Legal Services Commissioner -v- Berry [2000] NSWADT 139

CITATION: Legal Services Commissioner -v- Berry [2000] NSWADT 139 DIVISION: Legal Services Division APPLICANT Legal Services Commissioner PARTIES: RESPONDENT Graham Leonard Berry FILE NUMBER: 992018 HEARING DATES: 17/04/2000 SUBMISSIONS CLOSED: 04/17/2000 DATE OF DECISION: 10/12/2000

BEFORE: Robinson WL QC -Judicial Member; Vass CB -Judicial Member; Dyster B - Member APPLICATION: Professional Misconduct - fail to comply with s. 152 Notice - Professional Misconduct - fail to meet undertaking of Law Society/Bar Association/LSC MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 CASES CITED: APPLICANT REPRESENTATION: T Lynch, barrister RESPONDENT J W Conomos, barrister ORDERS: 1. That the legal practitioner be reprimanded; 2. That the legal practitioner pay a fine of $20,000.00 such payment to be made within 90 days of the date of Order; 3. That the legal practitioner pay the costs of the Legal Services Commissioner agreed in the sum of $3,500.00 such payment to be made within 12 months of the date of Order.

1 By Notice dated 25 June 1999, the Applicant, the Legal Services Commissioner ("the Commissioner"), informed the Tribunal that as a result of the Commissioner's investigations of complaints under Part 10 of the Legal Profession Act 1987, ("the Act") against the Respondent ("the solicitor") the Commissioner claims that the solicitor, while practising as a solicitor, was guilty of professional misconduct. 2 The Commissioner alleged that the solicitor was guilty of two counts of professional misconduct which are alleged to have arisen out of his conduct in: (a) Failing to meet an oral undertaking given by the solicitor to a Principal Legal Officer in the Office of the Commissioner charged with the investigation of a complaint, and (b) Failing, without reasonable excuse, to comply with a notice in writing pursuant to Section 152(1) of the Act. 3 The practitioner has admitted both counts and the parties have indicated that they are content for the matter to proceed on the affidavit material filed in the proceedings. 4 The investigation in this matter commenced when a Mr Cecil Paget, a then client of the respondent, lodged a complaint form dated 26 February 1996 with the Commissioner. The Commissioner pursued the substance of that complaint with the solicitor and on 16 April 1996 a correspondence commenced between the present parties. By 17 April 1997, the Commissioner had despatched five letters to the solicitor and had received but one short written acknowledgment of 11 June 1996 in which the practitioner sought a seven day extension of time. Subsequently, in a telephone conversation of 6 May 1997, a Mr Christopher Keher, the Commissioner's Principal Legal Officer, spoke with the practitioner concerning his failure to reply to the substance of the Commissioner's letters. On this occasion Mr Berry apologised for not attending to the Paget complaint and said words to the effect of "I undertake to have my response on your desk tomorrow." That undertaking was not made good and on 6 June 1997 the Commissioner advised the solicitor in writing of his intention to refer the matter to the Tribunal. 5 Nearly a year elapsed and the substance of Mr Paget's complaints as articulated by the Commissioner remained outstanding. The Commissioner forwarded a further warning letter to the practitioner on 21 April 1998 signalling his intention to issue a formal notice and in the absence of a reply on 24 June 1998 the Commissioner further pressed the matter by the issue of a Notice pursuant to Section 152(1) of the Act. That Notice, which was served personally on the solicitor on 29 June 1998, required the solicitor to respond by 10 July 1998. No reply was received by the due date and indeed the substance of Mr Paget's complaints remained unaddressed by the solicitor until long after the commencement of the present proceedings. 6 The Tribunal is satisfied on the evidence before it, and in the face of Mr Berry's admissions, that each information is made out and accordingly finds the solicitor guilty of professional misconduct in respect of each count. 7 In addition to the usual orders sought for a fine, public reprimand and costs, the Commissioner seeks the cancellation of the solicitor's practicing certificate, for a period to be specified by the Tribunal. This order was pressed before us by Mr Lynch for the Commissioner on the basis that, whilst the matters are not of themselves at the high end of seriousness for professional misconduct, they are not the first matters in which Mr Berry has come to attention in disciplinary proceedings. Mr Lynch specifically drew attention to the decision in matter No. 11 of 1994 in the Legal Disciplinary Tribunal, wherein the solicitor was found guilty of unsatisfactory professional conduct and fined $7,000.00 in respect of conduct occurring in 1991. It is apparent from the face of that decision that it was not the first time Mr Berry's conduct had been the subject of disciplinary scrutiny. Similarly attention was drawn to matter No.13 of 1996 before the Legal Services Tribunal in which a finding of professional misconduct resulted in a fine of $2,000.00 when the solicitor failed to respond to a Section 152 Notice in 1995. It was submitted that the pattern of Mr Berry's repeatedly dilatory conduct now extended over the best part of a decade and in that context merited the imposition of a sanction beyond monetary penalty. It was submitted that such a serious sanction was required to ensure that Mr Berry positively address his dilatory conduct and make such changes as would avoid further repetition of the conduct attracting disciplinary proceedings. Mr Lynch further submitted that cancellation was not unprecedented and specifically drew the Tribunal's attention to the matter of di Bello (ADT 19/1998). 