Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Legal Services Commissioner v Tsalidis, Council of the Law Society of NSW v Tsalidis [2013] NSWADT 101
• Hearing dates: 1 March 2013
• Decision date: 10 May 2013
• Jurisdiction: Legal Services Division
• Before: M Chesterman, Deputy President; M Riordan, Judicial Member; C Bennett, Non-judicial Member

Decision

1. The Respondent is reprimanded.

2. (a) The Respondent is to pay a fine of $12,000.

(b) This fine is to be paid over a period of two years, in monthly instalments of $500 commencing one month after the date of this decision, subject to the Law Society having authority to determine, on appropriate evidence being furnished as to the Solicitor's means, that payment may be made over a longer period.

3. The Respondent is not to be permitted to hold a Principal Practising Certificate or to become a Solicitor/Director of any Incorporated Legal Practice until the expiration of three years' cumulative practice as an employed Solicitor.

4. When the Respondent first applies to hold a Principal Practising Certificate or to become a Solicitor/Director of any Incorporated Legal Practice, after the period referred to in Order 3, any such application is to be accompanied by a report from a Psychiatrist or clinical Psychologist of the Respondent's choice and approved by the Manager for the time being of the Professional Standards Department, certifying the practitioner's medical and psychiatric fitness to practise in such capacity.

5. Any Practising Certificate issued to the Respondent, permitting him to practise during any period within five years of the date of this decision, is to be subject to the following conditions:

(a) within seven days of receiving a written complaint from a client, he is to provide a copy of that complaint to the Legal Services Commissioner and the Law Society of New South Wales; and

(b) in the event of a response to any complaint against him being sought by the Legal Services Commissioner or the Law Society of New South Wales, he will, within two weeks, seek the advice and assistance of a member of the Senior Solicitors' Scheme, or its equivalent at the time, with respect to the complaint.

6. (a) The Respondent is to pay 70% of the costs of the Legal Services Commissioner.

(b) The Respondent is to pay the costs of the Council of the Law Society.

(c) The amounts payable under these costs orders are to be paid in ten equal monthly instalments, the first of which will in each case be payable one month after the amount to be paid has been determined by agreement or assessment under the Act.

7. In case any difficulty arises in the implementation of Order 5, each party has liberty to apply on seven days' notice to the others.

• Catchwords: Solicitor - disciplinary proceedings - failures to comply with statutory notices requiring information and documents - other instances of professional misconduct and unsatisfactory professional conduct - orders to be made - costs
• Legislation Cited: Legal Profession Act 1987; Legal Profession Act 2004
• Cases Cited: Council of the Law Society of NSW v Treanor [2005] NSWADT 285; Council of the Law Society of NSW v Treanor [2009] NSWADT 115; Council of the Law Society of New South Wales v Tsalidis (No 2) [2010] NSWADT 297; Council of the Law Society of New South Wales v Tsalidis (No 3) [2012] NSWADT 229; Council of the Law Society of New South Wales v Tsalidis (No 4) [2012] NSWADT 230; Council of the Law Society of New South Wales v Tsalidis (No 5) [2012] NSWADT 231; Council of the Law Society of New South Wales v Webb (No 2) [2012] NSWADT 233; Council of the Law Society of NSW v Sandroussi [2012] NSWADT 40; Council of the New South Wales Bar Association v Fitzgibbon (No 3) [2012] NSWADT 148; Law Society of New South Wales v Berry [2005] NSWADT 46; Legal Services Commissioner v Angelovski [2013] NSWADT 93; Legal Services Commissioner v McCarthy [2010] NSWADT 269; Legal Services Commissioner v Sandroussi [2013] NSWADT 37; Legal Services Commissioner v Tsalidis [2012] NSWADT 160; New South Wales Bar Association v Howen (No 2) [2003] NSWADT 235; Lawrence John Treanor (1998) NSWLST 7; Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320; Veghelyi v Council of the Law Society of New South Wales, Unreported, Supreme Court, 6 September 1989, Smart J; Xu v Council of the Law Society of New South Wales [2009] NSWCA 43
• Category: Consequential orders
• Parties: Legal Services Commissioner (Applicant - matter 112024); Council of the Law Society of New South Wales (Applicant - matters 112028, 122013, 122016); Charles Kiriakos Tsalidis (Respondent)
• Representation: Counsel; C Webster SC (Council of the Law Society of New South Wales); P Kintomanis (Respondent); A Matalani (Legal Services Commissioner); A-M Foord (Council of the Law Society of New South Wales)
• File Number(s): 112024, 112028, 122013, 122016

reasons for decision

Introduction

1 This decision relates to the orders to be made by way of penalty and to the question of costs, following findings of professional misconduct and unsatisfactory conduct that we have made against the Respondent solicitor, Charles Kiriakos Tsalidis, in disciplinary proceedings instituted against him by the Legal Services Commissioner ('the Commissioner') and by the Council of the Law Society of New South Wales ('the Law Society').

2 These proceedings stemmed from four separate Applications. The first of them (matter 112024) was filed by the Commissioner and the remaining three (matters 112028, 122013 and 122016) by the Law Society.

3 With regard to all but three of the Grounds pleaded in these Applications, we have determined, following hearings conducted during 2012, that the Respondent (hereafter 'the Solicitor) engaged in professional misconduct or unsatisfactory professional conduct. Our findings to this effect are set out in the following decisions, each of which relates to a separate matter:-

112024: Legal Services Commissioner v Tsalidis [2012] NSWADT 160

112028: Council of the Law Society of New South Wales v Tsalidis (No 3) [2012] NSWADT 229

122013: Council of the Law Society of New South Wales v Tsalidis (No 4) [2012] NSWADT 230

112016: Council of the Law Society of New South Wales v Tsalidis (No 5) [2012] NSWADT 231

4 The first of these decisions was delivered on 8 August 2012 and the remaining three on 7 November 2012.

5 In accordance with arrangements foreshadowed at the hearing of the Commissioner's Application, we reserved for a single joint hearing any questions of penalty that might arise in any one or more of the four matters. When the Tribunal has made one or more findings of professional misconduct and/or unsatisfactory professional conduct, the provision governing consequential orders by way of penalty is section 562 of the Legal Profession Act 2004 ('the Act').

6 A hearing on those questions, and also on the question of costs (which is to be determined under section 566 of the Act), took place on 1 March 2013. As in the hearings during 2012, Mr Matalani appeared for the Commissioner, Ms Webster SC for the Law Society and Mr Kintomanis of counsel for the Solicitor.

7 The present decision on penalties and costs should be read in conjunction with our four earlier decisions. We will not repeat what we said in them except to the extent necessary to explain the conclusions that we now reach.

Our findings of professional misconduct or unsatisfactory professional conduct

8 In matter 112024, we made a finding of professional misconduct under section 676(4) of the Act on the ground (Ground 1) that the Solicitor, without reasonable excuse, had failed to comply with the requirements of a 'section 660 notice' (i.e., a notice served on him under section 660 of the Act). This notice was served on 5 October 2010 in the course of an investigation of a complaint being conducted on the instructions of the Commissioner. The Solicitor did not oppose this finding.

9 Our decision in this matter included also a finding that the remaining ground (Ground 2) of the Commissioner's Application should be dismissed.

10 In matter 112028, we made three findings of professional misconduct under section 676(4) of the Act, on the ground that the Solicitor, without reasonable excuse, had failed to comply with the requirements of three section 660 notices. The dates of service of these notices were 10 February, 25 March and 22 November 2010. Each of them was served in the course of an investigation of a complaint being conducted on the instructions of the Law Society. The Solicitor did not oppose these findings.

11 In this matter, we also found the Solicitor guilty of professional misconduct at common law on the ground of failure to assist the investigation to which the first of these notices related. We rejected the Law Society's claim that his failures to assist the two other investigations amounted in each case to professional misconduct.

