Administrative Decisions Tribunal
New South Wales

Medium Neutral Citation:

Council of the Law Society of NSW v Autore [2012] NSWADT 139

Hearing dates:

24 May 2012

Decision date:

19 July 2012

Jurisdiction:

Legal Services Division

Before:

M Chesterman, Deputy President
J Currie, Judicial Member
E Hayes, Non-judicial Member

Decision:

1. The Respondent is guilty of professional misconduct as alleged in Ground 1 of the Application.

2. The Respondent is reprimanded.

3. The Respondent is to pay a fine of $3,000.

4. (a) The Respondent is to attend upon Dr Gordon Davies or such other psychiatrist as either Dr Davies or Dr John Lenehan may recommend ('the Therapist') and comply with such treatment regime as the Therapist may recommend.

(b) At intervals of three months the Respondent is to provide to the Applicant evidence in writing that he is complying with the order in paragraph (a). Such evidence may be by way of a letter from the Therapist.

5. The Respondent is to pay the Applicant's costs of and incidental to these proceedings as agreed or assessed.

Catchwords:

Disciplinary proceedings - solicitor - failure to comply with statutory notices requiring information and documents - failure to assist investigation

Legislation Cited:

Legal Profession Act 1987
Legal Profession Act 2004

Cases Cited:

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
Council of the Law Society of New South Wales v Carbone [2011] NSWADT 32
Council of the Law Society of New South Wales v Tsalidis (No 2) [2010] NSWADT 297
Re Hodgekiss (1962) 62 SR (NSW) 340
Law Society of New South Wales v Hammond [2006] NSWADT 23
Law Society of New South Wales v Knudsen [2006] NSWADT 49
Law Society of New South Wales v Shalovsky [2008] NSWADT 14
Legal Services Commissioner v Browne [2004] NSWADT 63
Myers v Elman [1940] AC 282
New South Wales Bar Association v Hamman [1999] NSWCA 404
New South Wales Bar Association v Howen [2008] NSWADT 148
Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201
Veghelyi v Council of the Law Society of New South Wales, unreported, Supreme Court of New South Wales, Smart J, 6 September 1989

Category:

Principal judgment

Parties:

Council of the Law Society of New South Wales (Applicant)
Anthony Autore (Respondent)

Representation:

Counsel
D Durston (Respondent)
Council of the Law Society of NSW (Applicant)
Autore & Associates (Respondent)

File Number(s):

112017

decision

Procedural history

1On 23 June 2011, the Council of the Law Society of New South Wales ('the Law Society') filed an Application in the Tribunal alleging that the Respondent, Anthony Autore ('the Solicitor'), had engaged in professional misconduct on the following two Grounds:-

1. Without reasonable excuse, the solicitor failed to comply with a requirement under section 660 of the Legal Profession Act 2004.

2. The solicitor failed to assist the Law Society with the investigation of a complaint.

2The Particulars provided for each of these Grounds were as follows:-

In these Particulars:

"the Solicitor" means ANTHONY AUTORE

"the Society" means the Law Society of New South Wales

1. By letter dated 22 June 2007 the Society informed the solicitor of a complaint against him and requested his response within 14 days.

2. At his request, the solicitor was granted several extensions of time in which to respond to the complaint.

3. On 3 June 2008 the Society received the solicitor's response to that complaint (incorrectly dated 1 August 2007).

4. The letter referred to in particular [3] was unsigned and its contents were unintelligible.

5. By letter dated 13 June 2008, the Society brought this to the attention of the Solicitor, with a request that the solicitor "kindly sign it and return it... at your earliest opportunity". This request was not complied with.

6. On 2 July 2009 a Notice pursuant to Section 660 of the Legal Profession Act 2004 ("the first notice") was issued.

7. The first notice was served on the solicitor on I5 July 2009.

8. The time for compliance with the first notice expired on 5 August 2009.

9. The first notice contained questions seeking detailed responses, and Schedule 2 sought specified documents.

10. The solicitor responded to the first notice on 11 August 2009 by hand delivering a letter to the Society. The response was almost identical to the letter referred to in particular [3] above.

11. The response to the first notice failed to answer the specific questions asked in the first notice, and failed to provide the documents sought under Schedule 2 of the first notice.

12. By letters dated 13 August 2009 and 26 August 2009, the solicitor was asked to comply with the first notice. He failed to do so.

13. On 11 September 2009 a further notice was issued pursuant to section 660 of the Legal Profession Act 2004 ("the second notice").

