Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Council of the Law Society of NSW v Hancock (No 2) [2013] NSWADT 180
• Hearing dates: 16 July 2013
• Decision date: 13 August 2013
• Jurisdiction: Legal Services Division
• Before: M Chesterman, Deputy President; M Riordan, Judicial Member; E Hayes, Non-judicial Member

Decision

1. The name of the Respondent is to be removed from the local Roll.

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

• Catchwords: Solicitor - disciplinary application - finding of professional misconduct - whether removal from Roll warranted
• Legislation Cited: Evidence Act 1995; Legal Profession Act 1987; Legal Profession Act 2004
• Cases Cited: Council of the Law Society of New South Wales v Clapin (No 2) [2011] NSWADT 246; Council of the Law Society of New South Wales v Hancock [2009] NSWADT 201; Council of the Law Society of New South Wales v Hancock [2010] NSWADT 121 Council of the Law Society of New South Wales v Hancock [2013] NSWADT 63; Council of the Law Society of New South Wales v Hancock (No 2) [2009] NSWADT 327; Council of the New South Wales Bar Association v Power [2008] NSWCA 135; (2008) 71 NSWLR 451; Health Care Complaints Commissioner v Wingate (2007) 70 NSWLR 323; New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284; NSW Bar Association v Meakes [2006] NSWCA 340; Prothonotary v P [2003] NSWCA 320; Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325; Prothonotary of the Supreme Court of New South Wales v Nikolaidis [2010] NSWCA 73; Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341; Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448; Re Veron; Ex parte Law Society of New South Wales [1966] 1 NSWR 511
• Category: Consequential orders
• Parties: Council of the Law Society of New South Wales (Applicant); John Leslie Hancock (Respondent)
• Representation: Counsel; S Barnes (Applicant); D Allen (Respondent); Council of the Law Society of NSW (Applicant); Hancocks Solicitors (Respondent)
• File Number(s): 122006

reasons for decision

Introduction

1 On 7 March 2012, the Council of the Law Society (hereafter 'the Law Society') filed an Application naming John Leslie Hancock (hereafter 'the Solicitor') as Respondent, claiming that he had engaged in professional misconduct and seeking orders against him as follows: (a) that his name be removed from the Roll of legal practitioners; (b) that he pay the Law Society's costs; and (c) any further or other order as the Tribunal deemed fit.

2 On 4 June 2012, the Solicitor filed a Reply.

3 The first hearing of this matter took place before us on 10, 11 and 12 December 2012. Mr Barnes of counsel appeared for the Law Society and Mr Allen of counsel for the Solicitor.

4 In an Amended Application, which the Law Society filed by leave during the first hearing, three Grounds were advanced, in the following terms:-

Professional Misconduct

1. Purporting to act for Mr Abdallah Hadid and Mrs Sanaa Hadid ('the mortgagors') in the matter of their obtaining an advance of the sum of $130,000 from Mrs Abeeda Khan ('the mortgagee') on the security of their property at 662 Punchbowl Road, Punchbowl in the State of New South Wales ('the matter') in circumstances where:

(i) The Solicitor was not instructed by the mortgagors to act for them in relation to the matter; and

(ii) The mortgagors had no knowledge of the matter.

2. In purporting to so act, the Solicitor made representations to a finance broker, Peter Fisher & Co, the solicitor for the mortgagee, Mr Manuel Theos of Messrs Heidtman & Co. and an agent of the mortgagee, Mr Andrew Littleford of Response Finance which, to his knowledge, were false and misleading.

3. Upon settlement the Solicitor provided to the solicitor for the mortgagee a written direction to pay part of the loan advance to his company named Split Cycle International Pty Ltd in circumstances where he had no entitlement to do so.

5 We gave our decision following this hearing on 21 March 2013 (Council of the Law Society of New South Wales v Hancock [2013] NSWADT 63 - hereafter 'the principal decision'). Order 1 in this decision was in the following terms:-

1. The Respondent is guilty of professional misconduct on each of the three Grounds of the Amended Application for Original Decision, except as alleged in subparagraph (ii) of Ground 1.

