New South Wales Bar Association v Somosi [2002] NSWADT 279

CITATION: New South Wales Bar Association v Somosi [2002] NSWADT 279 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the New South Wales Bar Association RESPONDENT Lawrence Robert Somosi FILE NUMBER: 022006 & 022007 HEARING DATES: 202/09/02-03/09/02 SUBMISSIONS CLOSED: 09/20/2002 DATE OF DECISION: 12/30/2002

BEFORE: Vass CB -Judicial Member; Coombs J QC - Judicial Member; Klika D - Member APPLICATION: Professional Misconduct - fail to appear at hearing - Professional Misconduct - fail to honour undertaking MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 CASES CITED: NSW Bar Association v Cummins (2001) 52 NSWLR 279 NSW Bar Association v Somosi (2001) NSWCA 285 APPLICANT REPRESENTATION: D Higgs, counsel RESPONDENT C Waterstreet, barrister ORDERS: 1. In relation to each of the informations Mr Somosi is publicly reprimanded.; 2. Mr Somosi is to pay the costs of the NSW Bar Association of these proceedings as agreed or assessed.

1 The Tribunal has before it two Informations filed on behalf of the Council of the New South Wales Bar Association (the informant) against Mr Robert Lawrence Somosi, a former legal practitioner who at all relevant times was the holder of a practising certificate as a barrister. 2 Information issued in matter number 022006 arose from a complaint made by His Honour Judge Kirkham QC of the District Court of NSW, (the Judge Kirkham complaint) and the information issued in matter 022007 arose from a complaint made by the former wife of Mr Somosi, Patrice Shelley (the Shelley complaint). Judge Kirkham Complaint 3 The Judge Kirkham complaint relates to a failure by Mr Somosi to appear before His Honour on the 6th of April 1998 at a sentence hearing. Mr Somosi's client had been found guilty by a jury of a serious narcotics offence and he was facing the peril of a sentence of life imprisonment. 4 In essence the complaint by the informant is that Mr Somosi deliberately breached his retainer to appear on the sentencing hearing or alternatively did so with reckless indifference. 5 It was submitted by counsel for the informant and we agree that in determining whether there has been professional misconduct and/or unsatisfactory professional conduct committed by Mr Somosi the Tribunal has to determine whether it was reasonable for Mr Somosi to believe that his retainer had been terminated. Central to that issue is the conversation between Mr Hill who was Mr Somosi's instructing solicitor and Mr Somosi two or three days after the trial. 6 The conversation as alleged by Mr Hill is set out in paragraph 10 of his letter of the 15th of June 1998 to the Bar Association (exhibit JM41) to the affidavit of John Scott Maclennan sworn on the 25th of February 2002 (the Maclennan affidavit). In that paragraph in answer to the Bar Association's request as to whether or not there were any additional comments he would like to make in respect of the matter said: "10. I feel that this matter may have arisen out of a mis-communication between my self and Mr Somosi. I now recall that about 2 or 3 days after the trial I saw Mr Somosi and Mr Piallis outside the Downing Centre where words to the following general effect were said: S: Hi Ross, how is Chung? H: He is not happy with the way things turned out. S: I am not surprised as he did not give evidence. H: I think he wants another barrister to finish his matter. S: So be it. At the time I didn't think much of Mr Chung's wish to change counsel and the issue was not raised again in my subsequent conferences with Mr Chung. I did not think in retrospect that Mr Somosi took my comments seriously. At the result of my avoidance of Mr Somosi the issue was never clarified with him, hence his comment to me on 5.4.98." 7 In a letter from the Bar Association written to Mr Somosi on the 18th of May 1998 (exhibit JM6 to the Maclennan affidavit) the Bar Association asks questions in relation to a telephone conversation between Mr Hill and Mr Somosi at 8.30pm on the 5th of April 1998 and also asks whether he had a telephone conversation with Mr Hill on the morning of the 6th of April 1998. Galloways solicitors responded on behalf of Mr Somosi in a letter to the Bar Association dated the 5th of August 1998 (exhibit JM 11 to the Maclennan affidavit). The evidence provided by that letter is that on the afternoon of the 5th of April 1998 Mr Somosi attended a social function at the home of Mr Hill's principal John Bettens. During that function a conversation took place the effect of which was that Mr Somosi complained to Mr Bettens that he had been attempting to contact Mr Hill but Mr Hill did not return his calls. Importantly he said to Mr Bettens "given what was said during and after the trial, I don't believe I'm instructed but I haven't had confirmation of this from Ross. Do you know anything about it?" Mr Bettens replied in the negative and Mr Somosi said words to