Legal Services Division CITATION: Law Society of New South Wales -V- Roberts [1998] ADT COMPLAINANT: Law Society of New South Wales RESPONDENT: Michael Harley Roberts Mr C Vass (Chairperson) ( Senior Judicial Member ) TRIBUNAL: Ms A Durback Ms L Bubniuk GROUNDS OF COMPLAINT: Professional misconduct DATE OF JUDGMENT: 11/23/1998 Complainant: Mr T. Lynch (Counsel) Mr P. Kellow (Solicitor) LEGAL REPRESENTATIVES: Respondent: Mr M.H. Roberts (in person) MICHAEL HARLEY ROBERTS – Solicitor failing to comply with Notice under Section 152(1) of the Legal Professional Act. Many opportunities to respond given to solicitor but he continued to fail to respond. Solicitor guilty of professional misconduct. Solicitor reprimanded, fined $8,000.00, periodic inspection of practice, attend course on Risk Management. The Tribunal had for hearing before it an information dated 15 June 1998 by the Legal Services Commissioner (the Commissioner) in which the Commissioner claims that the Solicitor is guilty of professional misconduct in that he failed to comply with a notice in writing under Section 152(1) of the Legal Profession Act (The Act) dated 3 February 1998 in respect of Mr Richard Wellsmore without reasonable excuse at or immediately after 5.00 pm on Friday 13 February 1998. It appears from the complaint form and the letters annexed to the Affidavit of the Commissioner sworn on 15 June 1998 that the Solicitor was first notified of a complaint by Mr Richard Wellsmore in a telephone conversation which took place between the solicitor and Mr Fintan an employee of the Commissioner. The telephone conversation is referred to in a letter written by the Commissioner to the Solicitor on 11 June 1997 and that letter points out that the solicitor had indicated to Mr Fintan that he the Solicitor would telephone Mr Wellsmore and resolve the situation. The letter of 11 June 1997 was prompted because it says that the solicitor has not made contact with Mr Wellsmore. The letter again tells the solicitor that the matter could be best resolved through direct communication between the solicitor and Mr Wellsmore and that the solicitor was given a further 14 days to resolve the problem and then provide the Commissioner with written details of how the complaint has been resolved. It was pointed out in that letter that the Commissioner required the solicitors response pursuant to his powers under section 152(1) of the Act. The Commissioner wrote a further letter to the solicitor on 31 July 1997 and pointed out that he had not received a response and again urged the solicitor to contact Mr Wellsmore to discuss the matter and resolve it. In the letter of 31 July 1997 section 152 of the Act was fully set out and the letter draws to the solicitor's attention sub-section 4 of section 152 which says "a legal practitioner who, without reasonable excuse fails to comply with such a requirement is guilty of professional misconduct". The solicitor was asked to respond within 14 days. There appears to have been no response to the letter and the Commissioner wrote to the solicitor on 11 September 1997 and in that letter he pointed out to the solicitor that he was "now invoking my power under section 152(1) of the Legal Profession Act 1997 (NSW) (the Act) to require you to provide me with a response to my requests for the following information within 14 days. "1. The reason for your delay in attending to Mr Wellsmore's instructions. Specifically I would like you to provide me with a written update of the progress of the matter. 2. The reason for your failure to contact Mr Wellsmore in respect of this matter". In that letter the solicitor was also given the opportunity to contact Mr Fintan if he could not meet the timeframe allotted and implicit in the letter is the fact that some reasonable extension of time may have been granted. No response was made by the solicitor to the Commissioner and again on 18 December 1997 the Commissioner wrote to the solicitor seeking a reply and pointed out the solicitors obligations under section 152 of the Act. Again there was no reply and the Commissioner sent a further letter to the solicitor which is dated 3 February 1998 seeking a response and the letter required a response by 5.00 pm on Friday 13 February 1998. That letter was not responded to. On 9 April 1998 the Commissioner determined under section 136(1) of the Act to initiate a complaint against the solicitor and the Commissioner wrote to the solicitor on 2 June 1998 informing the solicitor that the complaint was initiated and formally sought from the solicitor a submission as to why he had failed to comply with the section 152 notice and asked for that submission to be received by 5.00 pm on 9 June 1998. Once again no response was received from the solicitor and on 10 June 1998 the Commissioner sent a faxed letter to the solicitor indicating that he had decided "under Section 155 of the Legal Profession Act 1997 to refer you to the Legal Services Tribunal for professional misconduct. A copy of my Decision and the reasons for it are enclosed". The solicitor continued to ignore his obligations and indeed ignored directions that were made by the Registrar of the Legal Services Tribunal on 7 September 1998. At that Directions Hearing the solicitor was directed to file and serve his Reply by 21 September 1998. He did not comply with that direction. The Commissioner wrote to the solicitor on 28 September 1998 and pointed out to the solicitor that he had failed to file and serve his reply. A further letter was written by the Commissioner on 20 October 1998 and the solicitor for the first time responded on 27 October 1998. The letter tells the Commissioner that the solicitor has been extremely busy over the last six to nine months as a consequence of attempting to work between Sydney and Penrith and also that he secured a substantial client earlier this year and that has consumed a great deal of his professional time and personal energies. Later in the letter he says "I also ask that you accept my sincere apology for appearing to ignore or disregard your