Legal Services Division CITATION: Law Society of New South Wales -V- Titmarsh [1998] ADT COMPLAINANT: Law Society of New South Wales RESPONDENT: Shaun Michael Titmarsh Mr J W Brennan (Presiding Member) ( Judicial Member ) TRIBUNAL: Mr R Turner Mr D Brehe GROUNDS OF COMPLAINT: Professional misconduct DATE OF JUDGMENT: 10/29/1998 Complainant: Mr D Barton LEGAL REPRESENTATIVES: Respondent: Mr I. Wales (Counsel) Mr Brad Watts (Solicitor) First Complaint filed 22 January 1998-No. 3 of 1998 (Nassif) The Council of the Law Society of New South Wales ("the Law Society") informed the Tribunal that as a result of the investigation of a complaint against the solicitor, the Law Society claimed that SHAUN MICHAEL TITMARSH ("the solicitor") while practising as a solicitor, was guilty of professional misconduct on the grounds that he, without reasonable excuse, failed to comply with a notice in writing issued under Section 152(1) of the Legal Profession Act of which the solicitor was notified by registered post. On 13 August 1997 the Legal Services Commissioner ("the Commissioner") referred for investigation by the Law Society a complaint against the solicitor on behalf of a former client, Mr Nassif. On 22 August 1997 the Law Society advised the solicitor of the complaint and requested his response within fourteen (14) days. On 4 September 1997 the Law Society advised the solicitor by letter of two further complaints made on behalf of the same client and that his response was requested within seven (7) days of the date of the letter. The solicitor did not respond. On 12 September 1997 the Law Society wrote again requesting replies within the next seven (7) days and the solicitor's attention was drawn to the terms of section 152 of the Act. On 26 September 1997 a solicitor from the Professional Standards Division of the Law Society left a telephone message for the solicitor, which was not returned. On 10 October 1997 the Law Society advised the solicitor that, in view of his failure to respond, a report would be prepared by the Professional Conduct Committee of the Law Society ("the Committee"). On 6 November 1997 the Committee resolved to require the solicitor to provide by Statutory Declaration a response to the complaint and an explanation for his failure to reply to the Society. He was further required to produce the client's file by 10 a.m. on 24 November 1997 and this was communicated by letter of 11 November 1997 sent to the solicitor by registered post, enclosing a notice under Section 152 of the Act detailing what was required of the solicitor. The solicitor did not respond and a further letter was sent on 2 December 1997 by the Law Society to the solicitor advising that the institution of proceedings against him would be considered at a meeting of the Committee on 18 December 1997. The Committee resolved to initiate the complaint and the solicitor was notified of this by letter of the Law Society of 23 December 1997. There was no response by the solicitor to the complaint, or any of the Law Society's correspondence or the phone message up to the time the complaint was filed. Later the solicitor supplied the information and delivered the file and no further action is pending arising out of the solicitor's conduct in relation to Mr Nassif. The solicitor admitted the grounds of complaint and the particulars given. Second Complaint filed 1 July 1998-No. 21 of 1998 (Coleman). The Legal Services Commissioner filed the second complaint before the Tribunal in this matter on 1 July 1998. The evidence before the Tribunal showed that Messrs Abetz and Co. at the request of the client, Mr Coleman, wrote to Mr Titmarsh on five separate occasions between 3 September 1996 and 9 December 1996 in relation to the solicitor's handling of two claims for the client, one for damages for personal injury and the other a home insurance claim. The matter was then raised by Messrs Abetz and Co. with the Law Society and referred to the Commissioner who wrote to the solicitor on 24 December 1996, 14 February 1997, 4 April 1997, 7 May 1997 and 6 June 1997. The Commissioner did not receive a response and on 3 November 1997 the Commissioner issued a notice under Section 152 (1) of the Legal Profession Act requiring a response to the request for information in relation to Mr Coleman's personal injuries claim with a chronology of actions in dealing with the matter and a copy of a bill of costs. The notice from the Commissioner required compliance by 5 p.m. on 14 November 1997 and bearing in mind the requirement of S 152(e) that the notice "is to specify a reasonable time for compliance", it may well have been argued with some prospect of success that, allowing time for delivery of the notice and the non business days in that period, such time was not reasonable within the terms of the sub-section. No doubt wisely, the Commissioner then issued a second notice in what appears to be identical terms except as to date and time for compliance. That notice was dated 11 November 1997 and required compliance by 28 November 1997. The second notice at last produced a response by the solicitor, sent by facsimile on 28 November 1997 advising that he was unable to provide the reply required by 5 p.m. that day and undertaking to provide the reply no later than 5 p.m. on 5 December 1997. The undertaking by the solicitor to the Commissioner was not honoured and, indeed, the evidence before the Tribunal was that it was not until 11 September 1998 that final compliance with the Commissioner's requirements by provision of all outstanding information was provided by the solicitor. The complaint of the Commissioner relied upon the second of the notices issued to the solicitor, that being the notice of 11 November 1997 as well as the solicitor's breach of his undertaking of 28 November 1997. Once again, the practitioner admitted the grounds of complaint and the particulars. Third Complaint filed 20 August 1998-No. 25 of 1998 (Wynne). The information in this matter also claimed