6 The Amended Application contained Particulars of the three Grounds. Omitting four paragraphs that the Law Society did not press, they are set out in paragraph [8] of the principal decision.

7 On 16 July 2013, a further hearing took place ('the second hearing'). This related to (a) the consequential order or orders (if any) that we should make against the Solicitor pursuant to section 562 of the Legal Profession Act 2004 ('the LP Act') and (b) the question of costs. The parties had the same representation as at the earlier hearing.

8 The Solicitor was admitted to practice on 29 June 1990. He commenced practice on his own account in 1995. Save for a brief interruption during July 2002, he held a practising certificate until 21 May 2013. On that date it was suspended, in circumstances outlined below.

The evidence adduced at the second hearing

9 At this hearing, Mr Barnes tendered two affidavits sworn by Ms Foord, the solicitor for the Law Society, on 12 April and 21 June 2013 respectively. In them, Ms Foord described instances of disciplinary action that the Law Society had instigated against the Solicitor and referred to the decisions that had been reached, by the Society itself or by the Tribunal, as a consequence of this action.

10 Ms Foord's affidavits included the text of the reasons that the Law Society had given for three decisions of this nature that it had delivered. Annexed to her first affidavit were copies of three decisions of the Tribunal, including its reasons in each of them. The citations for these decisions are given below.

11 Mr Allen objected to the admission of those parts of the decisions of the Law Society and the Tribunal in which findings of fact were recorded. His objection, he said, did not extend to the orders that each of these bodies had made or to the grounds (with accompanying particulars) on which their orders were based. In addition, it did not extend to any of the contents of what we are calling the principal decision. But the findings of fact made by the Law Society or the Tribunal in past proceedings against the Solicitor were, he maintained, inadmissible to prove the existence of those facts, by virtue of section 91 of the Evidence Act 1995.

12 The Evidence Act is made applicable to these proceedings by section 558 of the LP Act. In section 91, it provides:-

91 Exclusion of evidence of judgments and convictions

(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

13 Having heard brief submissions by Mr Barnes opposing this ground of objection, we ruled that the findings of fact to which Mr Allen's objection was directed should be admissible only to prove that they constituted the basis for the disciplinary orders made by the Law Society or the Tribunal.

14 Having given further consideration to this question of admissibility since the hearing, we would make the following observations.

15 Section 91 of the Evidence Act has been held, in disciplinary proceedings against a legal practitioner, to exclude evidence of facts found by a sentencing judge in earlier criminal proceedings against the practitioner. Rulings to this effect were given in Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 and Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325. Neither of these cases was cited to us at the hearing.

16 In the latter case, however, the Court referred (at [5]) to the well established principle that in proceedings for removing the name of a lawyer from the Roll, it is important for the court or tribunal to 'make findings of fact in appropriate detail' on significant matters relating to the lawyer's conduct, since such findings 'could be of significance in the event that there is a subsequent application for readmission'. This principle suggests that, at least in the limited context to which it relates, findings of fact in a disciplinary proceeding against a legal practitioner will be admissible in a subsequent proceeding relating to his or her fitness to practise.

17 The submissions on this question did not refer to section 93(c) of the Evidence Act. This states that 'this Part' (which includes section 91) 'does not affect the operation of... the law relating to res judicata or issue estoppel'.

18 It may be that, contrary to the determination that we made, this provision renders admissible for all purposes the Tribunal's findings of fact in its three earlier decisions relating to the Solicitor. But for the purposes of deciding what consequential orders should be made in this case, we will not depart from this ruling.

19 Subject to this qualification, Ms Foord's affidavits, including the annexed decisions of the Tribunal, were admitted into evidence.

20 Mr Allen tendered an affidavit sworn by the Solicitor on 15 July 2013. Subject to a few deletions following an objection by Mr Barnes (the ground of which is outlined below), this was admitted. Three affidavits in the nature of testimonials on behalf of the Solicitor were also tendered and admitted.

