The Legal Services Tribunal of New South Wales CITATION : Michael Orlov and Stephanie Joan Pursley [1995] NSWLST 3 PARTIES : Michael Orlov and Stephanie Joan Pursley FILE NUMBER(S) : of 1994 CORAM: Mr D E Hunt (Presiding Member) - Ms A Plotke - Mr M. Megna CATCHWORDS: Professional Misconduct - prefer own interests to those of others - Unsatisfactory Professional Conduct - conduct below expected standards of :- Unsatisfactory Professional Conduct - Solictor in contact with the opposing party LEGISLATION CITED: Legal Profession Act 1987 Browne v Dunn ; CASES CITED: Allied Pastoral v Commissioner of Taxation (1983) 1 NSW LR 1 at 25 to 27; Re Nelson (1991) 106 ACT Reports DATES OF HEARING: 10, 11, 12 October and 24, 25 November 1994 DATE OF JUDGMENT: 05/11/1995 Mr I. Wales instructed by Mr G. Still appeared for the Council of the Law Society of New South Wales. LEGAL REPRESENTATIVES: Mr P. Hely QC instructed by Sly & Weigall appeared with Mr D. Ryan for the Solicitor S.J. Pursley. Mr F.S. McAlary QC instructed by Ebsworth & Ebsworth appeared with Mr D.J. Fagan for the Solicitor M. Orlov. JUDGMENT: Michael Orlov Allegation that Mr Orlov, the Solicitor on the record for a party in litigation, approached his partner, knowing that she was in contact with the opposing party, who he knew to be the client of another Solicitor, during the adjournment of an Arbitration hearing in an attempt to secure an advantage to his client by having the matter settled on terms favourable to his client and without notice to that other party's Solicitor. Stephanie Joan Pursley Allegation that the Solicitor, knowing that her friends were represented by another Solicitor, approached them at the suggestion of her partner, Mr Orlov, without prior notice to their Solicitor and provided advice to them to settle the matter. TRIBUNAL FINDS THAT BOTH SOLICITORS WERE GUILTY OF professional misconduct and ordered that Mr Orlov be fined $10,000 and that Miss Pursley be fined $6000. Two separate complaints were made in March 1994 to the Legal Services Tribunal (the Tribunal) then known as the Legal Profession Disciplinary Tribunal. The first, No. 7 of 1994, was made by the Council of the Law Society of New South Wales (the Council) in accordance with Section 135 of the Legal Profession Act 1987 (the Act) against Michael Orlov (Mr Orlov). The second, No.8 of 1994, was made in relation to Stephanie Joan Pursley (Miss Pursley) by way of referral by the Council pursuant to Section 134 (1)(c) of the Act consequent upon a complaint made to the Council by Messrs Emil Ford & Co. (Emil Ford). Both complaints arose out of the same factual circumstances. At a directions hearing on 3 June 1994 Mr G. Molloy sitting as a single member of the Tribunal directed that the two matters be heard together and that the evidence in the one should be evidence in the other. The hearing of both matters proceeded on this basis. At the commencement of the hearing there was argument whether the matters were to be determined under the former provisions of Part 10 of the Act which was in force prior to the amendment which became operative on 1 July 1994 or under new Part 10 which came into force on that day. The filing of both complaints and the directions hearing took place before 1 July 1994. The hearing on the merits of the complaints did not commence until 10 October 1994. The Tribunal hearing the matters was constituted under new Part 10 of the Act. The parties were so informed by the chairman at the commencement of the proceedings on 10 October 1994. Mr Wales for the Law Society submitted that the cases were to be determined under new Part 10 of the Act while both Mr Hely QC and Mr McAlary QC submitted that as each complaint was filed before 1 July 1994 it should be dealt with under former Part 10. The position is governed by regulations 30, 31 and 32 of the Legal Profession Regulation 1994 which deal with transitional provisions governing the Act. Division 2 of Part 9 of the Regulation is headed "Complaints and Appeals". Sections 30,31 and 32 are in the following terms: "Complaints made under former Part 10 and not yet subject to proceedings 30.(1) This clause and clause 31 apply in respect of a complaint made under former Part 10 of the Act. (2) If a complaint made before 1 July 1994 has not, before that date, been the subject of proceedings before the former Board or the former Tribunal, the complaint is to be dealt with as if it had been made under new Part 10 of the Act. A matter that has been referred under former Part 10 of the Act to the former Board or the former Tribunal by a Council, but has not, by 1 July 1994, been the subject of proceedings before the former Board or former Tribunal, is taken to be a matter referred to the new Tribunal under new Part 10 of the Act. (3) If a complaint has been made to a Council (or is the subject of a notice given to a Council by the former Review Panel under former section 140(2) of the Act) before 1 July 1994, but the Council has made no decision in response to the complaint or notice, as the case may be, before that day, the complaint is to be dealt with by the Council as if it had been made under new Part 10 of the Act. (4) Anything done under former Part 10 of the Act in respect of a complaint to which this clause applies is taken to have been done under new Part 10 of the Act. Complaints made under former Part 10 and already subject to proceedings 31.(1) If a complaint is the subject of proceedings before the former Board or the former Tribunal that are pending on 1 July 1994, those proceedings may be continued before, and determined by, that Board or that Tribunal as if former Part 10 of the Act were still in force. (2) If a complaint made under former Part 10 of the Act has (whether before, on or after 1 July 1994) been the subject of proceedings before the former Board or the former Tribunal resulting in a determination in relation to the complaint or the termination of the proceedings, any further action in respect of the complaint that is taken on or after 1 July 1994 is to be taken under new Part 10 of the Act. In that case, the determination or termination is to be treated as if it had been made under new Part 10 of the Act by the new Tribunal. Examples of further action are a review of the determination, a reference of the complaint to the Tribunal or an appeal. (3) To the extent that a complaint has been the subject of proceedings before the former Tribunal, this clause applies to the complaint whether the proceedings are in relation to the review of the determination of a complaint by the former Board or they are in relation to a complaint referred directly to the former Tribunal. (4) A reference in this clause to a determination: (a) is a reference to a determination that continues to have effect after 30 June 1994; and (b) includes a determination that, because of this clause, is made under a provision of former Part 10 of the Act on or after 1 July 1994; and (c) includes any reprimand or order made as a result of a determination. Continuation of former Board and former Tribunal 32(1) The former Board continues in existence (as constituted immediately before 1 July 1994) for the purpose of determining any proceedings under clause 31. (2) The provisions of former Part 10 of the Act that relate to the constitution and functions of the former Board continue to apply to the former Board while it continues in existence under this clause. (3) The former Tribunal continues in existence (as constituted, immediately before 1 July 1994) for the purpose of determining any proceedings under clause 31. (4) The provisions of former Part 10 of the Act that relate to the constitution and functions of the former Tribunal continue to apply to the former Tribunal while it continues in existence under this clause." The issue to be decided was whether the complaint was properly to be classified as not being on 1 July 1994 the subject of proceedings before the former Tribunal, in which case it was to be dealt with under new Part 10 of the Act pursuant to s. 30(2). If on the other hand, the complaint fell into the category of proceedings which were pending on that date, then former Part 10 was applicable by virtue of s. 31(1). Regulation 32 continues the existence of the former Tribunal for the purpose of determining proceedings under clause 31. This issue had arisen in the matter of Kriss, No. DT 8 and 9 of 1993. The Tribunal hearing that matter took the view that "the words `the subject of proceedings' used in regulations 30 and 31 mean proceedings in which the merits of the complaint or complaints is being determined, and those words are not to be given a wider meaning so as to include directions hearings and other interlocutory proceedings. It is unnecessary to give those words any wider meaning to achieve the obvious purpose of the transitional provisions. If a complaint has been made before 1 July 1994 and the hearing on the merits of that complaint has not commenced before 1 July 1994, regulation 30 authorises the new Tribunal to determine those proceedings as if the complaint had been made under the new Part 10." Mr Wales in his submissions agreed with the reasoning in the Kriss matter. Mr Hely QC referred in his submissions to regulations 30 and 31 and their headings indicating the distinction drawn between complaints which are not yet the subject of proceedings and complaints which are already the subject of proceedings. He referred to Section 155(2) of the Act which indicates that the Council must institute proceedings in the Tribunal with respect to the complaint if it is satisfied of various matters and Section 167 and 167(1) which talks about the institution of proceedings in the Tribunal with respect to a complaint. With regard to the subject complaint he submitted the status on 30 June 1994 was that it was the subject of proceedings pending in the Tribunal, firstly because those proceedings had been instituted and second because those proceedings had not been heard. Accordingly the criteria specified in Section 31 were satisfied and old Part 10 applied. Mr McAlary QC directed attention to Section 31(2). This provides that if a complaint made under former Part 10 of the Act has been the subject of proceedings before the former Tribunal resulting in the determination in relation to the complaint or the termination of the proceedings, any further action in respect of the complaint taken on or after 1 July 1994 is to be taken under new Part 10 of the Act. Examples of further action are a review of the determination, a reference of the complaint to the Tribunal or an appeal. He submitted that it is clear where the matter has reached a determination or there has been a termination of the proceedings the new Part will apply to what is said to be any further action. That left the question solely of what is the status of proceedings which have been commenced which are pending at 1 July and in respect of which no determination or termination has taken place and the general thrust of this must be that these proceedings were under the old Act (7 and 8 T). Having considered these arguments the Tribunal formed the opinion that regulation 31 does not apply to these proceedings which were commenced but not heard before 1 July 1994. It agreed with the reasoning and followed the decision of the Tribunal in the matter of Kriss delivered on 12 September 1994 and proceeded to determine the matter under new Part 10 of the Act. The complaint against Mr Orlov The allegation was that Mr Orlov being the solicitor on the record for a party in litigation, approached his partner, knowing she was in contact with the opposing party, whom he knew to be the client of another solicitor, during the adjournment of an Arbitration hearing in an attempt to secure an advantage to his client by having the matter settled on terms favourable to his client and without prior notice to that other party's solicitor. The particulars The particulars of this complaint alleged: : In 1990 and 1991 Mr Orlov and Miss Pursley were partners of the firm Freehill Hollingdale Page (Freehills). At that time, there was litigation between Mr John Andersson (Mr Andersson) as plaintiff/cross-defendant and Green Park Pastoral Pty Limited (Green Park) as defendant/cross-claimant. Mr Andersson was claiming, inter alia, $110,000 for unpaid professional fees for interior designer/architect services. Green Park denied liability and claimed damages quantified at $1.3 million caused by Mr Andersson's negligence. : The proceedings were commenced in the first week of August 1990(the correct date was 19 July, 1990) by Summons filed in the Supreme Court of New South Wales Construction List. The matter was subsequently referred for arbitration which was listed for hearing commencing on Thursday, 31 January, 1991. : Mr Andersson retained Emil Ford & Co (Emil Ford) to act on his behalf in the litigation. Mr John Conti (Mr Conti), a partner of Emil Ford, had the carriage of the matter. At the relevant time Mr Conti had been acting for Mr Andersson for some years. Green Park retained Freehills to act on its behalf and Mr A.B. Weller, a director of Green Park, gave instructions to Freehills. Mr Orlov had the carriage of the matter, although at times he was assisted by an employed solicitor, Thomas Blacket (Mr Blacket). : At the relevant time Miss Pursley had been a friend of Mr Andersson and his wife for approximately 20 years and had regularly discussed the Anderssons' confidential business and financial affairs with them. Mr Orlov became aware of the friendship between the Anderssons and Miss Pursley in August 1990 when he read two documents which emanated from Mr John Arthur, a partner of Freehills, and referred to Miss Pursley and the efforts that had been made to settle the matter. : In a telephone conversation in early August 1990, Miss Pursley informed Mr Orlov that she had spoken to Mr Andersson about the possibility of settlement, but that Mr Andersson had been "very emotional about it" and that she had not "pushed the matter or involved herself further because she felt to do so was likely to prejudice her friendship with the Anderssons". : Settlement negotiations were pursued by Mr Orlov with Mr Conti during August 1990 with subsequent formal offers of compromise being made by both parties. It was not possible to compromise the proceedings and the arbitration hearing commenced on Thursday, 31 January 1991. Both parties were represented by counsel at the arbitration. Settlement discussions took place after the hearing on Thursday, 31 January 1991, however these discussions did not result in settlement. On Friday, 1 February 1991, a formal offer of compromise was made on behalf of Mr Andersson and the hearing continued with further hearing to continue on the following Monday, 4 February, 1991. : Although further settlement discussions took place on Friday 1 February 1991, it was not possible to reach settlement. The discussions had been between counsel and also between solicitors. On the same day after settlement discussions became deadlocked, Mr Orlov telephoned Miss Pursley to enlist her assistance in trying to achieve the settlement Green Park had instructed Mr Orlov that it wanted. Mr Orlov did not inform Mr Conti that he intended to make the call to Miss Pursley. : The telephone conversation included the following observations by Mr Orlov to Miss Pursley: (i) his views about how the litigation was progressing; (ii) what he thought the likely outcome would be for Mr Andersson; (iii) the contents of the without prejudice discussions that had taken place; (iv) his opinion as to how Mr Andersson had performed in cross examination; (v) that evidence had emerged which suggested Mr Andersson had been untruthful; (vi) that Mr Andersson had held himself out to be an architect when he was not; (vii) about parts of the evidence from the first day's transcript; (viii) that Mr Andersson's key expert witness had performed very badly under cross-examination; (ix) that his client was determined to crush Mr Andersson; (x) that the only way the proceedings could be settled was for Mr Andersson to abandon his claim and make a contribution to Green Park's/Weller's costs; (xi) if there was no immediate settlement there was substantial risk that: (a) Mr Andersson's professional and personal reputation would be severely damaged; and (b) Mr Andersson would be bankrupted; (xii) Mr Andersson had to assess his risk of continuing the litigation against those facts and whether he could afford the risk of losing; (xiii) Mr Andersson's lawyers may well have different views from his own; (xiv) his own views may be coloured as solicitor for the defendant; (xv) his client wanted to prove publicly that he was right and Mr Andersson was wrong; (xvi) the prospect of settling the proceedings might be significantly improved if Mr Andersson gave Mr Weller a complete and unconditional apology and retracted the allegations made in the proceedings; (xvii) if Miss Pursley spoke to the Anderssons he would have to advise Mr Conti of that fact; (xviii) that Green Park's Senior Counsel would demand that Mr Andersson pay $300,000 into court on Monday 4 February 1991 if the case continued as surety for costs. : Miss Pursley travelled to Bowral on Saturday, 2 February 1991 and spoke with the Anderssons regarding the discussions which she had had with Mr Orlov in respect of the litigation with Mr Weller. In that conversation Miss Pursley conveyed to the Anderssons the effect of the conversation which she had had with Mr Orlov as set out in paragraph 14 above. : Mr Conti telephoned Mr Orlov on Sunday morning 3 February 1991 and informed him that his client had instructed him to put an offer of settlement on the basis that the proceedings be dismissed and each party pay its own costs. In addition Mr Conti informed Mr Orlov that his client would provide a reasonable letter of apology. : During the discussion that ensued Mr Orlov did not inform Mr Conti that: (i) he had approached his partner, Miss Pursley, to talk to the Anderssons; (ii) he had given Miss Pursley all the information contained in paragraph 14 above; and (iii) Miss Pursley had in fact spoken to the Anderssons or he assumed she had, having regard to the settlement offer that had just been conveyed. : Mr Orlov did not speak to Miss Pursley until later on that Sunday. Miss Pursley telephoned him. Mr Orlov then received details of Mr Andersson's financial circumstances and details of Mr Andersson's state of health from Miss Pursley. Mr Orlov then arranged for Miss Pursley to obtain the letter of apology from Mr Andersson directly. Mr Orlov did not telephone Mr Conti and tell him of the matters in paragraph 17 above or of the plan to have Miss Pursley arrange for the obtaining of the letter of apology directly from his clients. : At about 8 p.m. on the Sunday, after Miss Pursley had obtained the letter of apology from Mr Andersson, Mr Orlov had still not telephoned Mr Conti. Mr Orlov then had a lengthy discussion with his client about settlement during which he received instructions to put an offer of settlement that the claim be dismissed with no order as to costs, but with the entry of a judgment for $200,000 in Green Park's favour which was to be agreed not to be enforced. : Mr Orlov did not telephone Mr Conti straight away with those instructions, but telephoned Miss Pursley and advised her of the counter offer. Mr Orlov then telephoned Mr Conti and conveyed the counter offer and said it was not negotiable. It was in this conversation that Mr Orlov told Mr Conti that: (i) he had had several discussions during the day with Miss Pursley who was one of his partners; (ii) Miss Pursley was a close personal friend of the Anderssons and had spoken with them in that capacity; (iii) Miss Pursley had given him a copy of Mr Andersson's letter of apology. : Mr Orlov did not inform Mr Conti in this conversation or at any time prior to the offer of settlement being accepted, which occurred shortly after the conversation outlined in the preceding paragraph, that: (i) he had approached Miss Pursley on Friday 2 February 1991 to ask her to speak to Mr Andersson; (ii) he had given Miss Pursley the information outlined in paragraph 14 above; (iii) Miss Pursley, after speaking with Mr Andersson, had provided him with information about Mr Andersson's financial affairs and his state of health; (iv) he had made specific arrangements with Miss Pursley to obtain the letter from Mr Andersson direct. The Law Society sought the following orders: 1. That Michael Orlov is guilty of professional misconduct. 