14. The second notice was served personally on the solicitor on 17 September 2009.

15. The time for compliance with the second notice expired on 8 October 2009.

16. The solicitor forwarded his response to the second notice on 17 February 2010 (incorrectly dated 17 February 2009).

17. The solicitor stated in his response:

"I apologise for the delay in responding which was due to personal family issues... l apologise for the delay which [sic] I now have made structural changes to my practice to ensure these matters are properly attended to in the future."

3The orders sought in the Application were:-

1. That Anthony Autore be publicly reprimanded.

2. That Anthony Autore be fined.

3. That Anthony Autore pay the Law Society's costs.

4. Any other Order as to the Tribunal seems fit.

4Also on 23 June 2011, the Law Society filed an affidavit sworn by its solicitor in these proceedings, Ms Anne-Marie Foord, on 21 June 2011.

5In this affidavit, Ms Foord deposed that she had ascertained from a search of the Society's records that the Solicitor had been admitted as a solicitor of the Supreme Court on 5 July 1985. In his own affidavit, the Solicitor stated that he had practised as a sole practitioner since 1989 and that his current practice was located in Wollongong.

6In a Reply filed on 30 September 2011, the Solicitor admitted the failure described in Ground 1. In relation to Ground 2, he claimed that he did assist the Law Society with the investigation of a complaint, but admitted that he did not do so in a timely manner. In relation to both Grounds, he claimed that his conduct constituted unsatisfactory professional misconduct, not professional misconduct.

7In his Reply, the Solicitor also admitted paragraphs 1 - 3 and 6 - 17 of the Particulars. As to paragraph 4, he admitted that the letter was signed and said, in relation to the allegation that it was unintelligible, that it 'contained numerous errors, brought about because he dictated the letter into voice recognition software (Dragon) and them due to the immense pressure he was under at the time, did not proofread it before he sent it'. As to paragraph 5, he admitted that he did not sign and return the letter, but claimed that 'it would have been entirely inappropriate, once the letter had been brought to his attention to, in effect, sanction the mistakes by signing it'.

8At directions hearings on 7 September, 2 November and 7 December 2011, the Solicitor was directed to file, on or before specified dates, any medical or psychiatric evidence on which he wished to rely. The dates specified were, respectively, 12 October 2011, 5 December 2011 and 'mid-February 2012'.

9At the directions hearing on 7 September 2011, the Solicitor was also directed to file any other affidavit evidence on which he intended to rely on or before 12 October 2011.

10The Application was set down for hearing on 16 March 2012. The Solicitor did not file any evidence before that date.

11At this hearing, the Solicitor represented himself. He applied for and was granted an adjournment, on the ground that severe pressures exerted upon him in recent weeks by his legal practice and by his wife's ill-health had prevented him from preparing his own affidavit and obtaining the medical reports on which he wished to rely. Directions were given for the filing of this evidence by him and of any evidence in reply that the Law Society might wish to file, and the Solicitor was ordered to pay the Law Society's costs of the hearing. The date fixed for the adjourned hearing of the Application was 24 May 2012.

12On 24 May 2012, the Solicitor filed the following evidence: (a) an affidavit sworn by him on 23 May 2012; (b) a report regarding the Solicitor prepared by Dr Gordon Davies, a Consultant Psychiatrist, and dated 19 May 2012; (c) a testimonial in support of the Solicitor, furnished by Mr Glenn Henniker, a solicitor practising in Wollongong, and dated 3 May 2012; and (d) a further testimonial furnished by Mr Stephen Odgers SC, dated 17 May 2012.

13At the adjourned hearing, Ms Groenewegen, a solicitor employed by the Law Society, appeared for the Society and Mr Durston of counsel appeared for the Solicitor. The evidence outlined above was admitted and the Solicitor was cross-examined.

Relevant legislation

14The following provisions of the Legal Profession Act 2004 (hereafter 'the Act') are relevant in this case:-

660 Requirements in relation to complaint investigations

(1) For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, an investigator may, by notice served on the lawyer, require the lawyer to do any one or more of the following:

(a) to produce, at a specified time and place, any specified document (or a copy of the document),

(b) to provide written information on or before a specified date (verified by statutory declaration if the requirement so states),

(c) to otherwise assist in, or co-operate with, the investigation of the complaint in a specified manner.

(3) A person who is subject to a requirement under subsection (1) or (2) must comply with the requirement.

Maximum penalty: 50 penalty units.

(4) A requirement imposed on a person under this section is to be notified in writing to the person and is to specify a reasonable time for compliance.

676 Obligation of Australian lawyers

(3) An Australian lawyer who is subject to:

(a) a requirement under section 660 (Requirements in relation to complaint investigations), or

(b) a requirement under provisions of a corresponding law that correspond to that section,

must not, without reasonable excuse, fail to comply with the requirement.

