Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: Council of the Law Society of New South Wales v Gallego [2014] NSWCATOD 102
• Hearing dates: 8 May 2014
• Decision date: 19 September 2014
• Jurisdiction: Occupational Division
• Before: M Chesterman, Principal Member; M Riordan, Senior Member; C Bennett, General Member

Decision

1. The Respondent is guilty of professional misconduct under Grounds 1, 2, 3 and 5.

2. The Respondent is guilty of unsatisfactory professional conduct under Ground 4.

3. The matter is set down for further directions at 9.30 a.m. on 25 September 2014.

• Catchwords: Disciplinary application - solicitor - acting in breach of conditions attached to practising certificate - misleading a court
• Legislation Cited: Civil and Administrative Tribunal Act 2013; Legal Profession Act 2004
• Cases Cited: Law Society of New South Wales v Jayawardena [2005] NSWADT 96; Law Society of New South Wales v Singh [2011] NSWADT 47; Mee Ling v Law Society of New South Wales [1974] 1 NSWLR 490
• Category: Principal judgment
• Parties: Council of the Law Society of New South Wales (Applicant); Mark Francisco Gallego (Respondent)
• Representation: Counsel; J Merkel (Respondent); C Groenewegen (Applicant)
• File Number(s): 132025

reasons for decision

Introduction

1 On 28 November 2013, the Council of the Law Society of New South Wales ('the Law Society') filed in the Administrative Decisions Tribunal an Application claiming that the Respondent, Mark Francisco Gallego ('the Solicitor'), was guilty of professional misconduct.

2 The orders sought in the Application were as follows:-

(1) The Solicitor be reprimanded

(2) The Solicitor be fined

(3) The Solicitor pay the costs of the Law Society; and

(4) Any other orders as the Tribunal deems appropriate.

3 The Grounds for the Application were formulated as follows:-

Mark Gallego ['the Solicitor'], while practising as a solicitor, was guilty of professional misconduct on the bases that he:

1. Failed to indicate on a Notice of Appearance dated 6 January 2009 in the matter Dawn Wade v Suzanne Suttor, Supreme Court of NSW case no 1001/2009 that Mr Robert Silberberg was retained as the solicitor for the defendant [Particular 19]

2. Failed to indicate in his affidavit dated 4 December 2009 that he was employed in the law practice of Mr Robert Silberberg [Particular 26]

3. Failed to indicate in a letter dated 19 July 2009 and on his letterhead to Ms Dawn Wade that he was an employed solicitor [Particular 23]

4. Attempted to mislead the Court of Appeal on and before 3 November 2011 [Particulars 39 to 55 incl]

5. Practised outside the conditions of his practising certificate between 10 December 2004 and 1 July 2010 [Particulars 1 to 38 incl].

4 In the following version of the accompanying Particulars, we have deleted a sentence in paragraph 32(d) that was not pressed and some references to passages in the evidence tendered by the Law Society. We have also abridged the Table in paragraph 1:-

Definitions

The Solicitor is the respondent, Mark Gallego, who:

- was born on 30 April 1958 and is aged 55 years

- was admitted as a solicitor of the Supreme Court of NSW on 10 July 1981

- held a practising certificate from 10 July 1981 to 1 July 2003 and 12 August 2003 to the present

- was unemployed from 9 December 2004 to 1 July 2008

- was employed as an unrestricted non principal with Morgan Lawyers from 1 July 2008 to 30 June 2010

- has been the sole principal of the law practice Mark Gallego Solicitor since 1 July 2010.

1. Following is a table of the dates since 1999 when the Solicitor applied for renewals of his practising certificate:

Year	Date of application	Type of certificate issued
1999/2000	13 May 1999	A/1 Principal
2000/2001	5 May 2000	A/1 Principal
2001/2002	29 June 2001	B/1 Employee
2002/2003	28 June 2002	B/1 Employee
2003/2004	11 August 2003	B/1 Employee
2004/2005	30 June 2004	B/1 Employee
2005/2006	30 June 2005	B/1 Employee
2006/2007	30 June 2006	Restricted /Non Principal
2007/2008	29 June 2007	Restricted /Non Principal
2008/2009	30 June 2008	Unrestricted /Non principal
2009/2010	30 June 2009	Unrestricted /Non principal
2010/2011	29 June 2010	Unrestricted /Non principal
2011/2012	29 June 2011	Unrestricted /Non principal
2012/2013	29 June 2012	Unrestricted /Non principal

[The table indicated in addition (a) that every application listed in it was an application for renewal of the Solicitor's practising certificate and (b) that the application made on 29 June 2010 was also 'an Application for Change of PC to Practise as a Principal or Solicitor on the Record'. In a column headed 'Employed by', the paragraph also set out the Solicitor's record of employment as follows: 1999-2001 Barnetts; 2001-2004 Edward T Davis & Co; 2004-2005 Richard Harvey & Associates; 2005-2008 Unemployed; 2008-2010 Morgan Lawyers; 2010-2013 Mark Gallego, Solicitor.]

PRACTISING CONTRARY TO THE CONDITIONS OF HIS PRACTISING CERTIFICATE

A Acting as the solicitor for Suzanne Ranken Suttor in the following proceedings:

i. Supreme Court proceedings

2. On or about 11 April 2006 the Solicitor wrote a letter to Mr Christopher M Chamberlain using his own letterhead being 'Mark Gallego B.Com LL.B Solicitor' and stating that he acted for Ms Suttor.

3. On 18 April 2006 the Solicitor filed a Notice of Motion in Supreme Court proceedings matter no 6141 of 2003 styled Grizonic v Suttor & Ors. On page 2 the Solicitor identified himself as the solicitor on the record and as a 'consultant with Stoyles & Stevens Solicitors'.

4. On 18 April 2006 the Solicitor swore an affidavit stating that at that time he was 'the solicitor for the First Defendant'.

5. On or about 27 November 2006 the Solicitor sent to Yates Beaggi Lawyers a fax dated 25 November 2006 under his own letterhead and on behalf of Ms Suttor.

6. On or about 27 November 2006 the Solicitor sent to Oliveri Lawyers a fax dated 25 November 2006 under his own letterhead and on behalf of Ms Suttor.

7. On or about 10 April 2007 the Solicitor sent to Yates Beaggi Lawyers a fax under his own letterhead and on behalf of Ms Suttor.

8. On or about 10 April 2007 the Solicitor sent a letter on the letterhead of Robert Silberberg, solicitor, offering the Solicitor's own post office box, email address, telephone and fax details for contact.

9. On 10 April 2007 the Solicitor filed a Notice of Motion in Supreme Court proceedings case no 2475 of 2005 in which he indicated that he was a consultant solicitor to Robert Silberberg, offering no principal place of business but the Solicitor's own post office box, email address, telephone and fax details for contact.

10. On 10 April 2007 the Solicitor filed an affidavit of Suzanne Suttor dated 5 April 2007 in Supreme Court proceedings case no 2475 of 2005 in which he indicated that he was a consultant solicitor to Robert Silberberg, offering no principal place of business but offering the Solicitor's own post office box, email address, telephone and fax details for contact.

11. On 10 April 2007 the Solicitor filed a Notice of Change of Solicitor in Supreme Court proceedings case no 2475 of 2005. The Notice:

a. indicated that Robert Silberberg was the solicitor on the record;

b. offered as a principal place of business, Mr Silberberg's law practice;

c. recorded the Solicitor's own post office box, email address, telephone and fax details for contact;

d. was signed by the Solicitor;

e. was not signed by Mr Silberberg.