2. That Michael Orlov pay the costs of and incidental to these proceedings. 3. Such further order the Tribunal thinks fit. References to the transcript of the proceedings are hereafter shown as numbers which identify to relevant page, followed by the letter T. References to exhibits are hereafter shown as Ex followed by its number and the relevant paragraph or page. The complaint against Miss Pursley The complaint relating to Miss Pursley alleged that she, knowing that her friends Mr and Mrs Andersson were represented by another solicitor, approached them at the request or suggestion of her partner, Mr Orlov, without prior notice to the Anderssons' solicitors and provided advice to them to settle the matter. The particulars Paragraphs 1 to 15 inclusive of the particulars of the professional misconduct alleged against Miss Pursley were identical with paragraphs 1 to 15 inclusive of the particulars alleged against Mr Orlov. Paragraph 16 of the particulars in Miss Pursley's matter alleges that she provided to the Anderssons written "instructions" as to the course which they should adopt in the future conduct of the litigation, including which instructions should be given to their solicitor. Miss Pursley had not advised Mr Conti that she was discussing the litigation proceedings with his clients. Paragraph 17 alleged that on Monday 4 February 1991 Miss Pursley attended on the Anderssons and gave them certain legal advice as to their position. Miss Pursley had still not advised Mr Conti that she was in communication with his clients about the proceedings. In the complaint against Miss Pursley the Law Society sought such orders as to the Tribunal seem fit and an order for costs. Mr Andersson's position In 1989, Mr Weller commissioned Mr Andersson to design the restoration and refurbishment of an existing country house known as "Mittabah" at Exeter in the Southern Highlands. He carried out the commission and was paid the agreed fee for this work. Subsequently new instructions were issued to him by Mr Weller to have the old main building demolished and for him to design a new large residence. Mr Andersson produced several sketch drawings of the proposed new residence over a period from November 1989 to January 1990. In January 1990, the old main building was demolished. Final design drawings for the new building, in a form suitable for lodgment with the local Council were prepared by Mr Andersson and shortly prior to the completion of the design documentation he was dismissed. No fees were paid to him and in June 1990 he instructed Mr Conti to recover the outstanding fees. Proceedings were commenced in the Supreme Court of New South Wales Construction List on 19 July 1990. Freehills first made contact with Emil Ford on 8 August 1990. In October 1990, Green Park filed its defence and a cross-claim for about $1,300,000. On 7 December 1990, by consent, Mr Justice Cole referred certain issues of an expert nature to Mr Kenneth Baker, an architect, for determination. The reference before Mr Baker was to be heard on 31 January 1991, 1 February 1991 and 4 February 1991; this reference is referred to as the arbitration in the particulars. The reference hearing The Emil Ford letter dated 6 May 1991 to the Law Society (Ex C Annexure A) gives the following account of the hearing which commenced on 31 January 1991. Mr Andersson was examined initially and cross-examined quite extensively by Mr Bruce Collins QC for the defendant company. From 2 to 4 p.m. two further witnesses Mr Craig Darby, a building surveyor from the Wingecarribee Shire Council and Mr David Potter, a consulting civil engineer, were called and cross-examined. At the end of the first hearing day there were discussions with Mr Collins concerning settlement but these were unsuccessful and on the second day, Mr Andersson was again cross-examined between 9.30 and 10.45 a.m. Re-examination by his Counsel, Mr David Conti, concluded about 11.15 a.m. Thereafter Mr Ivor Lloyd an expert architect called for Mr Andersson gave evidence. After his cross-examination was completed the defendant company called Mr Colin Sell, the proposed builder of the new main building. He was cross-examined by Mr David Conti. Thereafter Mr Richard Hanna the quantity surveyor retained by Mr Andersson was cross-examined by Mr Fagan, junior counsel for the defendant. At 3.40 pm Mr Ron Gilling, the company's expert architect, was called and the Reference was adjourned to recommence on Monday, 4 February 1991. At the end of the second hearing day on Friday, 1 February 1991, Mr Andersson's instructions to Mr Conti were that he would be continuing with the Reference on Monday 4 February 1991. The venue was to be changed and Mr Andersson paid a deposit for the room to be used on 4 February 1991 (pages 26 and 27 annexure A to Ex D). In his declaration (Ex B par.4) Mr Conti stated that at the end of the second day he assisted Mr Andersson in collating and packing certain exhibits which were to be moved from 140 Phillip Street Sydney to a room in the Bar Association Building where the Reference was to continue on 4 February 1991 and further, that on the basis of his instructions that day he believed that the matter was to proceed on 4 February 1991. Mr Andersson's assessment of the hearing Mr Andersson was very distressed at the end of day 1 of the reference hearing. He felt it had gone badly for him and was upset as a result of his cross-examination by Mr Bruce Collins QC. His evidence regarding his view of the case at the end of day 1 given in response to cross-examination by Mr Hely QC (37T) was as follows: "Q. On Thursday I think you were cross-examined by Mr Collins of Queen's Counsel for Mr Weller? A. On Thursday, yes. Q. Did you find that cross-examination to be upsetting so far as you were concerned? A. It was very stressful. Q. And was it your perception that you had fared badly in that cross-examination? A. Not really. Q. And was it your perception that you had been prejudiced in that cross-examination by some documents which had been produced on Mr Conti's advice? A. That wasn't of use at that moment, no." There follow some questions about Mr Andersson's reaction to his cross-examination in relation to a document, the S3 drawing, and his expectation of what his barrister, David Conti, would elicit from him about it. The following evidence was then given at 39 T: "Q. And it was your view on the Thursday that you had not been adequately represented by Mr Conti? A. I was of the opinion that I had not been, yes, I didn't feel satisfied with it but I can't really express my - my feelings about it. Q. Would it be correct to say that at the conclusion of that Thursday you were experiencing a loss of confidence in your legal representatives? A. I don't think it went that far. Q. Had it approached that far? A. I can't really express, I was not so much disappointed in them but I was totally stressed by Bruce Collins and I really wasn't in any mood to really either talk to them about it or... Q. What exactly was your view at that time, was it your view at that time you were experiencing a loss of confidence in your lawyers? A. Yes, I felt that he had not done what I expected of him, yes. I felt that they have not done the work that I expected of them. Q. Was it your view at this time that the case was going badly so far as you were concerned? A. Only by the pressure applied by Bruce Collins yes, it wasn't going well. Q. But for whatever reason it was your view at this time that the case was going badly for yourself? A. I could not use the word `view' but my feeling was because I am not experienced in this. But my feeling was that it was not going well. This is the Thursday you are asking about? Q. Yes. A. Yes, it wasn't going well. Q. That position continued on the Friday, did it not? A. No, no, it was almost totally different on the Friday. Q. Was it? A. Or in my opinion, yes. Q. What was the reason for this total difference? A. When I was asked questions about the project itself I felt confident about it because I knew it like the back of my hand. I could easily answer questions put to me by Bruce Collins, I felt confident and quite happy of the issue, of the arbitration." The above evidence of Mr Andersson contains inconsistencies. It is clear that he thought at the end of Thursday that the case was not going well for him, but it is less clear whether or not he had experienced loss of confidence in his legal representatives. Two very similar questions were answered first, with a denial and shortly thereafter, with affirmation. In the result the evidence is not of much assistance. However, there was some extrinsic evidence in a statement (Ex P2 pages 50-52) written by Mr Andersson to Mr Conti on the evening of Thursday 31 January 1991, which throws some light on his state of mind at the end of the first day's hearing. He states that he spent more than three hours going through the whole Mittabah project, step by step, trying to find a reason for Mr Weller's wish to economically crucify him and why Mr Weller was hateful of him. He mentions in that document (page 51) that up to the date of 4 November, 1989 Mr Weller and he were "brothers" and as close as friends can be. The document makes no mention of any dissatisfaction with his lawyers or any loss of confidence in them. In cross-examination with reference to that document Mr Andersson agreed that it was his view at this time that Mr Weller was seeking to crucify him economically (40T). He felt that intimidation was being applied in the conduct of the arbitration which he found scary. There were something like seven lawyers there, lots of barristers and two or three solicitors, seven or eight people on their side and only three on his side namely, himself, Mr David Conti and Mr John Conti. He said that it was very intimidating to him and he felt very uncomfortable about the whole matter (41T). He telephoned his wife in Bowral that evening and told her he had had a bad day and of his feeling of intimidation (41T). A second document prepared by Mr Andersson and headed "J.A. notes 1/2/1991" (Ex P2 page 49) voices Mr Andersson's concerns at the delaying tactics of the defendants. He complains that what the other side is doing to him "is crippling him and is financially killing him", seeks help "to restrain the other side from these destructive tactics" and says Mr Andersson is pleading for mercy. It is an emotional document. He agreed in cross-examination that it was a document he gave to Mr Conti on the Friday morning of the proceedings before the referee and that it reflected the position as he saw it at the time (41T 42T & 47T). This document also makes no reference to dissatisfaction with his lawyers. At the end of Friday, day 2 of the hearing, Mr Andersson, according to his evidence at 40T quoted above, felt confident and quite happy about the events of the day. On the evening of the Thursday 31 (day 1) Mrs Andersson telephoned Miss Pursley. They were close friends, their friendship going back to 1972. Miss Pursley was at this stage aware of the litigation both from the Anderssons and through Freehills. Mrs Andersson was alone at home. She was upset after the phone call from Mr Andersson who was depressed because he had a hard day. She called Miss Pursley, she said (at 140 T) because of all the friends she knew she felt Miss Pursley would understand her. She felt in need of someone to listen to her (143T). She spoke to her about Mr Andersson being upset and tired and that she felt the whole arbitration had been dragged out. She also referred to a drawing and an agenda that had been used against him. Miss Pursley was supportive and understanding. The next evening, Friday, February 1 1991, Mr Andersson returned home in good spirits. Mrs Andersson's evidence was that she felt that having disturbed Miss Pursley the evening before she wanted to call her again, which she then did, to put her mind at rest. She explained to her that Mr Andersson had returned and was feeling quite optimistic having been questioned about his actual work on that day and that he felt it had gone well. In her statement dated 4 July 1991 (Ex D p59) Mrs Andersson said in relation to her telephone conversation with Mr Andersson of Thursday, 31 January 1991, "I think John was experiencing a complete loss of confidence in his legal representation". When asked in cross examination by Mr Hely QC whether in her conversation with Miss Pursley that evening she had told Miss Pursley that her husband had lost confidence in his legal team her answer was that she spoke to her about her interpretation that on the Thursday Mr Andersson was feeling quite let down by his representation that day. She did not concede that he had lost confidence in them. Considering the above evidence of both Anderssons the Tribunal finds that the position at the end of day 2 of the Arbitration hearing, in the perception of Mr Andersson, was that the matter was going well for him and that he had not lost confidence in his legal advisers. Mr Orlov's assessment of the hearing of the reference In his declaration dated 6 June 1994 (Ex 01 Paragraphs 60 to 86) Mr Orlov gave the following assessment of the hearing on 31 January and 1 February 1991: 1. Mr Andersson performed poorly in cross-examination on 31 January 1991 and made a number of admissions which were damaging to his case and to his credit. Mr Orlov's impression observing his demeanour in giving evidence was that he appeared to be distressed and unwell. 2. An expert witness, Mr Ivor Lloyd, gave evidence in the plaintiff's case. He performed poorly in cross-examination and his report largely failed to address the issues in the reference and lacked proper factual basis. The performance of Mr Andersson and Mr Lloyd confirmed his belief that the defendant was in a strong position (paragraph 62). 3. A Mr Potter, a structural engineer with whom Mr Andersson had worked in connection with the design of the new house at Mittabah, gave evidence in the plaintiff's case. Mr Orlov was surprised that Mr Andersson called Mr Potter to give evidence. Mr Blacket had interviewed Mr Potter previously and had reported to Mr Orlov that Mr Potter was prepared to give evidence on the defendant's behalf which was critical of Mr Andersson's competence, an important issue in the proceedings. Mr Orlov had intended to call Mr Potter as a witness in the defendant's case until it emerged that Mr Andersson intended to call him. Mr Potter gave what Mr Orlov believed to be favourable evidence to the defendant's case on the question of Mr Andersson's competence (para 85). The offers of compromise On 4 October 1990, Green Park filed an offer of compromise, in the sum of $60,000 expressly excluding the cross-claim. On 10 October Mr Conti wrote to Mr Andersson advising him about the costs effect of this offer should he recover a lesser amount (Ex H). On 19 November 1990, Mr Andersson filed an offer of compromise for $110,000 plus costs and a verdict in his favour on the cross-claim. This was some $2,400 less than his total claim. On 31 January 1991, Mr David Conti telephoned Mr Bruce Collins QC with an offer to settle for $80,000 inclusive of costs and with the cross-claim being dismissed. On the 1 February 1991, Mr John Conti filed an offer of compromise for $40,000 plus costs, with a verdict for Mr Andersson on the cross claim. None of the above offers was accepted. Negotiations on 31 January 1991 1. At the conclusion of the hearing on the first day of the reference, Counsel for Mr Andersson, Mr David Conti, telephoned Mr Collins QC in his chambers and made an offer to settle the proceedings. Mr Orlov was present in Mr Collins' chambers when the conversation took place and heard what Mr Collins said. At the conclusion of the telephone conversation Mr Collins repeated what he had been told by Mr David Conti. The latter offered to settle the proceedings on the basis that Green Park should pay Mr Andersson the sum of $80,000 inclusive of costs and that the cross claim should be dismissed. This amount was significantly less than the offer of compromise made by Mr Andersson on 19 November 1990. 2. Mr Collins replied that it may be possible to settle the matter on the basis that both the claims and cross claim be dismissed if Mr Andersson agreed to indemnify Mr Weller against his costs. He added that Mr Weller was prepared to make an example of Mr Andersson. At the conclusion of the conversation Mr Collins said to Mr Orlov "they are panicking". This statement was consistent with Mr Orlov's own assessment based on Mr Andersson's current offer. He estimated that Mr Andersson must have incurred legal costs in the order of $60,000 to $80,000. He believed therefore that the offer was calculated to get Mr Andersson out of the proceedings on close to a break even basis. 3. During the morning of the second hearing day, 1 February 1991, Mr Conti served a further formal offer of compromise on Mr Orlov pursuant to Part 22 of the Supreme Court Rules. The terms of offer included that Mr Andersson would accept payment of $40,000 plus costs in satisfaction of his claim and that a verdict should be entered in Mr Andersson's favour on the cross-claim. 