CITATION: New South Wales Bar Association v Abdul-Karim [2003] NSWADT 152 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: 23-27/09/2002, 10-18/02/2003 SUBMISSIONS CLOSED: 02/18/2003 DATE OF DECISION: 06/25/2003 BEFORE: Officer D QC - Judicial Member; Catanzariti J - Judicial Member; Gietzelt R - Member APPLICATION: Professional Misconduct - fail to respond to subpoena - Professional Misconduct - make illegal costs agreement - Professional Misconduct - make unlawful claim for lien - Professional Misconduct - mislead client - Professional Misconduct - mislead third party - Professional Misconduct - swear false affidavit MATTER FOR DECISION: Principal matter LEGISLATION CITED : Costs in Criminal Cases Act 1967 Legal Profession Act 1987 CASES CITED: APPLICANT REPRESENTATION: P Mahoney, barrister RESPONDENT In Person ORDERS: 1. The Tribunal made findings of Professional misconduct and unsatisfactory professional conduct as detailed in the decision.; 2. Both Informations will be relisted as soon as practicable for the purposes of hearing submissions from both parties as to what Orders ought be made following upon the findings set out in these reasons. Background (in brief) 1 Michael Saadey Abdul-Karim (the Barrister) was admitted to practise as a barrister on 2 August 1991. He commenced practice as such on 26 August 1991. He obtained an unrestricted Practising Certificate on 8 April 1994 and appears to have practised as such since that time. 2 On about 20 January 1995 Mr. Anthony Hamod (Hamod) was arrested and charged by the police and taken into custody on two counts of obtaining a benefit by deception and possessing a false instrument namely a Union Bank of Switzerland Certificate for platinum bars. On 24 August 1995 Hamod was released from custody on bail. Hamod was at all relevant times the principal person involved in a company called Hamock Investments Pty. Limited (Hamock), which company had substantial commercial interests which it was alleged had been materially damaged following Hamod's arrest and incarceration. 3 Prior to 17 October 1996 the Barrister became aware of the charges that had been levelled against Hamod and that Hamod and Hamock were intending to seek damages and compensation for malicious prosecution and false imprisonment. 4 The Barrister contacted Hamod and agreed to represent him and Hamock in both the criminal and proposed civil actions. There is a conflict in the evidence as to what was precisely discussed in relation to fees. The Tribunal shall return to this conflict later. Be that as it may, on 17 October 1996 a written costs agreement was entered into between the Barrister and Hamock, the detail of which the Tribunal will also return to. It is sufficient for present purposes to say that it expressly provided that the Barrister's usual hourly rate and court appearance charges would not apply and in substance that he was to be remunerated by 20% of the amount recovered in the proposed civil proceedings. The costs agreement, as is accepted by the Barrister, covered both the criminal and the civil proceedings. 5 As at 17 October 1996, Hamod was bankrupt. In January 1997 an application for nullification of the bankruptcy was filed. There is a dispute between the parties as to whether the Barrister on the return date of the application for nullification, namely 4 March 1997, demanded an up-front cash payment of $15,000.00 in order to continue acting for Hamod. There is also a dispute as to whether or not, and if so, to what extent, the Barrister's retainer was then terminated. 6 The next day, 5 March 1997, the Barrister and the representative of the DPP attended upon Magistrate Horler regarding the committal hearing. 7 On 10 March 1997, the committal hearing was due to commence before Magistrate Horler and there was discussion before the Magistrate about the termination of the Barrister's retainer. The matter was stood down in the list for a short period of time and there was discussion between the Barrister, Hamod and the solicitor, Mr. McEncroe, as a result of which and on certain conditions, Hamod gave instructions to the Barrister and Mr. McEncroe to continue to act for him. The matter was stood over until the 17 March 1997 when the committal hearing began. The case was adjourned part-heard on 27 March 1997. 8 On 3 June 1997, the prosecution case concluded and the Magistrate gave certain indications about whether or not she would find a prima facie case and if so, on what grounds. It is alleged that on this day the Barrister pressured Hamod to plead guilty to a lesser charge. The allegation is strenuously denied by the Barrister. 9 On 4 June 1997, Hamod allegedly terminated the Barrister's retainer. There is a dispute about whether this occurred. 10 The committal proceedings were stood over until 13 August 1997. Between 5 June 1997 and 2 July 1997 the Barrister wrote to Hamod several letters about the future conduct of the proceedings. In one of the letters the Barrister sought payment of his costs in the sum of $56,500.00. 11 On 13 August 1997, Hamod had obtained legal aid and Mr. P. Finch of Counsel appeared for him. The committal hearing eventually concluded on 28 March 1998, although there were a number of adjournments in the interim. A subpoena to produce documents dated 18 March 1998 and returnable 24 March 1998 was served on the Barrister. He did not attend in answer to the subpoena and he did not produce the documents. 12 On 3 April 1998, Magistrate Horler found the client not guilty and dismissed the charges and indicated that the matter was appropriate for an award of costs in Hamod's favour. 13 On 15 June, the costs application was heard by Magistrate Horler. Mr. Finch appeared on behalf of Hamod. The Barrister and Mr. McEncroe were in court and there is a dispute on the evidence as to what documents, if any, were handed to the Magistrate on that day for the purposes of quantification of Hamod's costs and, in particular, whether a bill of costs from the Barrister was so handed up. Ultimately, on 30 July, Magistrate Horler granted Hamod a certificate of costs in the sum of $98,489.00. There is an issue as to what sum, if any, was included in this certificate as representing the costs of the Barrister. 14 Between July 1998 and 28 October 1998, the Barrister corresponded with the NSW Attorney-General's Department seeking to obtain from it a cheque in payment of his fees. 15 On 11 November 1998, the Barrister forwarded a letter to Greg Walsh & Co, Solicitors, (who instructed Mr. Finch) enclosing a copy of his undated bill in itemised form in the total sum of $52,690.00 allegedly representing his costs for appearing in the committal proceedings. On the same day, a copy of this letter and bill was faxed by Greg Walsh & Co to Hamod. It is said by Hamod that this was the first time he had received any itemised bill of costs from the Barrister. 16 On 8 December 1998, Hamod personally attended the Attorney-General's Department and picked up his cheque for costs. Upon learning this, the Barrister gave instructions for proceedings to be commenced in the Supreme Court in the Equity Division restraining the client was dealing with the money. On 10 February 1999, Justice Young dismissed the proceedings and in the course of doing so made observations concerning the legality and enforceability of the costs agreement of 17 October 1996 and otherwise the Barrister's entitlement to the sum of $52,690.00 claimed by him. 17 On 24 March 1999, the Barrister filed a summons for the assessment of his costs in the criminal proceedings and in certain other matters which he had handled for Hamod. On 20 April 1999 the Supreme Court referred the application to Mr. P. Brewster, Costs Assessor. The allegations and the reply (as filed) 18 The two Informations contain a total of thirteen grounds and are supported by detailed particulars. 