Law Society of New South Wales v FC [2008] NSWADT 352

CITATION: Law Society of New South Wales v FC [2008] NSWADT 352

DIVISION: General Division

APPLICANT Council of the Law Society of New South Wales PARTIES: RESPONDENT FC

FILE NUMBER: 082004

HEARING DATES: 23 July 2008

SUBMISSIONS CLOSED: 23 July 2008

EXTEMPORE DECISION DATE: 23 July 2008 BEFORE: Currie J - Judicial Member; Riordan M - Judicial Member; Fitzgerald R - Non-Judicial Member

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Legal Profession Act 2004

APPLICANT C Webster, barrister REPRESENTATION: L Muston, legal officer

RESPONDENT N Poynder, barrister

i. Name of Respondent be removed from the Roll of Legal Practitioners in New South Wales ORDERS: ii. Respondent pay the costs of the Applicant iii. The suppression order under section 75 of the Administrative Decisions Act made by Her Honour Judge Karpin on 27 June 2008 to continue.

REASONS FOR DECISION The Suppression Order under Section 75 Administrative Decisions Act 1 At a directions hearing on 7 May 2008 when the Tribunal was constituted by Her Honour Judge Karpin, Her Honour made orders pursuant to section 75 of the Administrative Decisions Act for the non-publication of the proceedings and the anonymity of the Respondent. At that hearing Mr Pierotti appeared for the Applicant and the Respondent appeared in person. 2 Each of the parties had made submissions in writing in respect of the application for those suppression orders which had been filed on 7 April 2008. Hearing and Ex Tempore Orders 3 The Tribunal heard the matter on 23 July 2008 and on that day, at the conclusion of the hearing, orders were made on an ex tempore basis in accordance with an Instrument of Consent admitted as Exhibit C in the proceedings and signed on behalf of the parties. 4 The orders so made were as follows: (a) The name of the Respondent (the Respondent's full name was included but the agreed abbreviation "FC" has been used for the purposes of this Judgment), be removed from the Roll of Legal (b) Practitioners in New South Wales. (c) FC pay the costs of the Applicant. (d) Publication of reasons is reserved. (e) Suppression Order made under section 75 of the Administrative Decisions Act by Her Honour Judge Karpin on 27 June 2008 to continue. The Practitioner's conduct and criminal conviction 5 On 15 June 2006 the Respondent, then aged 50 and employed in a senior position as special counsel with a large national law firm was arrested by members of the New South Wales Police and charged with two offences under section 474.26 of the Criminal Code of using a carriage service to procure a person under 16 years for sexual activity in the presence of the sender, and two offences under section 474.17 of the Criminal Code of using a carriage service in an offensive manner. 6 Charge one was to the effect that on 31 May 2006 the Respondent committed an offence by using a carriage service to transmit a message to an unknown male child aged 15 years with the intention of procuring the recipient to engage in sexual activity with the Respondent. 7 The second charge was to the effect that on 15 June 2006 the Respondent used a carriage service to transmit a communication to a person whom the Respondent believed to be under 16 years of age, namely 15 years and that the Respondent did this with the intention of procuring the Recipient to engage in sexual activity with the Respondent. 8 The "carriage service" referred to was a telephone chat service. 9 The female recipient referred to in the second charge was in fact an undercover member of the NSW Police. The Respondent was arrested outside premises at Surry Hills in Sydney which the Respondent apparently believed to be the residence of the female recipient. The Respondent was arrested by detectives whilst on the phone to the female recipient. 10 Immediately following his arrest the Respondent was taken to the Redfern Police Station where he was searched and found to have in his possession condoms, lubricant and the sum of $236. He also had the address supplied to him by the undercover policewoman written on a piece of paper. 11 The telephone conversations allegedly engaged in on 16 May 2006 with the undercover policewoman were apparently undertaken while the Respondent was in his office. 12 The Respondent was not entrapped by the undercover policewoman. The evidence which was accepted at his criminal trial was that the bulk of the offensive contents of the conversation came from the Respondent. 