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) Solicitors: Council of the Law Society of New South Wales (Applicant) Respondent (Self represented) File Number(s): 2020/00140243 Publication restriction: 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. REASONS FOR DECISION Introduction 1. This is an Application for Disciplinary Findings and Orders made in the Tribunal's Occupational Division on or about 7 May 2020 by the Council of the Law Society of New South Wales. It is made pursuant to clause 23(5A) of Part 5 to Schedule 9 of the Legal Profession Uniform Law Application Act 2014, and concerns the Respondent, Mr Jesus Gutierrez Diaz, who practises as a solicitor in Blacktown NSW under the firm name Diaz & Diaz. 2. The Applicant says that the Respondent committed certain breaches of the Legal Profession Uniform Law (NSW), and seeks the Tribunal's decision on the following matters: 1. Whether the breaches alleged by the Applicant are established; 2. If established, whether the Respondent's relevant conduct constitutes unsatisfactory professional conduct or professional misconduct; and 3. The appropriate orders to be made in relation to that conduct. 4. It also seeks an order under section 64 of the Civil and Administrative Tribunal Act 2013 No 2, prohibiting the publication of the names of (and any information tending to identify) the clients of the Respondent whose affairs are involved with the alleged breaches, and an order as to costs under clause 23(1) of Schedule 5 of the Civil and Administrative Tribunal Act 2013 No 2. Application for an order under section 64 of the Civil and Administrative Tribunal Act 2013 No 2 1. This section allows the Tribunal if ".. satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason" to: .....make any one or more of the following orders—(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) .... 1. In its decision in Council of the Law Society of New South Wales v CZD [2017] NSWCATOD 31 the Tribunal outlined the analytical process which the Tribunal might adopt in considering such an application. Essentially, this is to weigh the principle of open justice, from which the proposed order is a clear departure, against the benefits to be had from the order. 2. Here the order only concerns the names of the Respondent's clients whose affairs were involved in the alleged breaches. Their identities are not, in the present case, at all relevant to the nature of the alleged breaches or the circumstances in which they are alleged to have incurred. Moreover, since the order requested does not restrict publication of the name of the Respondent or details of his conduct, the exemplary lessons to be drawn from the public identification of solicitors against whom the Tribunal makes findings and of their conduct will not be compromised if in the event the Tribunal finds against the Respondent. 3. The Tribunal decided therefore to make the order sought under section 64 of the Civil and Administrative Tribunal Act 2013 No 2. The alleged contraventions Possible contravention of section 148 of the Uniform Law 1. This section provides relevantly as follows: A law practice, an Australian legal practitioner or any other person must not, without reasonable excuse, cause— (a) a deficiency in any trust account or trust ledger account; or (b) a failure to pay or deliver any trust money. 1. The Applicant alleges that the Respondent contravened this section in the cases of two clients, respectively Client 1 and Client 2: 1. In that of Client 1, by drawing a cheque on 13 April 2017 for $268 on his firm's trust account (the Trust Account) in favour of the firm, in circumstances which resulted in Client 1's trust ledger becoming and remaining overdrawn by $110 for a period of 137 days until the Respondent rectified the deficiency by paying an amount equal to the deficiency into the Trust Account and crediting that sum to Client 1's ledger account; and 2. In that of Client 2, by drawing on 21 April 2017 a cheque on the Trust Account in favour of Client 2 by way of purported payment to Client 2 of certain moneys agreed to be paid into (but yet to be received in) the Trust Account in settlement of litigation to which Client 2 was a party; the settlement moneys were not in fact paid into the Trust Account until approximately 5 weeks after the cheque was drawn, resulting in Client 2's ledger account being overdrawn by $4550 for a period of approximately 5 weeks. 1. The Applicant further alleges that the Respondent was unable to provide a reasonable excuse for these shortfalls. Rather, he said by way of response to the Applicant that the shortfalls had been rectified, and that they were both the result of honest mistakes. 2. The Applicant provided evidence for these allegations in the form of two affidavits and their respective annexures and exhibits: 1. As to the relevant transactions concerning the ledger accounts of Clients 1 and 2, the affidavit dated 26 July 2019 of Gregory William Livermore, a Trust Account Investigator employed by the Applicant (the Livermore Affidavit); and 2. As to the insufficiency of the Respondent's excuse, the affidavit dated 7 May 2020 of Anthony James Lean, the solicitor for the Applicant (the Lean Affidavit). 