The Legal Services Tribunal of New South Wales CITATION : John Frederick Lamich [1990] NSWLST 5 PARTIES : John Frederick Lamich FILE NUMBER(S) : of CORAM: Mr G Williams (Presiding Member) - Ms A Plotke - Mr D Mahon CATCHWORDS: Professional Misconduct - mislead client - Professional Misconduct - gross negligence and delay/gross delay/delay - Professional Misconduct - fail to keep client adequately advised - Unsatisfactory Professional Conduct - fail to respond to client :- LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: Allinson v General Council of Medical Education and Registration 1984 1 QB 750 DATES OF HEARING: 07/07/90 - 06/12/90 DATE OF JUDGMENT: 12/06/1990 LEGAL REPRESENTATIVES: Mr B Murdoch JUDGMENT: The Legal Profession Disciplinary Tribunal In the matter of John Frederick Lamich Reasons for Determination and Orders Before: Mr G L Wiliams (Presiding Member), Miss A Plotke and Mr D Mahon This complaint relating to the conduct of John Frederick Lamich (the Solicitor) was made to The Legal Profession Disciplinary Tribunal by the Council of the Law Society of New South Wales (The Law Society and Complainant) under s.134 of the Legal Profession Act 1987 (The Act) pursuant to resolutions of The Council of the Law Society made on 2 November and 14 December 1989. The complaint was heard on 7 July 1990. Mr B Murdoch appeared on behalf of The Law Society and the Solicitor appeared on his own behalf. The original Statement of Complaint contained five grounds. The Complainant did not proceed with two of these. The three remaining grounds (1,2 & 4) alleged neglect and delay in and inattention to the conduct of clients' affairs, misleading of clients and failure to supply information to persons entitled thereto. The Orders sought by the Complainant were that the Tribunal make such Orders pursuant to s.163 (1) of the Act as it deems fit and that the Solicitor be ordered to pay the costs of the Complainant in the proceedings. Ground 1 relating to neglect delay and inattention to clients' affairs particularised matters of two clients. Ground 2 dealing with misleading of a client related to one matter and this was one of the matters particularised in ground 1. Ground 4, failure to supply information to persons entitled thereto, also particularised one matter and this was the other matter particularised in ground 1. In essence the complaint was about two matters. One was for LNC Industrial Products Pty Limited relating to District Court proceedings for the recovery of a debt from A C Bearing Supplies Pty Ltd and against Messrs Cunningham & Alford as guarantors of the debt. The other matter was an application for Letters of Administration in the estate of Joan Isabel Taylor. The evidence before the Tribunal consisted of: 1. The Complaint (exhibit "A"). 2. The Statutory Declaration of John Richard Hunt dated 13 March 1990 (exhibit "B"). 3. The Statutory Declaration of the Solicitor dated 17 May 1990. In this he admitted substantially all the facts in grounds 1, 2 & 4. 4. The Statutory Declaration of Gary Schwartz dated 19 June 1990 (exhibit "C"). 5. The oral evidence of Warren John Kelly, Peter Allen Clements and the Solicitor. At the conclusion of the hearing the Tribunal reserved its decision. The following references are used herein: SD Statutory Declaration C Statement of Complaint T Transcript The allegations against the Solicitor In relation to the client LNC Industrial Products Pty Limited (LNC) the complaint alleges against the Solicitor nine instances of neglect, delay and inattention and seven instances of misleading the client. Regarding the estate of the late Joan Isabel Taylor one major failure in the sense of neglect, delay and inattention is alleged and one failure to supply information to a person entitled thereto. It was the submission of the Complainant that so far as the misleading was concerned it was either deliberate or such that the Solicitor demonstrated reckless indifference to the question whether or not he was giving correct information. Ground 1: neglect and delay in and inattention to the conduct of clients' affairs LNC Industrial Products PTY Limited It was alleged against the Solicitor and admitted by him that he acted for this company in District Court proceedings for the recovery of a debt from AC Bearings Supplies Pty Limited (AC Bearings). He also had instructions to commence District Court proceedings against Alan James Cunningham and Paul William Alford the guarantors of the debt due from AC Bearings to LNC. Between April 1982 until early 1986 instructions were from time to time given to the Solicitor through a mercantile agency. Subsequently he dealt direct with the client. He arranged for the issue of a Statement of Liquidated Claim in the District Court at Sydney between LNC as plaintiff and AC Bearings as defendant on the 21 April 1982. He neglected to obtain judgment against the defendant until 15 June 1987. At that time this company did not trade