Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Malakhov [2023] NSWCATOD 182 Hearing dates: On the papers Date of orders: 13 December 2023 Decision date: 13 December 2023 Jurisdiction: Occupational Division Before: Cole DCJ, Deputy President N Matkovich, Senior Member E Hayes, General Member Decision: (1) The Respondent is reprimanded. (2) The Respondent is to pay a fine of $2,500. (3) The Respondent is to engage in further education as follows: (a) The Respondent is to complete, at his own expense, within 6 months of the date of these orders (the time period), a Legal Ethics course that is approved by the Law Society of New South Wales' Director, Legal Regulation (Legal Ethics Course), and therein achieve a pass mark of not less than 65% (pass mark); (b) Within 7 days of receipt of notification of the result of his participation in the Legal Ethics Course, the Respondent is to provide to the Law Society of New South Wales' Director, Legal Regulation, the original of such notification; (c) Should the Respondent fail to achieve the pass mark in the Legal Ethics Course, he shall complete such further Legal Ethics Course (by way of repeating the same Legal Ethics Court previously attempted, or as approved by the Law Society of New South Wales' Director, Legal Regulation) until such time as he achieves the pass mark in a Legal Ethics Course within the time period. (4) The Respondent is to pay the costs of the Applicant of these proceedings. (5) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), and until further order, the name and any information, picture or other material which identifies or is likely to lead to the identification of the following persons, as persons connected with these proceedings, is prohibited: (a) The defendant for whom the Respondent was acting in the proceedings in the Blacktown Local Court on 10 January 2019, who is referred to as 'the husband' in the Tribunal's reasons for decision. (b) The defendant's wife, who is referred to in the Tribunal's reasons for decision as 'the wife'. Catchwords: OCCUPATIONS — Legal practitioners — Misconduct and discipline — instrument of consent Legislation Cited: Legal Profession Uniform Law (NSW) Legal Profession Uniform Law Application Act 2014 Legal Profession Uniform Law Australia Solicitors' Conduct Rules Cases Cited: Law Society of New South Wales v Bannister [1993] NSWCA 157 Law Society of New South Wales v Maharaj [2017] NSWCATOD 79 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Vadym Leonidovych Malakhov (Respondent) Representation: Counsel: N Sharp SC with N Evans (Applicant) Solicitors: The Law Society of New South Wales (Applicant) Respondent (self-represented) File Number(s): 2022/00310800 Publication restriction: None REASONS FOR DECISION 1. On 18 October 2022 the Council of the Law Society of New South Wales ('the Council') filed in the Tribunal an Application for disciplinary findings and orders against Mr Malakhov ('the Application') under the Legal Profession Uniform Law (NSW) ('the Uniform Law'). 2. Mr Malakhov filed a Reply on 14 December 2022, consenting to the orders sought by the Council. 3. The parties have entered into an instrument of consent, pursuant to s 144 of the Legal Profession Uniform Law Application Act 2014 ('the Application Act') filed on 18 October 2023. 4. The Council relies upon an affidavit of Kimberley Jane Johnstone sworn on 14 October 2022, an affidavit of Kirsty Maree Heyward sworn on 17 October 2022 and an affidavit of Anthony James Lean affirmed on 18 October 2022. 5. Mr Malakhov relies on his own affidavit, sworn on 27 January 2023 and filed on 7 February 2023. 6. The parties requested that a hearing be dispensed with under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) ('the CAT Act') and that the matter be decided on the papers. An order was made dispensing with a hearing on 23 October 2023. Non-publication order 1. The event the subject of the allegations in the Application involved an incident which occurred in the context of a dispute between a husband and wife on 10 January 2019, with Mr Malakhov acting for the husband. 2. The Council seeks a non-publication order with respect to the identity of both the husband and the wife. We acknowledge the importance of transparency in decisions of this kind. However, in view of the nature of the proceedings between the husband and wife, which involved an apprehended violence order in the context of accusations of domestic violence, the public interest in having those affected by domestic violence be free to report allegations of domestic violence without being subject to publicity outweighs any public interest in the publication of the names of the husband and wife. We will make the non-publication order requested. The Application Act 1. The Application Act provides, in s 144: 144 Consent orders (1) The Tribunal may, with the consent of the respondent lawyer contained in a written instrument, make orders without conducting or completing a hearing in relation to the complaint. (2) Consent may be given before or after the proceedings were initiated in the Tribunal with respect to the complaint. (3) If