Council of the Law Society of NSW v Doherty (No 4) [2011] NSWADT 305

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of NSW v Doherty (No 4) [2011] NSWADT 305 Hearing dates: 7 December 2011 Decision date: 21 December 2011 Jurisdiction: Legal Services Division Before: Justice W Haylen, Deputy President M Riordan, Judicial Member C Bennett, Non-Judicial Member Decision: Undertaking from respondent accepted by Tribunal in lieu of imposing conditions on the practising certificate. No order as to costs. Catchwords: Disciplinary application - undertaking accepted in lieu of conditions being placed on practising certificate Cases Cited: The Council of the Law Society of NSW v Doherty (No 2) [2009] NSWADT 296 Council of the Law Society of NSW v Doherty (No 3) [2011] NSWADT 284 Category: Principal judgment Parties: Council of the Law Society of NSW (Applicant) Peter John Doherty (Respondent) Representation: L W Pierotti (Applicant) File Number(s): 082029

reasons for decision 1This matter has a somewhat chequered history that, for present purposes, is adequately summarised in Council of the Law Society of NSW v Doherty (No 3) [2011] NSWADT 284 ("Doherty No 3" ). 2In The Council of the Law Society of NSW v Doherty (No 2) [2009] NSWADT 296 (" Doherty No 2 ") the Tribunal made the following orders: 1. The practicing certificate of the Respondent Peter John Doherty be cancelled for a period of twelve (12) months from 25 September 2009, concluding 25 September 2010. 2. During the period of such cancellation the Respondent is to attend (and pass if appropriate) appropriate courses in trust accounting and ethics. 3 At the end of the period of cancellation, and subject to compliance with Order 2 above, the Respondent is to be issued with a practicing certificate that would entitle him to practice as a employed solicitor only for a period of six (6) years commencing 26 September 2010, with such additional restrictions as to areas of practice as may be agreed between the Law Society and the Respondent or, failing agreement, determined by this Tribunal. 4. The Law Society is directed to bring forward appropriate conditions that may be imposed consistent with the terms of this decision. The Law Society is to provide those conditions to the Respondent with a view to the Law Society and the Respondent agreeing to the terms thereof. In the case of agreement the Tribunal should be moved to make final orders consistent therewith. In the case of non-agreement the terms of conditions can be the subject of a further decision and liberty is granted to apply. 3In Doherty No 2 , the Tribunal, in indicating the orders that it proposed to make, stated at [147] that, besides cancellation of the practising certificate and passing appropriate courses in trust accounting and ethics, the practising certificate issued at the conclusion of the period of cancellation should contain "... perhaps, additional restrictions as to the areas of practice (in any event favoured by him in his evidence) and (importantly) in which he is clearly proficient and able to discharge his professional duties ." 4While Mr Doherty was able to satisfy the Law Society in relation to appropriate courses in trust accounting and ethics, the parties, ultimately, were unable to agree on what further, if any, conditions as to the scope of his area of practice should be contained in any practising certificate subsequently issued to Mr Doherty. 5In light of that disagreement, the Tribunal again convened and received submissions as to whether it was appropriate that Mr Doherty's practising certificate specify conditions limiting his area of practice and the practicability of that course. In the course of submissions, senior counsel for Mr Doherty offered to provide the Tribunal and the Law Society with an undertaking that Mr Doherty, on resumption of practice, would not undertake work relating to the drafting of joint venture agreements. It was precisely the difficulties in this area and the unauthorised retention of funds said to arise from joint venture arrangements that brought Mr Doherty before the Tribunal. 6A reading of the Tribunal's decisions in regard to this matter as well as a reading of the judgment of the Court of Appeal dealing with the Law Society's appeal against the inadequacy of the penalty imposed by the Tribunal, demonstrates that the Tribunal and the Court of Appeal regarded Mr Doherty's conduct as being most serious and that it was a fine-line judgment whether his practising certificate should be cancelled for a period or whether it was more appropriate that he be struck off the roll of practitioners. Mr Doherty received the benefit of that fine-line judgment call. 7The present disagreement about what conditions, if any, should be placed on any practising certificate issued to Mr Doherty has caused the Tribunal to closely consider the competing submissions. The Tribunal was concerned to strike a balance between adopting appropriate measures to protect the users of legal services who may, in the future, engage Mr Doherty and determining a form of restrictive conditions that would have practical effect and would not require the ongoing supervision of the Tribunal, the Law Society or both bodies. 8After very close and careful consideration, the Tribunal was ultimately persuaded that the difficulty in finding an appropriate expression for conditions that might be placed on Mr Doherty's practising certificate resulted in the better course being to accept Mr Doherty's offer of an suitable undertaking regarding his involvement in joint venture agreements and that no other conditions should be placed upon his practising certificate. 9Having informed the parties of the Tribunal's view, the parties were given time to formulate a suitable undertaking. The Tribunal has now been provided with the following undertaking signed by Mr Doherty: I Peter John Doherty the respondent in these proceedings hereby undertake to the Tribunal until further order that after issue by the applicant to me of a practising certificate under the Legal Profession Act 2004 and upon resuming legal practice, I will not in the course of providing legal services carry out or undertake any work which involves the preparation or drafting of joint venture agreements. 10The Tribunal was informed that the Law Society did not object to this form of undertaking. In those circumstances, the Tribunal accepts this undertaking and directs that the undertaking shall be placed with the Tribunal file in this matter. Having accepted the undertaking in the terms referred to above, the Tribunal will not require any further conditions or restrictions to be placed upon the practising certificate that may be issued to Mr Doherty by the Law Society. Having regard to all the circumstances, the Tribunal is of the view that each party should bear their own costs for these proceedings concerning the conditions that might be imposed upon Mr Doherty.