1. The Respondent did not dispute this evidence. He admitted the relevant contraventions, while making certain observations (to which these reasons return below) in mitigation of the contraventions. 2. Accordingly, the Tribunal is satisfied that the Respondent contravened section 148 of the Uniform Law in the manner alleged by the Applicant. Possible contravention of section 154 of the Uniform Law 1. This section provides relevantly as follows: As soon as practicable after — (a) a legal practitioner associate of a law practice; or (b) an ADI; or (c) an external examiner; or (d) another entity of a kind specified in the Uniform Rules for the purposes of this section — becomes aware that there is an irregularity in any of the law practice's trust accounts or trust ledger accounts, the associate, ADI, examiner or entity must give written notice of the irregularity to the designated local regulatory authority. 1. The Applicant recognises that the Respondent did report both shortfalls in writing to the Applicant, in an email dated 26 September 2017 to Mr Livermore, sent during an investigation into the Respondent's dealings with trust moneys initiated by the Applicant on 23 August 2017. The Applicant says, however, that although those reports were made the Respondent nonetheless contravened section 154 because: 1. In the case of Client 1, the report was made over 2 months after the latest date on which he could have become aware of the contravention (namely 21 July 2017, when he certified his firm's June 2017 trial balance); and 2. In the case of Client 2, over 4 months after he first became aware of the shortfall, in May 2017. 1. Again: 1. the Applicant provided evidence for these allegations in the Livermore and Lean Affidavits and their respective annexures and exhibits; and 2. the Respondent admitted the breaches. 1. Accordingly, the Tribunal is satisfied that the Respondent contravened section 154 of the Uniform Law in the manner alleged by the Applicant. Possible contraventions of section 144(2)(b) of the Uniform Law by failing to comply with Rule 42 of the Legal Profession Uniform General Rules 2015 1. Section 144 of the Uniform Law provides relevantly as follows: 144 Withdrawal of trust money (1) ............................. (2) A law practice may do any of the following, in relation to trust money held in the practice's general trust account or controlled money account— (a) ..................................; (b) withdraw money for payment to the law practice's account for legal costs owing to the practice if the relevant procedures or requirements specified in the Uniform Rules for the purposes of this Division are complied with; (c) ............................. 1. Rule 42 of the Legal Profession Uniform General Rules 2015 (the Rules) in turn provides relevantly as follows: 42 Withdrawal of trust money for payment of legal costs (1) This rule prescribes, for the purposes of Division 2 of Part 4.2 of the Uniform Law (see section 144(2)(b) of that Law), the procedure for the withdrawal of trust money held in a general trust account or controlled money account of a law practice for payment of legal costs owing to the law practice by the person for whom the trust money was paid into the account. (2) The trust money may be withdrawn in accordance with the procedure set out in any applicable subrule of this rule. (3) The law practice may withdraw the trust money if the law practice has given the person a bill relating to the money and referring to the proposed withdrawal, and— (a) if the person does not, at the end of the period of 7 business days after the person was given the bill, object to the amount specified in the bill, or (b) if the person objects to the amount specified in the bill within the period of 7 business days after being given the bill but has not referred the matter to the designated local regulatory authority or for costs assessment, and the period of 30 days after the later of the following dates has expired— (i) the date on which the person was given the bill, (ii) the date on which the person received an itemised bill following a request made in accordance with section 187 of the Uniform Law, or (c) if the money otherwise becomes legally payable. (4) The law practice may withdraw the trust money (whether or not the law practice has given the person a bill relating to the money)— (a) if the money is withdrawn in accordance with instructions that have been received by the law practice and that authorise the withdrawal, and (b) if, before effecting the withdrawal, the law practice gives or sends to the person— (i) a request for payment, referring to the proposed withdrawal, or (ii) a written notice of withdrawal. Note— See also subrule (7), which relates to subrule (4). (5) The law practice may withdraw the trust money— (a) if the money is owed to the law practice by way of reimbursement of money already paid by the law practice on behalf of the person, and (b) if, before effecting the withdrawal, the law practice gives or sends to the person— (i) a request for payment, referring to the proposed withdrawal, or (ii) a written notice of withdrawal. Note— See also subrule (8), which relates to subrule (5). (6) If the law practice has given the person who is a commercial or government client a bill specifying the amount payable by the