CITATION: Law Society of New South Wales -v- Edmonds [1999] NSWADT 60 DIVISION: Legal Services APPLICANT: Council of the Law Society of New South Wales RESPONDENT: Anthony Allen Edmonds FILE NUMBER: 9739 HEARING DATES: 03/31/1999 SUBMISSIONS CLOSED: 04/09/1999 DATE OF DECISION: 10 August 1999 C A Needham - Deputy President BEFORE: G Molloy - Judicial Member K Elliott - Member PRIMARY LEGISLATION: Legal Profession Act 1987 APPLICATION: Order under s.48I prohibiting any legal practitioner from employing the respondent as a clerk - MATTER FOR DECISION: Principal Matter Applicant: D Barton, solicitor REPRESENTATION: Respondent: No appearance ORDERS: 1. Application dismissed 1 In this matter the Council of the Law Society applies for an order under s.48I of the Legal Profession Act 1987 . Subsection ( 2) provides: "On application by a Council, the Tribunal may make an order prohibiting (without approval under s.48K) any barrister or solicitor from employing or paying in connection with his or her practice, a specified person to whom this section applies if: (a) the Tribunal is satisfied that the person is not a fit and proper person to be employed or paid in connection with a barrister's or solicitor's practice; or (b) the Tribunal is satisfied that the person has been guilty of conduct which, if the person were a barrister or solicitor, would have constituted unsatisfactory professional conduct or professional misconduct within the meaning of Part 10." Subsection (3) provides that an order made under s.48A may be revoked by the Tribunal on application by a Council or by the person against whom the order was made. Subsection (1) provides: "This section applies to a person who: (a) is not a legal practitioner; and (b) is or was a clerk to a barrister or solicitor." 2 The order sought follows the wording of the section. The Law Society seeks an order "prohibiting any barrister or solicitor (without approval under s.48K of the Act) from employing or paying Anthony Allen Edmonds in connection with the barrister's or solicitor's practice." This order is framed in wide and unrestricted terms. It is not directed to any named practitioner or practitioners and it is this circumstance which has given the Tribunal concern. 3 Mr Edmonds made no appearance before the Tribunal. He had been served with the application and supporting affidavits in accordance with an order for substituted service made by the Tribunal on 8 December 1998. The Tribunal is satisfied by the affidavit of Mr Barton made 24 February 1999 that Mr Edmonds was duly served in accordance with that order. 4 The affidavit evidence before the Tribunal established that Mr Edmonds had, at the relevant times, been employed as the Credit Manager for Tress Cocks & Maddox, solicitors. In the course of his employment he received $9,000 in cash on account of that firm, which he fraudulently embezzled. After he was made redundant, his embezzlement was discovered. He was charged with the offence of embezzlement by a clerk or servant under s.157 of the Crimes Act 1900 (NSW), pleaded guilty to the offence, and sentenced to 9 months' periodic detention and ordered to pay $9,000 in compensation to Tress Cocks & Maddox. At the time of the hearing before the Tribunal, some $1,000 by way of compensation had been paid. There was an order permitting payment by instalments. 5 The offence to which Mr Edmonds pleaded guilty and was convicted is an indictable offence. It is referred to in Table 1, Part 1 of the Schedule to the Criminal Procedure Amendment (Indictable Offences) Act 1995. 6 The Tribunal is satisfied, as required by s.48I(2)(i) that Mr Edmonds is accordingly not a fit and proper person to be employed or paid in connection with a legal practice. The Tribunal is also satisfied, as required by subsection (1) that Mr Edmonds is a person to whom the section applies. Subsection (1)(a) is clearly satisfied and we are of the opinion that subsection (1)(b) is also satisfied. That subparagraph requires that it be established that Mr Edmonds was "a clerk to a barrister or solicitor". The term "clerk" is not defined by the Act. That expression was considered by the Legal Services Tribunal In the matter of Tina Louise Lake and Part 3A of the Legal Profession Act 1987, a decision given 9 December 1997. In that case the Tribunal said: "However, in s.48I the word "clerk" seems to us to be used in a restricted way. It is significant to look at the use of the word in its context: "Is or was a clerk to a barrister or solicitor". It is difficult to conceive, in the legal world, of a person being a barrister's clerk when that person is merely an office person or a secretary. That is not the general use of the word in legal parlance. And, after all, the word is used in the context of the regulation of the practice of law. We are fortified in the view that "clerk" in this context has a meaning different from that in other contexts and we refer to the observations of the High Court on the interpretation of words used in specific contexts in Collector of Customs v Agfa-Gevaert Ltd (1996) 61 ALJR 123 at 128-130. And see also the observations of Gibbs CJ in K & S Lake City Freighters Pty Limited v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, where His Honour observed that the "words of any statutory provision must be first read in the context provided by the statute as a whole" (quoted with approval in Darling Casino Ltd v NSW Casino Control Authority (1997) 71 ALJR 540 at 548." The Tribunal in that case did not find it necessary to decide whether or not the person complained of was a clerk within the meaning of s.48I, since it was of the view that even if that person were a clerk, a prohibition should not in the discretion of the Tribunal be made. In that case the person complained of had also applied for the approval of the Tribunal under s.48K and the Tribunal was disposed to grant approval. This Tribunal agrees with the opinion of the Legal Services Tribunal in Lake that the term "clerk" in s.48I is a more restrictive expression than "associate" as that is defined in s.48K(7) and is of the opinion that "clerk" is not synonymous with "employee" of a solicitor or barrister. 