12. On 2 May 2007 the Solicitor filed a Notice of Motion in Supreme Court Proceedings case no 6141 of 2003 in which he indicated that he was a consultant solicitor to Robert Silberberg, offering no principal place of business but offering the Solicitor's own post office box, email address, telephone and fax details for contact.

13. On or about 23 July 2007 the Solicitor prepared a fax transmission sheet identifying himself as a consultant on the letterhead of Robert Silberberg, offering the Solicitor's own post office box, email address, telephone and fax details for contact.

14. On 10 September 2007 the Solicitor wrote a letter to Mr Richard Gulley, Solicitor and Costs Assessor in which the Solicitor:

a. identified himself as a consultant on the letterhead of Robert Silberberg;

b. offered as a principal place of business, Mr Silberberg's law practice;

c. offered the Solicitor's own post office box, email address, telephone and fax details for contact.

15. On 24 September 2007 the Solicitor prepared a Notice of Motion, later filed, which indicated:

a. Robert Silberberg was the solicitor on the record;

b. the Solicitor was a consultant to Robert Silberberg;

c. no address of a principal place of business;

d. the Solicitor's own post office box, telephone and fax details for contact.

16. On 24 September 2007 the Solicitor swore an affidavit which indicated an address for service as Robert Silberberg, solicitor, but offering the Solicitor's own post office box, email address, telephone and fax details for contact. In this affidavit the Solicitor describes himself in paragraph 1 as 'the Solicitor for the First and Second Defendants'.

17. On 19 November 2007 the Solicitor prepared and filed a Notice of Motion in Supreme Court of NSW case no 6141 of 2003 which indicated:

a. Robert Silberberg was the solicitor on the record;

b. the Solicitor signed the document on his own account;

c. no address of a principal place of business;

d. the Solicitor's own post office box, email, telephone and fax details for contact.

18. On or about 21 August 2008 the Solicitor identified himself as a consultant on the letterhead of Robert Silberberg, offering the Solicitor's own post office box, email address, telephone and fax details for contact.

19. In the proceedings Dawn Wade v Suzanne Suttor, Supreme Court of NSW case no 1001/2009, the Solicitor filed a Notice of Appearance dated 6 January 2009 in which he:

a. represented that he was the solicitor on the record;

b. failed to indicate that Mr Robert Silberberg was retained as the solicitor for the defendant;

c. failed to record the name of any employer or solicitor holding an unrestricted principal's practising certificate as the solicitor on the record;

d. failed to provide an address as his principal place of business but merely provided a personal address, a personal post office box and a personal email address.

20. On or about 5 March 2009, the Solicitor swore and filed an affidavit in Supreme Court Proceedings No 6141 of 2003 identifying himself as the representative of Ms Suttor

and asserting on oath he was her solicitor.

21. On or about 2 July 2009 at 10.36 am the Solicitor, in his capacity as the solicitor for Ms Suttor, sent to the solicitor for another party in the proceedings, counsel, and the associate to Brereton J, various documents relating to the 2003 proceedings.

22. On or about 9 July 2009 the Solicitor sent a letter on his own letterhead to Yates Beaggi Lawyers.

23. In his letter dated 19 July 2009 to Ms Dawn Wade the Solicitor wrote:

a. on letterhead of Mark Gallego B.Com LL.B; and

b. without any indication that he was an employed solicitor.

24. On 26 August 2009 the Solicitor as solicitor for the cross claimant:

a. filed an Amended Second Cross-Claim in the matter Grizonic v Suttor and Anor, Supreme Court of NSW case no 6141 of 2003;

b. signed and filed the document as solicitor for Ms Suttor.

25. On or about 18 September 2009 the Solicitor acting as solicitor for Ms Suttor sent an email attaching submissions on her behalf to the Associate of Brereton J and others.

26. The Solicitor swore an affidavit dated 4 December 2009 in which he:

a. represented that he was the solicitor for Ms Suttor, the first defendant;

b. represented that he had been acting for Ms Suttor in the 2009 proceedings [as well as in a number of related sets of proceedings that were subsequently commenced] since May 2005;

c. appeared for Ms Suttor in proceedings before Brereton J on 20 March 2009, 5 May 2009, 16 June 2009, 28 July 2009, 27 August 2009, 18 September 2009;

d. stated that Ms Suttor did not comply with the directions made by Brereton J on 5 May 2009 because both she and he had other commitments;

e. considered and made a decision about the affidavit evidence of Ms Suttor;

f. briefed Mr Jungwirth of counsel in the proceedings;

g. resolved to run the case himself when Mr Jungwirth was unavailable to appear at the hearing set down for 10 and 11 December 2009;

h. acted for Ms Suttor on a contingency basis;

i. reviewed the material in preparation for the hearing in October 2009;

j. spoke with Mr Grant of counsel on 30 October 2009 with a view to briefing him in the matter;

k. briefed Mr Grant of counsel;

I. took advice from counsel on 2 December 2009;

m. failed to indicate that he was employed in the law practice of Mr Robert Silberberg, if he was so employed.

27. In his letter dated 9 December 2009 to Ms Dawn Wade the Solicitor wrote:

a. on letterhead of Robert Silberberg BA LL.B Solicitor, Consultant Mark Gallego B.Com LL.B;

b. the post office box, fax number, mobile telephone number and email address of the Solicitor;

c. the principal place of business and the landline telephone number of Mr Silberberg;

d. that the solicitor on the record for Ms Suttor was and had been since 1 July 2005, Mr Robert Silberberg;

e. that the Solicitor was a consultant to Mr Silberberg and

had been since 2005;

f. that the Solicitor was a consultant to Morgan Lawyers, which was his nominated law firm for the purposes of the Law Society's website.

ii. Local Court of NSW proceedings styled City Meats (NSW) Pty Ltd ACN 073115670 v Susan (sic) Ranken Suttor t/as Da Valentino Restaurant, Matter No 1359/08

28. On 6 March 2009 the Solicitor, acting for Ms Suttor obtained Consent Orders in Hornsby Local Court.

iii. Administrative Decisions Tribunal proceedings: application for compensation

29. On or about 31 March 2007 the Solicitor faxed to the Registrar, Administrative Decisions Tribunal, a letter dated 29 March 2007 under his own letterhead and on behalf of Ms Suttor.

30. On 4 April 2007 the Solicitor filed an Application for Original Decision as solicitor for Ms Suttor.

B Acting as the solicitor for 'Mr Harris'

31. Between about 22 February 2007 and 16 September 2009 the Solicitor represented 'Mr Harris', respondent in Family Court proceedings Martin and Harris file nos SYC 1251/2007 and EA 34/2007.