21 None of the deponents was required for cross-examination.

The earlier disciplinary decisions relating to the Solicitor

22 All of the conduct of the Solicitor to which the principal decision relates was committed during November or December 2002.

23 Although all but one of the disciplinary decisions of the Law Society and the Tribunal identified in Ms Foord's evidence were delivered before the principal decision, most of the conduct to which they related occurred in 2003 and later years.

24 We set out here in summary form the following aspects of these decisions, to the extent that the evidence disclosed them: the period of time during which the relevant conduct of the Solicitor occurred; the nature of this conduct; the authority giving the decision(s) and the date(s) of the decision(s); the disciplinary finding(s); and the consequential order(s) made:-

(1) May 1998 to August 2007; failure to communicate with clients, delay in ensuring the payment of stamp duty on a purchase by clients (leading to delay in the registration of their title) and failure without reasonable excuse to comply with a statutory notice requiring information to be furnished to the Law Society; decisions of the Tribunal on 30 July 2009 and 19 October 2009; professional misconduct (on each of the three grounds); reprimand and fine of $12,000.

(2) 2003 - 2004; failure to respond to communications from Law Society and borrowing money from client in breach of Rule 12 of the Professional Conduct and Practice Rules; decision of the Professional Conduct Committee of the Law Society on 7 May 2009; unsatisfactory professional conduct; reprimand.

(3) January 2005 to December 2006; failure to pay fees owing to a barrister; decision of the Professional Conduct Committee of the Law Society on 21 June 2007; unsatisfactory professional conduct; reprimand.

(4) January 2005 to October 2006; failure without reasonable excuse to comply with a statutory notice requiring information to be furnished to the Law Society and failure to assist the Society in the investigation of a complaint; decision of the Tribunal on 25 May 2010; professional misconduct; reprimand and fine of $5,000.

(5) December 2012; failure to provide to the Law Society both (i) notice of the filing of creditor's petition against him and (ii) information about this 'show cause event', as required by section 67(2) of the LP Act; decision of the Council of the Law Society on 21 May 2013; no disciplinary finding; immediate suspension of practising certificate.

25 The two Tribunal decisions referred to in item (1) of this list are Council of the Law Society of New South Wales v Hancock [2009] NSWADT 201 and Council of the Law Society of New South Wales v Hancock (No 2) [2009] NSWADT 327. The decision referred to in item (4) is Council of the Law Society of New South Wales v Hancock [2010] NSWADT 121.

The evidence tendered by the Solicitor

26 In his affidavit, the Solicitor stated that he 'acknowledged' the findings in the principal decision on which our determination of professional misconduct was based and he accepted that these findings showed him to have been in 'serious breach' of his professional duties.

27 With specific reference to our finding that he had acted as a solicitor for Mr and Mrs Hadid without having received instructions to do so, he stated as follows:-

(a) He recognised that he 'should have made sure' that he in fact held instructions.

(b) He had 'learnt from the events relating to this matter', to the extent that he had 'ceased obtaining loans for people'.

(c) He asked the Tribunal to take account of findings in the principal decision (at [99 - 100]) to the effect that the Law Society had not alleged any fraud on his part and that his conduct was less serious than had been alleged because we rejected the Society's allegation (in subparagraph (ii) of Ground 1) that Mr and Mrs Hadid had 'no knowledge of the matter'.

(d) He appreciated that practitioners could only provide a service to the community if they acted 'on clear and precise instructions'.

(e) He was 'embarrassed and ashamed' that he had 'got himself into this position' by not ensuring that he had appropriate instructions.

(f) This experience might prevent him from 'continuing to provide help and assistance to people whether pro bono or for remuneration'.

28 The Solicitor stated further in his affidavit that he had 'tried to serve the community' in various ways. Supplemented by information provided to us by Mr Allen as to the periods of time involved, his evidence on this matter was as follows. He had provided free legal services for about 10 years to clients of Mission Australia and the Salvation Army, Dulwich Hill, he had acted for about 15 years as honorary solicitor for the Pitt Street Uniting Church and he had acted for about 18 months for the Macquarie University Australian Football Club and its members.