and had no assets. By letter dated 31 May 1982 Messrs E R Stack & Sons solicitors for the defendant served a Notice to Plaintiff to plead and asked for further and better particulars of the plaintiff's claim. The Solicitor responded with replies to the request on 26 July 1982 and at the same time forwarded to them amendments to the plaintiff's Statement of Claim requesting the defendant's solicitors' consent for filing out of time. This was given on 7 September 1982 when the amendment of plaintiff's Statement of Claim was returned to the Solicitor together with a copy of Notice of Grounds of Defence. The instructions to commence proceedings against Alford and Cunningham were given by LNC on the 24th November 1983 to the mercantile agent with whom the Solicitor was then dealing and the Solicitor arranged for a Statement of Liquidated Claim against them to be issued out of the District Court at Sydney in November or December 1983. By letter dated 19 December of that year Messrs Simpson & Co acting for Cunningham requested further and better particulars to which the Solicitor responded on 6 March 1984. The response was not acceptable to Messrs Simpson & Co who on the 8th March asked for proper replies and stated that they had filed a Notice to Plead the Facts. Although no further replies were furnished by the Solicitor a Defence was filed on 22 March 1984 on behalf of Cunningham. Alford, the other guarantor, was not served with the Statement of Liquidated Claim until 30 April 1984. His defence was filed on 21 May 1984 by Messrs E R Stack & Sons who also acted for AC Bearings. They sought further and better particulars on the 21 May 1984. The matter was transferred to the District Court at Taree. On 22 November 1984 the Solicitor served on Messrs Stack & Sons and Messrs Simpson & Co a Notice of Motion and Affidavit in Support in the proceedings against AC Bearings and against Alford and Cunningham seeking summary judgment. On 6 December 1984 the Notice of Motion was withdrawn by consent with each party paying its own costs. After this, pursuant to a Notice filed 8 January 1985, the Solicitor served the Plaintiff's List of Documents on 17 April 1985 on Messrs E R Stack & Sons and Messrs Simpson & Co. On 23 January 1986 Mr P A Clements, Group Credit Manager of LNC, wrote to the Solicitor inquiring when a date for the hearing would be set. He also telephoned on the 5th March wanting to know about the date. On 19 March, Warren Kelly, the Credit Manager of the company, wrote asking for confirmation of a hearing date. On 16 April 1986 the Solicitor wrote to Mr Kelly as follows: "We refer to our recent telephone conversations with yourself and Mr Clements. We expect that the matter will be in the next callover list, and will make enquiries to confirm this." (71C1OT) On 10 June 1986 he wrote to Mr Clements and enclosed a report a copy of which he stated had been sent to Mr Kelly. The report read in part as follows: "The last report made to you was that an application for summary judgment was being filed. This is an interlocutory procedure designed to find out exactly what the defence is, if the defence filed is not clear. However, it was not proceeded with as we received information that, because the matter is on a country circuit, it would take longer to dispose of than if the matter went to a final hearing. After that, the first Defendant (Company) served us with a request for a list of documents. This was prepared and served and a request to set the matter down for a trial was filed. "As pointed out in our conversations, there are habitual delays in country matters as the circuit courts operate only on an infrequent basis, and criminal matters have priority in any event. "Normally, we would not take the next step until shortly before the hearing, but in the circumstances consider that it is advisable to do so now. This involves serving the defendants with a document called a `Notice to Admit Facts'..."(73C) The Notice to Admit Facts was sent by the Solicitor to Messrs Simpson & Co and E R Stack & Sons on 1 and 2 October 1986 (76 and 77C) and 29 October 1986 (78 and 79C). On 5 December 1986 the Solicitor wrote to Mr Warren Kelly. He confirmed that Cunningham had filed a Notice Disputing Facts. He made the following statement: "As instructed, we have filed an application for judgment based on the admissions deemed to have been made by Alford and the Company by their failure to answer the Notice to Admit Facts, and await their return from the Court. We will advise you as soon as we receive them." On 15 December 1986 the Solicitor wrote again to Mr Kelly stating that Cunningham was not prepared to make any admissions and "therefore we can only wait for the hearing to come around. We have been advised that the application referred to in our letter of 5th December will be listed on the next Motion date. The lists are being prepared by the Court at the moment and we should be advised of an exact date