4. Mr Orlov believed at that time that (a) there was a question of law as to the validity of the offer of compromise which was expressed to expire 14 days from date of service which was less than the time stated in the Supreme Court Rules. (b) the offer was for $20,000 less than the sum offered to Mr Andersson in the defendant's offer of compromise in October 1990 which would be significant on the issue of costs. (c) the sum of $40,000 was still in excess of the value of the work done by Mr Andersson if the evidence of the defendant's expert witness was accepted as he expected would happen, and (d) the offer would provide Mr Andersson with protection against his future costs only if the notice would be treated as being effective despite the short time mentioned in (a) above and if the evidence of the defendant's experts was not accepted and Mr Andersson would be completely successful in his defence of the cross claim which Mr Orlov thought unlikely. Mr Conti's assessment of the matter According to Mr Conti (Ex C page 19) there were substantial issues of credit between Mr Andersson's evidence and Mr and Mrs Weller's evidence. The issues between the experts were nowhere near as divergent as the issues raised by Mr Andersson and Mr and Mrs Weller. There were certainly differing views advanced by Mr Lloyd on behalf of Mr Andersson and Mr Gilling and Ms Grey on behalf of Green Park regarding the proper value to be ascribed to Mr Andersson's drawings. When Mr Andersson gave instructions to discontinue the proceedings he still had some prospects of success. As a result of the settlement Mr Andersson has been deprived of the distinct possibility of recovering some proportion of his costs from Green Park. At the end of day 1 at a conference between Mr J. Conti, Mr D. Conti and Mr Andersson (Ex P2 p48) Mr David Conti pointed out the possibility that 1. Mr Andersson may lose his house if the litigation was unsuccessful 2. because of the large costs and the number of days over which the case would be fought, he may recover only $60,000 as a maximum result after deducting the portion of his costs not recoverable from Green Park. Later that day Mr Conti talked to Mr Andersson about (a) withdrawing and each party paying its own costs. Mr Andersson did not respond to this suggestion; (b)the power and wealth of Mr Weller and the fact that Freehills had engaged in legal terrorism against him on the instructions of Mr Weller; (c) giving a notice of compromise at Mr Andersson's worst position fee wise according to the report of the architects Grey & Gilling which was $40,000. Instructions for this were given by Mr Andersson to Mr Conti next day on the basis that Green Park withdraw its cross-claim. Mr Conti's view was (199T) that if the defendant's experts' evidence was accepted Mr Andersson should still get $40,000. In cross-examination by Mr McAlary QC, Mr Conti confirmed his views expressed above to Mr Andersson and that he found the litigation conducted with some degree of ferocity (193T) and that there were extreme emotional overtones between the parties (194T) and personal animosity (195T). Regarding the cross claim he said (207T) that there were massive areas of conflict between Mr Andersson and Mr & Mrs Weller. Mr Andersson was adamant that he believed Wellers were lying. Mr Conti used the term legal terrorism to try to convey in lay terms to Mr Andersson how ferociously the claim was being defended. He disagreed with Mr Orlov's view that Mr Andersson and Mr Lloyd had not come out of the cross-examination very well (Ex G paragraph 1(viii)) or that their credibility had been destroyed (Ex G paragraph i(iv)). His views on Mr Andersson's prospects of success stated to Mr Andersson in the telephone conversation on Saturday 2 February 1991 were that his case was good and he advised him that he had reasonable prospects of success (Ex G paragraph 1(ix)). Mr Orlov's telephone call to Miss Pursley About 6 p.m. on Friday 1 February 1991, Mr Orlov telephoned Miss Pursley. It is common ground that the substance of what he said to her was the information set out in paragraph 14 of the particulars summarised above, with the exception of sub-paragraph (xviii). Both Mr Orlov and Miss Pursley deny that anything was said regarding $300,000 security for costs, the subject of that sub-paragraph. The conversation was in two parts with a brief interruption. From some stage, during the first part, Miss Pursley took notes of the conversation recording the substance and effect of a large part of it. These notes form part of her evidence. The conversation lasted well over one hour and the information about the case and its conduct given by Mr Orlov to Miss Pursley was very detailed. According to Miss Pursley's declaration (Ex P1 paragraph 35) Mr Orlov said to her, inter alia, words to the following effect: "The first two days of your friend's arbitration are now finished and the inequality between the sides is a total embarrassment. John Andersson's case is being devastated. I feel sorry for Andersson's wife and children In October 1990 my client made a formal offer of compromise, the effect of which is that John Andersson will have to win more than $60,000 on his claim to succeed and I think this is most unlikely. There is also a $1.2 million cross-claim against him which is a valid claim and a serious threat. There is a real risk that Andersson will lose his house. I understand that he is not a wealthy man. I am very concerned that his wife and children will be out on the street as a result of this case. John Conti has totally failed to protect his client, and his brother David, who is the barrister in the matter also put up a weak performance which resulted in the credibility of Andersson and his expert witness being destroyed." He also spoke about the offer of $40,000 plus costs made by Mr Conti, its technical defect as it allowed only 14 days instead of 28 and that because it was linked to the result of the cross-claim it meant that Mr Andersson had to be totally successful on the cross-claim, for it to have any effect. Miss Pursley's declaration (Ex P1 paragraph 36) states that at the end of the conversation Mr Orlov said words to the following effect: "John Andersson should make a counter offer of either a payment of some money or if no money an absolute apology. I don't think money is the main issue for Arthur. What would be of more importance to him is a complete apology and withdrawal of the allegations made by Andersson. Arthur sees the matter as an attack on his honour. I think Arthur might accept such an offer. I feel sorry for John's wife and children and the prospect of them losing their house. Would you speak to them about the risk involved in continuing with the litigation? If you do speak to the Anderssons I will need to tell Conti. I have already told Conti everything I am telling you." The only part of the account given by Miss Pursley of this conversation which Mr Orlov challenged was the last sentence quoted above. He agreed that he had read her declaration (Ex P1) from which the above passages are quoted and the notes taken by her of part of the conversation. He agreed that these notes were a record of the subject matter discussed (216T) and that nothing in them was misleading(221 T). He did not see the need to file a declaration giving his recollection of that conversation (215 T). He denied saying what was attributed to him in the last sentence. He agreed in cross-examination that he had not put to the Contis, solicitor and counsel, everything that he told Miss Pursley in the telephone conversation. He had however, made a number of statements to Mr Conti about the basis upon which he thought Mr Weller would settle and about Mr Weller's intentions and what he thought was important to him (234 T). The call finished with Miss Pursley saying in effect: "I'll think about it. I had already arranged to see them socially on the weekend." (Ex P1 para 36) Mr Orlov's purpose Mr Orlov's acknowledged purpose in speaking to Miss Pursley was: 1. she was to speak to Mr Andersson in the capacity of a friend to ensure that he understood that Mr Orlov's statements to Mr Conti to the effect that Mr Weller was prepared to settle only on his terms was not mere posturing; and 2. to ensure that Mr Andersson had turned his mind to the risks to which he was exposing himself if he continued the litigation. (Ex 01 paragraph 89) In this context, it is relevant, to refer to Mr Orlov's evidence (Ex 01 paragraph 28-43) relating to the attempts to settle the proceedings in August 1990. Mr Orlov gives the following account: On 14 August 1990 Mr Weller instructed him to attempt to settle the matter for up to $50,000 plus a further payment in respect of disbursements incurred by Mr Andersson on behalf of Green Park in return for Mr Andersson writing a letter of apology, which also was to withdraw any suggestion that he may have made to the effect that Mr or Mrs Weller or Green Park did not proceed with the project because of lack of funds. An offer to settle for $45,000 in return for Mr Andersson's letter of apology was communicated to Michael Kah (of Emil Ford in the absence of Mr Conti) on 16 August 1990. A few days later Mr Conti advised Mr Orlov that this offer was not acceptable and Mr Andersson wanted to proceed with mediation. There were several further telephone conversations between them during which Mr Orlov told Mr Conti that Mr Weller felt very "steamed up", the matter could become a crusade for him, he had the resources to take Mr Andersson to the cleaners and allegations were likely of incompetence and holding out as architect. Mr Conti told Mr Orlov that Mr Andersson was very emotional about the issue, denied bad-mouthing Mr Weller and wanted a meeting with him and Mrs Weller. The meeting was refused. In response to a request for a sensible financial offer from his client, Mr Conti conveyed an offer from Andersson to settle for payment of $95,000 plus Council's fees and costs of $4,500 and agreed to provide the letter of apology. At this stage, Mr Orlov disclosed his instructions to go to $50,000 and said he would recommend $60,000 but if it was any more than that his client would have to admit that he was mistaken as to the terms of the contract and he would not do that. Mr Conti came back on 23 August 1990 with the information that Mr Andersson would not settle for less than $95,000. Mr Orlov formed the view that Mr Andersson's decision had been clouded by emotion and that he had not given sufficient weight to the risks to which he would be exposing himself by pursuing the litigation. Further he believed that Mr Andersson's decision not to settle had been ill-judged. He believed Mr Weller to be a very wealthy man who was determined to make the litigation as protracted and difficult as possible. He communicated these views to Mr Conti telling him that the costs of the proceedings would be out of all proportion to the dispute, Andersson had got a tiger by the tail and asking whether Andersson really understood what he had got himself into and that Weller could afford to take it all the way. He also made statements that the case was going to turn on who was believed and that the defence would attack Andersson's credibility and when the matter was finished he would have no professional credibility and would not be able to show his face around the Bowral area. In paragraph 42 of his declaration he stated that on each occasion he made those statements it was his impression that Mr Conti did not take what he was saying seriously and that he and his client were merely posturing. It was Mr Orlov's impression that Mr Conti was confident about Mr Andersson's prospect of success. Mr Conti in his evidence (Ex G para. 1(i) and (ii)) agreed that the statements outlined above were communicated to him by Mr Orlov, but denied that he did not take seriously what he told him. Mr Orlov asserted in his declaration (Ex 01 paragraph 90) and confirmed in oral evidence (225 T) that it was not his intention: (a) to ask Miss Pursley to advise the Anderssons in relation to their rights or prospects, nor that she should do so, nor (b) to ask her to participate in any negotiations, nor that she should do so. In reply to questions put to him in cross-examination by Mr Wales regarding (a) above he agreed at 226T that he contemplated that Miss Pursley might well communicate to the Anderssons the proposition that in his opinion the case had been going badly for them. Then came the following exchange at 226T: Q. That necessarily involved Miss Pursley saying something to the Anderssons about their prospects? A. I don't believe so, telling them something about my view of their prospects. Q. Do you adhere to the statement in your declaration that it was not your intention to ask Ms Pursley to advise the Anderssons in relation to their rights or prospects? A. Yes. Q. Well, did it not occur to you that your opinion about the Anderssons' prospects of success, even if conveyed by Ms Pursley as your opinion, might well carry considerable weight for the Anderssons? A. Yes." Mr Orlov also stated in paragraph 90 that the views he intended to express to Miss Pursley about the performance of Mr Andersson and Mr Lloyd in cross-examination were similar to the views Mr Collins had expressed to Mr David Conti during the negotiations and further, that the information he intended to convey as to the terms on which Mr Weller was prepared to settle, was information that he had already conveyed to Mr Conti. In his oral evidence, at 216T, Mr Orlov agreed in cross-examination with the following propositions put to him by Mr Wales relating to his call to Miss Pursley: 1. his purpose was to induce her to speak to the Anderssons; 2. he assumed that if she did this she would do so promptly over the weekend; (Miss Pursley had in fact told him she planned to see them socially that weekend.) 3. he hoped she would speak to them; 4. he realised that if she spoke to the Anderssons it was inevitable that she would tell them that she had spoken to him (223 T). He gave the following evidence at 224T: "Q. Then what understanding did you have about what Miss Pursley would say to the Anderssons as a result of your phone call to her? A. Well, I didn't really have any understanding of what she would say. Miss Pursley didn't say anything to me which would indicate that. I put before her as fully as I could my views on the case, on every aspect of the case. I was hopeful that she would speak to the Anderssons; I was hopeful she would emphasise the determination of my client in the litigation in her own words and that she would ensure that Mr Andersson had given some consideration to his risk in these (sic) litigation. How she put it or what she said or what information she provided I didn't turn my mind to." And at 225T: "Q. So that it was in your contemplation, as you spoke to Miss Pursley on the Friday night, that she might convey to the Anderssons any part of what it was that you were saying to her? A. Yes. Q. Including propositions the substance of which was that the Anderssons had been out-gunned in every respect? A. In my view, yes. Q. Including propositions the substance of which was that the Anderssons' own lawyers had not served them well? A. In substance, yes. Q. Including propositions the substance of which was that in all likelihood the case would go badly for the Anderssons? A. Yes. Q. And they were all amongst the matters which you contemplated that Miss Pursley would communicate to the Anderssons as being your opinion about the proceedings? A. Yes." Considering that evidence, the conclusion arises that: if, as Mr Orlov hoped, Miss Pursley spoke to Mr Andersson and passed on to him the information he had given her regarding his views of the case, the very likely and very foreseeable result would be that Miss Pursley would become engaged in advising the Anderssons regarding their rights and prospects. This would happen because: (a) she was a close friend of the Anderssons (b) she was also a solicitor (c) he told her that Mr Andersson's legal advisers had not served him well with devastating results for them (d) the time until the next hearing day was very short and (e) he told her that if there was no immediate settlement there was substantial risk that (i) Mr Andersson's professional and personal reputation would be severely damaged and (ii) he would be bankrupted. In these circumstances the statement made by Mr Orlov that it was not his intention to ask Miss Pursley to advise the Anderssons nor that she should do so, as set out in paragraph 90 of his declaration, is simply not credible. Having in great detail supplied her with his assessment of Mr Andersson's case, he thereby laid all the ground work for her, not only to communicate that assessment to Mr Andersson, but also to advise him. Experienced as he was it should have been obvious to Mr Orlov that in the process of or as a result of Miss Pursley passing on his detailed assessment of Mr Andersson's case, including his views about the performance of his legal advisers, Mr Andersson would turn to Miss Pursley for advice and that she, exposed to the pressure of friendship and in the context of all the other circumstances mentioned above, would give it. There is a total inconsistency between his stated intention on the one hand and his supplying her with all the information as he did on the other hand. Mr Orlov told Miss Pursley in the conversation on 1 February, 1991 (Ex P1 paragraph 35) that he felt sorry for Mr Andersson's wife and children and that he was very concerned that they would be out on the street as a result of this case. The various statements he made to Mr Conti regarding the costs and Mr Andersson's exposure appear in paragraph 41 of his declaration Ex 01 as follows: "The costs of these proceedings are going to be out of all proportion to the amount in dispute." He also said on a number of occasions: "Andersson has got a tiger by the tail." And words to the effect: "Does Andersson really understand what he has got himself into? Weller can afford to take this all the way." And words to the effect: "The case is going to turn on who is believed. We have got to attack Andersson's credibility. When this is finished he will have no professional credibility and he won't be able to show his face around the Bowral area." No reference is made in those statements to Andersson's wife and children. By referring to them in the conversation with Miss Pursley, Mr Orlov increased the persuasiveness of his approach to her. Mr Orlov asserted, in response to questions put to him by Mr Wales (at 226T), that he understood as a solicitor that his duty was to Mr Weller, that in the conduct of the litigation with Mr Andersson his obligation was to get the best result properly available for Mr Weller and that he understood that he could not be deflected from that course by any sympathy which he felt for the other side. He asserted that throughout the litigation he acted towards Mr Weller consistently with his obligation to him and he did not in any sense sell him short or fail to discharge his obligation to him and his company out of concerns for the Anderssons (227T). He further asserted that the settlement which was ultimately achieved gave Mr Weller what he wanted (229T) and agreed with Mr Wales that the advantage that Mr Weller saw in it was a personal and psychological and social one (230T). As solicitor for Mr Weller, Mr Orlov's obligation was to serve his client's best interests as he asserted he did. The moment he became motivated by concern for the other party this would impinge on his obligation to his client. His evidence showed