Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of NSW v D'Alessandro [2014] NSWCATOD 10 Hearing dates: 20 November 2013 Decision date: 13 March 2014 Jurisdiction: Occupational Division Before: Mr D Patten - Principal Member Mr D Fairlie - Senior Member Ms E Hayes - General Member Decision: (1)Solicitor is guilty of professional misconduct. (2)The name of the Solicitor be removed from the Roll of local Legal Practitioners. (3)The Solicitor pay the Councils costs as agreed or assessed. Catchwords: Professional misconduct - circumstances constituting Legislation Cited: Legal Profession Act 2004 Cases Cited: Allinson v General Council of Medical Education and Registration (1894) 1QB750 Category: Principal judgment Parties: Council of the Law Society of NSWBelinda D'Alessandro File Number(s): 112010 Publication restriction: No publication of any material which may tend to identify persons referred to as Mr and Ms A reasons for decision 1In these proceedings the Council of the Law Society of NSW (the Council) seeks pursuant to S562 of the Legal profession Act 2004 a finding that Belinda D'Alessandro (the Solicitor) is guilty of professional misconduct and an order that her name be removed from the Roll. 2At the hearing Ms C Webster SC appeared for the Council but there was no appearance by or for the Solicitor. As we were satisfied that she had been served with relevant documents and had received notice of the hearing date the matter proceeded in her absence. 3There were a number of grounds for the application including falsification of documents, misleading conduct, delay, and failure to communicate with her client and other persons when she had an obligation to do so. 4As appears from the evidence as at January 2008 the Solicitor was acting for a Mr A in proceedings against his wife Ms A in the Family Court. Ms A was represented by a Solicitor Ms Baute. 5On 7 January 2008 orders were made by consent in the Family Court. One of the orders provided for an investment of $9421.29 in the joint names of the parties with Australian Scholarship Group (ASG) to be redeemed and transferred to the Solicitors trust account whereupon pursuant to an agreement between Mr A and Ms A the Solicitor was to apply the sum in satisfaction of marital debts. 6Although there is evidence that Mr and Ms A had signed an appropriate authority addressed to ASG the previous November as at January 2008 it does not seem to have been in the Solicitor's possession. Nevertheless she wrote to ASG on 9 January 2008 enclosing a copy of the Family Court Order apparently hoping that it would be acted upon without an authority signed by the parties. 7It seems clear that the Solicitor must have been informed that an authority was required as she set about obtaining one and for that purpose communicated by email and telephone both with her own client and with the Solicitor for Ms A. Delays followed, seemingly attributable to the neglect of the Solicitor, which extended into 2009. In the meantime Mr A in particular was concerned that two liabilities for which creditors were pursuing him and which were to be paid by the Solicitor out of monies received from ASG remained outstanding. The creditors through debt collectors were putting pressure on Mr A. Ms A was also concerned at the delay. 8In her affidavit sworn1 November 2013 Tina Gaddes who was employed as a paralegal by the Solicitors for Ms A deposed to a number of conversations with the Solicitor including the following: On 12 June 2008 I had a telephone conversation with Ms D'Alessandro in words to the effect: Me: "Hi Belinda, we are just wondering what is happening with getting the money in this matter from ASG?" Ms D' Alessandro: "I have been following up ASG ferociously for the last week or so, people are away, etc. Hopefully the person who needs to do the paperwork will be back today. I will follow up ASG again today." On 26 June 2008 I had a telephone conversation with Ms D'Alessandro in words to effect: "Me: "Hi Belinda, I am wondering what is happening with the following up of the ASG monies. Ms D'Alessandro: "I am on hold to ASG. I will call you as soon as I get off hold." She repeated this and we then said words to the effect Ms D'Allessandro: "I will call you in a matter of minutes." Me: "We have our client coming in." On 3 July 2008 I telephoned Ms D'Alessandro and was initially on hold for an extended period of time. I then had a telephone conversation with Ms D'Alessandro in words to the effect: Me: "Hi Belinda, we are wondering what is going on with the ASG monies?" Ms D' Alessandro: "I am actually on hold to ASG at the moment and I am trying to sort out the cheques." Me: "We really need some information on the ASG monies, our client is incurring costs that she really can't afford to be spending. Is there any indication of what the hold up is?" Ms D' Alessandro: I have been trying to get through. I've only ever been able to speak to general client services people and they hadn't been able to figure out who I am supposed to be speaking with." Me: "We will call ASG to hurry them along, this matter is getting ridiculously delayed and it's just not realistic for our client to keep paying fees." Ms D' Alessandro: "That's fine." Me: "Have you been calling a specific line?" Ms D'Alessandro: "I have tried but the number is wrong, and then busy and I have left messages but the message box was full." Me: "I will call the general number and find out what is going on. Perhaps if we both call it will motivate them to do something." On 3 July 2008 I had a further telephone conversation with Ms D'Alessandro in words to the effect: Ms D'Alessandro: "I have just spent time on the phone, ASG have misplaced the authority, it's not on their file. I will fax it across to them this afternoon. I can't recall though if you have sent a copy of your client's driver's licence. I saw the authority but they may need the driver's licence as well. Could you please fax me a copy. When they phoned up they said that they had something on file as having had contact. I took a copy of the document and they have said that they will now accept a faxed copy." Me: "You sent the original but you still have it?" 9It is to be inferred that in each of the above conversations the statements attributed to the Solicitor were false to her knowledge. 