13 There were two further police charges against the Respondent which were taken into account by consent on the hearing of the criminal charges. The evidence accepted by the criminal court in relation to the fourth charge was to the effect that in certain telephone conversations between 29 May and 15 June 2006 on a telephone chat service the Respondent talked about sex with children, incest, bestiality, offering money for various forms of sex with children and boasting to his audience in a chat room at large that he was "into wild taboo things such as sex with children, incest, rape, animals" amongst other matters. 14 On 7 December 2006 the Respondent was convicted, on his pleas of guilty of two offences under section 474.26(1) of the Criminal Code Act 1995 (Cth) (the first two charges), with two other offences under section 474.17 of the Criminal Code being taken into account (the third and fourth charges). 15 Norrish DCJ imposed concurrent sentences of imprisonment for three years commencing on 15 June 2006 (the date of the Respondent's arrest) for those offences, and made a recognisance release order that the Respondent be released from imprisonment after one year and three months, that is on 14 September 2007. 16 The Respondent was released from custody on 15 September 2007 upon his recognisance to be of good behaviour and to accept supervision and guidance from the Officers of the Probation and Parole Service for a period of two years. 17 The Law Society's application 18 In its Application to this Tribunal the Law Society sought orders that the Respondent has been guilty of professional misconduct by reason of the conduct contained in the Grounds for Application and an order under section 562(2)(a) of the Legal Profession Act 2004 that the name of the Respondent be removed from the Roll of Local Lawyers; that the Respondent pay the costs of the Applicant and such other orders as the Tribunal thinks fit. 19 The Grounds for Application including Particulars set out the events relating to the Respondent's arrest, as well as the institution of three complaints against the Respondent by the Legal Services Commissioner under section 504 of the Legal Profession Act 2004. Those complaints were: (i) that the solicitor is not of good fame and character; (ii) that the solicitor is not a fit and proper person to hold a practising certificate; and (iii) that the solicitor by his conduct has brought the legal profession into disrepute. 20 The Law Society's application was supported by an affidavit of Raymond John Collins the Solicitor for the Council of the Law Society, sworn on 12 February 2008. Mr Collins' affidavit set out in comprehensive fashion details relating to the Respondent's arrest, the proceedings by the Legal Services Commissioner and related correspondence. The Practitioner's Response and Admissions 21 The Respondent wrote to the Tribunal in an undated letter filed with the Tribunal on 5 March 2008 and in that letter under the heading "my Reply" the Respondent indicated that he consented to the primary orders sought by the Law Society that is that he was guilty of professional misconduct by reason of the conduct set out in the Grounds for Application, that an order be made for his removal from the Roll of Local Lawyers and that he pay the costs of the Law Society of these proceedings. 22 The Respondent's letter filed on 5 March 2008 went on to seek an order pursuant to section 75(2)(b) of the Administrative Decisions Tribunal Act 1997 prohibiting or restricting the disclosure of his name, address, picture or any other material that identifies him or may lead to his identification. 23 The Respondent set out in some detail grounds for seeking that suppression order. He subsequently filed more formal written submissions to that effect. 24 As indicated above, at the Directions Hearing on 27 June 2008, Her Honour Judge Karpin made suppression orders under section 75 of the Administrative Decisions Tribunal Act. 25 For completeness it should be stated that Mr Collins' affidavit of 12 February 2008 annexed certain letters attesting to the Respondent's previous good character and his community assistance work prior to the events which were the subject of the Application. The law relating to the Practitioner's Conduct: Professional Misconduct 26 It should not go without mention that in his Reply to the Applicant's written submissions on non-publication orders, filed by the Respondent on 30 April 2008, the Respondent relied in part on the fact that his: ".. misconduct was personal and unrelated to my practice as a lawyer." 27 Whilst the Respondent himself in those submissions acknowledged that the definition of "professional misconduct" for the purposes of the Legal Profession Act is extended by section 497(1)(b) to conduct occurring otherwise than in connection with the practice of the law, and whilst the Respondent's submissions were directed to the issue as to whether or not a suppression order should be made, a further comment from the Tribunal is necessary. 