Law Society of New South Wales -v- Young [1999] NSWADT 78

CITATION: Law Society of New South Wales -v- Young [1999] NSWADT 78

DIVISION: Legal Services

APPLICANT: Law Society of New South Wales

RESPONDENT: Lesley McIntosh Young

FILE NUMBER: 982002

HEARING DATES: 08/25/1999

SUBMISSIONS CLOSED: 08/25/1999

DATE OF DECISION: 3 September 1999

J Blackman Presiding Judicial Member BEFORE: A Durbach - Judicial Member J Geddes - Member

PRIMARY LEGISLATION: Legal Profession Act 1987

APPLICATION: Conduct calculated to mislead Court; Dishonest/unfair dealing with third parties in course of legal practice; Misleading/deceptive/unfair dealing with client; Professional misconduct - solicitor ; Unsatisfactory professional conduct - solicitor -

MATTER FOR DECISION: Principal matter

Applicant: D Barton, solicitor REPRESENTATION: Respondent: P Capelin QC instructed by Lloyd & Lloyd, solicitors

1. That the solicitor Lesley McIntosh Young has been guilty of professional misconduct and is fined $11,500.00 with 12 months to pay. ORDERS: 2. That the solicitor Lesley McIntosh Young has been guilty of unsatisfactory professional conduct and is fined $1,500.00 with 12 months to pay. 3. The solicitor Lesley McIntosh Young should receive a public reprimand. 4. That the solicitor's practice be subject to periodic inspection for a period of three years by the Law Society or its nominee pursuant to s.171c (2)(b) of the Legal Profession Act.

