The Legal Services Tribunal of New South Wales CITATION : Ian Gordon Dun [1994] NSWLST 3 PARTIES : Ian Gordon Dun FILE NUMBER(S) : of 1993 CORAM: Mr G B Molloy (Presiding Member) - Mr P. Boesenberg - Vice Admiral I Knox CATCHWORDS: Competence and diligence - Unsatisfactory Professional Conduct - fail to carry out client's instructions - Unsatisfactory Professional Conduct - delay :- LEGISLATION CITED: Legal Profession Act 1987 Bobna v Deller and Public Service Appeals Tribunal [1981 VR 183 at 193].; Allison v General Council of Medical Education and Registration (1984) 1QB 750 at 763; Re A Solicitor (1912) 1 KB 302; ; Re A Solicitor (1924) 93 LJKB 761; ; Basser v Medical Board of Victoria (1981) VR 953 at 964,; Re A Solicitor (1960) VR 617, ; Re Mayes (1974) 1 NSWLR 19; Meyes v Helman (1940) AC 282 at 288.; Brown v Brown (1993) 31 NSWLR 582 at 599-600; CASES CITED: Hoile v The Medical Board of South Australia (1960) 104 CLR 157 at 162; The King v The General Council of Medical Education and Registration of the United Kingdom (1930) 1 KB 562 at 569 ; Mercer v Pharmacy Board of Victoria (1968) VR 72 at 81-83, ; Briginshaw v Briginshaw (1938) 60 CLR 366; Pillai v Messiter (No.2) (1989) 16 NSWLR 197; Gee v General Medical Council (1987) 2 All ER 193, re Mayes (1974) 1 NSWLR 19 at 21; Quidwai v Brown (1984) 1 NSWLR 100. ; In Ex parte Meehan, re Medical Practitioners Act (1965) NSWR 30; Re a Solicitor (1953) QSR 149; R v Saffon [1988] 17 NSWLR 395 at 447; Reza v General Medical Council [1991] 2 All ER 796 DATES OF HEARING: 21 March 1994 DATE OF JUDGMENT: 05/09/1994 LEGAL REPRESENTATIVES: Mr D. Hipsley (instructed by Mr F.J. Smith) appeared for the Law Society of New South Wales Mr A. Palmer (Solicitor) instructed by Matthews Williams for the Solicitor. JUDGMENT: The bare facts of this matter The bare facts of this matter are not in dispute. On 17 February 1975 the Solicitor's client was injured in a motor vehicle accident. The Solicitor received instructions on 16 May 1975. Presumably those instructions were to recover damages for personal injury. On 9 November 1975 the Solicitor caused investigations to be made regarding ownership of the relevant vehicle and the insurer thereof. On 3 May 1977 the Solicitor applied for a Police Accident Report. On 20 June 1977 the Solicitor forwarded a letter of demand to the proposed defendant. On 6 July 1977 the defendant's insurers forwarded a Request for Further and Better Particulars to the Solicitor. Thereafter nothing appears to have happened until 31 March 1983 when the Solicitor had a conference with the client. What happened at that conference is not clear and no light was thrown upon that aspect by the Solicitor in examination in chief or in cross-examination. The Solicitor filed a Statement of Claim in the District Court of NSW at Inverell on 27 June, 1985. The Statement of Claim was never served and the Request for Further and Better Particulars has never been answered. No medical reports had been sought by the Solicitor, no approach had been made to the insurer in any way, no offer of settlement had been made nor had there been any attempt by the Solicitor to elicit an offer of settlement. In early 1989 the client complained to the Law Society ("the Society"). On 3 May 1989 the Solicitor wrote to the Society and stated, inter alia, "I will endeavour to expedite the matter and have it finalised as soon as possible." In 1992, upon receipt of an authority, the Solicitor handed his file across to another Solicitor. The Solicitor's explanation The bare facts as stated above were not disputed by the Solicitor. However, the Solicitor offered a number of explanations which, he submitted, not only would cast a more understanding light on those facts, but would lead this Tribunal to form a different conclusion from that which it might have reached without such explanation. Part of the explanation comes from the Solicitor and part also from the report of the Investigator. On 7 January 1992 the Society, pursuant to the provisions of s.55 of the Legal Profession Act 1987, appointed an Investigator to investigate the affairs of the Solicitor. The appointment of the Investigator arose out of two complaints lodged with the Society, one of which was the matter of Crawford who was the client of the Solicitor referred to above. The whole of the Investigator's Report was filed with the Tribunal but the only matter which is the subject of the formal Complaint was the matter of Crawford and the other material was properly regarded as irrelevant and not read. As part of the Investigator's Report the following matters appeared clear: (a) In the motor vehicle accident the client received some scarring. When the Solicitor took instructions on 16 May 1975, and took a statement from the client (who was then aged 14) the Solicitor requested that photographs of the scarring be supplied. The client, who was then instructing the Solicitor through her mother, failed to supply the photographs as requested, and even in 1983 the Solicitor was still making that request. (b) In his letter to the Society of 3 May 1989 the Solicitor expressed the view "The claim will not be a large one. There is no economic loss and no continuing disabilities." It appears from the evidence of the Solicitor, given both by way of statutory declaration and orally, that he formed the view very early in the piece that the injuries suffered by the client were minimal. He stated that he had a number of telephone conversations with the client's mother and expressed the view that he "did