person for legal costs, the law practice may withdraw the money so long as— (a) the money is withdrawn in accordance with a costs agreement between the law practice and the person, and (b) the costs agreement complies with the legislation under which it is made and authorises the withdrawal, and (c) before effecting the withdrawal, the law practice gives or sends to the person a request for payment, referring to the proposed withdrawal. (7) In relation to subrule (4)— (a) if the authorisation referred to in subrule (4)(a) authorises withdrawal of part only of the money— (i) the law practice may withdraw the money to that extent only, and (ii) if the law practice has given the person a bill relating to the money as referred to in subrule (3)(a)—subrule (3)(b)(i) and (ii) are taken to apply to the remaining part of the amount specified in the bill, and (b) instructions referred to in subrule (4)— (i) if given in writing, must be kept as a permanent record, or (ii) if not given in writing, must be confirmed in writing either before, or not later than 5 working days after, the law practice effects the withdrawal and a copy must be kept as a permanent record. (8) For the purposes of subrule (5), money is taken to have been paid by the law practice on behalf of the person when the relevant account of the law practice has been debited. 1. The Applicant says that, in the case of the affairs of Client 1, the Respondent contravened section 144 of the Uniform Law by failing to comply with Rule 42 as follows: 1. On 25 November 2015 Client 1 provided the Respondent with a letter, authorising the Respondent generally to use money held on trust for payment of legal fees and disbursements from time to time incurred by the Respondent's firm in connection with the matter on which it acted for Client 1; 2. On 13 April 2017, the Respondent issued a tax invoice for legal costs to Client 1; 3. The tax invoice had a hand-written notation on it, the inference of which was possibly that an amount of $286 had been or would be transferred from the Respondent's trust account towards satisfaction of the tax invoice; 4. A cheque for that amount was drawn on the Respondent's trust account on 13 April 2017, and paid to the Respondent's firm; 5. The tax invoice did not refer clearly to the proposed withdrawal of trust money as required by Rule 42(3); in this regard, the hand-written notation lacks the precision required to be a sufficient reference for purposes of that Rule; 6. In any event the actual withdrawal occurred before the expiry of 7 business days after the invoice was issued required under Rule 42(3); 7. Moreover, even if Client 1's letter of 25 November 2015 amounts for purposes of Rule 42(4) to instructions to withdraw trust moneys to pay the Respondent's invoices, the Respondent failed to give Client 1 "...(i) a request for payment, referring to the proposed withdrawal, or .. (ii) a written notice of withdrawal" in relation to the proposed withdrawal, as required by Rule 42(4); the hand-written notation again lacks the specificity necessary to satisfy either of paragraphs (i) or (ii) of Rule 42(4)(b); and 8. Neither of Rules 42(5) or 42(6) alter the situation, since: 1. In the case of Rule 42(5), the trust moneys were not withdrawn by way of reimbursement to the Respondent's practice, and 2. In that of Rule 42(6), Client 1 was not a commercial or government client within the meaning of section 170(2) of the Uniform Law, and thus the dealings between them were outside the scope of Rule 42(6). 1. The Applicant provided evidence for these allegations in the Livermore and Lean Affidavits and their respective annexures and exhibits. The Respondent accepted that the breaches had occurred, while emphasising (as is discussed below in more detail) the technical nature of the contraventions and the consistency of his behaviour with Client 1's instructions as set out in the letter of 25 November 2015. 2. The Tribunal is thus satisfied that, in the case of Client 1, the Respondent contravened section 144(2)(b) of the Uniform Law by failing to comply with Rule 42 of the Rules. 3. The Applicant also says that, in the case of the affairs of Client 2, the Respondent contravened section 144 of the Uniform Law by failing to comply with Rule 42 as follows: 1. On 12 October 2016 and 15 June 2017, Client 2 provided the Respondent with letters, each authorising the Respondent generally to use money held on trust for payment of legal fees and disbursements from time to time incurred by the Respondent's firm in connection with the matter on which it acted for Client 2; 2. On six occasions between 15 November 2016 and 28 July 2017, the Respondent issued tax invoices for legal costs to Client 2, none of which referred to the proposed withdrawal of money relating to the invoice as required by Rule 42(3); 3. Moreover, in every instance the withdrawals of trust money made by the Respondent to meet those invoices occurred before the expiry of 7 business days after the invoice was issued required under Rule 42(3); 4. Moreover, even if Client 2's letters of 12 October 2016 and 15 June 2017 amount for purposes of Rule 42(4) to instructions to withdraw trust moneys to pay the Respondent's invoices, the Respondent failed to give Client 2 "... a request for payment, referring to the proposed withdrawal, or .. (ii) a written notice of withdrawal" in relation to the proposed withdrawal, as required by Rule 42(4); and 5. Neither of Rules 42(5) or 42(6) alter the situation, since: 1. In the case of Rule 42(5), the trust moneys were not withdrawn by way of reimbursement of the Respondent's practice, and 2. In that of Rule 42(6), Client 2 was not a commercial or government client within the meaning of section 170(2) of the Uniform Law, and thus the dealings between them were outside the scope of Rule 42(6). 