32. The Solicitor is recorded as the solicitor on the record for the respondent in the following documents:

a. published judgments:

i. Martin & Harris [2007] FamCA 560 (8 June 2007).

ii. Martin & Harris [2009] FamCA 595 (18 June 2009).

iii. Martin & Harris (No 2) [2009] FamCA 908 (16 September 2009).

b. Affidavit by Katie Felton, solicitor, sworn on 1 March 2007 and filed in Court on 2 March 2007.

c. Response to an Application in a Case signed by the Solicitor on 2 March 2007 and filed in Court on 8 March 2007.

d. Affidavit by the respondent sworn on 7 March 2007 and filed in Court on 8 March 2007.

e. Affidavit by the respondent sworn on 7 October 2007 and filed 8 October 2007, annexing letter on the Solicitor's letterhead dated 19 September 2007 from the Solicitor.

f. Application in a Case signed by the Solicitor on 7 October 2007 and filed on 8 October 2007.

g. Affidavit by the respondent sworn on 8 October 2007 and filed the same day.

h. Affidavit by the Solicitor dated 17 October 2007 and filed on the same day. The Solicitor states at paragraph 1 that he is the solicitor for the respondent in the application.

i. Response to an Application for Final Orders signed by the Solicitor on 22 October 2007 and filed the following day.

j. Affidavit of the respondent dated 21 October 2007 annexing at 'B' a letter on the Solicitor's letterhead dated 19 September 2007.

k. Application in a Case signed by the Solicitor on 20 December 2007 and filed on the same day.

I. Affidavit of the respondent dated 20 December 2007 and filed on the same day.

m. Response to an Application for Final Orders sworn on 5 February 2008 and filed on 6 February 2008.

n. Affidavit by the respondent sworn and filed on 14 February 2008.

o. Financial statement of the respondent sworn and filed on 25 February 2008. At paragraph 53 the respondent estimates his outstanding Family Court legal fees are 'E55000'.

p. Affidavit of Mr Malcolm van Drunen sworn on 3 May 2008 and filed on 7 May 2008.

q. Affidavit of Mr Richard Nock sworn on 3 May 2008 and filed on 7 May 2008.

r. Respondent's Amended Response to an Application for Final Orders sworn and filed on 7 May 2008.

s. Affidavit of the respondent sworn on 3 June 2008 and filed on 5 June 2008.

t. Further Amended Response to an Application for Final Orders of the respondent sworn and filed on 25 August 2008.

u. Affidavit of the Solicitor sworn and filed on 25 August 2008. At paragraph 1 of the affidavit the Solicitor states that he is the solicitor for the respondent. Annexed at 'A' is a letter dated 25 June 2008 and annexed at 'B' is a letter dated 14 July 2008 both from the Solicitor on his letterhead to the solicitor for the other party.

v. Affidavit of the Solicitor sworn and filed on 25 August 2008. Annexed at 'B' is a letter dated 12 August 2008 and annexed at 'D' is a letter dated 12 August 2008 both from the Solicitor on his letterhead to the solicitor for the other party.

w. Affidavit of the Solicitor sworn and filed on 23 October 2008.

x. Letter [excluding the attachment] of the Solicitor dated 23 October 2008 and on his letterhead to the solicitor for the other party.

y. Application in a Case by the Applicant dated and filed 17 July 2009 relevantly seeking costs against the Solicitor as solicitor for the respondent.

z. Letter dated 8 December 2009 from Mr Richard Killalea, solicitor for the Solicitor to the Associate to His Honour Justice Fowler.

aa. Letter from Mr Killalea dated 23 February 2010 to the Associate of His Honour Justice Fowler.

ab. Judgment of Fowler J dated 11 March 2010.

33. The Law Society has no record of employment of the Solicitor as a consultant or as an employee between 9 December 2004 and 1 July 2008.

34. The Solicitor commenced employment as an unrestricted non-principal with Morgan Lawyers Id 15946 on 1 July 2008.

35. At all material times the Solicitor was entitled to work only as an employee.

36. At all material times 'Mark Gallego B.Com. LL.B' was not a law practice.

37. At all material times the Solicitor failed to carry his own Professional Indemnity Insurance.

38. The Solicitor failed to inform the Administrative Decisions Tribunal, Local Court of NSW, Supreme Court of NSW or Family Court of Australia, the solicitors for the other parties or the parties themselves:

a. of the restriction then on his practising certificate; and

b. that he was unqualified to represent a party in any capacity other than as an employed solicitor.

MISLEADING THE SUPREME COURT OF NEW SOUTH WALES, COURT OF APPEAL

39. On 3 November 2011 the Supreme Court of New South Wales, Court of Appeal, constituted by Beazley JA and Sackville AJA heard a summons for leave to appeal in the matter of CA 2011/229605 Wade v Silberberg & Anor ['the Court of Appeal proceedings']. The primary proceedings from which the appeal was brought were Supreme Court of New South Wales matters 2003/87265 and 2009/287047.

40. On 20 June 2011 Brereton J in Claudio Grizonic v Suzanne Ranken Suttor & Ors; Dawn Wade v Suzanne Ranken Suttor (No 2) [2011] NSWSC 812 found at paragraph 25 that in December 2009 the Solicitor was employed by Mr Silberberg.

41. In the period 1 July 1984 to 31 July 2000 the Solicitor acquired 16 years' of experience as a principal of a law practice.

42. The Solicitor knew that to work as a principal of a law practice a particular type of practising certificate was required.

43. On or about 29 June 2010 the Solicitor submitted to the Law Society:

a. a 2010/11 Application for a Practising Certificate Renewal and Solicitor Membership of the Law Society of NSW; and

b. an Application for Change of Practising Certificate to Practise as a Principal or Solicitor on the Record.

44. On his Application for Change of Practising Certificate to Practise as a Principal or Solicitor on the Record dated 29 June 2010, the Solicitor nominated the proposed commencement date for a practising certificate to allow him to practise as a sole practitioner as 'a.s.a.p. or 1-7-10'.

45. As at 29 June 2010 the Solicitor had no basis to believe and did not believe:

a. that his application for a practising certificate to allow him to practise as a sole practitioner would take more than 12 months to be processed;

b. that his application for a practising certificate to allow him to practise as a sole practitioner could be delayed by virtue of the 2010/2011 summer holiday break.

46. From 1 July 2010 until 11 August 2010, as his Application for Change of Practising Certificate to Practise as a Principal or Solicitor on the Record was being processed by the Law Society, the Solicitor was the pending principal of the law practice known as Mark Gallego, Solicitor.

47. Upon the issue of his unrestricted principal's practising certificate, effective 1 July 2010, the Solicitor was entitled to and immediately did open his law practice, 'Mark Gallego, Solicitor'.

48. The Solicitor stated to the Court of Appeal from the Bar table that at the time of completing the Notice of Appearance on 6 January 2009 he had applied to the Law Society for an unrestricted principal's practising certificate.

49. When asked by Beazley JA, 'Did it take more than 12 months for your practising certificate as a principal to come through?' the Solicitor replied, 'I can't recall, your Honour, I really don't know.'

50. In response to Sackville AJA saying, 'I'm trying to understand how someone who holds a certificate that entitles him to act as an employee files a notice of appearance [on 6 January 2009] in this form', the Solicitor said, 'to the best of my recollection ... by that stage I had applied for an unrestricted principal certificate as opposed to an unrestricted employee certificate ... at that stage it hadn't been dealt with, it's in the middle of the holidays.'

51. At the time of filing the Notice of Appearance dated 6 January 2009 the Solicitor had not applied to the Law Society for a practising certificate entitling him to work as a principal.

52. In the circumstances of paragraph 51, the Solicitor's statements in paragraphs 48 to 50 inclusive were false and misleading.

