The Legal Services Tribunal of New South Wales CITATION : Gregory John Elsworthy [1992] NSWLST 5 PARTIES : Gregory John Elsworthy FILE NUMBER(S) : of CORAM: Mr A Martin - Mr G B Molloy - Rear Admiral G. Griffiths CATCHWORDS: Professional Misconduct - fail to carry out instructions - Professional Misconduct - mislead client - Professional Misconduct - mislead Law Society/Bar Association/LSC :- LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: DATES OF HEARING: 12/03/92 - 09/04/92 DATE OF JUDGMENT: 04/09/1992 Mr D. Hipsley Mr F. Smith LEGAL REPRESENTATIVES: Mr G.C. Lindsay Mr R. Titterton Lloyd & Lloyd JUDGMENT: The Legal Profession Disciplinary Tribunal IN THE Matter OF GREGORY JOHN Elsworthy Determination and Orders Before: Mr A. Martin (Presiding Member), Mr G. Molloy and Rear Admiral G. Griffiths. Appearances: Mr D. Hipsley instructed by Mr F. Smith for the Law Society; Mr G.C. Lindsay with Mr R. Titterton instructed by Lloyd & Lloyd for the Solicitor. Hearing date: 12 March 1992. On 12 December 1984 the Solicitor was admitted to practice. He was thereafter employed as a solicitor for about 2 years and on the 30 October 1986 commenced practice on his own account after acquiring the legal practice of the late Mr Carl Stork. The Solicitor is now the senior partner in a firm practising in the Newcastle area. On 23 March 1987 the Solicitor received instructions from Mr & Mrs E.D. Charles to take certain proceedings against their son and daughter-in-law who allegedly had misappropriated a considerable sum of money. For various reasons, proceedings were also commenced against the ANZ Bank. It is not necessary to go into details of the litigation. Suffice it to say that Legal Aid was granted to Mr & Mrs Charles, Counsel was briefed, and an ex-parte Injunction was obtained that, in April 1987, was dissolved. From that point on, in the Solicitor's own words, he "really did not know what to do" and it is from that point on that the Solicitor's actions and inactions led him ultimately to this Tribunal. The complaints against the Solicitor and the Solicitor's response to those complaints, are conveniently set out hereunder: 1. The Solicitor failed to carry out the instructions of his clients to seek an expedited hearing, such instructions being given to him on 6 May 1988 and on a number of subsequent occasions. The Solicitor admitted this complaint. 2. The Solicitor delayed in prosecuting his clients' claim, in that, when served with a Notice for Discovery by the solicitors for the bank, failed to serve a list of his clients' documents on those solicitors and, when requested to discover his clients' documents, failed to do so, notwithstanding the request was made on two occasions. The Solicitor admitted this complaint. 3. The Solicitor misled his clients and the daughter of his clients by informing the clients, when instructed to expedite the claim, that the Solicitor had difficulties in communicating with Counsel briefed in the matter when in fact the Solicitor had not made any attempt to brief Counsel either to advise or to draft an Application for Expedition. In addition, in February 1989 the Solicitor wrote to the daughter of the clients advising her that he was proceeding to have the hearing expedited but the Solicitor did not take any action to expedite the hearing. Furthermore, in August 1989 the Solicitor informed Mr Charles that he was having difficulties in communicating with Counsel and that Counsel may not be prepared to continue to act when at all times he had no grounds for the said representations. The Solicitor admitted the complaint. 4. The Solicitor misled the ANZ Bank when, in April 1988, in answer to a request that the Solicitor give discovery in accordance with the bank's Notice for Discovery, the Solicitor advised the solicitors for the bank that he had difficulties in communicating with his clients when in fact he had not attempted to communicate with his clients. The Solicitor admitted this complaint. 5. The Solicitor misled the Law Society when, in July 1989, the Solicitor wrote to the Law Society indicating that Counsel had been briefed to draft and settle Applications including an Application for Expedition of the clients' matter when the Solicitor had not so briefed Counsel. The Solicitor admitted this complaint. There is no need to go into the precise details. The full details are set out in a chronology that was handed up at the commencement of the Law Society's case without objection and has been placed in the file. Suffice it to say that subsequent to the Injunction being dissolved, the Solicitor went into neutral, failed to protect the interests of his clients, failed to carry out the instructions that he was undoubtedly given and took steps to hide his failings from his clients, their daughter, the ANZ Bank and the Law Society. The Tribunal has no difficulty in finding that the various complaints have been properly made out. In making these findings the Tribunal assumes that the Solicitor had an obligation to communicate truthfully to the daughter of the clients and notes that there was no argument raised on behalf of the Solicitor that misleading the ANZ Bank was, in the