29 In his affidavit as tendered, the Solicitor made certain assertions regarding the circumstances in which he had purported to act for Mr and Mrs Hadid. We upheld Mr Barnes's objection to the admission of this material, on the ground that it sought to traverse our findings in the principal decision.

30 The three testimonials for the Solicitor were provided by (a) a solicitor (Mr James Soothill) who had worked for the Solicitor between May 2004 and June 2005 and retained personal contact with him; (b) a solicitor (Mr George Anastasi) who first met him professionally in 2009 and had come to know him on a more personal level; and (c) a registered and official liquidator (Mr Guy Baxendale), who had known him for about eight years.

31 Each of these witnesses stated, in their affidavit or in a subsequent communication to the Tribunal, that they were acquainted with the principal decision. They stated also that its findings regarding the Solicitor did not accord with their opinion of him, as they believed him to be a person of integrity and good character and very competent and experienced as a legal practitioner. Mr Anastasi referred to expressions of remorse and embarrassment that the Solicitor had communicated to him.

32 On 25 July 2013, after the second hearing had concluded, the Tribunal received from the Solicitor a further testimonial. His covering letter stated that it had been 'served on the Law Society'. The Society has not sent any communication to the Tribunal regarding this step taken by the Solicitor.

33 We have perused this testimonial, which was furnished by an accountant (Mr Ronald Brown). Beyond confirming that the Solicitor has acted as honorary solicitor for the Pitt Street Uniting Church, it adds little to what was put before us in the three testimonials admitted at the hearing.

The Law Society's submissions

34 The arguments advanced by Mr Barnes in his submissions on behalf of the Law Society were as follows.

35 On account of the following matters in particular, our findings against the Solicitor in the principal decision described professional misconduct of a serious nature. With respect to Ground 1 of the Society's Application, we found (at [50]) that when he purported to act as the solicitor for two mortgagors without having been instructed to do so, he knew that he had not been instructed. With respect to Ground 2, we found (at [83]) that the false and misleading representations made to three persons who were professionally involved in the mortgage were known by him to be false. Our finding on Ground 3 (at [95]) was that he withdrew from the funds being lent under the mortgage a substantial sum ($4,400) as a 'fee' to which he was not entitled.

36 At [108 -111], we held that the Solicitor's conduct under each of the three Grounds was 'disgraceful and dishonourable' and therefore constituted professional misconduct at common law. With reference specifically to Ground 1, we added that his conduct had violated 'the fundamental principle that legal practitioners must only perform the professional tasks that they know, or reasonably believe, to have been entrusted to them'.

37 Such conduct was the 'antithesis' of the requirements of honesty and integrity that were expected of legal practitioners. These requirements, and the 'interrelated interests' to which they were applicable, were authoritatively summarised in the following passage (quoted in the principal decision at [102]) in the judgment of Spigelman CJ in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 at 284; [2001] NSWCA 284 at [19 - 20]:-

19 Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity.

20 There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.

38 The Solicitor's choice not to testify at the first hearing of this matter had the adverse consequences (from his point of view) that the Court of Appeal described in Council of the New South Wales Bar Association v Power [2008] NSWCA 135; (2008) 71 NSWLR 451 at [16 - 17]. In this passage, the Court quoted at length from its judgments in Health Care Complaints Commissioner v Wingate (2007) 70 NSWLR 323 at [42 - 48] and NSW Bar Association v Meakes [2006] NSWCA 340 at [70 - 78].

39 Within the passage reproduced from Wingate, the Court quoted a passage from Re Veron; Ex parte Law Society of New South Wales [1966] 1 NSWR 511 at 515 that was directly in point:-

The respondent is an officer of the court. The Full Court of the Supreme Court held in November 1965 that on the material presented to it by the Law Society a prima facie case of misconduct was made out and called upon the respondent to show cause why he should not be dealt with. The matter arises within the disciplinary jurisdiction of the Court and if the respondent after consideration declines to give his account on oath of the matters charged he cannot complain if the Court holds against him that the facts as deposed to ... are substantially true ... The jurisdiction is a special one and it is not open to the respondent when called upon to show cause, as an officer of the Court, to lie by and to engage in a battle of tactics, as was the case here, and to endeavour to meet the charges by mere argument.