1. The Applicant provided evidence for these allegations in the Livermore and Lean Affidavits and their respective annexures and exhibits. The Respondent accepted that the breaches had occurred, while emphasising (as is discussed below in more detail) the technical nature of the contraventions and the consistency of his behaviour with Client 2's instructions as set out in the letters of 12 October 2016. 2. The Tribunal is thus satisfied that, in the case of Client 2, the Respondent contravened section 144(2)(b) of the Uniform Law by failing to comply with Rule 42 of the Rules. The legal consequences 1. Section 298 of the Uniform Law provides relevantly as follows: Without limitation, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct— (a) conduct consisting of a contravention of this Law, whether or not— (i) the contravention is an offence or punishable by way of a pecuniary penalty order; or (ii) the person has been convicted of an offence in relation to the contravention; or (iii) a pecuniary penalty order has been made against the person under Part 9.7 in relation to the contravention; (b) conduct consisting of a contravention of the Uniform Rules; 1. Section 296 of the Uniform Law provides as follows: For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer 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 lawyer. 1. Section 297 of the Uniform Law provides relevantly as follows: (1) For the purposes of this Law, professional misconduct includes— (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice. 1. The various contraventions identified above of the Uniform Law and the Rules are thus capable of constituting either professional misconduct or unsatisfactory professional conduct. The Applicant's submissions 1. In summary, the Applicant submitted as follows: 1. The Respondent's contraventions of sections 148, 154 and 144(2)(b) of the Uniform Act, and of Rule 42 of the Rules, constitute unsatisfactory professional conduct by him; they are conduct which falls short of ".. the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer..", since: 1. By allowing the two deficiencies to arise on his trust account as described above, the Respondent's conduct ".. resulted in the appropriation of ... another client's money from the Trust Account which was paid ..." to Client 1 or Client 2; this is something which is outside the public's expectations of a reasonably competent lawyer; 2. The Respondent's failure to comply with the billing requirements set out in Rule 42 of the Rules demonstrated a lack of knowledge of the Uniform Law's requirements, and this lack of knowledge falls short of the requisite standard of competence and diligence; and 3. The Respondent's failure to notify the Applicant as soon as practicable of his various contraventions of the Uniform Law showed an ignorance of or disregard for his professional obligations which again fell short of the requisite standard. 1. By causing the two deficiencies in his trust account, the Respondent engaged not only in unsatisfactory professional conduct; his conduct involved a substantial failure to reach or maintain a reasonable standard of competence and diligence, and thus constitutes professional misconduct within the meaning of section 297(1)(a) of the Uniform Law; 2. The Respondent's failure promptly to rectify the deficiencies in his Trust Account once he became aware of them is conduct in pursuit of his professional activities that would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency; it thus amounts to professional conduct at common law and accordingly constitutes professional misconduct for purposes of section 297 of the Uniform Law; 3. The Respondent's failure under section 154 of the Uniform Law to report the various irregularities involving his trust account in relation to Clients 1 and 2 constitutes professional misconduct both at common law and because it demonstrates a substantial failure to reach or maintain a reasonable standard of competence and diligence, and thus constitutes professional misconduct within the meaning of section 297(1)(a) of the Uniform Law; and 4. The Respondent's contraventions of section 144(2)(b) of the Uniform Law appear to be due to his lack of knowledge of the requirements under the Uniform Law and constitute professional misconduct within the meaning of section 297(1)(a) of the Uniform Law, being conduct involving a substantial failure to reach or maintain a reasonable standard of competence and diligence. 