CITATION: Law Society of NSW v Nguyen [2009] NSWADT 199 DIVISION: Legal Services Division APPLICANT The Council of the Law Society of New South Wales PARTIES: RESPONDENT Michelle My Nguyen FILE NUMBER: 072042 HEARING DATES: 11 & 12 August 2008 SUBMISSIONS CLOSED: 26 November 2008 DATE OF DECISION: 28 July 2009 BEFORE: Brennan J - Judicial Member; Molloy G - Judicial Member; O'Neill A - Non-Judicial Member CATCHWORDS: Professional Misconduct – conflict of interest - acting for opponent of client- confidentiality,privilege, duty of loyalty to client, LEGISLATION CITED : Legal Profession Act 2004 Allinson v General Council of Medical Education and Registration [1894] QB 750 Alexander (t/a Minter Ellison) v Perpetual Trustees WA Ltd [2001] NSW CA 240 Australian Commercial Research and Development v Hampson [1991] Qd R 508 Baker v Campbell (1983) 153 CLR 52 Belan v Casey 2002 NSW SC 58 Briginshaw v Briginshaw (1938) 60 CLR 336 Carindale County Club Estate Pty Ltd. v Astill (1993) 115 ALR 112 Davey v Wooley, Homes, Dale & Dingwell (1982) 35 OR (2d) 599 Director General, Department of Infrastructure, Planning & Natural Resources v Stapleton [No. 2] 2004 NSW ADT 70 D & J Constructions Pty Ltd. v Head (1987) 9NSWLR118 Ex parte Macaulay (1930) 30 SR NSW 193 Grant v Downs (1976) 135 CLR 685 Harvey v The Law Society of New South Wales (1975) 49 ALJR 362 CASES CITED: Hilton v Barker Booth & Eastwood (a firm) (HL(E)) [2005] 1WLR567 Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 John Bolster v Law Society of New South Wales unreported 20 September 1982 C/A NSW 233/82 Kennedy v The Council of the Incorporated Law Institute of New South Wales (1940) 13 ALJR 563 Law Society of New South Wales v Foreman 1994 34 NSWLA 408 Law Society of New South Wales v Holt (2003) NSWSC 629 Law Society of New South Wales v Moulton (1981) 2 NSWLR 736 Law Society of New South Wales v Starky unreported 13 August 1979 C/A NSW 205/79 Lowry v Alexander [2000] NSWSC661 MacDonald Estate v Martin (1990) DLR (4) 249 National Mutual Holdings Pty Limited & ors v The Sentry Corporation & Ors (1989) 22 FCR 209 Rakusen v Ellis Munday & Clarke (1912) 1 Ch 831 Re Clayton (1962) SR (NSW) 132 Thompson v Mikkelsen Supreme Court unreported 3 October 1974 J WoottenWan v McDonald & Ors 1991 33 FCR 491 APPLICANT L Pierotti, solicitor REPRESENTATION: RESPONDENT S Griffiths, solicitor 1.That the Respondent, Michelle My Nyugen, be fined the sum of One thousand dollars ($1,000.00) 2.That the Respondent be reprimanded ORDERS: 3.That within twelve (12) months of the date of this Order, the Solicitor obtain from the College of Law a letter evidencing satisfactory completion (indicating that the Solicitor has completed the course and obtained a mark of at least 50%, or an equivalent grade) of the College of Law Legal Ethics Bridging Course including satisfactory completion of the Professional Responsibility module of the Practical Legal Training Course (such courses to be completed personally and not on-line) 4.That the Respondent pay the costs of the Applicant Society of and incidental to this application as agreed or assessed 5. That the Registry provide to the Legal Services Commissioner sufficient information to enable the Commissioner to exercise his powers and functions in respect of the Registrar of Disciplinary Action required to be kept under Part 4.10 of the Legal Profession Act 2004. REASONS FOR DECISION 1 On 3 December 2007 the Council of the Law Society of New South Wales ("the Society") filed an Application pursuant to Section 551 of the Legal Profession Act 2004 ("LPA") against Michelle My Nguyen ("the Respondent"). The Society alleged that the Respondent, while practising as a Solicitor, was guilty of professional misconduct as set out in detail and particularised in the Application. 2 The Application alleged that the professional misconduct of the Respondent consisted of: a. Acting in a conflict of interest (3rd application); b. The Respondent failed to supervise her Employed Solicitor; c. Acting in a conflict of interest (2nd application). 3 The grounds of complaint were particularised by the Society and these particulars were as follows, except that for the sake of accuracy the Respondent is referred to in the particulars as "Nguyen" (although otherwise described in these Reasons as the "Respondent"): "1. Michelle My Nguyen ("Nguyen") was at all relevant times a sole practitioner practising as My T Nguyen, at Cabramatta. 2. At all relevant times Nguyen employed My Yen Thi Tran ("Ms Tran") who was the holder of a restricted Practising Certificate. 3. At all relevant times Ms Tran resided with her mother, Thi Lung Le ("the grandmother") at the grandmother's residence in Bankstown. Ms Tran has a brother Luy Van Tran, also known to as Van Luy Tran, ("Mr Tran") On 19 February 1999 Mr Tran and his partner, Kim Linh Duong ("Duong"), had a child, Andrew Tran ("Andrew"), born in Vietnam. Sometime in 1999 Mr Tran and Duong re-located to Australia. They resided at the grandmother's residence in Bankstown. During the second half of 2001 Mr Tran re-located to Vietnam where he remained until his return to Australia on or about 25 May 2003. The First Application. Nguyen, on Duong's behalf, prepared an Application for Consent Orders ("the first Application") and Minutes of Consent Orders ("the Consent Orders") for residence, parenting and contact in relation to Andrew. On 2 August 2002 the first Application and Consent Orders were filed at Fairfield Local Court by office staff of Nguyen. On 9 August 2002 The Consent Orders were made in chambers. The Orders were in the following terms: '1. That the child of the marriage namely Andrew Tran (dob: 19.2.99) ("the child") reside with the husband's mother Thi Lung Le ("the grandmother") That the grandmother had the sole parental and residential responsibility for the child together with all the powers and necessity (sic) for the child's long term and day to day care, welfare and developments (sic). That the husband and the wife had regular contact with the child on (sic) such times and occasions as are in the best interest of the child and at such times to be mutually agreed between the grandmother, husband and the wife. That if any party refuses or neglects to execute the document in pursuant (sic) to the orders herein then the registrar of the Local Court at Liverpool be appointed in accordance with Section 84(1) of the Family Law Act, 1975 to execute such documents in lieu of that party.' On 29 March 2003 Duong, without consent, removed Andrew from the Bankstown residence of the grandmother. The Second Application On 3 April 2003 Nguyen, on the grandmother's behalf, made an Application for Andrew's recovery from Duong. On 11 April 2003 orders were made by the Local Court at Fairfield for Andrew's recovery from Duong and his return to the grandmother ('the recovery orders'). On 9 May 2003 the Australian Federal Police attended at Duong's residence in Perth and recovered Andrew pursuant to the recovery orders. The Third Application On or about 15 May 2003 Duong instructed the Legal Aid Commission of NSW to make an Application for Parenting Orders in relation to Andrew (the "third Application"). The third Application was filed on 15 May 2003 and sought interim and final Orders that Andrew reside with Duong. The Respondent named in the third Application was the grandmother. On 19 May 2003 the third Application was made returnable at 9.30 a.m. on 26 May 2003. On 19 May 2003 the grandmother was served with the third Application and supporting documents. Shortly before the 26 May 2003 Nguyen was informed by Ms Tran: (i) of the service on the grandmother of the third Application; (ii) of Ms Tran's wish to appear 'in a personal capacity' for the grandmother and Mr Tran on 26 May 2003. Nguyen did not give Ms Tran any directions in relation to appearing on behalf of the Respondent (or Mr Tran) and against her former client, Duong, in respect of the third application the nature of which was to seek orders contrary to the Consent Orders obtained by Nguyen on Duong's behalf on 9 August 2002 and in circumstances where Ms Tran may well have been required as a material witness because she resided in the same home with Andrew and because of the nature and content of the first Application. On 26 May 2003 the third Application came before Federal Magistrate Ryan in the Federal Magistrate's Court at Parramatta. Ms Weaver an employed Solicitor with the Legal Aid Commission of NSW, appeared for Duong. Ms Tran appeared for the grandmother, who was also her mother. Mr Tran appeared in person. Ms Tran made an application for an order that Mr Tran be joined as Respondent. Thereafter Ms Tran appeared for both the grandmother and Mr Tran. Ms Tran did not make any application to appear 'in a personal capacity'. Ms Tran on behalf of the grandmother and Mr Tran, resisted the orders sought in the third Application. On 26 May 2003 Federal Magistrate Ryan ordered, inter alia, as follows: '1. That the parenting orders made at Fairfield Local Court on 1 August 2002 are suspended. That My. T. Nguyen Solicitors are restrained from appearing for the respondent grandmother and/or the respondent father in these proceedings. That the child of the marriage Andrew Tran 'the child', born 19 February 1999 live with the applicant mother Kim Duong'. " 4 The Society in its Application sought Orders as follows: a. Substantial fine; b. Reprimand; c. That within 12 months of the Order being obtained, the Solicitor obtain from the College of Law a letter evidencing the satisfactory completion (indicating that the Solicitor had completed the course and obtained a mark of at least 50% or an equivalent grade ) of the College of Law Legal Ethics Bridging Course including satisfactory completion of the Professional Responsibility module of the Practical Legal Training Course [such courses to be completed personally and not on-line]; d. Costs; e. Such other Order as to the Tribunal seems fit. 5 The Respondent filed a Reply to the Application on 25 January 2008 and this was replaced by an Amended Reply filed 6 March 2008 ("the Amended Reply"). 6 In the Amended Reply the Respondent denied the three allegations of professional misconduct. In relation to the Particulars the Respondent admitted the matters alleged in particulars 1, 2, 8, 9, and 10. In addition, the Respondent stated in the Amended Reply that she verily believed the facts detailed in the Particulars numbered 3, 4, 6, 7, 11, 13, 14, 15, 17, 18 and 23. 7 In the Amended Reply the Respondent dealt with the remaining particulars in the Society's Complaint as follows: "5. The Respondent believes that Ms Tran and Ms Duong had a child, namely Andrew, born in Vietnam. The Respondent denies that on 3 April 2003 she made an application for Andrew's recovery from Ms Duong. The Respondent verily believes that on 15 May 2003 the third application was filed. Shortly before 26 March 2003 the Respondent was informed by Ms Tran of Ms Tran's intention to attend Court on 26 May 2003 to "help her mother out". The Respondent said that this was on the basis that the third application was for 'mention'. Also that Ms Tran had informed the Respondent that 'her mother had found difficulty in engaging solicitors specialising in Family Law on short notice'. The Respondent admits that she did not give Ms Tran any directions in relation to appearing on behalf of the grandmother other than on the basis that the Respondent regarded it as a personal matter for Ms Tran in assisting her family members. The Respondent admits that the third application came before Federal Magistrate Ryan in the Federal Magistrate's Court at Parramatta on 26 May 2003. The Respondent does not know and cannot admit the remaining particulars set out in the said paragraph. The Respondent does not know and cannot admit the particulars set out in the said paragraph." 8 At the hearing of the matter the Respondent through her Counsel admitted the matters alleged in paragraph 21 of the Particulars with the exception of the material in the final sentence. 9 The proceedings were heard in the Tribunal on 11 and 12 August 2008 and the evidence was concluded late on the second day. Directions were then given for the parties to make submissions to the Tribunal after the transcript became available and those directions were complied with. Unfortunately, in consequence of some administrative mishap, the submissions had not been fully circulated until shortly beforehand so that there was a delay in the matter being able to be fully considered and resolved. 10 At the hearing the Society tendered two Affidavits of Raymond John Collins sworn respectively on 13 November 2007 and 26 June 2008. Those Affidavits were admitted into evidence subject to objection and a number of the documents annexed to the first of the Affidavits were rejected after consideration of objections raised by the Respondent. 11 The Society tendered as part of its case Consent Orders made in the Local Court Fairfield dated 2002 and these were admitted without objection. This document was filed on 2 August 2002 in an Application involving Kim Linh Duong (Wife) and Luy Van Tran (Husband), and established to the satisfaction of the Tribunal the factual matters relied upon by the Society in particular 10. 12 The transcript of the evidence taken in the Federal Magistrates Court on 26 May 2003 had been annexed to Mr Collins' first Affidavit which became the subject of a separate tender. It was admitted following objection for limited purposes [T57 August 12 08), namely: a. That Ms Tran (the "Employed Solicitor") appeared – not in a personal capacity; b. That she, the Employed Solicitor, appeared on behalf of the grandmother, Ms Le and in some respect for Mr Tran; c. That the proceedings were contested proceedings involving on the other side Ms Nguyen's former client Mr Duong; and d. The Employed Solicitor resisted the Orders being sought by Ms Duong. 13 The Court record of a Family Law Application in Fairfield Local Court between the parties Thi Lung Le (Applicant) and Kim Linh Duong (Respondent) in an action described as "recovery order" dated 11 April 2003 shows appearance by Tran as representative for the Applicant, no appearance for the Respondent, "orders granted as sought as amended by Chamber Magistrate". The record was admitted by consent. There is no suggestion that the Respondent was present at the Court on 11 April 2003 and the Employed Solicitor has not given evidence. 14 The mother of the Employed Solicitor, Thi Lung Le (who is clearly the Applicant in the second Application) swore an Affidavit that was admitted in the proceedings. In that Affidavit she denied ever instructing the Respondent or her firm to act for her and further asserted "I not tell Ms Nguyen act as my lawyer to get grandson back. Ms Nguyen not act for me as lawyer. She not do anything for documents to get grandson back." 15 On Day 2 of the hearing in cross-examination of Ms Le at T65 L35: "Q. Ms Le, did your daughter, Ms Tran, give you any documents, Court documents, pamphlets before the Application was filed? A.(INTERPRETER) I can't recall because now I am 71st, so my memory is not good enough". 