53. The Solicitor:

a. had, for all years since the 2000/2001 practice year applied for his practising certificate on 28 June or later of the relevant year; and

b. knew on 3 November 2011 and at all times that within a short time the renewals were processed;

c. knew that an application to practise as a principal as opposed to an application to renew an employee practising certificate was subject to confirmation from LawCover that the Solicitor had been granted professional indemnity insurance.

54. At the time of answering Beazley JA's question described in paragraph 49 above, and responding to Sackville AJA's comments described in paragraph 50 above, the Solicitor knew and could recall that:

a. he had been in sole practice for some 16 months;

b. his commencing sole practice depended upon him being issued with the appropriate practising certificate;

c. he applied for the appropriate practising certificate at the same time of year as he had applied for every annual practising certificate since June 2001;

d. the issue of his principal's practising certificate and his right to open his law practice both effectively occurred some 16 months earlier, on 1 July 2010;

e. after applying to the Law Society for his practising certificate as a principal, it did not take more than 12 months to come through;

f. at the time of filing the Notice of Appearance dated 6 January 2009 he had not applied to the Law Society for a practising certificate entitling him to work as a principal.

55. In the circumstances of paragraphs 41, 42, 51, 53 and 54, the Solicitor intended to mislead the Court of Appeal by making the representations described in paragraphs 48 to 50 inclusive.

5 From now on, when referring to individual paragraphs of the Particulars, we will state the relevant number preceded by the letter 'P'.

6 On 28 November 2013, the Law Society filed an affidavit sworn on 25 November 2013 by its solicitor in these proceedings, Anne-Marie Foord. Annexed to it was a substantial quantity of documentary material.

7 On 1 January 2014, the Administrative Decisions Tribunal was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales. The proceedings thereupon became 'unheard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013. Clauses 7(1) and 7(3)(b) of this Schedule stipulate that such proceedings are to be heard by the Civil and Administrative Tribunal, but are to be determined as if that Act had not been enacted.

8 On 10 March 2014, the Solicitor filed a Reply. In it, he admitted Grounds 1 to 3 of the Application, denied Ground 4 and stated as follows in relation to Ground 5:-

Deny that particulars 1 to 38 justify the finding that in substance I was acting as a principal rather than under the auspices of a solicitor with an unrestricted principal certificate. I deny that it is a breach of the conditions of an unrestricted non-principal practicing certificate to be identified as a consultant to the practice.

9 His response to the paragraph of the Particulars headed 'Definitions' was to admit the first three dot points, admit (with a minor qualification) the fifth and deny the fourth. His contention opposing the fourth dot point is quoted below.

10 The Solicitor admitted the 'table of practice' in P1, except for stating that he did not admit that he was unemployed in any year.

11 The Solicitor's responses to the remaining paragraphs of the Particulars can be summarised as follows. He admitted all of P2 to P30, but in a number of instances added statements by way of explanation of the conduct alleged against him. The nature of some of these explanations is outlined below. He did not admit P31, P32 or P35 to P38 (and he added comments regarding P31, P32 and P37), but he admitted P34. In response to P33, he stated: 'I do not know and cannot respond at this time. I will have to make further queries.' He admitted P39 to P47 and P49 to P51. His responses to P48, P52 and P53 did not admit or deny their contents, but sought to provide an explanation for the conduct on his part that they described. He denied P54, adding a brief comment, and denied P55.

12 On 31 March 2014, the Solicitor filed an affidavit sworn by him on 14 March 2014. In paragraph 14, he confirmed that he admitted Grounds 1 to 3 and 5, adding that the matters raised by him in his Reply were 'put by way of explanation'. In paragraphs 15 and 16, referring to Ground 4, he confirmed that he denied 'attempting to mislead the Court of Appeal or any other Court', adding further comments by way of elaboration of this denial.

13 On 5 May 2014, the Law Society filed an affidavit sworn by Mr Robert Silberberg, solicitor, on 2 May 2014.

14 The hearing took place before us on 8 May 2014. Ms Groenewegen appeared for the Law Society and Ms Merkel of counsel for the Solicitor. The filed evidence was admitted without objection and the Solicitor was cross-examined. Mr Silberberg was not required for cross-examination.

15 We reserved our decision, indicating that, as requested by the parties, we would at this stage confine our deliberations to the question whether, and if so on which Ground or Grounds, the Law Society had established professional misconduct on the part of the Solicitor.

16 We will now consider the evidence relating to the five Grounds stated in the Application. It is convenient to deal first with Grounds 1 to 3, each of which alleges a specific omission on the Solicitor's part occurring during 2009 in the course of a Supreme Court proceeding in which he purported to act for Ms Suzanne Suttor. We will deal next with the more wide-ranging Ground 5, and finally with Ground 4.

Evidence and findings on Grounds 1, 2 and 3

17 As indicated above, the Solicitor admitted each of Grounds 1, 2 and 3 in his Reply. He also admitted each of the Particulars (respectively P19, P26 and P23) on which these Grounds are based. While admitting P19, he added the following comment: 'This was not deliberate. Ms Wade knew I was acting as a Consultant to Mr Silberberg.' While admitting P26, he added: 'This affidavit was drawn by counsel and was present to me for swearing. I read the affidavit and was satisfied that the substance was true. I did not notice the absence of any reference to Mr Silberberg.'

18 During Ms Groenewegen's cross-examination of the Solicitor, she drew his attention to a copy of the Notice of Appearance referred to in Ground 1 and P19, pointing out that in this Notice (which he had filed) he described himself as the 'legal representative for filing party' and as a 'firm'. He agreed with her that at that time he was in fact employed by Morgan Lawyers. When she then put it to him that these statements in the Notice of Appearance were misleading, he answered as follows: (a) the Notice should not have included these statements; (b) no-one was actually misled because 'everyone' knew that he was not the principal solicitor; (c) he believed that Mr Silberberg was actually the principal solicitor at that time; and (d) the Notice had been typed by the client, Ms Suttor.

19 The Solicitor's testimony did not make any other reference to the specific conduct alleged against him in Grounds 1, 2 or 3 and the associated Particulars.

20 Mr Silberberg made certain statements in his affidavit that were of particular relevance to Ground 2 and P26. He indicated that he was the principal of the law practice Robert Silberberg, Solicitor, that this practice commenced operating in 1997 and that it had not 'engaged any solicitor as employee' except himself. He referred, however, to a 'work arrangement' that he had had with the Solicitor.

21 Mr Silberberg stated also that the Law Society had written to him during November 2013 requesting that he complete a LawCover 'checklist' (which the Society sent to him as a blank form) relating to 'the oral agreement' that he had made with the Solicitor. This form contained a number of questions concerning the relationship between law firms and consultants whom they had engaged. The topics covered in them included the degree of control and supervision exercised by the law firm, the mode of remuneration of the consultant, the extent to which the consultant used the law firm's resources, the terms of engagement of the consultant and the nature of any representations made to 'others' regarding the consultant's role. Mr Silberberg stated that he completed this form as requested and sent it back to the Law Society.

22 A copy of this completed form was annexed to Mr Silberberg's affidavit. The answers that he provided to the questions in it, so far as relevant here, were to the following effect: (a) his firm did not supervise the Solicitor's work or ratify his conduct; (b) it did not pay wages or a salary to him or income tax on his remuneration; (c) the Solicitor did not make use of the firm's resources when supplying services to its clients; (d) he did not invoice the firm for the performance of services; (e) he had not been engaged for a long or indefinite period, but could terminate his relationship with the firm at any time or within a short timeframe; and (f) the firm was not 'the party to the retainer letter or costs agreement relating to the work performed for clients'.