the effect "I'll try again tonight when I get home." In paragraphs 4 and 5 of the same letter it states that Mr Somosi telephone Mr Hill at about 8.30pm on the same evening when the following conversation took place "Hello Ross. This is a surprise talking to you on the telephone." Mr Hill said words to the effect "I just didn't answer your calls because I just didn't know what to say." My client said words to the effect "What's going on tomorrow. Who's in the matter?" Mr Hill said words to the effect "Well, I suppose you are." My client said words to the effect "I thought I was out of the matter. What's happened?" Mr Hill said words to the effect "I got a psychologist report. I don't know what else can be said for him because he didn't give evidence at the trial." Mr client said words to the effect "There's not much that can be said, seeing as though he didn't give evidence. You know a lot more about the matter now than I do. Why, why don't you run it?" He said words to the effect "Well I will." My client then said words to the effect "I've received no statements, no reports or any instructions since the verdict was handed down. Why don't you run the matter to the point of having an adjournment at the end of the Crown case in order that I might be properly instructed if the client does wish to retain me. Can you find out if he wishes to retain me? The last thing I knew was your advice that the client did not wish to retain me and that he wanted another barrister. Call me tomorrow if there are any problems or if you need any help in the presentation of the plea. I'm planning to go to the north coast tomorrow afternoon." 8 The general thrust of Mr Somosi's defence appears to be that his retainer had been unequivocally terminated and that termination of the retainer occurred at the time of the conversation referred to by Mr Hill in his letter of the 15th of June 1998 (exhibit JM 41 to the MacLennan affidavit). Mr Somosi however did not recount that conversation which has been referred to as the "so be it" conversation in response to the request by the Bar Association for his comments in relation to the complaint. 9 Mr Somosi in his affidavit sworn on the 30th of May 2002 in paragraph 4 asserts a reliance upon the letter from Mr Hill. During the course of his evidence he said he swore to the veracity and accuracy of the "so be it" conversation as recounted by Mr Hill. No other version of this conversation was ever recounted by him during the course of his sworn testimony. 10 Mr Somosi in our view made the concession when giving evidence that the conversation as recounted by Mr Hill would have been insufficient to terminate his retainer. During his cross examination Mr Somosi said that he thought something "more positive" and unambiguous was said at the time of Mr Chung not wanting him to appear on the 6th of April. Also during cross examination Mr Somosi accepted the proposition that if in fact these words were uttered there was "a problem for him in asserting that his retainer had been unambiguously terminated as a result of this conversation." Mr Somosi also gave evidence that a tense relationship had arisen between himself and Mr Chung during the course of the trial culminating in Mr Chung's refusal to give evidence against Mr Somosi's advice and he took that fact along with the subsequent lack of communication by Mr Hill to form a view that his retainer had been terminated. 11 The Tribunal rejects the evidence and the suggestion that anything of the type alleged by Mr Somosi as having occurred during the course of the trial and the lack of communication by Mr Hill about the sentencing matter could transform the "so be it" conversation from being one which raised doubts about whether Mr Somosi's retainer would continue to an unambiguous termination of his retainer. 12 Mr Somosi's evidence as to the conversation he had with Mr Hill on the morning of the 6th of April 1998 appears in paragraph 8 of the letter from Galloways to the NSW Bar Association (exhibit JM 11 to the Maclennan affidavit). There it is said that Mr Somosi had a telephone conversation with Mr Hill between 11am and 12pm and at that time Mr Somosi was at the Cosmopolitan Cafe at Double Bay. Mr Hill informed him that the judge wanted to know where he was and Mr Hill asked him to turn up and run the plea. Mr Somosi stated that he was not properly instructed and didn't have any information and there was little that he could say. He asked general questions about what documents had been tendered by the Crown and then indicated to Mr Hill that he should seek an adjournment so that he could be briefed with the material. He left Mr Hill to go and seek the adjournment and asked Mr Hill to call him back and he says that Mr Hill did not call him back. 13 There is other evidence that would clearly indicate that Mr Somosi was uncertain as to the termination of his retainer. In the letter from Galloways dated the 5th of August 1998 (exhibit JM11 to the MacLennan affidavit) which was the response by Mr Somosi to the letter from the Bar Association dated the 18th of May 1998 it is stated that Mr Somosi said to Mr Bettens "... I had telephoned (Mr Hill) many times. He just doesn't return my calls. Given what was said during and after the trial, I don't believe I'm instructed but I haven't had confirmation of this from Ross ..." The Tribunal can only assume from those words that Mr Somosi was in doubt about the termination of his retainer at the time. Further confirmation of the doubt in Mr Somosi's mind is found in the same letter from Galloways where Mr Somosi allegedly asked Mr Hill "What's going on tomorrow. Who's in the matter?" 