40 In Meakes, the following passage in the judgment of Tobias JA (at [70]) was also of immediate relevance:-

[70] In my opinion, the Tribunal also erred in declining to criticise the respondent's decision not to give sworn evidence at the hearing. It is true that in professional disciplinary proceedings the onus of proving misconduct lies with the party bringing the charges and, it should be noted, a practitioner is not required to give evidence. However, as this Court observed in Coe v NSW Bar Association [2000] NSWCA 13, there is an expectation that legal practitioners will mount the witness box to provide some explanation as to their conduct, rather than simply relying upon evidence from the Bar table. In Coe, Meagher JA (at [21]), with the agreement of Priestley JA, repeated with approval the following observations made by the Tribunal in that case and which are apposite to the present case:

In the circumstances where a prima facie [case] against a legal practitioner has been presented and where the practitioner wishes the Tribunal to accept an explanation as to how the conduct came about it is inappropriate and irregular for the legal practitioner to attempt to do so through submission from the Bar table. If he wishes the Tribunal to accept some explanation as to how the conduct came to take place then in our view he has an obligation to meet the situation by explanation on oath.

41 As these authorities demonstrated, the Solicitor, by not giving evidence, deprived himself of the opportunity to put forward an innocent explanation for his conduct. He could not, for instance, maintain that it was 'all a mistake'. The Tribunal was in fact left without any indication as to why he engaged in this conduct.

42 A concession made by the Solicitor in the course of Mr Allen's submissions on his behalf (these are summarised below) was that he had not received instructions to act in any capacity on behalf of Mr and Mrs Hadid. This amounted, however, to a contradiction of a claim, made by way of partial defence in his Reply, that they had instructed him to act as their mortgage broker. This contradiction enhanced the significance of the Solicitor's choice not to give evidence. Because he made this choice and could not adduce sufficient evidence on this matter from other sources, we found in the principal decision (at [63 - 69]) that he failed to discharge the evidentiary onus that lay on him with regard to this partial defence. He did not improve his position by seeking now to cast a different light on his dealings with Mr and Mrs Hadid.

43 During the period (late in 2002) of the misconduct described in the principal decision, the Solicitor had been admitted for about 12 years. He was an experienced practitioner.

44 This misconduct demonstrated that at the time when it occurred the Solicitor was not a fit and proper person to engage in legal practice. His subsequent record of disciplinary findings and orders gave no reason to believe that this situation had changed. One would expect that findings of misconduct would have become less frequent as he gained further experience, but this had not happened.

45 It followed from these considerations that the Solicitor was still not a fit and proper person to engage in legal practice. This basic criterion for removing his name from the Roll was satisfied. An order should therefore be made, in order to protect the public and ensure that the legal profession maintain the trust of the public and the judiciary. The testimonials tendered by the Solicitor were insufficient to prevent this outcome, particularly since his evidence of having acted on a voluntary basis for various bodies had not been confirmed by any of them.

46 A period of temporary suspension from practice (this was a sanction advocated by Mr Allen) was inadequate because at the end of any such period there could be no assurance that the Solicitor would be fit to practise. Only if the Tribunal could be satisfied in this way would a temporary suspension be appropriate.

47 An order for costs should be made against the Solicitor under section 566(1) of the LP Act.

The Solicitor's submissions

48 Mr Allen did not oppose the Law Society's application for a costs order. He advanced the following arguments on the question of consequential orders.

49 The Tribunal's findings in the principal decision did not compel the conclusion that, as at the present time, the Solicitor was not a fit and proper person to engage in legal practice.