16 Subsequently at T67 Ms Le was asked: "Q. I'm talking about No. 2. OK. Forget about No. 3. No. 2, did you go to Court on 11 April 2003 when there was the first Orders in No. 2? A. (INTERPRETER) Yes. And your daughter, Ms Tran, was there, wasn't she? A. (INTERPRETER) I cannot remember, it's a long time ago." 17 Although not strictly in order, it is convenient for the Tribunal to deal at this stage also with the evidence of Minh Trieu Hoang Le who swore an Affidavit on behalf of the Respondent. He is the husband of the Employed Solicitor and in his Affidavit he gave evidence of his mother-in-law, being the grandmother of Andrew, and of her having made Application to the Fairfield Local Court for the purpose of obtaining a Recovery Order in respect of Andrew. He asserted that "to the best of my knowledge and belief my mother-in-law did not instruct [sic] the Respondent to act for her in relation to the matter." He deposed to the Respondent's firm's name being put on the Application "as the documents would then go to my wife" but he asserted that "I did not do this to indicate that Ms Nguyen (the Respondent) nor my wife [sic] (Ms Tran) was acting on my mother-in-law's behalf." 18 In cross-examination in relation to the second Application after he confirmed [at T74 on 12 August 2008] that Ms Tran, the Employed Solicitor, was his wife, Mr Le was asked: "Q Who gave you the Application form? A. The Application form here, I printed off the Application, the Application form by the, by the internet. Yes, but you say it came back, where did it come back from? A I think you misunderstood me – I printed out the Application form. Yes. A The Application form was then, I gave that over to my wife, she then took over that, that matter in term of having it filled out, then that came back to me, I think it was in a day or two later that I lodged at the Courts…" 19 Shortly afterwards on T74 the following ensued in his cross-examination: Q Your Affidavit says at paragraph 4 "I thought it best at the time to put the details of Ms Nguyen's firm as the documents would then go to my wife". The fact is that your wife completed the documents, didn't she? A The information that is on the document, that's in my wife's handwriting, she completed that document. Q Yes, and you completed page 3? A And I completed page 3, yes." 20 The Respondent also gave evidence [T40] under cross-examination on the second day in relation to the recovery proceedings which was the second Application when she was asked: "Q Ms Tran brought the Application, the second Application, April 03 application to you, didn't she? A Yes Q It wasn't somebody else? A Yes, that's right Q Did she say anything to you at that stage about having completed the hand-written parts of the document, 'I've completed it for you, here it is, it's filled out', whatever words she may have used? A She basically asked me if it was OK before she filled it out, she asked me if it was OK for the firm's details to be inserted at the solicitor for the Application and I gave her the permission and then she completed the Application. Q So chronologically, no Application form, is it OK to fill it out, she fills it out, she give it to you for signature? A Yes, that's right." The Respondent indicated that she was not aware as to whether the Application was completed in the office though "it might have been" and subsequently said "it probably would have been because – probably would have been because they wanted to do it – file it fairly urgently, so..". 21 Subsequently [also at T40] cross-examination of the Respondent continued: "Q So the husband typed the order, she filled in the rest? A Yes, that's right. Q And then you signed them? A Yes, correct. Q And correct me again if I'm wrong, she said to you words to the effect that she had given to the grandmother, her mother, the various documents which are referred to at H. on page 2?[sic being annexure D to the second Affidavit of Mr Collins, the declaration being the usual lawyer's declaration of having given to the Applicant copies of the Family Law brochures 'Marriage Families and Separation' and 'Mediation Services brochure Pathway to Agreement']. A I asked her that because I noticed it when I was signing on the Application, I said, 'Well, I have given your mother these documents' and she said 'Yes, I have'. Q Did she[sic 'say'] whether she explained them? A Yes, she said yes, she has explained it her mother Q Tell me, at that stage in April 2003 did Ms Tran do Family Law work in your firm? A Some, yes. Q In April 2003 did your practice conduct family law matters? A We didn't do a lot, but we prepare, we did act for divorces and consent orders. Q And was Ms Tran involved in the Family Law work of the firm? A Yes. Q She was. So she was familiar with the jurisdiction? A Yes. Q Again, going back to your evidence yesterday, your evidence was, and correct me if I'm wrong, that the whole purpose of putting your firm's details on the Application at page 1 of Exhibit B was to allow as it were it to be used as a mail box? A Yes, that's correct." 22 In earlier cross examination on the first day of the hearing the Solicitor was asked a series of questions about her having signed the Application to Fairfield Local Court (the second application) as lawyer for the applicant and the supporting Lawyer's Declaration and also the Information Sheet in those proceedings again as lawyer for the applicant (grandmother of the child Andrew) where that Information Sheet is shown as having been prepared by the Respondent. 23 In relation to the application the Respondent's evidence on cross-examination at T52 includes: "Q. Right, would you go across to page two? Is that your signature at paras headed G and H? A. Yes, it is my signature. Q Do you see that at G it says, sign, and you say that's your signature, dated 3 April '03 and lawyer for applicant, brackets S, close brackets? A. A Sorry? Q. You see underneath the signature… A. A Yes. Q. ..there are two boxes. A. Yes, yes. Q. Applicant, bracket S, little box.. A. Yes. Q. …lawyer for applicant bracket S, little box. A. Yes. Q. You see the box ticked lawyer for applicant is ticked? A. Yes Q. What do you say about the ticking of that box? A. I didn't fill out this information sheet, I didn't – there wasn't – I didn't write it because – and I didn't notice that that box had been ticked to be honest. So, you're saying someone else ticked it? A. Yes. Did you, go down one line, 'This application was prepared by applicant/box/lawyer' – box there's a tick in the middle box, what do you say about that tick? I didn't really pay attention to that when I signed the application. BRENNAN: I'm sorry could you speak up. WITNESS: I didn't really pay – I didn't really notice that when I signed the application. PIEROTTI Are you suggesting somebody else ticked it? Yes. Am I correct in that you say that Ms Tran came to see you and asked you to insert your firm's name? Do you recall giving that answer to my friend? She asked me if – the details of the firm and if my details could be inserted and I said yes." 24 At T54 the Respondent was questioned on the implications of her having signed in the two spaces provided in the application. This included the following: "Q. At its best, Ms Nguyen, it's misleading isn't it? The signatures and the statements that you're the lawyer for the applicant, that the lawyer prepared and that you gave various documents to the applicant. There wasn't an intention to mislead." And a little further on: "Q. Ms Nguyen, I'm referring you to page two of Mr Collins' affidavit the second page of the application, the statement there ticked under 'G' lawyer for applicant was misleading according to you, isn't it? Well, I don't – I mean I didn't notice that –that having ticked and I didn't write my name in there so. You say that's not your signature now? It is my signature but I didn't write -= in my details as the solicitor for the…. No, I'm not asking about details, I'm asking you whether, having signed a statement, a signature with a date that says that you're the lawyer for the applicant would you agree with me that you are either the lawyer or otherwise that signature misleads the Court? I didn't realise it would be considered misleading to the Court. Could you answer the question, Ms Nguyen, please? Do you agree with me that signing and dating the document as lawyer for applicants is misleading? If you mean by misleading that it was incorrect that I was these – the solicitor then – then yes. Q. No, I'm sorry, Ms Nguyen, it's not difficult, is it, to understand that when you're filling out a court document that asks a question, this application was prepared by and there's an option. That if you, as you suggest, are not the lawyer it is misleading to have it ticked lawyer. A. In that case then yes." [T54 L34 to T55 L19] 25 At T58 and 59 the Respondent was cross-examined about the information sheet filed on 3 April 2003: "Q Page – the short affidavit that I've just been referring you to, I've been referring you to pages 1 and 2, would you jump ahead to page ten please? A Yes, I've got it. Q That's headed 'Information sheet?' A Yes. Q Can I ask you to jump ahead a little bit to page twelve, there's a para or a block headed 'E, signature of applicant or lawyer.' You see that? A Yes. Q That's your signature? A Yes, it is. Q You notice the tick lawyer or applicant? A I notice it now. Q Whose writing is 'Michelle Nguyen' underneath? A It's not my handwriting. Q So you say that although the document says that you prepared it and you signed – by the way did you date it, is that your writing the date? A That's my writing. Q You've dated it, you signed it and it's ticked the information sheet was prepared by the lawyer and you say you didn't notice. A Yes, because that part had already been completed. That part had already been completed, the – the boxes had already been ticked and my name had been inserted. Q Is it your custom, Ms Nguyen, that when you prepare certain documents for court you don't – you rely on others to prepare them and tick boxes and you just sign? A It's not always a practice but sometimes we have the staff completing the forms. Q And you don't read them? A Well I normally read them. Q Is this just one of those exceptions that you didn't read properly? A Yes, because I wasn't – I wasn't acting for the – I wasn't acting for – for the applicant. I wasn't being paid to do this I was just agreeing for the firm's details to go on as a favour so that the mail be lost. MOLLOY: What Mr Pierotti is putting to you is why couldn't you have simply – for those who prepared the document - simply put in the name of the client, that is, the applicant Ms Le care of your firm without having to put your name as the solicitor for the applicant. That's what he's really putting to you. Did that ever occur to you? WITNESS: No, it didn't – it – we didn't realise that – we didn't – we didn't think of that at the time." [T58 L32 to T59 L33] 26 The admission of the Court record of appearances made on 11 April 2003 is in the view of the Tribunal significant in considering whether the Society has established the third complaint which relates to the second Application and this will be referred to later, as will the question of whether the facts particularised can be relied upon by the Society as establishing the professional misconduct alleged. 27 At the hearing the Respondent tendered Affidavits from the following which apart from the Respondent's affidavit were admitted into evidence without objection: (i) Respondent sworn 15 January 2008 [admitted subject to the deletion of all of paragraph 8 apart from one sentence]; (ii) Minh Trieu Hong Le sworn 15 January 2008; (iii) Thri Lung Le sworn 15 January 2008; (iv) Veronica Siow sworn 5 August 2008; (v) Andrew Lee sworn 6 August 2008; (vi) Mohammed Alsalami sworn 8 August 2008; (vii) The Venerable Thich Phuoc Dat sworn 7 August 2008. 28 Evidence establishing relevant particulars of complaints made by Law Society: In relation to some of the particulars, evidence was provided to the Tribunal from a number of sources and in the hearing there was not a dispute as to significant evidentiary matters. The thrust of the Respondent's case was that the facts alleged by the Society did not establish any of the complaints of professional misconduct alleged. The Tribunal is of the view that it is necessary for it to make findings on the facts before seeking to determine the legal consequences of those facts. The Tribunal in dealing with the evidentiary matters does not refer to every piece of evidence that might be relied upon to establish each particular but rather has detailed the facts established which had satisfied the Tribunal of the factual basis of the particulars and some material relevant to important matters particularised in the numbered paragraphs as follows: i. The Respondent's professional situation deposed to from the Society's records in paragraph 12 of Mr Collins' first Affidavit were admitted into evidence and not challenged by the Respondent; ii. The employment of the Employed Solicitor and status of her practising certificate were deposed to in paragraph 13 of Mr Collins' first Affidavit and not disputed; iii. Mr Minh Le confirmed the place of living of his wife, the Employed Solicitor in the oral evidence already referred to. iv. Evidence that the Employed Solicitor had a brother Luy Van Tran is contained in paragraph 10 of the Affidavit of Thi Lung Le and was not contested. v. There is evidence of the birth of the child Andrew in various documents including the Application for court orders which was verified in the affidavits of both parents. His name is shown in that document as "Drew Tan" but the name "Andrew Tan" is used subsequently including in the paragraph 3 of Kim Linh Duong's Affidavit of 15 May 2003 admitted as an annexure to the first Collins Affidavit. Evidence of Mr Tran and Ms Duong coming to live at the grandmother's residence in Bankstown is contained in paragraph 7 of Mr Tran's affidavit of 10 June 2003 (referred to in vii. below). Evidence of Mr Tran's relocation to Vietnam in 2001 and return to Australia in about May 2003 are contained in paragraphs 36 and 56 of his Affidavit sworn 10 June 2003 in the Family Law proceedings which affidavit was annexed to the first Collins Affidavit and admitted without objection. The Solicitor deposed to acting for Ms Duong on the Application for Court orders in paragraph 3 of her affidavit of 15 January 2008. The Consent Orders which were referred to elsewhere in this Decision were a separate Exhibit C in the proceedings admitted by consent. The Solicitor deposed in paragraph 3 of her Affidavit that she acted in this matter. The Tribunal is comfortable in adopting the inference that the Application was filed by the staff of the Solicitor on the date of 2 August 2002 which appears on the Application. The terms of these Consent Orders particularised complied with the order admitted into evidence. There does not appear to be any direct evidence of Andrew's having been removed without consent. The Tribunal is, however, satisfied that this did occur on or about the date alleged by reason of the Application for Recovery Order and the evidence of various witnesses in relation to the recovery proceedings. The Respondent denied having made the second Application. A copy of the Application filed on 4 April 2003 in the Fairfield Local Court is annexure "D" to the second Affidavit of Mr Collins. The Application bears the signature of the Respondent as Lawyer in Part G on page 2 as does the Lawyer's Declaration in Part H of the form, also on page 2. A copy of the Information Sheet filed with the Application is annexure "P" to Mr Collins' second Affidavit. In her oral testimony the Solicitor acknowledged that the three signatures purporting to be hers in those two annexures ("D" and "P") were in her handwriting. In her