8 Mr Berry has been continuously in practice as a solicitor since his admission on 11 March 1960. After some 20 years in partnership he commenced as a sole practitioner in 1980 and has remained in that mode of practice until these proceedings. He is now aged 64. Apart from the formal admission of the subject disciplinary offences, his principal response in these proceedings is found in his affidavit sworn 1 February 2000. That affidavit contains formal apology for his offences and offers an account of his professional engagements as a sole practitioner during the period of his failure to respond to the Commissioner. In an irony highlighted by his Counsel, Mr Conomos, amongst those engagements was an appearance as instructing solicitor before another bench of this Tribunal in the matter of Roberts, referred to below, for which Mr Berry received fulsome praise for his efforts in assisting both the Tribunal and the practitioner client. 9 More significantly, annexed to that affidavit are his letters of 31 January 2000 in which he responds to the substance of the Commissioner's hitherto unanswered correspondence and Notice. The letters relate in extensor the history of the solicitor's dealings with Mr Paget and are supported by relevant correspondence and file notes. It is not for this Tribunal to deal here with the ultimate merits of Mr Paget's complaint to the Commissioner. However, a perusal of the documents supporting Mr Berry's version of their dealings suggests that the complaint stems from a lack of understanding by the complainant, rather than misconduct by Mr Berry. 10 Additionally, the Tribunal received affidavits filed on Mr Berry's behalf by a number of eminent practitioners including His Honour Judge Rummery QC of the District Court and Messrs. Thomas Harrison, Geoffrey Brooks-Evans, and Ms Frances MacRae of Counsel. All of these deponents showed familiarity with the nature and detail of these proceedings and all are long familiar with Mr Berry. Each deponent speaks highly of Mr Berry's previous professional achievements and reputation, his apparent shame at his current predicament, and expresses continued confidence in his fitness to remain in practice as a solicitor. In particular, His Honour Judge Rummery QC, a professional acquaintance of the solicitor for some 35 years, characterises Mr Berry's behaviour in failing to attend to the Paget complaint as a "blind spot" subconsciously developed as a consequence of being the subject of unjustified complaint. 11 In his concise submissions to the Tribunal, Mr Conomos of Counsel sought to distinguish the position of his client from that of Mr Di Bello inasmuch as he submits that Mr Di Bello was a relatively young man who could not sustain the rigours of professional practice, whereas he characterised Mr Berry as a senior professional who had served well in the past, despite the deficiencies referred to in the proceedings. Mr Conomos also drew attention to a matter of some significance not directly dealt with by the written material, in that he suggested Mr Berry has taken a significant step towards dealing with his dilatoriness in that he now had working with him Mr Bob Graham, the solicitor who witnessed his affidavit filed in the proceedings. The evidence before us did not otherwise disclose the number of employees in Mr Berry's practice, and we take it from the tenor of Mr Conomos' submission that this is a new development for Mr Berry. 12 In considering the unsatisfactory nature of the solicitor's failure to make good his undertaking to Mr Keher, combined with his subsequent lack of response to the formal Notice, not only was Mr Berry's failure to deal with the matter at hand discourteous and obstructive of the Legal Services Commissioner's inquiry on behalf of Mr Paget, a matter meriting professional disapprobation in its own right, but the solicitor's complete inaction ensured that the lay client, however misguided in initiating his 1996 complaint, was deprived of any explanation or reply to the substance of his concerns until earlier this year. The Tribunal is mindful that having regard to the totality of the circumstances, these are not in themselves matters of the highest order of seriousness, as properly conceded by Mr Lynch. Nevertheless, we view with concern the aggravating factor of Mr Berry's repeated conduct, conduct which he has acknowledged both now and in the past to be unacceptable, and we are conscious of the need to impose a penalty both appropriate in light of that aggravation, and one which sounds a warning note to the wider profession. 13 In the result, the Tribunal narrowly rejects the Commissioner's call for the solicitor's practising certificate to be cancelled. In so doing, we have given weight to the progress apparently made by Mr Berry's employment of professional assistance in an endeavour to meet his commitments in a more appropriate fashion. Secondly, we are conscious that, given Mr Berry's age, such an order would almost certainly end his professional practice and in our view would be an unduly harsh and ignominious finale to the career of a man who has clearly given lengthy and largely meritorious service to the legal profession. In turning to the more lenient alternative of a public reprimand combined with a monetary penalty, we have had regard to the level of the fines earlier imposed on Mr Berry in the past, as well as those for like offences referred to in the list handed up by Mr Lynch during submissions. We note in particular the fine of $8,000.00 imposed in the matter of Roberts (ADT 20/1998) in respect of a single count. We have also borne in mind the maximum fine which may be imposed. The Tribunal considers it appropriate to impose a fine which, though considerable, remains below the mid-point of the available penalty range. It is for these reasons we impose the penalties set out in the Orders.