consent is given before the proceedings were initiated, an investigation of the complaint (whether commenced or not) may be dispensed with, and any investigation of the complaint already being conducted may be suspended or terminated. (4) This section does not apply to consent given by the respondent lawyer unless the lawyer and the NSW Commissioner have agreed on the terms of an instrument of consent. (5) Without limiting what may be included in the instrument of consent, the instrument is to contain an agreed statement of facts (including as to the grounds of complaint) and may contain undertakings on the part of the respondent lawyer. (6) The instrument of consent must be filed with the Tribunal. (7) Nothing in this section affects the procedures regarding the initiation of proceedings in the Tribunal where consent was given before the proceedings are initiated. (8) If consent was given before the proceedings are initiated, the proceedings are nevertheless to be initiated with respect to the complaint in the same way as if the consent had not yet been given. (9) The Tribunal is to be constituted in the same way as for the conduct of a hearing into the complaint. (10) In deciding whether to make orders pursuant to an instrument of consent, the Tribunal may make such inquiries of the parties as it thinks fit and may, despite any such consent, conduct or complete a hearing in relation to the complaint if it considers it to be in the public interest to do so. 1. An instrument of consent signed on 15 October 2023, which includes an agreed statement of facts, was filed on 18 October 2023. 2. The allegations in the Application are as follows: Ground One The Respondent is guilty of professional misconduct by breaching rule 34.1.1 of the Legal Profession Uniform Law Solicitors' Conduct Rules (Conduct Rules) or is otherwise guilty of professional misconduct by, in the course of representing a client, making a statement which grossly exceeded the legitimate assertion of the rights or entitlements of his client, and which did intimidate [the wife] or further or alternatively reasonably would have intimidated a person in the position of [the wife]. Ground Two The Respondent is guilty of professional misconduct by breaching rule 5.1.2 of the Conduct Rules or is otherwise guilty of professional misconduct by engaging in conduct in the course of practice, which was likely to a material degree to bring the profession into disrepute. 1. The facts to which the parties indicate their agreement in the instrument of consent mirror the particulars set out in the Application (apart from a minor amendment) and are the following facts: BACKGROUND 1. At all material times the Respondent was a lawyer within the meaning of s. 261 of the Uniform Law and an Australian legal practitioner within the meaning of s. 6 of the Uniform Law. 2. The Respondent was admitted as a lawyer in New South Wales on 16 May 2008. 3. The Respondent was issued with a practising certificate by the Council of the Law Society of New South Wales (Law Society) on 5 August 2008. The Respondent has continuously held practising certificates issued by the Law Society since that time. 4. On or about 27 November 2019, a written complaint was made by Superintendent Kirsty Heyward to the Office of the New South Wales Legal Services Commissioner (Commissioner) in relation to the Respondent's alleged conduct on 10 January 2019 at Blacktown Local Court (Complaint). 5. By letter dated 4 December 2019, the Commissioner referred the Complaint to the Applicant for assessment, investigation and determination in accordance with Chapters of the Uniform Law. 6. On 28 April 2022, the Applicant resolved to initiate and prosecute proceedings against the Respondent in relation to the Complaint in this Tribunal on the basis that the Applicant was of the opinion that the alleged conduct may amount to professional misconduct or unsatisfactory professional conduct. GROUND ONE- PARTICULARS 1. At all material times the Respondent was acting for [the husband] (the defendant) in Local Court proceedings (the proceedings) concerning domestic violence related matters. 2. [The wife] was the complainant in the proceedings. At the relevant time, the defendant and [the wife] were married with two children. 3. On or about 22 May 2018, Blacktown Local Court granted an apprehended domestic violence order to protect [the wife] from the defendant (the ADVO). The ADVO was for a period of 12 months, with an expiration date of 21 May 2019. 4. On or about 20 October 2018, the defendant was charged with contravening the ADVO pursuant to s.14(1) of the Crimes (Domestic and Personal Violence) Act 2007, and intentionally or recklessly destroying property pursuant to s. 195(1) of the Crimes Act 1900 (the charges). 5. The charges were listed for a contested hearing at Blacktown Local Court on 10 January 2019. 6. On 10 January 2019, the Respondent was present, and was representing the defendant at Blacktown Local Court in relation to the charges (the hearing). 