Law Society of New South Wales -v- Cunningham [2003] NSWADT 138

CITATION: Law Society of New South Wales -v- Cunningham [2003] NSWADT 138 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the Law Society of New South Wales RESPONDENT John Lesllie Cunningham FILE NUMBER: 022023 HEARING DATES: 27/03/2003 SUBMISSIONS CLOSED: 03/27/2003 DATE OF DECISION: 06/10/2003

BEFORE: Clisdell RJ - Judicial Member; Barnes M - Judicial Member; Kirkby E - Member APPLICATION: Professional Misconduct - fail to comply with s. 152 Notice MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 King [2001] NSWADT 147 Nazarian [2002] NSWADT 229 CASES CITED: Green [2001] NSWADT 142 Byrne [2000] NSWADT 70 Knudsen [2000] NSWADT 62 Neimanis [2000] NSWADT 65 APPLICANT REPRESENTATION: L Pierotti, solicitor RESPONDENT RS Cuddy, solicitor ORDERS: Orders made on 27 March 2003.; 1. The Legal Practitioner be publicly reprimanded.; 2. That the Legal Practitioner pay a fine of $1,000.00 within three months.; 3. That the Solicitor pay the costs of the Council of the Law Society agreed at $1,150.00.

1 The Council of the Law Society of New South Wales filed an Information in the Tribunal alleging that John Leslie Cunningham, a Legal Practitioner within the meaning of Section 128 of the Act, whilst practising as a Solicitor was guilty of professional misconduct on the grounds that: The Legal Practitioner, having been duly served with a Notice issued pursuant to Section 152 of the Legal Profession Act has, without reasonable excuse, failed to comply with the requirements of that Notice. 2 The particulars of the Legal Practitioner's professional misconduct were set out in the Information as follows: (i) By letter dated 17 May 2002 the Legal Services Commissioner requested that the Law Society of New South Wales ("the Society") investigate a matter under Part 10 of the Act ("the investigation") (ii) On 1 August 2002, in the course of the investigation, the Professional Conduct Committee of the Society ("the Committee") resolved as follows: " RESOLVED that pursuant to Section 152 of the Legal Profession Act, 1987 the legal practitioner is required: (a) To provide, verified by statutory declaration, the information set out in Schedule 1 hereto to the Manager of the Professional Standards Department, Law Society of New South Wales by the 16th day of August 2002; and (b) To produce, by 10.00am on the 16th day of August 2002, the documents specified in Schedule 2 hereto to the Manager of the Professional Standards Department at the office of the Department, 7th Floor, Law Society Building, 170 Phillip Street, Sydney." 3 Contained in the letter were a number of particulars and the requirement to produce trust and general ledger in the matter of Mills, a file in the matter of Mills, and correspondence to and from the Solicitor regarding outstanding fees owing to Barrister, Mr Knox. 4 The practitioner did not comply with the terms of the Notice until shortly before this hearing. 5 The Solicitor in his reply admitted the breach of Section 152 but did not concede certain facts alleged including: (a) That he told the Barrister that he personally held money in trust, or (b) That he received the proceeds of sale of the client's property and was put in funds by the client to pay Counsel and alleged there was a dispute about the claim for costs made by the Barrister who was not able to attend the hearing through illness. 6 The Solicitor conceded that he had failed to deal with the Notice and said that in recent years he had adopted the "ostrich approach" to problems. As a busy sole practitioner he simply did not deal with this and other problems but recently had taken steps to address what he described as his "inertia" in the following way: (a) By consulting Peter Anderson a Consultant Psychiatrist; (b) By resolving to sell his family home and acquire a less high maintenance home for his wife and himself; (c) By adjusting his work arrangements including implementing a new computer based time and recording system and employing a Solicitor from 31 March 2003. 7 Mr Cunningham gave evidence before the Tribunal in addition to filing an Affidavit and two character Affidavits from a Barrister Paul Raymond Glissan and Retired Broadcaster, Roger Climpson. Both referees spoke highly of the Solicitor and were aware of the allegations against him. It was apparent from the testimonials filed in these proceedings that Mr Cunningham is a person of good character and highly regarded in the community. He is also a person who gives a good deal of time to community bodies including the Christian Broadcasting Association Incorporated. 8 The basis of the complaint that Mr Cunningham failed to deal with was that a client in a Family Law matter, Ralph Mills, refused to pay the account of Mr Brian Knox, Barrister, after Mr Knox had not been able to conduct a hearing on Mr Mills behalf due to ill health. The client had to obtain the services of another Barrister who had been paid. In addition the client did not pay the balance of Mr Cunningham's account. It was alleged by Counsel, Mr Knox, that Mr Cunningham had received monies from the client and failed to apply them in payment of his outstanding fees. That allegation is denied by Mr Cunningham and there is no evidence before the Tribunal to support that allegation. In any event Mr Cunningham paid Mr Knox his outstanding fees of $2,244.00 on 24 March 2003 shortly before the hearing. 9 It would appear from Mr Cunningham's evidence and his Affidavit that he had an explanation for the allegations against him that could have seen this matter resolved without ever having to come to the Tribunal. It was Mr Cunningham's failure to deal with the problem and reply to the Law Society that left the Applicant Council with no alternative but to take these proceedings. 