19 For present purposes, the grounds and the substance of the particulars and the reply can be summarised as follows. In this particular case and for reasons which will become evident it is desirable to set forth such summary in a little detail. Proceedings 012009 Ground 1 20 The said costs agreement of 17 October 1996 was an illegal conditional costs agreement because it breached s.186(3) of the Legal Profession Act 1987 (the Act) which prohibits conditional costs agreements being entered into in criminal proceedings. Secondly, the costs agreement breached s.188 of the Act which prohibits a costs agreement from providing that costs are to be determined as a proportion of the amount recovered in any proceedings to which the agreement relates. The Barrister in his reply denies that the costs agreement was illegal and says that in the circumstance he considered all the available options in light of the status of Hamod as bankrupt. The conditional costs agreement entered into was considered by the Barrister to be the most appropriate. Ground 2 21 The Barrister failed to disclose the basis of the costs to be charged. The particulars allege that the Barrister did not disclose in writing (s.179 of the Act) the client's rights under Division 6 in relation to the review of costs or the client's rights under Division 4 to receive a bill of costs. The Barrister, in his reply, unreservedly denies that he failed to disclose the basis of the costs to be charged. Ground 3 22 That the Barrister made a false and misleading affidavit in the Supreme Court of New South Wales, Equity Division in proceedings for an injunction to prevent Hamod from dealing with the funds for costs (the proceedings ultimately heard by Young J.) in that the affidavit said "Between the period 16 October 1996 until 4 July 1997 I had conduct of Mr. Hamod's brief …" whereas, in fact, it is alleged the retainer was terminated on about 4 March 1997 and there was no termination of the retainer on 4 July 1997 (as alleged in the affidavit). It is further alleged that the statement in the affidavit which attaches a copy of the Barrister's memorandum of fees and says " rendered to both Mr. McEncroe and Mr. Hamod " is false and/or misleading in that the Barrister neglected to say that he refused to send his memorandum of fees when requested by the client to do so in May 1998 and that it was only on or about 11 November 1998 that Greg Walsh & Co, Solicitors, sent the Barrister's memorandum of fees to the client. Further it is alleged, that the Barrister does not state in the affidavit when the memorandum of fees was allegedly rendered or how and does not say that on at least two occasions in writing, the client had requested the Barrister's bill in itemised form, namely, on 8 May 1998 and 15 May 1998 and none was sent until Greg Walsh & Co on 11 November forwarded a copy to the client. It is further said, that the affidavit is false and misleading when it referred to the occasion before Magistrate Horler when the prosecution had completed the evidence and said "It was apparent to me that short of some admission by Mr. Hamod, the prosecution had major difficulties. I explained to Mr. Hamod the status of the proceedings and answered all questions that he asked of me" in that it made no reference to Magistrate Horler's proposed finding of a prima facie case on one ground. It makes no mention of the Barrister's retainer being withdrawn on 4 June 1997 or that Mr. Finch thereafter continued to represent Mr. Hamod and because at least in respect of one charge far from Magistrate Horler expressing a concern about the adequacy of the evidence, she had indicated that she may well find a prima facie case, if Hamod did not give evidence and tender appropriate documentation. 23 The fourth ground on which it is said that the affidavit is misleading is that it deals with matters before Magistrate Horler on 15 June 1998 but does not relevantly state the background to those matters in relation to costs. It does not state that the Barrister's "appearance" was not as retained by Hamod but for some other reason and in that sense it was not an appearance at all and thirdly, that it was not a case of Mr. Finch indicating that he wished to make the submissions himself and asking the Barrister to hand him a memorandum of fees. Mr. Finch expressed no such wish and never asked the Barrister for such a memorandum, it is alleged. 24 The Barrister says in his reply that the affidavits which he filed in the Equity proceedings stated the facts known to him with utmost candour and honesty and that he was ready and willing to be cross-examined on his affidavits in those proceedings and "in that respect the applicant's allegation is misconceived". Ground 4 25 The Barrister commenced proceedings for recovery of costs by way of a summons dated 9 December 1998 in breach of the Act and contrary to the provisions of the costs agreement in that in breach of s.192(1) thirty days had not elapsed from the time the client received the bill of costs on or about 11 November 1998, in breach of s.195, the bill of costs had not been given to the client via any of the methods referred to in the section and in breach of s.182(2) there had been no disclosure of the matters referred to in s.175(2)(d) and (e) and no assessment had taken place. Further, it is alleged that no bill should have been rendered at all bearing in mind the terms of the written costs agreement. 26 In his reply the Barrister says that the proceedings were commenced after information was obtained that the Attorney-General had paid the cheque directly to the client and that the source of the fund was an entity covered by the written conditional costs agreement. Ground 5 27 The Barrister made false and misleading representations and statements in proceedings for the assessment of his costs in that the statement that "The costs which are the subject of this application would included in my bill of costs dated July 1997, a copy of which is attached. The bill was given to the client on 20 June 1997 in the following manner …" was false and misleading because there was no bill dated July 1997 which was given to the client on 20 June 1997. The letter dated 20 June 1997 from the legal practitioner to the client merely demanded payment of approximately $62,000.00 for legal services. There is no reference in that letter to any bill of costs that was attached. Further, it is alleged that the statement that the bill of costs was dated July 1997 and given to the client on 20 June 1997 is in itself an inconsistent statement. A breach of rules 21 and 22 of the Bar Rules is alleged namely, he made a misleading statement to the Court as to the date of any bill of costs and its date of sending to the client. 28 Further, it is said that the statement to the costs assessor that "There is a costs agreement between myself and the first respondent relating specifically to the criminal charges" is false and misleading because it does not inform the costs assessor that Justice Young had, on 10 February 1997, found the costs agreement to be null and void. Indeed, the Barrister did not inform the costs assessor or the Supreme Court of those Equity proceedings nor of Justice Young's decision. 29 Further, it is said that the statement to the costs assessor that "At the time I accepted the brief verbal disclosures regarding the hourly and daily rates were made" is false and misleading either because no such disclosures were made, or alternatively, they were inconsistent with the subsequent written agreement which expressly provided that the Barrister's usual hourly rates were not to apply. It is further alleged that there were also breaches of s. 184(4) and s. 179(1). Further it is alleged that the commencement of the proceedings themselves in light of the nature of the costs agreement constituted unsatisfactory professional conduct or profession misconduct because the costs agreement did not refer to any hourly rate or court rate and indeed specifically said it would be excluded yet proceedings were commenced at those rates and the written agreement specifically excluded any oral terms. 