "on a business trip". He said that when he returned to Australia:

"to dispose of my clients as I had begun work with a Bahraini company who required me to be in Bahrain for an extended period of time."

16 He said that he then left Australia and returned to Bahrain on 15 September 2007 and did not return to Australia again until 2 June 2008. He obtained from the Law Society an exemption in respect of 7 points of Mandatory Continuing Legal Education for the year 2007/2008. iI appears that he did not complete any Mandatory Continuing Legal Education in the 2007/2008 year.

17 It also appears that although he was in Australia for the whole of the period from 2 June 2008 to the end of the 2008/2009 practising certificate period, he did not complete any Mandatory Continuing Legal Education in that period. He then did not complete any Mandatory Continuing Legal Education until March 2010.

18 He wrote to the Law Society on 25 March 2009 saying he had not received the letter of 18 February 2009 until 24 March, and asking for a further extension of time to complete Mandatory Continuing Legal Education requirements. In his letter of 6 October 2009 he said that since his return from overseas in June 2008:

"I have returned to work, however, work was and still is slow and I have not been financially able to fully attend to my MCLE while at the same time providing for my family."

19 He claimed, however, that he had completed 10 MCLE units in that period, but did not complete and return any of the forms the Law Society provided to him by way of record of Mandatory Continuing Legal Education activities to certify that he had attended any such activities.

20 In his Reply, the Respondent did not agree with Ground 2 (Failure to respond to correspondence) but his response was:

"I endeavoured to reply to correspondence from the Society as and when I became aware of such correspondence."

21 At the hearing on 30 November 2011 the Respondent told the Tribunal that he was "undeniable" that he failed to comply with his undertakings. He said he ran his practice from home. He said when he went to Bahrain he did not intend to stay there. He said he returned on 10 August 2007, but then returned to Bahrain on 15 September 2007 and remained there until 2 June 2008. He said:

"If my financial circumstances had been better, I could have complied."

22 He said that the reason for his non-compliance was his financial circumstances and that he had later completed the total MCLE requirements, "thankfully because of some free seminars". He said:

"I've never taken this issue slightly."

And, he also said that his attitude "to my Undertakings has lead to my admission offering no defence regarding breach of the Undertakings".

23 Regarding the correspondence to which he did not reply, he conceded that the letter had been sent to him on 3 August 2007. He returned from Bahrain on 10 August and did not reply to the letter. He left to return to Bahrain on 15 September 2007.

24 He submitted that his practice is now generating sufficient income for him to pay for proper Continuing Legal Education. He said that if he is fined he wants time to pay.

UNSATISFACTORY PROFESSIONAL CONDUCT AND PROFESSIONAL MISCONDUCT

25 Subsection 58(1) of the Act provides:

(1) The older of a current local practising certificate must not contravene (in this jurisdiction or elsewhere) a condition to which the certificate is subject.

Maximum penalty: 100 penalty units.

26 Section 17 of the Crimes (Sentencing and Procedure) Act 1999 NSW states that a penalty unit is $110.

27 Sections 496, 497 and 498 of the Legal Profession Act 2004 provide:

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.

497 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 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.

498 Conduct capable of being unsatisfactory professional conduct or professional misconduct

(1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct:

(a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules,

..............................................................................

(2) Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention.

28 In our view the breaches of the condition of the Practising Certificate and of the undertaking to the Law Society are a substantial failure by the Respondent to maintain a reasonable standard of competence and also a failure to achieve a reasonable level of diligence. They show not only a failure to recognise the importance of maintaining competence, but also a lack of integrity.

29 With regard to the breach of the condition of his Practising Certificate, such conduct was held to be professional misconduct in Law Society of NSW -V- Ling [2010] NSWADT 48 at [53] and Council of the Law Society of NSW -v- Karam [2010] NSWADT 170. The respondent in Karam held a restricted 'corporate' Practising Certificate which limited his entitlement to practice to acting for his employer corporation only. He breached the condition by acting in legal proceedings for other clients. It appears from the reasons of the Tribunal that the period that he was involved with other clients was about 10 months.

30 The breach of the MCLE condition of the Respondent's practising certificate was over a long period and went directly to his competence to practice. It was a more serious breach than in Karam. We find that the breach of the condition of his practising Certificate over such a long period constitutes professional misconduct.

31 We consider that the explanations offered by the Legal Practitioner do not provide any reasonable excuse for his breach of the condition of his practising Certificate and his breach of his undertaking to the law Society. Clearly the practitioner chose to give priority to his business in Bahrain over his obligations if he were to continue to practice as a solicitor.