23 The material annexed to Ms Foord's affidavit includes copies of relevant documents confirming that the conduct alleged in Grounds 1, 2 and 3, which the Solicitor has admitted, took place.

24 We accordingly find that the matters alleged in these three Grounds are established on the evidence. We observe, however, that the conduct of the Solicitor described in Ground 2 - namely, his failure to 'indicate in his affidavit dated 4 December 2009 that he was employed in the law practice of Mr Robert Silberberg' - could be regarded as justifiable in the circumstances. According to Mr Silberberg, the Solicitor was never employed in this law practice. There was instead some form of 'consultancy' arrangement.

Evidence relating to Ground 5

25 Although the Solicitor, in both his Reply and his affidavit, admitted Ground 5 in general terms, he did not admit all the Particulars of relevance to this Ground. There were four topics in relation to which he did not admit the Law Society's specific allegations.

26 First, he denied the allegation, appearing under the subheading 'Definitions', that he was unemployed between 9 December 2004 and 1 July 2008. In his Reply, his contention on this matter was as follows:-

Denies that he was unemployed in the ordinary meaning of that word from 9 December 2004 to 1 July 2008 and says that he was a self-employed consultant/business manager.

27 In his affidavit at paragraph 12, the Solicitor stated that at some unspecified time (seemingly during 2005) he was 'working as an employee/consultant of Stoyles and Stevens, Solicitors'. During cross-examination, he confirmed this statement and said in addition that during the relevant period (9 December 2004 to 1 July 2008) he had also been employed as a 'consultant' by Mr Silberberg and by at least two other law practices. When asked what he meant by the term 'employee/consultant', he said that he was 'not sure', adding that he recognised that the Law Society did not recognise any category of 'consultant' amongst practising solicitors. He also suggested that at that time it was quite common for independent solicitors to 'work through an office'.

28 Ms Groenwegen then pointed out that in an 'Individual History Report' that the Law Society had compiled in relation to him (being one of the documents annexed to Ms Foord's affidavit), Stevens & Stoyles was not listed as one of his employers. She put it to him that he could not have been an employee, engaged on normal terms such as being entitled to a wage. He answered that he was paid for his work. He said also that he now realised that he should have notified the Law Society of these arrangements with Stevens & Stoyles, but that this would have been 'awkward' because at the time he had three or four similar arrangements with other law firms.

29 The second specific allegation arising within Ground 5 that the Solicitor did not admit was the statement in P37 that 'at all material times' he 'failed to carry his own Professional Indemnity Insurance'. In his Reply, he asserted that at all times he either had his 'own cover' or had 'cover under the relevant Principal's policy'.

30 During his cross-examination, Ms Groenewegen showed to him a blank LawCover 'checklist' of the type that was annexed to Mr Silberberg's affidavit. In answer to questions from her, the Solicitor gave the following answers: (a) he had never filled out such a form in relation to his role as a consultant for any law practice; (b) he did not know whether anyone else had filled out such a form on his behalf; (c) he could not point to any evidence suggesting that this had occurred; (d) he had not obtained insurance cover in his own right; (e) he had instead assumed that the insurance policy of any law practice to which he was a consultant would cover him; (f) he did not, however, ask the principal of any of these law practices whether this was the case; (g) a reason for this was that when he had been a principal solicitor at Barnetts, this firm's insurance policy had provided cover for any solicitors whom it had engaged as consultants; and (h) he believed that nonetheless some at least of these consultants had taken out their own cover.

31 Thirdly, the Solicitor, by not admitting the allegations contained in P31 and P32, expressed opposition to the Law Society's claim that he had assumed the role of solicitor on the record for 'Mr Harris' (a pseudonym) in Family Court proceedings styled Martin and Harris SYC 1251/2007 and EA 34/2007. In responding to P31, he added: '"Mr Harris" had engaged other solicitors and had counsel in the matter.' In responding to P32, he added: 'Most of the documents referred (sic) are not my documents.'

32 In his affidavit, the Solicitor stated that he had 'assisted' Mr Harris 'from time to time' in these Family Court proceedings, but that 'there was always another solicitor on the record'. He also outlined the circumstances in which he had become friendly with Mr Harris.

33 During cross-examination, the Solicitor was asked about the manner in which he was depicted in each of the documents (copies of which were annexed to Ms Foord's affidavit) listed in subparagraphs (b) to (ab) of P32. In short form, his answers in respect of each subparagraph were as follows:-

Subparagraph (b): Although Ms Felton, who acted for Mr Harris's wife in the Family Court proceedings, described him in her affidavit as the 'solicitor who acts for the Husband', she knew that he acted only as the 'consultant' for Ms Margaret Linden, an accredited family law specialist. The solicitor on the record for Mr Harris was Ms Linden, not the Solicitor.

Subparagraphs (c), (f), (h), (i), (k), (u), (v), (w), (x): He was the signatory to all the documents listed in these subparagraphs. Each of them stated or implied that he was the solicitor for Mr Harris. In some of them ((f), (i), (k)), he furnished his personal address. One of them (x) was a letter on his letterhead. This letterhead came into existence when he was conducting litigation on his own behalf. He realised now that he should not have used it in proceedings in which he was engaged on Mr Harris's behalf.

Subparagraphs (d), (e), (g), (j), (l), (m), (p), (q), (r), (s), (t): In each of these documents he was identified as the lawyer for Mr Harris, and in most of them he furnished his personal address. Although one of them ((e)) contained instead the address of Morgan Lawyers, Ms Linden was still the solicitor on the record for Mr Harris. At this stage, he was engaged as a consultant both by her and by Morgan Lawyers. He prepared some of these documents and although the others were prepared by Mr Harris, he settled them and took responsibility for them.

Subparagraphs (y), (z), (aa), (bb): These documents related to an application by Mr Harris's wife seeking an order (inter alia) that he (the Solicitor) pay her costs on an indemnity basis. He was named (in (y)) as Mr Harris's solicitor. He instructed Mr Killalea, solicitor, to act for him with respect to this application. Although in submissions (z) sent by Mr Killalea to the associate to Fowler J, he was described as 'the solicitor on the record' for Mr Harris, this was incorrect. He had only just noticed this error. He could not remember whether he had checked the submissions before Mr Killalea sent them to Fowler J's associate. At about this time, since Mr Harris's wife was seeking to make him personally liable for costs, he 'got out of the case' and Mr Silberberg took over. Subsequently, Mr Killalea sent further submissions to Fowler J's associate (aa). In his judgment on the application (ab), Fowler J described the Solicitor as the solicitor for Mr Harris and ordered that he pay an amount to Mr Harris's wife on account of costs.

34 In this abbreviated account of the Solicitor's evidence relating to P32, we have not referred to the documents in subparagraphs (n) and (o) because neither of them stated or implied that he was the solicitor for Mr Harris.

35 Fourth and finally, the Solicitor did not admit P38. He did not adduce any evidence, however, to suggest that he had in fact taken any of the steps described in that Particular.