30 The Barrister in his reply denies ever intentionally making any false or misleading statement in relation to the assessment of costs proceedings. Ground 6 31 It is alleged the Barrister unlawfully claimed a lien over documents belonging to Hamod and Hamock in that after the Barrister's retainer had been terminated, Hamod made a number of requests for the return of documentation in the possession of the Barrister and these requests were refused. The first request was on 4 March 1997 and the second on 4 June 1997. The third request was on 12 June 1997. There was also requests contained in the correspondence between the parties between 5 June and 11 June 1997. It is alleged that that no lien could apply because the costs agreement specifically provided that there was to be no hourly rate or court appearance rate and that the only amount recoverable by the Barrister was in the event of successful civil proceedings which had never been instituted. The Barrister in his letter dated 20 June 1997 specifically stated that he would release the files only upon payment of fees amounting to approximately $56,500.00. 32 The Barrister in his reply says that the client had a copy of all documents relating to the criminal proceedings and that the client was making "far fetched" allegations concerning various documents. It is further stated in the reply that the Barrister was entitled to claim a lien if that is what the Tribunal finds the Barrister was claiming. Ground 7 33 It is alleged that the Barrister demanded from Hamod a cash payment for the continuation of his representation in both the criminal and bankruptcy proceedings. This was done, it is alleged, on the morning of the return of the application for the annulment of Hamod's bankruptcy namely 4 March 1997. It is alleged the Barrister said to Hamod that he was not prepared to work under the 17 October 1996 costs agreement. Hamod refused and terminated the Barrister's services, it is alleged. 34 The reply unreservedly denies the allegations and says that the applicant Council of the Bar Association of New South Wales had a duty to investigate the merits of the allegation and that had it done so it would have had very serious reservations about all allegations made by Hamod. Ground 8 35 It is alleged that the Barrister refused to respond to a subpoena to produce documents issued from the Local Court so as to enable Hamod to continue the defence of the criminal charges. The subpoena required the Barrister to appear before the Court and produce two video cassettes. The Barrister did not respond to the subpoena by producing the documents to the Court and did not allow Hamod access to the material which was required. 36 The reply filed by the Barrister relies on the content of a letter which he sent to the Local Court in response to the subpoena and asserts that if Hamod was not satisfied with the contents there were various options available to him under the Rules of Court including the option of contempt or the issue of a subpoena to the person. The reply further alleged that Hamod was able to continue with his defence and that the subpoenaed documents had no relevance to the continuance of the defence and that this ground "like all of the other grounds arising from Hamod's complaints are baseless". 37 The final ground 9 of the reply filed by the Barrister asserts that the Council of the Bar Association of New South Wales could not have objectively assessed all the evidence including certain specified evidence and that had it "taken the time and efforts to obtain all of the evidence constituting the Hamod brief and properly given due weight and consideration to this said evidence and weighed Anthony Hamod's demands together with his mental illness it could not have reasonably brought any information against the legal practitioner". Proceedings 012033 Ground 1 38 That the Barrister conducted misleading correspondence between 20 August 1998 and 8 December 1998 with NSW Attorney-General's Department and Mr. Greg Walsh, Solicitor, seeking to obtain his legal fees following the grant of a certificate to Hamod in that he failed to disclose (a) that there was a dispute between himself and Hamod in relation not only to the quantum of fees but also whether he was entitled to charge any fees at all; (b) that the quantum of costs for which the certificate for costs was granted by Magistrate Horler did not include any amount for the Barrister's fees; (c) the Barrister had not provided to the client any itemised bill for his fees; and (d) he had obtained no authority from the client or the instructing solicitor for the release of any funds to the Barrister. 39 In the reply the Barrister admits that he wrote the letters but denies that they were misleading or intended to mislead. The Barrister further says at the time the letters were written Hamod had not indicated to him that he, Hamod, disputed the quantum or right of the Barrister to charge the fees and that the Barrister was under the distinct impression and genuine belief that in awarding the quantum of costs, Magistrate Horler had taken his fees into consideration. It is further asserted by the Barrister in his reply that as at the time the costs certificate was issued the Barrister had provided Hamod with an itemised bill and further, had presented his itemised bill to Mr. Finch on the day of the hearing when the costs order was made. It is further said in the reply that it was not reasonable to expect Hamod to give an authority and that in the circumstances it was inappropriate to obtain instructions from Mr. McEncroe for release of the funds. Ground 2 40 That the Barrister appeared in Magistrate Horler's Chambers on 5 March 1997 on behalf of the client when his retainer had been terminated on 4 March 1997. 41 In the reply the Barrister denies that this occurred and says that he had a duty to appear on that day even if his retainer was allegedly terminated (which allegation is strongly denied). The Barrister says that his duty was to the Court, to protect the client, his instructing solicitor and himself from adverse comments and he further says that the fact that he conducted the hearing until the prosecution case had finished was evidence that his retainer had not been terminated as alleged on 5 March. Ground 3 42 The Barrister attempted personally to appear in Court to argue the question of the Barrister's own costs in circumstances where the Barrister's retainer had been terminated. 43 The Barrister's reply acknowledges that he did in fact personally attend but says he did so in the honest belief that he was entitled to do so. Ground 4 44 That the Barrister made misleading representations and held out false inducements to Hamod as to a possible plea in that on 3 and 4 June 1997 when representing Hamod in those committal proceedings he recommended a plea of guilty on the basis that the Attorney-General's Department would pay civil damages to Hamod or Hamock in the sum of $2 to 3 million if he pleaded guilty in circumstances where the Barrister had no basis for making such representations or holding out such inducements. It is alleged there is no evidence to support the representation that the Attorney-General's Department was willing to pay $2-3 million if Hamod pleaded guilty nor that it was not prepared to negotiate at all if Hamod continued to plead not guilty. 45 The Barrister in the reply unreservedly denies the allegation as "entirely false". He further makes allegations in substance that the Council of the New South Wales Bar Association could not, or should not, in the circumstances have made such a serious allegation in the information. Ground 5 46 It is alleged that the Barrister engaged in a conflict of interest when providing Hamod with the said advice to plead guilty in circumstances where the written costs agreement provided for the barrister to receive 20% of the amount recovered by way of damages. 47 The Barrister maintains his denial and again asserts that the cost agreement entered into was considered in the circumstances "to be the most appropriate". Reply to whole information 48 The reply further alleges that the Council of the Bar Association of New South Wales in 'relentlessly" pursuing the information in these proceedings and in proceedings No. 012009 has failed to objectively properly or seriously consider or take into account the whole of the relevant material as particularised. The course of the proceedings 49 This decision is concerned with whether or not the allegations made against the Barrister or any of them have been established. This decision is not concerned with what orders, if any, ought thereafter to be made. The Tribunal will hear the parties further on that matter. 