within the next 10 days." A Notice of Motion seeking summary judgment against AC Bearings and an Affidavit by the Solicitor dated 19 January 1987 were filed with the District Court Taree on 22 January 1987. The Motion was returnable for 23 February 1987. Some incorrect processing of the application occurred. On 16 March 1987 the Solicitor wrote to Mr Peter Clements as follows: "We have been advised by our agents that this matter was not disposed of, and has been stood over to the sittings commencing 15 June." On 1 April 1987 Messrs E R Stack & Sons wrote to the Solicitor informing him that in respect of AC Bearings they had instructions to take no further action as that company had ceased trading and all assets had been realised. In respect of the defendant Alford their instructions were to oppose the Notice of Motion. They wrote inter alia stating: "We further note that our client's Notice of Grounds of Defence was filed as long ago as the 22 May 1984 and although your prior Notice of Motion seeking an order for summary judgment was by consent on the 6 December 1984 withdrawn, no action has been taken to list this matter for hearing." This was followed by a letter dated 12 June 1987 from E R Stack & Sons to the Solicitor enclosing Affidavits to be tendered at the hearing of the Motion. When the Motion was heard in June 1987 the Solicitor for the defendant AC Bearings withdrew his appearance in relation to the company and judgment was entered against it in the sum of $6,533.63. The application against Alford was dismissed on the basis that his Affidavit disclosed that he had a defence to the claim. In a letter dated 20 July 1987 to Mr Peter Clements the Solicitor reported on the judgment obtained against the company and stated: "we have applied for a copy of the judgment and will forward it to you when it is received." Cunningham claimed he was not liable as guarantor and in this regard the Solicitor proposed to obtain further information from Cunningham's solicitor. Alford claimed that all moneys had been paid and in respect of this claim the Solicitor wrote as follows: "We are requesting further information from his solicitor so that we can be prepared to answer this." On 4 August 1987 the Solicitor again wrote to Mr Clements. He reported receipt of the Alford Affidavit claiming payment of all moneys and continued: "We have requested a detailed statement of his calculations, and will forward this to you as soon as it is available." On 3 September 1987 D W Turk & Associates who had then been instructed to act on behalf of LNC wrote to the Solicitor requesting the plaintiff's file. On 2 December 1987 this firm wrote to the Solicitor asking: "(a) Was a Praecipe filed in each or only one of the District Court actions and if only one, which one? (b) Why did you allow so much time to elapse between a commencement of the proceedings and the filing of the Praecipe(s)? (c) (notwithstanding the letter to Mr Clements of 4 August above mentioned)...we can find in the file no request to Alford's solicitor for a statement of Alford's calculation of the moneys paid to the plaintiff. What is the explanation for the absence of such request?" The Solicitor's reply dated 7 January 1988 was as follows: "(a) We intended that both matters be heard concurrently, with the Company matter heard first. The determination of the question of liability of the Company would normally lead to the conclusion that the individuals were liable without having to go through the same evidence again. However, as it takes an inordinate length of time for matters to come on for hearing, particularly in the country, we felt it better to do summary judgment applications, which have the advantage of getting on faster, and either completing the matter on the spot or clarifying the Defendant's case. We did not expect that an Affidavit in reply would be put on, particularly in view of the deponent's previous attitude to the matter. However, we do not find this singular in defended matters. We have the experience, and we assume that you do as well, of not getting any reactions in these sorts of matters for months on end, and often at the death knell. (b) We refer to point (a), noting that we had done summary applications, and a number of notices to admit etc. (c) We were in the midst of preparing a formal Notice as to this when you took the file over." In his evidence Mr Warren John Kelly who was Credit Manager of LNC between September 1985 and December 1986 dealt with the letters dated 19 March, 16 April, 10 June and 5 December 1986 passing between the company and the Solicitor. He accepted the information in the letter of the 16th April that the matter would be in the next callover list at face value. The Solicitor did not tell him that at the 16th April there was no application to set the matter down for hearing and no application for summary judgment in existence. He had no knowledge of any report prior to the one sent on 10 June 