7. At about 10am on 10 January 2019, the Respondent approached Constable Kimberley Johnstone within the seating area outside the relevant court room. The following exchange (or words to the effect of) took place: Respondent: Can I speak to your client in your presence? Constable Johnstone: Mmm I'm not sure, I'll check. Why do you want to talk to her? Respondent: I just want to ask some questions. 8. After consulting with Senior Constable Donna MacGregor (another police officer who was present), [the wife] agreed to speak with the Respondent. 9. Constable Johnstone then led the Respondent, [the wife] and Ms Rozalia Alpert, a Russian interpreter appointed to interpret for [the wife] (Ms Alpert), into an interview room at the Courthouse (the interview room). [the wife] sat on a chair in the room next to Ms Alpert. 10. The Respondent said to [the wife], the following or words to the following effect: "You understand these charges are very serious?" and "We reserve the right to charge you for assault. " 11. The Respondent confirmed that this was because the defendant told police that [the wife] had hit his head on a wall. 12. The conduct was engaged in by the Respondent in the context of domestic violence related proceedings. GROUND TWO - PARTICULARS 1. The particulars to Ground One are repeated. 2. After the Respondent said to [the wife] the words or words to the effect of those referred to in particular 10 (Ground One) above, [the wife], in the presence of the Respondent, then said the following or words to the following effect: "That's enough, I don't want to hear it anymore." [the wife] then put her head down and waved her hand. 3. Constable Johnstone then said to the Respondent words to the following effect: "She doesn't want to speak to you anymore, you need to leave". 4. The Respondent continued to attempt to speak with [the wife]. 5. Constable Johnstone then attempted to usher the Respondent out of the room and the Respondent stood in the doorway, refusing to leave. 6. Constable Johnstone said to the Respondent "get out" about three times. 7. The Respondent continued to stand in the doorway and said to [the wife] the following or words to the following effect: "You know if he is convicted his partner visa will be removed and you will be a single mum raising three kids on your own. " 8. Constable Johnstone then said words to the effect of "that's enough" and pointed towards the hallway and the Respondent left the room. 9. The above conduct: a) was intended to and/or did intimidate [the wife]; and/or b) was intended to seek to influence the evidence that [the wife] might give. 10. The conduct was engaged in by the Respondent in the context of domestic violence related proceedings. 11. As a result of the Respondent's conduct towards [the wife], the hearing was adjourned and was unable to proceed that day. 1. We accept the truth of the agreed facts. They are consistent with the firsthand account of the incident provided by Constable Johnstone in the statement annexed to her affidavit. 2. We find, on the balance of probabilities, that Mr Malakhov is guilty of the conduct alleged and has conceded that the alleged conduct did occur. Professional misconduct 1. It is alleged that the conduct alleged in both Grounds One and Two constitutes professional misconduct. 2. The Uniform Law defines professional misconduct in the following way: 297 Professional misconduct (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. (2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters. 298 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct 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; (c) conduct involving contravention of the Legal Profession Uniform Law Act of this jurisdiction (other than this Law), whether or not the person has been convicted of an offence in relation to the contravention; (d) charging more than a fair and reasonable amount for legal costs in connection with the practice of law; (e) conduct in respect of which there is a conviction for— (i) a serious offence; or (ii) a tax offence; or (iii) an offence involving dishonesty; (f) conduct as or in becoming an insolvent under administration; (g) conduct in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act; (h) conduct consisting of a failure to comply with the requirements of a notice under this Law or the Uniform Rules; (i) conduct in failing to comply with an order of the designated tribunal made under this Law or an order of a corresponding authority made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Law or a corresponding law); (j) conduct in failing to comply with a compensation order made under this Chapter. 1. The Legal Profession Uniform Law Australia Solicitors' Conduct Rules ('the Conduct Rules') provides, relevantly, as follows: 5 Standard of conduct—dishonest or disreputable conduct 5.1 A solicitor must not engage in conduct, in the course of legal practice or otherwise, which— 5.1.1 demonstrates that the solicitor is not a fit and proper person to practise law, or 5.1.2 is likely to a material degree to— (i) be prejudicial to, or diminish the public confidence in, the administration of justice, or (ii) bring the profession into disrepute. 