10Mr A in his affidavit sworn 30 May 2013 identified a series of emails sent by him to the solicitor in the period July to November 2008 inquiring whether the debts due by him had been paid. So far as the evidence relates the Solicitor did not reply to any of them. 11Mr A's affidavit proceeds: 8. On or about 14 November 2008 I had a telephone conversation with Ms D'Alessandro during which I said words to the following effect: "I have sent a letter to Baycorp so you can correspond with them direct on my behalf and I have given them your contact detail." Ms D'Alessandro replied using words to the following effect: "I have paid your debts and I will send you the proof of payment from my trust account." 12The statement that the Solicitor had paid the debts was false to her knowledge. 13On 14 November 2008 Mr A received an email from the Solicitor. It was addressed to Mr A and also to the two creditors. It read: "Dear Colleagues We refer to our telephone discussions with Marcy today and attach copies of Internet Banking Receipts for payments we have made on behalf of (Mr A) in relation to loans he obtained from GE, which Baycorp is now reviewing on GE's behalf. We Note that it takes at least 3 working days for payments to be processed through the BPAY system and we would be grateful if you would advise us once you have been able to confirm that the payments have been processed through the BPAY system. Yours faithfully BDA Legal Belinda D'AlessandroPrincipal" 14It is plain that the documents attached to the email purporting to evidence the payments were fabrications to the knowledge of the Solicitor. 15In January 2009 Mr A consulted Ms Layla Doumit Solicitor. He instructed her inter alia that the funds from ASG had been transferred to the Solicitors trust account in April 2008. In this he was in error as the funds were actually still held by ASG and had significantly diminished in value during the preceding 12 months. She deposed to a conversation with the Solicitor. 3. "On 7 January 2009 I had a telephone conversation with Ms D'Alessandro which, to the best of my recollection, was in following terms: Me: "I have Bill (A) with me who has approached me in relation to the monies held in your trust account pursuant to the Consent Orders. He has tried calling you on numerous occasions since April 2008 including emails and faxes following up the payment of the debts pursuant to the Orders. Have you paid these debts?' Ms D'Alessandro: "I have been having trouble with my receptionist. My numbers have changed and I haven't been receiving my messages. I have now changed my receptionist." Me: "Have these monies been distributed to pay the debts?" Ms D"Alessandro: "They should have been. But like I said I have changed my staff and I will need to look into it." Me: "With respect, trust money is your responsibility. It has been in your trust account since April 2008. Can you pay these debts by next Monday?" Ms D"Alessandro: Yes I can. I will send it out." 6. "On 12 January 2009 I had a telephone conversation with Ms D'Alessandro, which, to the best of my recollection, was in following terms: Me: I am calling you regarding the monies you are holding in your trust account. Have you attended to the payment of the debts as discussed during our last conversation? Ms D'Alessandro: I can't get to the office today but I will attend to it tomorrow. Me: My client's instructions are that he does not want to allow you anymore time but I will seek further instructions. Ms D'Alessandro: I have been extremely busy and have had trouble with staff. Me: You have had time since April 2008." 7."On 13 January 2009 I had a telephone conversation with Ms D'Alessandro which, to the best of my recollection, was in following terms: Me: Have you paid the debts from your trust account: Ms D'Alessandro: I can't talk right now. Me: Would you please answer with simple "yes" or "no"? Ms D'Alessandro: No. Me: I won't be waiting any longer than this. Ms D'Alessandro: I am not in the office that's why I cannot fax it. Me: This afternoon is the latest my client will wait. 16As appears from the email sent on 4 February 2009 from ASG to Mr A as at that date no funds had been transferred by ASG to the Solicitors trust account: "I refer to our telephone conversation today and confirm that no funds have been released from your ASG Benefits. The current total surrender value on all your benefits is $9049.29. I have also enclosed a copy of both letters sent to your solicitors last year. Please note that the surrender values have changed slightly since these letters." 17Evidence in the form of a letter from Ms Doumit to Ms A's Solicitors sent by fax on 5 June 2009 indicates that the funds held by ASG were ultimately released on 16 March 2009. 