Reasons for Decision

1 These proceedings are before the Tribunal following the filing of an Amended Information by the Law Society on 18 December 1998. The claims against the solicitor are that she was guilty of professional misconduct and unsatisfactory professional conduct. The particulars supplied with this information are: PROFESSIONAL MISCONDUCT 1. Misled her client and her client's husband: Estate of Stone. 2. Forged Letters of Administration in the following matters: (A) Estate of Stone (B) Estate of Brebner. 3. Propounded documents relating to each of the following matters, knowing the documents to be false: (A) Estate of Stone (B) Estate of Brebner. UNSATISFACTORY PROFESSIONAL CONDUCT 4. In making application for grant of letters of administration, the solicitor's conduct fell short of the standard of competence that a member of the public is entitled to expect of a reasonably competent legal practitioner. (A) Estate of Stone (B) Estate of Brebner 2 At the outset I make it clear that Miss Young has admitted both offences and has expressed contrition for the offences which is more, in our opinion, that mere regret for being found out. Whilst she apprehended that the offences in the Stone estate were likely to come to the attention of the Law Society, she did voluntarily go to the Law Society and make confession of what she had done at the earliest opportunity on 19 March 1998. It is probable that the offences in the Brebner estate may not ever have come to light unless she, through her solicitor, had not also brought these to the attention of the Law Society. This is no excuse, but it does give some insight to the present attitude of Ms Young. 3 I should also mention that, whilst none of the members of the Tribunal had any previous knowledge of the solicitor, it became apparent to me that I did know her husband professionally. Our practices coincide to a certain extent. Whilst I cannot recall appearing in any cases with or against him, we have certainly both waited around in the 9.30 Equity list together. Some of the character witnesses for the solicitor are also know to me professionally, some much more so than Mr Wilson, the solicitor's husband. Judge Tupman, for example, who not only provided an affidavit but came to the Tribunal to give evidence, has been known to me through the Women Lawyers Association since she first was employed by William Walker Taylor Edwards & Smith. However, none of this, of course, has had any influence on my objectivity. It has, perhaps, given me an unconscious understanding of the weight to be attached to some of the character witnesses. I have not commented to my fellow tribunal members on these personalities other than to inform them, as I did the parties, of my knowledge of them. It is probably inevitable that in the small legal world of Sydney, there has to be some overlapping of such professional knowledge. Moreover, Mr Barton, for the Law Society, did not object to my continuing to sit on the Tribunal. 4 The solicitor's work history both prior to and after admission to practice demonstrates a work ethic which is admirable. Mr Barton, for the Law Society, suggested that the solicitor was ambitious. I would rather say that she was and is hard working and basically conscientious. (And I use the word "basically" advisedly.) 5 Miss Young was admitted to practice in 1985, at the age of 24 and has practised continually since then, both in the country and in Sydney. In 1995 she became an accredited Family Law Specialist. 6 The conduct which has brought the solicitor before the Tribunal involved two estate matters. The first in time was in relation to the estate of Mark Brebner. 7 On 20 January 1995 the solicitor received instructions to act in the Brebner estate from a Mr Stewart, the brother in law of the late Mark Brebner. The beneficiary of the estate was the mother of the deceased who lived in South Australia. the solicitor filed an application for Letters of Administration in the Supreme Court in the estate on 4 May 1995. This produced requisitions from the Court which the solicitor failed to satisfy before March 1996. 8 The solicitor was married to Mr Raoul Wilson, a barrister in Sydney, on 3 December 1988. They have one child, Hugh, born on 15 June 1993. As both Ms Young and Mr Wilson explained, they, as first parents, were not aware that their son was not developing normally until he was seen by the Child Development Unit at Westmead. Whilst they may have been concerned that he was slow in speaking, etc., they were not aware of the seriousness of this. In January 1995 he was seen by Dr Dolby and in June 1995 he was diagnosed as suffering from dyspraxia, a developmental syndrome. 9 In this context Ms Young has told us that the pressure of work and her child's ill health contributed to the offences with which she has been charged. 10 On 14 February 1996 the solicitor forged Letters of Administration in the Brebner estate. This was apparently sufficient to obtain the assets in the estate to be transferred to the beneficiary. In other words, the solicitor appeared to get away with the simple forgery instead of answering requisitions and grappling with the administration of a reasonably straightforward estate. 11 It was after this that Ms Young accepted instructions in another estate, the Stone estate. She saw Mrs Phillips, the former wife of the late Michael stone, on 20 December 1996. Again, Ms Young solved the problem by forging Letters of Administration on 1 August 1997. On 29 January 1998, Ms Young signed a further document, being a certificate authenticating the veracity of the forged document in this estate. 12 There is no doubt that the solicitor had not had wide experience in estate matters. She deposed to the fact that from 1993 to 1998 she accepted instructions to apply for grants in only six deceased estates. That lack of experience may account for some want of expertise in dealing with requests from the Supreme Court. But it is no excuse for what she did. 13 I raised with counsel appearing in the Tribunal whether there were any criminal proceedings regarding the forgeries. It was agreed that there are none on foot and that the solicitor has not been advised of any projected proceedings. 14 The two estate have now been taken over by Ray Stack, who has obtained Letters of Administration in the Stone estate on 11 May 198 and in the Brebner estate on 3 June 1998. 15 In the latter estate there was no suggestion that any person was disadvantaged by what the solicitor did. In the Stone estate there was apparently some dispute as to the ultimate destination of the money in the estate. Mrs Philips, the client of the solicitor, had said that the only children of the deceased were her two infant children. Initially, one of the problems with the Supreme Court had been because Mrs Phillips was being required to give a bond. Subsequently, there was another daughter of the deceased who made a claim through solicitors, initially through R.D. Black and subsequently through Elliot Tuthill. However, we have heard nothing further about complications in the estate through the later claim (at least formally, although there is a reference in one of the Chronologies handed up by Ms Young's representatives). Ms Young was careful, in saying that did not know of this other child, not to say that Mrs Phillips knew of her existence. It would have been an easy excuse for Ms Young to give as a reason for her actions that Mrs Phillips was so pressing her for a speedy resolution of the estate because Mrs Phillips knew of a possible complication. But Ms Young declined the invitation to put the blame on anyone else. She accepted that the responsibility for the misdoing was hers in each case. 16 Matters to be taken into account include the very serious matter of the forgery of Court documents. This was not a private document but one which is ordinarily issued by the Supreme Court and carries with it special significance. 