Administrative Decisions Tribunal
New South Wales

Medium Neutral Citation:

Council of the Law Society of NSW v Martin [2012] NSWADT 22

Hearing dates:

12 December 2011

Decision date:

13 February 2012

Jurisdiction:

Legal Services Division

Before:

M Chesterman, Deputy President
D Fairlie, Judicial Member
C Bennett, Non-judicial Member

Decision:

1. The Respondent is guilty of professional misconduct.

2. The Respondent is reprimanded.

3. The Respondent is to pay a fine of $4,000 within six months of the date of this decision.

4. The Respondent is to attend and pass an appropriate course in ethics offered by the College of Law.

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

Catchwords:

Disciplinary application - solicitor - alteration of advice prepared by counsel and forwarding of the altered advice to solicitors - instrument of consent

Legislation Cited:

Legal Profession Act 2004

Cases Cited:

Council of the Law Society of NSW v Chau [2011] NSWADT 271
Council of the Law Society of NSW v Ly [2011] NSWADT 210
Council of the New South Wales Bar Association v Butland [2009] NSWADT 177
Fraser v The Law Society [1992] NSWLST 6
Legal Services Commissioner v Thurairajah [2011] NSWADT 287

Category:

Principal judgment

Parties:

Council of the Law Society of New South Wales (Applicant)
Legal Services Commissioner (Intervenor)
Peter James Martin (Respondent)

Representation:

Counsel
J Morris (Respondent)
Council of the Law Society of NSW (Applicant)
Legal Services Commissioner (Intervenor)
Matthews Williams (Respondent)

File Number(s):

102033

decision

The course of these proceedings

1(M Chesterman (Deputy President), D Fairlie (Judicial Member), C Bennett (Non-judicial Member)): On 7 December 2010, the Council of the Law Society of New South Wales ('the Law Society') filed an Application alleging that the Respondent, Peter James Martin ('the Solicitor') was guilty of professional misconduct on a single Ground. This was that he altered an advice prepared by counsel and forwarded the altered version to two solicitors as representing the advice in its unaltered form. Particulars of the alleged misconduct were supplied in a schedule to the Application.

2The orders sought in the Application were that the Solicitor should be reprimanded, that he should pay a fine, that he should attend an appropriate course at the College of Law and that he should pay the Law Society's costs of the proceedings.

3On 7 December 2010, the Law Society also filed an affidavit in support of the Application, sworn by its solicitor, Ms Anne-Marie Foord, on 29 November 2010.

4In this affidavit, Ms Foord stated that according to the Law Society's records the Solicitor was admitted to practice on 10 October 1997. She also outlined the circumstances in which the matters alleged in the Application came to the notice of the Law Society and she provided details of the complaint (made by the Society) from which these proceedings derive, the Society's investigation of the complaint and its resolution to commence the proceedings in the Tribunal.

5On 24 December 2010, the Solicitor filed a Reply to the Application, in which he admitted the matters alleged in the Ground of the Application and the accompanying Particulars. He stated also that he accepted that his conduct constituted professional misconduct and that it was appropriate that he be reprimanded, fined and ordered to pay the Law Society's costs. He added that he wished to make submissions and present evidence relating to the amount of any fine imposed.

6On 24 August 2011, the Solicitor filed an affidavit sworn by him on the preceding day.

7On 7 December 2011, an Instrument of Consent, executed by or on behalf of the Law Society, the Solicitor and the Legal Services Commissioner, was filed in the Tribunal.

8At the hearing, which took place before us on 12 December 2011, Ms Muston appeared for the Legal Services Commissioner. Through so appearing, pursuant to an entitlement to intervene conferred by section 559(1)(c) of the Legal Profession Act 2004 ('the LP Act'), the Commissioner became a party to the proceedings under section 559(5).

9Mr Pierotti, appearing for the Law Society, tendered unopposed the affidavit sworn by Ms Foord. He also tendered unopposed a further affidavit, sworn by her on 12 December 2011, in which she corrected a statement relating to the Law Society's investigation of its complaint.

