The Legal Services Tribunal of New South Wales CITATION : John Frederick Lamich [1996] NSWLST 21 PARTIES : John Frederick Lamich FILE NUMBER(S) : of 1995 CORAM: Mr A. Martin (Presiding Member) - Ms S. Hale - Dr M. Costigan CATCHWORDS: Professional Misconduct - fail to carry out instructions - Professional Misconduct - mislead client - Unsatisfactory Professional Conduct - fail to respond to client - Unsatisfactory Professional Conduct - delay :- Professional Misconduct under both general law and S.127(1)(a) of the Legal Profession Act 1987 LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: the Law Society of NSW v Bannister (1993) 4 LPDR 24 DATES OF HEARING: 8 October 1996 DATE OF JUDGMENT: 12/19/1996 LEGAL REPRESENTATIVES: Mr Wales appeared for the Law Society. Mr Cuddy for the Solicitor JUDGMENT: The solicitor was found guilty of professional misconduct under both general law and S.127(1)(a) of the Legal Profession Act 1987. The solicitor was found guilty of delay and inaction in two separate client matters. The Tribunal found that the solicitor's attitude to the affairs of his clients fell far short of the standard that clients are entitled to expect. The solicitor had acted for these clients over a number of years during which time he failed to act on instructions, neglected his clients' interests and deliberately lied to his clients about the matter's progress. The solicitor was before the Tribunal in 1990 for similar type issues. In these latest proceedings the solicitor was: 1. Fined $10,000; 2. Ordered to undertake the Risk Management Course conduct by LawCover. 3. Ordered to have his practice periodically inspected for by the Law Society. 4. Costs. The Council of the Law Society ("the Council") has informed the Tribunal of a complaint of professional misconduct against John Frederick Lamich ("the Solicitor"). The grounds on which the complaint is made are as follows: A. Roosendaal 1. The Solicitor neglected to act on instructions issued in 1984 to pursue civil proceedings against Mr Roosendaal's employer for injuries sustained in an accident in 1983. The defendant was never served with any process. 2. The Solicitor grossly delayed in acting on instructions. Proceedings were not initiated until 1988 and thereafter no further action was taken by the Solicitor in pursuit of those proceedings. 3. The Solicitor misled the client in advising that the matter was delayed in the Court system and in not advising his client that the defendant had not been served. 4. The Solicitor failed to inform his client of the status of his matter throughout his 9 year retainer. The Solicitor also failed to advise his client to obtain medical evidence in support of his claim. B. Burnham 5. The Solicitor failed to follow instructions and to make enquiries of the solicitors for the mortgagee on developments concerning the application for a new certificate of title. 6. The Solicitor misled his former clients, Brian and Barbara Burnham, and their representatives, that he was making enquiries of the mortgagee as t developments in the application for the issue of the new certificate of title. The relevant further particulars of the grounds of complaint are: Roosendaal i. In about June 1984 Roosendaal instructed the Solicitor to commence both workers' compensation and common law proceedings. ii. Notwithstanding these instructions, no application for determination was ever filed in the Workers' Compensation Commission. It was not until 6 September 1988 that the Solicitor filed an Ordinary Statement of Claim in the District Court. iii. The Statement of Claim was not served on Roosendaal's employer. iv. On occasions between 1984 and 1988, the Solicitor said to Mr Roosendaal, in respect of his claims "It's in hand, everything is proceeding satisfactorily" and "It's in the Court List" or words to the same effect. v. In about June 1990, Roosendaal's wife spoke to the Solicitor enquiring about the progress of the matter. She asked whether there was any way of getting the case higher in the Court List. The Solicitor informed her that she would just have to wait and that there was nothing that could be done and that the matter was in hand. vi. Shortly after 4 March 1992, the Solicitor told Roosendaal's wife that the matter was in the Court List. vii. The statements referred to in paragraphs (iv), (v) and (vi) above were untrue. The matter was not in the District Court General List. The Statement of Claim had not been served. No Defence had been filed and no Praecipe for Trial had been filed. viii. Except for obtaining a report from Dr Rao, Roosendaal's general practitioner, dated 12 October 1984, the Solicitor did nothing to obtain medical evidence in support of Roosendaal's claim either from Dr Allman, Roosendaal's treating specialist, or from any other practitioner. ix. In or about July 1993, Roosendaal retained a Mr Lenahan, solicitor, to act for him in lieu of the Solicitor. On 22 July 1993 the Solicitor forwarded his file in the matter to Mr Lenahan. Burnham i. At all relevant times, Mr and Mrs Brian Burnham were the proprietors of a property situated at 8 Third Ridge Road, Smiths Lake NSW. The land was comprised in certificate of title volume 9227 folio 129. ii. Some time prior to January 1991, the certificate of title was lost while in the possession of the solicitors of the then mortgagee Whitehead Green & Cooper. Mr and Mrs Burnham instructed the Solicitor to take whatever steps needed to be taken to procure the issue of a fresh certificate of title. iii. On 2 January 1991, the Solicitor wrote to Mr and Mrs Burnham enclosing a form of statutory declaration. On 18 January 1991, Mr and Mrs Burnham returned the executed statutory declaration to the Solicitor. The Solicitor did not forward the declaration to the Land Titles Office or to Whitehead Green & Cooper. iv. On 6 November 1992, Whitehead Green & Cooper wrote to the Solicitor enclosing a further statutory declaration and asking for it to be completed by Mr and Mrs Burnham. The Solicitor did nothing to procure the execution of the declaration. v. In