New South Wales Bar Association v Smith [2003] NSWADT 109

CITATION: New South Wales Bar Association v Smith [2003] NSWADT 109 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the New South Wales Bar Association RESPONDENT Mark Duncan Smith FILE NUMBER: 022024 HEARING DATES: 03/04/2003 SUBMISSIONS CLOSED: 04/03/2003 DATE OF DECISION: 05/19/2003

BEFORE: Nader J QC - ADCJ (Deputy President); Officer D QC - Judicial Member; Quayle C - Member APPLICATION: Professional Misconduct - fail to return documents - Unsatisfactory Professional Conduct - fail to return documents MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 Legal Profession Act 1987 CASES CITED: APPLICANT REPRESENTATION: C Adamson, barrister RESPONDENT A Carney, solicitor ORDERS: 1 Dispense with compliance with Rule 14(3) of the Tribunal's Rule 1998; 2 The Respondent be publicly reprimanded; 3 The Respondent shall pay to the client, Graham Harrison, compensation in the sum of $1,000 within 28 days from the date of these orders; 4 The Respondent to pay the costs of the Council of the New South Wales Bar Association as agreed or assessed.

Background 1 Mark Duncan Smith ("the Barrister") was admitted as a solicitor in March 1976 and practised (except for an 18 month period of full-time lecturing in law at Charles Sturt University) until February 2000 when he was admitted to practise as a Barrister. He has practised as such ever since. 2 By an information dated 19 November 2002 the Council of the New South Wales Bar Association ("the Bar") referred to the Tribunal a complaint by one Graham Harrison against the Barrister, it having been satisfied of the matters required by s.155(2) of the Legal Profession Act 1987 ("the Act"). 3 The complaint was that between 22 January 2002 and 19 July 2002 the Barrister failed to return documents belonging to Mr Harrison despite requests that he do so. The requests were particularised and could be summarised as follows: (a) On 29 January 2002 the Barrister personally undertook to the client to return the documents. (b) The Barrister failed to return telephone calls made to him by his instructing solicitor during February 2002 requesting the return of the documents. (c) The Barrister failed to return telephone calls made to him by Ms Cowley on behalf of the client in February 2002 likewise requesting the return. (d) In February 2002 the Barrister failed to return three telephone calls made to him by the Legal Aid office, Wagga Wagga. (e) The Barrister failed to return telephone calls made to him and messages left by the Deputy Professional Affairs Director of the Bar on eight occasions in April. (f) The Barrister on 9 April 2002 informed the Deputy Director, Professional Conduct that he would return the documents. (g) In early May 2002 the Barrister advised Mr Street SC (acting on behalf of the Bar) that he would return the documents. (h) The Barrister failed to respond to a letter of 6 May from the Deputy Director requesting the return of the documents. (i) The Barrister failed to respond to a letter from the Deputy Director of Professional Affairs of 8 July 2002 to the same effect. 4 The second ground of the complaint was that the Barrister had, as referred to above, failed to return telephone calls and answer letters sent to him requesting the return of the documents. The Hearing 5 When the matter came on for hearing the Barrister, through Mr Carney, admitted the facts as alleged in the information. He advised that he wished to plead guilty to the charges. 6 The Barrister tendered his curriculum vitae and a statement by himself. He gave evidence and was cross-examined. The Barrister also tendered references from Judge Coorey of the District Court, Judge Norrish QC of the District Court and Selwyn Houseman, the Principal Solicitor of the Central Southern Aboriginal Corporation. 7 The documents in question were returned to the Bar by the Barrister under a letter dated July but received by the Bar on 2 October 2002. The Barrister accepts that the letter was posted after the date it bore and he accepts that the documents were received by the Bar on or about 2 October 2002. 8 Some of the documents in question had always been in the possession of the Barrister. Some of the documents however had been tendered by the Barrister in the course of the criminal proceedings in Wagga Wagga when he was acting for Mr Harrison. Those documents were not returned to the Barrister until approximately mid-February 2002. From that time until they were returned to the Bar Association the Barrister acknowledges that he had possession of them. 9 It is not necessary for present purposes to detail the evidence given by the Barrister relating to his professional and personal position over a period covering the period in question. It is sufficient to say that he and his wife were in the process of selling their Wagga Wagga home. The Barrister's wife and their children were living in Faulconbridge with the Barrister's wife's parents. The Barrister was working sometimes out of Wagga Wagga, sometimes out of his chambers in Macquarie Street and at times he was residing either at a unit in Redfern or with his family in the Blue Mountains or in Wagga Wagga. The Barrister's children were young and the Tribunal accepts that from a personal point of view the situation was extremely stressful for the Barrister, his wife and family. The Tribunal also accepts that the Barrister was working very hard during the period accepting all Legal Aid work that he was offered in Wagga Wagga, including weekend and holiday bail court work. The Tribunal also accepts that he was "just not coping with the situation". 