Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Council of the Law Society of NSW v Pu [2012] NSWADT 168
• Hearing dates: 11 May 2012
• Decision date: 11 May 2012
• Jurisdiction: Legal Services Division
• Before: J Currie, Judicial Member; M Riordan, Judicial Member; R Fitzgerald, Non-Judicial Member

Decision

1. The Respondent is guilty of professional misconduct.

2. The Respondent is reprimanded.

3. The Respondent is to pay a fine of $2,500 to be fully paid within 12 months of the day of the hearing by such instalments as are agreed to by the Applicant.

4. No practising certificate is to be issued to the Respondent until such time as he produces evidence to the satisfaction of the Law Society that he has satisfactorily completed a course in legal ethics which has been approved by the Law Society.

5. The Respondent pay the costs of the Applicant as agreed or assessed.

• Catchwords: Disciplinary proceedings - concocting of false letterhead by person not holding current practising certificate; representation or advertisement that the person was entitled to engage in legal practice.
• Legislation Cited: Legal Profession Act 2004; sections 14, 15, 660
• Category: Principal judgment
• Parties: Council of the Law Society of New South Wales (Applicant); Stephen Xuan Pu (Respondent)
• Representation: Council of the Law Society of NSW (Applicant); S Pu (Respondent in person)
• File Number(s): 102036

REASONS FOR JUDGMENT

Introduction

1 This case involved a claim that the Respondent was guilty of professional misconduct.

2 It is asserted by the Applicant, the Council of the Law Society of New South Wales that the Respondent concocted a false copy of a solicitor's letterhead and in producing, typing signing and causing a letter on that letterhead to be delivered to a person who was in commercial dispute with a relative of his, he contravened sections 14 and 15 of the Legal Profession Act, 2004 ("the Act")

3 The breaches alleged are that the Respondent engaged in legal practice when he was not an Australian legal practitioner within the meaning of the Act, contrary to subsection 14(1), and that he represented or advertised entitlement to engage in legal practice when he was not an Australian legal practitioner within the meaning of the Act, contrary to sub-section 15(1) of the Act.

Representation

4 At the hearing the Applicant was represented by Mr Louis Pierotti, Solicitor and the Respondent appeared in person.

The Application and the Particulars of Professional Misconduct

5 By its Application filed on 22December 2010 the Council of the Law Society alleged that the professional misconduct of the Respondent was constituted by:

(i) his engaging in legal practice when not an Australian legal practitioner, in breach of s 14(1) of the Act;

(ii) his representing or advertising entitlement to engage in legal practice when not an Australian legal practitioner, in breach of s15(1) of the Act; and

(iii) his action in creating a false letterhead.

6 Section 6 of the Act provides that for the purposes of the Act:

"(a) an Australian legal practitioner is an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate..."

The Application sets out Particulars of the professional misconduct.

7 The Particulars state that the Respondent was admitted on 17 February 2006 and continued to hold a Practising Certificate from 24 February 2006 until 30 June 2006 during which time he practised as an employed solicitor. The Respondent did not renew his practising certificate on 1 July 2006 but renewed it on 24 October 2006. He apparently held a practising certificate until 30 June 2008 but not after that date.

8 The Applicant says that in about March 2008 the Respondent reached an agreement with a solicitors' practice located in Clarence Street Sydney ("the Practice") whereby in order to gain training and practical experience in the practice of the law the Respondent would attend the Practice's office on daily basis. It was understood to be a strict requirement that he attend daily. He was not employed by the Practice as a solicitor.

9 The Particulars specify the alleged acts by the Respondent in relation to the letting of his aunt's premises at Mascot ("the Premises") and in particular a dispute which had arisen by the end of October 2008 between the aunt and her tenant. It will be recalled that at this time the Respondent was not admitted as a legal practitioner, having failed to renew his practising certificate on and from 1 July 2008.

10 It is alleged that a letter of demand dated 31 October 2008 ("the Letter") was sent to the tenant and that it purported to be a letter from the Practice.

11 It is alleged that in fact the Practice never acted for the aunt or in relation to the Premises and that the Letter was drafted by the Respondent, typed on a letterhead which was concocted by the Respondent but which purported to be the letterhead of the Practice, signed by the Respondent, and caused to be delivered to the tenant by the Respondent.

The Applicant's evidence

12 The Applicant's evidence consisted of an affidavit by Anne-Marie Foord sworn on 22 December 2010. Ms Foord is the Solicitor for the Council of the Law Society of New South Wales. Her affidavit annexes the course of correspondence between the Law Society and the Practice as well as a notice issued under section 660 of the Act ("the Section 660 Notice") dated 18 February 2009 directed to the Respondent which was apparently received by the Respondent on that day. The Section 660 Notice seeks verified information from the Respondent concerning the Society's allegations as summarised in the Particulars. Ms Foord's affidavit also annexes a statutory declaration made by the Respondent on 4 March 2009, apparently in response to the Section 660 Notice. Her affidavit also annexes a copy of the Letter.

