Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Legal Services Commissioner v Angelovski [2013] NSWADT 93
• Hearing dates: 5 February 2013
• Decision date: 02 May 2013
• Jurisdiction: Legal Services Division
• Before: M Chesterman, Deputy President; J Pheils, Judicial Member; C Bennett, Non-judicial Member

Decision

1. The Respondent is guilty of professional misconduct in relation to Grounds 3, 6, 7, 8 and 9 (considered in conjunction), 10 and 11 of the Application.

2. The Respondent is guilty of unsatisfactory professional conduct in relation to Grounds 1, 2, 4, 5, 12 (except as alleged in Particulars 12.2 and 12.5), 13 and 14 of the Application.

3. The Respondent is reprimanded.

4. The Respondent's right to practise is restricted until 26 March 2017 to that of an employee of a solicitor holding an unrestricted practising certificate.

5. The Respondent is to attend personally and complete, to the satisfaction of the Applicant, the following Courses:

(A) By 28 March 2014, the following Law Cover Principals' Risk Management Workshops:

(a) Client Engagement Management;

(b) Legal Issues and Practice Management; and

(c) Communications and Practice Style; and

(B) No earlier than 26 March 2015, but before 26 March 2017, the following Lawcover Principals' Risk Management Supplementary Workshops:

(a) Supplementary Module 1:Practice Management Risk; and

(b) Supplementary Module 2: Financial Management and Risk.

6. If on 26 March 2017 the Respondent has not personally attended and completed, to the satisfaction of the Applicant, the courses listed in Order 5, the Respondent's right to practise will continue to be restricted to that of an employee of a solicitor holding an unrestricted practising certificate until such time as those courses are personally attended and completed to the satisfaction of the Applicant or until further order of the Tribunal.

7. Any unrestricted practising certificate issued to the Respondent on or after 26 March 2017, permitting him to practise during any period ending on or before 30 June 2019, is to be subject to a condition that, in the event of any complaint against him being referred to him, he will, within two (2) weeks of its receipt by him, seek the advice and assistance of a member of the Senior Solicitors' Scheme, or its equivalent at the time, with respect to the complaint.

8. The Respondent is to pay the Applicant's costs of the proceedings as agreed or assessed.

9. (a) The proceedings are set down for further directions at 9.30 a.m. on Wednesday 5 June 2013, relating to the claims for compensation made by the four Complainants listed in the Application.

(b) The Applicant is to notify each of these Complainants of the date and time of this directions hearing.

• Catchwords: Solicitor - disciplinary application -instrument of consent - failure to attend court - misleading clients - misleading Legal Services Commissioner - negligent failure to carry out clients' instructions - gross delay in carrying out clients' instructions - failure to comply with undertakings to Legal Services Commissioner
• Legislation Cited: Legal Profession Act 2004
• Cases Cited: Council of the Law Society of New South Wales v Leslie [2013] NSWADT 81; Council of the Law Society of New South Wales v Vaughan [2011] NSWADT 118; Council of the New South Wales Bar Association v Butland [2009] NSWADT 177; Legal Services Commissioner v Tsalidis [2012] NSWADT 160
• Category: Principal judgment
• Parties: Legal Services Commissioner (Applicant); Lupco Vanchov Angelovksi (Respondent)
• Representation: C Webster SC (Applicant); G Thomas (Respondent); L Muston (Applicant); Eakin McCaffery Cox (Respondent)
• File Number(s): 112036

reasons for decision

Introduction

1 On 21 December 2011, the Legal Services Commissioner ('the Commissioner') filed an Application ('the Application') alleging that the Respondent solicitor, Lupco Vanchov Angelovski ('the Solicitor'), was guilty of professional misconduct on nine grounds and guilty of unsatisfactory professional conduct on a further six grounds.

2 The Application also alleged as follows: (a) 'when considered cumulatively as a course of conduct', these six grounds warranted a finding of professional misconduct; and (b) in the alternative, all fifteen grounds, 'when considered cumulatively as a course of conduct', warranted a finding of professional misconduct.

3 The Commissioner sought an order that the Solicitor's name be removed from the Roll or, in the alternative, that one or more of a number of lesser orders by way of 'penalty' be made under section 562 of the Legal Profession Act 2004 ('the Act'). The Commissioner also sought an order that the Solicitor pay the Commissioner's costs. It was noted in the Application that four complainants, who were former clients of the Solicitor, claimed compensation from him.

4 The Solicitor filed a Reply on 2 April 2012 and an Amended Reply on 27 April 2012. The Amended Reply contained admissions by him of eleven of the fifteen grounds (accompanied in some instances by assertions designed to explain or mitigate his conduct), a partial admission of one ground and denials of the remaining three grounds.

5 At the hearing of the Application on 5 February 2013, Ms Webster SC appeared for the Commissioner and Mr Thomas of counsel for the Solicitor.

6 At the commencement of the hearing, Ms Webster indicated that the parties had reached agreement as to the findings and orders that they would seek from the Tribunal. She tendered an Instrument of Consent made pursuant to section 564 of the Act. She also tendered an affidavit sworn on 21 December 2011 by the Commissioner, together with a substantial quantity of exhibited material.

7 The evidence on which the Solicitor chiefly relied comprised two affidavits, sworn by him on 26 April 2012 and 24 January 2013 respectively, and an affidavit sworn by Elias Tabchouri, his current employer, on 24 January 2013. The first of these affidavits of the Solicitor was his principal affidavit. He and Mr Tabchouri gave evidence in chief and answered a few questions from the Bench.

The Instrument of Consent

8 The Instrument of Consent differed from the Application in four respects. First, the number of grounds was reduced from fifteen to fourteen. Secondly, the Instrument alleged professional misconduct on three grounds only, and unsatisfactory professional conduct on the remaining eleven grounds. Thirdly, it did not seek any finding of professional misconduct based on the cumulative effect of a multiple instances of unsatisfactory professional conduct. Fourthly, the orders sought by consent under section 562 of the Act did not include removal of the Solicitor's name from the Roll.

9 These orders were as follows:-

1. The Respondent is guilty of professional misconduct in relation to Grounds 3, 11 and 12.

2. The Respondent is guilty of unsatisfactory professional conduct in relation to Grounds 1, 2, 4 -10, 13 and 14.

3. The Respondent's right to practise is restricted to that of an employee of a solicitor holding an unrestricted practising certificate until 26 March 2017, pending his personal attendance and completion, to the satisfaction of the Commissioner, of the following Courses:

A) By 28 March 2014, the following Law Cover Principals' Risk Management Workshops:

a) Client Engagement Management;

b) Legal Issues and Practice Management; and

c) Communications and Practice Style.

B) No earlier than 26 March 2015, but before 26 March 2017, the following Lawcover Principals' Risk Management Supplementary Workshops:

a) Supplementary Module 1:Practice Management Risk; and

b) Supplementary Module 2: Financial Management and Risk.

4. In default of the personal attendance and completion to the satisfaction of the Commissioner of the courses in accordance with Order 3, the Respondent's right to practise continues to be restricted to that of an employee of a solicitor holding an unrestricted practising certificate until such time as those courses are personally attended and completed to the satisfaction of the Commissioner or further order of the Tribunal.

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

10 The main section of the Instrument of Consent, headed 'Statement of Agreed Facts (Grounds and Particulars)', was in the following terms:-

[THE MATTER OF PASCAL DIONNET]

GROUND 1

The Solicitor failed to attend court to instruct counsel at a trial when instructed by his client to do so and when in receipt of a grant of Legal Aid to so attend.

Particular 1.1

In the matter of R -v- Pascal Dionnet.

Particular 1.2

Before Judge Berman SC in the District Court of NSW at Sydney.

Particular 1.3

The Solicitor was instructed to act for Pascal Dionnet at his trial, briefing counsel, and was in receipt of a grant of Legal Aid to so act.

Particular 1.4

The Solicitor failed to attend court to instruct counsel on 23 April 2007, 24 April 2007, 26 April 2007, 27 April 2007, 30 April 2007, 1 May 2007 and 2 May 2007.

