Council of the Law Society of NSW v Nguyen [2021] NSWCATOD 12

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of NSW v Nguyen [2021] NSWCATOD 12 Hearing dates: 18 January 2021 Date of orders: 28 January 2021 Decision date: 28 January 2021 Jurisdiction: Occupational Division Before: L Pearson, Principal Member P Moran, Senior Member M Bolt, General Member Decision: 1. The Respondent is cautioned. 2. The Respondent is to pay the Applicant's costs agreed in the sum of $1,000. Catchwords: PROFESSIONS AND TRADES – legal practitioner – instrument of consent – unsatisfactory professional conduct – caution - costs Legislation Cited: Civil and Administrative Tribunal Act 2013 Legal Profession Uniform Law (NSW) Legal Profession Uniform Law Application Act 2014 Cases Cited: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Carr v Council of the Law Society of New South Wales [2020] NSWCA 276 Texts Cited: None Category: Principal judgment Parties: Council of the Law Society of NSW (Applicant) David Duc Van Nguyen (Respondent) Representation: Counsel: P Griffin SC (Respondent)

Solicitors: Professional Standards, Law Society of NSW (Applicant) Neil Watt Consulting (Respondent) File Number(s): 2020/00243188 Publication restriction: Nil

REASONS FOR DECISION 1. On 20 August 2020 the Council of the Law Society filed an application in the Tribunal, pursuant to cl 23(5)(a) of Part 5 to Sch 9 to the Legal Profession Uniform Law Application Act 2014 (the Application Act), alleging that the respondent solicitor, Mr David Duc Van Nguyen, was guilty of professional misconduct in making a false statement to the Law Society, and guilty of unsatisfactory professional conduct in purporting to supervise while holding a practising certificate subject to condition 2. The Law Society sought orders that the solicitor be reprimanded, and fined, and that he pay the costs of the Law Society. 2. On 13 January 2021 the parties filed an Instrument of Consent pursuant to s 144 of the Application Act, signed on behalf of the parties and by the Legal Services Commissioner. That document, which included an agreed statement of facts, is as follows: ORDERS The NSW Civil and Administrative Tribunal, having found that the conduct of the Respondent particularised in the Agreed Statement of Facts amounts to unsatisfactory professional conduct, makes by consent, orders that 1. The Respondent be cautioned 2. The Respondent is to pay the Applicant's costs agreed in the sum of $1,000. AGREED STATEMENT OF FACTS Complaints by the Law Society 1. The Solicitor's statement in the Application by Mr Pham for him to be released from Condition 2 on his Practising Certificate, to the effect that the Solicitor had supervised Mr Pham and for the purposes of removing the said condition on Mr Pham's Practising Certificate, was incorrect and, without more, may have misled the Law Society. 2. The Solicitor, whilst holding a practising certificate subject to condition 2, mistakenly purported to supervise Mr Pham. PARTICULARS 1. David Duc Van Nguyen (the Solicitor) was admitted to practice on 30 June1994. 2. Between 1 July 1994 and 30 June 1999; 2 July 1999 and 30 September 2001; 20 January 2003 and 20 December 2008; and 1 March 2012 and 30 June 2018 the Solicitor worked as an employed solicitor with Nguyen & Co Solicitors (the Firm). 3. At all relevant times, the sole principal of the Firm was the Solicitor's wife, Jacqueline Quynh Giao Nguyen (Ms Nguyen). 4. From 1 July 2018 the Solicitor has practiced as the sole principal of the Firm and Ms Nguyen has practiced at the Firm as an employed solicitor. 5. As from 1 July 2015 and continuing, Sections 47(6) and 49 of the Legal Profession Uniform Law (NSW) (LPUL) have provided: 47 Conditions—categories of practice and trust money … (6) An Australian practising certificate also authorises the holder to supervise legal practice by others. This does not apply— (a) if the certificate is subject to a statutory or discretionary condition that the holder must engage in supervised legal practice only; or (b) to the extent that the certificate is subject to a discretionary condition to the effect that the holder may not supervise legal practice by others. 49 Statutory condition—to engage in supervised legal practice (1) It is a statutory condition of an Australian practising certificate granted in this jurisdiction that the holder must, in this jurisdiction, engage in supervised legal practice only, until the holder has completed— (a) if the holder completed practical legal training principally under the supervision of an Australian lawyer to qualify for admission to the Australian legal profession—a period or periods equivalent to 18 months of supervised legal practice; or (b) if the holder completed other practical legal training to qualify for admission to the Australian legal profession—a period or periods equivalent to 2 years of supervised legal practice. (2) The Uniform Rules may specify the method or a method of determining any such period or periods. (3) The statutory condition does not apply to an Australian practising certificate with a condition that the holder is authorised to engage in legal practice as or in the manner of a barrister only. (4) The designated local regulatory authority may— (a) exempt a person or class of persons from the statutory condition; or (b) reduce a period referred to in the statutory condition for a person or class of persons— if satisfied that the person or persons do not need to be supervised or need to be supervised only for a shorter period, having regard to the length and nature of any legal practice previously engaged in by the person or persons. (5) The exemption may be given unconditionally or subject to any conditions that the designated local regulatory authority thinks appropriate. 6. Until 15 May 2018, the Solicitor's practising certificate included a condition which provided that "The holder must, in this jurisdiction, engage in supervised legal practice only, until the holder has completed the period of supervised legal practice required" (condition 2). 7. Thien Chinh Pham (Mr Pham) was admitted in South Australia on 13 March 2012 and between and 1 July 2013 to 30 June 2014 and 15 May 2015 to 30 June 2015 practised at law practices other than the Firm. 8. During the period 1 July 2015 to 30 March 2017 (the period) Mr Pham was employed by the Firm and during the period Mr Pham continued to be the holder of a Practising Certificate subject to condition 2. 9. By Application received by the Society on 3 March, 2017 Mr Pham made an application for the removal of condition 2 (the Application). 10. The Application contained a section titled "Annexure to Statutory Declaration – Letter from Supervisor" (Annexure). The Annexure named the Solicitor as Mr Pham's supervisor and stated that between 1 July 2015 and 4 January 2017 the Solicitor had, on a full-time basis, supervised Mr Pham as a legal practitioner. 11. The Annexure provided, immediately prior to a space for the "Supervisor's signature, the following statement: "I was the holder of an Australian practising certificate, that authorised the holder to supervise legal practice by others, at all times during the period of the supervision" (the Solicitor's Statement) The Solicitor appended his signature immediately after the Statement as well as the date "04/01/2017". 12. During the period of the said supervision, the Solicitor's own Practising Certificate was also subject to condition 2 and, pursuant to the provisions of Section 47 (6)(a) of LPUL, the Solicitor was not authorised to supervise Mr Pham, at least for the purposes of Mr Pham seeking to remove condition 2 from his Practising Certificate and thus append his signature to the Annexure referred to at 11 above. 13. During the period of the said supervision the Solicitor Respondent was the only person in the law firm who was a registered migration agent and, as such, was the only one authorised under s 280(1) of the Migration Act 1958 (Cth) to give migration advice. For this reason, he believed he was the only person authorised under the Migration Act to oversee Mr Pham's immigration work. 14. The Solicitor's Statement in paragraph 11 above and made to the Society in the Application was incorrect.