13 At the hearing there was no objection by the Respondent to the tendering of Ms Foord's affidavit or to any of its annexures. The affidavit is accepted by the Tribunal as constituting credible and reliable evidence.

The Respondent's admissions and concessions

14 In his statutory declaration of 4 March 2009 the Respondent deposes as follows:

"1. I drafted (the Letter).

2. I produced the letterhead.

3. I typed (the Letter).

4. I signed (the Letter).

5. I caused the letter to be delivered to (the tenant of the Premises) by handing it to my aunt..., who to the best of my knowledge and belief, passed it onto (the tenant).

6. I did not receive any financial or other reward from any person for having undertaken the above acts."

15 The Tribunal accepts the Statutory Declaration as a frank admission of the relevant facts relating to the Letter and notes that this was made within approximately two weeks of the Respondent receiving the Section 660 Notice.

16 At the hearing the Respondent confirmed these admissions and clarified that his accepted and admitted all the allegations of fact made in the Applicant's Particulars.

17 In answer to questions from Tribunal Members, the Respondent said that in producing the false letterhead of the Practice, writing the Letter and producing it on that false letterhead he did "not think". He apologised for his actions and accepted that they had been dishonest and deceptive. He told the Tribunal that he wished to do an ethics course and have whatever other education or training the Tribunal might order so that he could return to the profession.

Did the Respondent's actions amount to professional misconduct?

18 In his address to the Tribunal, Mr Pierotti for the Applicant described what the Respondent had done as involving a breach of the rudimentary obligation which a practitioner owes to his or her clients and to the profession. That is, essentially, an obligation not to deceive any client or any opponent and, by logical extension, not to deceive the client of another lawyer or a third party.

19 As indicated in paragraph 18 above, the Respondent conceded that his actions had been dishonest and deceptive.

20 Mr Pierotti maintained that the Solicitor's behaviour the subject of these proceedings satisfied the common law criterion of professional misconduct derived from Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 in that it would 'be reasonably regarded as disgraceful and dishonourable' by 'professional brethren of good repute and competency'. No submissions on this issue were made by the Respondent.

21 The Tribunal considers it to be beyond question that the conduct of the Respondent described in the Particulars and admitted to by him amounts to professional misconduct at common law. Those actions, amounting as they did to a considered plan of deception in concocting the letterhead, holding out that he was entitled to use it as a representative of the Practice and using the Letter to attempt to obtain a particular legal result favourable to his relative, would clearly be regarded as 'disgraceful' and 'dishonourable' by reputable members of the legal profession. The disgraceful and dishonourable nature of the Respondent's acts is accentuated by the fact that they were undertaken at a time when the Respondent did not hold a current practising certificate.

What orders should be made by this Tribunal?

22 Mr Pierotti contended that this was not a case of a person having demonstrated that he was clearly unfit to practice the law. He characterised it as a case of lack of understanding and experience by the Respondent and conceded that there was no evidence to suggest that the actions of the Respondent which are the subject of the proceedings were other than, to use Mr Pierotti's phrase, a "one-off event". The Tribunal adopts that analysis of what has happened.

23 The Tribunal noted that the Respondent had made a full confession of what he had done in his statutory declaration of 4 March 2009 and noted that the Respondent expressed contrition at the hearing and had apparently done so at an earlier stage. The Tribunal was impressed with the Respondent's remorse and his candour at the hearing. The Tribunal believed him when he stated that he realised that he had departed significantly from the standard of behaviour expected of members of the profession, that he wanted to undertake courses to ensure he fully understood his obligations and that subject to that he wanted to re-join the profession as soon as possible.

24 The Tribunal was satisfied on this basis that this was not a matter in which an order for the removal of the Respondent from the Roll would be appropriate.

25 However Mr Pierotti contended, and the Tribunal agreed that the Respondent's actions did need to be marked out both to the profession and to members of the public as completely unacceptable. Mr Pierotti believed that a substantial fine would be justified in addition to a reprimand.

26 Following discussion with the Respondent in which he outlined to the Tribunal's satisfaction his current difficulties in paying a substantial fine in addition to the Applicant's costs, the Tribunal determined that a fine of $2,500 payable over one year was appropriate, in addition to a reprimand a costs order and an order delaying the issuing of a practising certificate to the Respondent until he had satisfactorily completed an approved course.

Orders

27 The Tribunal accordingly was satisfied that it should order as follows:

1.The Respondent be reprimanded.

2. The Respondent pay a fine of $2,500 to be fully paid within 12 months of the day of the hearing by such instalments as are agreed to by the Applicant.

3. No practising certificate be issued to the Respondent until such time as he produces evidence to the satisfaction of the Law Society that he has satisfactorily completed a course in legal ethics which has been approved by the Law Society.

4. The Respondent pay the costs of the Applicant as agreed or assessed.

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Decision last updated: 15 August 2012