12 In matter 122013, we made a finding of unsatisfactory professional conduct based on the manner in which the Solicitor provided representation for a client who was defending criminal proceedings being held in Wollongong. Having being notified during March 2007 that legal aid for this purpose had been granted, the Solicitor became aware that the client wished Ms Healey of counsel to appear for him. A dispute then arose between Ms Healey and the Solicitor as to their respective involvements in the case. During November 2007, he sent her a brief to appear and advise. We upheld the Law Society's claim, which the Solicitor opposed, that the following aspects of his conduct in this matter, set out in the Application as Grounds (i) to (iii), amounted to unsatisfactory professional conduct:-

The Respondent:

i. Failed to respond to correspondence from Ms Healey of Counsel.

ii. Failed to attend Court for listings.

iii. Failed to provide any material from the Crown brief to Counsel.

13 We made a further finding of unsatisfactory professional conduct on the ground (formulated in the Application as Ground (iv)) that the Solicitor had failed to reply to correspondence from the Legal Aid Commission dated 28 March, 14 May and 10 July 2008. In this correspondence, the Legal Aid Commission sought his response to a complaint about his behaviour that it had received from Ms Healey. The Solicitor did not oppose this finding.

14 In matter 122013, we also made a finding of professional misconduct, on the ground (formulated in the Application as Ground (v)) that the Solicitor had breached an order made by the Tribunal on 14 December 2010. This order was Order 5 in a decision (Council of the Law Society of New South Wales v Tsalidis (No 2) [2010] NSWADT 297 - hereafter 'Tsalidis (No 2)') relating to earlier disciplinary proceedings that the Law Society had instituted against him. It was to the effect that the Solicitor should cause a report on his psychiatric condition by a psychologist whom he had consulted to be forwarded to the Law Society 'immediately after 30 June 2011'. The Solicitor admitted that he did not comply with this order, but maintained through his counsel that his non-compliance amounted only to unsatisfactory professional conduct. We did not accept this submission.

15 In matter 122016, we made a finding of unsatisfactory professional conduct, on the ground that the Solicitor had failed to lodge an external examiner's report on his practice on or before 31 May 2009, pursuant to the requirements of section 274 of the Act. The Solicitor did not oppose this finding.

Earlier disciplinary proceedings against the Solicitor

16 At the hearing on 1 March 2013, the Commissioner and the Law Society tendered evidence relating to earlier disciplinary proceedings that had been instituted against the Solicitor. This evidence disclosed the following matters.

17 On 17 October 2002, the Professional Conduct Committee of the Law Society resolved as follows:-

RESOLVED that the Committee is satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct but dismisses the complaint under Section 155(3)(b) of the Legal Profession Act 1987 as the Committee is also satisfied that the legal practitioner is generally competent and diligent and that no other material complaints have been made (and sustained) against the legal practitioner.

Unsatisfactory Professional Conduct

The Solicitor breached section 48B(1) of the Legal Profession Act 1987 by practising as a solicitor without a current practising certificate.

18 On 2 April 2009, in proceedings instituted by the Law Society, the Tribunal ordered that he be reprimanded, that he pay a fine of $1,000 and that he pay the Society's costs. It did not publish reasons for its decision. Its orders were based on findings of professional misconduct on the following grounds:-

1. The solicitor failed to disclose costs in writing.

2. The solicitor transferred costs without authority.

3. The solicitor failed to communicate and respond to requests for communication.

19 In Tsalidis (No 2), the Tribunal made a finding of professional misconduct on the ground that the Solicitor, without reasonable excuse, had failed to comply with the requirements of a section 660 notice that had been served on him on 18 March 2009. The notice required him to provide information and documents relating to some of the issues that came before us in matter 122013: namely, his representation of his client in the criminal proceedings conducted in Wollongong during 2007 and his failure to respond during 2008 to correspondence from the Legal Aid Commission.

20 The Tribunal's orders in Tsalidis (No 2) were as follows:-

1. The Solicitor be publicly reprimanded.

2. The Solicitor be fined an amount of $4,000, to be paid in four instalments of $1,000 each, the first to be paid by 1 February 2011, the second by 1 August 2011, the third by 1 February 2012, and the final instalment by 1 August 2012

3. The Solicitor pay the Law Society's costs as agreed or assessed

4. The Solicitor attend upon his psychologist, Mr R.W. Backen as Mr Backen shall advise, and at least once per month until 30 June 2011, and thereafter until Mr Backen certifies that the course of treatment necessary to restore the Solicitor to full health is complete

5. The Solicitor shall cause a report of Mr Backen, and if appropriate the aforesaid certificate, to be provided to the Council of the Law Society ("the Council") immediately after 30 June 2011. If the course of treatment continues after that date, then the Solicitor shall cause a further report and the aforesaid certificate of Mr Backen to be provided to the Council at the time of completion of the course of treatment.

6. If Mr Backen is unable or unwilling to continue acting, the Solicitor shall appoint another qualified psychologist and notify in writing the name and address of that person to the Council within 14 days and the preceding two paragraphs of these orders shall take effect as if that psychologist were named therein.

7. Until the completion of the course of treatment, the Solicitor shall also provide copies of any correspondence or notices that he receives from the Law Society or the Legal Services Commissioner in relation to any professional conduct matters to his counsel, Mr D. A. Smallbone, or such other counsel as the Solicitor notifies in writing to the Council.

21 On 15 December 2011, the Council of the Law Society resolved under section 60(1)(a) of the Act to suspend for the period ending 30 June 2012 the local practising certificate granted to the Solicitor for the year 2011/2012. The grounds for this resolution were that the Solicitor had contravened Order 5 of the Tribunal's decision in Tsalidis (No 2) and was therefore no longer a fit and proper person to hold a practising certificate. This suspension remained in force until the expiry of the suspended certificate on 30 June 2012.

The Solicitor's testimony

22 Although an affidavit sworn by the Solicitor was filed in matter 112028, it was not read at any of the hearings in these proceedings. At the hearing on 1 March 2013, we granted leave for him to give oral evidence.

23 Evidence in chief. The salient points in this part of the Solicitor's evidence were as follows. He was now 53 years old. He was admitted to practice in December 1982. The suspension of his practising certificate on 15 December 2011 caused him to feel 'stunned' for a while. After he managed to come to grips with his new situation, he made some unsuccessful attempts to obtain employment in or near Wollongong, where he lived and had practised. These attempts included applying for a management position with a local authority and asking some of his former clients whether they could offer him an unskilled job. He was 'stunned and shocked' that he could not find skilled employment outside the legal profession and 'humiliated' at being compelled to approach his former clients. The fact that he remained unemployed was something that he thought about 'every day'.

24 He now devoted a good deal of his time to domestic tasks. His wife, who had formerly worked part-time, took on full-time employment, in which her net earnings were about $60,000 per annum. They had four children, of whom the eldest was studying law at university and the other three were at high school. During the last year or two of his practice, his net annual income had declined to about $35,000, having previously been about $50,000. But because he was no longer in practice, his family had been compelled to reduce their expenditures significantly. He had a mortgage debt of about $98,000, on which he could only afford to pay the interest due, amounting to about $600 per month. He had other loans requiring repayment, including a loan of about $30,000. Apart from the family home, he had no other present assets of significance. His parents were both in their mid-80s and the total amount that he could expect to inherit from them would be in the region of $180,000.

25 He agreed with the proposition that it was 'intolerable' that the only way to induce him to answer correspondence from the Commissioner or the Law Society had been to bring him before the Tribunal. He reflected on his failings in this regard 'every day' and felt 'deeply ashamed' about them. When he received an invitation, about seven weeks after the suspension of his certificate, to attend a function of the Wollongong and District Law Society to mark the 25th anniversary of his commencing practice - along with a number of his colleagues - as a solicitor, he declined to attend, because he believed that it would be 'humiliating', 'degrading' and 'embarrassing'. He felt that he had failed himself, his family and his fellow-practitioners.

