Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Council of the Law Society of NSW v Ekes [2012] NSWADT 266
• Hearing dates: 28 November 2012
• Decision date: 28 November 2012
• Jurisdiction: Legal Services Division
• Before: J Pheils, Judicial Member; M Riordan, Judicial Member; S Hayes, Non-Judicial Member

Decision

1. The respondent is guilty of professional misconduct.

2.The respondent is reprimanded.

3.The respondent is fine to the sum of $3000 within 6 of the date of this decision.

4.The respondent is to pay the applicant's costs, as agreed or assessed.

• Catchwords: Solicitor - disciplinary proceedings - failure to comply with statutory notices requiring information and documents - failure to assist investigations - instrument of consent
• Legislation Cited: Legal Profession Act 2004
• Cases Cited: Council of the Law Society of NSW v Tsalidis (No 3) [2012] NSW ADT 229
• Category: Principal judgment
• Parties: Council of the Law Society of New South Wales (Applicant); Hector Ekes (Respondent)
• Representation: Council of the Law Society of NSW (Applicant); Avondale Lawyers (Respondent)
• File Number(s): 102002 of 2012

REASONS FOR DECISION

1 On 29 January 2010 the Council of the Law Society of New South Wales ("the Law Society") filed an Application alleging that the Respondent, Hector Ekes was guilty of professional misconduct on two grounds namely that without reasonable excuse he failed to comply with a requirement under section 660 of the Legal Profession Act, 2004 ("the Act") and he failed to assist the investigator in the investigation of a complaint.

2 The orders sought on the Application were that the solicitor should be reprimanded, fined, his practising certificate be suspended and no further practising certificate be issued until he provided a response to the Notice issued on 29 July 2009 pursuant to section 660 of the Legal Profession Act and costs.

3 On 29 January 2010 the Law Society filed an affidavit of Raymond John Collins dated 21 January 2010 (exhibit 1), which documents the circumstances in which the Law Society came to be aware of the matters that are alleged in the Application, the Law Society's investigation of the complaint and the Council of the Law Society's Resolution to commence the proceedings in the Tribunal. He deposed that the Law Society's records indicate that the Respondent was admitted to practice in New South Wales on 6 April 2001.

4 A further affidavit of Raymond John Collins was filed on 7 May 2010, which relates to the appointment of Mr Knox Sinclair as an authorised investigator pursuant to the Act (exhibit 2).

5 On 3 September 2012 the Respondent filed a Reply, in which he essentially admitted the matters alleged in the Application. However, he stated that he was unable to respond to the section 660 notice within the time stipulated because he was medically unable to do so.

6 The Respondent swore an affidavit on 3 September 2012 (exhibit A), to which he annexed a medico-legal report from Chris Probert, registered psychologist, dated 27 July 2012 (annexure B). He relied upon this report as providing an explanation for his failure to respond to the notice.

7 On 20 November 2012 an Instrument of Consent executed on behalf of the Law Society, the Solicitor and the Legal Services Commissioner, was filed with the Tribunal. At the hearing on 28 November 2012, Ms Muston appeared for the Legal Services Commissioner by way of a right of intervention conferred by section 559(1)(c) of the Act and the Legal Services Commissioner was joined as a party pursuant to section 559(5).

8 The Instrument of Consent evidenced that the parties consented to the Tribunal making a finding that the conduct of the Solicitor as described in the Agreed Statement of Facts amounted to professional misconduct and they also consented to the following orders:

(1) That the Respondent be reprimanded.

(2) That the Respondent be fined (although they did not agree on the amount of the fine).

(3) That the Respondent pay the applicant's costs.

9 The parties submitted that both the finding of professional misconduct and the proposed orders were appropriate in the circumstances.

The Agreed Statement of Facts

10 The Instrument of Consent set out the following agreed facts:

"In respect of the following grounds of complaint HECTOR EKES ["the Solicitor"] engaged in professional misconduct as set out in the following allegations:

Professional Misconduct

1. The Australian Lawyer, without reasonable excuse, failed to comply with a requirement under Section 660 of the Legal Profession Act, 2004.

2. The Australian Lawyer failed to assist the Investigator in the investigation of a complaint.

Particulars of Grounds of Complaint

In these Particulars:

"the Solicitor" means Hector Ekes.

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

"the Act" means the Legal Profession Act, 2004.

1. On 29 November 2007 a complaint, in part against the Solicitor, was lodged with the Legal Services Commissioner.

2. By letter dated 3 December 2007 the Commissioner referred the complaint to the Society for investigation.

3. Under cover of the Society's letter of 20 December 2007 the complaint was referred to the Solicitor. The letter requested the Solicitor's response by 28 January 2008.