10 The Barrister has apologised to Mr Harrison and to the Bar Association for his behaviour and for his failure to properly forward to him or the Association his material or to respond properly to the Association's communications to him. 11 The Barrister has said, and the Tribunal accepts that at the time that he gave the undertakings which he did to the client, the Deputy Director of Professional Conduct and Mr Street SC he believed that he knew where the documents were located and that he did not on any such occasion intentionally give an undertaking which he did not believe he could comply with or which he did not intend to comply with. The Barrister has also said and the Tribunal accepts that the Barrister started looking for the documents and some of the documents and that there was no intentional failure to comply with the undertakings but that the huge volume of his work and the personal difficulties just overtook him. Some of the documents were found in a wrong file - one that had no relationship to Mr Harrison or his matter. The Tribunal would wish to make it clear that had its view of the evidence in respect of the undertakings been otherwise, then the consequences may well have been more grave. 12 The three tendered references are of the highest order. Apart from one relatively minor complaint which is still outstanding, there is no suggestion of any blemish on the Barrister's professional or personal character or reputation or competence. The evidence is to the contrary. 13 The Barrister has said and the Tribunal accepts that he believes the unsatisfactory circumstances which led to this complaint will not occur again in that the family home at Wagga Wagga was sold in December 2002 and he is now living with his family in the Blue Mountains. He is working out of Sydney during the week and while he does some circuit work, he does not have the same stresses as were previously involved during the time in question. Conclusions 14 The Barrister submitted that he ought to be found guilty of unsatisfactory professional conduct and that he ought to be publicly reprimanded. 15 The Bar expressly did not contend that any other result ought to follow. 16 In the very particular circumstances of this case as set out above, the Tribunal is of the opinion that the position adopted by the Bar and the Barrister is correct, namely that the conduct is unsatisfactory professional conduct. Notwithstanding the position of the Bar and the Barrister, the Tribunal raised with the parties the prospect that the conduct may be professional misconduct. Having heard submissions on that matter the Tribunal finds that the Barrister has been guilty of unsatisfactory professional conduct. 17 In light of the particular facts and the Barrister's otherwise unblemished record, the Tribunal is of the opinion that the appropriate order is that he be publicly reprimanded. The Tribunal so finds and so orders. 18 The client Mr Harrison seeks compensation. The power of the Tribunal to order compensation is governed by s.171D of the Act. That power can be exercised where the Tribunal is satisfied that "the complainant has suffered loss because of the conduct concerned". This Tribunal therefore must determine on the material before it what loss, if any, Mr Harrison has suffered because of the conduct particularised in the complaint, namely the Barrister's failure to return the documents on request and the Barrister's failure to respond to those requests. 19 Mr Harrison in his letter dated 19 March 2003 seeks compensation in a sum of between $7,000 and $10,000. The claim includes some legal visits, telephone expenses, loss of receipts and some documentation and the alleged loss of a Schaffer pen (which the Barrister claims he has never seen, let alone had in his possession). 20 The Tribunal is satisfied that Mr Harrison has undoubtedly suffered some loss and is entitled to an order for compensation for the loss resulting from the delay in the return of his documents. The Barrister has offered compensation in the sum of $1,000. The Tribunal has read the detail of Mr Harrison's claim and doing the best it can, is satisfied that the sum of $1,000 is an appropriate sum and it will so order. 21 The Tribunal also makes an order dispensing with the Bar's compliance with Rule 14(3) of the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 and it will also order that the Barrister pay the costs of the Bar of these proceedings as agreed or assessed.