THE LAW SOCIETY OF NEW SOUTH WALES v JACKSON TAKWAI LEE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirByY P, MCHUGH and CLARKE JJA 1 February 1988, 2 February 1988 [1988] NSWCA 82 LEGAL PRACTITIONERS — solicitor — removed from Roll — continues to practise as solicitor — office kept open — signs displayed — authority sent to solicitors in conveyancing transaction — receptionist holds out as entitled to perform work normally done by solicitors — remains in former offices — held: (1) Evidence establishes that former solicitor acted in wilful breach of order of Solicitors Statutory Committee; (2) Such breach amounts to contempt of court. In re Walker (1888) 9 NSWR 69; Ex parte Law Society of New South Wales; Re Kenyon [1970] 3 NSWR 343 applied; (3) wilful breach of such orders normally requires imprisonment as punishment and to vindicate order of removal from the Rolls; (4) But in present circumstances where the former solicitor apologised, called evidence of past community service and marital and financial difficulties as well as psychiatric opinion and had given an undertaking to the Court which he had not since given been breached, it was sufficient to admonish him. Legal practitioners Act 1898, s76. Legal Profession Act 1987, s115(4) Orders The Court:- (1) Finds that Jackson Takwai Lee has committed contempt of court. (2) Orders that he be admonished for his contempt. (3) Orders that he pay the costs of the Law Society of and incidental to these proceedings as between solicitor and client. (4) Notes the undertaking given by him to the Court on 12 November 1987, which continues in its terms until further order of the court and which the Court expects Mr Lee strictly and faithfully to comply with. Kirby P These proceedings concern a former solicitor who has continued to practise despite his removal from the Roll of Solicitors. Removal from the Roll and further investigation Jackson Takwai Lee was admitted to practise as a solicitor of the Supreme Court in May 1970. On 28 February 1986 the Council of The Law Society, pursuant to s82A of the Legal Practitioners Act 1898 ("the Act"), after receiving complaints, appointed Miss Jean Sayer to investigate Mr Lee's affairs. On 28 May 1986 Miss Sayer was also appointed receiver of his property. Mr Lee did not apply for a practising certificate under the Act for the year commencing 1 July 1987. As a result of Miss Sayer's report, certain questions were referred to the Solicitors' Statutory Committee established by s76 of the Act. A hearing took place before that Committee at the end of June 1987 and the beginning of July 1987. Mr Lee was represented by counsel. Mr Lee gave written and oral evidence before the Committee. On 3 July 1987, by his then counsel, he conceded formally to the Committee that he was not a fit and proper person to be a solicitor of the 2 UNREPORTED JUDGMENTS Supreme Court. He submitted to an order that his name be removed from the Roll of Solicitors. Such removal was thereafter effected. The matters which caused the investigation referred to concerned a series of dealings by Mr Lee in two properties purchased by his clients. It is unnecessary to record the history of Mr Lee's conduct. The Statutory Committee found that he had been guilty of professional misconduct in a number of respects involving failure to account to his clients, wilful breach of the Trust Account Regulations, improperly and dishonestly preferring his own interests to those of his clients, obstructing the investigation and giving false evidence and evidence less than frank to the Committee. Unsurprisingly in these circumstances, the Committee ordered that Mr Lee's name be struck off the Roll of Solicitors and that he pay the costs of the Law Society on a solicitor and client basis. As appears from an affidavit of Janice Hall which was read in these proceedings, the Committee's orders were pronounced in an open hearing on 29 September 1987. Copy of the orders and findings was given to Mr Lee's solicitor, although he was not himself present at the time. It may readily be inferred that it was brought to Mr Lee's notice. According to the affidavit of Pamela Wilson (which was also read) a signed copy of the Statement of Findings and Orders of the Committee was given to the prothonotary in the usual way. It is in this manner that they formally came to the notice of the Court and led to Mr Lee's removal from the Roll. Certain further information having come to the attention of the Law Society, it subsequently commenced proceedings in the Court seeking orders that Mr Lee be restrained from purporting to act as a solicitor and that an order be made that he be punished