that he prepared his client's defence and cross claims carefully and diligently (Ex 01 para 46& 47) Mr Conti's evidence was that Mr Orlov conducted his client's case with ferocity. His claim to Miss Pursley that he approached her out of concern for Mr Andersson and his family is inconsistent with this evidence. The Tribunal does not accept that his approach to her was made out of such concern. If such concern had become a significant factor in his handling of his client's case, it would have been inconsistent with his obligations to his client. Solicitors engaged in litigation are aware of the effect on the opposition of high costs as confirmed by the evidence of Mr Conti. The relation between the matter in dispute and the costs of the action must be a primary consideration in the advice given by a solicitor to his client. In that context the effect of the financial exposure of the other party is commonly a subject for comment in the course of negotiation as Mr Conti's evidence (202T) also indicates. The evidence in this matter, that in his conversations with Mr Conti, Mr Orlov made a number of references to the risks and exposure which Mr Andersson was facing, to the disproportionate costs and to the possible loss of his house is in line with the usual considerations and negotiations which occur in the course of litigation. The Tribunal does not accept that Mr Orlov's concern for Mr Andersson went beyond these usual parameters. It does not accept his evidence that his motivation in involving Miss Pursley was his concern for Mr Andersson. Mr McAlary QC submitted that to make the case out against Mr Orlov, Counsel for the Law Society needed to put, as a matter of fairness, very precisely to Mr Orlov that his purpose in speaking to Miss Pursley was to get a settlement on Weller's terms and that it was false to assert, as he had asserted in his evidence, that his purpose was to protect the Anderssons from a financial disaster that was looming (308T). He argued that this was never put fairly or squarely to Mr Orlov. Mr McAlary conceded that it was one of Mr Orlov's purposes to get Miss Pursley to speak to the Anderssons but he contended that it could not be said from this admission that Mr Orlov's purpose was to get the Anderssons to accept Mr Weller's offer. Indeed, on the Friday night Mr Weller's offer did not even exist. The Tribunal cannot accept these submissions. True it is that the offer which was ultimately accepted was not formulated until the Sunday. Mr Weller changed his position on the Friday. He instructed Mr Orlov that he would be receptive to an offer along lines suggested by Mr Orlov and would be prepared to drop the cross-claim but only if an offer was forthcoming promptly. (Ex P2 page 59) But in order to reach a settlement it was first necessary to prepare the ground to make Mr Andersson receptive to the offer. Up to the time when Mr Orlov spoke to Miss Pursley, Mr Andersson had not been receptive to any such offer. On Mr Orlov's own evidence the information which he relayed to Miss Pursley on the Friday included specific details of how the prospects of settling the proceedings might be significantly improved. He admitted that his purpose in speaking with her was to see if he could put together a settlement (254T). It was in his contemplation that she would convey to the Anderssons details of the possible settlement (225T). She did so and thereafter Mr Andersson became receptive to the offer which culminated in the settlement. The settlement gave Mr Weller what he wanted, an advantage that was personal psychological and social in his view. Looking at this evidence the inference clearly arises that Mr Orlov's purpose in speaking to Miss Pursley included bringing about the advantage to Mr Weller reflected in the settlement which was ultimately achieved. Miss Pursley's telephone conversation with Mrs Andersson On Friday, 1 February, 1991 there was the telephone conversation between Mrs Andersson and Miss Pursley referred to earlier. Each of them, in her evidence, asserted it was she and not the other who initiated the call but nothing turns on this. They had spoken on the previous evening after Mr Andersson had experienced a stressful day. According to Miss Pursley she asked "How is John today?". Mrs Andersson said he was feeling better, the day had gone well and he was optimistic. (Ex E para 3(xiii)) Miss Pursley then told her that she had just spoken to Mr Orlov and he had told her how badly the case was going. She mentioned that Mr Orlov believed that Mr Andersson had lost his credibility because of the inclusion of drawing S3 and that his expert witness had performed very badly. Mr Orlov did not believe John Andersson would get more than $60,000 and as a result he would have to pay Mr Weller's legal fees which could amount to $150,000. Miss Pursley was alarmed at what was happening to her close friend because what Mrs Andersson had said to her was quite contrary to the position as told to her by Mr Orlov. Mrs Andersson appeared not to understand the costs effect of the $60,000 offer of compromise nor the litigation process and risks involved. Miss Pursley formed the view that their solicitor had failed to tell them the matter could be settled and failed to advise them properly (Ex P1, paragraph 40). She was concerned about their position and offered to drive to Bowral the next day. Next morning her offer was accepted and she made the trip. Before doing so she made some best case/worst case calculations regarding what the Anderssons stood to gain or lose by continuing with the litigation on the basis of the information given to her by Mr Orlov. She did not consider the legal merits of the case on either side but rather the practical outcome in dollar terms of various possible legal outcomes (Ex P2 paragraph 43). Mrs Andersson was extremely shocked to hear what Miss Pursley had to say. She was suspicious of Mr Orlov's motives and told this to Miss Pursley. She asked Miss Pursley if she had considered Mr Orlov's possible ulterior motive. According to Mrs Andersson the conversation about this took place on the telephone on the Friday evening. Miss Pursley's evidence (Ex P1 paragraph 46) was that on Saturday 2 February in Bowral she told Mrs Andersson: "You have to view critically anything Michael Orlov says. Although it is my understanding that he approached me out of his concern for you, he is acting for the other side and will be putting everything in the best possible light from his client's point of view. I thought very carefully about why he approached me. I do believe that he approached me out of concern for you, but my assessment could be wrong." Miss Pursley denied that she said, as claimed by Mrs Andersson, that she had thought about a possible ulterior motive but could not see what that could be. She said (Ex P1 para 91) that she was from Mr Orlov's initial contact mindful of the fact that he could simply have been using her to try to achieve a settlement for his client and although she did not believe that to be the case, she foreshadowed that possibility to the Anderssons during her conversations on Saturday 2 February 1991. The events of Saturday 2 February 1991 In the morning Mr Andersson spoke by telephone with Mr Conti (the first call) and asked if the offer of compromise of $60,000 was still in effect and if it meant that if a lesser amount was awarded then Mr Andersson would be responsible for Mr Weller's legal costs. Mr Conti confirmed that this was in fact correct. On hearing this Mr and Mrs Andersson were shocked and frightened. (Ex D pg 60) Miss Pursley arrived at the Andersson's home in Bowral late on Saturday morning. There are differences between her and the Anderssons about what was said. Miss Pursley's evidence was that she stated to the Anderssons that she was in a very difficult situation with Freehills acting for Mr Weller against them and her being unable to give them legal advice; that she was concerned about the risks they were facing and wanted to make sure they understood the ramifications of what they were doing; and that what Mr Orlov had said to her the previous day seemed at odds with what they were being told. Mr Andersson denied that this was said (Ex F para 2 (viii)) and Mrs Andersson conceded that she may have said some of it and could not recall that she said that she was unable to give them legal advice (Ex E pg 8). Mr Anderson talked in detail about the case for about an hour. He seemed stressed and sweated profusely. He described himself as being "in a total state" (91T). There was discussion about the $60,000 offer of compromise. Miss Pursley relayed to Mr & Mrs Andersson in general terms the observations of Mr Orlov summarised in para 14 sub-paragraph (i) (ii) (iv) (v) (vi) (vii) (viii) (ix) (xi)(b)(xii) (xiv) and (xvi) of the particulars of the complaint but not the other sub-paragraphs. Details of paragraph 14 of the particulars and its sub-paragraphs are set out earlier. The substance of those sub-paragraphs which Miss Pursley passed on to the Anderssons include Mr Orlov's views of the progress of the litigation, the poor performance of Mr Andersson's key witness, Mr Andersson's performance in cross-examination and the evidence which suggested that he had been untruthful and held himself out to be an architect when he was not; also, that Mr Weller was determined to crush him, that if there was no immediate settlement there was a substantial risk of bankruptcy for Mr Andersson, the need to assess the risk of continuing the litigation and whether he could afford the risk of losing, that Mr Orlov's views may be coloured as solicitor for Mr Weller and the proposition that the prospect of settling the proceedings might be significantly improved if Mr Andersson gave an unconditional apology to Mr Weller and retracted the allegations made in the proceedings. There was discussion about the best case/worst case calculations made by Miss Pursley. She made some alterations to her figures as a result of things said to her by Mr Andersson. A copy of her best position summary was annexed to her declaration filed in the proceedings (Ex P1 annexure C). She said she emphasised to the Anderssons that she knew nothing about the case and its merits and could not advise them on the case or their prospects of success. She had "been told certain things by Michael Orlov but they must of course be viewed critically as he will be presenting everything in the best possible light from his client's point of view... However, you should be aware that whatever Michael has told me he has assured me that he has also told John Conti." (Ex P1 para 53) Mr and Mrs Andersson both denied that she said what is set out in this paragraph. (Ex F para 2 (xiii) and Ex E para 3(xxii). Miss Pursley asked if Mr Andersson had been advised of his prospects of success. When he answered no she said: "You should ask your solicitor what your prospects of success are as you need to weigh the chance of success against the risk of losing bearing in mind the offer of compromise which has been made. It seems to me you would want to be at least 75 per cent sure of winning given the risks involved." (Ex P1 para 54) Mr Andersson then made a telephone call (the second call) and came back saying that John Conti could not advise him whether or not he had a better than 75 per cent chance of winning. In his oral evidence before the Tribunal Mr Andersson was questioned about the conversation with Miss Pursley on the Saturday. The following evidence was given at 58 and 59T: "Q. Had Mr Conti up to this point in time given you any advice as to your prospects of getting a judgment in excess of $60,000? A. No, he never mentioned any success or failure rate. Q. When Miss Pursley came to Bowral did she suggest to you that you should ask Conti to advise you what your prospects of getting in excess of $60,000 were? A. No, that wasn't the question. Q. Didn't Miss Pursley suggest to you at your home in Bowral on the Saturday that you should telephone Conti and obtain advice from him as to your prospects of getting a judgment in excess of $60,000? A. No. Q. Did you deny that this is something which she said to you on that morning? A. That was not mentioned. Q. Are you sure of that? A. Yes. Mr HELY: Might the witness have exhibit P1? (shown to witness) Q. Please turn to page 15? A. Yes. Q. Could you look at paragraph 54? A. Yes. Q. Do you see about half-way down there is a conversation deposed to by Miss Pursley? A. Yes. Q. Could you tell me whether it is your evidence that a conversation to that effect took place between you or whether it is your evidence that it did not? A. You are asking me if Miss Pursley asked me this question? Q. Yes. A. Yes, she did. Q. Is what Miss Pursley has there set out a correct record of a conversation which took place between you in Bowral at your house on the Saturday? A. Yes, not exactly word for word but the meaning of it, yes. Q. It is the substance of it? A. The substance is correct. Q. What Miss Pursley was suggesting to you in this conversation was that you should consult Mr Conti? A. Yes. Q. To get his advice as to your prospects of success? A. Yes." The above exchange indicates, and there were other similar instances, that Mr Andersson's memory was not entirely reliable. Mr Andersson could not recall that he had made an offer of settlement of $40,000 on Friday 1 February, 1991. He was then referred to a written statement which he had made in June 1991 and in particular to his reference in it to an incident which took place on the afternoon of Friday February 1 after the hearing on the second day of the arbitration, at a meeting in the chambers of his barrister, David Conti, relating to a possible settlement. His oral evidence then was that the meeting had happened not on the Friday but on the Thursday, on the first day of the arbitration. A similar confusion regarding events on the Thursday and Friday of the arbitration appears on pages 44,45,47, 48-51 and on page 88 in the transcript. Mrs Andersson gave oral evidence about the Saturday meeting with Miss Pursley which may be summarised as follows: 1. Miss Pursley told the Anderssons that she was not familiar with the case herself. 2. They should contact Mr Conti to obtain advice as to their prospects of success. 3. Mr Andersson rang Mr Conti who could not guarantee him a 75 per cent chance of succeeding (147T). (the second call) 4. Miss Pursley may have said something to the effect that she could not advise the Anderssons on the case and their prospects of success (148T). The effect of her evidence is summarised in the following answer given by her to Mr Hely QC in cross-examination at 148T: "Q. During the course of the discussion on this afternoon did she say something to the effect that a settlement seemed to be possible on the basis of your husband making no payment and, if that is what he wanted, he should instruct Conti to attempt to secure it? A. Look, there was a lot said on that day and it was mainly between my husband and Stephanie. I was listening, but I was so shocked and distressed by what was emerging from the conversation, I really lost the context of it and I can't say for sure whether words to that effect were actually made." According to Miss Pursley, when Mr Andersson went to telephone Mr Conti, she could not hear Mr Andersson speaking. Mrs Andersson, who said she was sitting about a metre or two away from Miss Pursley, said she could hear clearly what Mr Andersson was saying on the telephone. The sliding door was open between the room where he was and the room where she and Miss Pursley were, both ladies were silent while the conversation took place and Miss Pursley appeared to be listening. (Ex E para 3 (xxiv)). In her oral evidence (285T) Miss Pursley agreed that she was within ear-shot but confirmed that she did not listen to the conversation, she may have heard an odd word, but she did not hear the conversation. She and Mrs Anderson were making desultory conversation- there were pauses but they were talking (286T). Mrs Anderson stated that during the telephone conversation she heard her husband say: "It's a legal lady from Bowral" (Ex E para 3(xxiv). In his declaration (Ex G para 1 (vii)) and in his diary note dated 2/2/91 (Ex P2 annexure C) written about a week after the event Mr Conti placed this conversation at 11.45 am on Saturday 2 (the first call) and referred to Mr Andersson saying that a lady solicitor from Bowral was coming to advise him and his wife today. This places the conversation before the arrival of Miss Pursley and is more likely to be correct than Mrs Andersson's evidence with which Mr Andersson agreed which places it in the second phone call. Mrs Andersson said in oral evidence that it was decided between her husband and Miss Pursley on this Saturday that they should not tell Mr Conti that Miss Pursley was there (166T). She made no reference to this in her statements made in 1991 and 1994 (78T 79T). Mr Andersson also made no reference to this in his first and second statements. Miss Pursley denied (Ex P2 para 6) that she told Mr Andersson not to tell Mr Conti she was there as claimed by him (Ex F para 2 (xviii)). The Tribunal is of the view that the evidence of Mr Conti comprised in his diary note (albeit not a contemporaneous record but one made about a week after the event) (190T) and that of Miss Pursley is more likely to be correct than that of Mr and Mrs Andersson. If the "lady from Bowral" statement was made during the first call before Miss Pursley arrived in Bowral it is inconsistent that she asked him not to tell Mr Conti she was there. The Tribunal is not satisfied that she said this. After the second phone call Miss Pursley asked the Anderssons whether they wanted to attempt a settlement then or wanted to wait until the outcome of the arbitration (Ex P1 para 56). Mr Andersson thought it better to settle now but said he could not pay Weller anything (Ex P4) His costs to Mr Conti at that stage were around $75,000. He had borrowed the money for costs from his bank on the security of his home. Miss Pursley then said (Ex P1 para 56): "A settlement seems to me possible on the basis of no payment and if that is your requirement you should instruct Conti to attempt it." She then wrote out, at Mr Andersson's request (93T), the instructions which he should give to Mr Conti to effect a settlement. The substance of the settlement was that the proceedings be discontinued, that no payment be made between the parties, that each party pay his own costs and that Mr Andersson would write a letter of apology to Arthur Weller. Mr Andersson telephoned Mr Conti (the third call) and instructed him to settle on this basis. Mr Conti (Ex B para 6) received the instructions about 6.30 pm on the Saturday. He attempted to telephone Mr Orlov who was out that evening. Mr Orlov phoned him back at 8.30 am on Sunday. The $300,000 security for costs According to Mr Andersson (Ex A para 5), Miss Pursley told him in the course of their discussions on Saturday 2 February that she had been told by Mr Orlov that Bruce Collins would make a demand on Monday (4 February) that he deposit $300,000 