36 As mentioned earlier, the Solicitor's Reply included a number of statements by way of explanation of the Particulars relating to Ground 5 that he admitted. They included the following: (a) his use of his personal letterhead on the occasions described in P2, P5, P6, P7, P8 and P10 was 'accidental'; (b) he believed that it was appropriate for him to identify himself in documents relating to the Suttor proceedings as a 'consultant' and to use a phrase such as 'by his consultant solicitor' when signing documents for the principal solicitor, Mr Silberberg (see P3, P11, P12 and P15); (c) the opposing parties and/or their legal representatives knew at all relevant times that he was not the principal solicitor acting for Ms Suttor (he made this statement in relation to P5, P6, P13, P19, P21 and P29).

37 We have examined the documents annexed to Ms Foord's affidavit on which the Law Society relied in seeking to establish Ground 5. They substantiate the specific allegations made in P3 to P32 inclusive. P2, however, is not wholly substantiated. In the relevant Notice of Motion, the Solicitor did (as alleged in P2) enter his name under the heading 'Solicitor on the record', adding two lines below that he was 'Consultant with Stoyles & Stevens Solicitors'. But elsewhere in the Notice he stated that his 'capacity' was that of 'Consultant with the First Defendant's solicitor'.

Findings in relation to Ground 5

38 As indicated above, the matter pleaded in Ground 5 is that the Solicitor 'practised outside the conditions of his practising certificate between 10 December 2004 and 1 July 2010'. The table in P1 (which the Solicitor did not dispute) describes the 'types' of certificate that were issued to him as 'employee' between 1 July 2004 and 30 June 2006, and as 'restricted/non principal' between 1 July 2006 and 30 June 2010. We are satisfied that under both of these categories of certificate he was permitted to practise only as an employed solicitor. The allegation to this effect in P35 (which the Solicitor did not admit) is accordingly made out.

39 The Solicitor denied the allegation (in the paragraph of the Particulars headed 'Definitions') that he was 'unemployed from 9 December 2004 to 1 July 2008'. He maintained that during this period he occupied the role of 'consultant' to a number of law practices. These included Stoyles & Stevens, Morgan Lawyers and Robert Silberberg, Solicitor. On occasions, he said, he was a consultant to more than one legal practice at the same time.

40 The only evidence before us as to the particular nature of any of these arrangements whereby he operated as a consultant was contained in the evidence of Mr Silberberg. Mr Silberberg's uncontradicted evidence was to the effect that his law practice had never engaged any solicitor (other than himself) as an employee and that his 'arrangement' with the Solicitor did not provide for any of the following: (a) supervision by him of the Solicitor's work; (b) payment of wages or a salary to the Solicitor; (c) access by the Solicitor to the resources of the law practice; (d) his engagement as consultant for any 'long or indefinite period'; or (e) the involvement of the law practice as a party to any retainer or costs agreement relating to the work performed the Solicitor for clients.

41 This evidence clearly shows, in our opinion, that to the extent that the Solicitor, in providing the legal services described in the Particulars relating to Ground 5, adopted the role of 'consultant' to Mr Silberberg, he was not practising as an employed solicitor. He was not an employee of Mr Silberberg, in the relevant sense. It followed that in these contexts he practised outside the conditions of his practising certificate, as claimed in Ground 5.

42 The Solicitor claimed to have prepared, settled and/or filed court or tribunal documents bearing his name in the course of working (in some instances as a 'consultant') for other law practices or legal practitioners: for example, Stevens & Stoyles and Margaret Linden. But there is no evidence regarding his agreements or arrangements with these entities. It cannot be inferred that, to the extent that he did in fact take such steps on their behalf, he did so in the role of an employed solicitor. An aspect of his own testimony suggesting strongly that this was not the case was his statement that at times he was a 'consultant' to more than one law practice. For these reasons, we find that in these further contexts he practised outside the condition in his practising certificate permitting him to practise only as an employed solicitor.

43 In P19(a), it was alleged that in the Notice of Appearance dated 6 January 2009 that the Solicitor filed in the Supreme Court, he 'represented that he was the solicitor on the record' for Ms Suttor in one of the proceedings instituted against her by Ms Wade. We find this allegation to have been proved. The significant factor is that any person reading this document would understand from it that the Solicitor, not Mr Silberberg (as the Solicitor alleged in his letter to Ms Wade outlined in P27), was the legal practitioner whom Ms Suttor had retained to act for her. It is not to the point to claim, as the Solicitor did in his Reply to P19, that Ms Wade 'knew' that he was acting as consultant to Mr Silberberg.

44 In P32, it was alleged that he was 'recorded as the solicitor on the record for the respondent', Mr Harris, in the Family Court proceedings styled Martin & Harris. We find this allegation to have also been proved. This follows from the fact that numerous documents that he prepared or settled and in some instances signed depicted him as the legal practitioner whom Mr Harris had retained for the purposes of the proceedings. His allegation that Ms Linden was in fact the solicitor on the record for Mr Harris is not supported in any of the documents listed in P32. If other documents filed in the proceedings had indicated that this was the case, one would expect that she would have been named as solicitor on the record in the three published judgments of the Court. But as is stated in P32(a), each of these judgments described the Solicitor as the 'Solicitor for the Respondent' and contained no suggestion that Ms Linden or any other legal practitioner had occupied this position.

45 For the foregoing reasons, our conclusion is that Ground 5, together with associated Particulars P3 to P37 (except for subparagraphs (n) and (o) of P32), has been made out.

46 We reach this conclusion even though, as alleged in P34 and admitted by the Solicitor, as from 1 July 2008 he was employed by Morgan Lawyers as a solicitor. The important point is that none of the conduct on his part that is outlined in P3 to P32 was committed in the course of his employment by this firm. He cannot rely on the fact of this employment as a ground for maintaining that in representing Ms Suttor or Mr Harris, whether on his account entirely or as a 'consultant' for one of the law practices that he identified, he was practising as an employed solicitor.

47 We treat P38 as falling outside the scope of Ground 5, and indeed of the other four Grounds. It cannot be said that the Solicitor's failure to notify any of the bodies listed in it as to the restrictions on his practising certificate constitutes an example of contravening those restrictions. We accordingly cannot take this Particular into account when determining whether the Law Society has established professional misconduct on the part of the Solicitor.

Evidence and findings on Ground 4

48 As indicated above, the Solicitor in his Reply expressly denied this Ground and also denied two of the particulars (P54 and P55) associated with it. He offered explanations of his conduct (without expressly admitting or denying) in his responses to P48, P52 and P53 and in his denial of P54.

49 At the hearing before us, Ms Groenewegen indicated that the Law Society no longer claimed that the Solicitor had intended to mislead the Court of Appeal.

50 The gist of the explanations provided by him in response to P48, P52 and P54 was as follows. When the questions about his representation of Ms Suttor were put to him during the Court of Appeal hearing on 3 November 2011, he was 'taken by surprise' because he did not think that this matter would be raised at the hearing. He believed that the only issue to be considered was a quite distinct one: whether Ms Wade would be granted special leave to appeal (claiming indemnity costs) against a costs order of the Supreme Court to the effect that he should pay certain costs incurred by her on a party/party basis. Since her counsel had stated that according to her understanding Mr Silberberg had been the solicitor for Ms Suttor throughout, he (the Solicitor) did not expect that any questions would be asked about the 'irregularities' in documents that he had signed. He acknowledged that his recollection when answering them was 'faulty' and that his answer quoted in P48 was wrong. When he signed the Notice of Appearance for Ms Suttor on or about 6 January 2009 it had occurred to him that he should apply immediately for an unrestricted practising certificate. But he forgot, when answering the Court of Appeal's questions, that he did not make this application until 18 months later, in June 2010. Accordingly, while it was true that he answered these questions incorrectly, he had no intention to mislead the Court.