10Mr Morris, who appeared for the Solicitor, tendered unopposed the Solicitor's affidavit, together with three sworn testimonials that had been provided for him by fellow-practitioners and a copy of email correspondence between the Solicitor and a representative of the College of Law regarding potentially suitable courses in ethics.

11The Solicitor gave oral evidence in chief and was cross-examined.

12The Instrument of Consent stated that the signatories gave their consent to the Tribunal making (a) a finding that the conduct of the Solicitor described in the Agreed Statement of Facts amounted to professional misconduct and (b) the following orders, by consent:-

1. That Peter James Martin be reprimanded.

2. That Peter James Martin pay a fine.

3. That Peter James Martin attend an appropriate course at the College of Law.

4. That Peter James Martin pay the costs of the Law Society.

13Mr Pierotti submitted that both the finding of professional misconduct and the consequential orders listed in the Instrument of Consent were appropriate in the circumstances. This submission received support from Ms Muston and Mr Morris.

The Agreed Statement of Facts

14The Agreed Statement of Facts, forming part of the Instrument of Consent, was in the following terms:-

Re: PETER JAMES MARTIN

In respect of the following ground of complaint, Peter James Martin ("the Solicitor") engaged in professional misconduct:

Mr Martin altered an advice dated 5 March 2009 from Ms Jacqueline Sandford of Counsel and forwarded the altered version of that advice to solicitors Mr Clarke of Dubbo and Ms Suttor of Sydney as representing Ms Sandford's advice without alteration.

Particulars of Grounds of Complaint

In these Particulars:

"the Solicitor" means Peter James Martin

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

I. At all relevant times, the Solicitor was a principal of MW Lawyers Pty Limited, Solicitors practising as Messrs Matthews Williams, Solicitors and Conveyancers.

2. Olga Mary Pietsch ["the deceased"] passed away some time in 2005.

3. The Solicitor had prepared a Will for the deceased which the deceased executed on 25 July 2003.

4. The deceased's Will provided, in part, for bequests to Christopher John Williams [Williams"] and Mark Kenneth Jones ["Jones"]. Cedric Pietsch ["Pietsch"], the son of the deceased, was to receive a monetary amount.

5. Jones and Williams were appointed Executors under the Will of the deceased.

6. After the death of the deceased, Pietsch commenced Family Provision Act proceedings in the Supreme Court in which Jones and Williams were the Defendants ["Family Provision proceedings"]. The Solicitor acted for the Executor/Defendants in the Family Provision proceedings.

7. Further proceedings were commenced in the Supreme Court between Williams and Jones wherein Williams sought that the Will of the deceased be interpreted in a manner more favourable to him ["the Supreme Court proceedings"].

8. Mr Luke Clarke, Solicitor ["Mr Clarke"], acted for the Applicant/Plaintiff in the Supreme Court proceedings. Miss Pamela Suttor, Solicitor, ["Miss Suttor"] acted for the Respondent/Defendant. The Solicitor did not act for any party in the Supreme Court proceedings.

9. The Family Provisions proceedings were settled at mediation on 4 March 2009.

10. Ms Jaqueline Sandford of Counsel ["Counsel"] was briefed by the Solicitor in the Family Provision proceedings.

11. In the course of finalising the Family Provision proceedings, Counsel provided a letter of advice dated 5 March 2009 ["the letter of advice"] to the Solicitor. The letter of advice was provided to the Solicitor in electronic form.

12. During the course of the Supreme Court proceedings the Solicitor was requested to provide his file [in the Family Provision proceedings] to Mr Clarke. Prior to forwarding the Family Provision file to Mr Clarke, the Solicitor altered the letter of advice.

13. The altered letter of advice, together with other material, was forwarded by the Solicitor to Mr Clarke on or about 4 December 2009. A further copy of the altered letter of advice was forwarded to Miss Suttor under cover of the Solicitor's letter to her of 20 January 2010.

14. By letter dated 1 July 2010 the Solicitor informed Mr Clarke of the alteration of the original letter of advice and provided to Mr Clarke a copy of the unaltered letter of advice. On the same date the Solicitor also informed Miss Suttor of the alteration of the original letter of advice and by letter of the same date forwarded to her, in part, a copy of the unaltered letter of advice.