GROUND 2

By his failure to attend court to instruct counsel when instructed by his client to do so and when in receipt of a grant of Legal Aid to so attend, the Solicitor failed to act in accordance with Legal Aid "Practice Standards in Indictable Criminal Matters Assigned to Private Legal Practitioners by the Legal Aid Commission" (the Practice Standards).

Particular 2.1

The Particulars to Ground 1 are repeated.

Particular 2.2

By grant of aid dated 5 September 2006 the Solicitor, by accepting the assignment in the matter of R -v- Pascal Dionnet, agreed "to be bound by the Practice Standards in Assigned Indictable Matters formulated by the Commission in consultation with the Law Society of New South Wales".

Particular 2.3

The Solicitor accepted the assignment.

Particular 2.4

The Practice Standards establish:

2.4.1 Unless excused by counsel, the nominated solicitor must be in attendance at all conferences and court proceedings ...

2.4.2 If, for any reason, a nominated solicitor is no longer available to represent the client, the client and the Legal Aid Commission must be informed immediately...

2.4.3 A solicitor must take proper notes during conferences and court proceedings. During court proceedings the solicitor should record exhibits so that those exhibits can be easily identified, when required by counsel. Notes should be retained in legible form and be made available to counsel upon request...

2.4.4 Briefs and instructions from solicitors to counsel or "in-house" advocates employed by the LegalAid Commission should be in writing...

Particular 2.5

The Solicitor:

2.5.1 Did not attend at all conferences and court proceedings and was not excused by counsel from so doing.

2.5.2 Did not inform his client or the Legal Aid Commission that he was not availabIe to represent the client.

2.5.3 Did not take proper notes and did not record exhibits.

2.5.4 Did not brief counsel in writing.

GROUND 3

By letter dated 23 November 2007, the respondent misled the Office of the Legal Services Commissioner by his reckless disregard to ensure that his letter provided accurate comments in response to complaints made about him.

Particular 3.1

In correspondence with the Office of the Legal Services Commissioner ("OLSC") in relation to complaints made by the Grants Division of Legal Aid NSW and by Mr Pascal Dionnet with respect to the matter of R -v- Pascal Dionnet the Solicitor made misleading statements.

Particular 3.2

In his letter dated 23 November 2007 to the OLSC the Solicitor stated "I appeared many times" when the Court record shows that the Solicitor appeared on two (2) occasions only, being I5 December and 26 May 2006, from a total of thirteen (13) mentions before the Court between 28 April 2006 and 13 April 2007, before the commencement of the trial, and six (6) mentions of the proceedings on sentence, between 22 June 2007 and 1 February 2008. Mr Murphy of counsel states that the Solicitor attended court to instruct him during the trial only on 3, 4 and 7 May 2007.

Particular 3.3

In his letter dated 23 November 2007 to the OLSC the Solicitor stated "Mr Murphy did not inform me of the new trial date... a couple of days prior to the hearing date I was informed by counsel of the hearing date" in circumstances where Mr Murphy of counsel advised the Solicitor of the hearing date at least one month before hearing and the DPP had notified the Solicitor in writing of the hearing date by letter dated 2 April 2007.

Particular 3.4

In his letter dated 23 November 2007 to the OLSC the Solicitor stated "I informed him [counsel] that I would immediately make arrangements to cancel and reorganise my other Court dates to accommodate the trial. He informed me that he would be able to appear at the trial until I was able to appear and assist him" in circumstances where Mr Murphy denies that the Solicitor said those words or that he said the words in reply.

Particular 3.5

In writing the letter dated 23 November 2007, as referred to in particulars 3.2 - 3.4, the Solicitor recklessly disregarded his obligations to ensure that the letter provided accurate comments in response to complaints made about him and, as a consequence, he misled the Office of the Legal Services Commissioner. The Solicitor accepts that this is professional misconduct.

[THE MATTER OF THOMAS MAWTER]

GROUND 4

The Solicitor failed to act competently and/or diligently in making representations and/or pursuing negotiations with the prosecution for the withdrawal of or modification of charges in accordance with his instructions.

Particular 4.1

The Solicitor represented the defendant in the matter of R -v-Thomas Mawter.

Particular 4.2

Mr Mawter was charged on 11 September 2006 with the offences of (1) maliciously wound a police officer in execution of duty, (2) use offensive instrument with intent to commit indictable offence, (3) assault police officer in execution of duty causing actual bodily harm, (4) unlicensed rider and (5) ride on road related area with tax unpaid.

Particular 4.3

Mr Mawter indicated he intended to plead not guilty and received a police brief of evidence in the matter. Shortly after receiving the police brief, Mr Mawter instructed the Solicitor to assist him to respond to the charges and, following advice from the Solicitor, Mr Mawter instructed the Solicitor to negotiate with the prosecution for the withdrawal of all charges and, if that outcome was not achieved, to prepare to contest the charges.

Particular 4.4

The Solicitor attended a hearing in the Local Court on 8 December 2006 where Mr Mawter waived his right to a committal hearing and was committed for trial on charges of (1) maliciously wound a police officer, and (2) use offensive instrument with intent to commit indictable offence, referred to in Particular 4.2. Charges (3) assault a police officer in execution of duty, causing actual bodily harm (4) unlicensed rider and (5) ride on road related area with tax unpaid remained in the Local Court.

Particular 4.5

A bill was found for (1) maliciously wound a police officer in execution of duty, and (2) assault a police officer while executing his duty occasioning actual bodily harm.

Particular 4.6

The Solicitor attended three (3) District Court mentions. At or after those mentions the Solicitor variously advised Mr Mawter that the Solicitor was either still awaiting advice from the prosecution about the possibility of the charges being withdrawn or that the charges would be withdrawn and that the Solicitor was awaiting confirmation of this.

Particular 4.7

On 23 March 2007, the Solicitor appeared for Mr Mawter in the District Court and the matter was listed for trial commencing 28 May 2007.

Particular 4.8

On 28 May 2007 the Solicitor advised Mr Mawter that the matter was listed for trial on that day and that the prosecution would accept a plea of guilty to the second charge in return for the withdrawal of all other charges. Mr Mawter, on the Solicitor's advice, accepted the prosecution's offer and pleaded guilty to count 2 in the indictment. He was sentenced by her Honour Judge Murrell SC on 1 June 2007 and received a non-conviction bond (under s10 of the Crimes (Sentencing Procedure) Act 1999).

Particular 4.9

At the sentence hearing Mr Mawter gave evidence that the Solicitor regularly told him that there was a recommendation for the charges to be dropped and that he had not received any offer to plead to the lesser charge prior to 28 May 2007.

Particular 4.10

At the sentence hearing the Crown submitted that it had attempted to talk to the Solicitor about a plea whilst the matter was still in the Local Court but the Solicitor indicated that he was intending to contest the committal of the matter and seek the attendance of the complainant for cross-examination pursuant to s91 of the Criminal Procedure Act 1986 which application the Solicitor did not make. The Crown further submitted that it had attempted on numerous occasions to contact the Solicitor about the matter prior to the trial date and that the Solicitor had not responded.

Particular 4.11

In around September 2007 Mr Mawter was notified by District Court staff that the summary traffic charges, charges 4 and 5, had been referred to Sutherland Local Court to be finalised.

Particular 4.12

Mr Mawter subsequently instructed another lawyer, Mouna Raphael, to assist him in relation to the traffic charges that he understood had been withdrawn.

GROUND 5

The Solicitor misled his client in relation to the status of his matter.

Particular 5.1

In the matter of R -v-Thomas Mawter.

Particular 5.2

The particulars to Ground 4 are repeated,

Particular 5.3

The Solicitor failed to inform Mr Mawter of the true status of his communications with the prosecution about the charges.

Particular 5.4

The Solicitor misled Mr Mawter by telling him that the prosecution had indicated that it would be withdrawing the charges on 28 May 2007 and earlier when in fact the prosecution had not issued such advice and was preparing to prosecute the matter.

Particular 5.5

The Solicitor misled Mr Mawter by telling him that all matters had been finalised after Mr Mawter was sentenced on 1 June 2007, when in fact the summary traffic charges, charges 4 and 5, were still to be finalised in the Local Court at Sutherland.

[THE MATTER OF CLAIRE MUIR (TURNER)]

GROUND 6

The Solicitor delayed the progress of his client's workers compensation matter.

