Legal Services Commissioner v Blackmore [2006] NSWADT 54

CITATION: Legal Services Commissioner v Blackmore [2006] NSWADT 54

DIVISION: Legal Services Division

APPLICANT PARTIES: Legal Services Commissioner RESPONDENT Craig Douglas Blackmore

FILE NUMBER: 052026

HEARING DATES: 29/11/2005 & 7/12/2005

SUBMISSIONS CLOSED: 12/07/2005

EXTEMPORE DECISION DATE: 12/07/2005

DATE OF DECISION: 02/22/2006

BEFORE: Clisdell RJ - Judicial Member; Greenwood J - Judicial Member; Hayes E - Non Judicial Member

CATCHWORDS: Professional Misconduct - fail to comply with s. 152 Notice

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Legal Profession Act 1987

APPLICANT L Muston, Solicitor REPRESENTATION: RESPONDENT G Niven, Barrister

ORDERS: 1. That the Solicitor be publicly reprimanded; 2. That the Solicitor pay the costs of the Legal Services Commissioner in the agreed sum of $1,500.00

REASONS FOR DECISION 1 This Information is brought by the Legal Services Commissioner ("the Commissioner") against Craig Douglas Blackmore ("the Solicitor") who was admitted as a practitioner on 8 July 1983. 2 The information filed on 27 July 2005 alleged that the Solicitor, without reasonable excuse, failed to respond to a Notice dated 6 May 2005 and issued in writing pursuant to Section 152(1) of the Legal Profession Act 1987. 3 The Commissioner relied on an Affidavit of Steven Anthony Mark dated 27 July 2005 setting out relevant documents which established as follows: a) That on or about 3 August 2004 the Commissioner received a complaint from Mrs Judith M Van Vorst. b) On 10 August 2004 the Commissioner wrote to the Solicitor seeking a response to the complaint. c) Further letters were forwarded by the Commissioner to the Solicitor on 6 September 2004 and 15 October 2004. d) When the Solicitor still failed to respond to the Commissioner's letters, a Notice under Section 152(1) was served on the Solicitor on 8 November 2004. e) By Statutory Declaration dated 3 December 2004 the Solicitor responded to the Section 152(1) Notice and to the complaint. f) On 9 March 2005 the Commissioner again wrote to the Solicitor and when no response was received to that correspondence wrote again on 5 April 2005. g) After receiving no response from the Solicitor, the Commissioner issued a further Section 152(1) Notice which was served on the Solicitor on 12 May 2005. An Affidavit of Service of the Notice was annexed to Mr Mark's Affidavit. 4 The complaint made by Mrs Van Vorst was in essence as follows: a) Failure to return telephone calls asking for information about the progress of her matter. b) Failure to progress her personal injury matter and allowing substantial delays to occur. d) Failure to keep her informed as to progress of the matter. 5 The Solicitor in his Statutory Declaration dated 3 December 2004 made a detailed response to the complaint. He also in the course of that declaration apologised unreservedly to the client for failing to respond to telephone messages and said "that such was unintentional on my behalf." 6 The Solicitor's Statutory Declaration was forwarded to the Complainant who responded to the Commissioner as follows: "I have received Mr Blackmore's response (dated 3 December 2004) to the complaints I lodged with the Commission in August 2004 and there a number of points I would like to raise: In paragraph 9 of Mr Blackmore's response he claims to have sent four letters seeking further instructions with regard to an offer made by the insurer in January 2002. According to my records I received only one letter from Mr Blackmore, dated 6 February 2002, to which I promptly responded by telephone. In paragraph 10 of Mr Blackmore's response he states that "aside from more recent correspondence forward to Mrs Van Vorst following receipt of letters from the Insurer, … I hold no record of having spoken to Mrs Van Vorst for in excess of 12 months." I have not received any recent correspondence from the Insurer forwarded by Mr Blackmore. Furthermore, Mr Blackmore fails to mention that in fact we spoke by telephone in October 2003. During this conversation Mr Blackmore instructed me to send him all the receipts I had outstanding and assured me that I could expect settlement of my case by Christmas 2003. Finally, whilst Mr Blackmore describes his failure to respond to any of my telephone calls and messages over a period in excess of 12 months as "unintentional", this does not explain how so many messages could have been left unanswered. It is this aspect of Mr Blackmore's poor performance which caused me the most concern. I think it important that the Commissioner takes these issues into consideration when formulating determination. In terms of how I would like the matter to progress, my only preference is for my case to be finalized in as short a period as possible. Living with chronic pain is extremely emotionally and financially draining and an expeditious resolution to this matter would be of enormous relief to me. If the Commissioner advises me that Mr Blackmore can be trusted to manage my case efficiently and effectively and Mr Blackmore is able to provide me with the necessary assurances, then I am willing to proceed with Mr Blackmore. If however, the Commissioner's advice is that Mr Blackmore is unsuitable to take my case forward or Mr Blackmore is unable to provide me with the necessary assurances to regain my confidence, I would like the Legal Services Commission to transfer the case to a competent Solicitor and absolve me of any obligation to Mr Blackmore. I am grateful for the assistance of the Legal Services Commission and look forward to your prompt advice." 