50 Its findings on Ground 1 demonstrated only that the Solicitor made serious mistakes of judgment, through trying to 'wear two hats'. They did not show that he was not of good character. He has recognised the errors in this regard, and now concentrates only on being a solicitor. Furthermore, he now acknowledges that, despite having asserted in his Reply that Mr and Mrs Hadid had instructed him to act as their mortgage broker, he in fact received no instructions at all from them.

51 It was important also that the Tribunal found unproved the Law Society's allegation, in subparagraph (ii) of Ground 1, that Mr and Mrs Hadid 'had no knowledge of the matter'.

52 With regard to Ground 2, a important element of the principal decision (at [42]) was that according to the evidence given by Mr Theos (the solicitor for the mortgagee), the claim by Mr Flammia (another solicitor) to have witnessed the signatures of the mortgagors, Mr and Mrs Hadid, on the mortgage document 'constituted a "major reason" why he [Mr Theos] proceeded with the loan transaction'. For this reason, the Solicitor's false representation to Mr Theos that he had been retained by the mortgagors was less significant than would otherwise have been the case.

53 As to Ground 3, it was important that the Tribunal did not find that the Solicitor's lack of entitlement to the fee of $4,400 that he paid out of the mortgage loan to his company, Split Cycle International Pty Ltd, was known to him at the time.

54 A factor of overall significance was that, as we stated expressly in paragraph [99] of the principal decision, the Law Society did not allege participation by the Solicitor in any fraud that was, or may have been, committed against Mr and/or Mrs Hadid.

55 For these reasons, the misconduct established in the principal decision was not of a sufficiently serious nature to warrant a finding that at the time when it occurred, he was not a fit and proper person to engage in legal practice.

56 Although the Solicitor's disciplinary record since the events dealt with in the principal decision did not indicate that he had 'turned over a new leaf', he had been sufficiently penalised for the behaviour held to have constituted professional misconduct or unsatisfactory professional misconduct.

57 The testimonials, two of which were provided by officers of the Court, should be given substantial weight. They confirmed the Solicitor's claim, in his affidavit, that he had sought to 'serve the community' by providing free legal services to a number of institutions and individuals.

58 Having regard to all these considerations, an appropriate sanction or 'penalty' was suspension of his right to practise for a 'short' period: namely, one or two years. At the present time, he was not inclined, on account of his bankruptcy, to make any application for renewal of his currently suspended practising certificate.

Our conclusions

59 We will commence by repeating an observation, made by us in the principal decision at [98], that because the conduct of the Solicitor described in the Amended Application occurred before the commencement of the LP Act, we may not make 'any determination or order of a disciplinary nature' against him that is 'more onerous' than could have been made under the Legal Profession Act 1987.

60 In our opinion, an order for removal of the Solicitor's name from the Roll must be made, broadly for the reasons put forward by Mr Barnes. We will add some observations enlarging on these reasons.

61 In the principal decision, we found that the Solicitor engaged in professional misconduct in a manner involving the breach of three distinct kinds of duty.

62 First, he took it on himself to act as a solicitor on behalf of two members of the public without having obtained their instructions. We assume, as we must, that either or both of them knew about the relevant transaction, in which they were the mortgagors of property owned by them. But nonetheless he contravened a duty owed to them, as members of the public, to render professional legal services only in circumstances where, and to the extent that, they requested him to do so.

63 Secondly, he conveyed representations, which he knew to be false, to three people (including a solicitor) who were professionally involved in the mortgage that he had instructions from the mortgagors to act on their behalf. He thereby contravened a duty owed to fellow-practitioners and to other people rendering professional services not to mislead them in relation to any aspect of a matter in which he and they were professionally engaged.

64 Thirdly, he paid to his own company a significant sum ($4,400) from the mortgage loan despite having no entitlement to do so. As Mr Allen pointed out, we did not find that he knew he was not entitled to this sum. The reason why we made no finding on this question was in fact that the Amended Application contained no allegation of knowledge by the Solicitor of his lack of entitlement. His withdrawal of this sum from the funds to the mortgagors was nonetheless a breach of his duty to them not to misapply any part of these funds.