1986 and no notice from the Solicitor at any stage prior to receiving this document that an application for summary judgment was on foot. He accepted the information given to him by the Solicitor about the application for summary judgment as contained in that report, that it was not proceeded with because the Solicitor received information that being on a country circuit it would take longer to dispose of than if the matter went to a final hearing. He had no knowledge when the List of Documents was prepared and served. The Solicitor did not inform him that the Notice to Admit Facts was not filed until some four months after the date of this report nor did he tell him that the application for summary judgment referred to in the report had been dismissed by consent on 6 December 1984. Mr Kelly said he was not told that at the date of the report no further application for summary judgment had been filed. The 5 December letter made the statement: "We have filed an application for judgment based on the admissions deemed to have been made by Alford and the Company by their failure to answer the Notice to Admit Facts." This statement was incorrect on the 5th December and Kelly was never informed by the Solicitor that it was incorrect. The application was in fact filed on 22 December 1987 but Kelly was not told this. Mr Peter Allen Clements who was Group Credit Manager for LNC Industries between July 1983 and December 1988 gave evidence that the Solicitor initially acted for the company through Petersons & Associates, who were a collection agency, but from some time early in 1986 the company approached the Solicitor to act for it direct. Like Mr Kelly, Mr Clements had no knowledge of the "last report" referred to in the report of 10 June 1986. Before receiving it he had no discussion with the Solicitor that he was not proceeding with the application for summary judgment (14/15T) nor did the Solicitor ever inform him that such application was dismissed by consent on 6 December 1984 (16T). The Solicitor did not seek his instructions for consent to the application being dismissed. The Solicitor did not inform him that no second application for summary judgment had been filed as of 10 June 1986. Mr Clements said that he was not told that a request for a List of Documents had been made on 17 January 1985 some 18 months before the report. The statement in the report "a request to set the matter down for trial was filed" led him to believe that there would be a hearing date some time in 1986. He was asked about the letter dated 5 December 1986 and the statement "we have filed an application for judgment..." He gave evidence that the Solicitor did not tell him after the date of this letter that this statement was wrong and did not tell him that at that time no application for judgment had been filed (18/19T). He was also not told by the Solicitor that the report of 10 June 1986 was incorrect in as much as a request to set the matter down for trial was not filed as stated therein. With reference to the letter of 16 March 1987 he took the contents to mean that the hearing of the matter would be dealt with in the sittings referred to and the Solicitor did not tell him that the proceedings referred to in the letter were not the substantive proceedings. Mr Kelly was not cross-examined by the Solicitor. Mr Clements in cross-examination stated that he knew in 1984 that AC Bearings was not trading and that he discussed this fact with the Solicitor on many occasions. He also stated that in 1983 around October/November he went through the file of AC Bearings and found Directors' guarantees by Cunningham and Alford and then instructed the collecting agency to proceed against both these persons under the guarantees. It is evident on the face of the documents which are annexures to the Statutory Declaration of Mr J R Hunt, the authenticity of which the Solicitor admitted, and from his other admissions that the complaint of neglect, delay and inattention as alleged in the particulars in Ground 1(a) has been established. The complaint of misleading of client and the particulars as alleged in Ground 2 are established on the evidence of the said documents and the evidence of Messrs Kelly and Clements. The two grounds dealing with the matters of the client LNC have thus been established against the Solicitor. The Tribunal finds that he acted for this client from April 1982 until September 1987. He commenced proceedings for debt recovery against AC Bearings on 21 April 1982 and did not obtain judgment until some 5 years later 15 June 1987. In the course of this action the Praecipe for the Trial was not filed. An action associated with this matter, by the same plaintiff against Cunningham and Alford as guarantors, was commenced on 6 December 1983. Further and better particulars were requested by the solicitors for Cunningham on 19 December 1983. The Solicitor failed to supply these until 19 June 1988. A Notice to Plead