not think the matter was worth proceeding with." He noticed in conference that the client did have a small scar but that the scar was above her hair-line and was not noticeable. Otherwise she apparently had no residual disability. He stated that he advised the client to go back to her doctor with a view to obtaining a medical report, but the client did not so do and the client appeared to have little interest in pursuing the matter. In oral evidence the Solicitor repeated that he felt that the client suffered no significant injuries, that the matter really did not seem to be worth running, that there were no residual injuries, no loss of income and although the client suffered a small scar, because of its location it was not noticeable, particularly having regard to the way the client normally wore her hair and the way that she had been wearing her hair at the date of the accident and subsequently for as long as the Solicitor had known her. He said, "There just didn't seem to be anything in it." He had seen the client on a couple of occasions including the 1983 conference. But in 1983 the photographs that he had requested in 1975 were still not to hand and, he says, that when they ultimately did arrive they certainly didn't indicate any great scarring. Indeed, he expressed the view that there was nothing really disclosed in those photographs unless "you were really looking for the scar." He went on to observe that, in his view, the client had "Not been overly interested in the matter but had never stated to him that she wished to discontinue or not proceed any further." In 1985, and notwithstanding the fact that he had no specific instructions so to do, the Solicitor filed a Statement of Claim on what was probably the last day before the limitation period expired. The Solicitor explained this course of action by stating that the filing of that document "would at least keep the matter alive". He did not serve it because he did not wish to keep "the cost meter ticking over" and in all the circumstances he thought that that would not have been appropriate. The Solicitor conceded that he should have obtained specific instructions on whether or not a Statement of Claim should have been issued but he felt it more important, in the absence of any real or apparent interests from the client, to issue that document to prevent the action from becoming statute barred. It appears that during the course of the matter most of the communication and instructions originated with the client's mother. In about 1979 the client attained the age of 18 years but the Solicitor continued to communicate with the client's mother - he indeed had acted for the client's mother for a number of years and the pattern of having dealings with the mother had been "established as part of the general nature of this file and I tended to continue to deal with (the client's mother)." The Way In Which the Case was Presented There are a number of significant points to which the Tribunal would seek to refer dealing with the way in which the case against the Solicitor was presented. (a) The client herself was never called. No evidence was filed in these proceedings by the client. (b) The photographs, that were so long in coming, were also not in evidence. (c) No medical reports were in evidence. (d) The client's mother was not called, neither did she file any statutory declaration. Consequently, the Tribunal is not able to form its own opinion on whether the Solicitor's opinion as to the nature and seriousness of the injuries suffered by the client warranted the formation of the opinion of the Solicitor that the matter was so minimal as to be not worth pursuing. The case against the Solicitor is put by the Society as one of gross delay and the Society submits that the explanations offered by the Solicitor do not effect in any way the conclusion that the Society invited the Tribunal to find, i.e. that the Solicitor was guilty of professional misconduct. Statutory obstacles It is clear from the above facts that the conduct of the Solicitor dates back to 1975. The complaint is that the Solicitor has been guilty of gross delay in the prosecuting (sic) of his client's third party claim. The conduct as complained of extended from 1975 to 1992 when the Solicitor handed over his file to another solicitor. The Society submits that the conduct of the Solicitor, over a period of 14-16 years, constitutes professional misconduct. The problem that occupied a considerable part of the hearing arises out of the fact that the 1987 Legal Profession Act came into operation on the 1 January 1988. That Act created its own non-exclusive definition of "professional misconduct". That Act is not retrospective in that the conduct of a solicitor prior to 1 January 1988 is not conduct that falls within the statutory definition of "professional misconduct" in s.123 of the Act. It is significant that the Act defines, but by way of a non-exclusive definition, what conduct amounts to "professional misconduct" and the Act also created a new class of professional offence in "unsatisfactory professional conduct", which class of professional offence was not one known to law prior to the commencement of the 1987 Act. This situation was recognised by the gazettal of the Legal Profession Transitional Regulation, 1987, Regulations 9 and 10. Regulation 9 provides that conduct of a solicitor which occurred before 1 January 1988 and which would have been professional misconduct under the law at the time the conduct occurred and was not the subject of a