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. Evidence 1. The Law Society relied on an affidavit of Anthony Lean affirmed on 20 August 2020 (ex A1). Exhibit AJL-1 to that affidavit included: 1. The initial complaint made pursuant to s 266 of the Legal Profession Uniform Law (NSW) (the Uniform Law) on 21 March 2018, alleging that the solicitor had purported to supervise while holding a practising certificate subject to condition 2, and sworn a false declaration; 2. The Application Form completed by Mr Pham seeking removal of condition 2 on his practising certificate, dated 9 January 2017. That document was completed in handwriting, and recorded as supervisor Jacqueline Quynh Giao Nguyen, with the first names crossed out and replaced with "David". The Annexure to the Statutory Declaration, provided by the supervisor, also had Ms Nguyen's first names crossed out and "David" added, and was signed by the solicitor on 4 January 2017; 3. The solicitor's response to the complaint dated 26 April 2018, in which he stated that as the only one in the firm with a migration law licence it was appropriate for him to supervise Mr Pham; that while he had condition 2 on his practising certificate he had long completed the period of statutory supervised practice and it was an oversight not to seek removal of that condition; and that he had not signed the statutory declaration; 4. An additional complaint made on 21 January 2019 pursuant to s 266 of the Uniform Law, that the solicitor had made a false statement to the Law Society; 5. The solicitor's response dated 14 February 2019, in which he stated that it was an oversight rather than a deliberate attempt to make a false statement to the Law Society, and that the oversight was inadvertent and technical rather than intentional and consequential; 6. The solicitor's response, in a letter dated 14 May 2019 prepared by his legal representative, to the Law Society's notification that it would institute proceedings alleging professional misconduct and unsatisfactory professional conduct. The response was that the matter involves an isolated error of judgment by an experienced and conscientious solicitor, and did not constitute professional misconduct or unsatisfactory professional conduct. 1. The solicitor provided a Reply to the application for disciplinary findings (ex R1) in which he: 1. Denied making a false statement to the Law Society, as there was no dishonesty on his part; acknowledged making a mistake in signing the Annexure to Mr Pham's application; and denied that such a mistake provides grounds for a charge of professional misconduct either under s 297 of the Uniform Law or under Allinson v General Council of Medical Education and Registration [1894] 1 QB 750; 2. Acknowledged his mistake in signing Mr Pham's application in the position reserved for the Supervisor, but denied that he did so intentionally to mislead the Law Society; 3. Submitted that the orders sought should not be granted, and that if the Tribunal were satisfied that he had engaged in professional misconduct or unsatisfactory professional conduct the appropriate orders would be to caution him, with no order as to costs. 1. In his affidavit sworn on 16 September 2020 (ex R2) the solicitor stated: 1. From July 1994 to June 2018 he was an employed solicitor with Nguyen & Co Solicitors. His wife Jacqueline Nguyen was the principal of the firm. He practised mainly in migration law; 2. In July 2015 the firm employed Mr Pham to deal with extra cases involving immigration law, and Mr Pham ceased working for the firm in March 2017. Mr Pham worked with him, and he observed and directed the migration law work he did on a daily basis. He was the only person in the firm who was a registered migration agent, being first registered in 1994. Ms Nguyen asked him about Mr Pham's work approximately every week and he told her he was progressing well and his work was satisfactory; 3. On 4 January 2017 Mr Pham asked Ms Nguyen to sign the Letter from Supervisor. Ms Nguyen intended signing, and after a discussion with her he thought that because he was the person directly involved with his work and an expert in migration law he should be the proper person to sign the letter. He thought that in the circumstances it was truthful to declare that he was the supervisor in the sense that he could attest to the quality and care of Mr Pham's work; 4. In May 2018 he undertook a Legal Practice Management Course with the College of Law, which had a segment dealing with ethics and supervision. He has learnt it is a strict requirement that one could not supervise if one's practising certificate includes condition 2. He applied to remove condition 2 from his practising certificate. From July 2018 he has been principal of Nguyen & Co Solicitors; 5. The events that have occurred have reinforced in his mind the need to strictly comply with any conditions on his practising certificate. 1. In her affidavit sworn on 16 September 2020 (ex R3) Ms Nguyen stated that as the principal of the firm she asked the solicitor to oversee the daily work of Mr Pham, because he practised only in migration law and the solicitor is an experienced solicitor and migration agent. She regularly asked for updates on Mr Pham's work, which she received on a weekly basis. She believes Mr Pham's work in the firm in migration law was acceptable and satisfactory. 