7 Following receipt of the letter dated 20 January 2005 from the Complainant the Commissioner again wrote to the Solicitor. In a letter dated 9 March 2005 the Solicitor was asked as follows: "Paragraph 2 – In your Statutory Declaration dated 3 December 2004 at paragraph 9 you advise that you forwarded to Ms Van Vorst four letters seeking further instructions. Ms Van Vorst advises that only one letter, dated 6 February 2002, was received from you. Please forward copies of the letters you referred to in this paragraph so they may be forwarded to Ms Van Vorst. Paragraph 3 – Please also provide an explanation as to why you "unintentionally" failed to respond to Ms Van Vorst's telephone messages. Timely communication is an important part of a solicitor client relationship and I ask that, if you continue to act for Ms Van Vorst, you advise her of the period in which she can reasonably expect you to respond to her calls or written communications" 8 It was the failure to respond to the letter of 9 March 2005 and follow up correspondence that caused the Commissioner to issue a further Notice to Mr Blackmore. It does seem to the Tribunal that the issue of the further notice was probably unnecessary and the complaint could have been dealt with on the information provided in Mr Blackmore's Statutory Declaration without having to require an explanation as to how he unintentionally failed to respond to telephone calls. He had already unreservedly apologised for his failure to do so. As to the issue of the letters, in his Statutory Declaration Mr Blackmore had explained that he had been through a dissolution of his legal partnership and that Mrs Van Vorst's file had been inadvertently placed into storage. 9 Nevertheless the Commissioner issued the Notice and the Solicitor had an obligation to respond to the Notice promptly. He failed to do so. 10 At the hearing on 28 November the Solicitor sought a short adjournment to put on a formal reply and an Affidavit. That application was granted and the proceedings were adjourned to 7 December 2005. The Solicitor admitted that he had not responded to the Notice. In his Affidavit the Solicitor deposed as follows: Paragraph 10 – I admit that I failed to respond to the Notice dated 6 May 2005 issued by the Legal Services Commissioner as stated. At no time did I intend any disrespect to the Legal Services Commissioner in failing to respond to the Notice, or this Tribunal in failing to appear on the earlier occasions when this matter was listed. I sincerely regret my failure to give due and proper consideration to the Commissioner's correspondence accepting that it is detrimentally effecting my general standing and respect in the legal profession and personally impacted upon me. For this I offer my deepest apologies. Paragraph 11 – I say that the reasons for my failure are: a) I was extremely dismayed by the further correspondence received from the Legal Services Commissioner, becoming somewhat depressed by it. b) By reasons of my disheartened feelings, I put the issue to one side, albeit with the genuine intention of dealing with it at a later dated. c) Further, because I am a reasonably busy sole practitioner, and because of the abovementioned feelings, I dealt with my usual work, and I procrastinated in my response to the Notice, to the detriment of my own interests. (e) (sic) As a result of pressure I was then experiencing both professionally and personally, I adopted a "head in the sand" approach, always with a view to addressing the issues at some future point in time. I felt unable to seek assistance from any fellow practitioner or friend. I have now obtained assistance and accept that the approach taken by me was and is unrealistic. 11 The Solicitor's Affidavit also dealt with other personal and professional issues which were causing him difficulty at that time. 12 The Tribunal is satisfied that the Solicitor is guilty of professional misconduct. There can be no other finding as a result of a Solicitor or any practitioner failing to respond to a Notice under Section 152(1) of the Legal Profession Act. Although the Tribunal was of the view that the complaint by Mrs Van Vorst could have been dealt with by the Commissioner without the necessity of a second Notice, it was of course within the Commissioner's discretion to act in relation to the complaint by the issue of a further Notice and that the Solicitor should have responded to that Notice when it was served upon him. Perhaps in the future, consideration might be given to dealing with complaints of this type without the necessity to bring them before the Tribunal. 13 The Tribunal took into account submissions made by both Ms Muston for the Commissioner and Mr Niven for the Solicitor. The Tribunal considered carefully the range of penalties that have been applied to practitioners who have failed to comply with Section 152(1) Notices. It was the Tribunal's view that the breach by Mr Blackmore was at the bottom of the range. The Tribunal took into account a matter where a private reprimand had been issued to a Solicitor but agreed with the submission of Ms Muston that there were no special circumstances warranting the issue of a private reprimand to Mr Blackmore. 14 Accordingly the Tribunal makes the following orders: 1. That he Solicitor be publicly reprimanded. 2. That the Solicitor pay the costs of the Legal Services Commissioner in the agreed sum of $1,500.00.