(4) An Australian lawyer who contravenes subsection (2) or (3) is guilty of professional misconduct.

Our findings on the two Grounds of the Application

15Ground 1. As indicated above at [6 - 7], the Solicitor in his Reply admitted the factual allegations in the Particulars to this Ground and also admitted that he had failed to comply within the specified time with the requirements of the two Notices under section 660 of the Act (hereafter 'the Notices') that had been served on him on I5 July 2009 and 11 September 2009 respectively.

16The Law Society's earlier letter to the Solicitor, dated 22 June 2007, and each of these two Notices were sent to him in the course of the Society's investigation of a complaint that had been made against him by a former employee, Ms Amy Werasko. The information and the documents sought from him by the Society concerned the extent, if any, to which he had complied with his obligation as her employer between 20 February and 7 December 2006 to contribute to her superannuation.

17In a single-page schedule, which was annexed to the Solicitor's letter to the Society received on 3 June 2008 (hereafter 'the letter of June 2008') and his virtually identical letter dated 10 August 2009, limited information was furnished regarding the contributions made by him to Ms Werasko's superannuation. But this information fell well short of what was required in the documents called for in the two Notices. The Solicitor did not make any claim to the effect that this schedule was the only document in his possession or under his control that fell within the range of documents described in Schedule 2 of each Notice.

18The text of the Solicitor's letters of June 2008 and 10 August 2009 and the other documents annexed to these letters did not bear at all on his obligation to pay superannuation for Ms Werasko's benefit. Instead, they were chiefly devoted to describing in some detail the circumstances in which (a) he first employed her, (b) he subsequently dismissed her on grounds of alleged misconduct, causing her to institute proceedings against him for amounts owed to her as remuneration, and (c) he eventually paid to her the balance of remuneration that he believed to be due to her.

19In addition, a requirement in each of the Notices that the information provided should be verified by statutory declaration was not observed and many passages in the letters were incoherent and difficult to comprehend.

20At the hearing on 16 March 2012, the Solicitor foreshadowed that the evidence that he wished to file would show that at the time when the Notices were served on him he was suffering from depression. This evidence, he said, would or might form the basis of a claim by him that there was a 'reasonable excuse' (within the meaning of section 676(3) of the Act) for his failures to comply with the Notices.

21At the adjourned hearing of the proceedings, however, Mr Durston did not make any submission to this effect on the Solicitor's behalf. After taking due account of the evidence as to the Solicitor's depressive state given at the hearing (the nature of which is outlined below), we are satisfied that there was indeed no 'reasonable excuse'.

22In so concluding, we take account of the following passage at paragraph [42] of a decision cited to us by Ms Groenwegen, Law Society of New South Wales v Green [2001] NSWADT 142. The provision to which it refers, section 152 of the Legal Profession Act 1987, was the predecessor of section 660 of the Act of 2004:-

42 In his written Reply to the Information in these proceedings, Mr Green gave no explanation for not complying with the s.152 notice within the time stipulated by it. When invited in the course of his oral evidence to explain why he did not comply with it, he referred to "pressure of work" and "avoidance of issues" as possible reasons but then said that he was not able to say whether or not he was particularly busy at the time. He referred to his "avoidance of issues" evidence as a "head in the sand" approach. This evidence did not constitute a satisfactory, or indeed any, explanation for his non-compliance with the notice. It referred only to possible explanations and did not indicate what the explanation in fact was.

23Mr Durston also stated that the Solicitor admitted that the conduct alleged in Ground 1 amounted to professional misconduct, not (as previously claimed in the Reply) to unsatisfactory professional conduct.

24As required by section 660(1) of the Act, the two Notices were issued by a member of the Professional Standards Department of the Law Society acting in the capacity of an investigator. They required compliance within a period of three weeks after being served. This was in our judgment a 'reasonable time', as is required by section 660(4).

25For the foregoing reasons, the evidence, considered in conjunction with the Solicitor's admissions, clearly established that by virtue of the facts alleged in Ground 1 of the Application he committed professional misconduct under section 676(4) of the Act through failing to comply with both of the Notices.

26Ground 2. As indicated above at [6 - 7], the Solicitor in his Reply admitted the factual allegations in the Particulars to this Ground. He also claimed that he did assist the Law Society with the investigation of the complaint, but admitted that he did not do so in a timely manner.

27The evidence that we have just outlined demonstrates that between a date soon after 22 June 2007, when the Law Society first contacted the Solicitor about the complaint made against him, and 17 February 2010, when he finally provided the information and documents sought in the two Notices, he did nothing that could be characterised as assisting the Society in its investigation of the complaint. Even though he did ultimately provide assistance, a period of more than 31 months (from 6 July 2007 to 17 February 2010) elapsed during which he failed to do so.