10 Although Mr Cunningham has been guilty of inordinate delay in complying with the Notice, it was conceded by the Applicant that he had now complied with the requirements of the Section 152 Notice, albeit after failing to honour undertakings to do so at earlier dates. 11 The Tribunal is satisfied that the practitioner is guilty of professional misconduct and the practitioner concedes as much in his reply. 12 On the question of penalty the Tribunal received concise and helpful submissions both from Mr Pierotti and Mr Cuddy. We were referred to a number of Tribunal determinations in matters of other practitioners failing to comply with Section 152 Notices. In virtually all of those cases fines have been imposed together with a public reprimand. The fines vary from $1,000.00 to a high of $4,500.00 in the matter of King [2001] NSWADT 147, in the cases that the Tribunal was referred to in submissions in this matter. 13 Mr Cuddy on behalf of the practitioner conceded that a public reprimand and fine was appropriate but submitted that the fine should be of a modest nature bearing in mind the circumstances of this particular case and the fact that there had now been compliance. Mr Pierotti's submission was that the fine should be of a more substantial nature bearing in mind that compliance had occurred only a matter of days before this hearing. (a) It is perhaps useful to look at the decisions of the Tribunal in respect of other practitioners. In the matter of Nazarian [2002] NSWADT 229 the practitioner was fined $2,000.00 and publicly reprimanded. Further the practitioner's Practising Certificate was not to be renewed until he had complied with the requirements of the Section 152 Notice. In that case Mr Nazarian was initially asked for a response to a complaint in February 2001. When no response was forthcoming by August of that year the practitioner was served with a Section 152 Notice which had still not been complied with by the hearing in the Tribunal in September and October 2002. (b) In the matter of Green [2001] NSWADT 142 the practitioner was fined $1,000.00 and again was ordered to comply with the Notice before the issue of a Practising Certificate. There were also other orders that he be subject to inspection at three monthly intervals and attend or complete the Best Practice Management Course. They really related to issues which were unrelated to the failure to comply with the Section 152 Notice. Mr Green had disputed the validity of the Notice but the Tribunal found that the Notice had been properly issued. Again the Notice had not been complied with by the time of the hearing. (c) In the matter of King [2001] NSWADT 147 the practitioner was fined $4,500.00 and publicly reprimanded. In the case of King there were two Notices that Mr King had failed to comply with and accordingly his behaviour was more serious than that of Mr Cunningham in this case. (d) In the matter of Byrne [2000] NSWADT 70 the Solicitor was fined $3,000.00 and publicly reprimanded. The practitioner was also ordered to undergo three monthly inspections and to pay the fine within twelve months otherwise his Practising Certificate would be cancelled. Again, in the case of Byrne there were two notices that the Solicitor had failed to comply with again placing it in a more serious category. Further, Mr Byrne had been before the Tribunal in 1995 and had been found guilty of professional misconduct as a result of misleading two clients in relation to Family Law matters. As such he could not rely on the good record that Mr Cunningham has and accordingly the Tribunal finds that in the matter of Byrne the breach was more serious. (e) In the matter of Knudsen [2000] NSWADT 62 the Solicitor was publicly reprimanded and fined $1,000.00. This was a single complaint and a failure to comply with a single Notice by a Solicitor of previous good character. In a not dissimilar factual situation to that of Mr Cunningham, Mr Knudsen had also simply put to one side the Notice and in effect adopted what Mr Cunningham has conceded was "the ostrich approach". (f) The Tribunal was not referred to but is aware of the matter of Neimanis [2000] NSWADT 65. In that matter the Respondent was publicly reprimanded and fined $2,000.00 and ordered to comply with the Notices otherwise his Practising Certificate would be cancelled. The circumstances in Neimanis again involved two Section 152 Notices placing them in a category more serious than Mr Cunningham. Further, he had not responded to the Notices by the time the matter came for hearing before the Tribunal. 14 The Tribunal has taken into account and looked at carefully each of the decisions to which it was referred by Mr Pierotti and Mr Cuddy. We are of the view that Mr Cunningham falls at the lower end of the conduct for which other practitioners have been publicly reprimanded and fined. It is the Tribunal's view that the behaviour of Mr Cunningham is on a similar level with that of Mr Knudsen. Bearing in mind that in the matter of Green the practitioner was fined $1,000.00 in circumstances which certainly were more aggravated than those of Mr Cunningham, it is the view of the Tribunal that a fine of $1,000.00 is appropriate in this case. 15 Mr Cunningham conceded in evidence, although not in his Affidavit, that there had been a previous complaint against him but that matter had been dismissed without any finding or penalty in 1999. 16 The Tribunal therefore orders: (1) That the legal practitioner be publicly reprimanded. (2) That the legal practitioner be fined the sum of $1,000.00 payable within three months of the date of these orders. (3) That the legal practitioner pay the costs of the Council of the Law Society in the sum of $1,150.00 as agreed.