complaint to the Statutory Committee under the Legal Practitioners Act 1898, may be the subject of a complaint under s.130 of the 1987 Act and may be dealt with under Part 10 of that Act. Although there was considerable argument advanced on behalf of the Society and the Solicitor in these proceedings, it seems clear to the Tribunal that in looking at conduct that occurred before 1 January 1988, in order for the Society to succeed it must establish that that conduct would have been professional misconduct under the general law. A question in this case is, therefore, whether the Solicitor's conduct prior to 1 January 1988 would have amounted to professional misconduct under the general law. Regulation 10, on the other hand, is directed to the circumstance where the Tribunal is asked to make a finding of professional misconduct under the 1987 Act where some (but not all) of the conduct complained of occurred prior to 1 January 1988. The Regulation states that for the purpose of determining whether conduct of a solicitor is professional misconduct for the purposes of the 1987 Act where regard is had to conduct of the Solicitor occurring after 1 January 1988, regard may also be had to conduct of the Solicitor occurring before that date. So, in order to succeed under Regulation 10, the Society would have to show conduct after 1 January 1988 which, when considered with conduct prior to that date, would amount to professional misconduct for the purposes of, not the common law, but under the statutory non-exclusive definition in s.123. It is important, in our view, to recognise that 1 January 1988 is a cut-off date when the conduct the subject of a Complaint is conduct that does not extend past that date. If the conduct the subject of a Complaint extends past 1 January 1988, then one looks to Regulation 10: if the conduct complained of ceased prior to that date, then one looks to Regulation 9: and it must also follow that where the conduct took place both before and after 1 January 1988, the totality of that conduct may amount to professional misconduct within s.123, and the conduct subsequent to 1 January 1988 by itself may also amount to professional misconduct under s.123 or unsatisfactory professional conduct under that same section. It further follows that if conduct prior to 1 January 1988 amounts to what would now be called unsatisfactory professional conduct, that conduct, taken alone, is excluded from consideration by the Tribunal. But coupled with conduct after the 1 January 1988, the conduct prior to that date together with the conduct after that date is capable of amounting to professional misconduct under s.123. So the questions for determination by the Tribunal resolve themselves into the following:1. Was the conduct of the Solicitor which occurred before 1 January 1988 professional misconduct under the general law?2. Was the conduct of the Solicitor both before and after 1 January 1988 professional misconduct under s.123?3. Was the conduct of the Solicitor after 1 January 1988 professional misconduct under s.123?4. Was the conduct of the Solicitor after 1 January 1988 unsatisfactory professional conduct under s.123? Was the conduct of the Solicitor which occurred before 1 January 1988 professional misconduct under the general law? "The question of whether (a person is) guilty of `misconduct' within the ordinary acceptation of that term is a question of fact to be determined by the fact-finding Tribunal." (Bobna v Deller and Public Service Appeals Tribunal [1981 VR 183 at 193].) The generally accepted interpretation of professional misconduct is set out in the judgment of Lopes LJ in Allison v General Council of Medical Education and Registration (1984) 1QB 750 at 763, where he said: "If it is shown that a medical man, in the pursuit of his profession,has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren 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' within the meaning of those words under the English 1858 Medical Act." This description of professional misconduct was stated by His Lordship as being not exhaustive, but that common law test has been adopted in relation to solicitors' professional conduct - see, for example, Re A Solicitor (1912) 1 KB 302; and Re A Solicitor (1924) 93 LJKB 761; and has been used extensively in subsequent cases of professional conduct (see, for example, Basser v Medical Board of Victoria (1981) VR 953 at 964, Re A Solicitor (1960) VR 617, Re Mayes (1974) 1 NSWLR 19 and Meyes v Helman (1940) AC 282 at 288. Of course, if it requires to be said, the "test" of His Lordship must be regarded in our modern times as having gender neutral application (see the observations of Kirby P in Brown v Brown (1993) 31 NSWLR 582 at 599-600. The High Court in Hoile v The Medical Board of South Australia (1960) 104 CLR 157 at 162 thought that "infamous" could be equated with "shameful" or "disgraceful". But, at page 163, the Court observed that it must be "sufficiently serious". The Court of Appeal in the United Kingdom in The King v The General Council of Medical Education and Registration of the United Kingdom (1930) 1 KB 562 at 569 also thought that the conduct must be "serious" misconduct in a professional respect". It was once thought that infamous or disgraceful conduct in a professional respect imports "some element of moral turpitude" but the current view is that moral turpitude is not an ingredient of professional misconduct; see Basser v Medical Board of Victoria, op. cit. at 966. What is quite clear is that at common law