New South Wales Bar Association v Abdul-Karim [2003] NSWADT 205

CITATION: New South Wales Bar Association v Abdul-Karim [2003] NSWADT 205 DIVISION: Legal Services Division APPLICANT PARTIES: The Council of the New South Wales Bar Association RESPONDENT Michael Saadey Abdul-Karim FILE NUMBER: 012009; 012033 HEARING DATES: On the Papers SUBMISSIONS CLOSED: 08/15/2003 DATE OF DECISION: 09/03/2003

BEFORE: Officer D QC - Judicial Member; Catanzariti J - Judicial Member; Gietzelt R - Member APPLICATION: Costs - Penalty MATTER FOR DECISION: Penalty and Costs LEGISLATION CITED : Legal Profession Act 1987 Allinson v General Council of Medical Education and Registration (1894) 1 QB 750 CASES CITED: The Bar Association v Murphy [2002] NSWCA 138 The Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 APPLICANT REPRESENTATION: P Mahoney, barrister RESPONDENT In Person ORDERS: 1. That the name of the Michael Saadey Abdul-Karim be removed from the roll of legal practitioners in New South Wales.; 2. That the Practising Certificate of Michael Saadey Abdul-Karim be cancelled.; 3. That Michael Saadey Abdul-Karim pay the costs of the Bar Association in the sum of $98,792.

REASONS FOR DECISION Background 1 By a decision of this Tribunal dated 25 June 2003 the Tribunal found Michael Saadey Abdul-Karim (the Barrister) guilty of professional misconduct according to the test enunciated by Lopes LJ in Allinson v General Council of Medical Education and Registration (1894) 1 QB 750 at 763, namely conduct that "would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency" in the following respects, namely (in summary): (i) He entered into a costs agreement dated 17 October 1996 which was illegal in that it breached s.186(3) of the Legal Professional Act 1987 ("the Act") and s.188 of the Act. (ii) He swore an affidavit in proceedings in the Supreme Court of New South Wales, Equity Division, which was false and misleading. (iii) He instituted proceedings for the recovery of costs by way of a Summons dated 9 December 1998 when he was not entitled to render any memorandum of fees to the client and when he ought not to have commenced the proceedings. (iv) He made false and misleading representations and statements in proceedings for the assessment of his costs to the Costs Assessor, Mr Brewster. (v) He unlawfully claimed a lien over certain documents. (vi) He wrongfully demanded a cash payment from the client for the Barrister's continuation in certain proceedings. (vii) He refused to respond to a subpoena to produce documents issued from the Local Court. (viii) He made misleading representations and false inducements to his client to enter a plea of guilty in respect of certain criminal proceedings. (ix) In so doing he was in a position of conflict of interest having regard to a direct monetary interest which the Barrister had in any settlement of potential civil proceedings. 2 By that same decision the Tribunal found that the Barrister had been guilty of unsatisfactory professional conduct (in summary): (a) In failing to make certain disclosures relating to costs as required by ss.175(2)(d), 175(2)(e) and 179 of the Act. (b) In conducting certain correspondence with the Attorney General's Department and Mr Walsh, Solicitor, in seeking to obtain his legal fees. (c) In appearing before Magistrate Horler when his retainer had been terminated. 3 The above is a summary only of the Tribunal's findings and these reasons should be read in conjunction with the Tribunal's said decision of 25 June 2003. 4 Following the handing down of the Tribunal's said decision, but in circumstances which it is not necessary to here set forth, a hearing was scheduled for 31 July 2003 on the question of penalty. Again in circumstances which it is not necessary to here set forth, by letter from the Barrister received by the Tribunal on 28 July 2003 the Barrister advised the Tribunal that he would not be available for the hearing allocated for 31 July. On 28 July 2003 that hearing was vacated and a directions hearing held on 30 July. At that directions hearing the Barrister, by Counsel then appearing for him, advised the Tribunal that he did not intend to adduce any evidence on the question of the appropriate penalty and he has not done so. At the directions hearing the Tribunal was likewise advised that the Barrister was content that the question of penalty be dealt with by written submission. The Bar and the Barrister have filed written submissions on the question of penalty. Except to the extent referred to in this decision it is not, in the Tribunal's opinion, necessary to set out in detail those written submissions. Penalty principles 5 It is trite law that the jurisdiction of this Tribunal in disciplinary matters is exercised to protect the public and not to punish the practitioner. It is a jurisdiction which has to be exercised bearing in mind the high standards required of legal practitioners in the practice of their profession. As has recently been said by Giles J in The Bar Association v Murphy [2002] NSWCA 138 (28 June 2002) at paragraph 113: "The (high) standards are required because the relationship between the legal practitioner and the client, between legal practitioners and between legal practitioner and court is one of trust in the performance of professional functions, because there must be confidence in the public and in those engaged in the administration of justice that legal practitioners will properly perform those functions." 