Particular 6.1

The Solicitor was instructed by Ms Claire Muir (nee Turner) on or about 12 July 2002 in relation to a workers compensation claim following an accident she suffered at work on or about 4 May 2001.

Particular 6.2

The Solicitor received a medical report from Dr P Conrad dated 2 October 2002 relating to Ms Muir's accident at work.

Particular 6.3

The Solicitor served a notice of claim for workers compensation dated 2 November 2005 on Royal and Sun Alliance Workers Compensation. To the notice of claim he annexed only the report of Dr P Conrad dated 2 October 2002.

Particular 6.4

By letter dated 1 December 2005 Vero Workers Compensation submitted to the Solicitor an offer of compromise in response to the notice of claim for workers compensation dated 2 November 2005.

Particular 6.5

The Solicitor did not advise his client of the offer of compromise referred to in Particular 6.4.

Particular 6.6

By letter dated 13 May 2006 Cambridge Integrated Services Australia Pty Ltd repeated the offer of compromise dated 1 December 2005.

Particular 6.7

The Solicitor did not advise his client of the repeated offer of compromise referred to in Particular 6.6.

Particular 6.8

By letter dated 6 February 2007 Cambridge Integrated Services Australia Pty Ltd made a further offer of compromise to Ms Muir which Ms Muir instructed the Solicitor to accept.

Particular 6.9

The Solicitor took no steps in the matter notwithstanding receipt of the offers of compromise referred to in Particulars 6.4 and 6.6 and the instructions referred to in Particular 6.6.

Particular 6.10

Ms Muir retained new solicitors on 12 February 2008. Ms Muir's workers compensation claim was settled by her new legal representatives on 28 November 2008.

GROUND 7

The Solicitor misled his client, Ms Claire Muir (nee Turner), as to the progress of her Workers Compensation claim.

Particular 7.1

The particulars to Ground 6 are repeated.

Particular 7.2

In telephone conversations and conferences with Ms Muir from July 2002 to October 2007 the Solicitor advised Ms Muir that her matter was close to finalisation.

[THE MATTER OF RYAN PHILLIPS]

Ground 8

The Solicitor was grossly negligent in handling the matter of R -v- Phillips on behalf of his client, the defendant, Ryan Phillips.

Particular 8.1

In the matter of R -v- Phillips in the Local Court at the Downing Centre on 4 March 2008.

Particular 8.2

The Solicitor was late and did not attend the hearing. Mr Phillips was convicted and fined in his absence.

Particular 8.3

The conviction was subsequently annulled on 23 September 2008 and Mr Phillips was re-sentenced.

GROUND 9

The Solicitor failed to act in accordance with his client's instructions.

Particular 9.1

In the matter of R -v- Phillips in the Local Court at the Downing Centre, consequent on the conviction entered on 4 March 2008 in Mr Phillips' absence.

Particular 9.2

The Solicitor failed to lodge an appeal against conviction on behalf of his client contrary to the instructions of his client, Mr Phillips or an application for annulment of the conviction entered in Mr Phillips' absence.

Particular 9.3

The Solicitor failed to deal with correspondence from the State Debt Recovery Office on behalf of his client contrary to the instructions of his client, Mr Ryan Phillips.

Particular 9.4

The Solicitor failed to apply to the State Debt Recovery Office for a stay of the fine on behalf of his client contrary to the instructions of his client, Mr Ryan Phillips

GROUND 10

The Solicitor misled his client as to the progress of hls appeal and his application for a stay to the State Debt Recovery Office.

Particular 10.1

In the matter of R -v- Phillips in the Local Court at the Downing Centre, consequent on the conviction entered on 4 March 2008 in Mr Phillips' absence.

Particular 10.2

In response to queries from his client, Mr Ryan Phillips, on 11 March, 17 March, 18 March, I9 March, 20 March, 25 March, 26 March, 27 March, 10 April, 2 June, 5 June and 6 June 2008 as to the progress of his appeal, the Solicitor responded with words to the effect that the Solicitor would sort it out in circumstances where no appeal was lodged and the Solicitor took no action.

Particular 10.3

In response to queries from his client, Mr Phillips, on 23 June, 24 June, 26 June, 27 June, 1 July, 2 July, 4 July, 7 July, 8 July and 9 July 2008 as to the progress of the application for a stay of the fine by the State Debt Recovery Office, the Solicitor responded with words to the effect that the Solicitor was sorting it out in circumstances where the Solicitor took no action to stay the fine.

Particular 10.4

In response to queries from his client, Mr Phillips, on 10 July, 16 July, 17 July, 18 July, 21 July, 22 July, 23 July, 28 July, 1 August, 5 August, 6 August, 7 August, 8 August, 11 August, 12 August, 13 August, 14 August, 15 August, 18 August, 19 August, 20 August, 21 August, 22 August, 25 August, 26 August, 27 August, 28 August, 29 August and 1 September 2008 as to the progress of the application for a stay of the fine by the State Debt Recovery Office, the Solicitor assured his client that a stay had been granted in circumstances where a stay had not been granted or applied for.

Particular 10.5

In response to queries from his client, Mr Phillips, on 2 September, 3 September and 4 September 2008, the Solicitor assured his client that he would speak to the State Debt Recovery Office to sort things out in circumstances where he did not do so.

[THE UNDERTAKINGS GIVEN TO THE LEGAL SERVICES COMMISSIONER]

GROUND 11 (fail to respond to the OLSC)

The Solicitor failed to comply with an undertaking given to the Office of the Legal Services Commissioner (the "OLSC") on 29 June 2006 that he would respond fully in writing to written correspondence from the OLSC within four (4) weeks of the date of that letter.

Particular 11.1

On 29 June 2006 the Solicitor gave a written undertaking to the OLSC that he would respond fully in writing to written correspondence from the OLSC within four (4) weeks of the date of that letter.

[RITA MAMMOLITI]

Particular 11.2

During the investigation of a complaint made by Rita Mammoliti about the Solicitor, the OLSC wrote to the Solicitor by letter dated 15 September 2006 seeking a response. The Solicitor did not respond to that letter until 24 November 2006 thereby breaching his undertaking.

Particular 11.3

During the investigation of a complaint made by Rita Mamrnoliti about the Solicitor, the OLSC wrote to the Solicitor by letter dated 3 September 2007 seeking a response. The Solicitor did not respond to that letter until 19 November 2007 thereby breaching his undertaking.

[ACE NASTESKI]

Particular 11.4

11.4.1 During the investigation of a complaint made by Ace Nasteski about the Solicitor, the OLSC wrote to the Solicitor by letter dated 11 September 2007 seeking a response.

11.4.2 By written correspondence dated 17 September 2007 the OLSC wrote to the Solicitor about difficulties experienced in contacting him.

11.4.3 By written correspondence dated 27 September 2007 the OLSC wrote to the Solicitor seeking his file be delivered to the OLSC and reminding him of the response required to the letter dated 11 September 2007.

11.4.4 By written correspondence dated 23 October 2007 the OLSC wrote to the Solicitor and amongst other things reminded him of the need to respond immediately to the letters dated 11 and 27 September 2007.

11.4.5 On 12 November 2007 a Notice that had been issued by the Legal Services Commissioner pursuant to section 660 of the Legal Profession Act 2004 was served on the Solicitor seeking amongst other things a response to the letters dated 11 and 27 September 2007 by no later than 3 December 2007.

11.4.6 The Solicitor did not respond to the OLSC correspondence until 3 December 2007 thereby breaching his undertaking.

[EUGENE LEPORE on behalf of VERA VELESKA]

Particular 11.5

11.5.1 During the investigation of a complaint made by Eugene Lepore on behalf of Vera VeIeska about the Solicitor, the OLSC wrote to the Solicitor by letter dated 25 September 2007 seeking a response.

11.5.2 By written correspondence dated 30 October 2007 the OLSC wrote to the Solicitor and amongst other things reminded him of the need to respond immediately to the letter dated 25 September 2007.

11.5.3 On 12 November 2007 a Notice that had been issued by the Legal Services Commissioner pursuant to section 660 of the Legal Profession Act 2004 was served on the Solicitor seeking amongst other things a response to the letter dated 25 September 2007.