February 1993, Mr and Mrs Burnham attended upon the Solicitor and signed the declaration. The Solicitor did nothing to forward that declaration to the Land Titles Office or to Whitehead Green & Cooper. vi. On 16 June 1993, White Green & Cooper wrote to the Solicitor forwarding a statutory declaration to the Solicitor. The Solicitor did nothing to procure the execution of that declaration. vii. On 29 October 1993 the Solicitor wrote to Mr McMillan, solicitor, who had been retained by Mr and Mrs Burnham, stating that the issue of a new certificate of title was "in hand" and that he was making enquiries as to the present position of the application. These statements were false. Nothing was being done by the Solicitor to procure the issue of a new certificate of title and no enquiries were made by the Solicitor. viii. By letters of 24 November 1993 and 15 December 1993, Mr McMillan wrote to the Solicitor enquiring as to the current position with the issuing of a new certificate of title. The Solicitor did not reply to these letters. ix. By letter of 25 February 1994, the Solicitor informed Mr McMillan that he was "making more enquiries". This was false. The Solicitor made no further enquiries. x. By letter of 18 April 1994, the Solicitor wrote to Mr McMillan saying that he had requested a report from Whitehead Green & Cooper. This was false. No such report had been requested. In each of these matters the clients, namely Mr Roosendaal and Mr and Mrs Burnham made claims for compensation. These clients do not appear at the hearing and the Tribunal was satisfied that they had been notified of the date of hearing and that neither of the claimants intended to proceed with their claims for compensation. Accordingly the Tribunal dismisses these claims for compensation. It does appear, however, that each of the claimants is pursuing their common law rights for compensation against the Solicitor and the dismissal by the Tribunal of their claims of compensation in these proceedings will not affect or prejudice such other proceedings as these claimants may institute against the Solicitor. The Solicitor in his Reply stated: Complaint re Roosendaal In relation to the complaint against Roosendaal the Solicitor admitted the grounds of complaint and the particulars thereof except: That he did not concede that he misled the client in advising that the matter was delayed in the Court system and in not advising his client the defendant had not been served. While admitting that he failed to advise his client to obtain medical evidence in support of his claim he stated that it was up to 1989 and not after. He denied that he had been negligent in disregarding the interests of his client and in particular failing to serve the Statement of Claim within time. The Solicitor denied he was instructed to commence Workers' Compensation proceedings. That he said to Mr Roosendaal in respect of his claims "It's in the Court List" as he does not use such an expression. He did agree that the impression the client received was to that effect. Complaint re Burnham The Solicitor in his Reply and in evidence admitted in substance all the grounds of this complaint. The Solicitor admitted the further particulars except that he denied that he had an obligation to provide the declaration to the Land Titles Office and that he failed to do anything to procure the execution of the declaration forwarded to him by Whitehead Green & Cooper on 6 November 1992. The Solicitor also stated that he was not instructed to replace the certificate of title. That was for the reason that the mortgagee's solicitors, Whitehead Green & Cooper were applying to the Land Titles Office for the replacement certificate of title and he denied that the letter that he wrote to Whitehead Green & Cooper on about 25 February 1994 representing that he was "making more enquiries" was not false. The information he passed to Mr McMillan on behalf of the clients was not intentionally misleading at the time they were made but became so when enquiries were not actually made by the Solicitor. The Solicitor referred to the fact that a mortgage on the property comprised in the certificate of title was disputed in proceedings in the Supreme Court of NSW and that when the clients sold the Smiths Lake property he was instructed to move the Supreme Court to have the mortgage discharged. The contract prepared by the Solicitor for the sale of the property had a special condition which protected the clients from difficulties with the mortgage and its discharge, such condition that the purchaser would accept on settlement either a duly executed form of discharge signed by either the mortgagee or either a proper officer of the Supreme Court pursuant to an order made by that Court. The contract did not proceed and was terminated in August 1992. The evidence of the Council was the statutory declarations (2) of Gary James Still the solicitor for the Council annexing the relevant correspondence and documents in respect of each of the complaints. The Solicitor gave oral evidence and tendered into evidence two statutory declarations one by himself and the other by Sally Nash solicitor. There was no real dispute as to the facts of the matters the subject of the Complaint. However it became necessary for the Tribunal to consider an earlier complaint that had been made to the Legal Profession Disciplinary Tribunal (this Tribunal's predecessor) in 1990 concerning the conduct of the Solicitor during the period 1983 to 1988 in respect of complaints of neglect, delay in, and inattention to, the conduct of clients' affairs, the misleading of clients and failure to supply information to persons entitled thereto. Those proceedings resulted in a finding of professional misconduct on the part of the Solicitor and the Solicitor being ordered to pay a fine of $3,000 and the costs of the Law Society. In the determination of the earlier complaint the Tribunal said: "The complaints arise out of matters of two clients. The LNC matter which involved two District Court actions in each of which there was a series