Affidavit the Respondent in relation to these issues simply stated: "9. I further say that I did not prepare or lodge the Application for the Recovery Order on Mrs Le's behalf" In her evidence in chief (T50 L20-L50) when asked of her involvement in the second Application, the Respondent said at line 20: "The extent of my involvement in that particular Application was that my then Employed Solicitor, who is now my business partner asked me whether the details of the firm could be inserted on the Information Sheet for the Application so that the Court could respond – could correspond to our office rather than to – then – rather than to her mother's house. And what My Yen [sic the Employed Solicitor] told me the reason for that was, was because her mother doesn't read, doesn't understand English and also her mother has other boarders living at the house and they were concerned that if …….. the Court sent mail to her mother's house that her mother firstly might not know what it was and that also the other tenants might get the mail by mistake. Q You were asked what did you say, or what did you do? A I agreed to it Q And what other role did you play in relation to documentation? A I didn't play any other role." The Respondent was cross-examined at length in relation to these matters. The Respondent indicated that her Employed Solicitor did not tell her who had prepared the Application The Respondent said at T53 "My Yen [meaning the Employed Solicitor] told me that she had given her mother a copy of these brochures." The cross-examination continued: "Q Why would it be relevant to give her a copy of documents when they were supposedly acting for themselves and you were only going to be a mailbox? A Because we thought that it was the requirement of the Court…………." Later at T53 L40 her evidence continued as follows: "Q Well, isn't 'H' asking you the Lawyer's Declaration to sign that you gave various documents to the Applicant or Applicants? Isn't that what it's asking you? A {witness) Yes, that's what it's asking. Q And you signed it saying you had? A Yes. Q And you notice against the word the letter 'H' the Lawyer's Declaration '(complete only if lawyer is filing Application)' close brackets? A I didn't notice that. Q Can I ask you, Ms Nguyen, what did you notice about the Application before you signed it? A I just understood that my role – that – the details of the firm were just going to be inserted so that the Court could correspond directly to the office. Q But that's not what it says, it is? A No. Q Could you answer the question, Ms Nguyen, please? Do you agree with me that signing and dating the document as lawyer for Applicants is misleading? If you say you are not the lawyer. A In that case, then, yes." Further evidence as to the situation of the Employed Solicitor is in the Tribunal's view important in this context. The Employed Solicitor was a Solicitor who had a Restricted Practising Certificate. The Respondent was a sole practitioner. At the conclusion of the cross-examination the Solicitor was asked by the Presiding Member: "Q Was it the practice of your firm that Ms Tran [being the Employed Solicitor] could accept instructions on behalf of the firm, from clients? A Yes" The Tribunal also has before it the evidence in Exhibit E of the appearance of the Employed Solicitor before that at Fairfield Local Court on the recovery order Application on 11 April 2003 and the Tribunal accepts that the Employed Solicitor appeared on that day for Andrew's grandmother and that previously the Respondent had acted for Andrew's mother in relation to the Consent Orders. The fact that the recovery order was made was not in dispute and there was quite an amount of evidence relating to the Order in the recovery proceedings. Exhibit E and the Annexure "E" to Mr Collins' second Affidavit are in the circumstances sufficient to satisfy the Tribunal that this particular has been established. The letter from the Federal Police to the Registrar of the Local Court Fairfield dated 26 May 2003 being Annexure "E" to Mr Collins' second Affidavit was admitted into evidence and the Tribunal is satisfied from reading that letter that the recovery of Andrew by the Federal Police was made as alleged. xvi. xvii. The transcript of proceedings before the Tribunal both by way of background and on the basis of four specific matters which are referred to elsewhere in this Decision are evidence of these matters. There is clear evidence Ms Duong instructed The Legal Aid Commissioner to seek parenting orders and the Application was filed and sought orders and was returnable before the Court on 26 May 2003. The Tribunal is satisfied that the facts necessary to establish those particulars have been established. Evidence on 19 May 2003 of service of the third application and supporting documents on the grandmother, Mrs Le,is established to the Tribunal's satisfaction by the Affidavit of Duane Lionel Langley sworn 20 May 2003 which was annexure "F" to the second Collins Affidavit admitted into evidence without objection. Some reliance appears to be placed by the Respondent upon the basis that the matter was listed for mention. The Tribunal finds that this is not an appropriate matter for the Respondent to rely upon. The practice of the Federal Magistrates Court at that time was to list Applications on specific days. It is a matter of practical convenience that defended matters were then often given a timetable when other matters were given an adjourned date. In some matters, particularly in relation to urgent children's issues, if the business of the Court permitted, matters were heard either on an interim or a final basis and either ex parte or as a contested hearing. The third application was a serious contested case involving a young child and it was before the Court on 26 May 2003 on which date, after the matter was stood down in the List, during which time it appears the learned Magistrate (as Ryan J. then was) read some of the material in those proceedings in Chambers. On resumption after lunch the Court made Interim Orders suspending the existing Parenting Orders which dated back to the Consent Orders (the first Application) and made various Orders pending further Order including an Order that the child live for the moment with his mother. Those Orders are annexed to the first Affidavit of Mr Collins commencing at Page 17. There is evidence of the matters alleged in the particulars apart from the last sentence in the Respondent's Affidavit of 15 January 2008 in which she deposes the Employed Solicitor "advised me that she was going to attend Court on 26 May 2006 to 'help her mother out' with the mention of the matter as the matter had been listed urgently and her mother had found difficulty in engaging a solicitor specialising in Family Law on short notice." She further deposed: "14. As the firm had not been retained to represent Mrs Le, the view that I held was that this was a personal matter for Ms Tran [that is, the Employed Solicitor] in assisting her family members….. I did not consider it necessary to advise Ms Tran from assisting her family members in such circumstances………. I verily believe that the matter was listed for a mention date only, I did not consider it necessary to supervise Ms Tran in relation to her appearance on 26 May 2003" On cross-examination on the second hearing day at T44 (at L21) the Respondent was asked: "Q Ms Nguyen, when Ms Tran indicated to you that there was an Application on 26 May you said she indicated she would attend in a personal capacity, is that not the case? A That's correct. The final sentence of particular (xix) relates to the appearance on 26 May 2003. The transcript of that day was admitted for limited purposes including the Employed Solicitor's appearance on that day and the Tribunal finds that part of the transcript is acceptable evidence of the matter alleged in the final section of particular (xix). The Tribunal is satisfied that the facts in the Particulars are established, though as with all particulars and the facts supporting them the final phase is for the Tribunal to determine whether the matters alleged can properly be described as professional misconduct. The only evidence of the facts establishing this particular comes from the Respondent – see for example paragraph 16 of her Affidavit. The Tribunal is satisfied that the facts establish this particular. The Tribunal does not see the issue as to whether the Employed Solicitor might or might not have been a material witness at the hearing of the third application to be relevant to the circumstances of this complaint. The matters particularised except for the material appearing in the last sentence were admitted and the Tribunal is satisfied that the matters admitted have been established from the transcript of the proceedings before the Federal Magistrate admitted for limited purposes including those particularised facts as well as other evidence before it. The Tribunal finds that the action taken by the Employed Solicitor when she was actually before the Federal Magistrates Court, while it may be a consequence of the Respondent failing to supervise her employed solicitor, the words chosen by the Employed Solicitor in addressing the Court are not evidence against the Respondent in these proceedings. The Tribunal does not regard the conduct of the Employed Solicitor as alleged as relevant in establishing the complaints of the Society against the Respondent. The Orders of Federal Magistrate Ryan of 26 May 2003 are part of the evidence before the Tribunal being part of the annexures to the first Affidavit of Mr Collins commencing at page 17 of the document. 29 All of the deponents of Affidavits filed on behalf of the Respondent were called for cross-examination. The Affidavit of the Respondent was approximately 2½ pages in length and in the Tribunal's view the relevant portions of it have already been referred to above. 30 Mr Le, the husband of the Employed Solicitor provided an Affidavit that dealt with the recovery proceedings to which reference has been made. 31 The Affidavit of Ms Thi Lung Le (who is generally referred to in the matter as being the grandmother of Andrew) dealt mainly with the recovery proceedings and the issues canvassed there have already been considered and made the subject of some findings above. Ms Le also deposed to her daughter, the Employed Solicitor, helping her in the third proceedings "as my daughter" and by implication not as a solicitor and she denied that the Respondent acted for her in the recovery proceedings in the matter before the Federal Magistrate. The Tribunal did not find Ms Le's evidence satisfactory on the question of involvement in the proceedings of her daughter, the Employed Solicitor, nor consistent with the evidence of Mr Le and the material in the transcript from the Federal Magistrates Court. The following excerpts from the transcript of her evidence on the second day of the hearing, which were referred to in the Society's Submissions, are significant: At 65.40 on day 2: "Q Did you ever ask for your daughter or her employer, Ms Nguyen, to be involved with this Application [being the Recovery Application of 3 April 2003] A INTERPRETER No, I never get help from any solicitor because I don't know much about the law, the legal system, so I don't get any help from any solicitor. Q Not even your daughter, Ms Tran? A INTERPRETER No, even my daughter." At 67.35: "Q Who did you show that Application to [referring to the Application of Ms Duong of May 2003 – the third Application]? A INTERPRETER My daughter read it to me and explained to me that my daughter in law wanted to get her son back and my daughter also advised me to seek the help from a solicitor in order to, you know, to fight for the custody right of my grandson. Q And you were unable, you say, to get a solicitor in the next seven days, is that correct? A INTERPRETER Yes, because, you know, I could not find a solicitor, you know, during a very short period of time, that's why I asked my daughter to go with me to the Court to seek adjournment. Q Did you ask your daughter to try and find a solicitor in the next five or six days? A INTERPRETER No, I didn't ask my daughter. I asked my son in law to help me." Again, in relation to not seeking her daughter's assistance, at 68.34: "Q Why did not you not wish to ask your daughter? A INTERPRETER I didn't, the reason why I didn't want to ask my daughter because I would like to seek the help from a solicitor specialising in the family law and later I sought the help from a solicitor in Parramatta or Cabramatta, I cannot remember." 32 As indicated earlier in these Reasons there has been other evidence on the action taken by the Employed Solicitor and insofar as that is relevant to complaints against the Respondent and contradicts the evidence of Ms Le, the Tribunal accepts that other evidence. 33 The remaining four Affidavits filed on behalf of the Respondent were expressed to be character evidence and are dealt with separately below. 34 Submissions: 35 The Society submitted that the Respondent had acted for the mother in the Application for Consent Orders in relation to the parenting responsibility and contact for child Andrew that were obtained on 9 August 2002 then acted for the child's grandmother in proceedings for recovery of Andrew of 3 April 2003 which Application was adverse to the interest of Andrew's mother, who was the solicitor's initial client. The recovery proceedings were successful and Andrew was recovered by the Federal Police and returned to the grandmother. In May 2003 Andrew's mother made a further Application to the Federal Magistrates Court for a parenting order in terms that the child should reside with her. Some time prior to the listing of the third Application the Respondent's evidence is that the Employed Solicitor informed the Respondent of her desire to appear in some personal capacity for the grandmother on the return date. 36 It is the Society's submission that the Respondent acted for the grandmother on the second and third Applications but, because of her prior solicitor/client relationship with the mother, she should not have acted for the grandmother in respect of those two later Applications. The Society submitted that the Respondent "failed to take into account the prior solicitor/client relationship with the mother when she did not forbid the Employed Solicitor from attending at all in such a matter" especially when one has regard to the fact that [sic the Employed Solicitor] is the daughter of the grandmother and sister in law of the mother. The Society further submitted that the Solicitor "did not do anything to stop the Employed Solicitor from appearing or advising her as to any limitations which might be applicable to her appearances". Some further reliance is placed upon the transcript before the Federal Magistrate as far as the consequences of the Employed Solicitor's actions are concerned but the Tribunal, having admitted the transcript into evidence for a limited purpose, does not consider it necessary to consider those matters on the conflict issue. 37 The Society submitted that the Respondent's responsibility after August 2002 was "to do all that was within her power to ensure that she and her firm would in the future take no course contrary to the mother's interest, especially in matters involving the same issue for which she had acted for her, namely Orders relating to the child. It was no part of the solicitor's brief to take sides, as it were, in the dispute which arose between the mother and the grandmother. It was, it is submitted, the professional obligation of the solicitor to ensure that she did not act in a manner which was in conflict with the interests of the mother." The Society further submitted that "conflict was exacerbated when, the Respondent allowed her Employed Solicitor, a close family member of the now opposing parties, to become an active participant in that conflict." 