32 The undertakings the respondent gave to the law Society were given because he had not complied with a condition of his practising certificate. One would expect a solicitor in that situation to recognise the seriousness of each undertaking and ensure that it was complied with. But the Respondent's behaviour, witnessed by his correspondence to the law Society and the long period of his default in the undertakings showed a quite casual regard for the undertakings.

33 With regard to the breach of his undertakings, some authorities in support of a finding that it constitutes professional misconduct are: The Council of the Law Society of NSW -v- Panopoulos [2010] NSWADT 208; Legal Services Commissioner -v- McCarthy, unreported ADT 2 June 2008; NSW Bar Association -v- Howen [2008] NSWADT 148 at [59-62]; Legal Services Commissioner -v- Piper [2006] NSWADT 12; and, Law Society of NSW -v- Hinde [2005] NSWADT 199 at [37-41].

34 We find that the Respondent's breach of his undertakings to the Law Society constitutes professional misconduct.

35 The correspondence from the Law Society that the respondent did not respond to was dated 3 August 2007 (7 days before he returned from Bahrain the first time), 6 February 2008 (he was in Bahrain from 15 September 2007 to 2 June 2008), and 29 October 2008. He also said that the letter of 18 February 2009 did not come to his notice till 24 March 2009. These letters all concerned very serious issues. We accept that he might not have received the letter of 6 February 2008. We find on the balance of probabilities that he did receive the letters of 3 August 2007 and 29 October 2008.

36 Both letters enclosed a form "Record of Mandatory Continuing Legal Education Activities for MCLE" for the preceding year. He was in each case asked to complete, sign and return the form. The letter of 3 August 2007 also asked him to sign a further undertaking to complete MCLE requirements. The Respondent did not respond to either of those letters. We find that that conduct was not of itself professional misconduct, but it was unsatisfactory professional conduct.

COSTS

37 Subsection 566(1) of the Legal Profession Act 2004 provides:

(1) The Tribunal must make orders requiring an Australian legal practitioner whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist.

38 The evidence does not disclose any "exceptional circumstances", and accordingly, the Respondent should pay the costs of the Law Society.

CONCLUSIONS

39 The clients, the public, other members of the profession and the courts are entitled to expect a solicitor to be a person of honesty and integrity and to comply with legal requirements in relation to his Practising Certificate and undertakings given by him to the Law Society. They are entitled to expect a solicitor will be committed to continuing legal education as part of achieving and maintaining competence. They are also entitled to expect that a practitioner would exercise due competence, diligence and care in relation to any dealings with the Law Society concerning professional conduct. That includes replying promptly to correspondence from the Law Society.

40 The Respondent's failure in each of these areas demonstrates a failure to achieve a reasonable level of competence and diligence.

41 We are especially concerned to ensure that the Practitioner does not in future obtain or renew a Practising Certificate without first complying with any outstanding obligations for Continuing Legal Education and payment of any fine. We have reached a view that the Law Society should be ordered to ensure that he is not able to do so in the next five years.

42 In relation to a fine and also in relation to the payment of costs, we have taken into account the submissions for the Respondent and will incorporate time for payment in the orders.

43 We consider that the seriousness of the professional misconduct is such that a fine of $6,000 is warranted.

44 We find that the appropriate sanctions in order to deter the Respondent and other practitioners from further such professional misconduct or unsatisfactory professional conduct, and to protect the public and the legal profession are as set out in the following orders.

ANTECEDENTS

45 The Law Society at the hearing and in submissions did not rely on past unsatisfactory professional conduct, or professional misconduct of the Respondent and did not seek a striking off order. The Law Society was aware that the Legal Services Commissioner is seeking such an order in its application and relying on the Respondent's record. It is in that context that we have arrived at the following orders, although if the antecedents of the Respondent had been relied upon by the Law Society and it had sought a striking off order, we may have arrived at that result.

ORDERS

The orders are:

1) The Respondent Solicitor is found guilty of professional misconduct and publicly reprimanded;

2) The Respondent Solicitor is fined $6,000 to be paid as to $2,000 on or before 1 September 2012; $2,000 on or before 1 March 2013; and $2,000 on or before 1 March 2014.

3) The Respondent Solicitor must pay the Law Society's costs of and incidental to the proceedings, as agreed or as assessed under the Legal Profession Act 2004.

Until 1 March 2017 the Law Society of NSW must not issue or renew any Practising Certificate of the Respondent unless:

4.1) he has complied with any requirements (whether by Legislation, Rules or a Condition of a Practising Certificate sought to be renewed) for him to undertake Continuing Legal Education; and

4.2) there is no amount payable but unpaid under order 2 or order 3.

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Decision last updated: 17 March 2012