28 The Tribunal wishes to emphasise that it is not merely a matter of technical drafting in section 497(1)(b) that causes the notion of proper professional conduct to be extended to acts outside those in connection with the practice of the law. 29 The standards of conduct which the law imposes, and which the public is entitled to expect from members of the legal profession cannot be restricted to actions directly in the course of carrying out legal practice. 30 As is explained in Riley: Solicitor's Manual at paragraph [36,000], conduct of a lawyer outside his or her legal practice clearly can impact on his or her professional status. This has been recognised both pursuant to the Court's inherent jurisdiction to discipline lawyers, as well as the extended definition of "professional misconduct" in section 127(1)(b) of the Legal Profession Act 1987, and section 497(1)(b) of the Legal Profession Act 2004. 31 Perhaps the clearest explanation of this extended meaning was given by Spigelman CJ in NSW Bar Association v Cummins (2001) 52 NSWLR 279: "There is authority in favour of extending the terminology professional misconduct" to acts not occurring directly in the course of professional practice. That is not to say that any form of personal conduct may be regarded as professional misconduct. The authorities appear to me to suggest two kinds of relationships that justify applying the terminology in this broader way. First, acts may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. Secondly, conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of the practice. In the second case, the terminology of "professional misconduct" overlaps with and, usually it is not necessary to distinguish it from, the terminology of "good fame and character" or "fit and proper person". 32 It is by application of this second kind of relationship as expounded by Spigelman CJ in Cummins that the Tribunal finds that the Respondent's behaviour amounted to professional misconduct. 33 Riley at paragraph [36,000] recognises that in proceedings of this type the enquiries related to whether the behaviour in question brings the standing of the profession into disrepute, thus prompting a lack of public confidence in the profession and ultimately in the administration of justice. 34 In the Tribunal's view, acts of a disgraceful and indeed reprehensible nature such as those of the Respondent have the capacity to diminish the status and reputation of the profession notwithstanding that the acts of the Respondent were not related to his practice as a lawyer. For example, the Respondent's status as a senior practitioner in a large firm was seized upon by the media at the time of his arrest. 35 Although the Respondent states his contrition and remorse at his criminal behaviour, he cannot escape the conclusion that the behaviour was reprehensive and disgraceful by reference to the fact that it was somehow "personal" or unrelated to his practice as a lawyer. Entry in the Register of Disciplinary Actions: section 577 and section 582(3) 36 For completeness it should be added that submissions were heard by Tribunal as to the effect that the continuation of the suppression orders would have on the entry of the Respondent's real name in the Register of Disciplinary Actions kept pursuant to section 577 of the Legal Profession Act 2004. Sub-section (2) of section 577 requires the Register to include the full name of the person against whom the disciplinary action was taken. 37 Sub-section 582(2) provides that the provisions of Part 4.10 of the Legal Profession Act 2004 (i.e. the part dealing with publicising disciplinary action) are subject to any order made by the Tribunal, so far as the order prohibits or restricts the disclosure of information. However sub-section (3) of section 582 provides that: "Despite sub-section (2), the name and any other identifying particulars of the person against whom the disciplinary action was taken, and the kind of disciplinary action taken, must be recorded in the Register in accordance with the requirements of this Part and may be otherwise publicised under this Part." 38 It was accepted by the parties and, to the extent necessary, the Tribunal confirms, that order number 4 below that is the continuation of the suppression order does not prevent the entry in the Register of Disciplinary Actions of the Respondent's real name in relation to his removal from the Roll. The orders 39 The orders made ex tempore on 23 July 2008 are confirmed namely: (i) Name of Respondent be removed from the Roll of Legal Practitioners in New South Wales (ii) Respondent pay the costs of the Applicant (iii) The suppression order under section 75 of the Administrative Decisions Act made by Her Honour Judge Karpin on 27 June 2008 to continue.