professional misconduct denotes conduct that is serious, grave and weighty. An affirmative finding may result in a practitioner struck off the Role. Professional misconduct may involve reckless indifference to possible harmful consequences of the acts of the practitioner, or acting with a high degree of negligence amounting to gross incompetence, and in these cases it is necessary to show that right-thinking competent practitioners would regard the acts complained of reprehensible, disgraceful, shameful or dishonourable, all of which may be inferred from all the circumstances (see Basser op. cit. at 968). For example, a deliberate failure to exercise any control or supervision over a clerk who handled client monies is professional misconduct -see Re A Solicitor (1960) VR 617 at 622. The seriousness of a finding of professional misconduct is recognised, not only by the consequences that flow from such a finding, but the standard of proof that is required. The standard of proof is, indeed, the balance of probabilities, but the importance and gravity of the matters in issue must enter into the consideration of whether the evidence produces the reasonable satisfaction required, and it is only after the exercise of caution and after making a close scrutiny of the evidence that the degree of satisfaction required can be reached. There must be evidence that is precise and cogent evidence which survives careful scrutiny: see Mercer v Pharmacy Board of Victoria (1968) VR 72 at 81-83, and Briginshaw v Briginshaw (1938) 60 CLR 366, per Dixon J at 361-362 - the so-called "reasonable satisfaction" standard. And it is also significant to observe that in professional misconduct hearings (as distinct from unsatisfactory professional conduct hearings), the rules of evidence properly apply (Legal Profession Act 1987, s.157(2)). But, and this is important in the context of all professional conduct matters, "the matter must not be approached with hindsight or by drawing indirect inferences" (per O'Bryan J in Basser op. cit. at 969). It is now settled law that mere professional incompetence or deficiency in professional practice do not amount, in themselves, to professional misconduct. More is required. (Pillai v Messiter (No.2) (1989) 16 NSWLR 197). Professional misconduct plainly goes beyond that negligence which would found a claim against a practitioner. On the other hand, gross negligence might amount to relevant misconduct, "particularly if accompanied by indifference to, or lack of concern for, the welfare of the [client]". per Kirby P at 200. A course of conduct may well amount to professional misconduct even though the particular instances making up that course do not: Gee v General Medical Council (1987) 2 All ER 193, re Mayes (1974) 1 NSWLR 19 at 21. The conduct complained of may be unusual and may be the subject of doubt or difference of opinion in the profession without necessarily amounting to professional misconduct: Quidwai v Brown (1984) 1 NSWLR 100. In Ex parte Meehan, re Medical Practitioners Act (1965) NSWR 30, the words "infamous", "disgraceful", "dishonourable", and "shameful", "must be understood by reference to this context of professional disapprobation: and due regard must be had to the varying classes of conduct to which these epithets, used in this special professional sense, may come to be applied" per Sugerman J at 35-36. It is all a matter of degree, looked at not with hindsight nor with a desire to right any perceived past wrong or deviation from what a Tribunal may now think should have been the case at the time of the act in question or what the Tribunal may wish the professional milieu to be at the time of hearing. Each case must be judged on its own facts. Categories of common law professional misconduct are not closed, since ideas of what amounts to professional misconduct may change from time to time: Re a Solicitor (1953) QSR 149. Bearing all those matters in mind, does the conduct of the Solicitor prior to the 1 January 1988 amount to professional misconduct? In the view of this Tribunal it does not. Each case depends upon its individual facts and its individual peculiarities. It is not enough, in our view, simply to point to what appears to be a gross delay. There is no question, that on its face, there was a delay, and a delay of considerable magnitude. But it is significant to observe that in May 1975 the Solicitor specifically advised the client, through her mother, to obtain photographs of the scarring. Indeed, it was vital, one might think, for a successful claim to be maintained to have obtained some photographic evidence, particularly having had regard to the fact that the injury only took place 3 months before. The advice given by the Solicitor was perfectly correct. It is further significant to note that nothing appears to have been done by the client to provide the photographs until some time after March 1983. The evidence is that the Solicitor had still not received the photographs at the time of the conference with the client on 31 March 1983. No explanation is offered by the client for this quite extraordinary delay of over 8 years! A Solicitor cannot go off on a frolic of his own in relation to instructions. Instructions are generally not to be regarded as "at large" but must be confined, and the Solicitor, in our view, was properly concerned that his instructions were seriously deficient. Not only that, but the client herself did not seem to be concerned as to the conduct of the matter. There is no evidence of any enquiry, telephone