of instances of neglect and delay and the estate matter in which he failed for a period of seven years to obtain a grant of administration. This delay can only be described as gross. In addition to his acts of neglect, delay and inattention in the conduct of these matters he was guilty of misleading of his client LNC with statements about the progress of its matter which were blatantly wrong. There were at least six instances where the solicitor made material mis-statements to this client." In his evidence in these earlier proceedings the Solicitor said: "Our present situation is that I am working towards a double checking mechanism where this sort of thing cannot occur, because it will be a situation where if one thing is prepared, it will be checked by someone else to make sure it is done properly. That is basically all I can put to you in relation to this matter." The earlier proceedings were heard on 7 July 1990 and it is apparent from the evidence before this Tribunal that whatever steps the Solicitor took to remedy to institute a system which would prevent neglect delays and misleading clients by the Solicitor were of no effect during the period July 1990 to December 1993 A serious question therefore arises as to whether the Solicitor is fit to practise particularly if there is any likelihood that he will repeat similar conduct which gives rise to neglect delays and misleading clients. The attitude of the Solicitor to the affairs of his clients regrettably falls far short of the standard the clients are entitled to expect when they entrust their affairs to be undertaken by a solicitor. The attitude of the Solicitor is demonstrated by his answers in cross-examination in the matter of Roosendaal: Q: "In the event, did you, as you recall it, convey to Mr Roosendaal his matter was proceeding in the usual course?" A: "Yes." Q: "And the matter was simply awaiting its turn to come up to a callover and then to a hearing?" A: "Yes." Q: "Do you say that you didn't use words 'It is in the Court's list'?" A: "Yes." Q: "But you used words, did you not, to much the same effect?" A: "Yes.". Y: "Why did you do that?" A: "Because he asked it how it was progressing." Q: "The question I am putting to you really is this: Why did you lie to him?" A: I don't know. Q: "Are you simply unable to offer the Tribunal any explanation why it was that you lied to Mr Roosendaal about the progress of his matter?" A: "No, I was very busy. I was very pressured and I just wanted to give him the impression that it was going ahead alright." And later the Solicitor said: Q: "If you thought that Mr Roosendaal was utterly indifferent about how his case was going, there would have been no reason to lie to him?" A: "Yes, I agree with that." Q: It was simply embarrassing to you to tell him the truth?" A: "Yes." Q: "So you chose deliberately to lie to him about the course of his matter?" A: "Yes." Q: Having told this lie to Mr Roosendaal, what did you then do to get his matter on track?" A: "Well, I didn't do anything." Q: And why not?" A: I don't know." There is no real dispute as to the facts. The Tribunal has no difficulty in finding that the conduct of the Solicitor subject to these complaints constitutes professional misconduct under the general law and also under section 127(1)(a) of the Act. The consequence of this finding of professional misconduct is that the Tribunal has to determine what penalty should be imposed and the other orders which should be made under section 171C of the Act. It is of particular importance in this case to emphasize that the jurisdiction of the Tribunal is protective not punitive. In this context it is relevant to look at what Shellar JA said in the Law Society of NSW v Bannister (1993) 4 LPDR 24 at page 28: "When the jurisdiction of the Tribunal is invoked under Part 10 Division 7 of the Act to conduct a hearing into a complaint of professional misconduct by a legal practitioner, the primary consideration is to protect the public by preventing a person unfit to practise from holding himself or herself out to the public as a legal practitioner in whom members of the public might repose confidence. But the Tribunal must also act so as to deter the offender in the future and any other practitioner minded to behave in like manner. In the case of a solicitor these elements together or separately may call for the removal of the Solicitor's name from the Roll or the imposition of a substantial fine." The Tribunal is of the view that the professional misconduct of the solicitor although serious does not call for the removal of his name from the Roll but his conduct calls for the imposition of a substantial fine and orders that the Solicitor undertake and complete a course of further legal education and that the Solicitor's practice be subject to periodic inspection by such person as may from time to time be nominated by the Law Society. The Tribunal considers the course that the Solicitor should undertake is the Risk Management Education Program for Principals conducted by LawCover. The four modules of that programme comprise: Module 1 Engagement management; Module 2 Managing the legal issues; Module 3 Listening asking and explaining; Module 4 Quality assurance and risk management. This course will be undertaken by the Solicitor at his own cost. The Tribunal makes the following orders: 1. The Solicitor pay a fine of $10,000 within three months of this date. 2. The Solicitor undertake and complete the first available Risk Management Education Program conducted by LawCover for Principals during theyear 1997. 3. The Solicitor's practice be periodically inspected by such person as may be nominated by the Law Society from the date of these orders and for a period of two years after completion by the Solicitor of the Risk Management Education Program. 4. The Solicitor pay the costs of the Law Society agreed in the sum of $4,775.75. 5. The Tribunal also orders that the claims of Mr Roosendaal and Mr and Mrs Burnham for compensation be dismissed. 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.