4. Under cover of the Society's letter of 21 February 2008 the Solicitor, in part, was reminded that he had not responded to the Society's letter of 20 December 2007 and requested to ensure that his response was received by 17 March 2008.

5. On 12 March 2008 Mr Greg Walsh, Solicitor, advised that he had received instructions from the Solicitor. A response was to be received by 7 April 2008. No response was received by this last date.

6. On 24 June 2008 the Solicitor advised the Society that Mr Walsh had been seen in conference the previous week and that a reply to the complaint was to be forwarded by Mr Walsh.

7. By letter dated 3 July 2008 Mr Walsh was informed of the Solicitor's advices and that no correspondence had been received in response to the complaint. Mr Walsh was, in part, advised that:

"[S]hould I fail to receive your client's full and frank response to the complaint by 14 July 2008, I propose without further notice to arrange a Notice pursuant to Section 660 of the Legal Profession Act, 2004 to be personally served on him."

8. By letter dated 10 July 2008 Mr Walsh advised that he had been provided with further instructions and would, in effect, attempt to have a response to the Society by 14 July 2008.

9. Under cover of the Society's letter of 8 August 2008 Mr Walsh was, in part, advised that absent receipt of the Solicitor's response to the complaint by 25 August 2008 a Notice pursuant to section 660 of the Act would, without further notice, be served on the Solicitor.

10. By letter dated 7 August 2008 [received 13 August 2008] Mr Walsh forwarded the Solicitor's response to the complaint.

11. By letter dated 25 August 2008 Mr Walsh informed the Society that the delay in providing the Solicitor's response to the complaint had been occasioned by Mr Walsh awaiting receipt of the Solicitor's specific instructions.

12. By letter dated 23 December 2007 (sic) from the Society to Mr Walsh, further information was requested from the Solicitor. The Solicitor was requested to provide the information by 9 February 2009.

13. By letter dated 16 February 2009 Mr Walsh, in part, advised that he assumed that he was no longer instructed by the Solicitor.

14. Under cover of the Society's letter of 19 February 2009 the Solicitor was advised of Mr Walsh's advices and that:

Absent receipt of the information requested in my enclosed letter to Mr Walsh by 16 March 2009, I propose without further notice to formally serve you with a Notice pursuant to Section 660 of the Legal Profession Act, 2004 ("the Act").

No response was received from the Solicitor.

15. Under cover of the Society's letter dated 29 July 2009 a Notice pursuant to Section 660 of the Act and dated 29 July 2009 was issued to the Solicitor ["the Notice"]. The Notice required the Solicitor to comply with same by or within 28 days of service of the Notice that is, by 2 September 2009.

16. The Notice was served on the Solicitor on 4 August 2009.

17. The Solicitor did not respond to the Notice within the time stipulated therein.

18. On 17 September 2009 the Professional Conduct Committee of the Society resolved to make complaints against the Solicitor in the following terms:

1. The Australian Lawyer, without reasonable excuse, failed to comply with a requirement under Section 660 of the Legal Profession Act, 2004.

2. The Australian Lawyer has failed to assist the Law Society with the investigation of a complaint.

By letter of that day, the Solicitor was informed of the above complaints and requested to respond thereto.

19. On 13 October 2009 the Solicitor spoke by telephone to Mr Knox Sinclair of the Society and, in part, sought an extension of time in which to respond to the Notice. No extension was granted although the Solicitor did indicate that a response would be forthcoming within the next fourteen (14) days.

20. By letter dated 26 October 2009 the Solicitor indicated, in part, that he would require further time in which to respond.

21. On 16 November 2009 the Professional Conduct Committee resolved to inform the Solicitor that, subject to any submissions by him, it was satisfied that there was a reasonable likelihood that the Tribunal would find him guilty of professional misconduct in respect of the complaints made on 17 September 2009. By letter dated 16 November 2009 the Solicitor was informed of the Committee's preliminary view.

There was no response from the Solicitor to the Society's letter of 16 November 2009.

22. On 17 December 2009 the Committee resolved to refer to the Tribunal for hearing the complaints made on 17 September 2009. By letter of the same date, the Solicitor was informed of the Committee's resolution.

23. The Solicitor provided his response to the Section 660 Notice by Statutory Declaration dated 30 July 2012."

Instrument of Consent

11 Section 564(1) of the Act provides that after disciplinary proceedings against the practitioner have been commenced an Instrument of Consent may be filed in the Tribunal and that the Tribunal may, with the consent of the respondent, make orders under Part 4 of the Act without conducting or completing a hearing in relation to the complaint.

12 Section 564 (10) provides:

(10) In deciding whether to make orders under this part pursuant to an instrument of consent, the tribunal may make such enquiries of the parties as it thinks fit and may, despite any such consent, conduct or completing hearing in relation to the complaint if it considers it to be in the public interest to do so.