for contempt. The making of the formal order was obviated when on 12 November 1987 Mr Lee gave an undertaking to the Court in terms which were accepted by the court and by the Law Society. It is not alleged that there has been any breach of that undertaking or that Mr Lee has, since they were given, held himself out as being entitled to act as a solicitor. Were it otherwise the case would take on an even more serious complexion. Statement of charge and basis of contempt The allegations contained in the statement of charge are that Mr Lee, in disregard of the order of the Statutory Committee, continued to act, practise and hold himself out as being entitled to practise as a solicitor of the Supreme Court of New South Wales. By his counsel, Mr Lee appeared at the hearing to answer the charge. He did not contest the evidence tendered on behalf of the Society. Nor did he seek to cross-examine the deponents of the affidavits which were read in the Society's case. Instead, he tendered affidavit evidence (which was likewise read without objection) deposing to his previous good character and a psychiatric opinion of Dr J W Taylor. I shall return to this. He offered his apology to the Court for the conduct which was alleged in the particulars to the charge, and which he did not contest. However, he gave no oral or affidavit evidence of his own to explain his conduct or to seek to mitigate its significance. It is not in contest in these proceedings that conduct in breach of an order of the Statutory Committee may, in the circumstances outlined, amount to contempt of court. The Society relied in this respect on the general principle established long ago in the Full Court of the Supreme Court in In re Walker (1888) 6 NSWR 69. This decision was affirmed by this Court in Ex parte Law Society of New South Wales: Re Kenyon [1970] 3 NSWR 343. The Society also relied on s40A of the Act. It is worth observing that the last-mentioned provision appears URJHE LAW SOCIETY OF NEW SOUTH WALES v JACKSON TAKWAI LEE (Kirby P) 3 relevantly to have been substantially re-enacted in s115(4) of the Legal Profession Act 1987. However, it was common ground that this case fell to be determined exclusively by the application of the previous Act and I so approach it. Mr Lee does not contest the charge of contempt. Accordingly, it is unnecessary to explore further whether there is a statutory and a common law contempt or the precise relationships between the two contempts in such a case as this. These questions may be reserved to cases where they are argued and where they are important for the order which the Court makes. Findings of conduct amounting to contempt The Court has said on many occasions, in cases involving solicitors and former solicitors, that it is desirable that findings should be made against such persons and that they should be clearly stated in case they should become relevant to later proceedings. It is therefore appropriate to say that, in this case, each and every particular of the charge of contempt brought by the Law Society has been made out upon the evidence proved. Specifically, I am satisfied that:- (1) After 29 September 1987, Mr Lee kept open to the public for reception of work and enquiries from members of the public his former professional offices on the sixth floor of 647 George Street, Sydney; (2) After 29 September 1987, Mr Lee continued to cause to be displayed at or near those offices, signs directing members of the public to his offices and bearing the words "Jackson Takwai Lee, Solicitors and Attorneys"; (3) On or about 29 September 1987, Mr Lee delivered to Mr Garry Leong, solicitor, a written authority directing Mr Leong to deliver to Mr Lee the title deed on land owned by Mr Chiu Kee Yee, for whom Mr Lee represented to Mr Leong that he acted and proposed to act in the sale of land; (4) On or about 14 October 1987 Mr Lee, by his agent or employee, a receptionist in attendance at his former professional offices, held himself out as being entitled for reward to draw a will for a member of the public; (5) On or about 20 October 1987 Mr Lee by his said agent and employee in attendance at his former professional offices held himself out as being a solicitor and as being entitled to act in such connection with matters involving, inter alia, immigration and family law; and (6) On or about 29 October 1987 Mr Lee was in attendance at his former professional offices in the circumstances referred to in the two preceding paragraphs. The evidence which establishes these findings is to be found in four affidavits. These are those of Mr Garry Leong, who was dealing with Mr Lee in a conveyancing