Hegney v Law Society of New South Wales [2008] NSWADT 150

CITATION: Hegney v Law Society of New South Wales [2008] NSWADT 150

DIVISION: Legal Services Division

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

FILE NUMBER: 072019

HEARING DATES: 10 December 2007, 14 April 2008

SUBMISSIONS CLOSED: 24 April 2008

DATE OF DECISION: 23 May 2008

BEFORE: Molloy GB - Judicial Member; Riordan M - Judicial Member; Fitzgerald R - Non Judicial Member

CATCHWORDS: Review - approval to employ a clerk

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Legal Profession Act 2004

Briginshaw v. Briginshaw 60 CLR 366 Dawson v Law Society (No 590 of 1988) Dezarnaulds and Wawn v Law Society [1995] 5 LPDR 9 Dupal v The Law Society of New South Wales (unreported) La Fontaine v Law Society [2006] NSWADT 244 CASES CITED: Law Society Society of New South Wales v Kennedy [2006] NSWADT 132 Law Society v Bannister [1993] 4 LPDR 24 Law Society v Young (No.3) (LSD) [2001] NSWADTAP 38 Michael John Charles Caiger (1994) 1 LPDR 32 Miedzinski v Law Society [2007] NSWADT 268 Re: Clayton [1962] SR (NSW) 132 Weal v Bathurst City Council [2000] NSWCA 88

APPLICANT D Carroll, barrister REPRESENTATION: RESPONDENT L Pierotti, solicitor

1. Pursuant to Legal Profession Act 2004 Section 17, the Tribunal approves the employment of Rodney James Kennedy in the practice of the Applicant upon the following conditions: A. Mr Kennedy's employment to be limited to: i) office organisation and administration ii) assisting applicants and recipients of legal aid, including preparation of documents in support, preparation of legal aid applications and assisting applicants to complete application forms iii) obtaining preliminary instructions in Legal Aid, Victims Compensation Claims, Family Law matters, criminal matters and Children's Court Care proceedings; such to include obtaining preliminary instructions from clients, preparation of statements (but not including preparation of affidavits), providing assistance to the Applicant, employed solicitors of the Applicant, and briefed counsel in relation to factual matters iv) Attendance in Court on mentions only, and then only by leave of the Judicial Officer. B. Conditions of Employment: i) Mr Kennedy to be supervised by the Applicant at all times ii) Mr Kennedy is not to have access to or be signatory to any account conducted by the Applicant with any financial institution in the course of his practice iii) No document, letter or any other written material drafted by Mr Kennedy is to be dispatched from the Applicant's office without prior approval of the Applicant iv) No document or written communication of any nature is to leave the Applicant's practice under the name or signature of Mr Kennedy ORDERS: v) Mr Kennedy is not to receive any money from any client or potential client of the Applicant vi) Mr Kennedy is not to hold himself out or represent himself as being a qualified legal practitioner but rather is to inform those persons with whom he has contact in the course of his employment of the Applicant that he is in fact a clerk of the Applicant and is not authorised and cannot tender to any such person any legal advice vii) Mr Kennedy not to tender to any person any legal advice viii) Mr Kennedy not to have a business card or any other form of identification identifying him in any capacity with the Applicant's practice without prior approval of the Law Society of NSW ix) Mr Kennedy not to have any key or other means of entry to any office from which the Applicant carries on his legal practice; not to attend any such office without, at the same time, the attendance of the Applicant or of another solicitor in the Applicant's employ; not to have access to mail, e-mail transmissions or other forms of written communication received in the Applicant's office other than as provided to him by the Applicant x) The remuneration of Mr Kennedy to be by way of a stipulated salary or hourly rate, not to include or be calculated by reference to income received or success in any matter xi) All files opened by Mr Kennedy to be forwarded to, and reviewed by, the Applicant within seven (7) days of being opened. C. Additional Conditions: i) The Applicant to report on a three monthly basis commencing three calendar months from the date of this decision, to the Manager, Professional Standards Department of the Law Society of NSW, in writing, on Mr Kennedy's standard of work, behaviour and application to his duties ii) Prior to the commencement of any employment by the Applicant of Mr Kennedy, both the Applicant and Mr Kennedy to inform the Tribunal and the Law Society of NSW, each in writing, that they individually understand the conditions set out in this Determination and each individually give an undertaking that each will, as far as the conditions relate to them, abide by those conditions; in each case such to be in writing, signed by the Applicant and Mr Kennedy iii) A copy of these conditions to be sent to the clerks of all Courts which are attended by the Applicant or other persons within his employiv) These conditions to cease and have no further effect upon Mr Kennedy ceasing to be employed by the Applicant, provided that should Mr Kennedy seek to be employed by another solicitor these conditions may be used as a basis for an application by that other solicitor for employment of Mr Kennedy v) Upon Mr Kennedy ceasing to be employed by the Applicant the Applicant shall advise the Manager, Professional Standards Department of the Law Society of NSW in writing of such cessation and provide a final report in accordance with the terms of condition C(i) above. 2. No order as to costs.