2. The solicitor gave oral evidence at the hearing. In response to the Tribunal's question as to steps he had taken to ensure that the conduct would not be repeated, the solicitor referred to the Legal Practice Management Course in which he learnt about the issues raised, and that after he was aware he asked the Law Society to remove condition 2 on his practising certificate. Submissions concerning conduct and orders 1. The Law Society accepts that there is no evidence of any intention or deliberate conduct by the solicitor, and submits that the question of intention is a fraught issue since the decision of the Court of Appeal in Carr v Council of the Law Society of New South Wales [2020] NSWCA 276. The Law Society accepts that what the solicitor did was a mistake, and there was no intention to hide the fact that Ms Nguyen was originally considered to be Mr Pham's supervisor. That is evident in the way in which Ms Nguyen's name was deleted and the solicitor's name was added. However, it is the professional responsibility of a legal practitioner to make sure that what he signs and does is correct. The Law Society accepts that the solicitor's conduct could not be regarded as professional misconduct, rather as unsatisfactory professional conduct, and a caution and payment of costs in an agreed amount are appropriate orders. 2. The views of the Legal Services Commissioner, as summarised by Ms G Garling from a letter provided to the Law Society, were that it was acknowledged that the solicitor had not intended to deceive, but had made a mistake. This was not a repeated course of conduct, but a mistaken belief as to the requirements for supervision. The solicitor has expressed remorse and completed the Practice Management Course. He has 26 years of practice with no adverse findings on the disciplinary register. As a lawyer of his seniority and experience he should have been aware of the conditions on his practising certificate and made inquiries. The proposed orders take into account the deterrent and educative effects, and appropriately reflect disapproval. The protective aspect is served by the finding of unsatisfactory professional conduct. 3. The solicitor's representative acknowledged that the legal profession regulatory scheme is based on a duty of candour, and depends on practitioners being open and honest in their disclosures. The solicitor accepts that he made a mistake which should have been avoided. The present circumstance is at the lower end of the scale of objective seriousness for unsatisfactory professional conduct. In terms of a protective order, there is a strong basis for a caution rather than a reprimand. The outcome will not be hidden as the Tribunal's reasons will be published, and the punitive effect will be minimised by not having the caution recorded on the disciplinary register. 4. After the hearing, the parties provided further advice as to publication on the Legal Services Commissioner's Disciplinary Register. Section 152 of the Application Act requires the Legal Services Commissioner to keep a Register of Disciplinary Action, available for public inspection on the internet. Section 153 enables the Legal Services Commissioner or a Council to publicise disciplinary action against a lawyer. The term "disciplinary action" is defined in s 148 of the Application Act (emphasis added): disciplinary action against a lawyer means any of the following actions taken under a law of this or another jurisdiction, whether or not taken under Chapter 5 of the Legal Profession Uniform Law (NSW) or under provisions of a corresponding law that correspond to that Chapter— (a) the suspension or cancellation of the Australian practising certificate or Australian registration certificate of the lawyer (other than a suspension or cancellation at the request or with the concurrence of the holder of the certificate that is not connected with a disciplinary matter), (b) the refusal to grant or renew an Australian practising certificate or Australian registration certificate applied for by the lawyer (other than a refusal on the ground that the lawyer is not eligible to apply for the grant or renewal), (c) the removal of the name of the lawyer from a roll of Australian lawyers, (d) the making of an order by a court or tribunal, or by another person or body, for or following a finding of unsatisfactory professional conduct or professional misconduct by the lawyer, other than an order cautioning the person, (e) the reprimanding of the lawyer, or the making of a compensation order against the lawyer, by a person or body without a formal finding of unsatisfactory professional conduct or professional misconduct, (f) the appointment of a manager or receiver for a law practice of which the lawyer is a legal practitioner associate, where the associate is specified or referred to in the notice of appointment served on the law practice. 