38 The Society asserted: "A practitioner who allows such a situation as recited above first to occur and secondly to persist is, it is submitted, guilty of conduct which can only be described as 'disgraceful'." The Tribunal was referred to the comments by the Court of Appeal in Harvey v The Law Society of New South Wales (1975) 49 ALJR 362 at 364: "The Court's duty is to ensure that those standards of the profession are fully maintained particularly in relation to the proper relationship of practitioner with practitioner, practitioner with the Court and practitioner with the members of the public who find need to use the services of the profession" 39 The Society also referred to the comments of Street CJ in Ex parte Macaulay (1930) 30 SR NSW 193 at 193-4: "Unless the Court insists on a high standard of conduct on the part of solicitors – unless the Court punishes severely any lapse from the proper standard – the public will never be properly safe-guarded and the profession will never retain the respect which it ought to have in the community". 40 The Society stressed that unlike numerous other conflict cases, there was no issue of a personal advantage to the solicitor involved and stressed that the receipt of a benefit by the solicitor is not the relevant test. It is alleged that the receipt of a benefit by the solicitor is not the relevant test. The Society suggested that "The conduct must be judged on its own terms and at the time of its occurrence". 41 The Tribunal was referred to Law Society of New South Wales –v- Starkey (unreported C/A NSW 205/79), Law Society of New South Wales –v- Moulton (1981) 2NSWLR 736; John Bolster –v- Law Society of New South Wales (unreported C/A NSW 233/82). Copies of these decisions were not provided to the Tribunal. 42 Starky [supra] was a conflict of interest matter where the conflict was as between Solicitor and client in circumstances where the Solicitor, his family members and companies in which he had interests borrowed money from clients of the solicitor without proper security and/or disclosure where the solicitor's interests were found to have been put before those of the solicitor's clients. The Court of Appeal comprising Moffitt P and Hope and Samuels JJA examined carefully the evidence of the solicitor's breaches of his duty to his clients and applied the decision in Harvey [supra]. This reference by the Society did not assist the Tribunal in this instance. 43 In Moulton [supra] the Court of Appeal allowed the Society's appeal against a decision of the Statutory Committee which imposed a fine upon the solicitor and ordered instead that his name be removed from the Roll of Solicitors. The evidence again related to the borrowing of moneys by a solicitor from his clients. The professional misconduct finding by the Committee was not challenged on appeal and the Court applied and referred to both Harvey [supra] and Starky [supra] in what was again a conflict of interest matter involving borrowing of clients' moneys. The reference to this decision by the Society does not provide much assistance to the Tribunal as the type of conflict of interest if very different, although it is worth bearing in mind the comments of Hutley JA in Moulton at 756-7 as to the question to be faced by the Tribunal in conflict cases. His Honour said: "To treat Harvey's case [1976] 2NSWLR 154, and those which followed it, as representing an innovation in the law is, itself, a confession of deep ignorance in a field in which members of the public are entitled to expect solicitors to have an intimate and ever available knowledge of law. Therefore, it is beside the point to consider the relative degrees of delinquency which other solicitors have exhibited and still more irrelevant to consider whether or not the clients have or have not lost, because what the Statutory Committee and the courts should be concerned with is, not whether the solicitor has been a successful investor, but whether he is fit to be a solicitor. Any such argument assumes also that cases, such as that of Starky and Harvey, provide a benchmark at which removal from the roll can be considered as beginning. This, itself, is, in my opinion, a fundamental misconception of a proper process of evaluation; the question always is, is the solicitor fit to be held out as a member of the profession? 44 Bolster [supra] was another case involving, to paraphrase Moffitt P at 1, a solicitor acting for clients in the lending of moneys to himself and his family and companies in which he or they had an interest without making a full and proper disclosure of his interest and without advising his clients to take independent legal advice. 45 The Society further stressed that the Respondent and her staff members were representing interests contrary to a former client's interest in a matter which at the time was highly contentious a comparatively short time after the original orders. It concluded as part of its submissions in terms that "it would not appear to a reasonable observer, knowing the facts, that justice was being done when the Solicitor could so easily change sides and allow her staff (intimately related the mother and the grandmother) to act in a matter against a former client". It maintained that the solicitor had failed to maintain proper professional standards. 46 The Society then summarised the evidence which, unless further material is detailed below, has already been covered above in these Reasons: The mother was the solicitor's client; Subsequently the solicitor acted for the grandmother on the second and third Applications. It was submitted that the Respondent's explanation for various matters was unconvincing and contradictory. Reference was made to the provision of the two brochures already referred to which it was put was inconsistent with "acting as a mere postbox". The Society in its submissions attacked the Respondent's evidence as "evasive", "a reconstruction" involving "self-justification" although the Respondent denied this in cross-examination. The Society argued that the third Application was merely a continuation of the second Application to determine "who would have final custody of the child". It scorned the solicitor's evidence that she was merely allowing the Employed Solicitor to attend Court so as to assist the grandmother in a personal capacity. The Society submitted that the Tribunal would not be satisfied with the solicitor's evidence of a conversation with the Employed Solicitor in relation to the third application and that there was no evidence from the Employed Solicitor at all; the evidence of both the grandmother and the Employed Solicitor's husband was not wholly responsive to the questions being asked, gratuitously offering information supportive of the Respondent or the Employed Solicitor and displaying a noted reluctance to accept propositions that might be seen to be adverse to the Respondent or the Employed Solicitor. 47 Two solicitors gave character evidence for the Respondent and were asked a hypothetical question which it was asserted was modelled substantially on a neutral situation involving an employed solicitor going to represent a family member against a former client of the firm. The submissions pointed out that one conceded that there would be at least a need for caution and the other indicated that he would certainly caution the solicitor about continuing the matter "due to our obligations as solicitor, we can't act if there is a perceived conflict". Reliance is placed on this evidence by the Society as lending weight to a peer attitude to the conduct of the Solicitor. 48 The Society stressed that there was no suggestion of the Respondent using confidential or privileged information or that there was any legally binding prohibition on the Respondent acting for the grandmother but that the solicitor's duty of loyalty to the mother was wholly in conflict with the newly-acquired obligations/duty to the grandmother and to pursue a position contrary to the mother, as she did, brought her conduct within the definition of professional misconduct. The Society then referred the Tribunal to the description of professional misconduct of Lopez LJ in Allinson –v- General Council of Medical Education and Registration [1894] QB 750 where His Lordship said: "If it is shewn 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." 49 In addition the Society referred to the comments of Rich J in Kennedy –v-The Council of the Incorporated Law Institute of New South Wales (1940) 13 ALJR 563 where His Honour said: "A charge of misconduct as relating to a solicitor need not fall within any legal definition of wrongdoing. It need not amount to an offence under the law. It was enough that it amounted to grave impropriety affecting his professional character and was 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. The particular transaction the subject of the charge must be judged as a whole and the conclusion whether it betokened unfitness to be held out by the court as a member of a profession in whom confidence could be placed, or on the other hand, although an lapse of propriety, was not inconsistent with general professional fitness and habitual adherence to moral standards, was to be reached by the general survey of the whole transaction." 50 The Society submitted that despite contentions to the contrary on behalf of the Respondent that the Law in relation to an adverse finding is that it is a failure of professional duty on the part of a practitioner to act against a former client, it is the conduct that is important and it raises the question of propriety or otherwise of the professional conduct involved. 51 In relation to the supervision the Society summarised the Respondent's view as being that she merely signed the various originating process in the recovery proceedings (the second Application) and that clearly the Employed Solicitor appeared for the grandmother in both the second and third Application and that the Employed Solicitor "was essentially left to her own devices as to the carriage of those proceedings". The Society further queried whether that if it was accepted that the Respondent was not acting for the grandmother, should she bear responsibility for the actions of the Employed Solicitor? The issue was also raised that the Employed Solicitor having acted indicated a failure to supervise the Employed Solicitor and the Respondent gave legitimacy to her involvement and carte blanche to deal with the Applications without reference to the Respondent. The Society contended that the Respondent's duty was to prohibit the Employed Solicitor from having any role in the Applications and as the Respondent's witness Mr Lee's evidence may be taken as indicating, the Employed Solicitor should have been cautioned from any participation. These were not consent proceedings, but a hotly contested custody matter and not one where it was appropriate for the Respondent to allow her Employed Solicitor to participate in any way "let alone as an advocate for and adviser to an opponent". Submissions were made in relation to the preparation of the recovery Application and that issue has already been dealt with above by the Tribunal as were the contentions raised in relation to the grandmother's evidence. 52 In relation to character evidence the Society referred the Tribunal to the Judgment of Mahoney JA in Law Society of New South Wales –v- Foreman (1994) 34 NSWLR 408 at 448 where His Honour said: "It is proper to have regard to what the referees have said; that accords with the practice of the Court in such matters………" And at 449: "However care must be taken in assessing the weight to be given to this evidence…….." 53 It is appropriate to deal with the character evidence at this stage. The Tribunal accepts that the four witnesses as to character are supportive of the Respondent and give clear evidence of her good character. These four Affidavits were given in the knowledge of the nature of the complaint against her evidenced by the witnesses being supplied with a copy of the Complaint but without their having been provided with further documentation. The Tribunal has taken this evidence into account in assessing the conduct of the Respondent in the outcome of these proceedings. It is a matter for the Tribunal to determine the weight to be given to the character evidence in this situation. The evidence does not assist the Tribunal in determining whether the complaints have been established or the Respondent's propensity to engage in the misconduct alleged. The evidence of these four witnesses has been of assistance to the Tribunal in determining the final orders to be made for the evidence establishes that the Respondent is seen by responsible members of the community as "a good Solicitor who is honest and trustworthy", in the words of Dr Alsalami, and who has a fine social conscience and has a record of voluntary public interest work. These are matters of significant importance in the Tribunal reaching its conclusion in this matter. 54 Finally the Society completed its submissions by referring again to the oft-quoted statements in relation to professional misconduct at common law from Allinson [supra] and Kennedy [supra] and invited the Tribunal to take into account the views of the Society as stated by Herron J in Re Clayton (1962) SR (NSW) 132 where His Honour said at 134: "There is another matter for consideration, that the views of the Law Society must be given due and proper weight". His Honour continued beyond the sentence quoted by the Society as follows: "It is not altogether a matter of those individuals who have sworn affidavits in this case saying they would be prepared to accept Mr Cowley-Cooper and to support him in this application. Most of the deponents are professional men of the highest standard; one of them, indeed, is a retired judge. All of them are men known to me whose word naturally I would accept, but it is another matter to consider this same small handful of opinions against the full weight of the solicitors' profession in this State and expressed through the Law Society." 55 In Re Clayton [supra] Herron J was dealing with an application to employ a person who had been convicted of fraudulent misappropriation. The Tribunal has had due regard to the views of the Society. Those views are matters that are to be taken into account but the views are not necessarily persuasive nor of course do they override the views of the Tribunal formed after consideration of the evidence as it has unfolded in the course of the hearing of this matter. 56 The Tribunal proposes to deal as far as possible at this stage with the Respondent's submissions in order to reduce the amount of duplication in these Reasons. The numbers of submissions used by the Respondent are followed below. i.,ii. The Tribunal does not accept the inaccuracy claimed and finds that the concept of "conflict of interest" as used in this matter is in accordance with usual usage of the profession. iii., iv., v., The Respondent's contention is in terms that ingredients of professional misconduct in this area are defined by Rule 3 of the Revised Professional Conduct and Practice Rules 1995 (NSW). vi. The Respondent's submission is that the Society has failed to establish in the complaints that the Respondent had by virtue of previously representing the mother (Ms Duong) she had thereby acquired information confidential to the mother and that there was a real possibility that the confidential information will be used to the detriment of the former client. 