26 He believed that if he returned to practice, he would no longer fail to give prompt answers to correspondence from authorities such as the Commissioner and the Law Society. One reason for this was that he now realised the high importance of such correspondence. Another was that while unemployed he had learned how to use computers and email facilities and for that reason would no longer be dependent on a secretary to prepare and send his responses. In addition, the pressures exerted on him by requests of various kinds from his two siblings and by the needs of his parents were now less than they had been during the period leading up to his suspension from practice.

27 His strong preference would be to return to practice as a sole practitioner. He had practised in this way for many years and found it enjoyable. He was happy to see clients outside normal office hours and to take on a wide variety of matters. Although his former practice (to which the Law Society had appointed a manager at the same time as the suspension of his certificate) had 'disbanded', he believed that he could return to the office premises that he had previously occupied. His newly acquired skills in computing would enable him to administer his trust account electronically. He would employ the same 'wonderful' part-time assistant as had worked for him previously, as she remained 'loyal' to him. He would invite the Commissioner and the Law Society to contact him at any time in order to monitor his performance. Finally, whether or not a condition of his being permitted to return to practice was that he should regularly consult his former psychologist, Mr Backen, he would do so anyway. He could not afford this at present, because of his lack of means.

28 Cross-examination by the Commissioner. Mr Matalani questioned the Solicitor about numerous failures on his part to comply with directions of the Tribunal. These included the following:-

(a) In Tsalidis (No 2) at [17 - 18], the Tribunal, having described various such instances of non-compliance, said:-

17 The procedural history of this matter between February and June 2010 has been set out in some detail in these Reasons, because by 25 June, we considered the Solicitor's attitude towards the Tribunal to be bordering on the contemptuous. ... [T]here had been five directions hearings and the matter had been listed for hearing on two further occasions, yet the Solicitor had still not filed his Reply, nor any affidavits, notwithstanding that the Tribunal had been informed, from the time of the first directions hearing, that the Solicitor would be filing this material, and the Tribunal had ordered him to do so. Further, up to that time at least, the Solicitor had not proffered any explanation for his failure to comply with these orders.

18 If the Solicitor had not complied with the orders made by the Tribunal on 25 June, it was likely that at the next directions hearing on 30 June, we would have made an order under section 563 of the Act, suspending the Solicitor's practising certificate, at least until he had fully answered the Notice.

(b) In matter 112024 (the proceeding instituted by the Commissioner), the Solicitor failed (i) to file a Reply following service of the Application on him, (ii) to attend a directions hearing on 5 October 2011, and (iii) to comply with directions given on 2 November 2011, 7 December 2011, 1 February 2012 and 7 March 2012 to file his Reply and evidence within specified periods of time.

(c) The directions relating to the hearing on 1 March 2013, given on 12 November 2012, included a direction to the Solicitor to file his evidence and submissions on the questions of penalty and costs on or before 20 December 2012. He failed to comply with this direction.

29 In response to Mr Matalani's questions, the Solicitor said that his failures to comply with directions of the Tribunal were attributable to the following causes: (a) he had no experience with disciplinary proceedings, and therefore no confidence in his capacity to prepare the required documents properly; (b) after his practising certificate was suspended, he could not always afford to pay for legal representation; and (c) he did not file an affidavit in compliance with the direction on 12 November 2012 because he and Mr Kintomanis decided that it would be preferable for him to give his evidence orally.

30 Mr Matalani pointed out to the Solicitor that in matter 112024, the notice under section 660 was served on 5 October 2010 and he was given an extension of time to comply on or before 11 February 2011, but that he did not comply until 2 April 2012. He then asked how long it had taken the Solicitor to prepare this reply and why there had been such a long delay in preparing it. The Solicitor's answers were that it had taken two days and that the delay occurred because he just 'didn't make the time'. When then asked whether a similar delay would occur if after he returned to practice another notice were served on him, the Solicitor said that some colleagues of his had undertaken to help him in such a situation and that his assistant could send out copies of the notice to them.

31 Mr Matalani then showed to the Solicitor an extract from the transcript of the proceedings in Tsalidis (No 2). During cross-examination on 16 August 2010, the Solicitor was asked what he would do if he received notices from authorities such as the Law Society or the Legal Aid Commission requiring his response. His answer was that he would ensure that his 'daily correspondence' was 'moving as quickly' as possible, he would allow himself 'maximum time' to attend to the response, he would 'be honest and discuss the complaint with two or three trusted colleagues' and he would 'try to set aside a day on the weekend' where he could prepare the response without being distracted in any way.

32 The Solicitor acknowledged that if he had taken these steps when served with the more recent notices under section 660, he would have complied with them. He maintained, however, that the Tribunal should now trust him to comply with any notices served in the future, because he would keep a 'clear desk' and he knew what compliance involved.

33 In answer to Mr Matalani's final question, the Solicitor said that out of the fines (which totalled $5,000) that the Tribunal imposed in Tsalidis (No 2) and in the earlier proceedings determined on 2 April 2009, an amount of only $1,000 remained unpaid.

34 Cross-examination by the Law Society. Ms Webster asked the Solicitor how much income his wife had earned during 2011, being the last year when he held a practising certificate. He replied that he did not know this, but agreed that it was 'a lot less' than the net income of about $60,000 that she now earned.

35 The Solicitor agreed with Ms Webster that in matter 112028, in which we found that he had committed professional misconduct through failing to comply with three notices under section 660 and failing to assist an investigation, he had also failed to comply with the Tribunal's directions to file both a Reply and his evidence.

36 In answer to questions from Ms Webster relating to his breach of the Tribunal's order to him (in Tsalidis (No 2)) to furnish to the Law Society a report prepared by Mr Backen, the Solicitor testified as follows: (a) this order was made because of evidence from him that he had suffered from depression; (b) subsequently, he had seen Mr Backen twice, early in 2012 and late in that year; and (c) he had not consulted any other health professional about his mental condition. He repeated his evidence, given in chief, that at present he could not afford to see Mr Backen, but that if he were permitted to return to practice he would arrange for regular consultations irrespective of whether he was ordered to do so.

The parties' submissions

37 The Commissioner's submissions in chief. In contending that the appropriate order under section 562 of the Act in these proceedings was an order removing the Solicitor's name from the Roll, Mr Matalani referred us to the principle, stated by Young CJ in Equity in Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 at [17], that such an order should only be made when 'the probability is that the solicitor is permanently unfit to practise'.

38 Mr Matalani argued that this criterion was satisfied in the present case because the Solicitor had exhibited 'a flagrant disregard for his professional and statutory obligations', notably those imposed by section 660 of the Act, and because it had become apparent that lesser sanctions, such as a fine and a reprimand, were insufficient to deter him from continuing to breach these obligations.

39 In emphasising the importance of compliance with section 660 notices, he submitted that non-compliance by legal practitioners may be motivated by a desire to withhold information and/or documents that would provide the basis for findings of serious misconduct against them. He referred to the fact that non-compliance is not only professional misconduct under section 676(4) (in the absence of a reasonable excuse), but also a criminal offence under section 660(3), attracting a maximum penalty of 50 penalty units. As pointed out by the Tribunal (at [26]) in a case to which we will refer again, Legal Services Commissioner v Sandroussi [2013] NSWADT 37, this translates to a maximum fine of $5,5000.

40 In support of his submission that penalties such as a fine or reprimand had proved insufficient to deter the Solicitor from non-compliance, Mr Matalani drew particular attention to the following aspects of a chronology contained in his written submissions. During the period from June to September 2010 the Solicitor attended the four hearing days in the proceedings in Tsalidis (No 2). In the course of those proceedings, he was cross-examined about his failure to comply with a section 660 notice. On 5 October 2010, about three weeks after the last hearing day, the Commissioner caused another section 660 notice to be served on him. This was the notice to which one of the four matters in the present proceedings (matter 112024) relates. He did not comply before the date specified (15 October 2010), nor did he respond to a letter from the Commissioner, dated 18 November 2010, asking why he had not complied. On 14 December 2010, the Tribunal published its decision in Tsalidis (No 2), which included orders that he be reprimanded and fined the sum of $4,000. A letter from the Commissioner dated 13 January 2011 extended until 12 February 2011 the time for compliance with the section 660 notice. He did not comply within this extended period. Compliance did not take place until 2 February 2012, exactly five months after the Commissioner had filed the Application in matter 112024, alleging professional misconduct on his part on account of his non-compliance.