17 Obviously the solicitor obviously was not able to deal with the matters which have brought her here and were in her control, or rather, out of her control. But there is no suggestion that she was not able to deal with the remainder of her work in a satisfactory manner. All estate files in which she had acted have been checked by one of her former partners and nothing untoward found. There is no evidence from any person other than Mrs Phillips about the lack of service to the public and no other client or any fellow practitioner has suggested that Ms Young failed to return calls or to deal with matters which required attention. The evidence suggests that Ms Young is a well qualified and competent lawyer when dealing with matters within her expertise. 18 We have seen Ms Young in the witness box and have been able to assess her real contrition of which her affidavit spoke in clear but cold terms. Her demonstration of emotion was apparently genuine as she tried to suppress it, knowing the ordeal which she was about to undergo. She has said, "I have informed many legal practitioners of the details of my misconduct and have found the experience of doing so very humbling and embarrassing." That sounds like someone who does have the high values which are spoken of in such glowing terms by the people who have given character evidence after knowing of her conduct. Apart from her husband, Judge Tupman and David Stack (who also gave oral evidence), there were sixteen other eminent lawyer from Sydney or Taree, ranging from Senior Counsel to solicitors. 19 It should also be said that Ms Young's former partners have stood by her. Not only did they give affidavit evidence of their opinion of her character (and the one came from Taree to tell us of this) but they are willing to continue to have her work with them. Mr David Maurice Stack, a former President of the Law Society, gave evidence that prior to the disclosure of the conduct which is being considered by the Tribunal, he considered her a person of "complete integrity". He said that he was sure that the proceedings were known in the profession and that their firm had received no reports back of any lack of confidence in her by her colleagues. He told us that he thinks that she has learned a lesson at a high price and that she is unlikely again to breach any code of conduct for solicitors. That, of course, is something which no-one can predict. As Mr Barton said, no one thought that she would do so before 1996. 20 Ms Young has undertaken voluntary legal work since 1989 for the Law Society, and the College of Law. She has acted as duty solicitor in the Family Court and the Downing Centre Local Court. This work continues in many instances and she is now also doing work for the Sydney City Mission at its Women's Refuge. This is something which she had obviously not told her legal advisers about, until just before the hearing. In other words, she was not boasting of it. There can certainly be no suggestion that this would further her career as, apart from the fact that the clients at such a place would be impecunious, her identity is not known there. 21 There is no doubt that what the solicitor did in relation to the forgery of the two documents and the later authentication of the second one was very serious. The fact that she misled her client in the Stone estate is also serious, but that, we believe, flowed in part from her lack of professional competence and in part from the forgery which we regard so seriously. The propounding of the false documents also flowed from that original action. 22 In relation to the charge of unsatisfactory professional conduct, we note that Ms Young did not appear to have the competency to make the applications which she did to the Court. Certainly she did not have the capacity to answer requisitions which lay undealt with for lengthy periods. 23 It would be our opinion that at the time of the forgeries, Ms Young was not, as the Law Society has submitted is now the case, fit to practise as a solicitor. Her actions spoke of irresponsibility and contempt for the ethics which had been her guide up until then. 24 But the picture has changed. We feel that Ms Young has grasped, again, what she should then have done at the time and now has hold of her moral standards and legal knowledge and competence. 25 We have been referred to a number of authorities and in coming to a conclusion we have taken into account the following. 1. The solicitor made initial confession in the Stone Estate to the Law Society before anyone from the Society came to her. She was no doubt expecting this to happen but she got there first. 2. The solicitor made voluntary confession of the matters in the Brebner estate which may well have escaped detection if she had not told her solicitor of it. 3. She is genuinely contrite and realises the enormity of what she has done. And contrite for the actions rather than the discovery. 4. She had worked for more than ten years in an exemplary and legally competent fashion before the commission of the actions of which we have heard. 5. Many of the fellow practitioners have given glowing character evidence which refer, if not in actual words, at least in the sense, to what happened there as an aberration or being out of character. 6. Her former partners have confidence in her and are prepared to give her their continued support. 7. Her workload has been reduced by the amount of files referred to by her in her affidavit as being between 230 and 280. She now has files of "probably about 150". 8. Whilst the developmental problems with her son are on going, the initial shock of the diagnosis has been accepted. 9. Ms Young has agreed, through her solicitors, to pay the costs of the Law Society of these proceedings amounting to $6,353.00. 10. If Ms Young were to be struck off the roll of solicitors, there would be a number of members of the public who would be disadvantaged. Whilst there are many solicitors in Sydney capable of doing Family Law work, there is no doubt that Ms Young is able to provide a specialist service to her clients. Moreover, her clients, because of their difficulties, would in many instances be unprepared to accept a similar relationship with another solicitor, particularly as matters come close to a hearing. 26 However, there is one matter which does concern us. And that is the possibility of further stress on Ms Young causing a repetition of the actions which brought about this problem. Being a competent Family Law solicitor and an accredited specialist, there is no doubt that she will be under pressure from herself to take on new clients. We accept that Ms Young has herself said that she does not intend to accept instructions in any matter other than Family Law, de Facto Relationship and Family Provision matters. We cannot, of course, put any restriction on the voluntary work which Ms Young does outside her practice, any more than we can comment on her management of her child's education. Nor can we say that Stacks Family Law Services is to continue to use her services. Either Stacks or Ms Young may wish to part company for unrelated reasons which are presently not apparent. 27 But we do see it as important that she should not again have the temptation of taking an easy way out or what seems at the time to be an easy way. For this reason we are proposing a condition under s.171C(2)(b). 28 We have heard no evidence of the financial resources of Ms Young or her husband and the fine which is being imposed has been calculated as a deterrent to others without knowledge of its effect on the solicitor or her family. 29 The judgment of the tribunal is that: (1) The Tribunal finds that the solicitor Lesley McIntosh Young has been guilty of professional misconduct and is fined $11,500.00 with 12 months to pay. (2) The Tribunal finds that the solicitor Lesley McIntosh Young has been guilty of unsatisfactory professional conduct and is fined $1,500.00 with 12 months to pay. (3) The solicitor Lesley McIntosh Young should receive a public reprimand. (4) Order that the solicitor's practice be subject to periodic inspection for a period of three years by the Law Society or its nominee pursuant to s.171C(2)(b) of the Legal Profession Act. 30 In respect of the last matter, the object of the inspection is to ensure that her workload stays within manageable proportions. Such inspections are probably only necessary every 12 months and can be carried out, as the Law Society determines.