65 The nature of each of these breaches by the Solicitor of different forms of professional duty requires a finding that, at the time when he committed them he was not a fit and proper person to engage in legal practice. In each instance, he contravened requirements of honesty and integrity from which legal practitioners should never deviate. The observations of Spigelman CJ in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 at 284, which we have quoted above at [37], are very much in point.

66 With reference specifically to the Solicitor's conduct in knowingly misleading other professionals involved in the mortgage transaction, we would repeat the following passage (which we quoted in the principal decision at [103]) in the Tribunal's decision in Law Society of New South Wales v MacKenzie [2003] NSWADT 92 at [15]:-

15 The proposition that, knowingly, and, in some cases, negligently, to mislead another legal practitioner with respect to a matter significantly relevant to professional business is serious professional misconduct needs no judicial authority. Such conduct undermines one of the foundations of trust that the community has to be able to place in legal practitioners, namely, that what one practitioner says to another in the furtherance of practice can be accepted without question as having been made both truthfully and carefully. It is analogous with, the duty of a legal practitioner to avoid misleading a court, or with the duty to adhere to an undertaking given to another practitioner in the course of legal practice. We could wax eloquent about the consequences of legal practitioners being permitted with impunity to mislead other practitioners but such elementary and fundamental matters do not require to be elaborated, especially to the audience by whom these reasons may be read.

67 The question then arising is whether, having regard to this finding of past misconduct and to the other evidence put before us, the Law Society has discharged the onus of proving that, as a matter of probability, the Solicitor must at the present time be regarded as 'permanently unfit to practise'. This formulation of the criterion for a striking-off order has been used more than once by the Court of Appeal: see for example Prothonotary v P [2003] NSWCA 320 at [17(2)].

68 In Prothonotary of the Supreme Court of New South Wales v Nikolaidis [2010] NSWCA 73, the Court of Appeal set out its reasons for prior orders removing the name of the respondent solicitor from the Roll. It indicated, at [22], that according to the evidence and to agreed facts, the respondent had 'engaged in a deliberate and planned course of action involving third parties to deceive a costs assessor appointed by the Supreme Court in order to advance his position against a former client'. It said that this conduct revealed 'a willingness to engage in dishonest conduct and a willingness to undertake it in a planned fashion'.

69 The Court then said, at [23 - 25]:-

23 These events happened over ten years ago. Should the Court take into account the effluxion of time? In this regard, the views of Walsh JA (with whom Wallace P agreed) in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 460-461 are relevant:

"His counsel has urged upon the Court that the last of the matters which I have reviewed was as long ago as early 1960 and that some of them are still more remote. He has raised the question whether these matters, or any of them, could be held to have indelibly stamped the applicant as a man of bad character. I think, however, that this question so phrased does not truly pose the problem which confronts the Court. Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he established himself as a different man. The position is somewhat similar to that which exists when application is made by a barrister or a solicitor who has been found guilty of serious misconduct exhibiting a lack of proper standards, seeking reinstatement on the ground that, after a lapse of time, he has become a fit and proper person to be a member of a profession which requires qualities and standards in which he has known to have been deficient. In such cases it has been frequently said that a heavy onus lies on the applicant: see Ex Parte Clyne [[1962] SR (NSW) 436 at 441], and cases there cited." (emphasis added)

24 The views of Walsh JA, to the extent they are emphasised above were approved by this Court (Gleeson CJ, Meagher JA and Handley JA) in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637.

25 In circumstances where the respondent chooses not to come forward to assist by giving evidence in the disciplinary proceeding, the failure to provide an exculpatory statement or explanation means that inferences from proved facts can be drawn more safely because the defendant has failed to give any explanation of matters peculiarly within his knowledge: Azzopardi v The Queen [2001] HCA 25; 205 CLR 50; Weissensteiner v The Queen [1993] HCA 65; 178 CLR 217; Power at 463-467 [20]-[29]; and Einfeld at [23]. Similarly, in the context of assessing whether reformation may or may not have occurred, in circumstances where the respondent does not give evidence, it is difficult to see how it can be concluded that the reflection upon the underlying character of the respondent by the commission of a planned offence of dishonesty does not reflect on him over ten years later.