57 The Tribunal is conscious that professional misconduct may be established at common law as well as in terms of a statute or rule or regulation. The conduct particularised and the subject of submissions in (vi) clearly does not fall within the terms of Rule 3 except insofar as it may be inferred that confidential information had necessarily been obtained by the Respondent from the mother and that there was a real possibility that this would be used against the mother. It is not sensible to suggest otherwise and a brief look at of the combative stand adopted by the Employed Solicitor before the Federal Magistrate points to the reality of the situation. The Tribunal finds that there is "conflict of interest" as a form of professional misconduct at common law. 58 (vii) The Tribunal finds the particular is quite sufficient given the evidence of the prior application to a Court by the Respondent on behalf of the mother. 59 In Wan v McDonald (1991) 33 FCR 491 Burchett J at 512-513 stated: "Counsel for Mr Donald McDonald placed reliance upon Australian Commercial Research and Development Ltd v Hampson [1991] 1 Qd R 508, in which Mackenzie J followed the well-known decision Rakusen v Ellis, Munday & Clarke [1912] 1 Ch 831 and the decision of Bryson J in D & J Constructions Pty Ltd v Head (t/as Clayton Utz) (1987) 9 NSWLR118. Rakusen (supra) and D & J Constructions (supra) were both cases where one partner in a firm of solicitors had acted for a party to litigation in the past, and another partner desired to act for the other side, there being no reason shown to believe that in fact information confidential to the former client would become available in the litigation to the latter. The emphasis in the judgments was placed on the solicitor's duty to safeguard confidential information of his client. But there are at least two other aspects of the problem to which attention has more recently been drawn; a solicitor's duty of loyalty, which cannot be treated as extinguished by the mere termination of the period of his retainer, and the important consideration of public policy which gives a special quality to the relationship of solicitor and client that the law will not generally permit to be stained by the appearance of disloyalty. It is obvious that, at least in the application of these principles to particular circumstances, there is likely to be a great difference between cases such as Rakusen and D & J Constructions , on the one hand, and cases, on the other, where the one solicitor, having acted for both parties, seeks to act against one of his former clients, and in the interest of a preferred client, in litigation arising out of the very matter in which he himself acted for both. In my opinion, it would only be in a rare and very special case of this latter kind that a solicitor could properly be permitted to act against his former client, whether or not any real question of the use of confidential information could arise." Clearly Burchett J saw the solicitor's duty to avoid conflicts of interest with clients as going beyond the safeguarding of confidential information, as Burchett J sees two separate aspects namely the duty of loyalty and the public policy quality of a solicitor/client relationship which "will not generally permit to be strained by the appearance of disloyalty." In the view taken by the Tribunal of conflict of interest there are a number of tests relevant to determination of whether a solicitor is in a conflict of interest situation in circumstances faced by this Respondent and any one of these is sufficient to raise on its own the issue of professional misconduct by reason of acting in a conflict of interest situation against a client. 60 Burchett J continued in Wan's case (supra) at 513 by referring to a Canadian decision which is persuasive and sets out part of the common law on conflict of interest between solicitor and client: "In MacDonald Estate v Martin (1990) 77DLR (4) 249, the Supreme Court of Canada was unanimous in rejecting Rakusen, and emphasising the importance of 'the confidence of the public in the integrity of the profession and in the administration of justice' (per Sopinka J (at 270)), although the court was divided upon the question how stringent a test this consideration required it to apply. A bare majority supported the view of Sopinka J (at 268) that: '[O]nce it is shown by the client that there existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant. This will be a difficult burden to discharge…., Nonetheless, I am of the opinion that the door should not be shut completely on a solicitor who wishes to discharge this heavy burden.' The minority supported the view of Cory J, who held (at 271) that 'the most important and compelling' consideration 'is the preservation of the integrity of our system of justice'. He also said (at 273): 'It is the appearance of fairness in the eyes of the public that is fundamentally important'." If this is a correct statement of the law applicable in this country and the Tribunal so finds then the onus was upon the Respondent to discharge the heavy burden that no information was imparted which could be relevant. This proposition leads to the situation that if conflict can only be established by reliance on the inference being drawn that confidential information was provided to the Solicitor then in terms of Wan [supra] any such inference is rebuttable. In these proceedings there was no evidence in rebuttal of this inference. On either view of the decision applying Wan (supra) the Tribunal finds that the conduct of acting in a conflict of interest is established insofar as the application concerned is made out. 61 Returning again to the numbered submissions of the Respondent: viii. The Tribunal finds that, in the context of the overall particulars provided, this particular is proper and adequate ix. The submission is based on confidential information being considered as integral to a conflict situation and the Tribunal finds that this is not an essential ingredient at common law. The Respondent submits that a breach of confidence is the essence of such a complaint and that confidential information not available from any other source needs to be involved. The Tribunal rejects that submission as being inconsistent with the common law. The Respondent further submits that Consent Orders are information in the public domain. The Tribunal finds that the issue of the public domain is not conclusive as by itself it ignores issues of public policy that have been recognised at common law quite apart from the rules. The finding of the Tribunal that the passing of confidential information by the initial client to the Respondent may be inferred is a further answer to the submission. 62 x.The Respondent submits that such a breach ( that in the terms of the submissions appears to be intended as a reference to a breach of Rule 3), may when established give rise to a finding of professional misconduct, but the more usual consequence is a civil action by the former client to disqualify the lawyer from so acting. In the view of the Tribunal that submission does not advance the issue, given the circumstances of the second and third proceedings in which the Respondent, in the Tribunal's finding, acted for the grandmother against her initial client, the wife. There is no suggestion that the wife, Ms Duong, had any prior knowledge that her former solicitor, the Respondent, was about to institute recovery proceedings against her. The Tribunal, based on the experience of its Judicial Members, finds that in practice it is not realistic to expect the wife to have any such prior knowledge and that on the contrary the wife was entitled to expect that the Respondent would not act against her interests. 63 On the evidence Ms Duong was with her child Andrew in Perth and there is nothing to suggest that she had any knowledge of the recovery proceedings before the Federal Police recovered the child. Action to disqualify the Respondent was not a course open to the mother as the initial client in the circumstances. In relation to the third Application there is no evidence or suggestion that a Notice of Address for Service or a similar document in the form of an appearance for the grandmother was filed. The Tribunal finds that on the evidence the filing of any such Notice was not a practical step, the recovery order had been made ex parte and there is nothing to suggest other than that the recovery order and the child so recovered would follow the normal course of events in such matters. In the third Application there is no evidence to suggest a Reply, Supporting Affidavit or document in the nature of an appearance was filed by the Respondent on behalf of the grandmother prior to listing before the Federal Magistrate. The evidence clearly is that the Employed Solicitor appeared that day but there is no evidence to suggest that prior knowledge of her intended appearance was available to the mother (being the Respondent's initial client in custody matters relating to Andrew) so there was on the Tribunal's finding no usual opportunity for the mother to seek to disqualify the Respondent from appearing. The restraining Order was in fact made by the Federal Magistrate when the matter was before the Court on 26 May 2003. The restraining order was the second Order made that day and a copy of the Order is part of the evidence before the Tribunal. While civil action to restrain a lawyer from acting in a conflict of interest situation is common, for good reason that did not happen in this case and that fact in no way impacts upon whether the conduct of the lawyer involved amounted to professional misconduct in proceedings before this Tribunal. xi.The Tribunal rejects this submission on the basis of the inference already described and the statements in MacDonald Estate (supra). It is clear that at common law there is a wider duty to the "first client" as described in Wan (supra) and MacDonald Estate (supra) than are detailed in Rule 3 which is confined to confidential information considerations. The Tribunal finds that the test for restraint is separate from the test to determine if a solicitor's actions amount to professional misconduct. xii. The Tribunal finds as submitted that the onus of proof to establish professional misconduct alleged lies with the Society and that the standards of proof is the Briginshaw test [see Briginshaw –v- Briginshaw (1938) 60 CLR 336]. The Tribunal however also finds that the onus to negate the inference referred to above in 62. lies in the Respondent. 64 xiii. Contrary to submissions of the Respondent, the Tribunal finds that the evidence in this matter as already detailed establishes the matters alleged to the standard of the Briginshaw test. The remaining issue is whether those facts as established satisfy the Tribunal that professional misconduct has occurred. The Tribunal is not asked to speculate or hypothesise by the Society. xiv. The Tribunal is entitled to use its common sense in looking at this situation. The robust nature of the Employed Solicitor's submissions to the Federal Magistrate and her proffered evidence from the Bar table to the Federal Magistrate so evident in the transcript is indicative of the reality of the situation. xv. The Tribunal does not find that the position of the Employed Solicitor as a possible material witness taking into account the Orders made on the first Application is a matter of speculation. Insofar as the third Application is concerned, the Tribunal finds that the Employed Solicitor had at all relevant times been a member of the household of the grandmother. In consequence of her having resided in that household and been a member of it both the Respondent and the Employed Solicitor knew or ought to have known that the Employed Solicitor was a potential witness in parenting/custody proceedings and, as such, should not represent any party in the proceedings. 65 It is the experience of the Solicitor Members of this Tribunal as it is presently constituted that in parenting/custody proceedings often unexpected issues of factual dispute between the litigants become relevant as the litigation proceeds. It is not unusual, in the Tribunal members' experience, that the need to call an expected witness may disappear due to an admission, agreement or some change in circumstances and for another witness whose involvement as a witness at the commencement of the proceedings appeared unlikely may become an important witness as the hearing unfolds. It should clearly have been apparent to both the Respondent and the Employed Solicitor that common sense and professional duty demanded that the Respondent not act in the Application for a number of reasons but including the fact that the Employed Solicitor was a member of the household and certainly a potential witness in contested proceedings. This is obvious without any reference to the transcript before the learned Federal Magistrate. 66 xvi.The Respondent submits that the evidence that the Employed Solicitor told the Respondent "she did not propose to remain in the litigation for the subsequent hearing" does not in the Tribunal's view alter the situation where the test of the conduct is whether the Employed Solicitor should have been allowed to attend Court at all to appear as she did for the grandmother. xvii. & xviii. The Tribunal rejects the submission "that conflict if any would not have arisen until the matter got to the point where a decision was made where Ms Tran would give evidence". The Tribunal finds the conflict of interest arose from the time the Respondent commenced to act for the grandmother. xx. It is appropriate for the Tribunal to acknowledge that at the time of the third application the Federal Magistrates Court was basically an affidavit jurisdiction so it is likely that the decision would be earlier than the submission suggests. The important finding is that the Tribunal regards the professional misconduct as having occurred once the Respondent permitted the Employed Solicitor to attend the hearing to appear for the grandmother. In that context the Tribunal members call on their own experience as they are entitled to do and point out that it is common for a solicitor who is unable to appear on a Court listing to arrange other representation for the client on the day and this course was open to the Respondent for the listing on 26 May 2003 where she should have had an application made by another solicitor or barrister to seek a short adjournment so that the grandmother could engage other representation. 