11.5.4 The Solicitor did not respond to the OLSC correspondence until 3 December 2007 thereby breaching his undertaking.

[PETER PEOSKI]

Particular 11.6

11.6.1 During the investigation of a complaint made by Peter Peoski about the Solicitor, the OLSC wrote to the Solicitor by letters dated 14 August 2007, 5 September 2007 and 25 October 2007 asking the Solicitor to provide copies of correspondence to and from the insurer's representative.

11.6.2 On 12 November 2007 a Notice that had been issued by the Legal Services Commissioner pursuant to section 660 of the Legal Profession Act 2004 was served on the Solicitor seeking amongst other things copies of correspondence to and from the insurer's representative by no later than 3 December 2007.

11.6.3 The Solicitor provided a partial response only on 3 December 2007 thereby breaching his undertaking.

[EVAN BENDON]

Particular 11.7

11.7.2 During the investigation of a compIaint made by Evan Bendon about the Solicitor, by letter dated 4 February 2008 the OLSC wrote to the Solicitor seeking a copy of the filed Workers' Compensation Application and timetable.

11.7.2 By letter dated 28 February 2008 the Solicitor sought an extension of time to allow counsel to settle his response.

11.7.3 On 29 February 2008 the Solicitor was given an extension to 3 March 2008, confirmed in writing by letter dated 29 February 2008.

11.7.4 By letter dated 13 March 2008 the OLSC again sought a reply to the letter dated 29 February 2008.

11.7.5 On 16 April 2008 a Notice that had been issued by the Commissioner pursuant to section 660 of the Legal Profession Act 2004, and dated 8 April 2008, was served on the Solicitor seeking amongst other things a response to the letter dated 4 February 2008.

11.7.6 On 21 April 2008 the OLSC received a facsimile from the Solicitor purporting to reply in full to the letter from the OLSC dated 4 February 2008. This response was incomplete.

11.7.7 By letter dated 22 April 2008 the OLSC sought a complete response.

11.7.8 By letter dated 3 July 2008 the Solicitor purported to reply in full, but neglected to enclose the requested documents.

11.7.9 By letter dated 10 July 2008 the OLSC sought the same information and documentation from the Solicitor.

11.7.10 The Solicitor provided a full reply by facsimile dated 17 July 2008.

11.7.11 By failing to respond fully in writing by 3 March 2008 without reasonable excuse, the Solicitor breached his undertaking.

Particular 11.8

11.8.1 During the investigation of a complaint made by Evan Bendon about the Solicitor, by further letter dated 15 January 2009 the OLSC wrote to the Solicitor seeking a response.

11.8.2 By letter dated 27 March 2009 the OLSC wrote to the Solicitor seeking a reply to the letter dated 15 January 2009.

11.8.3 By letter dated 7 April 2009 the Solicitor indicated he would forward documents upon their receipt.

11.8.4 By letter dated 19 May 2009 the OLSC wrote to the Solicitor seeking a reply to the letter dated 15 January 2009 and copies of the documents he was to forward upon receipt.

11.8.5 By letter dated 9 June 2009 the Solicitor purported to enclose one of the documents requested, but the document was not enclosed.

11.8.6 By letters dated 2 July 2009 and 14 July 2009 the Solicitor was advised that the enclosure was absent from his letter dated 9 June 2009.

11.8.7 A complete response to the letter dated 15 January 2009 was not received until 2 September 2009.

11.8.8 By failing to respond fully in writing by 12 March 2009 without reasonable excuse, the Solicitor breached his undertaking.

[CLAIRE MUlR (TURNER)]

Particular 11.9

11.9.1 The particulars to Grounds 6 and 7 are repeated.

11.9.2 During the investigation of a complaint made by Claire Muir about the Solicitor, by letter dated 10 October 2008 the OLSC wrote to the Solicitor seeking a response.

11.9.3 By letter dated 18 December 2008 the Solicitor stated that he needed his file in order to reply.

11.9.4 By letter dated 15 January 2009 the OLSC forwarded the Solicitor a copy of his file.

11.9.5 A response to the letter dated 10 October 2008 was not provided until receipt of the Solicitor's letter dated 16 August 2009.

11.9.6 By failing to reply to the substance of the letter dated 10 October 2008 within four (4) weeks from the date the file was sent to him, without reasonable excuse, the Solicitor breached his undertaking.

GROUND 12 [fail to provide client updates]

The Solicitor failed to comply with an undertaking given to the Office of the Legal Services Commissioner (the "OLSC") on 29 June 2006 that he would regularly provide a written update to all clients as to the progress of their matter.

Particular 12.1

On 29 June 2006 the Solicitor gave a written undertaking to the OLSC regularly to provide a written update to all clients as to the progress of their matter.

[ACE NASTESKI]

Particular 12.2

12.2.1 The Solicitor was retained in or about May 2007 to act on behalf of the vendors, Ace Nasteski and Mence Nasteska (the "clients"), in a residential conveyance, which settled on 20 September 2007.

12.2.2 There was no written correspondence from the Solicitor to the clients between 14 May 2007 and 20 September 2007 in circumstances where there were a number of significant events between those dates regarding the progress of the conveyance. By failing to provide written updates to the clients between 14 May 2007 and 20 September 2007 the Solicitor breached his undertaking.

[ANA JOVANOVSKA]

Particular 12.3

12.3.1 In about October 1999 the Solicitor received instructions to act on behalf of Ana Jovanovska in relation to a workers' compensation claim, The file lay dormant from 21 April 2001 until about October 2006. The Solicitor says in a letter to the OLSC dated 13 November 2007 that he received further instructions from Ana Jovanovska in about October 2006 to pursue her claim.

12.3.2 There was no written correspondence to Ana Jovanovska from the Solicitor from October 2006 until the retainer ended on 17 December 2007.

12.3.3 By failing to provide any written update to Ana Jovanovska as to the progress of her matter between October 2006 and 17 December 2007, the Solicitor has breached his undertaking.

[VERA VELESKA]

Particular 12.4

12.4.1 In about July 1999 the Solicitor received instructions to act on behalf of Vera Veleska in relation to a workers' compensation claim. The file lay dormant from 29 October 2001 until about June 2006. The Solicitor says in a statutory declaration declared on 3 December 2007 that he received further instructions from Vera Veleska in about June 2006 to pursue her claim.

12.4.2 There was no written correspondence to Vera Veleska from the Solicitor from June 2006 until 6 December 2007.

12.4.3 By failing to provide any written update to Vera Veleska as to the progress of her matter between June 2006 and 6 December 2007, the Solicitor has breached his undertaking.

[THOMAS MAWTER]

Particular 12.5

12.5.1 The particulars to Ground 4 are repeated.

12.5.2 The Solicitor was retained by Thomas Mawter in or about September 2006.

12.5.3 The Solicitor wrote to Thomas Mawter by letter dated 23 October 2006 enclosing a costs agreement.

12.5.4 The Solicitor sent Thomas Mawter a letter dated 1 June 2007 enclosing a bill.

12.5.5 The Solicitor's retainer ended in September 2007.

12.5.6 During the retainer there were items of correspondence received by the Solicitor from the Office of the Director of Public Prosecutions that required instructions from Mr Mawter, including correspondence enclosing witness statements and Draft Agreed Facts. There were also at least six court attendances, including a committal hearing, a trial and sentencing.

12.5.7 There is no correspondence on the Solicitor's file addressed to Thomas Mawter outlining the progress of his matter.

12.5.8 By failing to provide any written update to Mr Mawter as to the progress of his matter between October 2006 and September 2007, the Solicitor has breached his undertaking.

[EVAN BENDON]

Particular 12.6

12.6.1 Evan Bendon retained the Solicitor in or about February 2001.

12.6.2 The Solicitor wrote to Mr Bendon letters dated 4 June 2001, 25 July 2001,11 April 2002, 6 March 2003, and 18 December 2003. All of the letters were addressed incorrectly. The Ietter dated 4 June 2001 was returned to the Solicitor and the Return to Sender label is dated 8 June 2001.

12.6.3 From late 2003 to early 2006 no further work was undertaken in relation to this matter.

12.6.4 In early 2006 the Solicitor again commenced working on Mr Bendon's matter. Significant progress was made in the matter from early 2006, including the filing of a claim at the Workers Compensation Commission.