28For these relatively straightforward reasons, the factual allegations forming the basis for Ground 2 are made out. In the manner described in these allegations, he 'failed to assist the Law Society with the investigation of a complaint'.

29We turn now to consider whether this failure on his part amounts, as the Law Society claimed, to professional misconduct. In so doing, as Ms Groenewegen submitted, the implications of his conduct during the period before the service of the first Notice as well as the period thereafter must be taken into consideration. Whereas the period during which he failed to act as required by section 676(3) of the Act following service of the first Notice was about six months (from 5 August 2009 to 17 February 2010), the total period during which he failed to assist the investigation was, as just stated, more than 31 months.

30Although Ms Groenewegen, in a written outline of submissions handed up at the hearing, claimed that this failure by the Solicitor to assist the investigation contravened section 674 of the Act, she did not press this claim at the hearing. This section states in subsection (1) that a person 'must not, without reasonable excuse, obstruct or mislead an investigator exercising a power under this Act'. Ms Groenwegen's abandonment of this claim was correct, since the writer of the Law Society's first letter to the Solicitor, dated 22 June 2007, was not acting in the capacity of an investigator.

31Ms Groenewegen argued instead that the Solicitor's conduct in failing to assist the investigation amounted to professional misconduct at common law. In the context of this submission, she referred us to a Tribunal case in which a disciplinary application against a solicitor alleged the same two grounds of misconduct as are alleged in these proceedings - failure to comply with a statutory notice requiring information and /or documents and failure to assist the Law Society with an investigation.

32In this case, Law Society of New South Wales v Knudsen [2006] NSWADT 49, the provision governing statutory notices was section 152 of the Legal Profession Act 1987. The relevant passage in the Tribunal's decision is at [56 - 68]:-

56 Failure to assist the Law Society in the investigation of a complaint. Mr Pierotti submitted that the Solicitor's failure until 30 September 2005 to comply with the requirement to respond to the Society's letter of 3 February 2005 and his failure to deliver the file on the White matter until 31 October 2005, taken in conjunction with his failure, to the extent already outlined, to comply with the Second Notice, constituted professional misconduct at common law.

57 He referred in this context to the Allinson test of professional misconduct, namely conduct which 'would be reasonably regarded as disgraceful and dishonourable' by 'professional brethren of good repute and competency' (see Allinson v General Council of Medical Education and Registration [1894] 1 QB 750). He argued that a practitioner's failure over several months to cooperate with a professional authority's investigation of complaints against him or her fell within this range of conduct.

58 On this specific issue, Mr Pierotti relied on the following passage in the judgment of Smart J in Veghelyi v Council of the Law Society of New South Wales, unreported, Supreme Court of New South Wales, 6 September 1989:-

It is important that solicitors respond promptly to the [Law] Society when it asks for a response to complaints which have been made. It will be an unusual and complex case when a delay of more than 14 days is acceptable and often the reply should be delivered within a shorter period such as 7-10 days. Replies to the Law Society in respect of complaints warrant a high priority. Such replies should be full and complete and deal directly with the complaints made.

59 Mr Pierotti also cited Legal Services Commissioner v Browne [2004] NSWADT 63, in which this passage was quoted at [13], and Law Society of New South Wales v Hammond [2006] NSWADT 23. In the latter case, a solicitor's failure over a period of four and a half months both to assist the Law Society's investigation and to comply with a notice under s 152 formed the basis for findings of professional misconduct on the same two grounds as are put forward in this case.

60 While acknowledging that practitioners were under a duty to assist official investigations of complaints against them, Mr Diethelm submitted that failure to discharge this duty did not necessarily constitute professional misconduct since it could not always be said to amount to 'disgraceful' or 'dishonourable' behaviour in accordance with the Allinson test. In the present case, he said, the Solicitor's lapse from acceptable professional standards was not serious enough to warrant this description.

61 Mr Diethelm sought, in this connection, to rely on some observations in support of the Solicitor in the testimonies of Mr Phillips and Mr Strain. He also argued that although the letter of 3 February 2005 'required', rather than 'invited', a response, the Solicitor's silence, while inappropriate, could properly have been interpreted by the Law Society as implying that he had nothing further to add to what he said in the First Statutory Declaration.

62 We have not found this an easy issue to resolve. While the authoritative remarks of Smart J in Veghelyi must clearly be given great weight, it is significant that they were not made with reference to the issue of professional misconduct. Their context was that of an application by a solicitor, in the course of an appeal against the cancellation of his practising certificate, for an interim order staying the cancellation. We would add that his Honour's remarks were cited in Browne with reference to professional misconduct by virtue of a breach of s 152(1)(b), not common law misconduct.