41 On this particular issue, Mr Matalani added that the failure of the penalties imposed in Tsalidis (No 2) to act as a sufficient deterrent was confirmed by the Solicitor's non-compliance with three section 660 notices served on him by the Law Society (matter 112028) and his breach of the Tribunal's order requiring the provision of a report on his mental condition by Mr Backen (matter 122013).

42 A further submission made by Mr Matalani was that we should not ignore the recent findings by us that did not involve section 660 notices. He pointed out that when these were also taken into account, it became apparent that during the last four years the Tribunal had made seven findings of professional misconduct against the Solicitor and five findings of unsatisfactory professional conduct.

43 Two authorities on which Mr Matalani relied were recent decisions by the Tribunal in circumstances where, as in the present proceedings, both the Commissioner and the Law Society had filed disciplinary applications against a solicitor alleging professional misconduct. The two applications were heard together by the same panel of the Tribunal.

44 In the first of these decisions, Council of the Law Society of NSW v Sandroussi [2012] NSWADT 40, the Tribunal found that the respondent solicitor, Mr Sandroussi, had contravened a condition of four successive practising certificates issued to him, had breached two separate undertakings given to the Law Society and had failed to answer three letters that the Society had sent to him. The contraventions and breaches of undertaking all stemmed from his failure over four years to attend courses of Mandatory Continuing Legal Education (MCLE). The Tribunal made a finding of professional misconduct on these two matters and a finding that Mr Sandroussi's failure to answer the correspondence was unsatisfactory professional conduct. It ordered that he be reprimanded and fined, that he pay the Society's costs and that over a period of five years the Law Society should not issue or renew any practising certificate for him unless (a) he had complied with any subsisting requirements relating to MCLE and (b) there was no amount payable but unpaid with reference to the fine or the costs order.

45 At [45], the Tribunal noted that in these proceedings the Law Society had not relied on past disciplinary findings made against Mr Sandroussi and had not sought a striking off order. It noted also that the Society knew that the Commissioner, in an Application already filed, intended to seek such an order and would 'rely on the Respondent's record'.

46 In the second decision, Legal Services Commissioner v Sandroussi [2013] NSWADT 37, the Tribunal made a finding of professional misconduct against Mr Sandroussi on the ground that he had failed, without reasonable excuse, to comply with a section 660 notice. At [44], it pointed out that in such cases the usual sanctions applied by the Tribunal were a reprimand, a fine and, where appropriate, suspension of the legal practitioner's practising certificate until he or she complied with the notice. It went on, however, to consider whether Mr Sandroussi, having regard to his 'past professional conduct', was a fit and proper person to engage in legal practice.

47 The Tribunal then described (at [48 - 50]) two significant events involving Mr Sandroussi during 2004. The first was his being reprimanded by the Professional Conduct Committee of the Law Society, on the grounds of breach of an undertaking and failure to communicate, such as would be reasonably likely to give grounds for a finding by the Tribunal of unsatisfactory professional conduct. The second was the cancellation of his practising certificate for six months by the Law Society, on the ground that he had not kept proper records of trust money as required by section 62 of the Legal Profession Act 1987. Having outlined the evidence on this matter and referred to certain submissions of Mr Sandroussi relating to it, the Tribunal expressed the opinion that his conduct on that occasion amounted to professional misconduct.

48 Having summarised (at [52 - 57]) the findings made in Council of the Law Society of NSW v Sandroussi and the grounds on which these findings were based, the Tribunal then concluded that Mr Sandroussi was unfit to engage in legal practice and that his name should therefore be removed from the Roll. At [58 - 61], it explained these conclusions as follows:-

58 We find that the Respondent's behaviour since 2004 demonstrates a substantial and consistent failure to reach and maintain a reasonable standard of diligence and a reasonable standard of competence. The Respondent's lack of commitment to diligence and integrity and his lack of commitment to continuing legal education, and through it competence, in our view render him unfit to engage in legal practice.

59 We could have no confidence that a reprimand and substantial fine would result in the Respondent achieving and maintaining competence and diligence. We would expect he would continue to conduct himself the way he has since 2004.

60 The public are entitled to expect a solicitor to have greater competence and diligence than the Respondent, given his attitudes, is likely to provide. The profession's reputation needs to be protected from conduct of the Respondent that demonstrates his lack of competence and diligence.

61 We have concluded that the proper result is for the Respondent's name to be removed from the roll.

49 This reasoning by the Tribunal lends support to an observation made by Mr Matalani in his submissions in reply: namely, that when determining fitness to practise, honesty is not the only consideration.

50 An addendum to the second decision by the Tribunal involving Mr Sandroussi states that it had been prepared for publication in conjunction with the first decision, but that due to 'an oversight in the Registry' this had not occurred.

51 Mr Matalani submitted that, if we did not make an order removing the Solicitor's name from the Roll, we should impose a 'substantial' fine in addition to a reprimand, and that any restriction on his practising certificate such as the Law Society sought should be 'reasonable and relevant' as required by section 60 of the Act. He added that when such restrictions are being contemplated in orders made under section 562, there is usually evidence that an appropriately qualified legal practitioner is prepared to supervise or employ the respondent, but that was not the case here.

52 On the question of costs, Mr Matalani relied on section 566(1) of the Act. This states that when the Tribunal has made a finding of professional misconduct or unsatisfactory professional conduct against a legal practitioner, it must order the practitioner to pay costs, unless 'exceptional circumstances' exist. Mr Matalani argued that there were no 'exceptional circumstances' in this case, since it was not enough for the Solicitor to testify that he was currently earning little or no income.

53 The Law Society. In line with the terms of each of the Law Society's Applications in these proceedings, Ms Webster did not seek an order removing the name of the Solicitor from the Roll. She submitted that since his failures to deal properly with section 660 notices, being the matter of principal concern, occurred within a relatively short time frame, his incapacity in this regard might not persist into the future. A further reason why he should not be regarded as probably permanently unfit to practise was, she suggested, that the pressures exerted on him by family responsibilities appeared to have diminished.

54 A further submission made by Ms Webster in this context was that the respondent solicitor who was struck off in Legal Services Commissioner v Sandroussi [2013] NSWADT 37 had failed to provide any responses at any time to the section 660 notices that had been served on him, and had committed other misconduct of a serious nature, involving trust account irregularities and persistent failures to attend MCLE course. On both these matters, the present case was distinguishable.

55 Ms Webster also did not seek one of the orders listed in the Application in matter 122028: namely, that the Solicitor's practising certificate be suspended until such time as he complied with the first two of the three section 660 notices involved in this matter (being the notices dated 3 February and 25 March 2010). The reason for this was that, as already mentioned, the Solicitor had complied with the notices on 2 April 2012, before the initial hearing of this matter.

56 The first order claimed by the Law Society, in each of its three matters, was that the Solicitor be fined. Like Mr Matalani, Ms Webster submitted that the fines imposed for non-compliance with section 660 notices should be 'substantial'. She referred us to a number of cases, decided over the past 13 years, in which the Tribunal discussed the factors to be considered in determining the amounts of such fines.

57 Secondly, the Law Society sought a reprimand in each matter. Ms Webster argued that this was necessary in order to mark the serious nature of the Solicitor's misconduct or unsatisfactory conduct.

58 The most significant orders sought by the Law Society were orders 3 and 4 contained in the Applications in each of matters 122013 and 122016:-

3. The Respondent is not to be permitted to hold a Principal Practising Certificate or to become a Solicitor/Director of any Incorporated Legal Practice until the expiration of 5 years cumulative practice as an employed Solicitor.