12.6.5 The retainer ended in June 2008.

12.6.6 Between early 2006 and June 2008 the Solicitor's file contains one letter to Mr Bendon dated 17 January 2007, which was sent to the same incorrect address.

12.6.7 By failing to provide any written update to Mr Bendon as to the progress of his mater between early 2006 and June 2008, the Solicitor has breached his undertaking

GROUND 13

The Solicitor failed to satisfactorily progress the workers compensation claim of his client, Ms. Constance Smith, between 14 August 2003 and 11 January 2011.

Particular 13.1

On 13 August 2003, Ms. Constance Smith ("Ms. Smith") injured herself at work.

Particular 13.2

On 14 August 2003, Ms. Smith consulted Mr. Angelovski in relation to her injury and sought advice and representation in relation to any potential workers' compensation claim.

Particular 13.3

Notification of the injury was made to the insurance company (QBE) on 18 August 2003.

Particular 13.4

By letter dated 21 May 2004, QBE denied liability, but agreed to pay Ms. Smith wages until 20 June 2004. QBE cited section 54 of the Workers' Compensation Act 1987(NSW).

Particular 13.5

On 13 January 2004, QBE made a cheque payable to Ms. Smith in the amount of $2,242.16. This cheque was forwarded to Ms. Smith on or about 15 January 2004.

Particular 13.6

By letter dated 5 August 2004, Mr. Angelovski informed Centrelink that the last payment that Ms. Smith received from QBE was in "May/June 2004".

Particular 13.7

Mr. Angelovski arranged one conference with a Barrister (Mr. Warwick Ward), which took place in about 2004 or 2005.

Particular 13.8

Aside from what appears above, Mr. Angelovski did not take any further steps between 14 August 2003 and 11 January 2011, to progress Ms. Smith's claim.

Particular 13.9

On 14 January 2011, Ms.Smith complained to the Office of the Legal Services Commissioner.

Particular 13.10

In or about late January 2011, Ms. Smith telephoned Mr. Angelovski. During the conversation, Mr. Angelovski indicated that he would refer Ms. Smith to another solicitor, because he "...only [does] criminal matters these days".

Particular 13.11

At no time did Ms. Smith indicate that she did not wish to progress her matter.

GROUND 14

The Solicitor grossly delayed pursuing a costs order and obtaining costs.

Particular 14.1

In the matter of Peter Peoski v McCorquodale & Co Pty Lid and West Bankstown Bus Services Pty Ltd (court reference 42537 of 2000).

Particular 14.2

Pursuant to Terms of Settlement filed and approved in the Workers Compensation Court on 17 November 2003, in which costs were ordered in the agreed sum of $5,000.

Particular 14.3

By letter dated 26 February 2007, the Solicitor wrote to the OLSC, stating, "We are in the process of negotiating the finalization of the matter. Today we have spoken to the solicitors for the Defendant and they have informed us that they will call us back within a couple of days... We shall keep you informed of the matter as it progresses".

Particular 14.4

By letter dated 27 July 2007,the Solicitor wrote to the OLSC, ending the letter with "I will keep you informed of their offer and final settlement".

Particular I4.5

By letter dated 25 August 2008, the Solicitor wrote to the OLSC, stating "...I will chase the other side within the next fourteen days and endeavour to settle the matter within one month. If I encounter any difficulties, I will inform your office".

Particular 14.6

By letter dated 19 August 2009, the Solicitor wrote to the OLSC, stating, "it is embarrassing to me that I have failed to take a firm hold of the matter to date... I will be instructing Mr. Attick to refer his bill for assessment and that should cause the matter to be finally resolved. I don't know what more I can do to finalise this long overdue matter".

Particular 14.7

On 24 September 2009, the Supreme Court (Equity Division) heard proceedings brought by Peter Peoski against the Solicitor.

Particular 14.8

By letter dated 13 December 2010, the Solicitor wrote to the OLSC, advising, "Pursuant to the terms of settlement the First respondent would pay the Applicants costs and disbursements agreed at $5,000 of which the second respondent is to contribute only $1,000... I will keep you informed of the progress of the matter monthly".

Particular 14.9

By letter dated 20 May 2011, the OLSC wrote to the Solicitor seeking copies of any correspondence "sent or received in the Peoski matter subsequent to 11 March 2011 along with your report as to the steps still to be taken and your time frame in relation to taking those steps".

Particular 14.10

By letter dated 27 May 2011, the Solicitor wrote to the OLSC, advising, "... no further letters have been forwarded. However, I am due to forward correspondence next week. I will forward a copy to your office accordingly... On confirmation from both sides I assume that the matter will be finalised accordingly... I will keep you informed of the progress of the matter until finalisation".

Particular 14.11

By letter dated 30 September 2011, the Solicitor wrote to the OLSC, indicating that the matter was not yet finalised, and that "I will keep you informed of the progress of the matter until finalisation".

Particular 14.12

On 12 October 2011, the Legal Services Commissioner initiated the complaint against the Solicitor.

Particular 14.13

By letter dated 3 November 2011, the Solicitor wrote to the OLSC, stating, "I am hopeful that the matter is reaching finalisation. I will keep you informed of the progress of the matter until finalisation". This letter is dated almost 8 years since the order was made (17 November 2003).

11 From now on, we will use the letter 'P' to identify numbered paragraphs in these Particulars.

The evidence as to the Solicitor's conduct

12 The substantial quantity of material exhibited to the Commissioner's affidavit included a copy of a certificate issued by the Legal Profession Admission Board stating that the Solicitor was admitted as a solicitor on 30 June 1989 and that his name remained on the Roll.

13 Ms Webster submitted that this material substantiated the factual allegations regarding the Solicitor's conduct contained in the Statement of Agreed Facts.

14 Having reviewed this material, we agree with this submission, subject only to the following observations:-

(a) The statement in the final sentence of P3.5 - namely, that 'the Solicitor accepts that this is professional misconduct' - is not substantiated in this material, and is in any event not appropriate in an agreed statement of facts.

(b) The evidence adduced in support of P6.9, being paragraphs 15 and 17 of a statement signed on 8 July 2009 by Ms Muir, indicates as follows. On 28 October 2007, the Solicitor wrote to Ms Muir seeking her instructions, but he sent the letter to her former address. When leaving this address during 2003, she had notified the Solicitor of her change of address.

(c) The evidence adduced in support of P7.2, being paragraphs 6, 8 and 9 of this statement by Ms Muir, indicates that the only occasions on which the Solicitor advised her that her matter was 'close to finalisation' were during conferences with her on 21 March and 28 July 2003 and during a telephone conversation with her on 21 May 2004.

Characterisation of this conduct

15 Ms Webster submitted, with support from Mr Thomas, that we should characterise these instances of past conduct by the Solicitor in the manner set out in the first two orders proposed in the Instrument of Consent. On this basis, we would make findings of professional misconduct in relation to Grounds 3, 11 and 12 and findings of unsatisfactory professional conduct in relation to the remaining eleven Grounds.

16 Ms Webster acknowledged, however, that under section 564 of the Act we were entitled to reach conclusions on this question differing from those proposed in the Instrument of Consent. She specifically identified the conduct described in Grounds 5, 6 and 7 as conduct that we might characterise as professional misconduct, not unsatisfactory professional conduct as proposed in the Instrument.

17 Under the heading 'Consent orders', section 564 of the Act states, so far as relevant here:-

(1) The Tribunal may, with the consent of the Australian legal practitioner concerned contained in a written instrument, make orders under this Part without conducting or completing a hearing in relation to the complaint.

(4) This section does not apply to consent given by the practitioner unless the practitioner, the Commissioner and (if applicable) the relevant Council have agreed on the terms of an instrument of consent.

(5) Without limiting what may be included in the instrument of consent, the instrument is to contain an agreed statement of facts (including as to the grounds of complaint) and may contain undertakings on the part of the practitioner.

(8) If consent was given before the proceedings are commenced, the proceedings are nevertheless to be commenced with respect to the complaint in the same way as if the consent had not yet been given.