50 The evidence has comprised affidavits from the solicitor for the informant, Anthony Hamod who gave evidence and was cross-examined by the Barrister at length, Anthony Hamod Jnr who was also cross-examined by the Barrister, Paul Finch of counsel who was also cross-examined, John McEncroe (solicitor), Joseph Saffiotti and the Barrister (all of whom were cross-examined). In addition, a large number of exhibits have been tendered. In reaching its decision the Tribunal has taken into account all the evidence even if it is not hereafter expressly referred to. It would not be possible or practical so to do. Credit 51 One of the matters that has been from the pleadings abundantly clear and has remained clear from the final submissions in this matter is that the Barrister has maintained that many of the complaints and allegations that Hamod has made against the Barrister are either "straight out deliberate lies" or "exaggerations" or "untruths". So much was maintained by the Barrister in much of his correspondence with the Bar Association, in his cross-examination of Hamod, in his own evidence to this Tribunal and in the submissions which he has made to this Tribunal. 52 In determining many of the issues before the Tribunal, it has taken into account the respective credit of Hamod and the Barrister. 53 Hamod was cross-examined by the Barrister for the better part of a week and the Tribunal had ample opportunity to observe him, his demeanour and to judge the veracity of the evidence which he gave. Notwithstanding that lengthy cross-examination, the Tribunal is satisfied that it has not been demonstrated in any material respect that Hamod was being other than a truthful and honest witness. The Tribunal makes allowance for the fact that on occasions he became frustrated with the cross-examination. He did however handle himself with dignity and composure and answered the questions in a forthright and non-evasive manner. His answers have not in any material respect been demonstrated to be wrong or his evidence to this Tribunal other than frank and honest. 54 In assessing the credit of the Barrister, the Tribunal has taken account of a number of significant instances where the evidence of the Barrister to this Tribunal and the matters which he has advanced to it from the Bar table have been at its lowest unreliable and highest, misleading. In addition, for reasons which will be amplified later, this Tribunal is satisfied that he has engaged in false and misleading conduct in proceedings before Justice Young, Mr. Brewster and in his response to the Local Court subpoena. 55 The matters to which the Tribunal would expressly refer are: (a) one of the important issues involved in more than one of the grounds in the informations concerns the question of whether the Barrister's services were terminated and, if so, when and in respect of what proceedings. On 25 September 2002 the Barrister when asked expressly by the Tribunal, advised it that it was his position that Hamod had not terminated his services at all (Transcript 25.9.02 pp. 20-23). He so advised the Tribunal in clear and unambiguous terms. Subsequently, on 14 February 2003 after much prevarication the Barrister acknowledged that his correspondence with Mr. McEncroe made it clear that the Barrister's services had been terminated in relation to the criminal proceedings and had been terminated in relation to the bankruptcy proceedings on 4 March. In addition the transcript of proceedings before Magistrate Horler on 10 March 1997 contains express acknowledgements by the Barrister that his retainer had been terminated. The Tribunal finds that the statements given to it by the Barrister in September 2002 were patently wrong; (b) the Barrister maintained that on or about 17 October 1996 he disclosed to Hamod his usual hourly rate of $250.00. Hamod denied that any such disclosure was made. It was put to Hamod in cross-examination that that was the disclosed rate. It was evidently put to him to support an entitlement for the Barrister to charge that hourly rate. The Tribunal will return to that aspect of the matter later. On 12 February the Barrister gave evidence that he told Hamod that his hourly rate was $250.00. He repeated that evidence on 13 February. When it was pointed out to the Barrister that his memorandum of fees had charged an hourly rate of $300.00 per hour he volunteered for the first time on 13 February that his fees had gone up and that he had told Hamod about this on a number of occasions. No such evidence was forthcoming before and no such suggestion was ever put to Hamod. When the Barrister was confronted with his bill that was charging $300.00 an hour from inception (16 October 1996), his explanation was totally unsatisfactory and evasive and could not and did not involve a concept of it originally being $250.00 and then at some later point of time varied upwards. He acknowledged that nowhere in the correspondence or the affidavits or the proceedings before Justice Young or before Mr. Brewster had there ever been a suggestion that the Barrister had disclosed or agreed with Hamod a rate of $300.00 an hour. The Tribunal finds that the suggestion that he had agreed or disclosed $300.00 an hour to Mr. Hamod is false and that it was only when confronted with the memorandum of fees that the Barrister sought to give some explanation about variation which in itself was false; (c) when cross-examined about the non-disclosure to Mr. Brewster of Young J's determination of the validity of the cost agreement, the Barrister sought to suggest that Justice Young had not properly determined that question and certainly had not determined it in a manner which required disclosure to Mr. Brewster. That evidence is patently wrong. There was not and could not be any serious suggestion that any material fact was not before Young J sufficient for him to determine the validity of the costs agreement. He did so in plain and unambiguous language; (d) the Barrister sought to justify the costs agreement, (although it was the only document ever executed between himself and Hamod or any of his companies) as a temporary agreement and that another document was to come into existence after Hamod's bankruptcy had been annulled. The Tribunal finds that this is nothing more than an attempt by the Barrister to extricate himself from the proposition which he acknowledged that as at October 1996 he knew it was a breach of the Legal Profession Act to have a conditional costs agreement in relation to a criminal matter and a fee set as a percentage of a verdict. 56 The Tribunal has also taken into account the demeanour of the Barrister in giving his evidence. In many instances he was evasive in his answers when confronted with difficult situations that needed explanation. He was not in the Tribunal's opinion, a reliable or forthright witness. Generally the Tribunal prefers the evidence of Hamod. The evidence and conclusions Ground 1 – The Costs Agreement 57 In the Tribunal's opinion there can be no doubt but that the costs agreement of 17 October 1996 was illegal because it breached s.186(3) of the Legal Profession Act 1987 because it was a conditional costs agreement entered into in respect of criminal proceedings. The Barrister acknowledged that he at the time the agreement was entered was aware of the prohibition in s.186(3). He sought however to justify the agreement on the basis that it also related to civil proceedings. In the Tribunal's opinion that is no justification at all. 58 In the Tribunal's opinion, it is also patently clear that the agreement breached s.188 of the Act because it expressly provided that the Barrister's fees were to be determined as 20% of the amount recovered in the civil proceedings contemplated by the agreement. The Barrister acknowledged that at the time the agreement was entered into he was aware of that prohibition. 