Donaghy v Council of the Law Society of NSW (No 2) [2012] NSWADT 170

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Donaghy v Council of the Law Society of NSW (No 2) [2012] NSWADT 170 Hearing dates: 18 June 2012 Decision date: 17 August 2012 Jurisdiction: Legal Services Division Before: D Fairlie, Judicial Member; S Hale, Judicial Member; E Hayes, Non-Judicial Member. Decision: Application for Review dismissed Geoffrey James Donaghy be reprimanded Catchwords: Failure to pay counsel's fees Failure to communicate Legislation Cited: Administrative Decisions Tribunal Act 1997 Legal Profession Act 2004 Revised Professional Conduct and Practice Rules Cases Cited: Donaghy v The Council of the Law Society of New South Wales (No1) [2012] (unreported) Law Society of New South Wales v Graham [2007] NSWADT 67 Law Society of New South Wales v McCarthy [2003] NSWADT 198 Law Society of New South Wales v Davidson [2007] NSWADT 264 Carver v Legal Disciplinary Tribunal [1991] NSWCA 47 Council of the Law Society of New South Wales v Beazley [2012] 153 Ilvary Pty Limited v Moss & Ors [2009] NSWCA 207 Category: Principal judgment Parties: Geoffrey James Donaghy (Applicant) The Council of the Law Society of NSW (Respondent) File Number(s): 112029

REasons for decision

Introduction 1The Applicant, Mr Donaghy is a sole practitioner from Lismore. He seeks a review of the decision made by the Respondent, the Council of the Law Society of New South Wales, ("the Law Society") on 1 September 2011, to publicly reprimand him. 2The decision was made by the Respondent's Professional Conduct Committee, as the delegate of the Law Society's Council, and was in the following terms: RESOLVED that: 1. the Committee is satisfied that : (i) there is a reasonable likelihood Geoffrey James Donaghy ("the legal practitioner") would be found by the Tribunal to have engaged in unsatisfactory professional conduct; and (ii) the legal practitioner is generally competent and diligent: and (iii) the taking of action is justified having regard to all the circumstances of the case ( including the seriousness of the conduct concerned) and to whether any other substantiated complaints have been made against the legal practitioner. 2. the committee hereby reprimands the legal practitioner. (Section 540(1) and (2)(b) of the Legal Profession Act, 2004). Unsatisfactory Professional Conduct Failure to pay third party. Failure to communicate. Reasons for Decision Failure to pay third party. Failure to communicate. Ms Graycar issued a fee disclosure and costs agreement on 24 June 2009 to Mr Donaghy. The agreement records that Ms Graycar received instructions on 23 June 2009 for a hearing in the Court of Appeal on 15 July 2009. On 17 July 2009 Ms Graycar issued her fee note to Mr Donaghy in the sum of $11,687.50. Ms Graycar's fees were not paid until on or about 24 June 2011 following an Application for Assessment being made by the complainant as a result of which her fees were allowed in full and a subsequent Application for Review was lodged by the solicitor and withdrawn by him when the parties reached a negotiated settlement and the complainant accepted payment of a negotiated settlement and the complainant accepted payment of an agreed sum. Mr Donaghy failed to communicate with Ms Graycar concerning her fee, which fell within her estimate. He is not entitled to rely on his Associate's discussions with Ms Graycar's clerk, Ms Wyles, concerning which Ms Wyles said that there was never any suggestion that there was any problem with payment. Having regard to the material before it, Rule 32 of the Revised Professional Conduct and Practice Rules and the decision of the Administrative Decisions Tribunal in matters such as Law Society of New South Wales v Graham 2007 NSWADT 67 the Committee is satisfied that there is a reasonable likelihood that the solicitor will be found by the Tribunal to have engaged in unsatisfactory professional conduct and professional misconduct." Notice of the decision was sent to Mr Donaghy, by letter dated 2 September 2011.