4. When the Respondent first applies to hold a Principal Practising Certificate or to become a Solicitor/Director of any Incorporated Legal Practice, after the period referred to in Order 3, any such application is to be accompanied by a report from a Psychiatrist or clinical Psychologist of the Respondent's choice and approved by the Manager for the time being of the Professional Standards Department, certifying the practitioner's medical and psychiatric fitness to practise in such capacity.

59 With reference to the Solicitor's stated desire to return to practise as a sole practitioner, Ms Webster pointed out that he had furnished no evidence of arrangements being made or contemplated for supervision of his practice. In his testimony, he had referred only to obtaining assistance in dealing with section 660 notices.

60 On the matter of costs, her submission was that, in the matters in which the Law Society was involved, there were clearly no 'exceptional circumstances' warranting departure from the general principle stated in section 566(1) of the Act.

61 The Solicitor. Mr Kintomanis agreed with the reasons suggested by Ms Webster for treating the decision in Legal Services Commissioner v Sandroussi as distinguishable. He added that the Tribunal in that case might well have believed that the respondent solicitor was determined never to comply with the section 660 notice that had been served on him.

62 He pointed out that the Solicitor had been in practice for about 29 years and that about 19 years elapsed after his admission without any problems whatsoever arising. There had simply been a 'bad patch' of four years, between 2008 and 2011. But for this, his long period in practice had been 'blemish-free'.

63 Mr Kintomanis submitted also that the only conduct of the Solicitor that could conceivably warrant removal of his name from the Roll was his repeated failures to respond to section 660 notices. But in considering these, it was important to bear in mind that (a) he had eventually complied with them and (b) that there was no suggestion that he delayed in complying with them because he had 'something to hide'. Dishonest conduct on his part had not been alleged. His failures to comply within the times specified had stemmed only from his continuing tendency to 'put his head in the sand' when notices were served on him and 'wish that they would go away'.

64 A further submission of Mr Kintomanis was that fines were an inappropriate sanction in this case or, in the alternative, that they should be set at a very low level and the Solicitor should be permitted to pay them by instalments. Mr Kintomanis pointed out that the suspension of the Solicitor's practising certificate had already imposed a substantial financial penalty, causing him to 'confront reality' as opposed to merely facing a threat of losing his right to practise, and that he had given unchallenged evidence as to his low income and limited resources.

65 Mr Kintomanis acknowledged that orders restricting the Solicitor's right to practise might be required, but suggested (as we understand him) the following approach:-

(a) There should be an order or orders, such as the Tribunal made in Tsalidis (No 2), requiring the Solicitor to attend as appropriate on a specialist practitioner with expertise in psychology or psychiatry (such as Mr Backen) and to cause reports on his mental condition to be sent by the practitioner to the Law Society for a period of three years, or for such lesser period as the practitioner considers to be necessary.

(b) Any order whereby the Solicitor would be permitted to practise only as an employed solicitor should last only until this practitioner had certified that he was fit to hold an unrestricted certificate (which might occur within a relatively short period, such as one year).

(c) There should be an order authorising the Law Society to determine, at any time during the next five years, that by virtue of a failure on the Solicitor's part to respond appropriately to correspondence from the Society or the Commissioner regarding a complaint, his right to practise should be suspended for a period of one year. An order of this nature would operate in a similar fashion to a suspended sentence in a criminal case.

66 With specific reference to Grounds (i) to (iii) in matter 122013, Mr Kintomanis stated (a) that his cross-examination of Ms Healey in a manner which attracted our criticism (see Council of the Law Society of New South Wales v Tsalidis (No 4) [2012] NSWADT 230 at [77 - 78]) was not attributable to any instructions from the Solicitor and (b) that the Solicitor acknowledged that he should have advised his client about his dispute with Ms Healey.

67 Mr Kintomanis stated also that personal matters affecting himself, not any default of the Solicitor, were the reason why the Tribunal's direction to the Solicitor to file written submissions before the hearing on 1 March 2013 was not complied with. He apologised for this failure to comply.

68 On the question of costs, Mr Kintomanis did not oppose the Law Society's claim, but asked for an order to pay by instalments. He argued that because the Commissioner had failed on one of the two grounds in matter 112024, the Solicitor should not be ordered to pay any of the Commissioner's costs.

69 Submissions in reply. In response to the claim by Mr Kintomanis that the Solicitor should not have to pay the Commissioner's costs in matter 112024, Mr Matalani relied on paragraph (a) of subsection (2) of section 566 of the Act. It is convenient to reproduce this subsection below, along with subsection (1), in the course of setting out our conclusions on the costs of these proceedings.

70 Ms Webster opposed the making of the second of the three orders suggested by Mr Kintomanis (see [65] above) as an appropriate means of restricting the Solicitor's right to practise. She maintained that the length of the period in which he should be permitted to practise only as an employed solicitor should be stipulated in the Tribunal's order, rather than being stated as lasting only until a psychiatrist or psychologist had certified that the Solicitor was medically and psychologically fit to practise. Her argument here was that the Solicitor also needed to improve his capacities with regard to managing a law practice.

71 In opposing the third of the orders proposed by Mr Kintomanis, Ms Webster put forward two arguments. The first was that the Law Society's powers to suspend a practising certificate were limited to those conferred by sections 60 and 78 of the Act. The second was that the proposed order would require the Law Society to determine a question that properly lay within the province of the Tribunal: namely, whether a default by the Solicitor in responding to correspondence from the Law Society or the Commissioner regarding a complaint against him amounted to misconduct warranting suspension of his certificate.

Discussion and conclusions

72 The orders to be made under section 562. We have found it particularly difficult in this case to decide whether the Commissioner's claim for a striking-off order should be upheld, or whether lesser sanctions such as those proposed by the Law Society are sufficient to achieve the purposes of this provision.

73 These purposes can be summed up as follows: protecting the public; upholding the reputation of the legal profession within the community; deterring practitioners who had engaged in professional misconduct or unsatisfactory professional conduct from behaving in a similar fashion in the future; and making it clear to other practitioners that conduct of this nature will expose them to sanctions such as section 562 authorises.

74 It is well established that sanctions imposed under this provision should not be punitive and should not be more severe than the pursuit of these purposes requires.

75 It is useful here to outline in turn the considerations favouring each of the alternatives proposed, together with references to relevant authorities.

76 Considerations favouring removal from the Roll. The earliest communication from an official authority that the Solicitor failed to deal with appropriately was the letter to him dated 28 March 2008 from the Legal Aid Commission. The most recent was the Tribunal's direction, given to him on 12 November 2012, to file evidence and submissions on the questions of penalty and costs before 20 December 2012.

77 During that period of nearly three years, he failed to reply as required to three letters from the Legal Aid Commission (matter 122013), five section 660 notices (one in Tsalidis (2), one in matter 112024 and three in matter 112028) and no less than twelve directions given by the Tribunal (for further details of these directions, see [28] and [35] above). He also failed to comply with the Tribunal's order to cause a report by Mr Backen on his psychiatric condition to be sent to the Law Society (matter 122013).

78 Mr Kintomanis both claimed responsibility and conveyed his apologies for the failure to comply with the latest of the Tribunal directions. In so far as the Solicitor provided any explanations for all the other instances of non-compliance, they were to the effect that he 'buried his head in the sand', or (in the case of some of the failures to comply with directions) that he did not feel sufficiently expert in disciplinary matters to prepare and file affidavits or submissions and he could not afford to engage appropriate expertise, or (in the case of the breach of the Tribunal's order) that there was a death in Mr Backen's family at a crucial period.