70 In this last paragraph ([25]), the Court reaffirmed principles on which Mr Barnes relied (see [38 - 40] above) regarding the impact on proceedings such as these of a respondent practitioner's failure to testify. But only the first sentence of this paragraph is relevant in the present proceedings. We took account of the principles stated in it in the principal decision (see [64 - 65]). The second and final sentence is not applicable here because the Solicitor did tender an affidavit at the second hearing. He was available for cross-examination, but the Law Society chose not to cross-examine him.

71 The claim by Mr Barnes that no 'reformation of character' occurred in this case was based to a significant extent on the number and nature of the disciplinary findings and orders that the Tribunal or the Law Society have made against the Solicitor, relating to conduct by him after the events dealt with in the principal decision.

72 These findings and orders are listed above at [24]. They include findings and orders (see items (1) and (2)) based on breaches of duty owed by the Solicitor to his clients, amongst which his delay, over a substantial period of time, in paying stamp duty on a transfer of land would appear to be the most serious. Also involved are a breach of a duty owed to a fellow-practitioner (item (3)) and several breaches of duties owed to the Law Society (items (1), (2), (4) and (5)).

73 Almost all of these instances of breach of duty occurred before or during 2006. But it is noteworthy that item (5) in the list describes breaches of statutory obligations to provide information to the Law Society as recently as December 2012. This was around the time of the first hearing in these proceedings. We may add here that it was open to the Solicitor to contest the Law Society's evidence on this matter, but he did not do so.

74 A further factor countering to a limited degree any claim of 'reformation' by the Solicitor is his change of position on the question whether Mr and Mrs Hadid instructed him to act as their mortgage broker. We agree with Mr Barnes's submission on this point.

75 Against this material showing that the Solicitor, despite the long time that he has spent in practice, has shown a propensity since 2002 to contravene professional obligations owed by him, we must weigh the evidence in his affidavit and in the three testimonials.

76 In his affidavit, the Solicitor acknowledged that he had been in 'serious breach of his professional duties' and stated that he was 'embarrassed and ashamed' on this account. It is a matter of concern, however, that he appeared inclined to view his breaches of duty as 'mistakes' (i.e. in not ensuring that he had proper instructions) and that he made no comment on the implications of his misrepresentations to fellow-practitioners or of his payment, without entitlement, of the sum of $4,400 to his company.

77 The testimonials relate chiefly to the Solicitor's pro bono work. They indicate that in his connection he has made a valuable contribution to the community over a significant period of time. But they do not address, to any significant extent, the question whether the Solicitor has seen the need, and taken the requisite practical steps, to prevent recurrence of the types of breach of duty that are described in the principal decision and in the later findings of the Tribunal and the Law Society.

78 In this connection, we take account also of authorities illustrating the limited role of testimonials in a context such as the present. These are summarised in the Tribunal's decision in Council of the Law Society of New South Wales v Clapin (No 2) [2011] NSWADT 246 at [67 - 68].

79 On account of the considerations that we have just outlined, we must reject Mr Allen's submission that our order by way of 'penalty' should take the form of a suspension of the Solicitor's practising certificate for a period such as one or two years. We agree with Mr Barnes that there could be no assurance that at the end of this period the Solicitor would be a fit and proper person to engage in legal practice.

80 We find instead that the Law Society has discharged the onus of proving that, as a matter of probability, the Solicitor must now be regarded as 'permanently unfit to practise'. Cogent and compelling evidence exists to support this finding.

81 Accordingly, we order, pursuant to section 562(2)(a) of the LP Act, that the name of the Solicitor is to be removed from the local Roll.

82 Since there are no relevant 'exceptional circumstances', we order also, under section 566(1), that the Solicitor pay the Law Society's costs of and incidental to these proceedings, as agreed or assessed.

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Decision last updated: 13 August 2013