1. In summary, the Applicant sought the following: 1. Findings that: 1. the Respondent's conduct amounted to unsatisfactory professional conduct, and 2. in relation to those matters referred to above which the Applicant characterised in its submissions as professional misconduct, the Respondent's conduct was professional misconduct; 1. An order that the Respondent be reprimanded accordingly; 2. An order that the Respondent at his own expense undertake an appropriate Practice Management Course within 6 months after the date of the Tribunal's orders, in which he obtains a pass mark of not less than 65%; and 3. An order that for a period of three years the Respondent's trust account be inspected on a quarterly basis by an independent accountant approved by the Applicant and a report of each such inspection be provided within 10 days to the Applicant, all at the Respondent's own expense, and that in the event of failure to do so the Respondent's Practising Certificate be suspended or no further Practising Certificate be issued to him; and 4. An order that the Respondent pay the Applicant's costs. The Respondent's submissions 1. As indicated above, the Respondent did not dispute the contraventions of sections 144(2)(b), 148 and 154 of the Uniform Law alleged by the Applicant. 2. Rather, his submissions: 1. Emphasised several factors which, he said, mitigated the gravity of those contraventions; these are summarised below; 2. Noted his long and blameless career as a practising lawyer, both initially in his native Philippines and for many years following his immigration to Australia, in this country; 3. Noted his contribution to society, including as a local councillor for some years in Blacktown and over an extended period as a community leader within the Filipino community in Australia; and 4. Asked that the Tribunal give appropriate weight to these considerations in deciding the application. 1. The factors which the Respondent said mitigated the gravity of his contraventions were as follows: 1. All the contraventions were inadvertent in nature; 2. The trust account deficiencies were remedied, variously by, in the case of Client 1, a payment by the Respondent and, in that of Client 2, by the finalisation of the commercial arrangements on which the offending withdrawal from the trust account had been originally predicated; 3. Neither Client 1 nor Client 2 nor any other client of the firm had suffered any disadvantage; 4. In the case of the contraventions of Rule 42: 1. the Respondent acted at all times in compliance with the written instructions of his clients in withdrawing money from his trust account in order to meet his professional costs incurred by them; and 2. his practice in doing so had elicited no adverse comment from the Applicant in previous trust account inspections. The Tribunal's decision 1. As indicated earlier, the Tribunal is satisfied that the Respondent contravened the Uniform Law at the times and in the manner alleged by the Applicant. 2. The Tribunal is satisfied that these contraventions constitute conduct "..that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer", and thus amount to unsatisfactory professional conduct by the Respondent. 3. The Tribunal is not satisfied, however, that the contraventions which form the subject of the application amount to professional misconduct: 1. The contraventions of which the Tribunal has evidence are relatively few and occurred over a relatively limited period. It is thus difficult to conclude that they demonstrate the consistent failure to maintain a reasonable standard of competence or diligence contemplated by section 297(1)(a) of the Uniform Law. 2. With the possible exception of the contraventions of section 148 of the Uniform Law, which are addressed further below, the contraventions are not in the Tribunal's view of such substance as to support a finding of professional misconduct. 3. This is not to say that they are insignificant or merely technical breaches, since: 1. The reporting requirements of section 154 are an important element in allowing the Applicant to identify and take steps to protect the public from harm that could be caused by dishonest, incompetent or less than diligent legal practitioners, and the Tribunal is conscious of the public benefit to be had in ensuring compliance by solicitors with their reporting obligations; and 2. Clients 1 and 2 lost the ability to avail themselves of the rights afforded to clients by Rule 42 because of the Respondent's failure to comply with that rule. They were deprived of: 1. the opportunity to object to the amount of their respective bills within the 7-day period provided by Rule 42(3) before the Respondent debited his trust account with those bills; and 2. prior express notice of the Respondent's intention to debit those bills to his trust account, as provided for in Rule 42(5), in each case frustrating the protective purpose of Rule 42. 1. However, in the Tribunal's view the contraventions of sections 154 and 142 lack that element of centrality to the solicitor's relationship with his client which underlies both: 1. the statutory notion of substantial failure to reach or maintain a reasonable standard of competence and diligence, and 2. the common law concept of conduct that would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency. 1. They are thus adequately and appropriately sanctioned by a finding of unsatisfactory professional conduct. 