1. The Law Society and the Legal Services Commissioner note that while the Tribunal will publish its decision in the ordinary way in accordance with NCAT Policy 4 – Access to and Publication of Information Derived from Proceedings in the Tribunal, there is no requirement for the Commissioner to publish the outcome of these proceedings should the Tribunal concur with the orders sought in the Instrument of Consent. Further, the provisions of s 153 of the Application Act would not, having regard to para (d) of the definition of "disciplinary action", appear to permit publication otherwise. 2. The solicitor's representative agreed with the contents of the note, and drew to the Tribunal's attention the provisions in s 299(1)(a) and s 302(1) of the Uniform Law which enable the Tribunal to make an order cautioning a legal practitioner. Consideration 1. The Instrument of Consent filed on 13 January 2020 complies with the requirements of s 144 of the Application Act, being signed by the parties, and providing an agreed statement of facts. The Tribunal has in addition to the agreed statement of facts considered the evidence provided by the parties. 2. It is not in dispute that the solicitor had condition 2 on his practising certificate until July 2018, which provided that he engage in supervised legal practice only. Pursuant to s 47(6)(a) of the Uniform Law, he could not supervise legal practice by others. In signing the Annexure to Statutory Declaration – Letter from Supervisor on 4 January 2017 the solicitor was stating that he was the holder of a practising certificate that authorised him to supervise legal practice by others, at all times during the period of supervision. That statement was not correct. 3. The Tribunal accepts, as do the Law Society and the Legal Services Commissioner, that that was not the result of a deliberate intention to mislead, rather that in the circumstances of the solicitor's qualification and experience as a registered migration agent with day to day supervision of Mr Pham's migration law practice, it was a mistake. The Tribunal agrees that the way in which the document was completed, with details first provided of Ms Nguyen as principal, and then deleted so that the solicitor could sign, supports that conclusion. 4. Notwithstanding that position, the solicitor has a professional responsibility both to ensure that he complies with the conditions on his practising certificate, and with the duty of candour and honesty to the regulatory body, the Law Society. The Tribunal agrees that in failing to ensure that he was properly in a position to sign as Mr Pham's supervisor, the solicitor's conduct fell short of the required standard of professional practice, and was unsatisfactory professional conduct as defined in s 296 of the Uniform Law: 296 Unsatisfactory professional conduct 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. The Instrument of Consent proposes that an order be made that the solicitor be cautioned. The Tribunal has power to order that a practitioner be cautioned pursuant to s 299(1)(a) and s 302(1) of the Uniform Law. While the parties were not able to identify any authorities on the point, it was common ground that a caution is a less serious consequence than a reprimand: the purpose of a caution being to warn the practitioner to take care in the future and avoid repetition, and a reprimand to sanction or rebuke. While a caution is not a form of "disciplinary action" as defined in s 148(d) of the Application Act that is required to be included in the Legal Services Commissioner Disciplinary Register, the making of such an order will still be publicised by the publication of these reasons, and thus serve as a deterrent. 2. In the Tribunal's view the proposed order that the solicitor be cautioned is appropriate. It was not in dispute that the solicitor has had 26 years' experience as a legal practitioner, with no previous disciplinary action. The circumstances that brought him to regulatory attention were a one off, and not a repeated course of conduct. The solicitor responded quickly and comprehensively when notified by the Law Society in March 2018, and in his responses to the Tribunal after these proceedings were commenced. Those responses confirm that his signing of Mr Pham's application as supervisor was a mistake, and there was never any intention to mislead or deceive the Law Society. The solicitor has taken steps to address the shortcomings in his understanding, by completing the College of Law Legal Practice Management Course, well before the Tribunal proceedings. He has expressed his remorse. 3. The Instrument of Consent also seeks an order that the soliticor pay the costs of the Law Society agreed in the sum of $1,000. Clause 23 of Sch 5 to the Civil and Administrative Tribunal Act 2013 provides that the Tribunal must make orders requiring a respondent lawyer whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs unless the Tribunal is satisfied that exceptional circumstances exist. No exceptional circumstances were put to the Tribunal. The order proposed in the Instrument of Consent should be made. Orders 1. Consequent on the finding of unsatisfactory professional conduct, the Tribunal makes the following orders: 1. The Respondent is cautioned. 2. The Respondent is to pay the Applicant's costs agreed in the sum of $1,000. ********** 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: 28 January 2021