67 xix.The Tribunal does not feel it appropriate to seek to resolve this issue as to whether there should be a different approach in Family Law matters and finds that conduct must be viewed in the circumstances in which it occurred rather than as to whether it was conduct in one form of legal endeavour or another. xx., The case cited relates to disqualification and the Tribunal is not assisted by the reference. xxi. The decision in Belan v Casey [2002] NSWSC 58 cited relates to a disqualification application rather than a matter involving complaints of professional misconduct. xxii. The Respondent contends that there is no suggestion that every solicitor restrained is guilty of professional misconduct and the Tribunal does not cavil with that suggestion but stresses that the criteria of the disqualification of a solicitor from acting may be different from those involved in individual cases when an allegation of professional misconduct is raised. xxiii. The submission acknowledges that the facts in the case cited are far removed from those involving the Respondent and the submission do not in the view of the Tribunal assist it in reaching a conclusion in this matter. xxiv. The nature and importance of the first application appear to be ignored in this submission. The consent orders involved the mother giving away important rights of parental responsibility and residence of her son (Andrew) and accepting a restricted right of contact with him. It is totally inappropriate to regard these as "just consent orders". Consent Orders are used to resolve many forms of litigation and in the family law context where one or more children are involved the nature and effect of the Orders cast a big responsibility on the solicitors whose clients commonly are subject to much stress and distress. The first application clearly called for the Respondent to obtain, in the experience of the lawyer members of the Tribunal, much background information and to give a very detailed explanation to the client (in this case, the mother). This was particularly so in this matter where the orders relating to a child are, in the professional Tribunal members' experience, unusual and outside the normal range of Consent Orders which tend to involve the father and the mother only and not third parties. 68 xxv.The point is raised by this submission that the subject matter of the first Application was one of Consent Orders. The submission in the Tribunal's view does not reflect the importance of consent orders. The Tribunal is entitled to rely on its knowledge of the determination of litigious matters under the Family Law Act and generally. Experience has shown, without calling in precise statistics that the majority of cases initiated in the Courts in this State in the various civil jurisdictions are resolved by settlements which are recorded by the process of Consent Orders in one form or another. Obviously if all civil proceedings were litigated through to hearing or judicial determination the Court system as we now know it could not cope with the volume of work. The Tribunal finds that Consent Orders should not to be dismissed as a second-class means of resolution of proceedings which is inferior to a Judicial determination. 69 Common sense establishes that a detailed and well thought out agreement that is negotiated and accepted by the parties is more likely to finally resolve the issues between the parties than a decision that is imposed upon them by judicial determination. The professional obligations upon a solicitor where the parties in a Family Law or other matter reach agreement are, in the main, onerous. The duties of a solicitor extend well beyond the drafting of the agreement and include the consideration and impact of its terms upon the child, the client, the capacity of the Court to enforce orders, a detailed explanation of the orders as worded to the client and the taking of the steps necessary for the solicitor to be satisfied that the client fully understands the effect of the terms of the orders. In the view of the Tribunal, when a solicitor acts for a client who enters into, as in this case, Consent Orders relating to the custody or parenting arrangements for a child issues of parental responsibility and the respective parents' access or contact, and the rights and welfare of the child, the solicitor's duty entails the taking of detailed instructions from and discussion with the client. Looking at this instance, where a parenting order was made in favour of the grandmother, the obligations which the Respondent, as solicitor for the wife assumed are, in the opinion of the Tribunal quite onerous. 70 The Orders, which were Exhibit C in these proceedings, provided first for a residence order in terms that the child, who was then aged 3, reside with the husband's mother ["the grandmother"]. The Orders continued further: "2.That the grandmother have the sole parental and residential responsibility for the child together with all the powers and necessity for the child's long-term and day to day care, welfare and development. 3.That the husband and the wife have regular contact with the child on such times and occasions as are in the best interests of the child and at such times to be mutually agreed between the grandmother, husband and the wife." 71 The Orders made the grandmother responsible for not only the long-term but also the day to day care, welfare and development of the child. The Orders restricted contact for the solicitor's client, the wife, as detailed and this effectively required her to obtain the consent of both the grandmother and her estranged husband to see her son. In the view of the Tribunal these are not Orders that a responsible practitioner should let a client, who is the mother of the child, enter into lightly but, rather, first to spend the necessary time with the client to explain the Orders proposed and ensure that the wife fully understood the same. A breach of the Orders, as occurred in this matter, is a very serious event. In this instance breach resulted in the recovery order and the visit of the Federal Police to the mother's home to take possession of the child and then return him from Perth to Sydney – a process likely to have been stressful and confusing to a small child. 72 The Tribunal would expect that, before the Respondent had her client, the mother, sign the Minutes of Consent Orders, she would have obtained some explanation from the mother as to why she was consenting to such wide powers being given to the grandmother and why she, the mother, was willing to sign away duties and responsibilities that were vested in her and her husband under the Family Law Act. The evidence is silent on the manner in which these duties were discharged by the Respondent and it is no part of the Complaint of the Society that the Respondent breached those duties. However, in the Tribunal's view, the Respondent's task necessarily involved a degree of confidential enquiry of the mother as her client and the mother, regardless of her failure to comply with the agreement that led to the Court order, is entitled to the loyalty of her solicitor, the Respondent, in the event that subsequent proceedings arose in relation to those Orders. There is no evidence of the communication of confidential information from the mother to the Respondent though it is difficult to see that there would not have been such communication, if only to explain which one or more of the various possible reasons had led the mother to give up the rights and responsibilities that she had up to that time shared with the husband pursuant to the Family Law Act. The Tribunal has inferred that confidential information was received by the Respondent in this context. 73 xxvi.The explanation does not assist the Tribunal. It ignores the fact that the Respondent was taking proceedings against her client for whom she had obtained the court orders less than a year earlier. The Application was made ex parte and there is no evidence from the Employed Solicitor as to what submission or information she provided which led the Fairfield Local Court to make the recovery order. The Respondent clearly from the Court papers acted on the matter. Her Employed Solicitor appeared before the Court, as is noted in the Court record tendered to the Tribunal. The judicial members of the Tribunal, from their own experience, are aware of Courts exercising jurisdiction under the Family Law Act making orders in appropriate urgent cases, particularly in relation to children on the basis of a telephone application. Courts regularly required an undertaking to provide the appropriate Court Registry with an Application and, in most cases, an Affidavit in proper form consistent with the information provided by telephone. The experience of the Tribunal members in the period of about to 2003 and before, was that urgent child matters quite frequently arose at night or at weekends when regular Court facilities were not available and an emergency scheme was initiated by the Family Court to facilitate urgent action in appropriate cases. The action in April 2003 of the Respondent in signing the Court documents permitting her Employed Solicitor to deal with the matter enabled the action to proceed against the Respondent's client of the previous August. 74 xxvii.The submission overlooks the essential element that the Employed Solicitor appeared on the Third Application and her appearance was to represent interests contrary to the interests of the Respondent's initial client on the custody/access issues. In the Tribunal's view the Employed Solicitor should not have appeared in the proceedings and should not have been allowed to attend by her employer, the Respondent. xxviii. xxix. xxx. The "failure to supervise" complaint is a separate complaint by the Society and has been treated as such by the Tribunal. xxxi. The issue is not resolved by the question of the Employed Solicitor being a potential material witness. When confronted with a hypothetical situation consistent with the facts in this matter, Mr Lee, a Solicitor called as a character witness for the Respondent was asked on a hypothetical basis about a solicitor employed by him acting in a similar manner as the employee of the Respondent on the second and third applications (at T36 day 2): "Q ………You have a concern with your employed solicitor now acting in a contentious matter, in whatever capacity, personal or otherwise but he is an employed solicitor. You caution that solicitor about continuing in the matter? A Certainly. Q And why is that so? A Just due to our obligation as a solicitor, we can't act if there is a perceived conflict." 75 Mr Lee was not called as an expert on ethics, professional practice or similar matters. As a practising solicitor, he was properly asked those questions and his evidence is clear. It represents his view of the solicitor's responsibility. The Tribunal regards it as fair to view Mr Lee's evidence as his view, and his view only, as one of the Respondent's "professional brethren of good repute and competency" to quote Allinson [supra] and of the need "to understand or to practice precepts of honesty or fair dealing in relation to the Courts his clients or the public" those being the words used in Kennedy [supra]. xxxii.xxxiii. xxxiv. xxxv. These matters do not assist the Tribunal and they have been dealt with already above. xxxvi. The Tribunal does not see merit in this submission. The Employed Solicitor was an employee of the Respondent. She had a restricted Practising Certificate and the Respondent was responsible for properly supervising the legal work of the Employed Solicitor which, in the Tribunal's view, she was only able to attend to in a Court by leave unless she appeared as an employee of the Respondent's firm. xxxvii. In the view of the Tribunal this submission involves issues it has already dealt with above. The Tribunal has already expressed its finding that the Employed Solicitor should not have been at the Court to represent the grandmother. The submission ignores the practicalities that as a Court involved in exercising jurisdiction under the Family Law Act it could not be taken for granted on the question of granting adjournments. In fact, the outcome on 26 May 2003 was that Orders were made on that day which the submissions classify as the "first return date". 76 xxxviii. In the view of the Tribunal, the duty of loyalty of the Respondent to her client, the mother, forms part of her obligation to avoid conflict of interest. The Tribunal regards the avoidance of acting against the interests of a client as a basic professional duty of a solicitor. The client is entitled to expect that having had a solicitor act for him or her in a matter that that same solicitor will not thereafter appear and act against the client, nor on behalf of an opponent with a contrary interest. xxxix.The Tribunal has already dealt in detail with the confidential/privileged information situation. xl. The Tribunal is of the view that the submission in which reference is made to "any legally binding prohibition on the solicitor" is properly taken to refer to a Court Order requiring the solicitor not to act for a particular party. Such orders have been referred to frequently through the submissions and, indeed, such an order was made by the Federal Magistrate in this matter on 26 May 2003. The order that was made after the conduct, which is the subject of the complaint, had occurred. The actual terms of the submission were: "there is no allegation that the solicitor, when subsequently acting for the grandmother, made use of confidential/privileged information, that is no part of the Society's case. Nor is it part of the Society's case that there was any legally binding prohibition on the solicitor acting for the grandmother. It is the Society's submission that the solicitor's duty of loyalty to the mother was wholly in conflict with the newly acquired obligations/duty to the grandmother and that to pursue a position contrary to the mother's, as she did, brought her conduct within the definition of professional misconduct as enunciated by Lopez LJ in Allinson [supra]…." 77 xli.The Tribunal has found that the duty of loyalty to the solicitor's client, the mother, created a conflict of interest when the Respondent commenced to act for the grandmother in matters arising out of the Consent Orders. It is not, as submitted, a matter of speculation. xlii. These issues have already been dealt with by the Tribunal above. The authorities referred to related to applications to restrain a solicitor from acting and the Tribunal has already referred in detail to Practice Rule 3 78 xliii.The Respondent places reliance upon the decision in Belan –v-Casey [supra] as an authority specifically rejecting the concept of the duty of loyalty. The Tribunal is of the view that the submission reflects a misunderstanding of the decision in Belan. The decision was on an interlocutory application which sought to restrain the solicitors for the Plaintiff from continuing to act. The solicitors had acted previously for both the plaintiff and the defendant in the defence of two defamation proceedings brought against them following a Union election. The defamation actions were successful and the subsequent litigation between the former co-defendants related to the claim by Belan from Casey for contributions towards the verdicts paid by Belan. Clearly, the matter dealt with prohibition of a solicitor acting and not a determination of the nature of the conduct of the solicitor and whether the same amounted to professional misconduct or unsatisfactory professional conduct. At paragraph 21 of the Respondent's submissions there is a quotation from paragraph 21 of the Decision in Belan v- Casey [supra] and in the view of the Tribunal that quotation makes more sense if the final sentence of 21 is also read, that being: "In other situations this delving may well be material." In the view of the Tribunal a situation involving a complaint of professional misconduct is indeed one such other situation covered by Young CJ in Belan (supra). The Tribunal finds that there are matters of duty to the client involving conflict of interest and/or conflict of duty that go beyond and are separate from any issue of the risk of disclosure of confidential information. 