1. Turning now to the contraventions of section 148: 1. As discussed above, they do not show the element of consistency of failure which section 297(1)(a) contemplates. 2. They do, however, go to the operation of the Respondent's trust account. In the Tribunal's view this is a central element in the relationship between solicitor and client, and as such it is legitimate to consider whether the contraventions enliven section 297(1) of the Uniform Law so as to result in a finding of professional misconduct. 3. On balance, the Tribunal is of the view that they do not. This was for several reasons: 1. There was no suggestion that the contraventions were the result of anything other than inadvertence and inefficiency. Indeed, counsel for the Applicant submitted, and the Tribunal accepts, that it may infer from the available material that the complaints arose due to the Respondent's poor administrative systems and accounting practices. 2. The relevant breaches were all remedied without apparent difficulty or objection, and without any practical disadvantage to any client. 3. The amounts involved were modest. This is not to suggest that contraventions involving small amounts should for that reason alone be treated more leniently than those which involve large amounts, but the amounts involved are so small as to support the inference that they resulted from inadvertence and inefficiency rather than an intent to disadvantage clients. 4. These considerations indicate that the relevant breaches fall short of conduct which would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency. 5. The Applicant itself does not seek orders which would interfere with the Respondent's right to practise. This, in the Tribunal's view, reflects an assessment by the Applicant of the Respondent's conduct which places it towards the less serious end of the continuum of sanctionable misconduct. 1. These contraventions are, therefore, also adequately and appropriately sanctioned by a finding of unsatisfactory professional conduct, rather than one of professional misconduct. 1. The Tribunal agrees in general terms with the recommendations of the Applicant, that the Respondent: 1. Be reprimanded for his unsatisfactory professional conduct described above; 2. Be required to attend an appropriate course of professional education in order to remedy what appears from the evidence to be undesirable weaknesses in his appreciation of certain aspects of his professional responsibilities; the Applicant proposed that the Respondent be required to achieve a mark of 65% of more in such a course, and the Tribunal accepts this recommendation, since it is in the Tribunal's view inappropriate for a solicitor in the Respondent's position to score no better than a bare pass in a practice management course; and 3. Be required for a period to have more frequent examinations of his trust account records by an independent examiner than is legally required pursuant to the Uniform Law; the Applicant suggested that these examinations be conducted and reported on quarterly for a period of three years; the Tribunal, however, was of the view that semi-annual examinations for a period of 2 years, coupled with the statutorily required annual examinations, provide adequate oversight. 1. Finally, the Tribunal notes the Respondent's request that its decision not be publicised, in view of his prominence in the community and his long and otherwise unblemished record in the profession. The Tribunal's role, however, is protective and is directed at protecting clients and members of the public from harm that could be caused by dishonest, incompetent or non-diligent legal practitioners. It does so to a significant degree by promoting the maintenance of high professional standards within the profession. For the Tribunal to agree to the Respondent's request would undermine this objective, since the public availability of the Tribunal's orders and reasons is inherently a significant part of the process of promoting high professional standards. It is thus disinclined to exercise any power which it may have to suppress publication of this decision. Orders 1. Accordingly, the Tribunal orders as follows: 1. Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 No 2, that 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 doing so. 4. Should the Respondent fail to satisfy paragraphs (a), (b) and, if appropriate, (c) 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. 1. 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: 1. 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 2. In the case of all reports for all other Reporting Dates, the relevant Reporting Date. 1. 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 Professions Uniform Law (NSW) and the relevant Rules and Regulations as at the relevant Reporting Date (the Report). 2. Nothing in these orders detracts from the Respondent's annual reporting obligations under Division 3 of Part 4.2 of the Uniform Law (NSW) and the relevant Rules and Regulations. However, the Respondent may appoint the Expert (if otherwise qualified for appointment) 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. 3. 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. 1. The Respondent to pay the costs of the Applicant as agreed or assessed. ********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 January 2021