14 There is no evidence that Mr Somosi returned the brief to Mr Hill and there is no evidence that Mr Somosi wrote any letter to Mr Hill in which he sought to terminate the retainer. The Tribunal finds that Mr Somosi was briefed to appear at the sentence hearing before His Honour Judge Kirkham on the 6th of April 1998 and further finds that his retainer to appear on that day had not been terminated. 15 Counsel for the Bar Association made the following submissions in relation to the conversation which took place on the evening of the 5th of April 1998 and also the conversations that took place between Mr Somosi and Mr Hill on the morning of the 6th of April 1998. "What is clear from these conversations together with the conversations that followed, was that Mr Somosi did not want to appear on the sentencing hearing on the 6th of April 1998. In Mr Somosi's account of his conversation with Mr Hill on the night of the 5th of April, he asserted that there wasn't much that could be said for Mr Chung on sentencing because of his failure to give evidence at the trial. He also wanted Mr Hill to appear on that day. There can be little if any doubt that this was said by Mr Somosi. It is also consistent with Mr Betten's recall of his conversation with Mr Somosi on 5/04/98 (JM 30). At all times it is obvious that Mr Somosi was reluctant to appear on the 6th of April 1998. If there be any doubt about it, such doubt is dispelled by reference to the answers given by Mr Somosi during cross-examination when he said that first, it was uncommon on the first day of sentencing hearing for the Crown to present all of the evidence and for their to be an adjournment of the sentencing hearing; and second, he indicated that there may have been a problem if he appeared rather than Mr Somosi in the sense that the trial judge may have insisted upon the sentencing hearing proceeding if Mr Somosi was present, whereas if Mr Hill appeared there was a greater likelihood of an adjournment being granted. Obviously, there is a tension between these two explanations. Obviously, the trial judge wanted the matter to go on if at all possible. In our submission the better view is that Mr Somosi was aware of the risk of the trial judge insisting upon the sentencing hearing proceeding. Even though he could have appeared that morning he chose not to. He also knew that Mr Hill was not as qualified and as competent as he was to handle the matter. Despite his protestations it was clear from Mr Hill that he was of the view that Mr Somosi had been retained for the sentencing hearing. Mr Hill could have been forced on. By reference to Mr Somosi's own answers in cross-examination that would have been an undesirable outcome. Undoubtedly Mr Somosi was better qualified to both seek the adjournment and to run the plea if necessary. He was able to attend. He should have done so. Further, it is not to the point that he said to Mr Hill that he could call him tomorrow. 'If there are any problems or if you need any help in the presentation of the plea. I am planning to go to the north coast tomorrow afternoon' (para 5 Exhibit JM11). The offer was disingenuous to say the least. Mr Somosi was not ready to come to court on the morning of the 6th of April 1998. Rather he went and had a cup of coffee with a friend at the Cosmopolitan Cafe at Double Bay. He did so in circumstances where he knew that there was a chance of Mr Hill being forced on. By going to Double Bay he ensured that he was unavailable to attend that morning. Further, when contacted later on that morning by Mr Hill he still refused 'turn up and run the plea' as requested by Mr Hill (paragraph 8 of Exhibit JM11). Further, he did not tell Mr Hill or the judge as to where he was despite Mr Hill's communication with him that 'The judge wants to know where you are?'