59 The Barrister has never acknowledged expressly or frankly either of the said breaches (except in terms of a technical breach). He has merely sought to justify the agreement as being the most appropriate agreement in the circumstances. It was also sought to be justified on the basis that it was temporary only pending the discharge of Mr. Hamod from bankruptcy. Even though the application for a discharge was withdrawn on 4 March, the Barrister continued to act in reliance of the agreement. 60 There were of course all sorts of alternative courses open to the Barrister. He could have refused to act for the client at all or he could have sought that there be a grant of legal aid. The agreements could have been conditioned in relation to a successful application for costs in the criminal proceedings. There are clearly other alternatives available. 61 The prohibitions in the legislation are for the protection of the public in general and a specific client in particular. Nothing the Barrister has submitted could possible justify his entering into such an agreement particularly in circumstances where he knew of the statutory prohibitions. He knew Hamod was bankrupt and to this extent vulnerable. The Tribunal is not satisfied he explained the provision of the Act to Hamod or any alternatives available. The Barrister believed the charges would be dismissed and that in that event the potential damages could be very substantial. He agreed to a fee of 20%. As the applicant submitted there was present an element of unfair dealing and avarice involved. 62 The Tribunal finds the ground established and that the Barrister's conduct amounted to professional misconduct. Ground 2 – Failure to disclose 63 The Tribunal finds that as particularised there was no disclosure to the client of his rights under Division 6 in relation to a review of costs (s. 175(2)(d) and s. 175(2)(e)), there had not been disclosed his rights under Division 4 to receive a bill of costs. Not only was there no disclosure but as particularised there was, in breach of s.179, no disclosure in writing. 64 Much of the evidence and the submissions, dealt with the question of whether or not the Barrister had disclosed, verbally, an hourly rate of $250.00 (or some other sum) and $1,500.00 per day for court appearances. Hamod denied there had ever been a disclosure of such sums. The Barrister maintained that there had, although it certainly was not clear from his evidence whether it was being asserted that the disclosure was in terms that the Barrister was entitled to charge such sums. Such evidence would have been difficult to comprehend in circumstances where the written agreement expressly provided that the "usually hourly rate and court appearances charges that are normally stipulated in my standard Costs and Disclosure Agreement do not apply to my acceptance of this brief". Further, the written costs agreement expressly provided that "all other terms whether oral or implied are excluded". 65 It is not necessary for the Tribunal, in relation to this ground, to come to any concluded view about this matter because there is not alleged in either Information (and understandably so in light of the written costs agreement) any breach of s.175(2)(a) or 2(b) in terms of hourly/daily rates. 66 In respect of the particularised breaches in this ground, the Tribunal finds the Barrister's conduct to be unsatisfactory professional conduct. Ground 3 – A false and misleading affidavit to the Supreme Court 67 In his final submissions, the Barrister did not dispute the accuracy of the particulars given in relation to this ground. He did however submit that all relevant documentation had been included in the affidavit and that he would not intentionally swear a false affidavit. He submitted that he could have been cross-examined in the Equity proceedings on any inconsistency or anything said to have been misleading or deceptive. 68 The Tribunal finds that the complaint as particularised has been established in all its respects. The Affidavit was, as alleged, false and misleading. It is no answer for the Barrister to say that there was correspondence annexed when the text of the affidavit, as particularised, had the false and misleading nature which it did. It is also no answer for the Barrister to say that he could have been cross-examined on the affidavit in those proceedings. The Courts and this Tribunal have said, on numerous occasions, that as Officers of the Court, legal practitioners must not in any manner put before the Court material which is false or misleading. The Court is entitled to expect, in its dealing with practitioners, the utmost candour and frankness and certainly for a barrister to put before a Court an affidavit which, in material respects, is false and misleading is, in the Tribunal's opinion, professional misconduct and the Tribunal so finds. Ground 4 – Commencement of recovery of costs proceedings by way of Summons dated 9 December 1998 69 The Tribunal is satisfied that the breaches of ss. 192(1), 195 and 182(2) of the Legal Profession Act as particularised in relation to this charge has been established. Indeed, the Tribunal does not understand the Barrister to contend to the contrary. 70 The further allegation in relation to this ground is more difficult. In substance it is that the agreement was that the Barrister would only charge if the civil proceedings were successful and that he was not entitled to render any bill as at 11 November 1998 to the client let alone the commencement of proceedings for recovery of the amount in the bill. 71 The difficulty arises because the Barrister says that there was included in the amount obtained by Hamod from the Attorney-General, an amount which represented money said to be owing to the Barrister under a memorandum of fees charged at an hourly rate. The Barrister submits that he had a distinct and honest belief that Hamod would "make off" with his money. The Barrister may have had a belief that his memorandum of fees was handed to the Magistrate prior to the costs order being made. The fact is that Mr. Finch of Counsel had several documents in his possession when the costs argument took place before Magistrate Horler, including a memorandum of fees from the Barrister. Mr. Finch certainly handed some documents up. Someone in Court, as the Barrister was, could reasonably suppose his memorandum was included. The Tribunal, however, is not satisfied that it was. It was in fact sent to the Director of Public Prosecutions under cover of a letter and submissions were thereafter made by the Director to Magistrate Horler as to the quantum of the costs. The submissions included one that no allowance be made for the Barrister's costs. It is, however, in the Tribunal's opinion, clear, that some additional amount over and above that recommended by the Director was allowed by the Magistrate on the basis of rates charged by legal practitioners provided by the Director-General to the DPP, but it is by no means clear what amount, if any, was allowed to cover the Barrister's memorandum of fees. On any view of it, it could not have been the whole amount. The Barrister however did not, on the evidence, know of any of these matters. 72 The Tribunal however is of the opinion that the Barrister was not entitled, bearing in mind the written costs agreement, to render any memorandum of fees to the client as he did. So much is clear. He certainly ought not to have commenced the proceedings which he did where he was not and could not have been satisfied that any amount was included for his fees in the cheque which Hamod obtained from the Attorney-General. Justice Young held that the Barrister was not entitled to any costs. The Tribunal is of the opinion that the conduct amounts to professional misconduct. Ground 5 – False and misleading representations to Mr. Brewster 73 In his final submissions, the Barrister conceded that there were errors such as alleged. He submits that if it is found to be misrepresentation they were not intentional. The Tribunal finds that the facts as particularised have been established. These were, in the Tribunal's opinion, statements to Mr. Brewster which were in material respects false and misleading. The Tribunal is of the opinion that the Barrister's conduct amounts to professional misconduct. The Tribunal rejects the Barrister's submissions as to the circumstances in which he did not disclose to the assessor that Justice Young had, on a previous occasion, found the costs agreement on which he was seeking to have his costs assessed, to be null and void. To include in that explanation the proposition that it was always open to the respondent to file a motion to have the application for assessment of costs struck out as being frivolous based on Justice Young's decision, is not the conduct expected of a member of the profession. The application ought never to have been made or, if it had been made, there ought to have been frankly disclosed to the costs assessor, the findings of Justice Young. 