Bar Association of NSW v Miller (No 2) [2011] NSWADT 148

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Bar Association of NSW v Miller (No 2) [2011] NSWADT 148 Hearing dates: On the papers Decision date: 20 June 2011 Jurisdiction: Legal Services Division Before: W Robinson QC, Judicial Member R. Wright SC, Judicial Member Emeritus Professor R. Fitzgerald, Non Judicial Member Decision: 1.That James Mathew Miller be publicly reprimanded. 2.That James Mathew Miller pay a fine of $10,000.00 3.That James Mathew Miller pays the costs of the Council of the New South Wales Bar Association in the proceedings as agreed or assessed. 4.That these orders and findings be published. Catchwords: barrister - direct access client - fee disclosure regulations - competence - unsatisfactory professional conduct - investigation - professional misconduct - consequential orders Legislation Cited: Legal Profession Act 2004 Legal Profession Regulation 2005 Cases Cited: New South Wales Bar Council v Miller [2010] ADT 300 Council of the New South Wales Bar Association v A Barrister (No16 of 1992) New South Wales Bar Association v Bland (No2) [2010] NSWADT 162 Category: Principal judgment Parties: The Council of the Bar Association of New South Wales (Applicant) James Mathew Miller (Respondent) Representation: Eakin McCaffrey Cox (Applicant) No appearance (Respondent) File Number(s): 092031 and 092041

REasons for decision 1LEGAL SERVICES DIVISION (W Robinson QC, Judicial Member, R Wright SC, Judicial Member, Emeritus Professor R Fitzgerald, Non-judicial member) Two separate Applications for Original Decisions were filed by the New South Wales Bar Council concerning the conduct of James Mathew Miller which were heard in 2010 and Reasons for Decision published in December 2010 see: New South Wales Bar Council and Miller [2010] ADT 300. In Application 092031 the Tribunal found the allegations in all three grounds proven, those matters arising from complaints made by a direct access client of Mr Miller's. In application 092041 the subject of Mr Miller's conduct during the course of investigation of the initial complaints was considered and the Tribunal found Complaints 1, 2 and 4 of those allegations made out. The Tribunal dismissed Complaint 3, thus the Tribunal made orders: (1)In matter 092031 the Tribunal declares that James Mathew Miller has engaged in unsatisfactory professional conduct. (2)In matter 09241 the Tribunal declares that James Mathew Miller has engaged in professional misconduct. (3)Order for publication of these reasons. (4)Liberty to Apply 2Subsequently, the Bar Council sought consequential orders and in light of Mr Miller's failure to attend before the Tribunal and limited response to the earlier proceedings by letters of 1 March 2011 the following directions were notified to the parties by Registry: 1)Applicant to file and serve submissions on penalty by 30 March 2011 2)Respondent to file and serve submissions on penalty in reply by 27 April 2011 3)Matter to be heard 'on the papers.' If parties have any objection to be filed by 30 March 2011 3The Bar Association has complied with the directions and filed an outline of submissions which, amongst other things, dissect the earlier findings concerning Mr Miller's failure to provide tax invoices and cost disclosures or appropriately deal with funds received in advance of fees in compliance with the Legal Profession Act 2004 and NSW Barrister's Rules. The submissions draw attention to the need for public confidence in the profession in regard to monetary matters. We agree that the public is entitled to expect that all monetary matters will be properly dealt with by members of the profession as required by law. 4However it is in respect of the conduct which demonstrates a lack of competence in dealing with the client's litigation, and the failure to comply with a Notice served by the Bar Association during the investigation, constituting professional misconduct, that the most serious matters for consideration arise. In respect of the competence issues, the Association has drawn particular attention to the discussions in Council of the New South Wales Bar Association v A Barrister (No16 of 1992) and in particular the recent decision of this Tribunal in New South Wales Bar Association v Bland (No2) [2010] NSWADT 162. We note, however, that although Mr Miller's conduct has obviously been a matter of significant concern, the Bar Association has sought only the comparatively lenient penalty of a public reprimand and a fine of $10,000.00 together with costs in disposition of all of the matters. 5Looking to the position of the barrister, we note that unlike Mr Bland who had continued in practice and expressed a desire to continue well into the future, Mr Miller was admitted to practice on 14 December 2001 and remains on the roll as a local lawyer but he has not held a practising certificate since May 2009. Indeed, it would appear that he effectively ceased to practise shortly after the matters the subject of our earlier decision came to light. This places him in a very different situation to Mr Bland as Mr Miller not only has had no ongoing contact with the public as a barrister for some years, he would also have to make fresh application for a Practising Certificate should he ever seek to practise again, and other measures to safeguard the public would be available in the context of such an application 6In the present applications, no response has ever been received from Mr Miller and no submissions have been made on his behalf. Looking to his situation as demonstrated by his course of action in the earlier part of these proceedings, we note his assertions that he was suffering illness, and his total failure to provide any evidence in support of those assertions. The Tribunal repeats its observation that there is a plethora of authority to the effect that disciplinary proceedings are primarily protective of the public interest, so that proof of an illness or other cause may assist in explaining the conduct of someone who has behaved in some inappropriate manner but it does not excuse that person from the consequences which flow from that behaviour. 7Nevertheless, weighing up all the circumstances, in particular those that differentiate Mr Miller's present position from the situation of the practitioners in the cases cited above we are satisfied that the orders proposed by the Bar Association are appropriate and adequate to the present circumstances and make orders accordingly. 8The Tribunal Orders : 1. That James Mathew Miller be publicly reprimanded. 2.That James Mathew Miller pay a fine of $10,000.00 3.That James Mathew Miller pays the costs of the Council of the New South Wales Bar Association in the proceedings as agreed or assessed. 4.That these orders and findings be published.