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

18 With reference to the interpretation of this section, Ms Webster drew our attention to Council of the Law Society of New South Wales v Vaughan [2011] NSWADT 118, in which the following passage appears at [19 - 20]:-

19 The Tribunal's decision in Council of the New South Wales Bar Association v Butland [2009] NSWADT 177 (see [29 - 31], [33] and [35]) provides useful guidance as to the matters to be taken into account in deciding whether to make consent orders suggested in an instrument of consent filed under section 564.

20 An important principle stated in that case by the Tribunal (at [31]) is that where the parties have jointly proposed an order or orders by way of penalty, it will not be useful to investigate whether the Tribunal would have arrived at that precise outcome in the absence of agreement. The question is whether that outcome, in the Tribunal's opinion, is appropriate in the circumstances of the case. In answering this question, the Tribunal should not reject the agreed outcome simply because it would have been inclined to make some other order or orders. The outcome proposed will be appropriate if it is 'within the permissible range'.

19 Mr Thomas acknowledged also that we might differ from the Instrument of Consent in our characterisation of some aspects of the Solicitor's conduct. But we should have due regard, he submitted, to the Commissioner's status as a body representing the community in these matters and as a model litigant. We should also be mindful that the orders proposed in the Instrument had been endorsed by the parties as the correct outcome of these proceedings.

20 We have taken careful account of these submissions in support of the first two orders proposed in the Instrument of Consent. Our conclusion, however, is that these orders do not fall 'within the permissible range' in so far as they relate to six of the fourteen Grounds set out in this Instrument: namely, Grounds 6, 7, 8, 9, 10 and 12. We will now discuss these six Grounds in turn.

21 Ground 6. We make allowance for the fact that, to the extent indicated above at [14(b)], the evidence does not fully bear out the allegation in P6.9 that the Solicitor 'took no steps' in this matter following receipt of instructions from his client, Ms Muir, and two offers of settlement of her claim. Nevertheless, his conduct throughout the period of his retainer involved gross neglect of his professional duties to her. This was particularly the case after the date (1 December 2005) when he received the first offer of compromise.

22 In our judgment, the conduct of the Solicitor described in Ground 6 did not merely amount to unsatisfactory professional conduct as defined in section 496 of the Act: i.e., conduct 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'. It was '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'. For this reason, it constituted professional misconduct under section 497(1)(a).

23 Ground 7. We make allowance for the fact that, to the extent indicated above at [14(c)], the evidence does not fully bear out the allegation made in P7.2. It is important also that the Statement of Agreed Facts does not claim that the Solicitor intentionally misled Ms Muir as to the progress of her claim. During 2003 and 2004, however, he advised her on three occasions (at least) that her claim was 'close to finalisation' even though, as stated in P6.3, he had not yet served a notice of this claim on her insurer. If he did not realise at the time that this advice to her was totally misleading, he was, to say the least, in a position where by simply consulting the file he could have ascertained that this was indeed the case.

24 For these reasons, the Solicitor's failures to ensure that he was conveying to his client a true account of the situation in a matter of considerable significance for her cannot, in our opinion, be characterised merely as failures to maintain a reasonable standard of competence and/or diligence. They were 'substantial' failures, with the consequence that they amounted to professional misconduct under section 497(1)(a) of the Act.

25 Grounds 8 and 9. It may be that the Solicitor's conduct described under each of these Grounds, considered in isolation, might amount only to unsatisfactory professional conduct, as alleged in the Instrument of Consent. But it is appropriate to consider the two Grounds in conjunction, because they related to a single matter - a criminal prosecution - in which a single client, Mr Phillips, engaged the Solicitor to provide legal services. The Solicitor manifestly failed to provide such services competently and diligently both when the matter first came on for trial (as alleged in Ground 8) and thereafter (as alleged in Ground 9).

26 In our judgment, these serious derelictions of duty, persisting over a period of about six months, constituted failures to 'reach or maintain a reasonable standard of competence and diligence' that were both 'substantial' and 'consistent'. They therefore amounted to professional misconduct under section 497(1)(a) of the Act. We note that in a very recent decision of the Tribunal, Council of the Law Society of New South Wales v Leslie [2013] NSWADT 81, comparable conduct by the respondent solicitor was held at [22 - 25] to be 'disgraceful and dishonourable' and accordingly to amount to professional misconduct at common law.

27 Ground 10. For reasons resembling those given in relation to Ground 7, we are satisfied that the Solicitor's conduct as described in this Ground amounted to professional misconduct. There is no allegation that the Solicitor intentionally misled Mr Phillips, so an inference to this effect cannot be drawn. But his failures to provide truthful advice on a matter of considerable concern to his client, despite being asked to do so on the many occasions listed in P10.2, P10.3 and P10.4, amounted to consistent and flagrant disregard of an elementary professional obligation. In our opinion, it was clearly professional misconduct under section 497(1)(a) of the Act.

28 Ground 12. In relation to this Ground, our reasons for departing from the order proposed in the Instrument of Consent are very different from those that we have outlined so far.

29 The written undertaking that the Solicitor gave to the Commissioner on 29 June 2006 contained the following clause: 'I undertake that I will regularly provide a written update to all clients as to the progress of their matter.' In the same document, he gave the undertaking on which Ground 11 is based.

30 In his principal affidavit, the Solicitor deposed that he gave these undertakings in the course of a meeting during 2006 with representatives of the Commissioner and of the Law Society of New South Wales. After they had attended his office and inspected his files relating to client matters, a representative of the Law Society prepared a handwritten document incorporating these undertakings to the Commissioner and gave it to him to sign. He signed it, and later signed a typewritten copy. This evidence was not disputed at the hearing.

31 We observe that the imposition of a requirement to sign such an undertaking might not have been within the powers of the Commissioner, because it involved prescribing what the Solicitor should do in the future discharge of his duties to his clients. The Tribunal made a ruling to this effect in Legal Services Commissioner v Tsalidis [2012] NSWADT 160 at [95]. But this ruling does not bear upon the scope of the powers of the Law Society. That question was neither addressed in Tsalidis nor argued before us.

32 Two features of the undertaking to which Ground 12 relates are important when considering whether the Solicitor's conduct described in P12.2 to P12.6, or any of this conduct, amounted to professional misconduct as claimed in the Instrument of Consent.

33 The first of these is that the terms of the undertaking provided no guidance as to what would constitute 'regular' updating of the progress of his clients' matters. In particular, the following questions of interpretation were left unresolved: (a) whether his undertaking was to furnish updates weekly or monthly or with some other degree of frequency; (b) how far the frequency of the updates could vary while still being regarded as 'regular'; and (c) whether the updates were required more frequently during any period in which the client's matter progressed with particular speed.

34 The second feature of relevance is that the obligation to provide these updates was framed in absolute terms. According to the undertaking, any failure to maintain 'regularity' in providing written updates would constitute non-compliance, irrespective of whether (a) there were good grounds for believing in a particular case that an update was not required, or (b) there was a reasonable excuse for a failure to comply.

35 Nowhere in the Particulars to Ground 12 is any indication given as what, in the particular circumstances of each case, might have been regarded as 'regular' provision of the required updates. In addition, these Particulars do not allege that the breaches of the Solicitor's undertaking occurred without reasonable excuse. In this respect, they may be contrasted with the last three of the breaches of undertaking alleged in Ground 11: see P11.7.11, P11.8.8 and P11.9.6.

36 For these reasons, we do not consider it appropriate to make a finding of professional misconduct under Ground 12, as is claimed in the Instrument of Consent, simply on the basis that the Solicitor has admitted to breaching his undertaking in the ways described in the Particulars to this Ground. A breach of an undertaking to the Commissioner containing the uncertain term 'regular' and lacking any qualifying phrase such as 'without reasonable excuse' should not, in our opinion, be automatically treated as professional misconduct.

37 Instead, we believe that the following approach to Ground 12 is appropriate. In relation to each instance of alleged non-compliance, we should determine first whether, on any reasonable view of what the requirement of a 'regular' update might mean, the Solicitor did in fact breach his undertaking. We should then decide whether any of the breaches that did take place, according to this assessment, amounted to professional misconduct or to unsatisfactory professional conduct or instead were excusable on reasonable grounds.

