The Legal Services Tribunal of New South Wales CITATION : Ellen Leahy [1993] NSWLST 16 PARTIES : ELLEN LEAHY FILE NUMBER(S) : of 1993 CORAM: Mr C. Robison(Chairman) - Mr A. Edgar - Councillor E. Dutton CATCHWORDS: Approval to employ a person convicted of an indictable offence (s.48K) - Professional Misconduct - mislead Court/Tribunal - Professional Misconduct - make false statement :- not a fit and proper person to be employed or paid in connection with a solicitor's practice LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: Browne v Dunn DATES OF HEARING: 14 October 1993 DATE OF JUDGMENT: 11/25/1993 LEGAL REPRESENTATIVES: Mr I. Wales (instructed by Ms E. Murphy) for the Law Society of New South Wales Ms E. Leahy, the clerk, on her own behalf. JUDGMENT: The Council of the Law Society of New South Wales (the Society) applied to the Tribunal for an order under Section 120 (4) of the Legal Profession Act 1987 ("the Act") prohibiting any solicitor from employing or paying Ellen Leahy ("the clerk") in connection with the solicitor's practice. The complaint stated that the Society was of the opinion that the Clerk was not a fit and proper person to be employed or paid in connection with a solicitor's practice. The council of the Society at its meeting on 29 January 1993 resolved that an application be made to the Tribunal pursuant to Section 120(4) of the Act with respect to the clerk as set out in paragraph 2 of Mr Smith's Declaration. Particulars of the Application constitute the following: Particulars (a) The clerk provided a document known to be forged to her barrister who, apparently not knowing the forged nature of the document, used such document in the defence of a prosecution against the company Macetoil Pty Limited by the Society under Part 9 of the Act. (b)(i) The clerk attempted to procure a breach of Section 119 of the Act (which Section prohibits the sharing of receipts of a solicitor's business with an unqualified person) by offering David Lee Rogers and Ian John Ahearn a referral fee equivalent to 10 per cent of the fees collected by Radans, Solicitors, from clients referred by those two persons. (ii) The clerk attempted to procure a breach of the Crimes Act by offering a referral fee and other benefits to the above mentioned persons in respect of work referred by those persons: (a) To Radans, Solicitors; (b) To Crown Securities Limited; and (c) To Assigned Credits Limited. The Applicant's case comprised the following:1. Statutory Declaration of Frederick John Smith dated 11 May 1993 which was admitted as Exhibit "A". Annexed to such Statutory Declaration were the following annexures: (a) Copy of Transcript of Evidence taken on 20 February 1991 in the matter of the Society v Macetoil Pty Limited in the Local Court. (b) Copy Statutory Declaration of David Lee Rogers dated 16 June 1992. (c) Copy Statutory Declaration of Ian John Ahearn dated 16 June 1992. (d) Copy letter from the Society to Ellen Leahy dated 27 January 1993. (e) Copy letter from the Society to Ellen Leahy dated 27 January 1993. (f) Copy of unsigned letter from Ellen Leahy to the Society dated 12 February 1993.2. A document from the Local Court proceedings against Macetoil Pty Limited which was marked Exhibit "F" in those proceedings and admitted as Exhibit "B" in these proceedings.3. A document from the Local Court proceedings against Macetoil Pty Limited marked as Exhibit "23" in those proceedings and admitted as Exhibit "C" in these proceedings.4. Copies of original letters from Bateman Battersby to the Society dated 29 June 1992 admitted as Exhibit "D". Counsel for the Society referred the Tribunal to various extracts in Annexure "A" to Mr Smith's declaration being the transcript of the proceedings against Macetoil Pty Limited in the Local Court. Counsel then referred to page 147 of such transcript where the clerk in her evidence admitted that Exhibits "B" and "C" in these proceedings are not identical. The transcript shows that she was asked: "In this case one of those letters was obviously a forgery, is it not?" The clerk answered: "I can't say." Counsel then asked: "There is no other conclusion, is there?" The clerk replied: "Obviously not." Counsel then said: "They have both been produced by you or by your Counsel?" The clerk replied: "That is correct." Counsel then said: "Which one is the forgery?" The clerk answered: "I would say that's the original." She is then asked: "Exhibit 23 is the authentic document, is it? She answered: "I would presume that it would be." She is then asked: "MFI.8 was a forgery?" She replied: "I can't say for certain." She was then asked: "Can you tell the Court how it came to pass that your Counsel was in possession of a forged document for the purpose of this case?" She replied: "No I cannot." She is then asked: "He must have got it from you must he not? She replied: "Yes he must have." She was then asked: "Why did you give your Counsel a forged document for the defence?" She replied: "I can't say." She was later asked: "Would you just attend to my question. You, in order to prepare for the defence of this case, have produced a forged document to your Counsel, have you not?" The answer was: "On the basis of this I have to say yes." She was then asked: You have done it in this case, have you not, you admitted that?" She replied: "Yes, I have." Counsel for the Society then went on to point out that the transcript of the Local Court proceedings showed