The Legal Services Tribunal of New South Wales CITATION : Vince Larry Macri [1994] NSWLST 14 PARTIES : Vince Larry Macri FILE NUMBER(S) : of 1993 CORAM: Mr J.W. Brennan (Presiding Member) - Mrs J. Bartos - Mr C. Robison CATCHWORDS: Unsatisfactory Professional Conduct - fail to carry out client's instructions - Unsatisfactory Professional Conduct - delay - Unsatisfactory Professional Conduct - fail to keep client adequately advised :- LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: Allison v Council of Medical Education and Registration (1884) 1 QBD 750 ; In the matter of Gregory John Elsworthy (1992) 3 LPDR 30 DATES OF HEARING: 5 October 1994 DATE OF JUDGMENT: 12/21/1994 LEGAL REPRESENTATIVES: Mr D. Robinson appeared for the Council of the Law Society of New South Wales Miss R. MacDougal, Solicitor, appeared for Mr Macri. JUDGMENT: The solicitor advised his clients that he had commenced proceedings on their behalf pursuant to their instructions when this was not the case. The Tribunal found that while the solicitor's conduct was serious, it did not satisfy the test of professional misconduct. The solicitor was found guilty of unsatisfactory professional conduct and fined $500. The complaint alleges that the Solicitor lied to his client. The particulars of the complaint are: "The solicitor, on a number of occasions between at least April 1992 and July 1992 advised the complainant that proceedings had been commenced pursuant to the complainant's instructions when this was not the case." The Society seeks orders that the Solicitor be fined and that he pay the costs of the Law Society on a solicitor and client basis. Facts In a letter to the Law Society dated 27 July 1992 C. & M. Webb Enterprises Pty Limited ("the client") complained about the conduct of the Solicitor in relation to instructions to take proceedings for damages for fraudulent misrepresentation against the vendor of a video hire business. The client's letter raised various matters but the relevant issue in these proceedings is an allegation that the Solicitor had informed the client that proceedings had been instituted when this was not the case. In response to the complaint from the client the Law Society wrote to the Solicitor who replied in considerable detail. In the course of his reply the Solicitor said:"It was indicated that the Statement of Claim was to be issued at the District Court. Money ($250) was sought from Mr & Mrs Webb on account of costs and disbursements associated with the filing and serving of the Ordinary Statement of Claim. That money was remitted by Mr & Mrs Webb on request. A review of the files indicates the proceedings were not issued. I do recall on several occasions advising the Webbs that they were about to be, and later that they had been, but this was incorrect." In evidence before the Tribunal the Solicitor again acknowledged that he had informed the client that the proceedings for fraudulent misrepresentation had been commenced. He said: "I had later given them the impression that they had been commenced. I had on several occasions discussed with them that they were about to be. Then on one occasion, as I recall, I referred to this in my Statutory Declaration, I used words which gave them the impression, in an effort to fob them off, that those proceedings had, in fact, been commenced when they hadn't been." The Solicitor went on to explain: "Well the overall circumstances were that the matters were a lot wider than just the proceedings for fraudulent misrepresentations. There were a lot of difficulties in the matter. The exact circumstances of me saying those words was being under a great deal of pressure and stress and attempting to appease a very troubled client and trying to get some distance." The material before the Tribunal made it quite clear that the Solicitor was, about the time of the conversation which led to the complaint, engaged in a number of separate negotiations in an effort to assist the client obtain some relief from what appears to have clearly been an unfortunate commercial decision by the client to purchase a second video hire business. The Tribunal regards it as appropriate to view the conduct of the Solicitor in the context of the other work that he was undertaking for the client which included instructions to negotiate an assignment of the lease of the premises in which the video business was conducted. The Solicitor The Solicitor is 29 years old and has been employed by Messrs Stoikovich and Banfield at Liverpool since shortly after his admission to practice seven years ago. At the time of the hearing he was in the process of negotiating an interest in the firm. Both his present employers provided Statutory Declarations and both were called to give evidence and were cross-examined. His employers were supportive of the Solicitor. They acknowledged his increasing maturity and displayed an overall faith in the Solicitor who had discussed the problems of the client and the complaint with them. Supportive character evidence was also submitted in the form of three Declarations from local solicitors, a Declaration from a Member of the Bar and a letter from the Registrar and Clerk of the Local Court at Liverpool. The Tribunal is satisfied that Mr Macri had established a reputation as a reliable, honest and efficient practitioner. His conduct in this matter is, in the view of his peers, quite out of character. This was clearly an isolated event, no doubt contributed to by the Solicitor's youth and lack of judgment. At the time he appears to have been under pressure and not able to cope professionally with an insistent client. The Tribunal is satisfied that the Solicitor would now deal with such a situation in a proper and professional manner. Findings It was submitted on behalf of the Law Society that the conduct of the Solicitor which is the subject of the complaint amounted to professional misconduct. The test of professional misconduct that has been consistently applied by the Tribunal is the interpretation of professional misconduct described by Lopes LJ in Allison v Council of Medical Education and Registration (1884) 1 QBD 750 at 763 where His Lordship said: "If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which could reasonably be regarded as disgraceful or dishonourable by his professional brother of good repute and competency, then it is open to the General Medical Council to say that he has been guilty of `infamous conduct in a professional respect'." While this description is not exhaustive it has been adopted and applied in relation to the conduct of solicitors over many years. The conduct to be "disgraceful or dishonourable" must clearly be of a serious and grave nature. The act or acts involved must be such as would be regarded by competent practitioners as reprehensible, disgraceful, dishonourable or shameful. The Tribunal finds that the conduct of the Solicitor while serious does not satisfy the test of professional misconduct. That, however, leaves the issue as to whether the conduct might properly be described as "unsatisfactory professional conduct". The definition of the term in Section 123 of the Legal Profession Act states that it: "Includes conduct (whether consisting of an act or omission) occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner" The Tribunal finds that the conduct of the Solicitor, in fact, falls within this category. While his behaviour is serious it is proper that it be viewed in the light of the circumstances prevailing at the time, the other work he was doing not only for the particular client and indeed his relative experience in the profession at the time. There are, indeed, some similarities between the circumstances in this matter and in the matter of Gregory John Elsworthy (1992) 3 LPDR 30 although in that case the solicitor had less experience than Mr Macri and the Tribunal has taken that factor into account. The Tribunal finds that the behaviour of the Solicitor which is the subject of the Complaint in all the circumstances constitutes unsatisfactory professional conduct and should be dealt with by the imposition of a fine. The conduct occurred over a comparatively short time span but that in no way affects the basic fact that the Solicitor's conduct was wrong as he has clearly acknowledged to the Law Society and the Tribunal. The matter is serious and the Tribunal has concluded that taking into account the penalties imposed by the Tribunal in other relevant matters that the Solicitor should be fined $500 and that he should pay the Law Society's costs. Orders The Tribunal makes the following Orders: 1. That the Solicitor pay a fine of $500.00 within thirty days from the date of this Order. 2. That the Solicitor pay the costs of the Law Society as agreed and if agreement cannot be reached between the Solicitor and the Law Society as to the amount of such costs both parties shall have liberty to apply. 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.