that the solicitor was guilty of professional misconduct on the ground that he failed without reasonable excuse to comply with a notice under subsection 152(1) of the Legal Profession Act. A complaint by the client, Mr Wynne, was referred to the Law Society by the Commissioner for investigation and on 5 February 1998 the Society advised the solicitor of the complaint and requested a response within fourteen (14) days. The client claimed that the solicitor had failed to transfer personal injury files to new solicitors nominated by the client and had failed to return phone calls in relation to the transfer of files. A series of further letters was sent by the Society to the solicitor, these being on 12 February 1998, 16 March 1998 and 21 April 1998. In addition, phone calls were made by solicitors with the Professional Standards Division to Mr Titmarsh on 15 April 1998 and 14 May 1998 but these were not returned. The Professional Standards Committee resolved on 14 May 1998 to require the solicitor to provide verified information by Statutory Declaration and also to produce the files. The solicitor was notified of this the same day. The solicitor did not comply with the notice and procedural steps were taken to institute the complaint. Ultimately by letter dated 12 August 1998, the information sought in the Section 152(1) Notice was supplied to the Law Society by Mr Brad Watts, the solicitor for Mr Titmarsh. Professional misconduct The relevant parts of Section 152 (omitting reference to interstate legal practitioners) for the purposes of these complaints are as follows: S152 (1) For the purpose of investigating a complaint, a Council or the Commissioner may, by notice in writing served on any legal practitioner require the legal practitioner to do any one or more of the following: (a) to provide written information, by a date specified in the notice, and to verify the information by statutory declaration, (b) to produce, at a time and place specified in the notice, any document (or a copy of any document) specified in the notice, (c) to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner. (3) A requirement under this section is to be notified in writing to the legal practitioner and is to specify a reasonable time for compliance. (4) A legal practitioner who, without reasonable excuse, fails to comply with such a requirement is guilty of professional misconduct. The solicitor admitted the facts and circumstances relied upon in support of the three complaints and there was no dispute that the solicitor was guilty of professional misconduct. It is worth noting the chronology of letters which have been set out in these findings. In the view of the Tribunal the correspondence which was sent to the solicitor in each of the three matters shows quite clearly that more than enough opportunities were given to the solicitor to clear these matters up, yet indeed it was only on the third complaint that there was any compliance before the proceedings were instituted in this Tribunal and that was after the first and second complaints had been lodged. The Tribunal is most concerned at the persistent failure of the solicitor to reply to proper requests for information over a long period of time which, coupled with his breach of undertaking, gives this matter some very worrying aspects. There are, however, circumstances which, in the Tribunal's view, make it appropriate to take a more lenient view of the solicitor's misconduct than might otherwise have been the case. The solicitor's personal circumstances The solicitor was admitted to practice as a solicitor in July 1985. The Tribunal was favourably impressed by his demeanour in the witness box and the frank and appropriate manner in which he faced at the hearing a sad and embarrassing situation. He is a comparatively young man who has earned and maintained the respect of his fellow practitioners. Three suburban practitioners provided Affidavits supportive of the solicitor in the knowledge of the matters pending before the Tribunal and they all referred to him in encouraging terms. It is apparent that he is regarded by his peers as hard-working, competent and efficient and that he is generally well-regarded. As a student at school, the solicitor had to contend with the breakdown of his parents' marriage which he indicated to the Tribunal he sought to put behind him by taking refuge in his books. The evidence indicates that economic circumstances did not assist his obtaining the qualifications necessary for admission to the profession and the tenacity with which his studies were pursued reflects real credit on him. As a student he worked for Mr John Keiran, who was at that time a well known member of the Federal Parliament, and he obtained employment with the firm of Baker Ryrie Rickards, apparently on completion of his studies. After three years he became a partner in the firm. Mr Rickards left the partnership in May 1992 and the solicitor then effectively became a sole practitioner. From his evidence, which the Tribunal accepts, it is clear that Mr Titmarsh was not at that stage prepared, nor indeed, equipped for the responsibilities of running a practice by himself and to that extent the solicitor is perhaps a victim of circumstances to which neither he, nor his former partner, had foreseen at the time. Mr Titmarsh has, on the evidence, the skills and capacity to be a good and effective solicitor but his problems have arisen in the areas of office management and interpersonal relationships. He told the Tribunal that he had trouble communicating with staff and, when he had difficulties with one employed solicitor he "simply did not talk to him". The three complaints relate to files that were being handled at different times by solicitors employed in the practice. Mr Titmarsh acknowledged to the Tribunal that he accepts his responsibility for whatever happens in the firm and that "I've got to be the watcher". In the three instances before the Tribunal he not only failed to discharge