attendances on the Solicitor asking him what was going on, expressed concern as to any perceived delay, or any concern at all as to the conduct of the matter up to 1 January 1988. The client was not called. Neither was her mother. The photographs were not available and the file of the Solicitor was not available. Indeed, although there were periods, and substantial periods, of inactivity by the Solicitor, this is explainable, in our view, by the lack of interest displayed by the client and the total failure of the client to provide the photographs requested on 16 May 1975. It is difficult to conceive, in our opinion, that the Solicitor was guilty of professional misconduct. Indeed, to the contrary. What he did, and although he had no specific instructions so to do, was to issue a Statement of Claim on 27 June 1985 to preserve the position of the client so that the claim was not statute barred. That, in itself, was a clear positive act in our view and which demonstrates that the Solicitor, although deeply concerned that the client had no real case, and concerned that he was without precise instructions, not having been provided with the photographs or the medical report that he requested upon a previous occasion, and having clearly formed the view that the claim was minimal, and concerned that the taking of further steps in the matter would only incur legal costs that may not be warranted in the particular circumstances, took steps designed to protect the interests of the client. It is further worth observing that the Solicitor took no steps to serve the Court process - again, for the same reason. He did not wish to incur further legal costs in relation to a matter where the damages would, in his opinion, be minimal. It is also significant, in our view, that the Solicitor formed a professional opinion. He is entitled so to do and if that professional opinion turns out to be incorrect, that may be a matter for another place. Solicitors and barristers form professional opinions every day. It is not necessarily professional misconduct to form the wrong professional opinion. We do not practice under a system of strict liability. For example, under the Motor Accidents Act a legal practitioner is often called upon to form a professional opinion as to whether an injured person can recover an award of general damages in excess of the statutory deductible. This is an exercise of judgment and in the exercise of professional judgment opinions may differ, and differ significantly. Even judicial opinions differ on agreed facts. It is not professional misconduct to reach a professional opinion that the injury suffered by the client was minimal, that there was no economic loss and no residual disability. Having formed that opinion it seems to us that the Solicitor was entitled to indicate to the client (which he did, through her mother) that the prosecution of any claim was not worth taking. Indeed, for a small amount, sometimes the legal costs exceed the amount in issue or the cost, expense and time consumed both by the Solicitor and the client are not properly reflected in the ultimate verdict. All of this is a matter for judgment. The Solicitor formed a judgment which, in our view, was available to him to form in all the circumstances of this unusual case. We were referred to a number of cases dealing with delay. Again, each case must be judged on its own facts and merits. Many of the cases to which we were referred involved not only delay but also perhaps delay in a number of matters, repetition of the same conduct in a number of matters, and misleading the client as to the conduct of the matter or matters. Professional misconduct in relation to a solicitor "need not fall within any legal definition of wrong-doing. It need not amount to an offence under the law. It is enough that it amounts to grave impropriety affecting his professional character and is indicative of a failure either to understand or to practise the precepts of honesty or fair dealing in relation to the Courts, his clients or the public" per Rich J in Kennedy v Council of Incorporated Law Institute of New South Wales (1939) 13 ALJ 563. In our view, on the facts as put before this Tribunal up to 1 January 1988 in all the circumstances of this peculiar case, this Solicitor was not guilty of professional misconduct within the common law definition of that phrase. Was the conduct of the Solicitor both before and after 1 January 1988 professional misconduct within s.123? For the reasons set out above, this question is asked because of the way in which Regulation 10 has been framed. The answer to this requires an assessment of the total conduct of the Solicitor from the time he originally obtained instructions in 1975 to the day in which he handed over his file to another solicitor in 1992. For the reasons set out above, in our view he was not guilty of common law professional misconduct for his actions prior to 1 January 1988. Section 123, however, extends the definition of professional misconduct. The definition is not a totally inclusive definition - in our view it incorporates common law professional misconduct and also the various matters set out in s.123. In order to succeed under this head, the Society needs to show that the conduct of the Solicitor is such that involves a substantial or consistent failure to reach reasonable standards of competence and diligence. (The other defined professional misconduct do not apply to the facts of this case). Nothing seems to have happened from June 1985 to May 1989. Nothing