transaction; an affidavit of Mr Chris Fung and Ms Vivian Chai, solicitors, to which I shall return; an affidavit of Mr Peter Grindell Hurray, a law clerk employed by the Law Society, concerning representations made to him by Mr Lee's receptionist on 20 October 1987, and an affidavit of Ms Rosemary MacDougal, solicitor, employed by the Law Society. The last mentioned affidavit, like that of Mr Hurray, concerned conversations with Mr Lee's receptionist. Her conversation took place on 29 October 1987. The joint affidavit of Mr Fung and Ms Chai is the most disturbing. It shows that from 29 September 1986 to early November 1986 the deponents, as solicitors, dealt with Mr Lee in the purchase of a restaurant being sold by their 4 UNREPORTED JUDGMENTS clients. Contracts were exchanged on 23 October 1987. Despite his removal from the Roll, of which Mr Lee was fully aware, he continued purposefully to act for a "client" in the transaction as if nothing had happened, as if he had a practising certificate and a full entitlement in law to act as a solicitor. It was argued by counsel, faintly I thought, that there are some matters which persons other than solicitors can do as agents in land title conveyancing and in the purchase of businesses. But this was not a case where Mr Lee was so acting. He was plainly holding himself out to legal practitioners that he too was a solicitor. The evidence of Mr Hurray shows that as late as 20 October 1987, when a telephone enquiry was made, his receptionist was telling enquirers, "We do immigration, family law, all types of matters". On 27 October 1987 the receptionist likewise responded to Ms MacDougal in terms which are incompatible with the total cessation of practice as a solicitor. Inter alia, she referred to "our client". Accordingly, the position is thus. Despite the serious findings of the Statutory Committee, the order of removal well-known to Mr Lee, and the uncontested removal from the Roll of Solicitors which followed, Mr Lee continued to occupy his old office, to maintain his old signs, to carry on conveyancing transactions and to hold himself out to the public by his receptionist and by his letterhead as entitled to advise in areas of the law for which legal expertise is essential and entitlement to practise is suggested. No evidence was given by Mr Lee's receptionist. Nor was the affidavit evidence of Mr Hurray or Ms MacDougal contested. I have no hesitation in accepting their testimony. Imprisonment is the normal punishment for wilful contempt The position revealed by the establishment of these charges is very serious. The community looks to the courts to enforce orders lawfully made in serious proceedings and to vindicate the administration of justice in the State. The community looks to this Court to protect the public from persons who hold themselves out as solicitors although they are not entitled by law to do so. Particularly should the public be protected where the person who purports to so act has previously been a solicitor and has recently been removed from the Rolls for proved professional misconduct. The suggestion made by the above evidence is that Mr Lee acted wilfully in disobedience of the order of the Statutory Committee. Such wilful disregard of such an order would normally attract punishment by way of imprisonment or possibly, for a first offence in extenuating circumstances, by way of a fine. Mr Lee offers evidence of extenuating circumstances. There is an affidavit by his wife, from whom he is now separated, deposing to the background of financial and personal difficulties which accompanied his misconduct and continued after his removal from the Rolls. Extenuating circumstances and psychiatric evidence Mrs Lee records the work which Mr Lee did for the Chinese community in this State. This last point is elaborated in an impressive way in an affidavit by Mr Henry Ming Lai, retired company director, Mr Thomas Scott, a real estate agent, Mr King Moo Fong, public relations consultant, and Mr Thomas Williams, retired Chief Industrial Magistrate of the State. All of these depose that they are aware of Mr Lee's removal from the Rolls and of the orders made by the Statutory Committee. URJHE LAW SOCIETY OF NEW SOUTH WALES v JACKSON TAKWAI LEE (Kirby P) 5 The affidavits to which I have referred might mitigate the punishment appropriate to a proved contempt. But they cannot remove the necessity of a salutary punishment because they do not address the essential unanswered question raised by this apparently wilful disobedience of the order of the Statutory Committee. To address that question an affidavit of Dr Taylor was read without objection. Dr Taylor