79 This record of repeatedly ignoring requirements imposed by official bodies in the course of investigating or determining complaints inspires little confidence that the Solicitor, if faced with another such requirement in the future, will promptly provide a full response. The only matters that he put forward to seek to persuade us that he would do this were as follows: (a) the experience of losing his right to practise had caused him to 'face reality'; (b) he now appreciated the high importance of compliance, (c) he had acquired skills in word-processing and the use of email facilities that would enable him to respond without having to rely on a secretary; (d) colleagues had agreed to help him if any response to an official communication was needed; and (e) he would keep a 'clear desk' in these circumstances.

80 In addition, the Solicitor has failed to demonstrate that, to the extent that his past failures were attributable to a mental condition in the nature of depression (as indeed was accepted by the Tribunal in Tsalidis (No 2)), that condition no longer affects him. He did not adduce any evidence from an appropriate expert, such as Mr Backen, to support this contention. Furthermore, since his practising certificate was suspended, he has consulted Mr Backen only twice and has not consulted any other psychologist or psychiatrist.

81 His position in this regard is in marked contrast to that of the respondent barrister in New South Wales Bar Association v Howen (No 2) [2003] NSWADT 235. In that case, Mr Howen was found guilty of professional misconduct on the ground of two instances of non-compliance with a notice served on him under section 152 of the Legal Profession Act 1987. This form of notice (hereafter a 'section 152 notice') was a notice served under the predecessor to section 660 of the Act. Mr Howen maintained that his failures stemmed from 'psychological factors'.

82 At [5], the Tribunal stated:-

5. If the Respondent was influenced to misconduct wholly or partly by psychological factors two clear issues arise:

(i) Did those factors reduce the culpability that one would have attributed to the Respondent's conduct in the absence of such factors? In short, did they reduce his responsibility for the conduct?

(ii) Do those factors still exist and, if so, can the possible effects of those factors be controlled so that any risk of the Respondent re-offending is removed or reduced to an acceptable level?

83 At [8 - 20], the Tribunal gave careful consideration to reports on Mr Howen's mental condition prepared by two psychiatrists. They indicated that at the time of his non-compliance with the notices he was subject to substantial emotional stressors and was 'significantly emotionally unwell', but that so long as he took their professional advice in the future the risk of his re-offending would be significantly reduced. On the basis, therefore, that both of the questions previously posed were answered in the affirmative, the Tribunal held at [20] that 'Mr Howen should not now be prevented by any order of the Tribunal from continuing to practise as a barrister'. It ordered instead that he be reprimanded and that he pay the Bar Association's costs.

84 An observation of the Tribunal at [26] gives further guidance to its reasoning:-

26. Contrition with its usual emotional overtones is not relevant as such in these cases where punishment is not a purpose. It is not helpful to look for emotional and repeated declarations of regret. What is relevant and useful in the context of cases such as this is a state of mind that is that kind of contrition that consists of a determination not to indulge in the same or similar conduct again however unemotionally or briefly that determination may be expressed. We think that the Respondent in his present state of mind is resolved not to offend in a similar way in future.

85 In the present proceedings, the Solicitor has not brought forward any evidence such as Mr Howen provided, and he has sought only limited professional advice regarding his psychological problems. The line of reasoning that the Tribunal adopted in Howen (No 2) is therefore not available to us here.

86 A further kind of evidence that is commonly tendered by the respondent in proceedings such as these is character evidence from professional colleagues. The Solicitor testified that if he were permitted to practise again, other lawyers whom he knew would be willing to assist him in responding to any official correspondence relating to complaints against him. But he has not tendered any testimonials from them, or from any other person with whom he has had professional or personal contact.

87 Equally, the Solicitor has not tendered any evidence of arrangements being made or contemplated for supervision of his practice (if he were to have an unrestricted certificate) or for him to be employed as a solicitor.

88 In many judgments, the importance of complying fully and promptly with the requirements of section 660 notices and other similar documents has received strong emphasis. The judgment of Smart J in Veghelyi v Council of the Law Society of New South Wales (Unreported, Supreme Court, 6 September 1989) provides a good example. His Honour said:-

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

89 In Law Society of New South Wales v Berry [2005] NSWADT 46, the Tribunal held that the name of the respondent solicitor should be removed from the Roll, on the ground that he had appeared before the Tribunal on five occasions during the preceding 13 years and that the last three of these occasions involved failure to comply with a section 152 notice. At [9], it held, on the basis of medical evidence, that the respondent's 'apparent disregard for demands for information came not from stupid obstinacy but from a personality trait, exacerbated by clinical depression'. It held also that 'the latter could be cured by medication and psychotherapy, and the former could be modified by the same psychotherapy over a course of treatment which would take three (3) months or longer'. Its conclusion on this evidence (at 10]) was, however, that it was 'not satisfied to the requisite standard that the [respondent] is, at this time, a person who is fit to practise'.

90 After observing at [13] that a different conclusion was reached on 'not dissimilar facts' in Howen (No 2), the Tribunal stated as follows at [14]:-

14 Considering the Solicitor's previous record, this being the fifth instance when he has been found to have or has admitted to having "stuck his head in the sand" either to the detriment of his client, or to the detriment of his practice, we simply could not be comfortably satisfied that he would not again so react if he were to be faced with a similar situation tomorrow.

91 This decision, indicating that the repeated ignoring of requirements such as are imposed by section 660 notices may be sufficient of itself to warrant a striking-off order, was set aside on appeal to the Supreme Court. But no report of the Court's judgment is available, so we do not know the grounds on which it based its decision.

92 Finally, the unsatisfactory professional conduct established against the Solicitor by virtue of his failures (a) to provide proper representation for his client in the criminal proceedings in Wollongong during 2007 (matter 122013) and (b) to lodge an external examiner's report (matter 122016) cannot be wholly ignored. The same applies to the Tribunal's finding of professional misconduct on 2 April 2009, though this cannot be given great weight because the reasons supporting this finding are not known to us.

93 Considerations favouring orders falling short of removal from the Roll. Three important considerations in this category are these: (a) dishonesty or other similarly improper behaviour has not been alleged against the Solicitor; (b) he did ultimately comply, albeit after inexcusable delays, with each of the five section 660 notices that were served on him; (c) nothing in the information and documents that he provided when so complying suggested that these delays occurred because he had 'something to hide'.

94 It is important also that, seen overall, the Solicitor's record of service to his clients during his period of 29 years in practice is commendable. According to his evidence, he was frequently retained to represent defendants to criminal proceedings, in circumstances that often required him to take up their cause at short notice and outside normal working hours. This assessment of his work as a solicitor seems appropriate to us even though his representation of the Wollongong client in 2007 was unsatisfactory. This may also have been the case with some of the matters in which complaints by clients prompted the service of the section 660 notices with which he failed to comply.

95 For the reasons suggested by Ms Webster and endorsed by Mr Kintomanis, the Tribunal's decision in Legal Services Commissioner v Sandroussi [2013] NSWADT 37 is distinguishable from the present case. We do not, however, accept the submission by Mr Kintomanis that the Tribunal in that case might well have believed that Mr Sandroussi was determined never to comply with the section 660 notice that had been served on him. Nothing in the Tribunal's reasons supports this inference.

96 Two relatively recent decisions of the Tribunal, relating to conduct by a respondent solicitor broadly similar to that of the Solicitor in this case, illustrate the use of protective orders falling short of removal from the Roll.

97 In Council of the Law Society of NSW v Treanor [2009] NSWADT 115, this conduct took the form of three instances of non-compliance with section 660 notices. At the time of the hearing, the respondent had not complied with any of these notices.

98 As indicated at [10 - 12], the Tribunal was advised that in proceedings reported as Lawrence John Treanor (1998) NSWLST 7, based on the same respondent's failure to comply with a section 152 notice, he had admitted frankly that this behaviour stemmed from a 'head in the sand' attitude to correspondence from the Law Society. The penalty imposed was a reprimand. The Tribunal was also referred to Council of the Law Society of NSW v Treanor [2005] NSWADT 285. Here there were findings against him of two instances of non-compliance (still continuing at the time of the hearing) with section 152 notices and two instances of non-compliance (described as 'even more serious') with undertakings given to fellow-practitioners. In these proceedings, there was evidence of ill health influencing the respondent to behave in these ways. The Tribunal ordered that he be reprimanded and fined $7,000.