63 While we must take due account of the very recent Tribunal decision in Hammond, it is significant that because the practitioner in that case did not appear at the hearing, the matter was not fully argued. The approach taken there would suggest that in any case where a serious breach, without reasonable excuse, of s 152(1)(a) or (b) is found to have occurred, constituting statutory misconduct under s 152(4), a finding of common law misconduct should also be made, on the ground of failure to assist the relevant authority in its investigation of the relevant complaint. We would respectfully differ from any such approach. As far as we are aware, it would be at odds with the outcome in a number of other cases, where in like circumstances a finding of statutory misconduct has been made on its own or in conjunction with findings of one or more quite different species of misconduct.

64 Our opinion along these lines receives support from the existence of a statutory form of professional misconduct created by s 152(1)(c) in conjunction with s 152(4). As outlined above at [17], this arises when a legal practitioner has failed, without reasonable excuse, to comply with a requirement contained in a written notice from a specified authority (including the Law Society) to 'otherwise assist in, or cooperate with, the investigation of' a complaint 'in a specified manner'. As is the case under s 152(1)(a) or (b), if this form of misconduct is to be established against a legal practitioner, a formal notice must have been served. This will draw the practitioner's attention to the fact that non-compliance without reasonable excuse will amount to professional misconduct.

65 We do not think that the existence of s 152(1)(c) and s 152(4) renders it impossible for a practitioner to be found guilty of professional misconduct at common law on account of failure to assist in the investigation of a complaint. But in view of this component (replicated in the Legal Profession Act 2004) of the statutory regime governing professional misconduct, we believe that the Tribunal should not make a finding of common law misconduct unless the well-established criterion of 'dishonourable' or 'disgraceful' behaviour is clearly satisfied.

66 We acknowledge the force of Mr Pierotti's submission that a finding of common law misconduct here would embrace a longer period of non-compliance by the Solicitor than does our finding of misconduct under s 152. It would include the period between the Solicitor's receipt of the letter of 3 February 2005 and the service of the Second Notice on 12 April 2005. For this reason alone, it would be of significance for the ultimate outcome of these proceedings.

67 We cannot, however, say that we are 'comfortably satisfied' (as we must be in order to make the finding sought) that the Solicitor's conduct in this regard was clearly 'disgraceful' or 'dishonourable' as required under the Allinson test. It evidently constituted a failure, attributable to recklessness, to abide by proper professional standards. But for reasons explained above at [36], it did not leave the Law Society completely in the dark regarding his response to the allegations against him. Taking this factor into account, we are of the opinion that his failure to assist was not so serious as to amount to professional misconduct at common law.

68 For these reasons, we dismiss Ground 2 of the Information.

33In order to rebut any argument that findings of misconduct under both Grounds might constitute unfair duplication of charges, Ms Groenewegen relied on the following passage in New South Wales Bar Association v Howen [2008] NSWADT 148 at [53]:-

53 We do not consider that there is any substance in this argument. This is not a case where one count contained in the Application embraces more than one instance of professional misconduct. Rather, there are two separate counts containing separate allegations of professional misconduct. The fact that the allegations in each count are based upon the same factual circumstances is of no consequence. Indeed, it reflects a situation commonly encountered, that is, one where particular conduct is alleged to be improper for two distinct reasons.

34She maintained that the Solicitor's behaviour alleged in Ground 2 satisfied the common law criterion of professional misconduct derived from Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. It would, she said, 'be reasonably regarded as disgraceful and dishonourable' by 'professional brethren of good repute and competency'.

35In a brief submission on this matter, Mr Durston argued that since the Solicitor's problems with depression (to which we have already referred) were present when he received the Law Society's letter in June 2007, his failure to assist the investigation during the ensuing months should not be characterised as 'disgraceful' or 'dishonourable'.

36Having carefully considered this question, we have concluded this failure by the Solicitor did not amount to professional misconduct. Although the period during which he failed in this regard was considerably longer than the comparable period in Knudsen, our reasons for so concluding are along the same lines as are set out in the passage quoted above from that decision. In this connection, we draw particular attention to the point made by the Tribunal in paragraph [64], which is relevant to the 2004 Act (see section 660(1)(c)) just as much as to the Act of 1987.

37In addition, we regard two aspects of the evidence as important.

