Law Society of New South Wales -v- Davis [2000] NSWADT 38

CITATION: Law Society of New South Wales -v- Davis [2000] NSWADT 38 DIVISION: Legal Services Division APPLICANT Council of the Law Society of New South Wales PARTIES: RESPONDENT Anthony Martin Davis FILE NUMBER: 9816 HEARING DATES: 19/10/99, 08/12/99 SUBMISSIONS CLOSED: 01/20/2000 DATE OF DECISION: 04/05/2000

BEFORE: Turner RF - Judicial Member; McDonell I - Judicial Member; APPLICATION: Professional Misconduct - mislead Investigator - Professional Misconduct - mislead Law Society/Bar Association/LSC - Unsatisfactory Professional Conduct - mislead Investigator - Unsatisfactory Professional Conduct - mislead Law Society/Bar Association/LSC MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 CASES CITED: REPRESENTATION: P Boyd, solicitor R S Cuddy, solicitor ORDERS: 1. The Respondent is found guilty of unsatisfactory professional conduct - s127(2) Legal Profession Act 1987.; 2. The Respondent pay a fine of $3,000.00.; 3. The Respondent pay the costs of the Applicant of and incidental to these proceedings.

Reasons for Decision 1 The Council of the Law Society of NSW informed the Tribunal by an Information filed on 4 May 1998 that as a result of the Council's investigation of complaints made under Part 10 of the Legal Profession Act 1987 against Anthony Martin Davis, a legal practitioner within the meaning of s128 of the Act, the Council claims that the solicitor was guilty of professional misconduct on the grounds that: · The legal practitioner endeavoured to mislead the Law Society. · The legal practitioner endeavoured to mislead the investigator appointed by the Law Society. 2 The charges arose from two letters the solicitor addressed to the Law Society and the practitioner's reply. The first dated 12 May 1989 headed, "Certification of satisfactory completion of 12 months approved practice" which purported to support the certification of Jaswant Khera's completion of employment as a solicitor by Mr Davis. 3 The second dated 29 July 1993 in reply to a letter from the Law Society in answer to a request from the Respondent solicitor for a resumè of Khera's employment. 4 The matter came before the Tribunal on Tuesday, 19 October 1999. It became apparent that the Respondent was inexperienced in proceedings in the courtroom. The matter was adjourned to allow him to obtain representation by a solicitor. This representative appeared and conducted his client's case until it was adjourned until Wednesday, 8 December 1999 and subsequently. 5 Davis was admitted on 17 September 1971 and in his one man suburban practice he specialised in a niche area of the law dealing with commercial contracts, distribution and direct selling on the delivery of services based on independent contractors. 6 He employed Jaswant Khera on 1 February 1988, who was admitted to practice on 3 July 1987. Khera had a restricted practising certificate needing twelve months supervised experience before qualifying for a certificate of satisfactory approved practice. 7 In his Affidavit, Davis states that when employing Khera he made him aware that he was negotiating a sale of his practice and that he could not offer him permanent employment as the future of staffing and location was unclear. 8 Davis alleges he terminated Khera's employment as at 30 June 1988 creating some acrimony. An agreement was said to have been made whereby: · The clients' files would remain with Davis. · Khera could visit the office and inspect the files of the clients he had introduced and he would be free to take these files to any new legal employer. · Khera would no longer be an employee but work as an independent contractor and would receive no remuneration from 1 July 1988 in the nature of wage or salary but only commission on completed matters. 9 Khera's restricted practising certificate would have been subject to conditions as referred to on the certificate itself: "This certificate is issued subject to the conditions listed on the front of the certificate and explained on the back." 10 Presumably the conditions included a requirement for the employment to be under the supervision of another solicitor who held a full practising certificate and that "the holder of the restricted practising certificate is not entitled to act as a solicitor on the record or charge costs for legal work, or practise other than as an employee". 11 Davis alleged that Khera's employment with him was for five months, from 1 February 1988 until 30 June 1988, leaving Khera a need to find employment with another solicitor for seven months to qualify for a certificate of twelve months approved practice. Davis further states that in April/May 1989 all remaining introduced files were closed and taken from his office. Khera states that he was employed by Davis as a solicitor from 1 February 1988 until 20 June 1989. 12 Davis further states: "From 1 July 88 I gave no directions and made no requirements on Mr Khera in any connection with the introduced legal files or his time save as expressed above to request assistance with information or interpretation where this was necessary for the continuing assistance to those introduced clients. He and I exchanged notes about clients he introduced and had access to these files in my office - he occasionally drafted documents."