18The Solicitors conduct seems to have been drawn to the attention of the Council in February 2009. In response to a letter to her the Solicitor on 26 February 2009 wrote: "Mr.Ray CollinsManagerProfessional Standards DepartmentLaw Society of New South Wales170 Phillip StreetSYDNEY, NSW 2000 BY FACSIMILE: 02 9221 5804 Dear Sir I refer to the above matter and regret that I have not responded sooner. However, I hope that certain matters explained below will be taken into account as mitigating factors. In relation to the subject of the matter, I make the following statement: 1.I was instructed by Mr A to act on his behalf in relation to family law matters (both property and children) between him and his now former wife, Ms A. 2.Dooley and Associates were instructed to act for Ms A. 3.The former matrimonial home was sold (my firm acted on the sale) and the balance of proceeds of sale were placed into my Trust Account pending resolution of the family law matters. 4.. The parties reached agreement as to the disposition of the matter and Consent Orders were approved by the Family Court of Australia (copy enclosed). 5. The orders required, among other things, for: a). The balance of proceeds of sale be applied to pay the filing fee for a joint application for divorce and part of the debts of the marriage; b)funds to be withdrawn from a scholarship fund established with Australian Scholarship Group (copy member statement enclosed) and those funds be used to pay the balance of the debts of the marriage, with the remainder to be paid to the wife. 6. After approval of the of the consent orders by the Family Court of Australia on 7 January 2008,1 paid some of the debts of the marriage with the funds held in my Trust Account and wrote to the Australian Scholarship Group seeking the release of the funds held by them and provided them with a copy of the sealed orders. (Copy letter to ASG and a copy of the Trust Ledgers relating to these matters enclosed.) 7.I was advised by the Australian Scholarship Group that the copy of the sealed orders was not sufficient for them to release the funds and that they needed an authority signed by both Mr. A and the wife in order to release the funds. I then sent an authority to the wife's solicitors for the wife's signature and return to my office for signature by Mr. A. During this time I had been taking instructions from Mr. A in relation to matters aside from this issue of the funds to be withdrawn from the Australian Scholarship Group but still related to his family law matters. The authority with the wife's original signature was not returned to my office until 22 April 2008, which I then sent to Mr. A for his signature and the original was returned to me in the post on 2 May 2008 8.The wife's solicitors contacted my office in August 2008 asking that Mr A attend at their office to sign a further authority. I was overseas at that point but had requested that the authority that they wanted signed to be sent to my office so I could send it to Mr A. The Wife's solicitors did not forward the authority and I have not heard from them since August 2008. 9.After Mr A returned the authority with his original signature on it to me point (sic), I did not take any further action to pursue the release of the funds from the Australian Scholarship Group and when contacted in relation to the matter, I advised it was being attended to but did not attend to the matter in an attempt to obtain further time for me to do what I should have done after Mr A returned the authority to me. Whilst it is a relatively simple matter to attend to, there were (and are) a number of factors which impacted on dealing with the matter, which are as follows: 1.In May 2007, I was diagnosed with two large fibroids (benign gynaecological tumours), which impact my physical health (including at times severe pain, anxiety and aggravated depressed moods) on a regular basis. At the time, I was advised by my medical practitioners that I had two options a)to do nothing, other than take medication to relieve the physical symptoms (and pain killers) and live with the physical side effects; or b)to have them removed surgically (which is major abdominal surgery and carries a significant risk that I may require a hysterectomy, due to the size). At that time, I was given an estimate that my out of pocket expenses would exceed $5,000.00 after the Medicare rebate to which I would be entitled and I did not have sufficient funds to cover the difference between the rebate I would receive from Medicare and the fees of the medical practitioners required to attend to the surgery. 2.In late March 2008, my father underwent major coronary surgery, which added to the aggravated depressed mood from which I was suffering at the time. 3.In May 2008,1 was preparing two complex matters (an Estate matter in the Supreme Court of New South Wales and a separate family matter) which were listed for trial in early July which required extensive preparation of a large number of affidavits. At that time I gave priority to those two matters and pushed other work to the side (and refused to accept a small amount of other paying work). The family law matter was adjourned until late October 2008 due to a number of factors, including the unavailability of Counsel, who was supposed to appear in the Estate matter. At the time the Estate matter was heard, the Counsel who had been briefed was ultimately part heard in another matter and I was required to brief another Counsel on short notice. 