that duty but adopted what he described as a "head in the sand approach" to his difficulties. Indeed from his Affidavit sworn on 23 September 1998 the Tribunal might well have formed the view that, while the solicitor was contrite and upset at the problems he had caused, he felt that it was relevant that the files were not under his direct control or were files with which he was not familiar. The Tribunal feels that in the period of about a month between the swearing of that Affidavit and the hearing the solicitor has become more focussed on his responsibilities as a sole practitioner and of his obligations, in the event that there is complaint made against him. Indeed, it appears that the solicitor has now found the support he needed in the past by consulting his peers so that practice problems can be faced and dealt with. The solicitor clearly had inadequate systems to control the flow of work in his practice or to review matters conducted by employed staff. He has in very recent times undertaken and completed three of the four modules of the Risk Management Course conducted by the Law Society. He has made it clear to the Tribunal that he will complete this course. It may well be naive to ignore the proximity of the commencement of the modules in September 1998 and the hearing in October 1998 but at least the solicitor has made a positive effort. He has also sought enrolment in the Law Society's Best Practice Programme. The Tribunal accepts that the solicitor has in the past not effectively supervised, or indeed related to, some of his employees. He is clearly a kindly and generous man but it was no doubt a misguided generosity on his part to offer a then employed solicitor, with whom he was not relating well at work, accommodation in his home. Indeed, the conduct of some of the solicitor's associates, including at least one of his employed solicitors, was at times bizarre and that, no doubt, created extra strains and stresses on the solicitor. His reaction in the past has been then more to ignore such problems rather than to seek to address them. It is the Tribunal's expectation that, following the resolution of these complaints, Mr Titmarsh will make an effective and conscious effort to confront professional and personal problems in future. In his Affidavit the solicitor referred to what he saw as three significant turning points in relation to these complaints and the difficulties he had experienced. These were elaborated on in his oral evidence and in supporting oral evidence given by his de facto partner. The solicitor at the suggestion of his advisers consulted a forensic psychiatrist whose report was tendered at the hearing. Reports of this nature at times tend to reflect simply what the psychiatrist has been told. The psychiatric consultations were of assistance to the Tribunal in that, in his oral evidence, it was apparent that the solicitor has gained some insight into his own personality and interpersonal relationships and to that extent at least the involvement of the psychiatrist was of assistance to the solicitor and so to the Tribunal. There is no suggestion that the solicitor has any illness or is in need of any treatment. His real difficulty was the ongoing hope that problems would go away and an incapacity to directly confront some issues. Secondly, again perhaps as a direct result of the complaints having being lodged, the solicitor has consulted with some of his peers and associates and in his acknowledgement of his prior shortcomings he not only unburdened himself but gained strength to face up to issues and confront them promptly in future. The third factor was the de facto relationship he has with a twenty four year old young lady, who is also a solicitor. This young lady impressed the Tribunal, both with her candour and her obvious support for Mr Titmarsh. Her evidence encouraged the Tribunal to form a view that Mr Titmarsh has learned a painful lesson and that with some safeguards and the ongoing support of his fellows, Mr Titmarsh is unlikely to attract the attention of the Tribunal in the future. Some reference was made to the solicitor's antecedents. He has, despite these complaints, been a successful practitioner and he clearly has the capacity to enhance his reputation and build on his achievements in the future. It is tragic that, with the promise that he has, that he should have been before the Tribunal in the first place through his own inactivity. The evidence of Major Day of the Salvation Army could not but impress the Tribunal. The solicitor's community work with the Red Shield Appeal and his assistance to less fortunate members of the community referred to him by the Salvation Army encouraged the Tribunal in its expectations of the solicitor in the future. Mr Titmarsh has made significant ongoing contributions to the Profession through his local Law Society and has shown common sense now by not accepting reappointment to office at the recent Annual General Meeting. Documentation The Tribunal appreciates the efforts made by practitioners in representing members of the Profession who are the subject of complaints before the Tribunal. The task is a difficult one. However, the obligation remains for the legal representative of a solicitor before this Tribunal to ensure that every possible care is taken in the preparation of Affidavits. In this matter four supporting Affidavits were filed on behalf of the solicitor, one of which was sworn on 14 October, one on 21 October and the remaining two Affidavits on the day before the hearing. One Affidavit was only available in faxed form. No issue was raised in relation to directions and the issue is not raised on that account. There may have been special circumstances which made it necessary for this Affidavit material to be filed so late in the day but it does not fill the Tribunal with confidence that there has been a full and considered presentation of the solicitor's case. Late presentation of this supporting material may also be thought