38The first is that the Law Society, after initially sending a letter to the Solicitor on 22 June 2007, appears to have taken very few steps in the ensuing period of two years to remind of his duty to furnish an adequate reply. Although the Society claimed in paragraph 2 of the Particulars to have granted him 'several extensions of time' in which to respond to the complaint, its next communication with him following the letter of 22 June 2007 occurred nearly one year later. This was its letter of 13 June 2008, in which it responded to his unsigned and (in its view) 'unintelligible' letter received earlier that month by requesting him to correct and sign his letter. According to copies of file notes annexed to Ms Foord's affidavit, an employee of the Law Society then rang the Solicitor twice (on 1 and 29 September 2008) in order to remind him of this request. On each occasion, the Solicitor said he would do as requested within two days, but failed to act accordingly. The Society appears, however, to have made no further attempt to contact him until it caused the first Notice to be served on him more than nine months later, on 15 July 2009.

39Secondly, we take account of the Solicitor's evidence, summarised below, regarding his emotional state at that time. As Mr Durston submitted, it supports his claim that his failure to assist the investigation, while undoubtedly amounting to a serious breach of his professional duties, should not be characterised as disgraceful and/or dishonourable.

40In passing, we observe that we have used the phrase 'disgraceful and/or dishonourable' in the preceding paragraph because amongst the various versions of the so-called Allinson test, two different phrases - 'disgraceful or dishonourable' and 'disgraceful and dishonourable' - may be found. The following examples illustrate this point. In Allinson itself and in the ensuing House of Lords case (Myers v Elman [1940] AC 282 at 288) applying the test to the present context of disciplinary proceedings against legal practitioners, the phrase 'disgraceful or dishonourable' was used. But in the judgment of Glass and Samuels JJA in Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 at 203, one finds the phrase 'disgraceful and dishonourable', even though their Honours referred to a number of earlier Supreme Court decisions (for example, Re Hodgekiss (1962) 62 SR (NSW) 340 at 351) where the criterion stated was 'disgraceful or dishonourable'. Among more recent cases, New South Wales Bar Association v Hamman [1999] NSWCA 404 provides (at [21]) a further instance of use of the phrase 'disgraceful and dishonourable'.

41In the present situation, we need not choose between these rival formulations. For the reasons that we have given, the relevant conduct of the Solicitor, while entirely regrettable, was neither 'disgraceful' nor 'dishonourable'.

42Finally in this context, we observe that the joining of Ground 1 with Ground 2 did not in our opinion involve duplicity such as to require that the Law Society should have been required to elect between them. In so saying, we differ, with respect, from a decision of the Tribunal requiring election in comparable circumstances: namely Law Society of New South Wales v Shalovsky [2008] NSWADT 14. We prefer the approach described in the passage from New South Wales Bar Association v Howen that Ms Groenewegen cited to us.

43For the foregoing reasons, the Law Society has not established that the conduct of the Solicitor established in relation to Ground 2 amounted to professional misconduct.

Consequential orders

44Evidence. Much of the evidence adduced by the Solicitor in these proceedings related to his emotional state during the period since the Law Society first sought his response to Ms Werakso's complaint.

45In summary, this evidence was as follows. Between 2004 and 2007, he assisted his parents-in-law in a substantial and highly stressful legal dispute with a bank, which threatened to deprive them of control over commercial properties that they owned. Although he helped them ultimately to regain control over their finances, they did not pay him the fees that, according to him, they had promised to pay. The resulting dispute with his parents-in-law placed very great strain on his relationship with his wife, in consequence of which she temporarily separated from him, taking their children with her.

46On 19 January 2009, the Solicitor consulted his general practitioner, Dr John Lenehan, who referred him to Dr Gordon Davies, a consultant psychiatrist. Dr Lenehan's letter of referral said that on account of factors including a 'major family crisis', 'money' and 'relationship harm', the Solicitor was 'seeking guidance, methods of coping with stress, how to help the wife, gain confidence in re-engaging in the relationship and how to protect the children'.

47The Solicitor did not act upon his referral by Dr Lenehan until September 2011. He was then told that a new letter of referral was required. In this new letter, dated 16 May 2012, Dr Lenehan stated that during the consultation on 19 January 2009 the Solicitor had been in a 'distressed state'. The Solicitor, he wrote, described 'financial concerns with his family, amounting to many thousands of dollars', the 'stress and animosity' caused by these concerns, 'sleep disturbance', 'negative thought patterns' and a feeling of being in 'a virtual nervous breakdown state'.

48During cross-examination, the Solicitor testified that the emotional stress and turmoil that he had described to Dr Lenehan on 19 January 2009 continued throughout that year and up to the time (February 2010) when he finally furnished to the Law Society the information and documents required in the two Notices. He stated in his affidavit, however, that these personal problems did not, and still do not, prevent him from carrying on his very busy legal practice in Wollongong and providing good service to his clients. His practice, he said, principally comprises litigation, in which he 'rarely' briefs counsel and runs trials that may last six or seven days or longer.