happened as far as the Solicitor was concerned in that he did nothing in the matter, but, by the same token, there is no evidence that the client did anything either. Again, a solicitor can only act upon instructions. It may be, however, that what he should have done, having issued the Statement of Claim, is followed it up with the client, confirmed the issue of process, confirmed the fact that there were no medical reports, and sought some more precise and clear instructions as to what he was to do next. But in May 1989 he wrote to the Society and stated, "I will endeavour to expedite the matter and have it finalised as soon as possible." He did not. He says that he reviewed the file, noted it was necessary to make application for leave to serve the Statement of Claim out of time, spoke with the client's mother and "again expressed the view that the size of the claim was such that it was not worth taking the matter further." There is no evidence that the client's mother expressed a contrary view or gave him any additional instructions. Indeed, to the contrary. However, in our view the Solicitor should have been alive to the problem created by the client having attained the age of majority in about 1979. Although these observations are true as to conduct prior to the 1 January 1988, they continue to be true, and perhaps more so, after receipt of the letter from the Society. That should have concentrated the mind of the Solicitor on the problem. One receives an impression, from the evidence, that the Solicitor was content with his professional opinion being expressed to the client's mother even though the evidence seems to be that it was the client herself who was complaining to the Society. Although the file showed a history of attendances on the client's mother, it did show a conference with the client in March 1983 and a complaint by the client in early 1989. There is a paucity of evidence before the Tribunal as to what precisely happened after the complaint to the Society had been made. In the Report of the Investigator, he states "In the ensuing correspondence between the Solicitor, the Society and the Complainant there was some difference of opinion as to how regularly the client or her mother kept in communication with the Solicitor I do not reach any conclusion in that regard. It could be that the complainant may not have been the most helpful of clients." Now it may be that the Solicitor formed the professional opinion that the matter did not merit being taken any further. He stated to the Investigator: "My view is it's not worth running." But is was a claim arising out of a motor vehicle accident in February 1975, when common law damages were at large. It seems to this Tribunal that the client was entitled to have her instructions acted upon and the Solicitor just simply failed to appreciate that in May 1989, and, other than a word or two to the mother of the client, failed to do anything overt in the matter. Now looking again at Regulation 10, and having regard to the conduct of the Solicitor occurring prior to the 1 January 1988, can it be said that the totality of that conduct involved "a substantial or consistent failure to reach reasonable standards of competence and diligence"? Nothing in the Legal Profession Act 1987, detracts from the requirement that in a matter of professional misconduct the conduct must be serious, grave and weighty before one makes such a finding. The non-inclusive definition of professional misconduct in s.123 does not detract from that observation, and properly so. It is a serious matter to allege against a practitioner in any profession that he/she is guilty of professional misconduct. It would be quite wrong, in our view, to make a finding of professional misconduct against a practitioner when the conduct complained of is not serious, grave or weighty. The Parliament has not sought to detract from that requirement - indeed, to the contrary, it has sought to make "professional misconduct" much more serious conduct than "unsatisfactory professional conduct" both by way of non-inclusive definition, the requirement to adhere to the rules of evidence and also by way of the consequences that flow from the respective findings. So, in our view, the conduct of the Solicitor, taken as a whole and in the peculiar circumstances of this case, does not amount to professional misconduct under s.123. Was the conduct of the Solicitor after 1 January 1988 professional misconduct within s.123? Adopting the principles above, we think the answer to this question must be "No". The only evidence before the Tribunal is that in early 1989 the client complained to the Society, the Society corresponded with the Solicitor, on the 3 May 1989 the Solicitor wrote to the Society and stated "I will endeavour to expedite the matter and have it finalised as soon as possible" and that the Solicitor had some further telephone discussions with the client's mother in expressing his view that the size of the claim was such that it was not worth taking the matter further. That was his professional opinion that he formed when he saw the client on the 16 May 1975 and the opinion that he held throughout the matter and that he holds today. Although it is true that he failed to obtain instructions direct from the client, and he certainly should have been on notice that he was required to do that by virtue of the fact that it was the client, and not her mother, who complained to the Society, we do not believe that his conduct subsequent to 1 January 1988 amounts to