38 On the first of these questions, the critical factor is that, except in the matter of Ace Nasteski and Mence Nasteska (see P12.2), the periods during which the Solicitor failed to provide any written update on the progress of his clients' matters were lengthy. They ranged from eleven months, in the case of Thomas Mawter (see P12.5.8), to more than two years, in the case of Evan Bendon (see P12.6.7). On any view, there was in each of these cases a failure to provide 'regular' updates.

39 The evidence relating to the matter of Ace Nasteski and Mence Nasteska discloses that, as alleged in P12.2.2, 'a number of significant events' relating to the sale in which the Solicitor acted for them occurred during a period of about four months (from 14 May to 20 September 2007) in which he failed to provide them with any written update on the progress of the sale. Having regard to the occurrence of these 'significant events', we find that this failure did amount to a breach of the Solicitor's undertaking.

40 We turn now to the second question that we have posed: whether there was any 'reasonable excuse' for the five breaches of undertaking described in the Particulars. The evidence in relation to three of them, being those committed in the matters of Anna Jovanovska, Vera Veleska and Evan Bendon (see P12.3, P12.4 and P12.6), contains nothing suggesting that the Solicitor could reasonably be excused for his failure to provide regular updates. During periods of significant length, he failed to communicate at all with these clients.

41 Taking into account our earlier observations about the nature of this undertaking given by the Solicitor (see [32 - 34] above), we do not believe, however, that a finding of professional misconduct is warranted in relation to any of these breaches. We find instead that each of them amounted to unsatisfactory professional conduct.

42 In a statutory declaration dated 3 December 2007 relating to the matter of Ace Nasteski and Mence Nasteska (see P12.2), the Solicitor stated that on a number of occasions between May and September 2007 he or his agent employed on to settle the sale of their property made telephone calls to Mr Nasteski and that on two occasions he met Mr Nasteski in order to obtain documents relating to the sale. In addition, the material exhibited to the Commissioner's affidavit included a copy of a statutory declaration dated 8 August 2007, which was signed by Ms Nasteska and witnessed by the Solicitor.

43 In our opinion, this evidence provides a sufficient basis for believing that the Solicitor may have had a reasonable excuse for not providing written updates 'regularly' to Mr Nasteski and Ms Nasteska on the progress of their matter. Because it shows that he maintained a significant degree of contact with them by other means, it is sufficient to discharge his evidentiary onus on this matter. The Commissioner put forward no evidence or argument relating specifically to it. We are accordingly not prepared to rule that his conduct described in P12.2 amounted either to professional misconduct or to unsatisfactory professional conduct.

44 Employing the same reasoning, we reach the same conclusion with regard to the Solicitor's failure, described in P12.5, to provide regular written updates to Mr Mawter. Although, as stated in P12.5.6, there was a good deal of activity in this matter during the period (between October 2006 and September 2007) when no updates were provided, it is clear from the Particulars to Ground 4 that the Solicitor met Mr Mawter on a number of occasions during this period. The events described in these Particulars therefore provide a sufficient basis for believing that the Solicitor may have had a reasonable excuse for not providing written updates 'regularly' to Mr Mawter.

45 Summary of our conclusions on the characterisation of the Solicitor's conduct. For the foregoing reasons, our conclusions as to how the Solicitor's conduct should be characterised diverge from those stated in the Instrument of Consent.

46 We make the following findings:-

1. The Respondent is guilty of professional misconduct in relation to Grounds 3, 6, 7, 8 and 9 (considered in conjunction), 10 and 11 of the Application.

2. The Respondent is guilty of unsatisfactory professional conduct in relation to Grounds 1, 2, 4, 5, 12 (except as alleged in Particulars 12.2 and 12.5), 13 and 14 of the Application.

Consequential orders

47 Counsel for both parties submitted that the orders proposed by way of 'penalty' under section 562 of the Act - which did not include an order removing the Solicitor's name from the Roll - were sufficient to achieve the aims to which such orders were addressed.

48 These submissions were founded to a significant extent on the testimony of the Solicitor and, to a lesser extent, on that of Mr Tabchouri. We will now outline this evidence.

49 The Solicitor's evidence. The principal topics addressed by the Solicitor were (a) the reasons why he had failed in the past, notably between 2006 and 2009, to discharge satisfactorily his obligations to his clients and to the Commissioner; (b) the reasons why his capacity to discharge these obligations had improved substantially since late 2009; (c) the extent to which he acknowledged and regretted his past failings as a legal practitioner; and (d) the steps that he had taken, and was prepared to take in the future, in order to prevent any recurrence of his past behaviour.

50 On the first of these topics, the salient features of the Solicitor's evidence were as follows.

51 During a period of about nine years after he was admitted to practice in June 1989, he was the sole employed solicitor in three small law firms. In none of them was he mentored or given helpful advice as to how to manage a law practice.

52 The principal of the third of these firms, in which he worked for about seven years, was a dominating person who rarely assisted him or consulted him on client matters and often required him to appear in a number of criminal law cases on the same day. Frequently, he would meet his clients for the first time at the court where the client's matter was to be heard. Most of his numerous clients did not attend his office and many of them required urgent assistance, often in police cells late at night. He had no system for recording instructions and insufficient time to write letters or to prepare file notes of conferences or telephone conversations. Some of his matters involved claims for workers compensation or conveyancing, but in neither of these fields did he have any expertise.

53 In 1998, he became the sole principal of this firm. In consequence, the pressures on him increased. He had no instruction or experience in the administrative aspects of running a law practice. Until 2007, the only support staff that he employed was one secretary. Thereafter he had no support at all, except on a casual or voluntary basis.

54 Being a migrant, he felt obliged to provide services to anyone from the same overseas background as his own who asked for advice or representation in a criminal matter. He did not always recover the fees due to him from his clients. On account of the number of clients seeking his services and his inability to manage his practice properly, he worked for 14-15 hours each weekday and often at weekends. Until 2005, the number of new files that he opened each year exceeded 200, but thereafter his practice declined significantly because of the considerable difficulties that he was experiencing.

55 A number of traumatic, highly distressing or otherwise stressful events further impaired his capacity to manage his practice. During June 2001, he and his brother were the victims of an attempted robbery at gunpoint. In consequence, he consulted a psychiatrist and was diagnosed with Post Traumatic Stress Disorder. After three sessions with the psychiatrist, however, he did not continue with treatment because he believed it to be 'embarrassing'. During most of 2007, he was separated from his wife. During 2009, he encountered serious financial problems, which culminated in his being served with a bankruptcy petition during 2011. At the end of December 2009, his mother died of cancer. She had put him under a great deal of emotional pressure during the preceding two years by complaining frequently about her symptoms.

56 With reference to the second topic - namely, the reasons why his capacity to discharge his professional duties improved substantially as from late 2009 - the Solicitor identified as the main reason his move in November 2009 from his position as a sole principal to that of an employed solicitor. This followed an audit of his practice instigated by the Law Society. By agreement with the Society, his unrestricted practising certificate was converted to that of an employee non-principal.

57 After periods of employment by two law firms, the Solicitor commenced his current employment with Macquarie Lawyers on 27 March 2012. Mr Tabchouri is the principal of this firm.

58 The Solicitor outlined the following benefits of his current employment. His colleagues in Macquarie Lawyers give him advice when he considers that he needs it, notably in non-criminal matters. His workload is structured, with the result that (for instance) when he attends court, he is not required to deal with more than one matter per day. He receives mentoring and guidance from Mr Tabchouri. He greatly enjoys attending court and representing his clients, without having to be involved in the management of the law firm by which he is employed.

59 A further matter that the Solicitor identified as a reason why he was now better placed to operate effectively as a solicitor was that he had resolved the financial problems that he had previously experienced.

60 On the third of the three topics that he addressed - namely, his acknowledgment of and regret for his past failings as a legal practitioner - the Solicitor stated that he was greatly ashamed of the conduct described in the Instrument of Consent and, indeed, could hardly believe now that he had behaved in such a manner.

61 Finally, the Solicitor testified that he was very happy to continue in the role of an employed solicitor until such time as he might be fit to engage in the management of a law practice. This was the case even though his current gross salary was only about $30,000 per year. With a view to becoming qualified to do this, he had attended and passed two courses in Risk Management conducted by the Law Society during October 2012. He was willing to undertake any further similar courses that might be required of him.