79 xliv.The Tribunal does not consider it appropriate to deal with Law Society of New South Wales –v- Holt (2003) NSWSC 69. This was an application to restrain a solicitor from acting and involves issues relating to Rule 3 and the duty of confidentiality. The Tribunal finds that this Decision is clearly distinguishable as with the other Decisions in restraint matters against solicitors from the facts and circumstances in this matter where the issues relevant to questions of professional misconduct are involved. xli. xlvii. The Tribunal does not regard the effect that the submissions suggest by the Respondent in these last two paragraphs is correct as the same consistently rely upon the application of Rule 3 and decisions on prohibition or restrain applications which the Tribunal finds are clearly distinguishable from the conflict of interest issues raised in these complaints of professional misconduct. ASPECTS OF CONFLICT OF INTEREST: 80 The Tribunal was referred by the representatives of the parties to a number of reported decisions that have been referred to above. These all related to proceedings brought to restrain a lawyer from acting in contentious proceedings on behalf of the opponent of a party for whom the lawyer had previously acted against that same opponent. The Tribunal has referred to those decisions earlier in this judgment together with the cases of Wan [supra] and the Canadian authority of MacDonald Estate [supra] where issues beyond confidential information were held relevant to the determination as to whether a conflict arose. 81 Reported decisions involving conflict of interest situations outside of prohibition proceedings appear to be rare but the evidence of Mr Lee (paragraph 76 above) is consistent with the professional experience of the two judicial members of this Tribunal. It is supported by Professor Dal Pont in Lawyers' Professional Responsibility 3rd edition (Thomson Lawbook Co. 2006) in paragraph 4.30 on page 75, where he says: "[4.30] In circumstances where the relationship between the parties can be characterised as fiduciary, equity mandates a demanding level of propriety of conduct exceeding the tortious standard of care and usually also the standards imposed by contracts. Although it is common to speak of fiduciary relationships, the relationship between two persons is simply the vehicle that attracts and defines the scope of fiduciary duties owed by one person to the other. Fiduciary duties are imposed where the nature of the relationship in issue justifies the imposition of the fiduciary standard. The expression 'fiduciary relationship' is, in any case, misleading in that not all legal duties owed by a 'fiduciary' are necessarily fiduciary duties. So focus on fiduciary duties avoids perpetuating the incorrect impression that 'fiduciary' status encompasses every aspect of the parties' relationship. The central fiduciary duty is a duty of loyalty 'unequalled elsewhere in the law'. Importantly, a duty is fiduciary only if it is a duty of loyalty. If no element of disloyalty is involved, a breach of duty is actionable through the primary bodies of law that govern the incidents of the relationship in question." And at 4.45 on pages 76 and 77, Professor Dal Pont says: "[4.45] In protecting the client by assuring zealous and loyal representation, and maintaining public perception of integrity of the profession and the administration of justice, fiduciary law can be seen as instrumental in defining and fulfilling the two principal roles of the lawyer. For this reason, inter alia, the courts usually apply the 'no-conflict' and 'no-profit' duties strictly; '[t]he law takes a hard line against faithless fiduciaries'. The stricter the responsibility, it is reasoned, the more likely that lawyers will be deterred from contemplating even the possibility of allowing other interests to prevail over client loyalty. Fiduciary duties are, to this end, so strict that they apply whether or not the fiduciary's interest, or duty to a third party, actually deflects from the loyal performance of the fiduciary's duty. It is thus no defence to a breach for the lawyer to maintain that he or she acted bona fide or otherwise acted honestly. Nor does the fact that the client benefited from the breach, that the work was delegated to a staff lawyer, or that the client was charged no fee, absolve the lawyer from a breach of fiduciary duty. Appeals to so-called 'commercial reality' also do not displace lawyers' fiduciary duties. So seriously do professional bodies perceive fiduciary breaches that such breaches frequently constitute the very indicia of professional misconduct." 82 The Tribunal adopts the learned author's remarks quoted and in this context notes once more the importance of loyalty to a client which in the Tribunal's view does not disappear as the Respondent submits following termination of the retainer. The consequences of breach are as Dal Pont stresses serious and frequently amount to professional misconduct. 83 The current edition of Riley Solicitors Manual in the Tribunal's view is supportive of the views expressed in this decision and indeed highlight the practitioner's separate and concurrent duties under the general law and Rule 9 Clearly Rule 9 is not the beginning and end of the solicitor's duty. The following quotations from Riley reflect the Tribunal's views: "[7015] professional consequences of client-client conflicts. A lawyer who accepts a retainer from a client that is inconsistent with his or her duty to a current client may be found guilty of misconduct, although this is unlikely to merit striking off unless the conflict in question unearths other unethical conduct. [7020] Overview of chapter The duty to avoid conflicts between the interests of two existing clients is grounded in fiduciary law. The fiduciary proscription in this context is reflected by r9 of the Revised Professional Conduct and Practice Rules 1995 (NSW), which imposes obligations of disclosure directed to securing client understanding of the drawbacks of multiple representation. Both at general law, and under the professional rules, it is critical that lawyers be alert to the potential for conflict both when deciding whether or not to accept the multiple retainer and during the course of the representation. This is critical because of the significant drawbacks attendant to the practice of representing more than one client, whether it be in contentious or non-contentious work." 84 At 7025.5 Riley quotes from two decisions which are adopted as follows: (a) Wilson JA in a Canadian case of Davey v Wooley, Homes, Dale & Dingwell (1982) 35 OR 92d) 599 at 602: "The underlying premise…… is that, human nature being what it is, the solicitor cannot give his exclusive, undivided attention to the interests of his client if he is torn between…… his client's interests and those of another client to whom he owes the self-same duty of loyalty, dedication and good faith." (b) Davies JA in Alexander (t/a Minter Ellison) v Perpetual Trustees WA Ltd [2001] NSW CA 240 at [125]: "A conflict of interest is an insidious thing. Aspects of a duty of care, which ought to be seen clearly and distinctly, are seen in a hazy light when a solicitor seeks to reconcile the interests of two clients who each have interests which differ from those of the other. Over many years, in judgments which I have written or in which I have joined, the point has been made that solicitors should never allow themselves to have a conflict of interest. Those judgments appear to have had no impact. Two many solicitors continue to act for two or more clients who have conflicting interests. Year after year, cases come before the courts because a solicitor, in such a position, has failed to fulfil his duty to one or more of his or her clients." 85 Riley also quotes from Windeyer J in Lowry v Alexander [2000] NSWSC 661 and the English Court of Appeal in Hilton v Barker Booth & Eastwood (a firm) [2005] 1 A11 ER 651 [at 34]. The cases themselves illustrate the practical consequences that arise in conflict situations where the practitioner's every act may potentially be for the benefit of one client and to the detriment of another. The decisions do not in the Tribunal's view assist significantly in the exposition of the law applicable to this matter although reinforcing the duty of solicitors to avoid conflict situations. This conflict between where knowledge of one client's dishonesty is not disclosed to the other client as hypothesised in Lowry [supra] mirrored the factual situation disclosed in Hilton [supra]. 86 Riley further referred to the decision of the House of Lords in Hilton [supra] [Hilton v Barker Booth & Eastwood (a firm) 2005 1WLR 567] and at 7035.5 Riley writes as follows initially referring to Hilton [supra]: "Although the Court of Appeal's ultimate ruling that client B could not establish that he had suffered loss as a result of the solicitors' breach was reversed by the House of Lords, no doubt was cast on the above statement. In fact, Lord Walker, who delivered the leading judgment, emphasised that the case came back to the 'simple point that if a solicitor is unwise enough to undertake irreconcilable duties it is his own fault, and he cannot use his discomfiture as a reason why his duty to either client should be taken to have been modified'. His Lordship saw the disclosure of discreditable facts about one client to another client without the former's informed consent likely to be a breach of duty, even if the facts are in the public domain. There is, to this end, sense in the warning of Burchett J in Wan v McDonald that where a 'solicitor has acted for both parties [and continues] to act for one of them after a conflict has arisen, the issues of loyalty and propriety….. loom more largely.' The breach of duty in question, arising as it does out of a concurrent conflict scenario, is a breach of fiduciary duty, which in turn may generate greater accountability and perhaps disciplinary sanction. Moreover, once it is shown that a conflict has arisen, it is the lawyer who 'must accept the burden of establishing that he has, notwithstanding such conflict, fulfilled obligations to both clients." 87 The Solicitor's submissions in the Tribunal's finding does not reflect a proper understanding of her duties to avoid a conflict of interest situation. 88 Cordery "On Solicitors" Volume 1 at J/4 and J/5 refers to the Common Law situation applicable in England before a Code of Conduct was adopted. The author says at J4: "Rule 3 [of the Solicitors' Code of Conduct 2007 – a/c] replaces Practice Rule 16D which itself only came into force on 25 April 2006. Prior to that date, conflicts of interest were not dealt with by the Solicitors' Practice Rules 1990 but by guidance in the Guide to the Professional Conduct of Solicitors published by the Law Society, and under the Common Law". Subsequently at J/5 Cordery says: "There are important distinctions to be drawn between the nature of a conflict under Rule 3 and the competing obligations under Rule 4. Rule 3 does not permit a client to consent to a solicitor acting in a conflict of interest unless one of the specified exceptions applies. This reflects the underlying common law. It follows from this that it is not possible to erect an information barrier (or Chinese wall) to 'cure' a Rule 3 conflict."91. The numbers of the English rules are not important for the purposes of this decision but the Tribunal attaches importance to the recognition by Cordery of the underlying common law operating side by side with statutory rules as clearly is the situation in Australia. Cordery also refers to Hilton [supra] and some of the statements from the judgment of Lord Walter are useful in considering the Common Law position as it affects this present matter. Lord Walker said at 29: "The relationship between a solicitor and his client is one in which the client reposes trust and confidence in the solicitor. It is a fiduciary relationship." And at 30: "A solicitor's duty of single-minded loyalty to his client's interest, and his duty to respect his client's confidences, do have their roots in the fiduciary nature of the solicitor-client relationship." These statements the Tribunal finds are statements of the common law applicable to the Respondent/s situation. Her client in the First Application (the mother of Andrew) was entitled to the loyalty of which His Lordship speaks as well as the respect of her confidential information which this Tribunal finds by implication was necessarily provided to the Respondent in the context of the First Application. There is a consistency between the principles behind the underlying common law principle of legal professional privilege and the common law approach to conflict of interest for a legal practitioner. Deane J in Baker v Campbell (1983) 153 CLR 52 expressed his views on the confidentiality of communications. The Tribunal finds that the same needs are there to protect the public conception of loyalty and confidentiality implicit in a professional relationship with a Solicitor and the willingness of the public to seek and obtain legal advice. 89 Assistance in understanding the issues involved in matters of conflict of interest can be found in pronouncements of the Courts over the years in relation to legal professional privilege for there is some commonality in the effect of that privilege and the avoidance of conflict of interest. The Tribunal has taken into account and considered the views expressed in Baker v Campbell [1983] 153 CLR 52 where Dean J said at 113 et seq: "As has been mentioned, the doctrine of legal professional privilege arose and developed as a common law privilege protecting relevant communications between a person and his legal advisers from the consequences of the ordinary obligations of giving evidence and producing documents. In that context, the doctrine can properly be seen as a rule of evidence operating in judicial or quasi-judicial proceedings. So to see the doctrine does not, however, involve the conclusion that the fact that the confidentiality of a document or information would be protected by the doctrine of legal professional privilege in the courts of the land is irrelevant when one is considering whether statutory administrative powers should be construed as authorizing the destruction or impairment of that confidentiality. To the contrary, it leads to the inquiry whether the doctrine of legal professional privilege is an emanation of a more fundamental and general common law principle. The explanation of legal professional privilege was initially seen, when the doctrine was recognized during the reign of Elizabeth I, as being the professional obligation of the barrister or attorney to preserve the secrecy of the client's confidences (see Wigmore on Evidence, McNaughton rev. (1961) vol. Viii, par 2290; Radin 'The privilege of Confidential Communication Between Lawyer and Client", California Law Review, vol. 16 (1928), p487). From at least the eighteenth century however, it has been generally accepted that the explanation of the privilege is to be found in an underlying principle of the common law that, subject to the above-mentioned qualifications, a person should be entitled to seek and obtain legal advice in the conduct of his affairs and legal assistance in and for the purposes of the conduct of actual or anticipated litigation without the apprehension of being thereby prejudiced [see Wigmore par. 2291]. The fact that the privilege is not restricted to the particular legal proceedings for the purposes of which the relevant communication may have been made or, for that matter, to proceedings in which the party entitled to the privilege is a party plainly indicates that the underlying principle is concerned with the general preservation of confidentiality. That is also made clear by the rationale of the underlying principle which was explained by Stephen, Mason and Murphy JJ in Grant v Downs (1976)135 CLR 685 in words which I would respectfully adopt: 'The rationale of this head of privilege, according to traditional doctrine, is that it promotes the public interest because is assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This is does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor. The existence of the privilege reflects, to the extent to which it is accorded, the paramountcy of this public interest over a more general public interest, that which requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available. As a head of privilege legal professional privilege is so firmly entrenched in the law that it is not to be exorcised by judicial decision.' " 90 Later at 114 Dean J continued: "The importance of the principle that a person should be able to seek relevant legal advice and assistance without apprehension of prejudice has been recognised in many cases." and further proceeded to quote from a number of decisions. 