circumstances, unsatisfactory professional conduct. On the above facts and findings, the Tribunal is not prepared to find that the Solicitor was guilty of any act of professional misconduct within the terms of the Legal Profession Act 1987,Section 163. However, the Tribunal does find that the acts of the Solicitor constituted unsatisfactory professional conduct within the terms of Section 149. It may be said, as a general rule, that misleading conduct is close to professional misconduct if it is not in fact professional misconduct. The consequences of a finding of professional misconduct can be quite catastrophic but one should not shrink from making such a finding where the facts warrant simply because of the consequences. In relation to the complaint that the Solicitor misled the Law Society, it is important for practitioners to be aware of their obligations of full and frank disclosure to their professional body and indeed, to their clients. There will be circumstances where the failure to make full and frank disclosure and/or the overt misleading of the Law Society and/or the client of the Solicitor will amount to professional misconduct. However, in this particular case, the Tribunal is of the opinion that the Solicitor's conduct does not amount to professional misconduct. One must look at the overall circumstances of the particular case. It is clear, in this case, that the Solicitor was unable to apply his mind to what were his undoubted responsibilities and obligations to this particular matter in that, to use his own words again, "I really did not know what to do". There is no doubt from the clear evidence before the Tribunal that in all other matters being handled by the Solicitor at the relevant time, and thereafter, the Solicitor has carried out his professional obligations properly. In the total scheme of the Solicitor's practice the particular matter relating to Mr Charles may be properly described as being "out of character". The Solicitor's conduct, although serious, does not, in the view of the Tribunal, amount to professional misconduct. The Solicitor was born at Newcastle on 16 June 1956 and is now aged 35. He is the senior partner of a firm of solicitors practising in the Newcastle area. He was, and is, an active member of the Newcastle Regional Law Society, he has participated in the Law Society's Speakers' Bureau, he has participated as a Director of several local charities and he holds commissioned rank. Numerous fellow solicitors, a medical practitioner, a chartered accountant, an architect and a retired Magistrate have given lengthy and detailed declarations as to the character of the Solicitor and there is no doubt at all in the mind of the Tribunal that the Solicitor is a fit and proper person to continue to hold a full practising certificate. The complaint as filed included a claim for compensation. This claim was withdrawn at the hearing. The Solicitor gave written and oral evidence before the Tribunal. He recognised that in relation to the matter of Mr & Mrs Charles, he should have had the moral courage to tell them the truth and to tell the truth to the Law Society rather than attempt to fob off the Law Society and the client in the hope that somehow he would be able to rectify the delays that had occurred. In answer to questions from the Tribunal (Transcript pp9 and 9A): "Q. ...but surely in one's daily practice one comes across matters that require attention, outside of one's perceived expertise and surely one can, as in this case, perhaps have made a phone call or two and obtained some assistance...there are probably numerous occasions in one's daily professional life when that happens. But one makes enquiries and one finds out doesn't one? A. ~~Certainly, I would try and assess each matter on its own merits and since this time I have gained a tremendous amount of experience in my practice and with my other partners. I feel that I now have got the ability to assess a matter and determine whether it is one which I can go along the necessary research or brief counsel or do whatever is necessary to resolve the matter. Or if it was one that I felt was so far out of my range of experience that it could not be dealt with, I feel now that I have got the ability to decide that and pass it on. I would not hesitate to seek the assistance of others and I would not delay in seeking that assistance to resolve the matter." With respect, the Tribunal agrees with those expressions of opinion. The Tribunal is satisfied that the Solicitor is now fully aware of his obligations, that the facts in the particular matter now before the Tribunal are out of character and do not now impinge upon the Solicitor's ability to conduct his professional practice. Orders The Tribunal therefore makes the following Orders: 1. The Solicitor is reprimanded. 2. (a) The Solicitor pay the costs of the Law Society, such costs to be assessed on a solicitor/client basis as if taxed in the Supreme Court. (b) If an agreement cannot be reached between the Solicitor and the Law Society on the amount of costs either party to have liberty to apply. Dated this 9th day of April 1992. 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.