Council of the Law Society of New South Wales v Kernaghan (No 2) [2022] NSWCATOD 64

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Kernaghan (No 2) [2022] NSWCATOD 64 Hearing dates: 9 May 2022 Date of orders: 20 June 2022 Decision date: 20 June 2022 Jurisdiction: Occupational Division Before: L Pearson, Principal Member J Lonsdale, Senior Member B Thomson, General Member Decision: 1. The Respondent is reprimanded. 2. The Respondent is, within three months of the date of these orders: a. to complete an ethics tutorial with the Applicant's Ethics Unit which addresses the issues arising in these proceedings; and b. within seven days of completing that tutorial, to provide to the Applicant's Director, Legal Regulation (Director) a report which demonstrates, to the reasonable satisfaction of the Director, the Respondent's understanding of matters dealt with in the tutorial. 3. The following employment conditions are imposed upon the Respondent's current practising certificate and on each practising certificate that the Respondent holds for a period of four years commencing on the date that the Respondent is issued with a practising certificate in a practising certificate year post-dating the current practising certificate year: a. The Respondent is restricted to practising the law only as an employee of a law practice, as a corporate or government legal practitioner, or as a volunteer at a community legal service. b. The Respondent is to be supervised by a solicitor (Supervising Solicitor) who holds a practising certificate: i. as a Principal of a Law Practice, a government legal practitioner or a corporate legal practitioner; and ii. which is not subject to a condition requiring the Supervising Solicitor to engage in supervised legal practice only under section 49 of the Legal Profession Uniform Law (NSW) or a discretionary condition that they not supervise others. c. The Respondent must notify the Director of the name of the Supervising Solicitor within 14 days of the grant of any practising certificate and within 14 days of a change in Supervising Solicitor. d. The Respondent must not supervise any other legal practitioner. e. The Respondent is prohibited from handling trust money. 4. The following medical conditions are imposed upon the Respondent's current practising certificate and upon each practising certificate that the Respondent holds for a period of four years commencing on the date that the Respondent is issued with a practising certificate in a practising certificate year post-dating the current practising certificate year: a. Within 28 days of the date of these orders the Respondent, at his own expense, is to establish a therapeutic relationship with a psychiatrist (Treating Psychiatrist) of his choice (subject to the approval of the Director) for treatment as regularly and for such period as recommended by the Treating Psychiatrist. b. Within 28 days of the date of these orders the Respondent, at his own expense, is to provide to the Treating Psychiatrist a copy of these orders, a copy of the Tribunal's reasons for these orders, a copy of the decision in The Council of the Law Society of New South Wales v Kernaghan [2021] NSWCATOD 111 and a copy of the report of Dr Robert Fisher dated 5 November 2021. c. The Respondent must, at his own expense, continue and comply with such medical treatment as the Treating Psychiatrist may recommend. d. The Respondent is to authorise the Treating Psychiatrist to notify the Director, as soon as possible, of any: i. advice or recommendation by the Treating Psychiatrist regarding the Respondent's treatment and/or medication which differs from any previous advice or recommendation by the Treating Psychiatrist regarding the Respondent's treatment and/or medication; and ii. failure by the Respondent to comply with clinical advice as to treatment and/or medication or in the event there is any significant change or deterioration in the Respondent's mental state which may adversely affect the Respondent's capacity to practise as a legal practitioner. e. Within 28 days of the date of these orders the Respondent, at his own expense, is to provide to the Director a written acknowledgement from the Treating Psychiatrist that the Treating Psychiatrist is willing to make the notification contemplated by paragraph 4.d. f. Within three months of the date of these orders the Respondent, at his own expense, is to provide to the Director a report prepared by the Treating Psychiatrist regarding the Respondent's fitness to engage in legal practice, the details of the Respondent's prescribed or recommended treatment plan and the Respondent's compliance with any prescribed or recommended treatment plan (Treating Psychiatrist's Report). g. The Respondent is, at his own expense and on a 3-monthly basis, to notify the Director in writing of the dates on which he attended appointment(s) with the Treating Psychiatrist during the previous three month period and of the date(s) of the Respondent's next scheduled attendance(s). The Respondent is to provide those notifications on or before 30 March, 30 June, 30 September and 30 December each year unless and until: i. the Director is provided with confirmation in writing from the Treating Psychiatrist that the Treating Psychiatrist no longer recommends that the Respondent requires psychiatric treatment; and ii. the Applicant is satisfied that the Respondent no longer requires psychiatric treatment. h. If the Respondent establishes an ongoing therapeutic relationship with another treating psychiatrist (Substitute Treating Psychiatrist) other than the Treating Psychiatrist, the conditions in paragraphs 4.a to 4.f inclusive shall apply mutatis mutandis in respect of that Substitute Treating Psychiatrist, such obligations arising within 28 days after the nomination of the Substitute Treating Psychiatrist. i. If the Respondent fails to comply with paragraphs 4.e, 4.f and/or 4.g of these orders, his practising certificate is to be suspended and will remain suspended until such time that he complies with the relevant paragraph. 5. The following condition is imposed on the Respondent's current practising certificate and on each practising certificate held by the Respondent until such time as the Respondent completes a Practice Management Course provided by a provider approved by the Director: a. The holder must complete a Practice Management Course before being authorised to engage in legal practice as a principal of a law practice. 6. The Respondent pay the Applicant's costs of the proceedings. Catchwords: OCCUPATIONS – Solicitor – disciplinary proceedings – findings of professional misconduct and unsatisfactory professional conduct – orders Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Legal Profession Uniform Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Legal Profession Uniform General Rules 2015 Cases Cited: A Solicitor v The Council of the Law Society of New South Wales (2004) 216 CLR 253 Carr v Council of the Law Society of New South Wales [2020] NSWCA 276 Council of the Law Society of New South Wales v Abboud [2021] NSWCATOD 23 Council of the Law Society of New South Wales v Clifton [2021] NSWCATOD 101 Council of the Law Society of New South Wales v DXW [2019] NSWCATOD 101 Council of the Law Society of New South Wales v Diaz [2021] NSWCATOD 9 Council of the Law Society of New South Wales v Elina [2021] NSWCATOD 98 Council of the Law Society of New South Wales v Kernaghan [2022] NSWCATOD 111 Council of the Law Society of New South Wales v Koops [2021] NSWCATOD 38 Council of the Law Society of NSW v Orford (No 2)[2017] NSWCATOD 10 Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 Law Society of New South Wales v Walsh [1997] NSWCA 185 Legal Services Commissioner v Baker [2006] QCA 154 New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 NSW Legal Services Commissioner v Zou [2021] NSWCATOD 139 The Prothonotary v Del Castillo [2001] NSWCA 75 Texts Cited: None cited Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Aaron Noel Kernaghan (Respondent) Representation: Counsel: P A Maddigan (Applicant)