professional misconduct within the terms of s.123. Again it is significant to note that it would appear that the client took no particular overt action from the time she complained in early 1989 to the time she changed solicitors in 1992. At least there is no evidence thereof and, although it may be said that there was a degree of inaction by the Solicitor over the whole of the matter, and subsequent to 1 January 1988, there was certainly a degree of inaction by the client. That may be a reflection of the fact that the client understood that her claim for damages was not large and perhaps did not warrant considerable time spent on it. Again, it is all a matter for judgment. But we do not believe that the conduct of the Solicitor showed a substantial or consistent failure to reach reasonable standards of competence and diligence. But that is not the end of the matter. Was the conduct of the Solicitor after 1 January 1988 unsatisfactory professional conduct within the terms of s.123? For the reasons stated above, the concept of "unsatisfactory professional conduct" did not exist prior to 1 January 1988. It is, and properly so, a creation of statute and, equally properly, does not have retrospective operation. Prior to 1 January 1988 conduct that was the subject of any adverse findings was either professional misconduct in the common law sense or it was nothing. However, the Legal Profession Act 1987, created a class of conduct, whether consisting of an act or omission, occurring in connection with a 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 is therefore entitled to look at the Solicitor's conduct subsequent to 1 January 1988 to see whether it can properly make a finding of unsatisfactory professional conduct. Again the facts are quite clear: from 1 January 1988 until May 1989 the Solicitor did nothing in this matter. In May 1989 he stated to the Society that he would endeavour to expedite the matter and have it finalised as soon as possible. But other than some telephone discussions with the client's mother, the Solicitor did nothing until he handed over the file to new solicitors in 1992. The Solicitor failed to communicate with the client. The Solicitor failed to obtain proper or fresh instructions, although he must have known that the client was concerned as to the conduct of her claim for personal injuries. The Solicitor failed to obtain instructions on the Request for Further and Better Particulars that he had received in July 1977. He failed to obtain instructions on whether the claim for personal injuries was to be pursued. He failed to obtain instructions on whether the Statement of Claim, issued in June 1985, was to be served. He failed to obtain instructions on the obtaining of any medical reports, the listing of any out of pocket expenses, economic loss and continuing disabilities. In short, he failed to give proper advice to the client, as distinct from the client's mother. It is true that he had formed and still adheres to, the opinion that the client's injuries were minimal and that the matter was not worth taking further. But that does not absolve him from obtaining direct precise instructions from the client. By early 1989 he was aware that the client was concerned and that should have rung alarm bells in the Solicitor's mind and encouraged him to focus with considerable intensity on the file. In our view, he did not. In our view his conduct fell short of the standard of competency and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner. In our view the Solicitor is guilty of unsatisfactory professional conduct. Solicitor's practice history The Solicitor was born on 11 December 1944 and was admitted to practice on 6 June 1969. He is married with 3 children. He was originally was employed by Messrs Wiltshire Britton and Dun and up until 1972 he was in charge of the Bingara Office of that firm. He then moved to Inverell and attended the Bingara office one day per week. Messrs Wiltshire Britton and Dun was a reasonably large country practice and, as with nearly all country practices, was a general practice covering nearly all fields of the law. The practice of law in rural areas of NSW is generally well serviced by solicitors who are called upon to deal with many and varied aspects of law and are thereby able to give good legal service to country people. In 1976 Mr Britton retired from the firm and the Solicitor was admitted to partnership. There were four partners of the firm. In 1979 one of the partners was discovered as having misappropriated trust funds. The Solicitor was actively associated with expelling that partner from the firm and notifying the Law Society. In 1980 another partner retired. That left only two partners, the Solicitor and his father. His father passed away in April 1984. The practice was thereafter run by the Solicitor, a consultant and an employed solicitor, the last mentioned of whom resigned in March 1985. In August 1985 the Solicitor entered into a further partnership which was not a success and this partnership was dissolved in September 1987. The Solicitor currently practises as a sole practitioner at Inverell and employs one student clerk and other administrative assistants. It is quite clear, even from the above bare recital of facts, that the Solicitor was placed under extraordinary pressures over the whole of the period of his practice. It is clear that he has a very busy practice and that he worked very hard in dealing with the problems associated with the various changes in the partnership and the resultant