Instruments of consent

15Under the heading 'Consent orders', section 564 of the LP Act provides that after disciplinary proceedings against a legal practitioner have been commenced an instrument of consent may be filed in the Tribunal. It states in subsection (1) that the Tribunal, with the consent of the respondent, may make orders under Part 4 of the Act without conducting or completing a hearing in relation to the complaint. In subsection 10, it states:-

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

16The Tribunal's decision in Council of the New South Wales Bar Association v Butland [2009] NSWADT 177 (see [29 - 31], [33] and [35]) provides useful guidance as to the matters to be taken into account in deciding whether to make consent orders proposed in an instrument of consent filed under this section.

17An important principle stated in that case by the Tribunal (at [31]) is that where the parties have jointly proposed an order or orders by way of penalty, it will not be useful to investigate whether the Tribunal would have arrived at that precise outcome in the absence of agreement. The question is whether that outcome, in the Tribunal's opinion, is appropriate in the circumstances of the case. In answering this question, the Tribunal should not reject the agreed outcome simply because it would have been inclined to make some other order or orders. The outcome proposed will be appropriate if it is 'within the permissible range'.

Discussion and conclusions

18On reviewing the evidence tendered and admitted at the hearing, we find that it adequately substantiates the matters outlined in the Agreed Statement of Facts.

19Among the matters disclosed in the evidence were details of the alterations made by the Solicitor to Ms Sandford's advice. They were three in number. In a letter dated 29 July 2010 to the investigator appointed by the Law Society, the Solicitor explained that his purpose in making two of these alterations was to try to reduce the scope of the litigation between Mr Williams and Mr Jones in the Supreme Court. He stated that at that time he was 'angry and frustrated' that the agreement reached in settling the proceedings under family provision legislation had subsequently been 'ignored'. As to the third alteration, the Solicitor said in this letter that it was 'inadvertent'.

20During cross-examination, the Solicitor testified that the first occasion on which he revealed that he had altered Ms Sandford's advice was during a telephone conversation that he had with Ms Suttor on 1 July 2010. He said that he initiated this conversation because shortly before that date Ms Sandford had told him that her advice might receive consideration in the Supreme Court proceedings and he did not want those proceedings to be 'derailed' because of the alterations that he had made. He also testified, however, that he could not now explain what his motivation was in making the alterations.

21We are satisfied also that the conduct of the Solicitor described in the Agreed Statement of Facts amounts to professional misconduct. Comparable conduct by solicitors such as falsely certifying that they have explained a mortgage document to a client or falsely purporting to have witnessed the signing of a mortgage or an affidavit has been held clearly to amount to professional misconduct: see for example the decision of the Court of Appeal in Fraser v The Law Society [1992] NSWLST 6 and the Tribunal's decisions in Council of the Law Society of NSW v Ly [2011] NSWADT 210 and Council of the Law Society of NSW v Chau [2011] NSWADT 271.

22In deciding whether the orders by way of penalty proposed in the Instrument of Consent are 'within the permissible range', we take into account the following matters put to us in the parties' submissions at the hearing.

23A matter on which Mr Pierotti, Ms Muston and Mr Morris placed significant emphasis was that it was the Solicitor himself who first brought his misconduct to the notice of the Law Society. He testified that during his conversation with Ms Suttor on 1 July 2010, she advised him, in response to a question from him, that he should do this. He did so on the next day, in a letter to the Professional Standards Department. This letter included the following passages:-

I, Peter Martin, am ashamed to report improper behaviour of myself as a solicitor...

I totally regret my actions and am deeply ashamed by my behaviour. I will assist in any investigation to be conducted.

24The Solicitor did in fact co-operate fully with the Law Society's investigation. The delay of nearly 18 months that occurred between the writing of his letter to the Professional Standards Department and the hearing of the Law Society's application was attributable not to any tardiness on his part, but to a concern that this hearing should not take place while the Supreme Court proceedings between Mr Williams and Mr Jones were still on foot.

