Council of the Law Society of New South Wales v Diaz [2021] NSWCATOD 9

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Diaz [2021] NSWCATOD 9 Hearing dates: 19 October 2020 Date of orders: 22 January 2021 Decision date: 22 January 2021 Jurisdiction: Occupational Division Before: AR Boxall, Senior Member (Legal) NS Isenberg RFD, Senior Member (Legal) B Thomson, General Member Decision: 1 Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 No 2 the publication of the names of the clients of the Respondent referred to in the Application for Disciplinary Findings and Orders and material filed in these proceedings and of any information which might tend to identify any such person is prohibited. 2 That the Respondent be reprimanded for unsatisfactory professional conduct. 3 That the Respondent undertake further professional education in accordance with the following terms: (1) The Respondent undertake, complete and pass at his own expense, within 6 months after the date of the orders of the Tribunal (the Time Period), an appropriate practice management course (the Course) as approved by the Director, Legal Regulation, of the Law Society of New South Wales (the Director) and achieve a pass mark of at least 65% in that Course. (2) The Respondent shall, within seven (7) days of receipt of notification of the result of his participation in the Course, provide to the Director the original of such notification. (3) Should the Respondent fail to pass the Course at a mark of 65% or better, he shall complete such further courses in practice management as approved by the Director until such time as he passes such a course at a mark of 65% or better and provides to the Director the original notification to him of his doing so. (4) Should the Respondent fail to satisfy paragraphs (1), (2) and, if appropriate, (3) within the Time Period his practising certificate shall be suspended or, if at that time he does not hold a practising certificate, no further practising certificate is to be issued to him until he satisfactorily undertakes and passes such further courses in practice management as may be approved by the Director. 4 The financial affairs of the Respondent's practice be subject to the following terms: (1) The Respondent must within 21 days after the date of these orders nominate an independent accountant (the Expert) to conduct inspections of the Respondent's trust account records every 6 months commencing as at 31 December 2020 (the Inspection). The Expert must be a person approved by the Director. (2) The Respondent must ensure that Inspections occur as at each of 31 December 2020, 30 June 2021, 31 December 2021 and 30 June 2022 (each, a Reporting Date), if he holds a NSW practising certificate on the relevant Reporting Date. (3) The Respondent must at his own expense provide to the Director a report from the Expert within 15 business days after: (a) In the case of the report in respect of 31 December 2020, the date on which the Director notifies the Respondent that the Expert is approved; and (b) In the case of all reports for all other Reporting Dates, the relevant Reporting Date. (4) Each such report shall set out the Expert's opinion as to whether the Respondent has satisfactorily complied with his trust accounting obligations pursuant to the Legal Profession Uniform Law (NSW) and the relevant Rules and Regulations as at the relevant Reporting Date (the Report). (5) Nothing in these orders detracts from the Respondent's annual reporting obligations under Division 3 of Part 4.2 of the Legal Profession Uniform Law (NSW) and the relevant Rules and Regulations. However, the Respondent may appoint the Expert as his external examiner for purposes of meeting those statutory obligations and cause a Report to be issued in a form which, to the extent practicable, at the same time both satisfies these orders and meets the requirements of Division 3 of Part 4.2 of the Uniform Law (NSW) and the relevant Rules and Regulations. (6) Should the Respondent fail to provide any Report as required, his Practising Certificate shall be suspended or, if he does not hold a current Practising Certificate as at the due date for provision of the Report, no further Practising Certificate is to be issued to him until such time as he provides the outstanding Report. 5 The Respondent to pay the costs of the Applicant as agreed or assessed. Catchwords: OCCUPATIONS — Legal practitioners — Misconduct and discipline — Unsatisfactory professional conduct - Trust account money Legislation Cited: Civil and Administrative Tribunal Act 2013 No 2, s 64, Schedule 5 clause 23(1) Legal Profession Uniform Law Application Act 2014 Schedule 9, Part 5, clause 23(5A) Legal Profession Uniform Law (NSW), ss 144, 148, 154, 296, 297, 298, Division 3 Part 4.2 Legal Profession Uniform General Rules 2015, Rule 42 Cases Cited: Council of the Law Society of New South Wales v CZD [2017] NSWCATOD 31 Texts Cited: None Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Jesus Gutierrez Diaz (Respondent) Representation: Counsel: P Maddigan (Applicant)