FRASER v THE COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES [1992] NSWCA 72

FRASER v THE COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, HANDLEY and Cripps JJA 28 May 1992, 7 August 1992

[1992] NSWCA 72

LEGAL PRACTITIONERS — solicitor — misconduct — false certificate of explanation to a mortgagor concerning terms of a mortgage solicitor signs certificate without speaking to mortgagors — does so in case of suggested urgency on the basis of assurance that advice was earlier given by experienced retired barrister — later fails candidly to acknowledge false certificate to solicitor for mortgagee who twice enquires about it — at Court eventually acknowledges that his conduct amounted to fraud — Legal Profession Disciplinary Tribunal orders removal of solicitor's name from the roll of solicitors — appeal to Supreme Court — held: (By the Court Kirby P, Handley JA and Cripps JA): (1) The finding of professional misconduct, which was admitted, required determination of the appeal upon the basis of (a) the provision of a false certificate; (b) lack of candour to a fellow practitioner; (c) belated acknowledgment of fraud; and (d) the weight to be given to the opinion of the Tribunal expressing the standards of conduct of the solicitors' profession; (2) In an appeal from the Tribunal to the Supreme Court, the Court was obliged under s164(3) to hear and determine the appeal; (3) In the circumstances of acknowledged wrongdoing and having regard to the events giving rise to it, lack of any advantage sought or obtained by the solicitor and other determinations by the Tribunal in other analogous cases, removal from the roll was not required; but a fine should be imposed; (4) Appeal allowed; fine of $7,000 imposed; (5) Order that upon such payment solicitor's name to be restored to the roll. LAW REFORM — appeal — Court of Appeal — hearing and determination of appeal from Legal Profession Disciplinary Tribunal — desirability of limitations or controls on such appeals otherwise by way of "a new hearing" under s164(4) Legal Profession Act 1987 — suggestion by Kirby P of need for leave to secure full rehearing.