into Court by way of security for costs, that if he did not pay this Mr Collins would ask that the case not proceed and he would keep the matter out of Court for 2-4 years. Mr Andersson's oral evidence was that he was shocked and alarmed at this prospect (64T). John Conti had not alerted him to the possibility of his having to put up security for costs. He could not recall raising the matter with Mr Conti in any of his conversations with him on the Saturday, although it weighed heavily on his mind. He could not raise this sum and that if the information given by Miss Pursley was correct it meant the end of his case. No reference was made to this matter in Mr Andersson's statement of June 1991. It first appeared in his statement of 13 July 1992. His explanation for the omission was that he omitted material from the earlier statement because he wanted to go soft on Miss Pursley (68T). Miss Pursley denied that there was any reference to security for costs in her conversation with the Anderssons on the Saturday (Ex P para 84). She thought (284T) that they could have got confused between the costs effect of the offer of compromise which was discussed and security, which was not mentioned. There is no reference to security in Mr Orlov's evidence of what he told Miss Pursley in the Friday call nor in Miss Pursley's. Mr Orlov denied in oral evidence that there was any conversation on the question of security for costs between him and Miss Pursley on the Friday (255T). If, as the Anderssons claim, Miss Pursley told them of the prospective demand for $300,000 on the following Monday, it is beyond probability that Mr Andersson in his two calls to Mr Conti after Miss Pursley's arrival on Saturday would not have raised this aspect of the matter and sought his confirmation. It is equally unlikely that he would have canvassed with Mr Conti the percentage of success question. In the light of all the evidence the Tribunal accepts Miss Pursley's evidence on the matter. Mrs Andersson, (Ex E para 3(xviii)) supported her husband's evidence regarding the demand for payment into Court of security to be made on Monday, and that they had no inkling of this until told by Miss Pursley (149T). There was no prospect of being able to pay this and it came as a great shock. She agreed in cross-examination (150T) that her husband did not ask Mr Conti whether and why this payment had to be made and it would have been a natural response to ask him. Also that $300,000 did not figure in the best case/ worst case calculations which Miss Pursley and her husband and she did that day (155T). No reference to this payment appeared in the statements made by the Anderssons in July 1991. There was no way they could have put up security by Monday and if there had been a discussion about it then after that it would have been quite pointless to consider their prospects of success (165T). Mrs Andersson could only say that she felt very disorientated and helpless at that time (165T). Her evidence that Miss Pursley spoke to them regarding the demand for security is rejected. The events of Sunday 3 February 1991 At 8.30 a.m. Mr Conti had a telephone conversation with Mr Orlov and told him Mr Andersson wished to settle on the basis that all proceedings be withdrawn, no order as to costs and that Mr Andersson would provide a letter of apology. Mr Orlov claimed that this conversation did not alert him to believe that Miss Pursley had indeed spoken to Anderssons. One has to look at this claim in the light of the events leading up to this Sunday. There had been, on Mr Orlov's and on Mr Conti's evidence, a number of attempts to settle between 16 August 1990 and 1 February 1991. On the Thursday and the Friday of the arbitration hearing the settlement attempts intensified. They became deadlocked and no settlement could be achieved. Mr Orlov then enlisted Miss Pursley and impressed on her the urgency factor if the matter was to be settled. Within 48 hours Mr Conti makes the offer which is significantly more favourable to Mr Orlov's client than any previous offer - both parties are to withdraw, no costs and a letter of apology. It is not credible that Mr Orlov did not, in this scenario, conclude that Miss Pursley had made the contact he had wanted her to make with the Anderssons. Mr Orlov told Mr Conti he did not think Weller was likely to accept a settlement without some contribution to his costs. When Mr Conti stated that in that case Mr Andersson would have to fight on Mr Orlov suggested that his prospects of being able to persuade Weller to accept the settlement may be improved if he could go to Weller with Andersson's letter of apology. Andersson should write the best apology he could in his own words - "if he wants to get out of this he is going to have to eat crow" (Ex 01 paragraphs 116-120). In this conversation Mr Orlov made no reference to Miss Pursley. He claims he did not know at that time that she had spoken with the Anderssons. There is a conflict between the evidence of Mr Conti according to whom Mr Orlov said he would get instructions and get back to him later that day and Mr Orlov who to his best recollection did not say this and claimed the conversation ended on the basis that Mr Conti said he would see what he could do about the letter of apology. Mr Orlov's understanding was that he would hear back from Mr Conti whether Mr Andersson would provide the apology as he had suggested. Mr Conti did not dispute any part of the conversation relating to the apology Mr Andersson was to write. There is no evidence that he telephoned Mr Andersson about obtaining it that day. This lends credence to his version that Mr Orlov said he would get back to him and that he was waiting to hear from Mr Orlov. Mr Orlov then telephoned Mr Weller and advised him of the terms of the offer. This call is more consistent with Mr Conti's version than Mr Orlov's. The Tribunal therefore accepts the evidence of Mr Conti on this point. Miss Pursley phoned Mr Orlov at home later on the Sunday morning. Mr Orlov's evidence was that she told him she had seen the Anderssons on the Saturday and wanted to check that Mr Conti had relayed the settlement offer. She said Mr Andersson had borrowed heavily to fund the litigation, had incurred costs of about $80,000 and had no capacity to make any contribution to Mr Weller's costs (Ex 01 para 125-127). He then told her about his telephone conversation with Mr Conti and what he had said about the apology, also that he was pessimistic about the prospect of persuading Weller to let Mr Andersson off the hook and the best chance would be if he could go to Weller with a letter of apology (Ex 01 para 128). Miss Pursley made notes of the main points Mr Orlov said should appear in the apology including that it should be sealed and no one apart from Mr Andersson and Mr Weller read it (Ex P1 para 61). Miss Pursley then offered to get Mr Andersson to write it straight away and forward it to her. She disagreed with Mr Orlov about the financial conversation - she placed that as occurring when Mr Orlov phoned her in the evening (Ex P1 para 63). She telephoned Mr Andersson and relayed what Mr Orlov told her and arranged for him to facsimile the letter to her office. She drove to Freehills' office at 7.00 pm that night and collected the facsimile letter, put it unread in an envelope and sealed it. Sometime later Mr Orlov collected it from her home on his way to see Mr Weller (Ex P1 para 62). Mr Orlov said that Mr Weller did not believe the serious financial position of the Anderssons. He did not believe Mr Conti but would believe her. What could she tell him about Mr Andersson's financial position. She thereupon telephoned Mr Andersson, told him what Mr Orlov had told her and asked "how bad are things and can I tell Mr Orlov?" (Ex P1 para 64). Mr Andersson gave her some details, he could lose his house. She could tell Mr Orlov that things were very difficult. She then told this to Mr Orlov in a further phone call. Shortly thereafter Mr Orlov phoned her and told her Mr Weller would accept a settlement on the basis of a judgment for $200,000 for him on the cross claim with a deed of release to the effect that the judgment would not be enforced and that this settlement was not negotiable. At this stage he had not informed Mr Conti. According to Miss Pursley he also said: "I am discussing this offer with John Conti and have explained to him your involvement in the matter as a personal friend of Helen and John's" (Ex P1 para 66). Mr Orlov's evidence was that he rang her first because he knew that she would be worried and then rang Mr Conti to tell him the terms of the offer and that in this conversation he said the following to Mr Conti: "I have had several discussions during the day with Stephanie Pursley, who is a partner of mine and a close personal friend of the Anderssons. She had spoken with the Anderssons about the litigation in her capacity as a friend. Andersson's letter of apology has been conveyed to Weller through her on a `without prejudice' basis. I have also informed Stephanie of the terms of Weller's offer." (There is no evidence how Mr Orlov knew at this time that the apology was on a "without prejudice" basis. Miss Pursley did not read the letter before sealing it. There was no evidence that he opened the letter or that Weller showed it to him.) Mr Conti's evidence of this call was that Mr Orlov said: "Stephanie Pursley has been assisting in resolving the settlement in this matter..." Mr Conti did not remonstrate with Mr Orlov about Miss Pursley's involvement. His evidence (206T) was that he was stunned and wanted to talk to Mr Andersson and get him into his office next morning before the decision to settle became irrevocable. Soon after the call from Mr Orlov, Mr Conti telephoned Mr Andersson who instructed him to accept the offer. There is no evidence of anything else which may have been said in this conversation. Miss Pursley phoned Mr Andersson. He had heard of the revised offer from John Conti and had told him that he would accept it. (Ex P1 para 67). Miss Pursley then phoned Mr Orlov and told him of her conversation with Mr Andersson and that he told her he had instructed Mr Conti to accept the revised offer (Ex P1 para 68). Later that evening Mr Orlov rang her and confirmed that the settlement had been agreed. Mr Conti was going to draft the terms of settlement next morning - settlement deed with terms not to be disclosed, but terms otherwise would not be confidential (Ex P1 para 69). Mr Orlov had a number of conversations with Mr Weller on the Sunday afternoon. He called on him about 8 p.m. with the letter of apology. He told Mr Weller that if Miss Pursley said Mr Andersson had no capacity to pay, he believed her. Mr Weller then agreed to the settlement already described and said he was not prepared to negotiate any variation (Ex 01 paragraphs 133- 140). The figure of $200,000 was picked by Mr Weller. Mr Orlov described it as sufficiently large to give the appearance that he had won a substantial victory. It was Mr Orlov's belief that but for the fact that the financial information about Mr Andersson came from Miss Pursley, Mr Weller would not have agreed to settle on the terms which were ultimately agreed (Ex 01, para 139). The events of Monday 4 February Miss Pursley and the Anderssons met at a coffee shop about 11 a.m. Her evidence was that Mr Andersson said he had been trying to contact Mr Conti regarding the settlement papers, did not want anything further to do with him and had asked her to sort it out; (Ex P1 pr 70). She responded that she could not act for him and that getting another solicitor would involve difficulty and delay. Mr Andersson in his evidence denied that there was such a conversation. According to Mr Conti's evidence, Mr Orlov and Mr Conti had a number of discussions about the drafting of the terms of the settlement and the deed of non-enforcement of the judgment. Mr Andersson was due in Mr David Conti's chambers at 9 a.m. but had not arrived by 10.45 a.m. when Mr Conti left. Apparently he came a short time later and uplifted some plans. Mr Conti's evidence was that later that morning he saw Mr Andersson in his office and produced to him the terms of settlement and the authority to settle. This last document contained, apart from an authority to settle on the terms already stated, an acknowledgment by Mr Andersson that he had received from his counsel and solicitors certain advice regarding the length of the hearing, the costs of the hearing and of the reference, the likely determination of the referee, the value of the cross-claim and the cost effect of the offer of compromise. Mr Andersson denied that he had an appointment to be at Mr David Conti's chambers at 9 a.m. or that he went there at all that day (97T). He denied Mr Conti's account that the latter gave him the terms of settlement and authority in his office. He claimed he got the document when it arrived in Miss Pursley's office in the afternoon. The deed of non-enforcement was to be drafted by Mr Conti shortly after he saw Mr Andersson. Mr Conti said he told Mr Andersson that he wanted to go over the authority to settle with him but Mr Andersson said he needed to take it away and talk it over with his wife. Mr Andersson's evidence was that this was all wrong, it did not happen. However when he came to Miss Pursley's office shortly after 2 p.m. he brought the authority with him. He did sign the terms of settlement before Mr Conti. Mr Andersson rang Mr Conti from Miss Pursley's office and asked him to come to her office and bring the deed. Mr Conti arrived at 6.15 p.m. He had faxed a copy of the draft deed to Freehills. Mr Conti wanted to discuss the deed with Mr Andersson in private whereupon Mr Andersson refused and said he could do it with Miss Pursley (Ex D p31). Mr Conti saw a copy of the deed on Miss Pursley's desk and noted that she had made some changes to it. They were of no real consequence. Mr Andersson signed the deed in Mr Conti's presence and Miss Pursley called up Mr Blacket to collect it. Mr Conti then asked Mr Andersson to sign the authority to settle. Mr Andersson produced it with the paragraphs relating to the acknowledgment of the advice struck out. Mr Conti asked him why he had crossed them out and Mr Andersson said that he was too distressed to deal with these matters. According to Mr Conti, Miss Pursley then intervened saying "it is not appropriate for you to go through those with him now. You don't need that signed for the settlement." (Ex D, P31) Mr Conti decided not to press the issue and left. Mr Andersson claimed in his evidence that Miss Pursley struck out two paragraphs and asked him to initial and sign and said to him (Ex F para 2(xix)): "You don't have to accept that." In his oral evidence (103T) Mr Andersson said he did not have a chance to read the authority. Miss Pursley's evidence was that Mr Andersson said that all the bits acknowledging advice received were untrue and she then suggested "why don't you delete the untrue paragraphs and then sign it?" Mr Andersson could not recollect this conversation. It is apparent that Miss Pursley was at this stage taking an active role as Mr Andersson's legal adviser. It matters little therefore whether she suggested to him to delete the paragraphs in question or whether she deleted them herself. Mr Andersson's evidence about getting the authority in Mr Conti's office is contradicted by Mr Conti and is inconsistent with Miss Pursley's. Mr Andersson was shown a copy of Mr Conti's diary note recording his signing the terms of settlement and taking away the authority. It also recorded other events which happened on 4 February. He maintained that the statements in the diary note were wrong and that his inconsistent recollection of the events was correct. He also said that Mr Conti did not advise him as stated in the authority. Mr Conti's evidence was that he did so advise him. There was in evidence, furthermore, his letter advising Mr Andersson regarding the cost effect of the offer of compromise of $60,000. (Ex H) The Tribunal agrees with Mr Hely QC that in relation to the terms of settlement and authority Mr Andersson demonstrated a refusal to accept reality and a persistence in maintaining a distorted version of the facts in the face of objective evidence to the contrary. It rejects Mr Andersson's evidence on this matter. The aftermath In a letter dated 23 February 1991 to Mr Conti, Mr Andersson expressed his extreme dissatisfaction with the advice given to him by Mr Conti and his brother and his handling of the case. He withdrew all instructions and declined to pay any outstanding accounts. Miss Pursley settled this letter from a lengthy draft prepared by Mr Andersson (Ex D P52)(326T). Mr Conti identified a massive change in Mr Andersson's attitude to him on Monday 4 February. He saw that Mr Andersson wanted to avoid him and felt that things had been said to him, the details of which he did not know (205T). He was greatly disturbed by the meeting at Freehills on the Monday afternoon in Miss Pursley's office and the fact that conversations must have taken place between Mr Andersson and Miss Pursley on the weekend at which he was not present. He saw Miss Pursley's intervention as the cause that led Mr Andersson to form the view that he was not properly advised by Emil Ford. This led to the letter of Emil Ford to the Law Society which led to the complaint. (Ex D P25) Emil Ford wrote to Freehills on 11 April 1991 (Ex D P37) giving notice of their intention to report the matter to the Law Society. They raised the issue of a serious breach by Miss Pursley of proper professional conduct, that it caused Mr Andersson to form a view of the proceedings which led him to agree to a settlement they regarded as disadvantageous to him and that her intervention caused the severance of a solicitor/client relationship with Mr Conti which had existed since 1969. Miss Pursley's response to this appeared in a letter dated 2 May 1991 from her solicitors, Messrs Corrs Chambers Westgarth ("Corrs") to Emil Ford. In this the concession was made that the conduct complained of was unwise and it was suggested in mitigation that it occurred in unusual circumstances because of a close personal relationship and was not intended to interfere with the solicitor/client relationship and that at the time Miss Pursley's experience as a member of the legal profession, to which she was admitted as a solicitor in December 1983, was relatively short. Emil Ford's letter of complaint to the Law Society In its letter of 6 May 1991 to the Law Society which led to the complaint Emil Ford expressed the concerns that: 1. Miss Pursley, whilst a partner of Freehills which acted for the other party, improperly intervened in the action and gave advice to Mr Andersson without reference to Mr Conti. In their opinion the advice which she gave on Saturday 2 February 1991 at a critical stage in the reference proceedings appeared to have been based on instructions given by Mr and Mrs Weller. 