7 Mr Edmonds, of course, was more than an office person or a secretary. He was the Credit Manager for a firm of solicitors, dealing with financial records and accounts. As such he clearly falls within the Macquarie Dictionary definition of "clerk" which includes: "One employed in an office, shop, etc., to keep records or accounts, attend to correspondence, etc." Another way of interpreting "clerk" as used in s.48I is to consider the word as used in contradistinction to "servant", clerk being intended to mean an employee who in the ordinary way would not be thought of as one engaged in manual labour. On either approach, Mr Edmonds falls within the meaning of s.48I and we consider that the Tribunal does have power to make an order under that section, if satisfied in its discretion that an order ought to be made. 8 We are not persuaded that we should make the order sought. The Council has put forward only one reason for making the order. It submits that the order should be granted so that it may be entered in the Society's Register of Former Clerks and Associates, which is apparently a Register recording the names of persons who have been the subject of orders under ss.48I or 48K of the Act. That Register, we are told, is available at the Law Society for inspection so that legal practitioners may be informed of the names of such persons, should they seek employment in a legal practice. No register is maintained for persons convicted of indictable offences generally, however, the Tribunal has not been given any reason why it would not be possible to do so, at least in relation to persons formally employed as clerks or associates in a legal practice. In effect, the same names might appear in that register as currently appear in the register of orders made in relation to such persons. 9 The Council also submits that the publication of an order, once made, in the Legal Profession Disciplinary Reports of the Law Society, has the effect of notifying solicitors throughout the State of the conviction of Mr Edmonds and to warn them against employing him in their practices, without prior approval from the Tribunal. We are not persuaded by this submission either. Certainly, a legal practitioner reading a report of the order made, would become aware of Mr Edmonds' name and for so long as that name remained in his or her memory, would no doubt benefit from that notice. That benefit would disappear with the passage of time, we would think. 10 The Tribunal's concern is that to make an order in the terms sought would prohibit any barrister or solicitor in this State from employing Mr Edmonds in connection with his or her practice, irrespective of whether the practitioner had actual notice of his conviction at the time that he had applied for employment, or whether the practitioner had in fact read and recalled the making of an order prohibiting his employment by reading the Disciplinary Reports or reading this Tribunal's decision in its published decisions on the Internet. Further, we see a practical difficulty in that an order which is not directed to any named legal practitioner or practitioners cannot be served upon those who are affected by the order. A further concern arises from the terms of the order which would not only prohibit a legal practitioner from employing Mr Edmonds, but would prohibit him from "paying" him in connection with his or her practice. If it happened that Mr Edmonds had been employed, before the date of the Tribunal's order and in ignorance of his prior conviction, there would be an existing employment contract on foot which would require that his salary be paid and we are not clear of the legislative intention in prohibiting payment of his salary in possible breach of contract. 11 This Tribunal is of the opinion that there are sufficient other deterrents contained in the Act which will achieve the purpose sought to be achieved by the making of such an order. 12 Section 48K provides as follows: "(1) It is professional misconduct if a barrister or solicitor has an associate whom the barrister or solicitor knows to be: (a) a disqualified person; or (b) a person who has been convicted of an indictable offence and does not hold a current practising certificate. (2) Subsection (1) does not apply to an associate approved by: (a) in the case of a disqualified person who is an associate of a barrister - the Bar Council; or (b) in the case of a disqualified person who is an associate of a solicitor - the Law Society Council; (c) in the case of a person who has been convicted of an indictable offence - the Tribunal; or (d) in any case - an Appeal Panel of the Tribunal on an appeal under subsection (3)." Section 48K(5) provides: "A disqualified person, or a person convicted of an indictable offence, must not seek to become an associate of a barrister or solicitor unless the person first informs the barrister or solicitor of the disqualification or conviction. Maximum Penalty: 10 penalty units." 13 "Associate" of a barrister or solicitor, as used in s.48K(1), is defined in subsection (7) to include "a person who is employed or paid in connection with the barrister's or solicitor's practice". That person apparently may be a legal practitioner or not. It seems to us clear that Mr Edmonds would be an associate within that definition and accordingly, it would constitute professional misconduct for a barrister or solicitor to employ him in his or her practice knowing that he had been convicted of an indictable offence. Similarly, s.48K(5) prohibits Mr Edmonds or any other person convicted of an indictable offence, from seeking employment with a barrister or solicitor without first informing the legal practitioner of the disqualification or conviction. Failure to do so would attract the specified penalty. 14 These prohibitions and requirements apply without the need for any order of the Tribunal and, we think, will achieve the desired effect provided that the Law Society ensures that it is in a position to provide information to legal practitioners on enquiry by them concerning persons who have sought employment with them. The Society's current Register, to which we have referred, is restricted, as we understand it, to persons who have been formerly employed in legal practices and convicted of offences or who are considered for other reasons to be not fit and proper persons to be employed in connection with a legal practice or a person who has committed conduct which would have constituted professional misconduct or unsatisfactory professional conduct had that person been a barrister or solicitor. These are matters about which the Law Society, in any event, forms an opinion and we are not satisfied that any utility is served by the making of an order by the Tribunal. The position would be otherwise if the order sought was directed to a particular legal practitioner or group of legal practitioners. 15 We make the following order: Application dismissed. 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