25In his letter dated 29 July 2010 to the investigator appointed by the Law Society, the Solicitor stated again that he was ashamed about his behaviour, but did not acknowledge that it amounted to professional misconduct. In a letter written on his behalf to the Society on 7 October 2010, it was asserted that his behaviour amounted only to unsatisfactory professional conduct. But he admitted in his Reply, filed on 24 December 2010, and in his affidavit, sworn on 23 August 2011, that it was indeed professional misconduct.

26In the three sworn testimonials provided for the Solicitor, the deponents stated that they had read the material filed by the Law Society in these proceedings, that they considered his misconduct to be wholly out of character, that he made many notable contributions (some as a solicitor) to the rural community in which he lived and worked and that notwithstanding his misconduct he was a person of integrity and honesty who maintained high ethical standards.

27We were advised that according to the records of the Legal Services Commissioner one complaint had been made against the Solicitor by a former client. No material relating to this complaint was included in the evidence put before us and the Solicitor testified that, as far as he could recall, he had received no notification about it. We indicated that in these circumstances we could not attribute any significance to it.

28Mr Morris pointed out that because the Solicitor practised in a small town within a rural area, the embarrassment and shame that he felt on account of disclosure of his misconduct to fellow-practitioners was greater than it would have been if he practised in a large city.

29Our opinion, formed after careful consideration of these matters, is that the orders proposed in the Instrument of Consent by way of penalty - a reprimand, a fine and a requirement to attend an appropriate course in ethics - are appropriate to this case. For the reasons contained in the parties' submissions, a more severe penalty, such as removal from the roll or suspension of the Solicitor's entitlement to practise, is not warranted.

30In his affidavit, the Solicitor provided particulars of his current financial circumstances. He stated as follows: (a) his taxable earnings for 2010-2011, as a solicitor/director of the firm Matthews Williams, were likely to be about $134,000; (b) he was jointly responsible, with his wife, for bank loans totalling about $180,000; (c) his three children lived in the family home and attended local schools; and (d) he and his family were reliant on an independent income earned by his wife 'to make ends meet'.

31Mr Morris drew our attention to cases illustrating the penalties, and in particular the amounts of fines, that have been imposed in previous decisions relating to misconduct of the kind committed by the Solicitor. The two cases mentioned by him that we have found helpful have already been cited in these reasons.

32In Council of the Law Society of NSW v Ly [2011] NSWADT 210, the respondent solicitor on three separate occasions falsely purported to have witnessed the signing of a mortgage document. The penalties imposed were a reprimand and a fine of $6,000.

33In Council of the Law Society of NSW v Chau [2011] NSWADT 271, the respondent solicitor falsely purported to have witnessed the signing of an affidavit. The penalties imposed were a reprimand, a fine of $3,000, an order that any application by him within three years for an unrestricted practising certificate should be subject to certain stipulated conditions and an order that during a period of three years he should undertake at least one course per year in the areas of ethics and trust accounts.

34A third case to which Mr Morris referred, Legal Services Commissioner v Thurairajah [2011] NSWADT 287, involved obstruction of an investigator appointed by the Law Society. We did not regard it as helpful on the question of penalties in the present case.

35The amounts of the fines imposed in Ly ($6,000, with respect to three separate instances of false certification) and in Chau ($3,000, with respect to only one instance) are instructive. In our opinion, the appropriate amount here is $4,000, payable within six months.

36As mentioned above, the evidence in this case included a copy of email correspondence between the Solicitor and a representative of the College of Law regarding potentially suitable courses in ethics. This went little further than to indicate that no specific course had been agreed on by the Law Society and the College as suitable for the Solicitor to undertake pursuant to an order in these proceedings.

37Mr Morris referred to difficulties that the Solicitor would encounter if required to visit Sydney regularly in order to attend a course. Mr Pierotti advised us, however, that the College provided ethics courses that could be taken online.

38In these circumstances, we consider that an order phrased in general terms is sufficient.

39Section 566(1) of the LP Act states that the Tribunal must order an Australian legal practitioner whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that 'exceptional circumstances' exist. Since no evidence disclosing 'exceptional circumstances' has been put before us, we are bound to make the costs order proposed in the Instrument of Consent.

40Our orders are as follows:-