62 Mr Tabchouri's evidence. In his affidavit, Mr Tabchouri supplemented the Solicitor's account of his employment with Macquarie Lawyers by deposing as follows: (a) the Solicitor consistently complied with the firm's requirement to complete daily time sheets; (b) his draft letters to clients were checked, and if necessary amended, by Mr Tabchouri; (c) the firm's support staff undertook the tasks of preparing and sending out documents such as costs agreements and bills of costs to clients; and (d) the Solicitor's clients were very satisfied with his representation of them in court proceedings.

63 In oral evidence, Mr Tabchouri elaborated on these matters. He added that his supervision of the Solicitor involved meeting him almost every day and receiving reports from him on his court appearances, and that the firm also required him to complete court attendance file notes. Mr Tabchouri expressed the opinion that the range of activities in which the Solicitor engaged within the firm was likely to grow and advised that he would be happy to continue to employ the Solicitor for as long as he could afford to do so.

64 Former disciplinary proceedings against the Solicitor. The evidence tendered by the Commissioner included a one-page document headed 'List of Public Reprimands issued to Lupco Angelovski'. It set out the dates of seven public reprimands that the Commissioner had issued to the Solicitor between 2003 and 2008, together with very brief summaries of the grounds for these reprimands.

65 The dates of these reprimands and the summaries of the grounds for them were set out in this document as follows:-

11 July 2003 Delay

11 July 2003 Delay

13 August 2003 Failure to advise

13 March 2007 Gross negligence; failure to communicate

30 January 2008 Fail to communicate; delay; misleading; compensation (fee waiver, fee repayment ($1,800), lien waiver)

4 June 2008 Instructions/delay

17 June 2008 Fail to communicate; fail to follow instructions; misleading

66 At the hearing, we expressed concern about the brevity of these particulars, stating that they were insufficient to enable us to assess the significance of the disciplinary findings that had been made against the Solicitor. We said that we were particularly concerned that the term 'misleading' was used in relation to two of the reprimands (those of 30 January and 17 June 2008) without any information being provided as to who was misled and in what circumstances. We directed that after the hearing the Commissioner should file an agreed description of the conduct described as 'misleading' on which these two reprimands were based.

67 The description filed in accordance with this direction showed that in each of these two matters the Commissioner found that the Solicitor had misled a client.

68 In the matter on which the reprimand of 30 January 2008 was based, he had sent to the client a form of authority that implied that he had received a cheque, although he did not know whether this was the case because he could not locate the file. He misled the client by failing to advise that the authority was sent just 'in case' a cheque had been received.

69 The misleading conduct of the Solicitor on which the reprimand of 17 June 2008 was based (in part) took the following form: (a) having been instructed by a client to dispute counsel's fees, he omitted to tell the client that the barrister concerned had accepted a lesser amount than had been billed; and (b) he led the client to believe that a court hearing in relation to counsel's fees had occurred, whereas in fact a default judgment was re-entered after he had failed to take further steps in the proceedings.

70 Restitution to former clients. The Commissioner tendered a statement by one of the complainants in this case, Peter Peoski, to the effect that the Solicitor had recently paid him the sum of $4,000, being the balance owing to him under an agreement that he and the Solicitor had reached. Mr Peoski indicated that for this reason he no longer sought compensation from the Solicitor.

71 Mr Thomas advised us that the Solicitor acknowledged his liability to four other complainants - Mr Mawter, Mr Muir, Mr Phillips and Ms Smith - who have sought compensation in these proceedings. The Solicitor, he said, was waiting to receive particulars of their claims.

72 The parties' submissions. Ms Webster submitted that Orders 3 and 4 proposed in the Instrument of Consent would adequately protect the public interest and that orders of a more onerous nature were not needed to achieve this purpose. She pointed out that the earliest date on which the Solicitor would be permitted to obtain an unrestricted practising certificate was five years after the commencement of his employment with Macquarie Lawyers. The experience gained in this period of practice as an employed solicitor would, she suggested, 'dovetail' with the instruction that he would receive by attending the courses listed in Order 4.

73 Mr Thomas submitted that in considering these proposed orders we should bear in mind that the Commissioner was the representative of the community with regard to the regulation of legal practitioners and was a 'model litigant'. The proposed orders, he said, did not 'arise unilaterally', but had been agreed by the parties as constituting the correct outcome in this case.

74 Mr Thomas submitted also that the Solicitor had not engaged in 'sophisticated' or 'well-planned' misconduct. Instead, there had been a 'problem period' between 2006 and 2009, during which the many significant pressures exerted on him, coupled with the absence of any mentoring or other guidance during his early years as a solicitor, caused him to fail signally in the performance his duties to his clients and to the Commissioner. Except in the matters described in Grounds 6, 7 and 13 involving workers compensation claims (this being a field in which he had very little experience), all of his misconduct and unsatisfactory conduct had occurred during the 'problem period'.

75 Two further arguments put by Mr Thomas were as follows: (a) towards the end of 2009 the Solicitor gained important insights into the scale of his professional defaults, with the result that he did not challenge the Law Society's audit of his practice and he readily accepted employment in another firm; and (b) the particular pressures to which he had been subject during the 'problem period' no longer existed.

76 Finally, Mr Thomas suggested that completion of the courses listed in proposed Order 3 should expressly be made mandatory and that in Order 4 the language of 'default' should if possible be avoided.

77 Discussion and conclusions. Towards the end of the hearing, we indicated to the parties that if we were satisfied that consequential orders along the lines of those proposed in the Instrument of Consent were appropriate, we were likely to decide that an order reprimanding the Solicitor should also be made. The parties through their counsel indicated that they would not oppose this additional order.

78 A further matter that we discussed with counsel was the addition of an order to the effect that if on or after 26 March 2017 the Solicitor was granted an unrestricted practising certificate he should be subject to some degree of further supervision for a period of two years or thereabouts. A matter of particular concern that we raised in this discussion was that the Solicitor might not respond appropriately to any notification from the Commissioner that a complaint had been made against him.

79 We directed that after the hearing the Commissioner should file the agreed text of a proposed order along these lines. This direction was duly complied with.

80 We have given careful consideration to the major question to be resolved in the present context: namely, whether the many instances of misconduct and unsatisfactory conduct on the part of the Solicitor, occurring as they did over a period of some eight years, were such as to call for removal of his name from the Roll. In so doing, we have been mindful of the fact that, according to our assessment, the Solicitor's conduct described in a number of Grounds was improper to a more serious extent than was indicated in the Instrument of Consent.

81 Our decision is that the extreme measure of removal from the Roll is not required. The Solicitor's conduct did not involve dishonesty nor, as Mr Thomas submitted, did it amount to 'sophisticated' or 'well-planned' misconduct. The nature and severity of the particular pressures exerted on the Solicitor during the 'problem period', coupled with the lack of prior experience and guidance that might have enabled him to withstand these pressures, sufficiently explain why he behaved as he did. He is no longer subject to these pressures and is now practising in an environment where, according to him and his employer, he is providing good service to his clients.

82 We have decided that we should make the orders proposed in the Instrument of Consent, amended and supplemented as discussed at the hearing. These orders will ensure that the Solicitor remains in his current working environment for a period of nearly four years. They will also ensure that he acquires through formal courses of education the capacity to manage a legal practice that he singularly lacked during and indeed before the 'problem period', and that if in due time he obtains an unrestricted practising certificate he will be obliged during a specified period to seek advice as to how to respond to any complaint made against him. Finally, the reprimand included amongst these orders will serve to draw attention to the serious nature of his past derelictions of duty.

Costs and compensation orders

83 Under section 566(1) of the Act, 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.

84 It was not suggested that there were any 'exceptional circumstances' in this case. We accordingly make the costs order proposed as Order 5 in the Instrument of Consent.

85 In accordance with normal practice, we list this matter for further directions relating to the claims for compensation made by the four complainants listed in the Application. We also direct the Commissioner to notify each of these complainants of the date and time of this directions hearing. The Commissioner is not required to attend it.

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Decision last updated: 02 May 2013