. Again, it's not to the point (nor is it satisfactory) for this conversation (following Mr Somosi's refusal to attend) to end up with Mr Somosi saying '... so let me know what's going on. If I have to come to court and make the application myself I will. Please call me back.' (end of paragraph 8 exhibit JM 11). Again, for the second time despite Mr Hill's request that he appear Mr Somosi refused. Rather, he told Mr Hill to do the plea himself even though he knew or ought to have known that there was a real possibility of the judge forcing Mr Hill on. There could never by any guarantee that Mr Hill would be able to contact Mr Somosi by telephone if the judge insisted that he did proceed. It is incredible in the circumstances that yet again Mr Somosi failed to turn up and appear, particularly when (on his own account of the conversation with Mr Hill) it was abundantly clear that Judge Kirkham in no uncertain terms wanted him to be there. Despite the fact that he could have been there (in court) he yet again refused to attend on a sentence hearing in which his client faced significant jeopardy (both in terms of a life sentence) and being represented by a legal practitioner who is not as qualified as Mr Somosi. The Tribunal accepts this submission." 16 The failure of Mr Somosi to appear at the sentence hearing is regarded by the Tribunal as being a very serious matter. The presentation of any material by way of mitigation at the sentence hearing was complex and difficult and it was patently inadequate for Mr Somosi to require Mr Hill to appear for Mr Chung. 17 The NSW Court of Appeal in the matter of NSW Bar Association v Cummins (2001) 42 NSWLR 279 had to consider whether the conduct of the practitioner amounted to professional misconduct and in relation to the Court's general approach the Chief Justice held: "19. Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity. There are four inter-related interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the Courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people." 18 Mr Somosi's reply and evidence during the hearing of the information made it clear to this tribunal that he has not be able to face up to his own shortcomings in failing to appear. He continues to fixate on the shortcomings of Mr Hill. Those shortcomings made it more imperative that Mr Somosi appear on the sentence hearing. The tribunal finds that the conduct of failing to appear on the sentence hearing on the 6th of April 1998 before His Honour Judge Kirkham amounts to professional misconduct. The Shelley Complaint 19 The Shelley complaint relates to a complaint by Mr Somosi's former wife, Patrice Shelley that Mr Somosi has failed to honour an undertaking that he gave to the Family Court on the 3rd of February 1995. The particular undertaking is exhibit JSM1 to the affidavit of Mr John Scott MacLennan sworn on the 25th February 2002 (the MacLennan affidavit). By that undertaking Mr Somosi undertook to the Court, "To pay all outstanding amounts under orders 4 and 5 of Registrar Lee's orders of 7th of June 1994 by 31st of May 1995 and that I will contact these institutions in orders 4 and 5 within 7 day's to advise of this undertaking and to arrange payment." 20 The information sought an order or a finding by the tribunal that Mr Somosi's conduct in failing to honour the undertaking amounted to professional misconduct. 21 Mr Somosi in his reply "does not deny the facts alleged ..." but asserts that he is not guilty of professional misconduct. 22 The orders of Registrar Lee made on the 7th of June 1994 also form part of exhibit JSM1 to MacLennan affidavit. The seriousness of the breach of the undertaking it was submitted was compounded by Mr Somosi's previous failure to comply with orders 4 and 5 that were made on the 7th of June 1994. Order 5 required payment of Ms Shelley's legal fees within 3 months and it would appear that those fees have never been paid. 23 In a letter written by Galloways, the solicitors representing Mr Somosi on the 5th of November 1999 to the NSW Bar Association in answer to a letter written to Mr Somosi on the 22nd of September 1999 (exhibit JSM 45) it was contended that His Honour Justice Ellis extended the time for compliance with the undertaking executed by Mr Somosi on the 3rd of February 1995 to the 31st of July 1995. That evidence is not disputed by the Informant. 24 The total amount owing under the orders was the sum of $9,167.14. One payment to the RTA in the sum of $555 was paid on the 3rd of July 1995. Of the 10 payments that were ultimately made only 4 were made in 1995, one in the sum of $1,000 to Nomad Financial Services was made in 1996. The remaining 5 amounts totalling $5,122.14 were not paid until June, July and August of 1997. 25 Mr Somosi admitted in his evidence that the sum of $2,600 required by order 5 to be paid to Messrs Shelley's solicitors has never been paid. 26 Ms Shelley, in a letter to the Legal Services Commissioner dated the 11th of August 1997 which as abridged (JSM1 to the MacLennan affidavit) complained that the failure by Mr Somosi to honour the undertakings caused her and the children significant hardship. 