13 The decision of Council for New South Wales Bar Association v

Butland [2009] NSWADT 177 (at [29 - 30] , [33 ] and [35]) provides guidance as to the matters to be taken into account in deciding whether to make consent orders proposed in an Instrument of Consent filed under Section 564 of the Act. The Tribunal must be satisfied that the proposed order(s) are appropriate in the circumstances of the case and in answering this question it should not reject the proposed consent orders simply because it would have been inclined to make some other order or orders.

Decision

14 The Tribunal has reviewed the evidence that has been tendered and admitted and we find that it substantiates the matters set out in the Agreed Statement of Facts. There is clear evidence that the Respondent failed to comply with the Section 660 Notice and professional misconduct is established in relation to this ground of the Application.

15 In relation to ground 2 of the Application, that of failing to assist the investigator in the investigation of the complaint, the Tribunal has considered the recent decision of the Council of the Law Society of NSW v Tsalidis (No 3) [2012] NSWADT 229 as to the factors to be considered in determining whether the Respondent is also guilty of professional misconduct at common law. In paragraph 24 of that decision, the Tribunal held that the following matters were relevant to the determination of this issue:

(a) The length of time during which the respondent practitioner failed to comply with directions or requests to assist the investigation, including but not limited to, the statutory notice issued by the investigator;

(b) Whether for any significant period or periods of time the investigator appeared not to be pursuing the investigation;

(c) The number of occasions on which such directions or requests were addressed to the practitioner without generating any response;

(d) The number of occasions, if any on which the practitioner having promised that assistance would be forthcoming, failed to abide by this promise;

(e) Whether the practitioner ever complied in part with a direction or request to assist the investigation and, if so, the extent to which he or she actually provided assistance;

(f) The importance of the response from the practitioner for the progress of the investigation; and

(g) Whether any mitigating factor falling short of "a reasonable excuse" under section 676 (4) of the act - an example might be a depressive illness - was present.

16 In the current matter, the Complaint was made on 24 November 2007 and the Solicitor was required to provide a response by 28 January 2008. However, he did not provide any response.

17 After the Law Society issued a further request for a response to the Respondent, it received a communication from Greg Walsh, Solicitor, on behalf of the Respondent. Following the exchange of correspondence between Mr Walsh and the Law Society, the Respondent provided an initial response to the complaint on 7 August 2008, approximately six months after the date of the initial request.

18 In a further letter to the Law Society dated 25 August 2008, Mr Walsh apologised for "the delay" and stated that he "...was awaiting Mr Ekes' specific instructions before forwarding of same."

19 The Law Society requested that further information be provided by the Respondent by 9 February 2009 by way of a letter sent care of Mr Walsh. However, on 16 February 2009 Mr Walsh wrote to the Law Society advising that he was no longer instructed by the Solicitor. It then wrote directly to the Respondent requesting that he provide further information by 16 March 2009. He failed to respond to this request.

20 The section 660 Notice was served on the Respondent. This was followed by further communications between the Respondent and the Law Society in October 2009, in which he stated that he required further time to respond to the notice. Ultimately, in December 2009 the Council of the Law Society resolved to refer the Complaint to the Tribunal for determination.

21 The Respondent did not comply with the section 660 Notice until July 2012, approximately 3 years and 4 months after the notice was served upon him, which is a significant period of time in which he failed to assist the Law Society in the investigation of the complaint. On a number of occasions he failed to provide any response to correspondence. On another occasion, he indicated to the Law Society that assistance would be forthcoming, but failed to provide any assistance.

22 As to whether there was any mitigating factor falling short of a "reasonable excuse", the Respondent relies on Mr Probets' medico-legal report dated 27 July 2012. We note that no evidence from any treating doctor has been tendered on behalf of the Respondent and that the opinions expressed in the report are wholly dependent upon the history that the Respondent provided regarding events that occurred in his life from about 2003 until the date of the report.

23 In our view, Mr Probets' report does not discharge the Respondent's onus of proving that there is a causal nexus between the multiple personal stressors described in the report and his failure to assist the Law Society in in the investigation of the complaint. After careful consideration of these matters and the evidence as a whole, we are comfortably satisfied that the Consent Orders proposed in the Instrument of Consent are appropriate in the circumstances.

Orders

24 Our orders are as follows: -

1) The respondent is guilty of professional misconduct.

2) The respondent is reprimanded.

3)The respondent is fine to the sum of $3000 within 6 of the date of this decision.

4) The respondent is to pay the applicant's costs, as agreed or assessed

**********

Decision last updated: 14 December 2012