Facts filed by the solicitors for Cunningham on or before 8 March 1984 also remained outstanding until 19 June 1988. A request in May 1984 for further and better particulars by the solicitors for Alford was also not complied with. Nonetheless the Solicitor filed a Notice of Motion for summary judgment against Cunningham and Alford returnable on 6 December 1984 on which date it was dismissed by consent. About 11 January 1985 the Solicitors for Alford served a Notice of Discovery on the Solicitor. In response he prepared a List of Documents which he filed on 25 March and served on 17 April 1985 but he failed to prove the documents. Although he did not supply the further and better particulars requested on 19 December 1983 by the solicitors for AC Bearings he filed a Notice of Motion for summary judgment against this company and Alford which was dismissed as regards Alford on 19 June 1987. He failed to file Praecipes for Trial in the two District Court matters against AC Bearing and the two guarantors. Ground 2: misleading of client Regarding Ground 2 dealing with misleading of client, all particulars were admitted by the Solicitor. The Tribunal finds that the ground is established against him and that he misled his client LNC by responding to letters from P A Clements, Group Credit Manager dated 23 January 1986 and Warren Kelly, Credit Manager, dated 19 March 1986 inquiring about the hearing date with incorrect information. This was contained in his letter to the company dated 16 April 1986 when he stated that the matter would be in the next callover list and he should have known there was no possibility that this would happen. He also misled the client about the application for summary judgment which was not current from 7 December 1984 to 21 January 1987, the first application having been dismissed by consent on 6 December 1984 and a second motion having been filed on 22 January 1987. His report attached to a letter dated 10 June 1986 was misleading regarding the application for summary judgment, it had been dismissed by consent some 18 months earlier and regarding the request to set the matter down for trial which had not been filed at all. These were material misstatements which were either deliberate or made with reckless carelessness. Again the Solicitor's letter of 16 March 1987 to Mr Clements advising that the matter had been stood over to the sittings commencing 15 June was incorrect and misleading. The Solicitor did not admit that he should have known there was no possibility that the matter would be dealt with in the sittings commencing 15 June 1987 and claimed that earlier correspondence when read in conjunction with this letter indicated that the subject of the letter was the Notice of Motion and not the claim itself. The Tribunal does not accept this interpretation. A lay client reading the letter should not be expected to compare it with earlier letters and be expected to understand the difference between a Notice of Motion and a hearing of a claim. The last particular relating to Ground 2 deals with the letter of 7 January 1988 written by the Solicitor to Messrs P W Turk & Associates who took the matter over. In this letter, there is no real attempt to face up to the omissions and the failure by the Solicitor to take the appropriate course at various times during the life of the proceedings but rather an ingenuous attempt to gloss over his professional deficiencies. The Solicitor's explanation for his handling of the LNC matter appears on pages 31 and 32/33 of the Transcript. He said: "In relation to the AC Bearings file I, as Mr Murdoch said, admitted quite a lot of things in relation to the matter. I have admitted that our praecipe for trial was not filed but what I have said (all) along is that I had been under the impression that it had been filed, a mistaken impression admittedly, and probably a careless impression because I should have really double checked that it had been filed. "In relation to the matters where I had dealings with Mr Kelly and with Mr Clements, particularly the documents at pages 89 and 90 and the earlier report, all I can say in relation to those is that most of them could have been better expressed. They weren't deliberately trying to deceive Mr Kelly or Mr Clements. It was a situation where I had taken the matter over to a large extent from the agency to obtain instructions direct whereas before my instructions were coming from the agency. "I was aware that Mr Clements wanted to have the matter on for hearing as soon as possible. I considered at that time that the best way to do that was to do a summary judgment application to - rather than to list the matter for hearing because by that stage I was aware that the Praecipe had in fact not been filed. The summary judgment application was successful against the company." In point of fact the application against the company succeeded because its solicitors withdrew as the company was not trading