2. Miss Pursley improperly in the circumstances advised Mr Andersson in relation to a document prepared by Emil Ford entitled "authority to settle" which related to a matter purely between Mr Andersson and them. 3. Miss Pursley's intervention in the proceedings on Saturday 2 February 1991 may have had serious consequences for Mr Andersson that: (a) he gave instructions to Emil Ford to discontinue the proceedings for a claim for fees which represented six months full time work for him when in their opinion he still had some prospects of success; and (b) as a result of the settlement Mr Andersson was deprived of the distinct possibility of recovering some proportion of his costs. 4. Miss Pursley's intervention caused Mr Andersson to withdraw their instructions in all matters handled by them severing a relationship of solicitor and client which Mr Conti had had with Mr Andersson since 1969. Miss Pursley's response 1. The initial response by Miss Pursley to the letter of complaint of Emil Ford of 6 May was conveyed to the Law Society by her solicitors, Corrs, in a letter dated 16 May 1991 and was summarised as follows: (i) Mr Conti was aware throughout of her close friendship with the Anderssons. (ii) Mr Conti's client Helen Andersson approached Miss Pursley for help. (iii) Mr Conti was informed of Miss Pursley's discussion with the Anderssons by Mr Orlov and made no objection at the time. (iv) Miss Pursley at first refused to get involved because her firm was acting against the Anderssons, but felt compelled to become involved only because of the distress and anxiety suffered by a friend. (v) She told the Anderssons that she was talking to them as a friend and could not give them legal advice, that she could not advise them on their prospects of success and insisted that they ring Mr Conti to get that advice. Throughout the discussion she tried hard not to give the Anderssons legal advice and not to breach the rule but merely to help them understand the situation. Corrs stated that Miss Pursley was aware of the rule that a solicitor must not "without reasonable just cause, communicate directly with the client of another solicitor". Her behaviour was regrettable and in the circumstances she was prepared to provide unconditional undertakings and an unreserved apology to Emil Ford (EX D page 40). 2. From 6 July 1992 Miss Pursley's solicitors in the matter were Messrs Sly & Weigall (Sly & Weigall). On 19 April 1993 they wrote to the Law Society with the submission that while Miss Pursley's conduct may be regarded as a breach of ethical standards it does not amount to professional misconduct being neither statutory professional misconduct nor having the grave impropriety to satisfy the common law test. (Ex D P81) The letter continues: "She does, however, most sincerely regret and apologise for what occurred and she accepts, with the benefit of hindsight, that what she did may be regarded as a breach of her ethical obligations". (Ex D P82) This apology was repeated in a letter of the same date written by Miss Pursley to the Law Society. She also stated her belief that her conduct should not be regarded as professional misconduct and expressed her consent to the matter being dealt with by way of a reprimand. 3. In her oral evidence Miss Pursley confirmed that her concern for the Anderssons was the only motivating factor in her participation in the matter. (269T) She said she thought very hard about Mr Orlov's motives and decided that the reason he contacted her was out of his concern for what might happen to the Anderssons (269T), although she was not 100 per cent convinced that her judgment was right but that was the judgment she made. (269T) When she decided to telephone Mrs Andersson on Friday 2 February she had not resolved to pass on to her what Mr Orlov had said to her. She did not make a conscious decision at any moment in the conversation how much she was going to say, it just unfolded. (271T) She had been in practice for more than seven years by early 1991 and was familiar with the proposition that it was inappropriate for a solicitor involved in litigation to speak directly to the opposing party if that party was legally represented. (274T) She understood at that time that one of the reasons for the existence of the principle was the need to prevent the breaking down by one solicitor of the solicitor/client relationship on the other side of the litigation (274T). She accepted what her solicitors Sly & Weigall wrote to the Law Society on 19 April 1993 set out above conceding a breach of her ethical obligations (274T). However she did not agree that it was a serious falling short of her professional standards in the circumstances. (275T) 4. Her response was summarised in the evidence given by her at 287T. She said that she breached an ethical obligation out of her concern for her friends. She acknowledged that if she were in a similar situation she would not do what she did but would try to find another way of doing something that was not in breach of her ethical obligations (287T). On Thursday 31 January she told Mrs Andersson that she could not do anything to help. (Ex P1 para 33. 291T). On Friday Mr Orlov told her a lot of things which concerned her in great detail. While she recognised her difficult position she felt she could not sit back and see her friends being ruined because of a misunderstanding of the costs of litigation and not do anything (291T). She was greatly concerned when her conversation with Mrs Andersson on Friday revealed that she did not understand the effect of the offer of compromise (291T). At the end of her oral evidence at the hearing, Miss Pursley's position was that she admitted that her conduct constituted a breach of her ethical obligations. She maintained that it did not amount to professional misconduct (292 T). Submissions of counsel for Miss Pursley Mr Hely QC submitted on behalf of Miss Pursley that: (a) Mr Orlov conceded that he knew from an early conversation with Miss Pursley that she wished to distance herself from the matter to avoid prejudicing her friendship; (b) after the Thursday call from Mrs Andersson to Miss Pursley in a state of distress, came Mr Orlov's approach on the Friday suggesting that the true picture was at least as bad as was painted by Mrs Andersson on the Thursday and he tells Miss Pursley that Mr Weller might be receptive to an offer. These events taken in conjunction expose her to not inconsiderable pressure. With regard to this submission the Tribunal refers to the well established principle, which has been frequently affirmed by the Tribunal and by the Court of Appeal, that the pressure which solicitors have frequently in their daily practice to face in making decisions regarding their course of action does not excuse a departure by them from accepted standards of professional behaviour. Mr Wales (248T) gave the example that it is commonly said of solicitors who take money from trust accounts that they were under enormous pressure at the time. This Tribunal reiterates that pressure can never excuse professional misconduct. Solicitors must in the public interest maintain the high standards of behaviour which their responsibilities demand of them and which the public is entitled to require. (c) Leaving aside Mr Orlov's motives, when Miss Pursley spoke to Mrs Andersson on the Friday she had no brief for Mr Weller and her purpose was to assist her friends. (d) During the Friday conversation with Mrs Andersson Miss Pursley had the choice of keeping quiet which would have involved a tacit acquiescence in or acknowledgment of what was being told to her by Mrs Andersson. If what Mr Orlov had told her was true, her tacit acceptance of what Mrs Andersson was telling her would not be an act of friendship because she knew her friends were labouring under a false assumption. The other alternative, as she did, was that she could speak. (321T) This submission must be evaluated in the light of Miss Pursley's acknowledgment that if the same situation were to occur again she would try to find another way of helping her friends that was not in breach of her ethical obligations. Mr Hely and Mr Wales both alluded to the obvious solution of telephoning Mr Conti and there are other ways (324T). She could have said to Mr Orlov when he started his conversation on the Friday that he should desist and that she did not wish to hear any details because she did not wish to get involved. Or she could have said to him when he told her that if she spoke to the Anderssons he would have to advise Mr Conti, that she would not speak to the Anderssons unless he first cleared it with Mr Conti. (e) It was no part of Miss Pursley's purpose to bring about a destruction of the solicitor/client relationship between Mr Conti and his clients. She conceded that what she did may have had some such effect. Mr Hely asked that account be taken of the evidence of Mr Andersson that on the Thursday he had a loss of confidence in his legal representatives. The evidence in question has been quoted earlier herein under the heading Mr Andersson's assessment of the hearing. It contained elements of confusion and inconsistency and for the reasons already stated the Tribunal made the finding that at the end of Friday, the second day of the Arbitration, which was before Miss Pursley had the conversation with Mr Orlov and the subsequent conversation with Mrs Andersson, Mr Andersson had not lost confidence in his legal advisers. There was the evidence of Mrs Andersson, referred to by Mr Hely, to the effect that her perception of the Thursday was that her husband had lost confidence in his legal representation. It is common ground that on the Thursday evening when Mr Andersson rang his wife he was very upset at the way the proceedings had gone that day and her conclusion is not inconsistent with this position. However the Tribunal accepts the evidence of both Anderssons that by the end of Friday he was very optimistic and thought that things had gone well. It was in order to convey that optimism to Miss Pursley that Mrs Andersson called her on the Friday night. Miss Pursley accepted in cross examination that her passing on to the Anderssons what appeared to be Mr Orlov's own thoughts about the conduct of the case would have had a significant effect upon the Anderssons' state of mind (280T). These views were being expressed through her who was a good friend and to that extent she accepted that the opinions of Mr Orlov which she conveyed would have had more impact upon them. She also agreed that on 2 February she was telling the Anderssons that they were, in some respects, being poorly or inaccurately advised. (281T) It is simply not credible that she did not realise at the time that what she was telling them would shatter their confidence in their solicitor and lead directly to the breakdown of the solicitor/client relationship. Having taken the steps which led to the breakdown her claim that it was not her intention that this should happen does not carry any weight. Mr Hely QC referred to some of the more important aspects of the evidentiary conflicts between Miss Pursley and the Anderssons. His first proposition was that before Miss Pursley's intervention Mr Andersson had experienced a loss of confidence in his lawyers, whether justifiable or not. He then reviewed Mr Andersson's evidence. Firstly, the events of Thursday, the first hearing day: (a) Mr Andersson agreed that the proceedings at that stage were causing him and his wife distress and financial hardship; (b) his document to Mr Conti that Mr Weller was seeking "to economically crucify him" and his awareness of that for about six months; (c) Mr Andersson's view that the case was not going well for him; (d) his perception that Freehills were unnecessarily protracting the proceedings and conducting them in an intimidatory fashion; (e) that he was advised by the Contis that if things went against him he could lose his house and that he could consider pulling out on the basis that each party pay their own costs (325T) Secondly, the events of Friday: (a) Mr Andersson's letter of 23 February ("the letter") (Ex P2 page 40 para 17) states that late in the afternoon after the second day at arbitration (Friday) he said to Mr Conti "this is so bad, I want out, nothing is going our way". In oral evidence, Mr Andersson said he wanted to change that evidence to the extent that that was how he felt on the first day, the evening of the Thursday, not after the second day. Mr Hely submitted that in assessing this, one has to take account of the fact that his expert witness, Mr Lloyd, was called on the second day, not on the first, and that it was on the second day that this expert was "torn to shreds". The Tribunal notes that a factor relevant to this submission is that on the evening of Friday, Mr Andersson was feeling optimistic according to his own evidence, that of Mrs Andersson and Miss Pursley's evidence was that when she spoke with Mrs Andersson, the latter told her that Mr Andersson was feeling much better that night. Furthermore, the views expressed by Mr Andersson in the letter are tainted by hindsight. There are echoes in that letter of some of the things said by Mr Orlov to Miss Pursley and relayed by her to the Anderssons but not known to Mr Andersson at the end of proceedings on Friday. It is not safe to rely on this letter as a true reflection of Mr Andersson's state of mind on the first or second day of the hearing. Although on the Thursday Mr Andersson thought that his lawyers had not done the work he expected of them (39T) the position according to his evidence was different on Friday. It is to be noted that in relation to Miss Pursley's intervention Mr Andersson's perception on Friday evening is more significant than how he felt on the Thursday. The Tribunal's finding as stated earlier is that he had not lost confidence in Mr Conti as at Friday prior to Miss Pursley's intervention. (b) His note to Mr Conti dated that Friday with references to the other side crippling him and financially killing him and Mr Andersson pleading for mercy. It was Mr Andersson's evidence that he gave this note to Mr Conti on the Friday morning (47T) and that it reflected how he felt after the Thursday hearing. (c) Mr and Mrs Andersson were disturbed and concerned on Friday evening to hear from Miss Pursley about having to pay Mr Weller's costs if they recovered less than $60,000. Mr Andersson said this came as a matter of surprise and it disturbed him. It is to be noted that there was in evidence a letter, Exhibit H, written by Mr Conti to Mr Andersson on 10 October 1990 which contains advice that if Mr Andersson recovered less than $60,000 he would be liable for his own costs and for the costs of the defendant after 4 October 1990. Thirdly, the events of Saturday (327T): (a) Miss Pursley came to Bowral because the Anderssons asked her to come as they wanted to know more about the discussion between her and Mr Orlov on Friday evening. (328T) (b) Miss Pursley did not seek to have her visit concealed from Mr Conti - her evidence to this effect has been accepted by the Tribunal. (c) Both Mr and Mrs Andersson agreed that they never sought legal advice from Miss Pursley. They supported Miss Pursley's evidence that she told them she was not familiar with the case (61T) and that they should contact Mr Conti for advice as to their prospects of success (147T, 59 & 69T). Mr Hely argued from this evidence that Miss Pursley's disclaimers (331T) as to her capacity to give advice, her disclaimers as to her capacity to advise on the settlement, her statement of the difficult position in which she found herself and her suggestion that they should look to their solicitor, Mr Conti, and get his advice is that they are all inconsistent with any intention to intercept in any perceived improper way the professional relationship which existed between solicitor and client. Rather, he contended, it is seeking to direct the client back to that relationship. Further, that she was doing no more than, at the request of the Anderssons, counselling as a friend and suggesting as part of that counselling process that they should take advice from their lawyers. (331T) There is no doubt that Miss Pursley was not in a position to give advice from any independent knowledge of the case. The fact that she told the Anderssons this and told them of her difficult position is not in issue. But having said these things to them she proceeded to do the very thing she said she could not do. She proceeded to give them legal advice. This was made up of the undermentioned elements - all acknowledged in her own evidence: viz. A. Saturday 2 February 1. her explanation of the risks Mr Andersson was facing in the course of relaying to him Mr Orlov's detailed assessment; 2. the effect of the compromise offer; 3. the best case/worst case calculations and the net financial outcome under each scenario; 4. her statement that Mr Andersson should want to be at least 75 per cent sure of winning given the risks involved; 5. her statement that there is always a chance of settling; 6. asking the Anderssons whether they wanted to settle then or wait for the outcome of the arbitration; 7. when Mr Andersson thought it better to settle then she formulated the terms which were to be the basis of the settlement; 8. she wrote out the settlement instructions which Mr Andersson should telephone to Mr Conti. B. Sunday 3 February 9. At Mr Orlov's request she obtained information from Mr Andersson about his financial position and then relayed it to Mr Orlov for the information of Mr Weller; 10. she ascertained from Mr Orlov the matters which should be stated in the letter of apology to be written by Mr Andersson, conveyed this information to Mr Andersson, arranged for him to fax the apology to her and handed it to Mr Orlov, and C. Monday 4 February 11. she advised Mr Andersson to delete parts of the authority to settle; 12. she read and corrected the non-enforcement deed. In the light of these actions she cannot realistically point to her disclaimer or to the suggestion that Mr Andersson look to Mr Conti for advice as evidence that what she was doing did not amount to giving legal advice and that she was only counselling them as a friend. The Tribunal cannot accept this submission. If she had restricted herself to telling the Anderssons that in her position she could not advise them, that they must contact Mr Conti and must do all they could to settle and if she had gone no further, then her role would indeed have remained within the friend/counsellor limitation which Mr Hely ascribes to her. But she did not so restrict herself. She crossed the line into the area where she was clearly giving legal advice. (d) On the matter of security for costs there is a total divergence of evidence between the Anderssons and Miss Pursley. The Tribunal agrees with the submissions of Mr Hely and has rejected the evidence of Mr and Mrs Andersson on this aspect. Fourthly, the events of Monday (337T) (a) Mr Andersson's evidence is unreliable in claiming that his contact with Mr Conti on the Monday was minimal, limited to picking up some documents and that all the activities were taking place in Miss Pursley's office. The Tribunal has rejected Mr Andersson's evidence regarding these events where it is inconsistent with the evidence of Mr Conti or Miss Pursley. But on the evidence of these two witnesses the facts are: 1. Mr Andersson saw Mr Conti in his office for about 10 minutes and signed the terms of settlement. Mr Conti wanted to go over the authority to settle but Mr Andersson took it away to talk it over with his wife. 2. Mr Andersson brought the authority to Miss Pursley's office and told her Mr Conti wanted it signed before the settlement documents. He told her he did not receive the advice as stated therein. 