99 At [14] (in the 2009 decision), the Tribunal made the following observations:-

14 It is significant that this is the third time that the respondent practitioner has been brought to the Tribunal for failure to comply with notices issued by investigators in relation to their investigation of a complaint. In the present matter the conduct of the respondent practitioner is aggravated by his failure to file a reply to the application and his failure to appear before the Tribunal to assist the Tribunal in determining the context in which these breaches occurred. The present proceedings indicate a continuing attitude of the respondent practitioner to ignore his obligations under the Act and to impede the proper investigation of complaints. Regardless of the particulars of the individual matters, such as the failure to properly account for $360, these relevantly minor issues cannot be allowed to cloud the fact that the failure to comply with s 660 notices is a very serious breach of a practitioner's obligations under the Act

100 The Tribunal pointed out at [17] that, in contrast to the situation in the 2005 proceedings, there was no evidence of relevant ill health because the respondent had not adduced any evidence at all. It did not consider, however, that the circumstances required removal of his name from the Roll. Such an order was not, in fact, sought by the Law Society. The only order by the Tribunal that it expressly characterised as 'protective' was an order that the respondent not be issued with a practising certificate until he had complied with each of the three section 660 notices on which the proceedings were based.

101 In Legal Services Commissioner v McCarthy [2010] NSWADT 269, the respondent solicitor was found guilty of professional misconduct for failing to comply with a section 660 notice and with an undertaking (given orally to the Commissioner) to respond to specified correspondence from the Commissioner. At [20], the Tribunal outlined as follows three prior occasions on which the respondent had been before it:-

1. On an application for a finding of professional misconduct and consequential orders made by the LSC on 25 September 2006.

The application particularised two matters related to the complaint of a Ms Lynette Thompson, namely failure to respond to a notice dated 27 June 2006 issued pursuant to s 660 of the Act and breach of an undertaking given to an officer of the LSC.

The application became the subject of an instrument of consent under s 564 of the Act signed on 7 February 2007 whereby with the consent of the Tribunal there was a finding that the solicitor was guilty of professional misconduct. He was publicly reprimanded, ordered to pay a fine of $2,000 and ordered to pay the costs of the LSC. It was also noted that he had undertaken to respond to all written communications from the LSC within 28 days, to respond to telephone calls from the LSC within 3 days and to provide the information required of him by the subject of the relevant complaint by 14 February 2007.

2. On an application for a finding of professional misconduct and consequential orders made on 14 January 2008. The application was grounded on the solicitor's breach of the undertaking given on 7 February 2007 to reply to all written communications from the LSC within 28 days. It was alleged that he failed to honour this undertaking in respect of certain further information sought in relation to Ms Thompson's complaint.

On 2 June 2008, the Tribunal found the solicitor guilty of professional misconduct, publicly reprimanded him, ordered him to pay a fine of $2,500 and ordered him to pay the costs of the LSC. Those orders followed a hearing in the absence of the solicitor, the solicitor as recorded in the Tribunal's reasons having written a letter stating "It is quite obvious the Tribunal will make a finding against me on your assertion. It is equally obvious no purpose can be served by my attendance. Therefore I leave the matter in the hands of the Tribunal to determine it in my absence".

3. A complaint by the Law Society that the solicitor employed a disqualified person without first obtaining approval. On 16 September 2004 he was found guilty of statutory professional misconduct, publicly reprimanded and ordered to pay the costs of the Law Society.

102 The Tribunal, having previously noted that the Commissioner did not seek a striking-off order, decided that such an order was not warranted. It summed up its conclusions as follows (at [40 - 44]):-

40 On the face of it, the conduct of the solicitor in failing to comply with the notice and in failing to honour his undertaking to the LSC is so egregious that it must give rise to doubts about his fitness to practice within the criteria established by Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. On one view of his conduct the solicitor treated the LSC with gross contempt.

41 However the Tribunal is persuaded that contempt is not the explanation for the solicitor's conduct but rather an inability to face unpleasant situations. However, nothing in the evidence before us gives us confidence that in a similar situation the problem will not recur. For that reason, we are of the opinion that... formal supervision should be ordered for a period pursuant to s 562(4)(c) of the Act. In that regard we propose to adopt the alternative suggestion made by the solicitor's counsel which will have him making a regular telephone report to the office of the LSC. We have decided that this should continue for a period of 2 years. In addition for the same period we will impose a condition similar to that imposed in Knudsen [LSC v Knudsen (No 2) [2006] NSWADT 245].

42 On the basis of that supervision for a relatively lengthy period we are comfortable that it is not necessary to prevent the solicitor from continuing to practice even though we find him guilty of professional misconduct.

43 There should also be a public reprimand, the imposition of a fine and an order that the solicitor pay the costs of the LSC. As to the quantum of the fine, the sum of $8,000 was suggested. However in the circumstances of this case the Tribunal is of the opinion that the fine should exceed that amount and proposes to fix the fine at $10,000.

44 The Tribunal makes these findings and orders:

1. The solicitor is guilty of professional misconduct.

2. The solicitor is reprimanded.

3. The solicitor is ordered to pay a fine of $10,000.

4. The solicitor is ordered to undertake a period of 2 years of practice under supervision, such supervision dating from today, to be constituted as follows:

a) by the solicitor at least once during each calendar month telephoning an officer of the Legal Services Commissioner (LSC) and reporting to her or him whether any client has complained about his professional conduct since his last report, as to the general nature and number of matters currently handled by him and as to any change in his circumstances relating to the manner and conduct of his practice.

b) by the solicitor within 7 days of receiving a written complaint from a client providing a copy of that complaint to the LSC...

6. In case any difficulty arises in the implementation of Order 4, each party to have liberty to apply on 7 days notice to the other.

103 Our decision on penalty. We have concluded, after a good deal of deliberation, that an order removing the Solicitor's name from the Roll is not required in this case. Instead, any future practising certificate issued to him should be subject to a number of conditions for a significant period of time, and he should be reprimanded and ordered to pay a significant sum by way of fine.

104 In coming to this conclusion, we have taken particular account of the two Tribunal decisions that we have just outlined: Treanor (2009) and McCarthy. In each of them, the significant misconduct of the respondent solicitor - repeated non-compliance with section 660 notices - was the same as that of the Solicitor in this case. The principal reason for this conduct - 'an inability to face unpleasant situations' (to quote the phrase used in McCarthy), as opposed to having 'something to hide' - was also the same.

105 Furthermore, in these two cases, as in the present case, there was no finding that the non-compliance established against the respondent was attributable to some psychological condition affecting him. With regard to two of the respondents whom we are considering - Mr Treanor and the Solicitor - a finding of this nature was made only in earlier proceedings, i.e., in Treanor (2005) and in Tsalidis (No 2). A further point of resemblance between the proceedings involving Mr Treanor and the present proceedings is that in both of them the respondent failed to file documents that he should have filed in the Tribunal.

106 It could be argued that, according to a broad quantitative assessment, the misconduct of the Solicitor was on a larger scale than that of Mr Treanor and Mr McCarthy. But this is not enough in itself to justify treating the present case as distinguishable from the decisions relating to each of them. What matters is that in all three cases the nature or quality of the principal behaviour amounting to misconduct and the reasons underlying this behaviour were similar. It is most significant also, we should add, that in none of these cases was there a finding of dishonesty.

107 Other aspects of the present proceedings to which we attach significance are (a) that unlike Mr Treanor, the Solicitor did ultimately comply with the section 660 notices served on him and (b) that he appears to have had a relatively good record of service to clients over a long period of practice.