51 The Solicitor's response to P53 was as follows:-

When I applied for an unrestricted practising certificate I had gone through the process of reverting from principal to restricted practice and I did not know whether my application to resume unrestricted practice would be treated routinely.

52 In his affidavit, the Solicitor maintained that while he had made 'mistakes with dates' and 'had some matters out of sequence', he had been 'careful to tell the Court' when he was 'unsure'. He quoted the following extracts from the transcript of the Court of Appeal hearing recording his answers to questions from Beazley JA:-

Yes, I didn't initially [have a practising certificate as a principal] and if I may just explain it will make things a lot clearer to your Honours. When and I can't remember the precise dates now, when Ms Wade complained about my involvement because I had a non-principal certificate albeit unrestricted one... (Transcript, p 13, lines 10-14)

[In reply to a question from Beazley JA pointing out that in an affidavit sworn by him the Solicitor had stated that he was 'the solicitor with the carriage of the matter'] I am indebted to your Honour. That must be right. Where I'm confused in my own mind is that I did cease to have conduct and carriage of the matter on a day to day basis. In fact because of Miss Wade's objections I didn't have any conduct or carriage of the matter. Also along the way because of the fuss that had been made I renewed my principal certificate. Again I apologise to your Honours. I don't have the precise date but along the way... (Transcript, p 13, lines 41-47)

53 During cross-examination, the Solicitor acknowledged that in the period before the Court of Appeal hearing the issue of his status in the proceedings between Ms Wade and Ms Suttor had been raised. He added that when Ms Wade questioned his status, he 'got out of the case'.

54 He also acknowledged the following matters: (a) as at the date (6 January 2009) when he filed the Notice of Appearance for Ms Suttor, he had not applied for an unrestricted principal practising certificate; (b) he told Sackville AJA at the hearing that he had believed that he had made such an application and that this of itself would have been sufficient to permit him to file the Notice; (c) except for one application filed during August 2003, he had only ever applied for renewal of his practising certificate during the month of May or June; (d) accordingly, he was 'clearly wrong' in indicating to the Court of Appeal that he had made such an application in December 2008 or January 2009; (e) he answered the Court's questions to the best of his ability, and this error was attributable to 'confusion' on his part.

55 Our findings on this evidence are as follows. Since the Law Society withdrew, during the hearing, its claim that the Solicitor intended to mislead the Court of Appeal, it has not established Ground 4 in the terms in which this Ground was pleaded. In the absence of any such intention, it could not be said that the Solicitor 'attempted to mislead' the Court. For the same reason P54, which alleges knowledge by him that he was making a false statement to the Court, and P55, which alleges an intention to mislead, have not been made out.

56 The evidence relating to Ground 5, which includes admissions by the Solicitor that a number of his statements in the Court of Appeal were incorrect, clearly substantiates the allegation in P52, namely, that these statements were 'false and misleading'.

57 We find also that the specific allegations made in P39 to P51 and P53, which in fact the Solicitor admitted, are established by the evidence. These include significant allegations, in P41, P42, P45 and P53, as to matters within his knowledge at the time of the hearing in the Court of Appeal.

Whether the Solicitor committed professional misconduct

58 In our opinion, it is appropriate for us to determine the question of professional misconduct with regard to Grounds 1 to 3 and 5 taken in conjunction, because they all relate to the same species of conduct by a legal practitioner and the Particulars to each of Grounds 1, 2 and 3 are also Particulars to Ground 5. Having dealt with this topic, we will proceed to consider Ground 4.

59 Grounds 1 - 3 and 5. In relatively brief submissions, Mr Groenewegen argued that the Solicitor's contraventions of the condition in his practising certificates confining him to practice only as an employed solicitor constituted professional misconduct at common law irrespective of whether he intended to contravene it. He could not avoid being held guilty of professional misconduct by claiming that he had been engaged as a consultant and that he believed this to be compatible with the terms of his certificate. As the Solicitor knew or should have known, she said, the conditions attaching to practising certificates issued by the Law Society did not recognise any category of 'consultant'.

60 Ms Groenewegen pointed out also that the Solicitor, by his own admission, did not take out professional insurance in his own right and did not ask Mr Silberberg, or indeed any other solicitor who engaged him as consultant, whether insurance cover existed for the work that he performed in this role. She argued, referring specifically to the answers that Mr Silberberg had given to the 'checklist' issued by LawCover, that in all probability there had been no insurance covering the Solicitor's activities during the period when he was not an employee, in the traditional sense, of a law practice.

61 In support of these submissions, Ms Groenewegen relied on three authorities, Mee Ling v Law Society of New South Wales [1974] 1 NSWLR 490, Law Society of New South Wales v Jayawardena [2005] NSWADT 96 and Law Society of New South Wales v Singh [2011] NSWADT 47.

62 In Mee Ling, the Court of Appeal held that a solicitor who had continued to practise for about three months after the expiry of his practising certificate, despite receiving three letters from the Law Society emphasising the importance of his applying for renewal, had committed misconduct at common law. The Court characterised the solicitor's conduct as a 'flagrant breach' of statutory provisions designed to protect both the public and the legal profession.

63 The case of Jayawardena involved a solicitor whose practising certificate contained conditions entitling him to practise as a solicitor 'in the course of employment by an entity who or which is not a solicitor' and also stipulating that he was 'not entitled to act as a Solicitor on the record or charge costs for legal work or practise other than as an employee'. The solicitor, while in the employ of a company called ReQuest International Pty Ltd, contravened the latter condition by acting on a number of occasions as a sole practitioner. Over a significant period, he disputed claims put to him in correspondence by the Law Society that he was in breach of this condition. Ms Groenewegen maintained that the arguments that he mounted in support of this position showed that he did not understand that his conduct amounted to contravention.

64 In the course of determining disciplinary proceedings instituted against him by the Law Society on this and other grounds, the Administrative Decisions Tribunal said (at [54 - 55]):-

55 Section 32(4) of The Legal Profession Act 1987 provides that a solicitor who is the holder of a current Practising Certificate must not fail to comply with a condition to which the certificate is subject. The Tribunal has made the finding that the Solicitor practiced without an appropriate certificate. The question for the Tribunal to determine is whether the failure:

"is far beyond any negligence, even gross or vulnerable negligence, and involves that a person wilfully misconducts himself who knows and appreciates that it is wrong conduct on his part in the existing circumstances to do or to fail or omit to do, as the case may be, a particular thing, and yet does, or fails or omits to do, or persists in the act, failure or omission regardless of consequences...or acts with reckless carelessness, not caring what the results of his carelessness may be (In Re: Hodgekiss 1962 (NSW) SR 340)."

56 The Tribunal has already referred to the correspondence that passed between the Solicitor and The Law Society between May 2001 through to September 2004. The Solicitor is a well educated man who does understand the English language and who could not fail to understand the requirements of the conditions endorsed on his Practising Certificate. The Tribunal is of the view that the Solicitor knowingly and deliberately breached the conditions on his Practising Certificate and in relation to Ground 1, finds the Solicitor guilty of professional misconduct.

