CITATION: Law Society of New South Wales v Hammond [2006] NSWADT 23 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the Law Society of New South Wales RESPONDENT Frank Douglas Hammond FILE NUMBER: 052027 HEARING DATES: 28/11/2005 SUBMISSIONS CLOSED: 11/28/2005 EXTEMPORE DECISION DATE: 11/28/2005 DATE OF DECISION: 01/25/2006 BEFORE: Clisdell RJ - Judicial Member; Greenwood J - Judicial Member; Mara A - Non Judicial Member CATCHWORDS: Professional Misconduct - fail to comply with s. 152 Notice - Professional Misconduct - fail to cooperate with investigation MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 APPLICANT L Pierotti, Solicitor REPRESENTATION: RESPONDENT No appearance ORDERS: 1) that no practising certificate be issued to the solicitor until he has complied with the section 152 notice dated 23 August 2004; 2) that the solicitor be publicly reprimanded; 3) that the solicitor pay a fine in the sum of $1000; 4) that the solicitor pay the informant Law Society's costs as agreed or assessed; 5) that the Law Society have leave to apply for certification of agreed costs by the Registrar of this Tribunal REASONS FOR DECISION - In respect of professional misconduct 1 CLISDELL: What we propose to do is give findings and make orders, Mr Pierotti. In matter number 052027 re Frank Douglas Hammond the Law Society has by information filed on 8 August 2005 sought findings that the Solicitor is guilty of professional misconduct on the following grounds: 1) The Solicitor failed without reasonable excuse to comply with notice issued against the legal practitioner pursuant to Section 152 of the Legal Profession Act 1987 dated 23 August 2004; 2) The Solicitor has failed to co-operate with the Law Society of New South Wales in its investigation of a complaint under Part X of the Legal Profession Act 1987. 2 In support of that information the Law Society relies on an Affidavit by Raymond John Collins sworn 28 July 2005 which is exhibit 2 in these proceedings. That Affidavit sets out in detail correspondence between the society and the solicitor from 5 May 2004 through to a letter from the society to Mr Hammond dated 9 June 2005. 3 Initially the Law Society sought a response to a complaint from the mother of a client of the solicitor whom the solicitor had represented in family law proceedings in the Family Court. The complaint was extensive in relation to the solicitor's conduct of a contested residence application on behalf of Terence Eedens. Despite the society seeking a detailed response to the complaint, the solicitor in effect some four and a half months after the initial letter of 5 May 2004 responded in a letter dated 17 September 2004 the first line, "I refer to the above and admit the complaint contained therein." In the third paragraph of that letter the solicitor says: 4 Whilst I admit to unsatisfactory professional conduct I do not believe that I am guilty of professional misconduct. The lateness in preparing of affidavits (as stated above), my inexperience in cross-examination and my entry into the profession late in life led to my unsatisfactory performance. 5 In a further letter from the solicitor dated 29 November, the solicitor in the second paragraph says: I believe that all matters have been addressed as I have admitted in a previous letter that all matters that were brought to my attention were not up to standard. 6 Notwithstanding those admissions, the solicitor did not respond to the notice dated 23 August which sought extensive particulars about his conduct of that case on behalf of the father in those proceedings. 7 Up to the date of this hearing the solicitor has still not satisfactorily responded to the notice and it is apparent from the correspondence which is attached to Mr Collins' affidavit that the solicitor does not appear to understand the significance of the notice or his obligations to comply with it. 8 In his submissions Mr Pierotti referred to the solicitor's failure to comply over a period of some fifteen months. The Tribunal is split on whether or not the solicitor has failed to comply for that period of time but there is no doubt on Mr Pierotti's alternative submission that the solicitor's failure to assist the society for a period of four and a half months must amount to professional misconduct. The Tribunal is therefore satisfied that in respect of both grounds of the complaint the solicitor is guilty of professional misconduct. 9 The solicitor has not appeared before the Tribunal today. As a matter of fairness, the Tribunal has attempted to contact the solicitor and ascertained that he does not intend to appear today. Likewise Mr Pierotti has been in touch with the solicitor who indicated in a conversation with Mr Pierotti when the proceedings were almost finalised that he had wished to apologise to the Tribunal for his non-appearance and had problems as a result of needing to look after children. 10 It was suggested that the Tribunal should either adjourn the proceedings to enable the solicitor to appear or attempt a telephone hook-up or alternatively make findings and give the solicitor an opportunity to put submissions on what orders should be made. 11 The Tribunal has determined that it should finalise these proceedings today. Given that the solicitor does not currently have a practising certificate, is apparently bankrupt and has severe financial and matrimonial problems, it is probably better for all concerned that this matter does not drag on. 12 Accordingly, the Tribunal makes the formal finding that the solicitor is guilty of professional misconduct as alleged in grounds 1 and 2 of the information filed 8 August 2005. The Tribunal makes the following orders: 1) that no practising certificate be issued to the solicitor until he has complied with the section 152 notice dated 23 August 2004; 2) that the solicitor be publicly reprimanded; 3) that the solicitor pay a fine in the sum of $1000; 4) that the solicitor pay the informant Law Society's costs as agreed or assessed; 5) that the Law Society have leave to apply for certification of agreed costs by the Registrar of this Tribunal. 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