that the company, Macetoil Pty Limited, changed its pleading in relation to both charges to pleas of guilty after it was pointed out to the clerk by the Magistrate that she did not have to answer questions which may have tended to incriminate her and she subsequently declined to answer certain questions. Counsel for the Society read to the Tribunal the Declaration of David Lee Rogers which was as follows:"1. I am a real estate agent operating as Allen Rogers Real Estate at 331 High Street, Penrith.2. On 11 June 1992 I was approached in my office by a person I know to be Ellen Leahy who told me she was representing Radans solicitors. Ellen Leahy requested an interview with me to discuss the services that her employer, Peter Radan could offer to prospective clients of my estate agency.3. The said Ellen Leahy gave me a general rundown about the services offered by the firm she represented and offered a referral fee equivalent to 10 per cent of the fees collected by her office.4. I asked Ellen Leahy, "Isn't that a secret commission and highly illegal"? To which she replied "Yes, but we can disguise the fee so that it would look like a fee to you on another matter".5. Ellen Leahy left a supply of brochures and business cards and asked whether I could refer prospective conveyancing clients to her." Counsel for the Society also read the contents of Declaration of Ian John Ahearn which was as follows:"1. I am employed as a salesman, by Penrith United Realty of 348 High Street, Penrith.2. On 11 June 1992 I was approached in my office by a person whom I know to be Ellen Leahy and was told by her that, having left the Title Conveyancing Company, she was now a representative of Radans solicitors of Parramatta.3. Ellen Leahy described to me the services available through her employer and requested that I refer clients to her firm.4. In return Ellen Leahy promised that I would receive a fee representing 10 per cent of her firm's legal fees. In additional Ellen Leahy told me that the agent that referred the most clients to her firm in any given month would win a prize of a weekends holiday.4. Annexed hereto and marked "A" is a copy of a brochure handed to me by Ellen Leahy." Counsel pointed out that the Annexure "A" to Mr Ahearn's Declaration was a brochure that promoted the firm of Radans. Counsel further pointed out that Annexure "D" to Mr Smith's Declaration was a copy letter to the clerk from Mrs Elizabeth Murphy of the Society which set out a portion of the transcript in the Local Court proceedings against Macetoil Pty Limited and invited her comments. Counsel stated that Annexure "E" to Mr Smith's Declaration was a copy of a letter of the same date from Mrs Murphy to the clerk referring to the Declarations of Mr Rogers and Mr Ahearn inviting her comments. Counsel then drew the Tribunal's attention to Annexure "F" of Mr Smith's Declaration which was a copy of a letter dated 12 February, 1993 which clearly came from the clerk to Mrs Murphy which was unsigned and said in relation to Mr Ahearn's declaration:"As to my comments on the Statutory Declaration by Ian John Ahearn, I note the following: (i) as to paragraph 3 when I spoke to him I did so by way of promoting the services offered by Crown Securities Ltd ("Crown"), Assigned Credits Ltd ("Assigned") and Radans. I was not simply promoting Radans. (ii) as to paragraph 4 the reference to a referral fee and the holiday prize was in relation only to work referred to Crown and Assigned. I can only assume that Mr Ahearn misunderstood what I had told him. (iii) at the time of visiting Mr Ahearn I left with him business cards relating to Crown, Assigned and Radans." Counsel pointed out that the clerk did not deny that she was promoting Radans. Nor did she deny the inducement. With respect to Mr Rogers' Declaration she makes the following comment as to paragraphs 3 and 4 thereof:"As to comments on the Statutory Declaration by David Lee Rogers, I note the following: (i) as to paragraph 3, when I spoke to him I was promoting the services not only Radans, but also Crown and Assigned. The referral fee was offered only in respect of work referred to Crown and Assigned. (ii) as to my alleged statement contained in paragraph 4, I did not say what is alleged nor anything to that effect whatsoever. (iii) when I spoke with Mr Rogers I left with him business cards relating to Crown, Assigned and Radans." Oral evidence was then given by David Lee Rogers and Ian John Ahearn. Mr Rogers was asked: "Mr Rogers, I will show you Exhibit A which I have opened at Annexure "B". Would you please look at the document I show you. Is Annexure "B" which you have in front of you a Declaration which you made on 16 June 1992?" Mr Rogers replied: "That is correct." Counsel then said: "Are the contents of that Declaration correct?" The answer was: "From what I can remember, yes." The Presiding Member pointed out to the clerk that she was entitled to cross-examine the witness but informed her of the rule in Browne v Dunn in that if the clerk wished to put any evidence in chief from the witness box which evidence would tend to contradict the evidence of this witness or any other witness called by the Society she must put those contradictions to those witnesses before she could put them in evidence in her own case. Before concluding his evidence Counsel then showed to Mr Rogers what appeared to be an original Declaration of Mr Ahearn which had as an annexure to it a