108 We recognise that in Law Society of New South Wales v Berry [2005] NSWADT 46 the respondent solicitor was struck off on the ground of misconduct comparable (as far as one can tell) to that of the Solicitor. But as noted above at [91], the Supreme Court set aside this decision, on grounds that are not known to us. We add also that we have some concerns about the Tribunal's statement at [10] (quoted by us above at [90]) that it was 'not satisfied to the requisite standard that the [respondent] is, at this time, a person who is fit to practise'. This would appear to be in conflict with the following principle stated by Young CJ in Equity (at [17]) in a case to which we already referred, Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320:-

17... The onus is on the claimant to show that the opponent is not a fit and proper person. It is a civil onus: Re Evatt; Ex parte NSW Bar Association (1967) 67 SR (NSW) 236. However Briginshaw v Briginshaw (1938) 60 CLR 336, 362 shows the particular standard that must be applied when working out the civil onus of proof.

109 In our opinion, the two protective orders proposed by the Law Society (see [58] above) provide a good starting-point in this case. They involve restricting the Solicitor's practice to that of an employed solicitor for a prescribed period and requiring a psychologist or psychiatrist to certify his fitness for practice before any unrestricted practising certificate is issued to him.

110 We have decided that a further order, more specifically aimed at preventing any recurrence of the principal form of misconduct that he has committed, should be made. It should take the form of attaching two conditions to any practising certificate issued to the Solicitor within the next five years. The first of these conditions is in line with one of the orders in McCarthy. The second resembles an order made in Tsalidis (No 2) and also an order in Legal Services Commissioner v Angelovski [2013] NSWADT 93.

111 This further order is as follows:-

Any Practising Certificate issued to the Respondent, permitting him to practise during any period within five years of the date of this decision, is to be subject to the following conditions:

(a) Within seven days of receiving a written complaint from a client, he is to provide a copy of that complaint to the Legal Services Commissioner and the Law Society of New South Wales; and

(b) In the event of a response to any complaint against him being sought by the Legal Services Commissioner or the Law Society of New South Wales, he will, within two weeks, seek the advice and assistance of a member of the Senior Solicitors' Scheme, or its equivalent at the time, with respect to the complaint.

112 Because an order of this nature was not discussed at the hearing on 1 March 2013, we will grant leave for the parties to apply within seven days if they foresee any difficulty with its implementation.

113 In view of these requirements imposed on the Solicitor, we consider that it is sufficient to restrict his practice as an employed solicitor for three years (not five), as was suggested by Ms Webster in her submissions in reply.

114 For the reasons advanced by Ms Webster (see [70 - 71]), we regard as inappropriate the second and third of the protective orders suggested by Mr Kintomanis (see [65]). We believe also that the first of these suggested orders is not necessary in view of the order (proposed by the Law Society) requiring certification of fitness to practise before any unrestricted practising certificate is issued. It will be for the Solicitor to ensure that he obtains advice and, if necessary, treatment from a psychologist or psychiatrist.

115 We have no doubt whatsoever that a reprimand is required. To fail to make such an order would involve deviating significantly from numerous Tribunal decisions on breaches of section 152 and section 660 notices.

116 We also have no doubt that a fine is required. We do not accept Ms Webster's submission that a separate fine is required for each instance of misconduct or unsatisfactory conduct. In partial agreement with Mr Kintomanis, we consider that the straitened financial circumstances of the Solicitor, caused in part by the suspension of his practising certificate, should be borne in mind when setting the amount of the fine. We also agree that the Solicitor should be permitted to pay the fine by instalments.

117 We have made six findings of professional misconduct against the Solicitor, on the grounds of failures to comply with four section 660 notices, failure to assist the investigation of a complaint and breach of a Tribunal order. We have also made three findings of unsatisfactory professional conduct, based respectively on his conduct in the course of representing a client in criminal proceedings, his failure to reply to correspondence from the Legal Aid Commission and his failure to lodge an external examiner's report.

118 Our conclusion, having regard to the scale of fines levied in past cases where the respondent is of limited means, is that a fine of $12,000 is appropriated. It should be paid over a period of two years, in monthly instalments of $500, subject to the Law Society having authority to determine, on appropriate evidence being furnished as to the Solicitor's means, that payment may be made over a longer period.

119 We observe finally that the Solicitor should, for his own sake, treat these orders under section 562 as giving him 'one last chance'. We cannot in any sense bind any court or tribunal called on to make orders by way of penalty against him in future disciplinary proceedings. But it seems highly probable to us that if in those proceedings there were findings of misconduct by him of the type that has been prominent in these proceedings, an order for removal of his name from the Roll would be made.

120 Costs. In these proceedings, the provisions relevant to costs are subsections (1) and (2) of section 566 of the Act. These state:-

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

(2) The Tribunal may make orders requiring an Australian legal practitioner whom it has not found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), if satisfied that:

(a) the sole or principal reason why the proceedings were commenced in the Tribunal was a failure of the practitioner to co-operate with the Commissioner or a Council, or

(b) the practitioner has contravened an order of the Tribunal made in the course of proceedings concerned, or

(c) there is some other reason warranting the making of an order in the particular circumstances.

121 As Mr Kintomanis acknowledged, an order that the Solicitor pay the Law Society's costs is mandated by section 566(1) of the Act, there being no evidence of 'exceptional circumstances' suggesting to the contrary.

122 The position is different with the proceedings instituted by the Commissioner (matter 112024) because, as noted above, the Commissioner, while successful on Ground 1 of the Application, failed to establish Ground 2.

123 We reject both the submission by Mr Kintomanis that this of itself constitutes 'exceptional circumstances' such as to preclude any costs order being made against the Solicitor and the opposing submission by Mr Matalani that under section 566(2) we should make a costs order covering both Grounds.

124 The former submission is at odds with a number of decisions to the effect that in such a situation an order for payment of part of the applicant's costs is appropriate. These decisions include Council of the New South Wales Bar Association v Fitzgibbon (No 3) [2012] NSWADT 148 at [31 - 34] and Council of the Law Society of New South Wales v Webb (No 2) [2012] NSWADT 233 at [46 - 53]. A Court of Appeal decision (Xu v Council of the Law Society of New South Wales [2009] NSWCA 43 at [61 - 63]) overturning a costs order of the Tribunal in a comparable situation is distinguishable because, as explained in Webb at [47], the two grounds alleged by the Law Society - of which one succeeded and the other failed - were dealt with in separate hearings.

125 Mr Matalani's submission based on section 566(2) must be rejected, in our opinion, principally on account of the reasons why Ground 2 failed. As set out in Legal Services Commissioner v Tsalidis [2012] NSWADT 160 at [90 - 113], they were (i) that the section 660 notice on which the Ground was based was invalid in so far as it required the Solicitor to produce certain documents and (ii) he complied with every requirement in the notice except the requirement to produce these documents. These defects in the Application were significant. It is true that in the course of the proceedings in matter 112024 the Solicitor failed to comply with directions of the Tribunal (see [28] above), thereby potentially providing grounds to award costs against him under section 566(2)(b). But the defective nature of the Application is a factor of greater importance.

126 In this matter 112024, the hearing occupied one day. Because the Solicitor admitted Ground 1, on which the Commissioner was successful (see Legal Services Commissioner v Tsalidis at [11 - 22]), only a small proportion of the hearing was concerned with this Ground. With regard to Ground 2, on which the Commissioner failed, the Solicitor did not tender any evidence, but submissions by the parties' representatives occupied a significant proportion of the day.

127 Two further considerations should be taken into account. First, in order to establish Ground 1 alone, a substantive hearing relating to matter 112024 would have been necessary. It is probable that the duration of this hearing would have been half a day. Secondly, the Commissioner's attendance at the penalty hearing on 1 March 2013 (a one-day hearing) was required because Ground 1 had been made out.

128 Having regard to the circumstances outlined in the preceding three paragraphs, we conclude that the Solicitor should be ordered to pay 70% of the costs of the Commissioner.

129 The costs due under each of our two costs orders are to be paid in 10 equal monthly instalments, the first of which will be payable one month after the amount has been determined by agreement or assessment under the Act.

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Decision last updated: 10 May 2013