and had no assets, which was conceded by the Solicitor (34T). Regarding the letter of 5 December 1986 in which there is the statement that the application for judgment had been filed, the Solicitor said that what happened was that the application had been prepared when the letter went out but the Affidavit was not sworn and the application was thus sent to the Court two or three weeks later. He agreed it was wrong to say that he had filed the application in December. He was cross-examined about his letter dated 4 August 1987 to Mr Peter Clements and responded as follows. "Q. What I am saying is at 4 August 1987 it's a clear misstatement to tell Peter Clements that you have requested a detailed statement of his calculation. What I am putting to you is that there was a facility on your part to adopt an attitude of reckless indifference to what you were saying to the client. You did not check these things. You have already said you did not check about the Praecipes and you told people about that? A. I don't think I can say anything to that." Ground 4: failure to supply information & Ground 1(b): delay in, and inattention to, the conduct of clients' affairs The remaining Ground 4 alleging failure to supply information to persons entitled thereto relates to the matter of estate of Joan Isabel Taylor deceased. This matter is also particularised under Ground 1(b) where it is alleged that the Solicitor assumed the conduct of an application for Letters of Administration in this estate in September 1981 and as at 1 December 1988 no grant of Letters of Administration has been made. The Solicitor admits the allegations particularised in Grounds 1(b) and 4 and his explanation was given as follows: "If I could start off in relation to the estate matter, because that is a matter where clearly, in my view, I had left the matter in what is sometimes described as the too-hard-basket for far too long. "It was a matter where I was having some difficulties. I had taken the matter over in, I think, 1981 from the Aboriginal Legal Service. It involved an estate where the deceased had committed suicide. She had lived in England for some period of time. There was some question of whether she had married a medical practitioner, and I ended up being in the situation where I just got too involved in doing other things and not being able to really sit down and work out what I could do with it. "I certainly think, looking back on it, I should have quite some time before Mr Evans became involved recommended to the clients that they take the matter elsewhere and endeavour to have it completed." And on 27/28T he said in relation to this matter: "Basically the problem was that I kept putting it aside because I did not really know generally what I should do next. Although I did have some problems with it from the point of view of conflicting information from certain of the relatives, the basic situation is that I should have put a stop to it at some stage and said: What you should do is go to someone else who is more experienced, who could deal with it. That is what I finally did." The Tribunal accordingly finds that Ground 1(b) and Ground 4 are established against the Solicitor. Proposed order The Solicitor was at the time of the hearing 42 years old and unmarried. He was admitted in 1971 and since 1975 he had practised as a sole practitioner. At the times of the matters mentioned in the complaint, 1981 to 1896 he had one employed solicitor but not the same solicitor all the time. His practice since 1977/78 was almost exclusively civil litigation and most of his work related to debt collecting. He described it as follows: "It is a rather unusual sort of practice in that because it almost entirely involves agency work we had a lot more files than the normal firm of solicitors, although a lot of them would be what we might describe as automatically occurring files." To the question: "What do you mean by 'agency work', Mr Lamich?" he answered: "Acting for Mercantile Agents. It is not a situation where you might have, say, 300 of your own files and that is it. At the moment we have got about 3,500 files open. Around about that time - January is a reasonably busy month of the year. Although I don't specifically remember January 1987 there would probably be somewhere between 2,000 and 2,500 files but most of those files might be just waiting for a time limit to pass or something like that. They would not need active looking at every day or every week." He then went on to explain that the files were kept in the agency and not in his office and that the agency normally instructed him to do a particular thing with a particular file. He does not have overall control of a file and does not share offices with the agency; they are next door but he has access to the files. He does not keep separate files but uses those of the agency and when the matters are completed he retains them unless the agency specifically instructs him to