6 In the oft quoted passage in The Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Giles AJA said: "The jurisdiction of the Tribunal and of this Court in disciplinary matters is exercised to protect the public, not to punish the solicitor. The object of protection of the public may required that a legal practitioner be removed from the roll, be suspended from practice, or only be permitted to practice under particular circumstances, where the practitioner is not fit to be held out to be entrusted, at all, for a time, or without qualification, with the heavy responsibilities attendant upon the office. The public is protected by ensuring that those unfit to practice do not continue to hold themselves out as fit to practice. But the object of protection of the public also includes deterring others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues whose practice in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrents is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with." Considerations 7 The Tribunal's findings of professional misconduct on the nine enumerated grounds and for the reasons set forth in the Tribunal's previous decision (and its findings of unsatisfactory professional conduct on three further grounds) involved findings of conduct of a most serious nature. This Tribunal in this decision will not attempt to summarise its earlier findings. It is sufficient to say that that conduct struck at the core of what ought to be the relationship between a barrister and the Court and the relationship between a barrister and a client. The conduct involved: (a) Making a false and misleading affidavit to the Supreme Court and false and misleading representations to a costs assessor appointed by the Supreme Court. (b) The Barrister's refusal to respond to an order of a court, namely to produce documents pursuant to a subpoena, for reasons of self-advancement. (c) Knowingly breaching provisions of the Legal Professional Act relating to the costs agreement. (d) Making false and misleading representations to a client to enter a plea of guilty. (e) Unlawfully claiming a lien for costs when none was available to the Barrister in order to seek to advance his own interests over that of his client. (f) Wrongfully demanding a cash payment from a bankrupt client contrary to an "agreement" with the client. (g) Placing his own interests in conflict with that of his client. 8 Not only were the individual findings of the Tribunal of conduct of a most serious kind, the number of such findings is a matter that the Tribunal takes into account. While the conduct involved, in the broader sense, the same client, the conduct could not otherwise be said to be connected or part of any series of transactions. The conduct ought, in the Tribunal's opinion, to be viewed in the sense of separate and distinct breaches of the standard of conduct expected of a barrister. 9 Further, the conduct did not occur in any confined period but extended over a period of time from 17 October 1996 to the middle of 1999. Such an extended period, in the Tribunal's opinion, is a relevant consideration to the question of the fitness of the Barrister to continue to practice. 10 It is relevant to take account of the Barrister's denial of the allegations as detailed in the Tribunal's decision of 25 June 2003 and the terms in which his replies to the informations were couched. These demonstrate a lack of appreciation of the seriousness of his conduct. 11 The Barrister's submissions on penalty, in large measure, seek to cavil with the Tribunal's findings on liability. Nowhere has the Barrister demonstrated any appreciation of the seriousness of his conduct or acknowledgment of any wrongdoing, let alone contrition or remorse. Indeed the contrary is the case. In the Tribunal's opinion the Barrister still does not appreciate the seriousness of his conduct and he still does not appreciate his obligations to the Court, his obligations to his clients and his obligations to uphold the law (for example in relation to costs agreements and obedience to orders of a court - to produce documents). 12 It is relevant to take into account the findings of the Tribunal in its decision of 25 June 2003 concerning the credit of the Barrister and the four matters expressly referred to by the Tribunal in paragraph 55 of that decision. Without repeating the detail, it is sufficient for present purposes to say that the Barrister advised this Tribunal of matters which, as it turned out, were patently wrong. He gave evidence to this Tribunal which this Tribunal found was false. The four particular incidents referred to by the Tribunal and the findings of credit against the Barrister demonstrate conduct which is anti-pathetical to the requirements of being a fit and proper person to practice as a barrister. A Court or Tribunal must be able to have the utmost confidence in the truth and reliability of what legal practitioners put to it either by way of evidence, or from the Bar table. For reasons set forth in the decision of 25 June, this Tribunal does not and could not have such confidence with the Barrister. 13 A matter of grave concern to this Tribunal is the Barrister's attitude to the question of the illegality of the costs agreement that he entered into with his client on 17 October 1996. The Barrister gave evidence concerning this matter on 12 February 2003 (Transcript page 70-74), on 13 February (Tscript p.92) and on 17 February (Tscript p.49-50). A fair reading of that evidence in the Tribunal's opinion clearly indicates that the Barrister would, in certain circumstances, in the future again breach those provisions of the Legal Profession Act 1987 dealing with costs agreements if he thought it appropriate to do so for "cultural" reasons. He considers that, in certain circumstances, it would be an insult to Arabic speaking people for him to comply with those provisions of the law of this State. The Tribunal is of the opinion that that evidence demonstrates that the Barrister, far from being contrite or remorseful of his knowing breaches of the Act, has demonstrated that he will in the future, if he considers it appropriate, repeat such conduct. 