3. Miss Pursley discussed the document with him and told him to delete parts of it. The Tribunal notes that this was a document relevant only to the solicitor/client relationship. It had no function as between the litigants. 4. Mr Andersson telephoned Mr Conti from Miss Pursley's office several times chasing up the settlement documentation. 5. Miss Pursley read the draft non-enforcement deed prepared by Mr Conti and made some minor corrections on it. 6. Mr Conti arrived in Miss Pursley's office late afternoon. He wanted to discuss the deed with Mr Andersson, who refused, and referred him to Miss Pursley. 7. Mr Andersson signed the deed. Mr Conti asked him to sign the authority. Mr Andersson produced it with various paragraphs crossed out. When Mr Conti asked for an explanation Miss Pursley intervened. These facts show that Miss Pursley had a significant involvement on the Monday with Mr Andersson and substantially more contact with him than Mr Conti did. Except for the terms of settlement the documentation was signed in her office. Mr Hely made two further submissions. One related to a diary note of Mr Andersson dated 27 July 1990 which sought to show that Miss Pursley rang Mrs Andersson on that date saying that Mr Orlov had suggested that Mr Andersson send a without prejudice letter with an offer to settle for $60,000. Both Anderssons said that Mr Andersson listened to this conversation on an extension and he said that the diary note was made by him contemporaneously. He said he gave it to Mr Conti a few days later. There was evidence that Freehills received the statement of claim on 3 August 1990 and Mr Orlov's involvement started on 8 August. Miss Pursley denied the conversation. Mr Conti denied having ever seen the diary note. The Tribunal accepts the submission of Mr Hely that this was a further example of the Anderssons' assertions which are contradicted by the facts. The last submission related to Mr Andersson's costs and the Tribunal accepts that the evidence does not support Mr Andersson's proposition that Miss Pursley induced him to state an inflated figure for his legal costs in his letter of apology to Mr Weller. Mr Orlov's response Mr Orlov was represented by Messrs Ebsworth & Ebsworth (Ebsworths). In their letter to the Law Society of 15.4.1993 the concession was made that in hindsight Mr Orlov appreciated that his conduct may be regarded as unsatisfactory and may amount to a breach of his ethical obligation to a fellow practitioner. In this regard, he sincerely regretted his conduct and expressed his contrition for this breach of standards. In his declaration (Ex 01 para 90) he stated that he considered his professional responsibilities before telephoning Miss Pursley. He took the view that it was not improper for him to call her. His reasons were: (a) although she was a partner he believed that it would not be improper to ask her to speak with the Anderssons in the capacity of a friend; (b) it was not his intention to ask her to advise them on their rights or prospects nor that she should do so; (c) it was not his intention to ask her to participate in any negotiations nor that she should do so; (d) the views he intended to express about Mr Andersson's and Mr Lloyd's performances were similar to views which Mr Collins had expressed to Mr David Conti on 31 January 1991; (e) the views he intended to express about Mr Weller's intentions in the litigation were views he had expressed to Mr Conti many times and (f) the information that he intended to convey as to the terms on which Mr Weller was prepared to settle was information he had already conveyed to Mr Conti. In oral evidence Mr Orlov confirmed the above. At the hearing he gave the further evidence that the complaint had caused him very great anguish and the thought that he may be seen by others to have made any kind of error of judgment had borne heavily upon him (219T). He agreed in cross-examination by Mr Wales that his conduct on Friday 1 February and the following weekend amounted to a serious breach of his ethical obligations as a practitioner. He conceded that there is a long accepted rule of practice that as the solicitor for one side on the record it would be quite wrong for him to approach directly the client on the other side of the record and that this principle applied even though he may hold the view that the solicitors on the other side were not conducting the case to their client's best advantage. (220T) He recognised at the time of giving his oral evidence that the principle applied regardless of whether he himself communicated direct with the client on the other side or whether he engaged some intermediary to speak on his behalf (221T); that in a litigation situation where each side has a solicitor the proper way of communicating the views of one side, or settlement offers or introductions of settlement offers, is by communication between the solicitors. He conceded that he consciously chose a different course on Friday 1 February (237T); that he was content for Miss Pursley to speak to the Anderssons before Mr Conti knew what was happening and hoped she would (233T). He did not think at the time that there was something wrong about Miss Pursley speaking with the Anderssons before Mr Conti knew about it (245T). Submissions of counsel for Mr Orlov Mr McAlary QC made the following submissions on behalf of Mr Orlov; (a)The complaint against him is professional misconduct, the particular of the misconduct being that he approached Miss Pursley "in an attempt to secure an advantage" for Mr Weller. The misconduct does not fall within Section 123 (a) (b) or (c) of the Act but must be misconduct at common law, conduct which is "disgraceful or dishonourable" as referred to in Allinson v General Council (1894) 1 QB 750. The Tribunal agrees that the misconduct is not statutory but is common law misconduct. (b) Breach of a rule of practice simpliciter, i.e. speaking to the client of another solicitor is not "disgraceful or dishonourable"; more must be shown. The allegation in the complaint is that the disgraceful or dishonourable component is to be found in Mr Orlov's purpose namely to procure an advantage for his client. The complaint could not be made out unless it was found that Mr Orlov did what he did for an improper purpose, namely that he approached his partner in an attempt to secure an advantage to his client. (304T) This case was not made out and was never pursued. (c) The rule in Browne v Dunn had not been complied with. It was not put to Mr Orlov that his purpose in speaking to Miss Pursley was to get a settlement on Weller's terms and that it was false to assert, as he had asserted in his evidence, that his purpose was to protect the Anderssons from the financial disaster that was looming (308T). Counsel for the Law Society did not put squarely to Mr Orlov that his sole or real purpose in speaking to Miss Pursley was to advantage Mr Weller in a specified way. He only put that Mr Orlov's purpose was to secure an advantage not available through conventional channels. His veracity was not attacked. Reference was made to Cross on Evidence on the rule in Browne v Dunn and to Allied Pastoral v Commissioner of Taxation (1983) 1 NSW LR 1 at 25 to 27. The learned author of Cross on Evidence (4th Australian Edition at page 17,151) states: "There is an important rule of practice known as the rule in Browne v Dunn. It has recently been formulated as follows by Hunt J. `It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.' "It may be that the more easy it is in a particular jurisdiction to call a witness in rebuttal, the less important the need to comply with Browne v Dunn. A modern English court has, like Hunt J, stressed the importance of indicating to a witness the respects in which his evidence is not to be accepted. The rule applies equally to counsel for one defendant who proposes to suggest that another defendant is not telling the truth as it does to counsel for parties on the opposite side of the record to the witness. The underlying principles are that, in view of the rule against a case splitting, which prohibits a party from calling fresh evidence after that party's case has closed, it is unfair to a witness to deny the opportunity of making any explanation open to the witness if a later invitation to disbelieve or criticise the witness is to be made; that it is unfair to the party calling the witness if the opportunity for the witness to proffer an available explanation is denied, and if the opportunity to call other evidence in the party's own case to support the version for which the witness is contending is denied. Further, non-compliance with Browne v Dunn makes the trial unworkable from the court's point of view, as Wells J has pointed out:" The formulation of Hunt J quoted above was made in the Allied Pastoral case. It is to be noted that the necessity to put to a witness in cross-examination certain matters in contradiction of his evidence, is said to apply particularly where reliance is placed on inferences to be drawn form other evidence in the proceedings. The present case is not one where the challenge to Mr Orlov is based on evidence given by another witness. Nor does it come from some inference which arises from other evidence in the matter. It is not the case here that Mr Orlov was not given the opportunity to deal with some other evidence or with some inference arising from it. The Tribunal is of the view that it is entitled to draw from his evidence the findings which have been set out earlier in relation to his evidence. Mr Wales in reply stated that it is not and never has been part of the Law Society's case that professional misconduct is established only if this Tribunal is satisfied that Mr Orlov's sole purpose was to obtain an advantage for his client (344T). This is patently correct. (d) There is no evidence from the Anderssons or Mr Conti to support the Law Society's submission that Mr Orlov was guilty of "a deliberate and conscious breach" of an important ethical rule of practice. It is noted that the Anderssons dealt with Miss Pursley and had no contact with Mr Orlov. Mr Conti's evidence (206T) was that when Mr Orlov told him that Miss Pursley had been assisting in the settlement he was stunned. Obviously Miss Pursley had been talking to Mr Andersson but he was not sure if Mr Orlov had been talking to him. He wanted to get Mr Andersson into his office and talk to him. Neither the Anderssons nor Mr Conti were privy to the interaction between Mr Orlov and Miss Pursley which led to her intervening with the Anderssons. On this aspect also Mr McAlary submitted that the issue was not put to Mr Orlov in cross-examination and that to put it squarely involved an acknowledgment from him that he was aware that his conduct constituted a breach of the rule. The Tribunal does not agree with this submission. If the evidence supports the finding that the conduct constituted a breach of the rule, and the Tribunal has found that it does, then an acknowledgment by the solicitor is not a necessary ingredient to a finding that there was a breach or that it constitutes professional misconduct. Whether or not this has been established is a question for the Tribunal. (e) Mr McAlary argued that on the authority of Re Nelson (1991) 106 ACT Reports 1 at 19 & 20 acting contrary to an honestly held belief is not misconduct. In that case a solicitor who had obtained a grant of legal aid applied shortly before the trial to have it cancelled. The cancellation enabled him, as the solicitor perceived it, to charge his client full scale fees as if the grant had never existed. This was argued to be misconduct. The Court found that the Legal Aid Commission having the power to terminate the grant, it was not satisfied that the action of the solicitor was unlawful or improper. Even if the Commission had lacked the power to terminate the grant retrospectively the solicitor, not unreasonably, believed it did. In the judgment of Higgins & Foster JJ it was held at page 20 that "it could not constitute misconduct on the part of the solicitor to have acted consistently with a genuine and reasonable belief that he was acting properly, a belief apparently shared by the Commission." Mr McAlary's submission was that Mr Orlov's belief that the case was going badly for the Anderssons was a reasonable perception of the case, that he thought he was acting properly and, with that perception, he cannot be guilty of misconduct. The Tribunal does not agree with this submission. The decision in Re Nelson turned on the fact that the effect of the legislation relating to the grant of legal aid was to entitle the Commission to withdraw it ab initio and as the conduct of the solicitor was consistent with a reasonably held belief that he was acting properly, he was not guilty of misconduct. In the present case the question is whether or not Mr Orlov's conduct was consistent with a genuine and reasonable belief that he was acting properly and not whether his perception of Mr Andersson's case was reasonable. Mr Orlov has now conceded that his conduct was in breach of the rule. The Tribunal agrees with the submission of Mr Wales that even if Mr Orlov had held the belief (at the time) that he was acting properly, that view was not reasonably held because no member of the profession of good repute would accept that to be proper professional conduct. Determination regarding Miss Pursley The facts on which the complaint against Miss Pursley is based (with the exception of the reference to security for costs) have been admitted. The rule of conduct which is the basis of the complaint is expressed as follows: "A solicitor should not interview or otherwise communicate with any party who to the solicitor's knowledge has retained a solicitor to act in the matter except with that other solicitor's consent." (Lund, The Guide to the Professional Conduct of Solicitors, 6th ed. p370) In Riley, New South Wales Solicitors Manual page 1517.4 the following is said: "A gross professional discourtesy and a grave departure from proper professional conduct is committed by a solicitor who, without reasonable or just cause, communicates directly with the client of another solicitor. There may be justification for so doing when a solicitor refuses or fails, after a reasonable time has elapsed, to respond to another solicitor's communications. If the interest of the latter solicitor's client is being prejudiced or is likely to be prejudiced, by the continuing default in communication, then that solicitor might, after a final notice advising his or her intention to the defaulting solicitor, direct a communication to the latter's client. In so doing the solicitor should not purport to offer any advice to the other solicitor's client or otherwise exert any undue influence on the client. Such action is really a measure of last resort when one is confronted with apparently obdurate silence on the part of another practitioner." Miss Pursley admits that her conduct breached this rule. The task of the Tribunal is to determine whether that breach constitutes professional misconduct and if so what order should be made as a consequence of its determination. Lund also states in his commentary to the rule of conduct that a solicitor may be justified in writing direct to the client of another solicitor if the latter fails to reply to a letter or refuses without adequate reason to pass on any message to his client. But this step should only be taken after warning the other solicitor of the intention to write direct to his client. It is clear that where a solicitor is placed in the position of having to act in breach of the rule there must be some compelling circumstance and in any event he must first notify the other party's solicitor before so acting. In the present case there was no such circumstance and no attempt to communicate with Mr Conti either by Mr Orlov or by Miss Pursley before Miss Pursley intervened with the Anderssons concerning the conduct of Mr Andersson's litigation. In the course of his submissions Mr Wales suggested that one of the main justifications of the rule is to prevent the deliberate breakdown by one solicitor of the solicitor/client relationship on the other side. The fact that a practitioner thinks that other side is not conducting the case to their client's best advantage offers no excuse for the solicitor contacting the other client direct and telling him so. Litigation could not proceed if that was the situation. Mr Wales alluded to Mr Andersson's cross-examination and to the errors, confusion and contradictions displayed in his evidence. He referred to Miss Pursley's observation during her visit to Bowral on Saturday that he was sweating, appeared agitated and under stress. He submitted that he is precisely the kind of person whom the rule is designed to protect even though he may have had some experience of litigation. Mr Andersson was the more vulnerable because a close friend acted as go-between to pass on the information from Mr Orlov. The Tribunal agrees with these submissions. The settlement was a financial disaster for Mr Andersson and in addition he endured the humiliation of the apology. In saying this the Tribunal does not in any way imply that any of the conduct which is the subject of the complaint brought about that disaster and humiliation. There is no way of knowing what the result of the litigation would have been if the proceedings had continued. It may have been better or worse. The statement of the quality of the settlement is made in order to put into context the actions of Miss Pursley and Mr Orlov to which the complaint relates. Miss Pursley's intervention with the information given to her by Mr Orlov completely undermined the confidence of Mr Andersson in Mr Conti who had been his solicitor for many years. Prior to Mr Orlov's telephone conversation with Miss Pursley on Friday 1 February 1991, Miss Pursley had had a number of conversations with the Anderssons when one or other of them mentioned the case to her (Ex P1 para 26). She made it clear that she was talking to them as a close friend not giving legal advice. There was a conversation between her and Mr Orlov in August 1990 when she told him she did not want to become involved in the matter because it might prejudice her friendship with the Anderssons. (Ex P1 para 30) On Thursday 31 January Miss Pursley maintained her stance that she could not do anything to help the Anderssons in relation to the way the litigation was being conducted. Her oral evidence at 291T was that because of her professional duties and