business card. Counsel then asked Mr Rogers: "Can you tell us whether that business card was the same as or different from the one which Miss Leahy gave to you?" Mr Rogers replied: "I will be honest with you, I couldn't remember. I believe it to be the same one, but I couldn't say it was. It's too long ago." Counsel requested the Tribunal to have the business card annexed to the Declaration of Mr Ahearn marked for identification as "MFI.1". The clerk then cross-examined Mr Rogers as to whether or not he recalled being handed other business cards at the time of the meeting referred to in his Declaration. Mr Rogers replied: "I do remember you made mention of other stuff but I can't remember the other cards, no. The only one I remember is that brochure. I don't even remember that business card." Oral evidence was then given by Mr Ahearn who stated that the contents of his Declaration of 16 June 1992 was correct. He also confirmed that on the same day that the clerk gave him the brochure she also gave him the business card attached to the Declaration which was then admitted as Exhibit "E" in these proceedings. Mr Ahearn was cross-examined by the clerk and he indicated in his answers to her questions that he could not recall any other business cards being left with him apart from the business card of Radans solicitors. Prior to giving evidence the clerk was cautioned by the Presiding Member to the effect that she did not have to provide any evidence which may tend to incriminate her in respect of any proposed criminal proceedings. The clerk then gave the following evidence as to how Exhibit "C" in these proceedings came into existence: "In regard to the first matter raised which is the case of the forgery, the document that was tendered in court was never meant as a document to be tendered in court. The original document was handed to my solicitor. At one point he required the copy for my file which he took and then at the time I didn't make a photocopy. I made a further copy for my file use only and that was done by way of photocopying. "We did produce the letters from our own office, so it was just a matter of retyping the top section of the letter and using a signed copy of another letter to photocopy it to make a full replica which was then kept in my file. "On the day that it was tendered I was sitting outside of the court because I hadn't been called at that stage and my solicitor came out to request the original which I didn't have. He couldn't recall what he did with the original so he asked if I had a further copy, because the copy that he had had already been tendered as evidence, and not thinking I produced the one that I had kept for my own file purposes and it wasn't until later, when I was in court, that I realised what had been done. It was not meant to create a forgery, it was only to be kept initially so that I could have a full record in my own personal file, so it was an error of things that happened. "I was probably wrong that I created it again, but it was created not for the purposes of misrepresentation in court. It was meant strictly, at the time, for my own file record. Circumstances just happened the way that it did." The clerk also explained that she was employed by a service company called Wild West Pty Limited which serviced Crown Securities, Assigned Limited and Radans at the time she visited Mr Rogers and Mr Ahearn and that she was advised by an officer of Crown Securities to offer an incentive. At the end of her evidence she said: "I just feel, there is nothing left, it doesn't really matter one way or the other, if I am declared not to work in a legal office, because I don't wish to any more." The Presiding Member then asked her whether she wished to consent to the Society's application. Counsel suggested an adjournment which was taken. When the Tribunal reconvened Counsel advised the Tribunal that the clerk was prepared to consent to an order in the terms of Order 1 sought in the Complaint. With respect to the Order 2 sought in the Complaint Counsel informed the Tribunal that the Society would not be seeking an order for costs. The clerk confirmed consent and indicated she understood the effect of giving such consent. The question of jurisdiction was raised by the Presiding Member during the hearing in that the action of the clerk in relation to the forgery Exhibit "C" occurred at the time when she was not employed by a solicitor. The Presiding Member referred to the judgment of the Tribunal in the matter of Adrian Denis Nation No. 28 of 1992 in which the Tribunal found that the implication arising from Section 120(1) of the Act is that the conduct complained of must have been conduct at a time when the clerk was employed by a solicitor and not before or thereafter. In this case the Tribunal finds that it has jurisdiction in that the action of the clerk in visiting Mr Rogers and Mr Ahearn occurred at the time she was employed by Radans solicitors. The Tribunal accepts the evidence presented by the Society in relation to her actions set out in the two Declarations, Annexures "B" and "C" to Mr Smith's Declaration, and the evidence given by Mr Rogers and Mr Ahearn. Orders By consent the Tribunal therefore orders:1. Pursuant to Section 120(4) of the Act solicitors are prohibited from employing or paying in connection with their practice Ellen Leahy.2. That there be no order as to costs. 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.