49Following an appointment on 16 May 2012, Dr Davies prepared a report which, as Ms Groenwegen pointed out, focused significantly on the history provided to him by the Solicitor. The opinions expressed in the report include the following: (a) the Solicitor developed 'a significant depressive illness in the face of substantial and ongoing family difficulties'; (b) this illness 'was clearly manifest' when he consulted Dr Lenehan in 2009, but had been 'present for some time prior to this'; (c) he 'continued to have problems' after seeing Dr Lenehan; (d) one of the manifestations of his illness had been 'to take an avoidant personality style so that he was unable to confront issues that were of an embarrassing nature in a timely manner'; (e) he 'had a strong tendency to rationalise his problems without actually dealing with them; (f) during the consultation, he 'completed the Depression, Anxiety and Stress Scale on which he scored in the moderate range for depression and stress and the severe range for anxiety'; and (g) that the appropriate diagnosis of his current condition was 'Moderate Depression'.

50The report by Dr Davies also recorded statements by the Solicitor to the effect that 'his main concern was dealing with his outstanding issues with the Law Society', that apart from this 'he was dealing better with his stress', but that he 'still becomes tense at times and is occasionally tearful'.

51The report concluded as follows:-

It would be my recommendation that [the Solicitor's] matter be primarily dealt with as a psychiatric illness and that he should be required to demonstrate that he has been having ongoing psychiatric treatment over the next year. I note that a public reprimand would be more likely to add to his problems rather than leading to their resolution.

52In the course of cross-examining the Solicitor, Ms Groenewegen asked him why he had failed to comply with the Tribunal's directions regarding the filing of evidence in these proceedings. In replying, he referred to the demands made on him by his practice and to difficulties caused by his wife's current ill health.

53As mentioned above at [12], the Solicitor tendered two testimonials, which were admitted into evidence.

54The testimonial provided by Mr Henniker stated that the Solicitor was endeavouring to control the scale of his workload more effectively by measures such as sending work to other legal practitioners and refraining from engaging more staff. As Ms Groenewegen pointed out, the Solicitor had adverted to this issue in his letter of 17 February 2010 to the Law Society providing the information required by the Notices. He stated there that he had made 'structural changes to his practice' to ensure that matters such as compliance with the Notices would be 'properly attended to in the future'.

55Mr Henniker stated also that the Solicitor intended, if future stressful situations arose, to contact Mr Henniker and/or other local practitioners for advice, rather than trying to solve all his problems by himself. In response to questions from a member of the Panel during the hearing, the Solicitor confirmed that this was indeed his intention, adding that he had been shocked to learn recently of the high incidence of depression among legal practitioners and that he proposed to encourage local practitioners to get together from time to time to discuss common problems.

56Mr Odgers SC stated in his testimonial that he regarded the Solicitor's failures to comply with the Notices and to assist the Law Society with its investigation as 'aberrations', because the Solicitor, in briefing him, had always been 'diligent' in the interests of clients and 'fastidious' in the preparation of briefs.

57The parties' submissions and our conclusions. One of the 'consequential orders' that the Law Society sought in the Application was that the Solicitor be 'publicly reprimanded'. The order of this nature that the Tribunal may in fact make is, however, not one of 'public' reprimand, but 'an order reprimanding the practitioner': see section 562(2)(e) of the Act. No longer are there separate categories of 'public' and 'private' reprimand, such as existed under the Legal Profession Act 1987. But under subsection (8) of section 562, 'an order reprimanding the practitioner' must be 'published' by the Tribunal together with a statement of its reasons, at least in the manner outlined in subsection (9).

58Ms Groenewegen argued that, in order to protect the public, a reprimand was required in this case. This measure was needed, she said, to make clear to legal practitioners the high importance of complying with notices served under section 660 of the Act. Its purpose would not be punitive, but protective.

59Factors emphasised by Ms Groenewegen were (a) the length of the period during which the Solicitor was in default of his obligations under the Notices, (b) the absence of any 'sense of urgency' on his part regarding compliance with them and (c) the extent to which his conduct delayed the Law Society's investigation of the complaint that had been made against him.

60In arguing that there should be no reprimand, Mr Durston relied on the following matters: (a) the absence of any suggestion that the Solicitor had displayed a lack of integrity or had tried to conceal his wrongdoing; (b) the role played by factors outside his control - such as the refusal of his parents-in-law to pay his fees - in giving rise to the state of depression from which he suffered at the time when he should have complied with the Notices; (c) the fact that ultimately he did comply with them; (d) his regret at having failed to comply; (e) the contents of the two testimonials in his favour; and (e) the opinions expressed by Dr Davies that (i) he suffered from an inability to 'confront issues that were of an embarrassing nature in a timely manner' and (ii) 'a public reprimand would be more likely to add to his problems rather than leading to their resolution'.