return them. Some files are in his office if he is working on them and some are in the office of the agency. On a daily basis all of the files that require checking of legal documents come automatically to the Solicitor. They are referred by a member of the agency staff. He has his own office, is not on the payroll of the agency and has no financial interest in it. He has his own staff who are paid by him. Apart from this work for the agency the Solicitor stated that he handled very little by way of other matters. The Solicitor was unable to say exactly why the LNC matter ended up the way it did. He said at 41T: "I agree we cannot say exactly why this particular matter ended up the way it did, in particular, if I look at page 100, I just do not know what I was doing. I might be able to say what I intended to do but I do not - when I just look at that I just do not know what I was doing." In his closing submissions the Solicitor repeated that although certain expressions were used in the LNC letters and certain things were said to have been done which were not done immediately when the letter was prepared they were done within a period of time thereafter. The letter of 15 December 1986 was clearly wrong and he had no way of explaining why it was phrased in that way. The letter of 4 August 1987 was also wrong and the request for the statement was not made at the time the letter was done and he could not explain why it was not done at that time. The report of 10 June 1986 should have been checked by him to see all those things were done. He failed to do the checking and to that extent misled the client. He said: "As I have said in evidence and I have said in correspondence with the Society, that it was not my intention to mislead the client. I was careless in the way I had gone about handling those particular matters." He said finally: "Our present situation is 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 that it is done properly. That is basically all I can put to you in relation to this matter." The Tribunal has carefully considered all the evidence before it and is of the view that the proven complaints against the Solicitor establish conduct on his part which would be condemned by the general body of practitioners as not in accordance with the standards which they recognise as appropriate for the profession. This is conduct "which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency" (Allinson v General Council of Medical Education and Registration 1984 1 QB 750). It thus constitutes professional misconduct at Common Law. The Tribunal having made this finding must now consider whether the Solicitor is unfit to practise. The complaints arose 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 his client LNC with statements about the progress of its matter which were blatantly wrong. There were at least 6 instances where the Solicitor made material misstatements to this client. The Tribunal takes a serious view of the Solicitor's conduct in this respect. The Solicitor offers no adequate explanation for his neglect, delay and inattention to the conduct of either the LNC matter or of the matter of the estate of the late Joan Isabel Taylor. With regard to the latter all that he can say is that he left it in the too hard basket. The Tribunal is not impressed by this explanation. As regards to the allegation of misleading LNC the Solicitor claims that it was not his intention to mislead his client and that he was careless in the manner in which he handled the matters. The Tribunal accepts the Solicitor's evidence that he did not set out deliberately to deceive his client. If the Tribunal had come to the conclusion that the Solicitor was guilty of deliberate deception it would have no alternative but to make the finding that he is unfit to practise. However after careful consideration the Tribunal has accepted that the conduct of the Solicitor arose out of reckless carelessness and it considers that the appropriate Order in all the circumstances is to impose a fine. The Tribunal proposes to order that the Solicitor be fined the sum of Three thousand dollars ($3,000.00). Order The Tribunal therefore orders as follows:- 1. Pursuant to Section 163 (1)(d) that the Solicitor pay a fine of three thousand dollars ($3,000.00). 2. That the said sum be paid within one month from the date of this Order and that thereafter the Solicitor be suspended from practice until the said fine be paid. 3.(a) Pursuant to Section 163 (6)(b) that the costs of the Complainant of and incidental to the complaint be paid by the Solicitor to the Law Society of New South Wales, such costs to be assessed on a solicitor and client basis as if taxed in the Supreme Court. (b) If agreement cannot be reached between the solicitor and the complainant on the amount of costs, either party to have liberty to apply to the Tribunal. Dated the 6th day of December 1990. 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.