27 During the Hearing Mr Somosi sought to explain his conduct in failing to comply with the undertakings by asserting that his wife was well off; and moreover there had been some sort of arrangement between himself and his wife relieving him of the obligation to comply with some of the undertakings. He further alleged that she harassed him unreasonably and yet later on asserted that his ex-wife had been diagnosed with a medical condition that in some way explained her "irrational behaviour". Not any of these matters were made the subject of an affidavit by Mr Somosi. Suffice it to say that the Tribunal rejects the explanations because in the Tribunal's view they do not explain away his failure to comply with an undertaking given to a Court. 28 A number of letters were written by Galloways to the NSW Bar Association on behalf of Mr Somosi. Those letters are annexures to the MacLennan affidavit. The Tribunal considers it important to refer to a number of expressions which arise from those letters. In annexure 19 to the MacLennan affidavit it is stated "because of his problems with tax and his ex-wife, my client became overwhelmed and emotionally overcome. I apologise for his failure to face up to his problems." In annexure 23 to the MacLennan affidavit which is a letter dated the 27th of April 1998 it is stated "my client concedes that he was in error in not attending to his undertaking expeditiously and regrets his actions in this regard. At that time and until recently his relationship with his ex-wife was very acrimonious." In annexure 45 which is a letter dated the 5th of November 1999 it is stated "given the personal nature of the proceedings between the parties and the acrimony which existed ..." The Tribunal finds that not any of the explanations proffered by Mr Somosi are in any exculpatory. 29 The NSW Court of Appeal in the matter of NSW Bar Association v Cummins (2001) 52 NSWLR 279 had to determine whether the conduct of the barrister which was not conduct in the course of professional work amounted to professional misconduct. After reviewing the Authorities the Chief Justice at 56 observed: "There is authority in favour of extending the terminology 'professional misconduct' to acts not occurring directly in the course of professional practice. That is not to say that any form of personal conduct may be regarded as professional misconduct. The authorities appear to me to suggest two kinds of relationship that justify applying the terminology in the broader way. First, acts may be sufficiently closely directed with actual practice, albeit not occurring in the course of such practice. Secondly, outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice. In this second case, the terminology of 'professional misconduct' overlaps with and usually it is not necessary to distinguish from, the terminology of good, fame and character, or fit and proper person' ... ... 66. The preparation and filing of tax returns is closely related to the earning of income, including professional income. The link is 'sufficiently close' to justify a finding of professional misconduct on the basis of Mr Cummin's failure to lodge returns for 38 years. 67. Similarly, and alternatively, the extent of Mr Cummin's failure to observe his legal obligations and civic responsibilities by such a systematic course of improper conduct over such a long period of time is of such gravity as to constitute professional misconduct for the reasons I have mentioned above in relation to fitness. 68. Whether a declaration should be made will vary from case to case. ... ... 69. As in the case of the declaration of unfitness, in my opinion, the maintenance of the confidence of the public in the legal profession makes it appropriate to formally declare that Mr Cummin's conduct was professional misconduct." 30 The tribunal finds that the failure of Mr Somosi to honour the undertaking given to the Family Court on the 3rd of February 1995 is a very serious form of misconduct. The explanations for failing to comply with the undertakings were: He was self destructive; His ex-wife was being aggressive; He was acting as if nothing happened; He was recalcitrant; His recalcitrance was borne out of a terrible animosity between himself and his wife; He was of the view that he had paid "plenty of money ..." for his wife and his children by way of cheque and cash; He had left his wife and children and left behind various valuable assets that she could have liquidated. Those explanations do not in any way explain away Mr Somosi's failure to comply with the undertaking. 31 The Tribunal finds that in relation to the subject complaint Mr Somosi is guilty of professional misconduct. 32 The Tribunal notes that Mr Somosi's name was on the 20th of August 2001 removed from the Role of Legal Practitioners by order of the NSW Court of Appeal (NSW Bar Association v Somosi (2001) NSWCA 285) Orders 1. In relation to each of the informations Mr Somosi is publicly reprimanded. 2. Mr Somosi is to pay the costs of the NSW Bar Association of these proceedings as agreed or assessed.