4.In August 2008,1 went to the United States for a sibling's wedding. It was the first leave I had taken in a number of years. However, I took work with me (and had work emailed to me) and was working at late hours in the United States due to time differences) and was not sleeping properly. Although I was aware this matter needed to be attended to, I again gave it low priority. 5. In respect of the Estate matter mentioned in paragraph 3 above, my client was ultimately successful and received a costs order in his favor. However, that client cannot pay the fees which are owed to me and I am awaiting payment from the losing party in that matter subject to the costs being assessed (as the costs are in dispute). In that matter, I am holding the Plaintiffs cash share of the Estate in a controlled monies account and I am unable to take those funds until the question of the quantum of costs is resolved. 6.In respect of the family law matter mentioned in paragraph 3 above, my client in that matter declared herself bankrupt whilst I was in the United States, without seeking my advice first. I was unaware that my client was bankrupt until the week before the trial of this matter and I heard of this from someone other than my client. When I confronted her, she did not see the impact of her decision. As far as I am aware, my client will receive little, if anything, as there were no assets left in the marriage, only debts. As a result, this client is unable to pay me the disbursements I paid on her behalf and there is no realistic prospect of me recovering any fees (which, if time costed, would exceed $50,000.00) for the work I did in relation to the matter. 7.I have been struggling financially due to cash flow issues in my practice (a major part of which is due to the matters mentioned in paragraphs 5 and 6) and have been making attempts to financially restructure my practice. 8. I was out of the office (interstate) during the 2008 and 2009 Christmas and New Year period. I was contacted by another practitioner on my return to the office after New Year. Although I was contacted by the other practitioner and subsequently by officers of the Law Society, I again delayed taking any action due to increased anxiety. 9..Following the initial contact by the officers of the Law Society, I was again examined by my medical practitioner (and had further ultrasound scans, which aggravated the physical symptoms of my condition) and the size of the two existing fibroids have increased and another three have occurred. 10.. Although I have not been formally diagnosed, I have been suffering from depressed moods and anxiety due to the above issues. Following my recent discussions with Ms. Fran Moffitt of the Law Society, she advised that the Trust Accounts Department indicated I should write to the Australian Scholarships Group to seek the withdrawal of the funds to be placed in my Trust Account, which I have now done (a copy of my letter enclosed). As I indicated above, I am aware that Mr. A has engaged another practitioner and I am prepared to release my file, and the funds once I have received them, to the practitioner who is now engaged on his behalf. I regret that I did not take the appropriate action to conclude this matter and realised that there will in all likelihood be consequences. I ask that my health issues be taken as mitigating factors" and that my practising certificate not be suspended. 19It is noteworthy that the Solicitor's letter does not deny any of the matters found adversely to her above. 20The Solicitor was admitted to practice on 13 April 2000. Her practicing Certificate was suspended by the Council on 19 March 2009 and she has not been entitled to practice since that date. The facts which we have recited above and have found to be true reveal that in the matter in which the Solicitor was acting for Mr A her conduct was dishonest, dishonorable and disgraceful. It constituted professional misconduct within the test as formulated in Allinson v General Council of Medical Education and Registration (1894) 1QB 750 namely conduct which would reasonably be regarded as disgraceful or dishonorable by other legal practitioners of good repute. We have no hesitation in finding the Solicitor guilty of professional misconduct. 21As to the orders which should follow our finding we do not of course have the benefit of submissions on behalf of the Solicitor. We do however have regard to the quite strong subjective circumstances set forth in her letter to the Council of 26 February 2009. Nonetheless it is to be noted that the jurisdiction we exercise is protective of the community rather than punitive. In our opinion the community in dealing with a solicitor is entitled to expect a very high degree of probity and diligence. What the Solicitor did fell in our view lamentably short of that standard and revealed that she is not a fit and proper person to remain on the Roll of legal practitioners. In the circumstances we think that no order other than that her name be removed from the Roll is appropriate. 22Ms Webster foreshadowed a claim for compensation by Mr and / or Ms A. For that purpose we will provide for the matter to be listed for directions. Finding and orders 1.That the Solicitor is guilty of professional misconduct. 2.That the name of the Solicitor be removed from the Roll of local Legal Practitioners. 3.That the Solicitor pay the Councils costs as agreed or assessed. 4.That there be no publication of any material which would tend to identify the persons described as Mr A and Ms A. 5.The Council or any interested party may apply to the Registrar with a view to listing the matter for directions in relation to a claim for compensation. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 13 March 2014