74 The Tribunal finds that the Barrister in making the false and misleading statements which he made to Mr. Brewster engaged in professional misconduct. Ground 6 – The claim for the lien 75 The Tribunal finds that the alleged particulars have been established. The Barrister was not entitled to claim costs on an hourly basis. While the Barrister maintains that he explained to Hamod his hourly basis and that that was something verbal between them, this is denied by Hamod. There is some limited support for the Barrister's position from Mr. Saffiotti who was present at the discussions. If, which is certainly not clear, the Barrister's evidence is intended to carry with it any agreement that the Barrister could charge hourly rates (as opposed to merely disclosing what his rates usually were), we prefer the evidence of Mr. Hamod, Such a proposition is totally inconsistent with the written agreement. It is also inconsistent with the findings of Justice Young. The Tribunal is satisfied that if hourly rates were discussed between the Barrister and Hamod such discussion was not in terms of the Barrister being able to charge such rates. The Tribunal has already referred to the unsatisfactory evidence from the Barrister about he rate being $250.00 or $300.00. It should also be noted that the Barrister's proposition that the written (illegal) agreement was temporary only, to be replaced when Hamod's bankruptcy concluded, is inconsistent with there already existing a right to charge hourly rates. 76 In his final submissions, the Barrister put forward as justification, the proposition that he saw it as an opportunity of getting his money in circumstances where he had incurred a substantial amount of time and effort and, following the dismissal of the prosecution, he thought that the client would in due course win the civil case. 77 The Tribunal finds that that explanation is no justification for wrongly claiming a lien in the circumstances. The Tribunal finds the ground established and that the conduct amounted to professional misconduct. Ground 7 – A demand for cash 78 Hamod's application for annulment of his bankruptcy was before the court on 4 March 1997. Hamod was present. The Barrister was present. Although Hamod's proposition was originally denied by the Barrister, it was ultimately admitted by the Barrister and there can on the evidence be no doubt but that the Barrister's services were terminated on that morning. There was, at first some argument as to whether the services were terminated in respect of both the bankruptcy proceedings and the criminal proceedings, or the former alone. The Tribunal is satisfied that it was a termination in respect of both sets of proceedings. The transcript of the proceedings before Magistrate Horler on 10 March 1997 make that abundantly clear in circumstances where no one asserts any purported termination other than on 4 March. Hamod alleges that while they were in the Barrister's chambers, the Barrister demanded $15,000.00 cash from Hamod in order to continue representing him. It is in those circumstances, Hamod says that the Barrister's services were terminated. While the Barrister has categorically denied that assertion from the beginning, he did not file any affidavit evidence dealing with that particular allegation in Hamod's affidavit, although he did file affidavit evidence in other respects. The Barrister says that the services were terminated in circumstances involving a request for particulars of an alleged cross-claim to the petitioning creditors debt which had not been answered and in circumstances where Hamod was told by the Barrister that the application for annulment would not succeed and that Hamod "blew his top" and terminated the Barrister's services. The Tribunal has difficulty in understanding the logic of this proposition, particularly in circumstances where Hamod himself attended the Court that morning and withdrew the application. 79 Hamod steadfastly maintained in cross-examination that the demand for the money had been made. It was suggested by the Barrister to Hamod in cross-examination, that the sum of $15,000.00 emanated from the fact that Hamod knew in late February/early March that the Barrister's fees in relation to a mediation matter (the Egan matter) were $15,000.00. The proposition was denied by Hamod. Indeed, the proposition is unsupported by any evidence and is inconsistent with the fact that the mediation took place on 15 March 1997. It is difficult to understand how Hamod could have known the quantum of the Barrister's fees in late February/early March (as alleged in cross-examination. Hamod had no involvement in the Egan matter. There is no evidence of Hamod becoming aware of the barrister's fees. The only suggestion was that Hamod knew because "Nowra is a small place". The Tribunal rejects the suggestion that Hamod knew of the Barrister's fees in the Egan matter in late February/early March.. 80 The Barrister in his final submissions put that a cash demand for $15,000.00 on 4 March 1997 defies logic because Hamod did not have any such funds. The evidence of Hamod however is that while in late 1996 he may have been in a difficult financial position, a Mr. Bassil owed Hamock well in excess of about $40,000.00 for work and owed that sum as at February or March 1997 and that the Barrister knew of that and knew that Hamod or his company was about to receive a substantial amount of money when the Barrister made the demand. 81 The Tribunal finds that the demand as alleged was made by the Barrister. In coming to this conclusion, the Tribunal has evaluated the totality of the evidence and taken into account the credit of Hamod on the one hand and the Barrister on the other. The Tribunal finds it more probable than not that the demand was made and that it was the demand which led to the termination of the services rather than Hamod "blowing his top" following some advice by the Barrister about the prospects of success of the annulment application. The Tribunal also takes into account the circumstances in which Hamod says that the Barrister was aware of forthcoming funds and the fact that the explanations put to Hamod in cross-examination were not only denied by him but are inconsistent with the objective evidence. Further, Hamod's version of events as to a termination taking place (denied by the Barrister originally) was plainly correct. 82 In circumstances where there was a costs agreement as set out above, the Tribunal finds that the Barrister's conduct in demanding on the morning of the annulment application, a sum of $15,000.00 for his continued services to be disgraceful. In the Tribunal's opinion, his conduct amounted to professional misconduct. Ground 8 – Refusal to respond to a subpoena 83 The Barrister did not attend before the Court in answer to the subpoena as the wording of it required. His evidence suggesting that his personal attendance was not required was plainly wrong and is rejected. The wording of the subpoena so required. He did not produce the documents sought by the subpoena. He sent a letter to the Court claiming a lien for unpaid fees. Such a claim was, for reasons already explained, unjustified. His evidence before this Tribunal was that he did not have one of the videos called for by the subpoena. He did not tell the Court that. He alleges it was "remiss". Notwithstanding his prevarication on the point the Tribunal accepts that the primary motive in him responding to the subpoena in the way in which he did was because as the Barrister said in evidence "I honestly thought I would get my money" "In claiming lien over anything that Mr. Hamod thought I had, my primary objective was to see if I could get my money". 