61In response to a question from the Bench, counsel for the parties indicated that they were not aware of any disciplinary decisions in New South Wales in which a legal practitioner who had committed professional misconduct through failing to comply with a notice under section 660 or its predecessor had been permitted to remain in legal practice and had not been subjected to a reprimand. Our own research has not disclosed any such decision. It suggests strongly that these circumstances have generally been held to call for a reprimand, either as the sole order by way of penalty or alongside other such orders.

62We believe that the particular features of this case do not warrant departure from what appears to be the normal approach. Although no dishonesty or lack of integrity was involved in this case and the Solicitor's depressive state must be taken to have strongly influenced his behaviour, this behaviour, as Ms Groenewegen emphasised, caused significant delay to the Law Society's investigation. There were indeed two statutory Notices with which he failed to comply, resulting in two separate instances of misconduct.

63In addition, although we have not made a finding of professional misconduct with respect to the Society's allegation of failure to assist this investigation (Ground 2), we regard as relevant in the present context some of the evidence relating to that allegation. In our opinion, the fact that more than two years before the date of service of the first Notice the Law Society advised the Solicitor that it required information regarding Ms Werakso's complaint renders more serious his non-compliance with the two Notices. It is not as if the Solicitor was served with a notice under section 660 barely a few days or weeks after being advised of the complaint and of the Law Society's decision to investigate it. We take this matter into account even though (as we pointed out above at [38]) the Society, after writing to the Solicitor in June 2007, did not press its inquiries to any significant extent until it issued the first Notice.

64These factors, in our judgment, outweigh the consideration that, in the opinion of Dr Davies, a reprimand might hinder the Solicitor's progress in overcoming his depression. We could not properly regard an opinion of this nature as overriding all other factors that we must take into account.

65The parties were in agreement that a fine should be imposed, pursuant to section 562(4)(a) of the Act. Ms Groenewegen suggested that an amount between $2,000 and $4,000 would be appropriate. Mr Durston did not oppose this suggestion.

66In recent discussions of this question (see for example Council of the Law Society of New South Wales v Tsalidis (No 2) [2010] NSWADT 297 at [44 - 45]; Council of the Law Society of New South Wales v Carbone [2011] NSWADT 32 at [73 -74]), it has been pointed that in Tribunal decisions during the last 12 years or thereabouts the amounts of fines imposed for failure to comply with statutory notices under section 660 or its predecessor have ranged between $1,000 and $8,000. In some of these decisions, including Tsalidis, other forms of professional misconduct or unsatisfactory professional conduct have been involved.

67In Tsalidis at [46], the Tribunal said, with reference to six previous Tribunal decisions that it listed at [44]:-

46 More importantly, these decisions assisted the Tribunal in its consideration of the factors that should be taken into account in fixing the fine in this instance. The matters that appeared to the Tribunal to be relevant, were the following:

(i) whether the Notice been answered at the time of the hearing ;

(ii) whether the practitioner had given an explanation for the failure to comply;

(iii) the practitioner's financial circumstances; and

(iv) whether this was a first offence.

68In the present case, we have no evidence as to the third of these matters. The evidence on the first two is in favour of the Solicitor. As to the fourth, only the Solicitor's failure to comply with the First Notice could be described as a 'first offence'.

69In our opinion, a fine of $3,000 is appropriate to this case.

70The making of a further order, under section 562(4)(h) of the Act, was the subject of a joint proposal by the parties. The principal reason for the proposal, as explained to us by both counsel, is that the Solicitor has shown himself to be reluctant to obtain specialist assistance in dealing with his depressive state. This was demonstrated in particular by his failure for about 32 months to act on Dr Lenehan's referral of him to Dr Davies. Both counsel submitted that if in the future the Solicitor is to withstand the pressures of legal practice, including the pressures as would arise if he were again required to co-operate in any inquiry such as the Law Society undertook in this case, he must make reasonable endeavours to dispel, or at least reduce, the severity of the moderate depression from which he suffers.

71We agree with this proposal. Our consequential orders include an order incorporating (with minor amendments) terms that counsel handed up at the hearing.

72Mr Durston did not oppose the Law Society's claim for costs. He acknowledged that there were no 'exceptional circumstances' warranting departure from the principle stated in section 566(1) of the Act.

Our orders

73We order as follows:-