obligations she could not interfere. Then came the conversation with Mr Orlov on the Friday evening when he gave her a very detailed briefing, spelling out his views that Mr Andersson's case was being devastated. Shortly thereafter Miss Pursley spoke to Mrs Andersson and told her about the call from Mr Orlov and what he said about Mr Andersson's loss of his credibility and why and the performance of his expert witness. She also discussed the offer of compromise and its cost effect. In this conversation a change in Miss Pursley's stance occurred. She formed the view that Mrs Andersson did not properly understand the litigation process and the risks involved and that their solicitor had failed to advise them properly. These were a solicitor's assessments. From this point on she was giving legal advice. She was asked (at 291T) about the difference in her attitude on Thursday and on Friday and replied: "A. On the Friday I had heard a whole lot of things from Michael Orlov which I was very concerned about. He had approached me and told me in great detail how badly the case was going. Whilst I, on the one hand, knew the difficult position I was in, I just felt I couldn't sit back and see my friends being ruined because of a misunderstanding of the risks of litigation and not do anything. Q. On the Thursday you had been told by your friends that the case was going badly? A. Yes. Q. So I'm just interested to know what caused you to change your mind between the Thursday and the Friday? A. On the one hand, on the Thursday I had been told by Helen that the case had been going badly and then on the Friday I had all this overwhelming evidence from Michael about just how badly the case was going. The combination of the two things was extremely concerning, particularly when on the Friday night's conversation with Helen the thing that most alarmed me was that she didn't understand the effect of the offer of compromise". On Saturday in Bowral she put before the Anderssons her best case/worst case calculations, having first obtained information from a litigation partner of Freehills at home about what percentage of costs firms might expect to recover on taxation. She then told the Anderssons about her concern at the risks they were facing and that she wanted to ensure they understood the ramifications. Although Miss Pursley claims that she said she was unable to give the Anderssons legal advice the fact remains that what she was doing was giving legal advice, notwithstanding that she denied this. Mr Wales, on behalf of the Law Society, pointed to Miss Pursley demonstrating in cross-examination what might be described as a somewhat curious lack of appreciation of the seriousness of what she had done. She agreed that her actions involved a falling short of her ethical obligations but not, so she said, a serious one. When she was asked what she would do if the same situation occurred again her answer was (at 287T): "A. Well, I wouldn't do what I did. Q. And why not? A. Because I inadvertently - well, not inadvertently. Because I breached an ethical obligation out of my concern for my friends. I would have tried to find another way of doing something that wasn't in breach of my ethical obligations." It is to be noted that Miss Pursley did not assert that her breach of the rule was inadvertent. Such a statement would have been at odds with her acknowledgment that from an early time in the litigation she was conscious of her ethical professional obligations and that at all relevant times she was aware of the ethical principle on which the complaint is based. When one considers the responses made by Miss Pursley in relation to the complaint the picture emerges that there was a gradual but incomplete move by her towards a recognition of the significance of her conduct. In May, 1991 her then solicitors claimed that her conduct was "unwise" and put up in mitigation the unusual circumstances, the close personal relationship and that there was no intention to interfere with the solicitor/client relationship. Also reference was made to the relatively short experience which she had as a member of the legal profession. She recognised, in the letter written some two years later, in April 1993, by Sly & Weigall, that her conduct may with the benefit of hindsight be regarded as a breach of her ethical obligations. Again her apology was stressed. At the end of the hearing she conceded that it did constitute such a breach. Throughout she concentrated her focus on her difficult position because of her close personal relationship with the Anderssons and her concern at their distress and what was happening to them in the litigation. She failed to recognise the fact which was apparent to her by the time she gave evidence at the hearing that she could have tried to find another way to help them that was not in breach of her ethical obligations. The Tribunal finds that the conduct of Miss Pursley alleged against her in the complaint has been established. It further finds that her conduct would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency, bringing it within the category of common law professional misconduct as defined in Allinson v General Council of Medical Education and Registration (1894) 1 QB 750. In making this finding the Tribunal has had regard to the following facts: 1. Miss Pursley was from the outset aware of the rule of conduct in question. 2. She knew Mr Orlov was the solicitor for Mr Weller and Green Park in litigation proceedings where Mr Andersson was on the other side of the litigation. 3. She knew that Mr Andersson was represented by his solicitor Mr Conti. 4. On Saturday 2 and Sunday 3 of February, 1991 Miss Pursley undertook the steps which have been detailed above which consisted of giving legal advice to Mr Andersson and taking an active role in the conduct of his proceedings which led to their settlement. 5. She did this without any prior reference to Mr Conti, Mr Andersson's solicitor, and while Mr Conti continued to represent him. 6. Her claims that she could not or would not give the Anderssons legal advice become meaningless in the light of the legal advice which in fact she gave. In the end it is not what she said about what she was doing that matters but what in fact she did. 7. Similarly her claims (Ex P1 para 104) that she "at no time took any steps to or intended to take the matter out of the hands of the Andersson's retained lawyer or encourage the breakdown of that solicitor/client relationship" is totally contradicted by the fact that she did take the matter out of the hands of Mr Conti to the extent that settlement terms formulated by her were telephoned by Mr Andersson to Mr Conti and Mr Conti was unable thereafter to advise Mr Andersson thereon although Mr Conti wanted to do so before the settlement became irrevocable. 8. Miss Pursley told the Anderssons some very damaging things which she heard from Mr Orlov about the conduct of the case including that they were being poorly or inaccurately advised (281T) and it must have been very obvious to her that what she told them would shake their confidence in their legal advisers. In this light her statement of taking no steps to or not intending to encourage the breakdown of the solicitor/client relationship becomes incredible. 9. Her obtaining from Mr Andersson details of his financial position and passing this on to Mr Orlov for the information of his client, Mr Weller, before he finally agreed on the settlement. 10. Her intervention in the alteration of the authority to settle directly affected the solicitor/client relationship. 11. Solicitors and their clients are entitled to rely on the rule and to be certain that other solicitors will not intervene between them in relation to the matters for which clients retain their solicitors. The proposed order regarding Miss Pursley Having made the finding of professional misconduct the Tribunal must now determine the appropriate order. It is well established that the function of the Tribunal is not punitive but that its duty is to uphold the high standards of the profession and mark its disapprobation of any conduct which is in breach of those standards. The public interest also includes the element of deterring the solicitor concerned from repeating the misconduct and deterring members of the profession who may be tempted to fall short of the high standards required of them. Miss Pursley asked the Tribunal to take into account three factors: 1. her distress at seeing her close friends in a situation which was potentially ruinous 2. her desire to help her friends and 3. that her actions were motivated by her perception as a solicitor relatively inexperienced in litigation. In the view of the Tribunal her experience as a solicitor of seven years' standing and a partner was certainly more than enough to enable her to know what her proper course of conduct was in relation to a party in litigation represented by a solicitor when the opposite party was represented by her partner. Indeed, she did not deny this. Although there was some progress in her recognition of her conduct from the first response when her solicitors labelled it as unwise to the end of the hearing when she conceded that she acted in breach of her obligations she failed to recognise that what she did constituted professional misconduct. Three declarations as to character were filed on her behalf, one from an accountant and two from solicitors, including one of her partners. Her referees spoke highly of her personal integrity, that she was genuinely remorseful over her conduct and that in their opinion it was out of character for her to act in a way which was unsatisfactory. The Tribunal regards Miss Pursley's misconduct as serious but does not consider that her fitness to practise is in question. However, because of the seriousness of the misconduct it does not consider that a reprimand is appropriate. In its view the proper course is to impose a fine in an amount which will reflect its strong disapproval of her conduct and convey a message of deterrence to her and to the profession. In determining the fine, consideration has been given to her motivation and to her expressed desire to help her friends. The Tribunal has also taken into account the apology voiced by her repeatedly and accepts that she sincerely regrets her actions. In the light of all these circumstances, the Tribunal considers that $6,000 is the appropriate fine. Determination regarding Mr Orlov The Tribunal finds that the complaint alleged against Mr Orlov is established. The facts and particulars are substantially admitted in the evidence of Mr Orlov and Miss Pursley with the exception of the particular relating to the demand for payment of $300,000 security for costs. The Tribunal has accepted the denials of Mr Orlov and Miss Pursley regarding this and accepts that it was not discussed between them. The finding that Mr Orlov's approach to Miss Pursley was, as alleged in the complaint, made in an attempt to secure an advantage to his client by having the matter settled on terms favourable to his client was based partly on Mr Orlov's evidence and partly on inferences which in the view of the Tribunal necessarily arise from his evidence. In that evidence he agreed that he spoke to Miss Pursley in order to persuade her to speak to the Anderssons, he contemplated she would tell them what he told her about their case and how badly it was going, he included details of how the proceedings could be settled and what would improve the prospects of settlement, he wanted to bring about a settlement and he acted consistently with his obligations to Mr Weller and did not fail in his duty to him out of his concerns for the Anderssons. Subsequently Miss Pursley did speak to the Anderssons, the matter was settled and Mr Orlov agreed that the settlement gave his client what he wanted. The Tribunal finds that this evidence establishes that Mr Orlov acted in an attempt to secure an advantage to his client to have the matter settled on terms favourable to his client as alleged in the complaint. In making this finding the Tribunal has carefully considered the submissions of Mr McAlary QC relating to the rule in Browne v Dunn and to the cross examination directed at Mr Orlov. It does not agree with these submissions for the reasons already stated. Mr Orlov's actions involved the breach of the rule which has been set out earlier. Mr Orlov conceded that his conduct on Friday, 1 February, and the following weekend amounted to a serious breach of his ethical obligations as a practitioner. He has conceded that it is quite wrong for the solicitor on one side to approach directly the client on the other side, which is what he did using Miss Pursley as an intermediary. There is no doubt that the conduct of Mr Orlov breached the rule and that it would reasonably be regarded as disgraceful and dishonourable conduct by solicitors of good repute and competency. It comes within the definition of common law professional misconduct as defined in Allinson v General Council (supra). The Tribunal finds that professional misconduct is established. It considers that the breach is a serious one. It is clear from the principles expressed in the passage from Riley quoted above that contact by a solicitor with the client of another solicitor may only be made in exceptional circumstances and after warning to that client's solicitor. In the present case no such warning was given although Mr Orlov directed his mind to his professional obligations and told Miss Pursley that if she spoke with the Anderssons he would have to tell Mr Conti. There is no explanation why he did not tell Mr Conti what he was planning to do before he spoke with Miss Pursley. If he felt that Miss Pursley could assist in bringing about the settlement, then clearly he should have canvassed that idea with Mr Conti before he involved her. In involving Miss Pursley he not only breached the rule himself but he became the cause of her breaching that rule. She must of course take responsibility for what she did but the fact remains that as a result of his telephone call to her both of them acted in breach of their professional obligations. The proposed order regarding Mr Orlov The seriousness of the misconduct must be reflected in the order made by the Tribunal. The fitness to practise of the solicitor is not in issue in this case. A reprimand is not adequate to express the disapproval of the Tribunal in respect of the subject of the complaint. There was in this case a totally unwarranted and inexcusable communication with another solicitor's client at a critical time in litigation. Mr Orlov, on his own evidence, not only made contact with another solicitor's client during the course of the hearing of the reference but entered into negotiations with that client through the intermediation of Miss Pursley. Furthermore he requested Miss Pursley to obtain financial information from Mr Andersson which he then passed on to his client Mr Weller. He said that he was hopeful that Miss Pursley should pass on to the Anderssons his views on how the case was going. Effectively this is equivalent to his passing on to them direct what his views were and negotiating with them direct regarding the settlement. He says he was motivated by his concern for them. The Tribunal has already made its findings regarding that evidence but in any event motivation like pressure does not excuse professional misconduct. It can be taken into account in determining the appropriate penalty. It does not make any less unacceptable the approach made by Mr Orlov to the Anderssons. The rule of conduct which has been quoted was in this case broken in a most flagrant way by acts which went far beyond mere contact. The rule protects both the public and the profession. The client being advised by his solicitor should not be exposed to the confusion which must necessarily arise where there is interference by an opposing solicitor between the client and his own solicitor. The talents of solicitors vary as do the talents of all people but the circumstance that a solicitor forms the view that his opposite number is not conducting the case well for his client is no justification for the solicitor who holds that opinion to intervene with the client. In saying this, the Tribunal makes no finding whether or not Mr Andersson was being well served by Mr Conti, nor whether or not the views of Mr Orlov relating to the case were well founded. That is not the task of this Tribunal. What is of concern to the Tribunal is that a solicitor who consciously and deliberately makes a decision, as Mr Orlov said he did in relation to calling Miss Pursley for the purpose which he has admitted, should understand that such actions are in breach of the high ethical standards of conduct which must be maintained by solicitors and that they must not re-occur. This protective function is in the public interest and is not of a punitive nature. The particular circumstances in each case must be considered in deciding the appropriate penalty. The penalty reflects the degree of disapprobation by the Tribunal and, in the protection by it of the public interest, contains elements of deterrence to the solicitor concerned and to the profession. Character references were filed on behalf of Mr Orlov. His referees included three of his partners, a Queens Counsel and two solicitors. They spoke of him as a hard working and conscientious solicitor highly regarded by his professional peers and a person of utmost honesty. They regarded the conduct complained of as being out of character. Members of other professions regarded him as trustworthy and a person of the highest integrity. Having considered all the evidence and circumstances the Tribunal is of the view that a penalty of $10,000 should be imposed. Orders in relation to Mr Orlov The Tribunal orders that: 1. Michael Orlov (the Solicitor) pay a fine of $10,000 within a period of 30 days from the date of this order; 2. The Solicitor be suspended from practice at the expiration of the said period of 30 days if the said fine shall not have been paid until it has been paid; 3. The Solicitor pay the costs of the Law Society, such costs to be assessed as if assessed by a Supreme Court Costs Assessor on a solicitor/client basis; 4. If agreement cannot be reached as to the amount of such costs, either party shall have liberty to apply to the Tribunal to determine the amount of such costs. Orders in relation to Miss Pursley The Tribunal orders that: 1. Stephanie Joan Pursley (the Solicitor) pay a fine of $6,000 within a period of 30 days from the date of this order; 2. The Solicitor be suspended from practice at the expiration of the said period of 30 days if the said fine shall not have been paid until it has been paid; 3. The Solicitor pay the costs of the Law Society, such costs to be assessed as if assessed by a Supreme Court Costs Assessor on a solicitor/client basis; 4. If agreement cannot be reached as to the amount of such costs, either party shall have liberty to apply to the Tribunal to determine the amount of such costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.