to reflect upon the solicitor where delay is an issue before the Tribunal. The Tribunal noted and needed clarification of an assertion in one of the supporting Affidavits. The Affidavit contained what might have been the expression of an opinion by the deponent but when the matter was raised it was conceded that the deponent was only reflecting the views of Mr Titmarsh and that the deponent had no personal knowledge of that issue. It is not suggested that there was any effort made to mislead the Tribunal but the solicitor on the record who filed the documents must assume responsibility for the documents filed. In this case the Affidavit was prepared by the deponent and not by the solicitor and that was clearly an inappropriate delegation of responsibility. Secondly, in coming to a conclusion which will have an impact upon the future career of a practitioner, the Tribunal was not helped by a paragraph in the Affidavit of Mr Titmarsh which referred to a medical report as being before the Tribunal when it had not been filed and was not at that time part of the evidence. The report ultimately tendered at the hearing was dated 15 October 1998, that is, some weeks after the Affidavit was sworn. The solicitor's Counsel indicated that this was a reference to a draft report which, to say the least, is strange and the lack of care in the drafting of this part of the Affidavit reflects poorly on the draftsman and, in this situation, upon the deponent. The issues that this Tribunal is required to determine involve great difficulties at times and the process is certainly enhanced if material is presented accurately and as soon as this might reasonably be done, given the nature of the proceedings. Professional misconduct The Tribunal formally finds that the solicitor is guilty of professional misconduct in relation to each of the three complaints made against him. Penalty When a finding of professional misconduct or unsatisfactory professional conduct is made the prime duty of the Tribunal is protection, rather than punishment. [See Mahony JA said in Law Society of NSW v Foreman 1994 34 NSWLR 408 in relation to that duty which "... extends to protecting the public from similar defaults by other practitioners. Thus, it is relevant to take into account the effect the order will have upon the understanding in the profession and amongst the public of the standard of behaviour required of solicitors. In this sense, any penalty imposed should contain an element of general deterrence, 'publicly marking the seriousness of what the instant solicitor has done'"] Section 171C(2) of the Legal Profession Act provides a wider range of orders which the Tribunal may make and early in the hearing the Tribunal raised with the representatives of the complainant and the solicitor the question of future supervision of the solicitor's practice. While the Tribunal is encouraged by the material before it to have an expectation of suitable future conduct by the solicitor, the protective role that the Tribunal has makes it incumbent upon the Tribunal in its view in this instance to ensure that the changes in the solicitor's mode of practice instituted since these proceedings were started, and his new perception of his duties are not lost and that the public is protected against the risk of repetition of his misconduct. In view of this, the orders made include an order for periodic inspection which will, in the Tribunal's view, best ensure that, if there are further client difficulties for this solicitor, he will deal with these difficulties promptly. Any professional misconduct by a solicitor is a serious matter. There are three separate complaints in this matter. The Tribunal must endeavour to ensure that the misconduct is not repeated by the solicitor and that other practitioners appreciate the seriousness and consequences of such misconduct. The public is certainly entitled to expect that, if complaints are made against practitioners, the practitioners will respond and, indeed respond promptly, to the investigating authority. The solicitor accepts that he should be responsible for the costs of the Complainants. The evidence before the Tribunal indicates that in the matter of Wynne the solicitor has a liability for payment of costs of the Defendant in those proceedings amounting to $2,375. It is very apparent that his financial losses as a result of his misconduct are quite substantial. The costs of the Complainants have been agreed upon and this is reflected in the Orders. Complaints under S 152 must, of course, be looked at individually and, obviously, the Orders made may, because of the circumstances of the matter, vary quite radically. The Tribunal finds that it is proper that the solicitor be reprimanded, be ordered to pay a fine and costs, as well as being subject to periodic inspection of his practice for two years. The fine imposed is less than might otherwise have been the case, had it not been for the mitigating factors in this matter. Orders The Tribunal therefore orders that: 1. The solicitor be and he is hereby reprimanded. 2. The solicitor is to pay a fine of $1,000.00 within a period of two (2) months from the date of this order. 3. The solicitor is to be suspended from practice at the expiration of the said period of two (2) months if the fine has not been paid and any such suspension continue until the fine is paid. 4. The solicitor's practice is for a period of two (2) years commencing 1 December 1998 to be subject to inspection at six (6) monthly intervals at the expense of the solicitor by a suitable qualified solicitor appointed by the Law Society for that purpose, such inspections to continue notwithstanding any change in the constitution of the solicitor's firm. 5. The solicitor is to pay the costs of the Law Society assessed and agreed in the sum of $3,835.00 and the costs of the Commissioner for Legal Services assessed and agreed in the sum of $800.00. Dated 29 October 1998. 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.