84 The Tribunal finds the conduct of the Barrister disgraceful and it amounts to professional misconduct for him to have "responded" to the subpoena in the circumstances in this manner. Proceedings 012033 Ground 1 – Misleading correspondence 85 The Barrister conducted correspondence with the Attorney-General's Department and Mr. Walsh seeking to obtain his legal fees following the grant of a certificate to the client from Magistrate Horler under the Costs in Criminal Cases Act 1967. In that correspondence he did not disclose that there was a dispute between himself and Hamod as to whether the Barrister was entitled to charge any fees at all. So much was clear to the Barrister. The Barrister has acknowledged that he had no agreement with Hamod entitling him to charge at an hourly rate (Tp. 25902 p.77,78) and Mr. Finch then appearing for Hamod expressly told the Barrister on 15 June that Hamod believed the Barrister was not entitled to costs. There is a wealth of evidence to support the proposition that Hamod was contending the Barrister was not entitled to charge any fees because of the terms of the written costs agreement and the Tribunal does not understand the Barrister to contend to the contrary. 86 The Tribunal is not prepared to find that the Barrister may not have believed that the certificate granted by Magistrate Horler included an amount for his fees. On 15 June, Mr. Finch had in his possession in Court three accounts. One was from the Legal Aid Commission which comprised substantially his costs. The second, was a memorandum of fees from the Barrister and Mr. McEncroe which had been handed to him, so Mr. Finch recalls by the Barrister and, thirdly, a bill of costs prepared by Hamod himself. The transcript of the proceedings of 15 June 1998 reveal that he did hand up something to the Magistrate. It is Mr. Finch's recollection that he did not hand up the Barrister's memorandum of fees although there is no evidence before the Tribunal upon which the Tribunal could be satisfied that the Barrister was aware of this. 87 By letter of 15 June, Mr. Finch forwarded to Mr. Borosh of the Office of the Director of Public Prosecutions three accounts including the claim of the Barrister and a completed summary of costs which included a sum for the Barrister of $52,690.00. The evidence reveals that the Director of Public Prosecutions recommended that no amount be allowed for the Barrister, but the evidence also reveals that the Magistrate increased the total sum recommended by the Department of Public Prosecutions having regard to the scale of fees for barristers and solicitors referred to above. 88 The Tribunal is not satisfied that the Barrister did not believe and did not have some reasonable grounds for believing (regardless of whether Hamod thought the Barrister was entitled to charge) that the certificate included some amount for his fees. 89 The Barrister certainly had not, at the time of the correspondence, provided to the client any itemised bill for his fees. The Tribunal accepts Hamod's evidence that the first time he saw an account from the Barrister was on or about 11 November 1998 when a copy of the Barrister's letter to Greg Walsh & Co, solicitors, was faxed by that firm to Hamod. To the extent that the Barrister suggested in his evidence that he had provided directly to the client in his office an account at an earlier point of time, the Tribunal rejects that evidence. 90 It is clear that the Barrister had obtained no authority from the client or from his instructing solicitor for the release of any funds to the Barrister but, the Tribunal is satisfied from the correspondence that the Barrister's failure to disclose that matter was, in the circumstances, not material because the recipients of the correspondence were aware that such an authority was necessary for the release of the funds. In other words, in this respect, the correspondence was not misleading. 91 The Barrister in the Tribunal's opinion, ought to have disclosed that there was the said dispute and that no memorandum had been rendered to the client. To that extent the correspondence was misleading and in the Tribunal's opinion amounts to unsatisfactory professional conduct. Ground 2 – Appearing when retainer had been terminated 92 The Tribunal is firmly of the opinion notwithstanding the Barrister's denials, that the Barrister's retainer was terminated on 4 March 1997 by Hamod following what the Tribunal has found to have been the Barrister's demand on the morning of the hearing of the application for the annulment of the bankruptcy of a sum of $15,000.00. The termination that then took place was not only in relation to the bankruptcy proceedings, but was also in relation to the criminal proceedings and it was so understood by the Barrister. The Barrister's own memorandum of fees, later compiled, confirms the termination on 4 March 1997. The transcript of the proceedings before Magistrate Horler on 10 March 1997 confirms the fact that the Barrister's retainer had been terminated. While the terms in which the Barrister advised the Magistrate of that fact is ambivalent as to the timing of the termination of the retainer, there has been no suggestion in the evidence before this Tribunal that there was any termination or purported termination of the Barrister's retainer in the period up to 10 March 1997 other than on 4 March. 93 In those circumstances, the Barrister was not entitled to appear before Magistrate Horler on 5 March 1997 on behalf of Hamod. The Barrister seeks to justify his conduct by saying that he had a duty to the Court, to protect the client, the instructing solicitor and himself from adverse comment. The evidence establishes that the fact of his retainer having been terminated was not conveyed to the Magistrate on 5 March and indeed the Barrister appeared as if he were still retained. He was not entitled to do that. It was conduct which clearly carried with it a misleading representation to the Magistrate, namely, that the Barrister was entitled to appear for the client, and was retained to so do. 94 The Tribunal notes that on 5 March no matter of substance transpired which could have in any way affected adversely the Barrister's client. It was substantially a mention only. The Tribunal also notes that when the matter was next before the Court on 10 March at the commencement of the proceeding, the Magistrate was advised by the Barrister of the termination of the retainer. In the particular circumstances, the Tribunal is of the view, that in this regard the Barrister's conduct was unsatisfactory professional conduct. Had the nature of the appearance on 5 March been otherwise the consequences may well have been more severe. Ground 3 – Appearance on the costs argument 95 The Barrister had suggested to Hamod and to Mr. Finch of counsel that the Barrister personally conduct the argument concerning the Barrister's costs before the Magistrate on 15 June 1998. On that day the Barrister was at Court and was firmly advised by Mr. Finch that the Barrister did not have any right to appear and that he, Mr. Finch, had been instructed to appear for Hamod. The Barrister also sat at the bar table during the costs argument but did not announce any appearance and did not participate in the hearing. The Barrister was evidently there to seek to ensure in the best way that he could that the Barrister's costs were included in any application before the Magistrate. The whole of his behaviour on this occasion was clearly driven by self interest in circumstances that he knew the client Hamod disputed the Barrister's entitlement to any fees at all. 96 In the circumstances the Tribunal is of the opinion that while the Barrister's conduct may be capable of criticism, it is not satisfied, in the circumstances, that the conduct amounted to either professional misconduct or unsatisfactory professional conduct. Ground 4 – Inducements for a possible plea 97 Following the close of the prosecution case and submissions by the Barrister on a "no case", Magistrate Horler indicated that she may well find a prima facie case at least on one of the counts (AH 3 p. 55). A short adjournment was granted and the Barrister and Hamod held discussions about the matter. There can be, in the Tribunal's opinion, no doubt but that one of the matters that was discussed, was the summary jurisdiction of the local court to dispose of matters in the event of a guilty plea (12203 Tp 108 L.40). The Barrister acknowledges, in his evidence, that the matter of entering a plea of guilty was discussed as an option. The Barrister denies that he suggested to Hamod that he plead guilty to some minor charge. As the Tribunal finds on the Barristers own evidence the question of pleading guilty was discussed with the client in circumstances where the Magistrate had indicated that if pressed, she could find a prima facie case against Hamod or, at least, one ground. 