was not called to give oral evidence. The report attached to the affidavit sets out a long history of the background of the case. I am not disposed to give unquestioning acceptance to that recorded history. It would have been more persuasive if Mr Lee's version of his crisis had been given to the Court by himself and not secondhand in the history recorded in a medical report. Furthermore, there are manifest errors in the report. For example, it is recorded that Mr Lee was "deregistered" due to a "technical breach". Manifestly this was not so. Nevertheless, I am disposed to accept that the history accurately records the chronic marital and financial problems which beset Mr Lee before and at the time of the charges which are before this Court, the severe depression caused by his removal from the Rolls and the additional distress caused by his disgrace in the Chinese community, in which he had previously been a very active and prominent member. The significant part of Dr Taylor's report relates to his opinion of Mr Lee's personality as it may help to explain his apparently wilful breach of the Statutory Committee's orders. He states that Mr Lee, when seen on 10 December 1987, was still unrealistically optimistic. This opinion coincides with my own assessment that Mr Lee was a man acting irrationally - simply blotting out from his consciousness the intensely painful reality of his fall from professional and community grace. Dr Taylor concludes his report with the following passage:- [Mr Lee] told me that he was not aware that leaving his sign up constituted an offence. Given his profession and the clear personal relevance of the regulations regarding practise which his recent case had drawn to his attention, I find this hard to believe; it seems much more likely that at the time he was so fed up he didn't bother to do anything about it and didn't stop to think of the consequences of his inactivity. He certainly did seem to realise that he had been struck off. He has also lost a great deal of standing in the Chinese community; he quoted that an acquaintance, after he was struck off, said to him 'you're a bastard Jackson'. The expectation with an adjustment disorder is that over a period of time, usually a few months, the acute distress settles down. In each case of proved contempt the court must fashion the punishment of the particular circumstances proved, having regard to the purpose of its order. Here that purpose is, relevantly, to protect the public and to uphold the order of the Statutory Committee. In Kenyan, in circumstances in which there appears to have been a lesser appreciation by the solicitor of the wrongfulness of his conduct, this Court contented itself with an admonition and no further order of punishment. Here there has been a full acknowledgement of the error of the conduct proved in September and October 1987. There has also been an apology. There is background evidence of past service which does some credit to Mr Lee. There is the psychiatrist's opinion that Mr Lee was suffering from an adjustment disorder. Mr Lee has indicated to the Court that he is continuing under the care of the psychiatrist. The evidence is that the duration of an adjustment disorder is typically brief. The events which have brought the matter to the Court are very serious. But they were of relatively short duration. And they are not continuing. 6 UNREPORTED JUDGMENTS In these circumstances, I would stop short in this case of imposing punishment by way of imprisonment. Nor do I believe that a fine is necessary. The proceedings themselves, and the orders which must follow, have vindicated the orders of the Statutory Committee. But there must be no doubt in anyone's mind, least of all that of Mr Lee, that the Court would act with resolution in the event of any repetition of the conduct which is proved in this case. Adjustment disorder or not, the Court would not stand by whilst lawful orders of such seriousness were ignored and flouted. Findings and orders The findings and orders which I would therefore propose are that the Court:- (1) Finds that Jackson Takwai Lee has committed contempt of court. (2) Orders that he be admonished for his contempt. (3) Orders that he pay the costs of the Law Society of and incidental to these proceedings as between solicitor and client. (4) Notes the undertaking given by him to the Court on 12 November 1987, which continues in its terms until further order of the Court and which the Court expects Mr Lee strictly and faithfully to comply with. McHugh JA I agree. Clarke JA I also agree. KIRBY P: The orders and findings of the Court are, accordingly, as I have announced them.