91 Finally at 115 Dean J. said: " Once one recognizes that the principle underlying legal professional privilege is that a person should be entitled to seek and obtain legal advice without the apprehension of being prejudiced by subsequent disclosure of confidential communications and that the privilege is not confined to such communications as are made in the course of or in anticipation of litigation but extends generally to confidential communications of a professional nature between a person and his lawyer made for the purpose of obtaining or giving legal advice, common sense points to a conclusion that the principle should not be seen as restricted to compulsory disclosure in the course of such proceedings. Indeed the doctrine of legal professional privilege would represent an aberration of the common law if it withheld from the courts information or documents which were material in the search for truth in circumstances where the disclosure thereof could be compelled as a matter of course by any administrative officer with a relevant and general statutory mandate to require the provision of information or the production of documents. Moreover, if the privilege were confined to disclosure in judicial (or quasi-judicial) proceedings, it is difficult to explain why, logically, the lawyer who fails voluntarily to disclose the wrongdoing of his client to the appropriate administrative officer does not, in the absence of some particular justification, stand guilty of the felony of misprision of felony…………… It is a settled rule of construction that general provisions of a statute should only be read as abrogating common law principles or rights to the extent made necessary by express words or necessary intendment. As has been seen, the underlying principle that a person should be entitled to preserve the confidentiality of relevant communications between himself and his attorney is regarded as of such importance by the common law that the courts themselves do not require disclosure of the content of such communications even if it appears that such disclosure would be conducive to justice in a particular case and even if the proceedings be between parties neither of whom is entitled to claim the protection of the privilege as regards the relevant documents or information." 92 Gummow J in National Mutual Holdings Pty Limited v Sentry Corporation & Ors 1989 22 FCR 209 summarised in the Tribunal's view the interest on which vigilance is needed in issues of conflict of interest when he said apropos legal professional privilege at 229: "There is an underlying principle that a person should be entitled to seek and obtain legal advice in the conduct of his affairs without the apprehension of his being thereby prejudiced; the concern is with the general preservation of confidentiality and encouragement of full and frank disclosure between client and solicitor." 93 This Tribunal in Director General, Department of Infrastructure Planning & Natural Resources v Stapleton (No. 2) [2004] NSW ADT 70 dealt with an application for disciplinary findings against an accredited certifier under the then s109U(4) and s109 ZA(1) of the Environmental Planning and Assessment Act 1979. The Tribunal was constituted by a Presidential member, the President Judge O'Connor and a non-presidential member Mr P Fredmann a registered surveyor of standing and an accredited certifier. At 60 the Tribunal said: "60 Conflict of interest provisions do not have as their prime focus situations of actual bias, or actual failures to be detached. As Finn J observed in Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 263-264: 'In common with the other of the six principal devices identified in the 1979 Public Duty and Private Interest: Report of the Committee of Inquiry, 37ff (AGPS, 1979) (chaired by Sir Nigel Bowen) ("the Bowen Report"), the types of provision I have noted [conflict of interest provisions] have as one of their principal modern rationales the maintenance of public confidence in the integrity of public officials and authorities: see eg the Bowen Report, para 3.7. For this reason a similar orientation in the manner of regulation of conflict of interest in the public sector has been pursued as in the private: "The evil [of conflict of interest] is risk of impairment of impartial judgment, a risk which arises whenever there is temptation to serve personal interests. The quality of specific results is immaterial. In this sense, conflict-of-interest regulation is true to the fiduciary principle. Like other fiduciaries……the public trustee has a duty to avoid private interests which cause even a risk that he will not be motivated solely by the interests of the beneficiaries of his trust. Properly conceived, conflict-of-interest regulation does not condemn bad actions so much as it erects a system designed to protect a decision making process… Its aim is not detection and punishment of evil, but providing safeguards which lessen the risk of undesirable action." The Association of the Bar of the City of New York, Special Committee on Congressional Ethics, Congress and the Public Trust, 39 (1970)." 94 The Tribunal finds that the common law abhorrence of conflict of interest by a solicitor reflects the need to protect many of the same confidences and to ensure the public interest in an ability for the public to consult legal advisors. The public interest was very important in the development of the common law relating to legal professional privilege. CONCLUSION: 95 It has been more convenient to deal with many of these matters as they have arisen, the analysis of the evidence and then consideration of the submissions of both parties. The Tribunal does not propose to review the evidence again for the purpose of then coming to a conclusion. 96 The evidence which has been detailed above has established the situation where the Tribunal is comfortably satisfied that the solicitor should not have acted in the second and third Applications as she had clearly represented the wife in parental responsibility, residence and contact proceedings (reflected in the Consent Orders of the First Application). It was not appropriate for her to then commence to act in a totally contrary interest in relation to those same issues for the mother-in-law of her former client being the grandmother of the child involved, This is so, despite the fact that the interests of the child who was the subject of the custody dispute were not separately represented. 97 The Tribunal has already quoted from the decision of Mr Justice Burchett whose words, in the Tribunal's view, have particular application to a matter of this nature. The Respondent's client, the mother, was entitled to look to the Respondent as her solicitor and to expect that her solicitor would not act in an interest contrary to the interests of the mother and that she would maintain loyalty to the mother in any ongoing custodial disputes in relation to the child. It is clear, perhaps with the benefit of hindsight, though it remains in any event in the Tribunal's view quite obvious that even at the time of the institution of the first Application that the Respondent was unwise to get involved to act for any party. The Consent Orders were of their nature dramatic in that they took away from both the mother and the father many of their rights and duties as parents of the child bestowed on them by the Family Law Act. This is seen and magnified grievously by the fact that the Employed Solicitor was married to a son of the grandmother and so was the sister-in-law of the mother and further that the Employed Solicitor lived in the household of the grandmother where the solicitor actually represented the grandmother's daughter-in-law. The fact that the Respondent showed a lack of wisdom and commonsense in acting as solicitor in this matter from the start was, in the view of the Tribunal, professional folly but not professional misconduct. 98 The conduct of the solicitor which gives rise to the two complaints of conflict of interest arise from her acting in the second and third Applications where she acted not for her client in the proceedings, the wife, but changed sides to represent the grandmother. The Tribunal has no difficulty in finding that this conduct is not the conduct of a member of an honourable profession and it casts the profession in a bad light in the public eye where it is obvious that a solicitor may, if the Respondent's conduct is accepted, change from one side to the other in contested adversarial proceedings. The conduct established is in the nature of misconduct within the Kennedy [supra] and Allinson [supra] principles and the Tribunal finds accordingly. 99 The remaining complaint is the failure to supervise the Employed Solicitor. Conduct which might support that complaint in relation to the second Application is available in the Respondent permitting the Employed Solicitor to complete the recovery Application with her details and in signing the Application and the Certificate and permitting the Employed Solicitor or members of the firm's staff to file the Application. Those matters have all been established and they sustain the finding of the Tribunal of the Respondent's professional misconduct in relation to the second Application. In view of their sustaining such a serious finding it is not appropriate in the finding of the Tribunal for those same facts to be resurrected and relied upon to found a third and separate complaint of professional misconduct. 100 The facts relied on in support of the third Application also relate to the Respondent permitting her Employed Solicitor to appear for the grandmother in the proceedings before the Federal Magistrate. The Tribunal finds that it is in that granting of permission that the misconduct on which finding has been made was founded. The consequences were significant even though the Respondent was thereafter restrained from further acting. The conduct in permitting this to happen is also the same conduct which founded the misconduct finding on the conflict complaint in relation to the third Application. Again, the Tribunal is not prepared to permit the same set of facts to be used to support a third finding of professional misconduct against the Respondent and the complaint of failing to supervise is dismissed. CONSEQUENTIAL ORDERS: 101 It has long been established that the duty of the Tribunal is not to punish the practitioner but to protect the public. The Respondent has contested these proceedings vigorously without, in the view of the Tribunal, evidencing from day 1 an appreciation of the inappropriate nature of her conduct. The complaints arise out of proceedings in which she should never have been involved but she has not even through the hearing of this matter shown any indication of appreciating that fact. 102 It is important that the public should be able to feel comfortable that if they engage a solicitor to act in a particular matter they will not later down the track, whether in the same or subsequent litigation over some or all of the same issues find that same solicitor appearing for their opponent. This principle is independent of any issue of confidentiality or privilege. That is not to say that issues of confidentiality or privilege are not also factors which separately or in conjunction with other factors could not found a complaint of professional misconduct in an appropriate case. 103 The Tribunal has taken into account the character evidence submitted on behalf of the Respondent and bearing that in mind it has concluded that the evidence of good character should mitigate against imposition of a large fine on the solicitor. However, a fine is appropriate to highlight to the Respondent the seriousness with which her misconduct is regarded by the Tribunal and also to bring to the attention of the Profession the serious regard with which the Tribunal holds conduct that amounts to acting in a conflict of interest. 104 In all the circumstances, the Tribunal has found that a fine of One thousand dollars ($1,000.00) is an appropriate way of expressing the serious view which the Tribunal takes of the professional misconduct of the Respondent and should alert her to the errors that she has made and did not acknowledge or recognise at the hearing. The fine is intended to be a warning to the Profession of the continuing care necessary to avoid situations of conflict of interest and to reassure the public that the Tribunal will not tolerate solicitors acting in a conflict of interest. 105 In addition, the Tribunal finds it appropriate that the solicitor receive a public reprimand. In view of Section 562 of the Legal Profession Act 2004 the Tribunal directs the Registry to provide the Legal Services Commissioner with sufficient information to enable the Commission to exercise his powers and functions in respect of the Registrar of Disciplinary Action required to be kept under Part 4.10 of the Legal Profession Act 2004. 106 In the Application the Society also sought an Order in relation to further education being undertaken by the Respondent. The Tribunal is of the view that the Order as sought is appropriate to protect the public and to ensure that the Respondent will in the future be fully aware of her professional responsibilities. The Order has been made above in the terms sought by the Society. 107 Finally, the Society sought an Order for costs. Section 566(1) of the Legal Profession Act 2004 makes it mandatory for the Tribunal to order a practitioner whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs unless the Tribunal is satisfied that exceptional circumstances exist. The Tribunal has looked at the matter from the viewpoint of the solicitor and finds that there are no exceptional circumstances and that this is a proper case for the solicitor to be ordered to pay the costs of the Society and the Tribunal has so ordered. 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.