34 Dealing with other persons 34.1 A solicitor must not in any action or communication associated with representing a client— 34.1.1 make any statement to another person— (i) which grossly exceeds the legitimate assertion of the rights or entitlements of the solicitor's client, and (ii) which misleads or intimidates the other person, … 1. We accept, and it is conceded by Mr Malakhov, that the conduct set out in the particulars to Ground One was a breach of rule 34.1.1 of the Conduct Rules in that his statement to the wife that "We reserve the right to charge you with assault" grossly exceeded the legitimate assertion of the rights or entitlements of the husband and also intimidated the wife. The statement constituted a threat. The conduct overstated the husband's capacity to bring about charges in the context of a domestic violence dispute. It clearly had potential to instil fear into the wife and to influence her decisions about her participation in the legal proceedings. 2. We accept, and it is conceded by Mr Malakhov, that the conduct set out in the particulars to Ground Two was a breach of rule 5.1.2 of the Conduct Rules. His statement "You know if he is convicted his partner visa will be removed and you will be a single mum raising three kids on your own" was a wholly unacceptable and inappropriate statement to make to a wife who is on the threshold of proceedings involving allegations that her husband has committed acts of domestic violence against her. It clearly had the potential to interfere with the wife's decisions about her participation in the legal proceedings. In fact, the proceedings did not proceed on 10 January 2019 on account of Mr Malakhov's conduct. The statement made by Mr Malakhov is not a statement that should ever be made by a legal practitioner in Mr Malakhov's position, and it was likely to a material degree to bring the profession into disrepute. Disciplinary orders 1. We have considered the question of whether the disciplinary orders agreed in the instrument of consent are appropriate. 2. It is well established that the purpose of disciplinary orders is protective of the clients of legal practitioners and the public generally, and is not punitive (see, for example, Law Society of New South Wales v Bannister [1993] NSWCA 157 per Sheller JA) 3. We bear in mind the principles set out in Law Society of New South Wales v Maharaj [2017] NSWCATOD 79: 24. It is well-established, without the necessity for resort to authority, that there are four principal aspects to be considered in determining what protective orders are appropriate in any particular case. These are; 1. the gravity of the misconduct 2. the deterrent effect of any protective order on the further conduct of the practitioner 3. the deterrent effect of any protective order on the conduct of other practitioners 4. the enhancement of confidence in the public in the integrity of the profession 1. We take into account the evidence in Mr Malakhov's affidavit, which indicates that he was very unwell on 10 January 2019, and had only returned to Australia from Russia the day before. We accept that he understands how inappropriate his conduct and his statements to the wife were. Were it otherwise, the disciplinary orders may well have been more onerous for the purposes of the deterrence of Mr Malakhov from similar conduct in the future. 2. We make the following orders: 1. The Respondent is reprimanded. 2. The Respondent is to pay a fine of $2,500. 3. The Respondent is to engage in further education as follows: 1. The Respondent is to complete, at his own expense, within 6 months of the date of these orders (the time period), a Legal Ethics course that is approved by the Law Society of New South Wales' Director, Legal Regulation (Legal Ethics Course), and therein achieve a pass mark of not less than 65% (pass mark); 2. Within 7 days of receipt of notification of the result of his participation in the Legal Ethics Course, the Respondent is to provide to the Law Society of New South Wales' Director, Legal Regulation, the original of such notification; 3. Should the Respondent fail to achieve the pass mark in the Legal Ethics Course, he shall complete such further Legal Ethics Course (by way of repeating the same Legal Ethics Court previously attempted, or as approved by the Law Society of New South Wales' Director, Legal Regulation) until such time as he achieves the pass mark in a Legal Ethics Course within the time period. 1. The Respondent is to pay the costs of the Applicant of these proceedings. 2. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), and until further order, the name and any information, picture or other material which identifies or is likely to lead to the identification of the following persons, as persons connected with these proceedings, is prohibited: 1. The defendant for whom the Respondent was acting in the proceedings in the Blacktown Local Court on 10 January 2019, who is referred to as 'the husband' in the Tribunal's reasons for decision. 2. The defendant's wife, who is referred to in the Tribunal's reasons for decision as 'the wife'. ********** 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: 13 December 2023