98 The other fact which in the Tribunal's opinion is clearly established on the Barrister's own concession, is that he had spoken to Mr. Borosh of the DPP when he said words to the effect "We are prepared to consider a lesser charge". The Barrister advised the Tribunal that to the best of his recollection the lesser charge was one that involved dropping one of the charges and rewording the other in terms of recklessness rather than intentional breaches (26902 Tp 28-29 and 41-42). 99 This acknowledgement by the Barrister is consistent with the evidence of Hamod about pleading guilty to a lesser charge that would not attract imprisonment and a charge that involved the concept of recklessness (26902 Tp 28-29). 100 It is also clear, in the Tribunal's opinion, from the evidence, that Hamod was adamant he wanted to give evidence and that there were heated discussions between Hamod and the Barrister about this matter. It is patently clear in the Tribunal's opinion, that Hamod was raising his voice in relation to this matter and that the argument lasted for a considerable period of time. So much is clear from Hamod's evidence and from the evidence of his son. The latter was an impressive witness and the Tribunal is satisfied that his evidence was honestly given and can be relied upon without hesitation. There was no real suggestion from the Barrister to the contrary. He was eighteen at the time and recalls the argument and he recalls the Barrister saying to Hamod words to the effect that he should plead guilty and that the company could then sue for damages for defamation and trade interference. He recalls his father adamantly saying that he wanted to give evidence and that the argument ensued for about half an hour. He does not recall any reference to dollars by way of damages but he specifically recalls his father getting angry because the Barrister had told him to plead guilty. 101 Other than formally advising him of the option of pleading guilty, the Barrister denies advising Hamod to plead guilty to any charge at all. He says that once the Magistrate indicated that she may find a prima facie case, his advice to his client, Hamod, was to give short evidence. Although the Barrister prevaricated in relation to this matter, it is quite clear that if Hamod had given any evidence (short or long) he would nevertheless have been subjected to cross-examination by the Crown on any relevant subject matter. The Barrister's evidence of his advice to his client is rejected. The Tribunal does not understand its logic and none was proffered by the Barrister. It is inconsistent with the evidence of Hamod and his son. 102 The Tribunal is satisfied, contrary to the evidence of the Barrister, that there was discussion involving Hamod and the Barrister about pleading guilty which went beyond merely advising the client of the theoretical possibility. The Tribunal is satisfied that the Barrister was seeking to persuade Hamod to plead guilty to a lesser charge such as he had discussed with the DPP involving reckless rather than intentional conduct. The Tribunal is satisfied that this discussion involved discussion about the necessity or otherwise for Hamod to give evidence. The Tribunal is satisfied that Hamod was adamant that he was not going to plead guilty and that he wanted to give evidence in an attempt to vindicate as he saw it, his position. 103 The Tribunal is satisfied that in the context of these discussions reference was made to recovering damages from the Crown. To the extent that the Barrister suggests to the contrary then the Tribunal rejects that suggestion. Mr. Hamod Jnr puts the conversation in terms of his father and the company then being able to sue for damages, Hamod puts it in terms of the Attorney-General's Department being prepared to settle the damages for a figure of between $2-3 million (26902 Tp. 28 and following). Hamod was cross-examined by the Barrister on the basis that the Barrister on this occasion "never discussed with you damages". In the Tribunal's opinion, the version of Hamod and the version of his son are both inconsistent with that proposition. 104 The Barrister has vehemently denied that he advised Hamod not to give evidence (12203 Tp 108) and has vehemently denied advising him to plead guilty to a lesser charge (12203 Tp 109). The Tribunal rejects that evidence. It is inconsistent with the objective facts, the concessions made by the Barrister and the evidence of Hamod and his son. The Barrister says he was never offered a minor charge (12203 Tp 111), but the Tribunal is satisfied on his own concession, that the question of a minor charge had been discussed with the DPP. To this extent his evidence of never having been offered a minor charge is rejected. A minor charge had been discussed on his own acknowledgement with the DPP and on the evidence of Hamod it was discussed with him. 105 The Tribunal is satisfied that in this context the question of recovery of damages from the Crown was discussed by the Barrister. Such a finding is not only consistent with the evidence of Hamod and his son, it is logical that such a question would have arisen in the context of pleading guilty to a lesser charge and in the words of Hamod one that did not involve imprisonment. 106 The Tribunal is satisfied that in this context, the Barrister represented to Hamod that the client could confidently expect to receive a settlement of between $2-3 million from the Attorney-General's Department for the damages claim if he pleaded guilty to a lesser charge in circumstances where it carried with it an implication that if he did not plead guilty then no such settlement would be forthcoming. 107 Both representations were false. There was factually no basis at all upon which the Barrister could represent that the client could confidently expect to receive a settlement in that range and no basis at all upon which the Barrister could represent that if the client did not plead guilty to a lesser charge the Attorney-General's Department would not negotiate at all. Both representations were false and misleading and were held out by the legal practitioner as false inducements to the client to plead guilty. The conduct was professional misconduct. Ground 5 – Conflict of interest 108 In circumstances where according to the costs agreement, the Barrister was entitled to 20% of damages recovered from the parties named in the costs agreement, there was inherently a conflict of interest in the legal practitioner recommending a plea of guilty if there was some basis for the belief that the Attorney-General's Department was willing to pay $2-3 million in the event that Hamod pleaded guilty. The legal practitioner had a direct monetary interest in him pleading guilty if such a settlement was available or believed to be and he was not in a proper position in light of this conflict to provide advice as to the merits of such a plea. The conduct amounted to professional misconduct. Further conduct of the proceedings 109 Both Informations will be relisted as soon as practicable for the purposes of hearing submissions from both parties as to what Orders ought be made following upon the findings set out in these reasons. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.