requests in the past. I did not intend to be ignorant or dismissive of you, your office or the Commissioner at any time. I also did not intend to fail to file my reply in the matter in accordance with the directions given. In each instance I was completely caught up in what seemed important at the time and simply did not have the spare time to look at the matter from a proper perspective". In fact on the day of the hearing the solicitor filed the reply. The reply admitted each of the allegations in the information. The letter written by the solicitor refers to his problems during the current year but the Commissioner's correspondence begins in June of 1997 and runs through until December 1998. The Tribunal particularly notes that the solicitor did not file any statutory declaration by himself in which he sought to provide evidence that he had a reasonable excuse for not complying with the notice in writing under section 152(1) of the Act by 5.00 pm on Friday 13 February 1998 nor did he file any evidence from his partners or other practitioners as to his character. The Tribunal having regard to the evidence adduced by the Commissioner as to his notification to the solicitor of his requirement under section 152(1) of the Act in respect of a complaint of Mr Richard Wellsmore and the admissions made by the solicitor in his reply and the failure by the solicitor to provide any other evidence as to the reasons why he did not comply with notice, determines that the solicitor failed, without reasonable excuse, to comply with a requirement of the Commissioner made under section 152 of the Act and by the operation of section 152(4) the solicitor's failure constitutes professional misconduct. The solicitor when addressing the Tribunal indicated that he is about to re-establish an office in Sydney and that is one of the things he needed to attend to get himself organised. He also said that he had spoken with his partners about the matter and he emphasised that those discussions took place on several occasions and that his partners had indicated to him that they wanted him to be more organised. Also during his address he again referred to "the thing that has occupied me for the last lengthy period of time has come to thankfully a conclusion. I am now able to address the little things that I need to address as they come in, get them organised, not let them get to that point where they become something that I do not address or ignore". The Tribunal having heard The Solicitor was not convinced at all that the solicitor appreciated the seriousness of failing to comply with the Commissioner's notice. Tribunal member M/S Bubniuk asked the solicitor a number of questions in relation to the complaint by Mr Wellsmore. The solicitor indicated that he had transferred the file to another solicitor within the practice and that the Wellsmore matter was basically completed. The solicitor indicated that from about the middle of 1996 there was nothing left to do for Mr Wellsmore. Mr Wellsmore in fact was seeking some documents and the solicitor by way of explanation informed the Tribunal that he had spoken to Mr Wellsmore "in late 1996 and indicated that those documents had not yet come back and that is when we spoke about the other problems he was having with these people and he had started to move off to his other adviser. I was quite happy with that arrangement. I was not wanting to be involved in any ongoing dispute". It does seem that the substance of Mr Wellsmore's complaint has been satisfied but the Tribunal makes the comment that it was very dissatisfied with the way Mr Roberts approached the complaint and indeed made no effort to bring any evidence before the Tribunal to satisfy the Tribunal that the complaint had been dealt with in an appropriate manner. If there was a scale for this type of professional misconduct then the Tribunal finds that the solicitor must be regarded as being at the more serious end of the scale. The Tribunal has decided that it should reprimand the solicitor and that it should make that reprimand a public reprimand. The Tribunal has also decided to fine the solicitor the sum of $8,000 and to make Orders that he undertake a course in Risk Management and that his practice be subject to periodic inspection. The Tribunal also makes an Order under section 126 of the Administrative Decisions Tribunal Act 1997 consenting to the publishing of the solicitors name. The Tribunal therefore makes the following orders: 1. That the solicitor is reprimanded. 2. That for a period of 12 months commencing from 1 January 1999 the solicitor's practice be subject to periodic inspection by a suitably qualified solicitor appointed by the Commissioner or the Law Society after consultation with the solicitor and that that periodic inspection should be once each second month and carried out at the solicitor's expense. 3. The solicitor pay a fine of $8,000 within a period of 12 months from the date of this order. 4. That the solicitor be suspended from practice at the expiration of the said period of 12 months if the fine has not been paid and such suspension continue until the said fine has been paid. 5. That the solicitor at his own expense attend and complete the Risk Management Course prescribed by LawCover. Such course to be completed within 9 months from the date of this Order and the solicitor within the 9 months is to provide a copy of the certificate, showing that the solicitor has completed the course to the Commissioner. Should the solicitor fail to complete the course as ordered or breach the order made in relation to periodic inspection then the Commissioner has liberty to apply on 3 days notice to the solicitor and the Tribunal. 6. The costs of the Commissioner to be paid by the solicitor. Such cost to be assessed as if assessed by a Supreme Court assessor. If the parties cannot agree with respect to the quantum of those costs either party has liberty to apply to the Tribunal to determine the amount of those costs. Dated 15 December 1998. 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.