difficulties in taking over the files of other people. It has always been difficult, in rural areas, to employ solicitors - solicitors seem to wish to retain or acquire the big smoke lifestyle and are not attracted to country practice. For those solicitors who remain in country practices, they often suffer from very heavy workloads and the Tribunal has formed the view that this Solicitor was no exception. His problems were compounded by the other difficulties referred to in the partnership. As with many country solicitors, they actively participate in the local community. The Solicitor in this case has been a past president of the North West Law Society, is the Honorary Solicitor for a number of local organisations, is an active participant in Rotary, a Director of a local Club and is an Acting District Administrator in the Scout Association. He is clearly a person who is held in high regard in the local community. As with many country solicitors, he has difficulty in turning away work - it would be difficult to do so in a country town - but the result is, and as is often the case, that instead of being pro-active the Solicitor in the conduct of his practice becomes re-active, dealing with urgent matters or matters where clients exert pressure, so that other matters, like the one in question in this Complaint, go to the bottom of the pile and do not receive the attention which they otherwise should. Antecedents This Solicitor has been before this Tribunal on a previous occasion. A Complaint was filed on the 21 February 1989 and the judgment of the Tribunal was delivered on the 19 December 1989. The judgment of the Tribunal was reported prior to the commencement of the Legal Profession Disciplinary Reports and can be found in the Supplement to the Law Society Journal, September 1990, page 82. That Tribunal found that, in a series of matters there had been gross delay, neglect and inattention. And, in view of the number of matters involved and the extent of the delay established, that Tribunal found the Solicitor guilty of professional misconduct in the common law sense and fined the Solicitor $10,000. There was considerable argument before the Tribunal on whether the decision of the Tribunal on 19 December 1989 should be admitted into evidence as part of the Society's case. It is trite law, however, that the conduct complained of must be particularised (R v Saffon [1988] 17 NSWLR 395 at 447) so that the legal practitioner knows the case he has to meet (see also Reza v General Medical Council [1991] 2 All ER 796). There is no doubt that the facts and the judgment of the Tribunal of December 1989 were not particularised in the filed Complaint in the instant proceedings. The Solicitor did not come to the Tribunal prepared to deal with matters other than as set out or pleaded in the Complaint. In our view it would be grossly unfair to have required the Solicitor to meet an argument based on the 19 December 1989 findings and judgment - it would certainly have required an adjournment, an amendment of the Complaint, and in all the circumstances, the interests of justice would not have been served by that course of action. Ultimately, and correctly in our view, both Mr Hipsley and Mr Palmer agreed that the Tribunal could look at the judgment of 19 December 1989, but only on the question of penalty. The facts before the Tribunal in 1989 showed gross delay, neglect and inattention to the affairs of numerous clients of the Solicitor. The conduct the subject of the instant Complaint involved conduct, generally speaking, that took place over the same period as the conduct that subject of the findings of the previous Tribunal. It would appear that the Investigator looked at numerous files and the only matter that was referred to the Tribunal was the matter of Crawford. This Tribunal is bound by the rules of evidence. There is one matter the subject of the Complaint and the Tribunal has found in that matter that the Solicitor has been guilty of unsatisfactory professional conduct. He has, however, antecedents in which there was a finding of professional misconduct and a substantial fine imposed. The Tribunal's powers upon such a finding are governed by s.163(2)(b) and s.149(2). The Tribunal finds that the conduct of the Solicitor was such, in all the circumstances, that warrants a fine and a reprimand. It is important for the profession to understand that, when faced with a complaint by a client, and in this case a complaint by a client communicated through the Law Society, the practitioner should act with focus and diligence and expedition to deal positively with the complaint. This Solicitor failed so to do. He must also have been alive to the very serious potential consequences of not positively doing something, having regard to the findings and judgment of the Tribunal on 19 December 1989. The Tribunal is therefore of the view that the appropriate fine is the maximum permitted under s.149(2). Orders The Tribunal makes the following orders that:1.The Solicitor be and is hereby reprimanded.2.The Solicitor pay a fine of $2,000 within a period of 30 days from the date of this Order.3.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.4.The Solicitor pay the costs of the Law Society, such costs to be assessed on a solicitor and client basis as if taxed in the Supreme Court of NSW.5.If agreement cannot be reached between the Solicitor and the Law Society as to the amount of such costs, either party shall have liberty to apply. 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