65 Singh was also a case in which a claim of having practised contrary to the conditions of a practising certificate was one of a number of grounds alleged in disciplinary proceedings against a solicitor. His practising certificate authorised him to practise as a 'restricted non-principal'. He acted on his own account, however, for the vendor or the purchaser in three separate conveyancing transactions. The Administrative Decisions Tribunal (at [48 - 50]) cited Mee Ling as authority for the proposition that such conduct could amount to professional misconduct. Its decision, however, that the solicitor had been guilty of misconduct and should in fact be struck off was based on all the grounds alleged, not just on the ground of contravening the conditions of the practising certificate.

66 On behalf of the Solicitor, Ms Merkel argued that at most a finding of unsatisfactory professional conduct should be made on any or all of Grounds 1 to 3 and 5. She maintained that the authorities cited by Ms Groenewegen all concerned deliberate and wilful contraventions of conditions attached to practising certificates, whereas it had not been shown that any contraventions by the Solicitor were deliberate or wilful. She argued that delegation of tasks by solicitors on the record in legal proceedings was commonplace. Notably in the Family Court, she said, it was permissible for practitioners other than the solicitor on the record to give their address as an address for service, receive documents from an opposing party, sign letters, settle documents, appear as an advocate and perform other such tasks arising during litigation.

67 Ms Merkel acknowledged, however, that the Solicitor was at fault in filing the Notice of Appearance identified in Ground 1. She made a similar concession with regard to his use of his own letterhead in correspondence in the proceedings between Ms Suttor and Ms Wade, but added that no significant harm was occasioned because Ms Wade knew of the basis on which he acted in those proceedings.

68 With reference to the question of insurance cover, Ms Merkel submitted that there was no evidence as to the scope of any policy or policies taken out by Mr Silberberg during the relevant period. It was therefore quite possible that the Solicitor fell within the scope of Mr Silberberg's insurance.

69 We acknowledge the strength of Ms Merkel's submission that in none of the authorities cited by Ms Groenewegen was a finding of common law professional misconduct made on the basis of contravention of a condition of a practising certificate that was not found to be deliberate. In view of what the Tribunal said in the final sentence of paragraph [56] of its decision in Jayawardena, we do not accept Ms Groenewegen's submission that the respondent in that case did not understand that his conduct amounted to contravention.

70 We are satisfied, however, that even if all the established instances of breach of the condition that the Solicitor should act only as an employed solicitor occurred in circumstances where he believed himself to be a 'consultant' and therefore to be acting in compliance with the condition, he was greatly at fault through not taking any steps to ascertain whether his view on this matter was correct. Equally, as Ms Groenewegen argued, he was at fault through not making any reasonable endeavour to ensure that he was covered by insurance. Such defaults on his part might be excusable (up to a point) if the period during which they occurred was relatively short. But the conduct described in the Particulars to Ground 5 continued for more than three years. He seemingly did nothing during that period to make sure that he was acting within the limits of his practising certificate.

71 It may well be, as Ms Merkel argued, that his contravention of the condition, being not proved to be 'deliberate' or 'wilful', did not amount to professional misconduct at common law. But it was undoubtedly in breach of a provision of the Legal Profession Act 2004 ('the Act') that, as far as we can recall, was not cited to us at the hearing. Section 58(1) of the Act states: 'The holder of a current local practising certificate must not contravene (in this jurisdiction or elsewhere) a condition to which the certificate is subject.' A penalty for conduct falling under this provision is specified.

72 In addition, section 498 states, so far as relevant here:-

(1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct:

(a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules,...

(2) Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention.

73 We must also take account of sections 496 and 497(1)(a), which state:-

496 Unsatisfactory professional conduct

For the purposes of this Act:

unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

497 Professional misconduct

(1) For the purposes of this Act:

professional misconduct includes:

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence...

74 In our judgment, each instance of the Solicitor taking steps in legal proceedings on behalf of Ms Suttor or Mr Harris in circumstances where (at best) he was a 'consultant' of some kind to a legal practice and (at worst) no such consultancy arrangement existed must be viewed as, at least, an instance of unsatisfactory professional conduct. As Ms Merkel acknowledged, this is particularly true of the particular step - filing a Notice of Appearance indicating that he was the solicitor on the record for Ms Suttor - that forms the basis of Ground 1.

75 The numerous such instances, occurring over more than three years, constitute a course of conduct that 'involves a substantial or consistent failure to reach or maintain a reasonable standard of competence' within the meaning of section 498(1). The Solicitor appears to have made no attempt at all to ascertain whether practising as a 'consultant' to one or more law practices would be permitted under a practising certificate within the category 'unrestricted non-principal'. Equally, he appears to have made no attempt to ensure that his activities as a 'consultant' had appropriate insurance cover. His attitude to these important matters can fairly be described as cavalier.

76 For these reasons, we find that the Solicitor was guilty of professional misconduct under Grounds 1 to 3 and 5.

77 Ground 4. As already indicated, Ms Groenewegen acknowledged that the Law Society could not establish that the Solicitor's false and misleading answers to the Court of Appeal's questions were accompanied by an intention to mislead. She pointed out, however, that the Solicitor was a respondent to Ms Wade's claim for costs and that the nature of his role in acting for Ms Suttor was an issue of considerable concern to a number of people. She argued that, having been a legal practitioner since 1981 and having renewed his practising certificate on numerous occasions since that year, he was well aware that renewals occurred around the middle of the calendar year and that applications took a relatively short time to process. He should, she submitted, have been 'on top of all these issues' at the time of the hearing in the Court of Appeal and therefore should have been able to furnish correct answers. Alternatively, he should have admitted that he could not recall when he applied for an unrestricted principal certificate.

78 Ms Merkel argued that there had been no reason for the Solicitor to expect that the Court would question him on this matter. She maintained that the principal respondent to Ms Wade's application for leave to appeal was Mr Silberberg, against whom Ms Wade was seeking an order for indemnity costs. The questions that the Court put to the Solicitor therefore 'came out of the blue'. In these circumstances, it was understandable and excusable that he became confused and gave incorrect answers.

79 In our opinion, the Solicitor's behaviour on that occasion fell well short of appropriate professional standards. We make allowance for the fact that because he did not expect questions on this specific topic he was thrown into a state of confusion and might well have been unable to recall when indeed he did obtain an unrestricted principal certificate. But what he should have done was to admit that he could not immediately provide a correct answer to the Court's questions. Instead, he supplied answers that he should have known to be seriously misleading. This applies particularly to his statement that his application for a certificate of this nature had not been dealt with on the date when he filed the Notice of Appearance for Ms Suttor (6 January 2009) because this date was 'in the middle of the holidays' (see P50), and to his claim not to have known whether it took more than 12 months for his application to be dealt with (see P49).

80 In our opinion, this behaviour manifestly did not meet 'the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner'. We find that it amounted to unsatisfactory professional conduct under section 496 of the Act. This finding is available to us even though it was pleaded in the Application that the conduct of the Solicitor alleged in Ground 4 was professional misconduct: see section 562(6) of the Act.

Our orders and directions

81 We accordingly order as follows:-

1. The Respondent is guilty of professional misconduct under Grounds 1, 2, 3 and 5.

2. The Respondent is guilty of unsatisfactory professional conduct under Ground 4.

82 A further hearing is now required for the purpose of determining what order or orders (if any) should be made against the Solicitor by way of penalty under section 562 of the Act. In order to make arrangements for this hearing, the matter is set down for further directions at 9.30 a.m. on 25 September 2014.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar

Decision last updated: 19 September 2014