14 The Barrister has had prior adverse findings made against him in relation to his conduct as a barrister: (a) On 3 April 2000 he was privately reprimanded by the President of the Bar Association for failing to comply with his obligations under ss.175 and 177 of the Act and Rule 80 of the NSW Barristers Rules in relation to disclosure of the basis of his charges. (b) On 22 February 2002 following upon a complaint by Mr Layous the Tribunal found that the Barrister had been guilty of unsatisfactory professional conduct in relation to the drafting of a Statement of Claim in that his conduct fell short of the standard of competence and diligence that a member of the public was entitled to expect from a reasonably competent legal practitioner. On 13 September 2002 the Tribunal ordered that he be publicly reprimanded and that he pay certain compensation to Mr Layous. (c) On 27 March 2003 this Tribunal found that the Barrister in the matter of Pinebelt had inserted in a caveat a description of an alleged interest of Pinebelt in certain land that he then knew to be false or misleading by reason that the Supreme Court had already determined that such interest was unenforceable and not properly the subject of a caveat in respect of the land. The Barrister had also inserted into the caveat the expression "appeal against judgment of Hamilton J" when he had no knowledge that any such appeal had been brought. The Tribunal ultimately ordered that the Barrister undertake a certain further course of studies and that he achieve a performance of pass at an examination/assessment and that he pay the costs in the proceedings. 15 This Tribunal has read in full the said reprimand and the decisions on liability and penalty in both the matter concerning Mr Layous and the matter concerning Pinebelt Pty Ltd. Conclusion 16 The findings made against the Barrister involve conduct of grave impropriety which strike at the core of the relationship that ought to exist between a barrister on the one hand, the Court and the client. This is not one incident, but nine separate incidents of disgraceful or dishonourable conduct. It has extended over a considerable period of time. The Barrister has demonstrated a total failure to understand, practice or appreciate the required standard of conduct expected of a barrister. He has demonstrated, in the Tribunal's opinion, that he will in the future if he thinks it appropriate engage in conduct which knowingly breaches the Legal Profession Act 1987. The public requires to be protected against such conduct. The Barrister ought be deterred from repeating such misconduct and other legal practitioners likewise ought to be deterred from falling far short of the high standards required of them. In this Tribunal's opinion, neither the courts nor the public nor other legal practitioners could repose confidence in the Barrister to adhere to the high standards expected of him. In this Tribunal's opinion he is not a fit and proper person to remain on the roll of legal practitioners. The Tribunal orders his name be removed from such roll. Costs 17 The Bar seeks an order for costs in the sum of $98,792 being two-thirds of its estimated party/party costs as detailed in a Memorandum of Costs forwarded by the solicitors for the Bar to the Barrister under cover of a letter of 21 July 2003. 18 The Barrister has not challenged such estimate of costs as to quantum. The Tribunal has reviewed the memorandum and finds it to be reasonable. 19 The Barrister has submitted however that the appropriate order should be that each party pay its own costs. He has done so primarily upon the basis of the collapse of HIH and that any order for costs against him in those circumstances would require him to meet such costs personally with the attendant financial hardship that that would cause. 20 While there is no evidence that the Barrister was insured with HIH, or if so, that the cover extended to the costs of disciplinary proceedings, the Tribunal for present purposes shall assume that he was. Likewise, while there is no direct evidence of this matter it is a matter of public record that HIH collapsed in about March 2001. 21 The two informations were filed after HIH collapsed. Substantially all the costs incurred by the Bar were incurred after March 2001 and in circumstances where the Barrister must have known or be taken to have known that such collapse had occurred. Notwithstanding that, the Barrister saw fit to file the replies which he did to the informations putting in issue all grounds of the complaint. 22 The Barrister continued throughout the course of the proceedings and the hearings in September 2002 and February 2003 to vigorously defend the allegations made against him and to that end, to cross-examine witnesses (in some instances at great length) and call evidence in his defence. No concession, in substance, was made by the Barrister in the proceedings which in any way contributed to a shortening of them. The Bar was successful on all counts. 23 The Tribunal is of the opinion that there is no basis upon which the Bar ought to be denied an order for costs and the Tribunal is of the opinion that in the circumstances an order for costs is appropriate. There being no dispute as to the quantum, the Tribunal orders that the Barrister pay the Applicant's costs in the sum of $98,792.