McCowan V Council of the Law Society of NSW [2014] NSWCATOD 44

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McCowan V Council of the Law Society of NSW [2014] NSWCATOD 44 Hearing dates: 5 July 2013 and 27 August 2013 Decision date: 05 May 2014 Jurisdiction: Occupational Division Before: JS Currie, Senior Member. M Riordan, Senior Member. Prof R Fitzgerald, General Member Decision: The Tribunal approves Alan Richmond Brawn ("Mr Brawn") as a lay associate of the law practice conducted by the Applicant, Terence McCowan, known as Legal Wisdom ("the law practice"), upon the following conditions: 1.The employment of Mr Brawn shall be for a period of only up to two days in any one week period of Monday to Friday inclusive. 2.Terence McCowan ("Mr McCowan") must supervise Mr Brawn and be present at all times during which Mr Brawn attends the law practice. 3.Mr Brawn must not have any access to any key or other mode of access to the law practice. 4.Mr Brawn must not have any access to, or be a signatory to, any bank account conducted by Mr McCowan with any financial institution, either personally or in the course of the conduct of the law practice. 5 Except for the existing clients of Mr McCowan by whom Mr Brawn has previously been employed, Mr Brawn shall not be a signatory to any bank account conducted by any client of the law practice, with any financial institution. 6. No written material which is to any extent prepared, drafted, reviewed or completed by Mr Brawn shall by any means be communicated from or taken from the law practice before it has been approved by Mr McCowan. Each such item must be signed or otherwise appropriately authorised (for example by way of electronic acknowledgement) by Mr McCowan. 7. Mr Brawn must not collect or receive any money from any client of the law practice. 8 Before Mr Brawn attends upon any client of the law practice for the first time (to the intent that an attendance shall include an attendance in person, by telephone or by any form of correspondence), Mr McCowan (a)shall personally inform the client of Mr Brawn's status within the law practice as a lay associate and that Mr Brawn is not a Legal Practitioner or a solicitor; and (b) shall not inform the client that Mr Brawn is a former Legal Practitioner or a former solicitor. 9 .Mr Brawn must not provide or tender any legal advice in any form or by any means of communication to any client of the law practice. 10. The only remuneration payable by the law practice to Mr Brawn shall be by way of agreed salary or an hourly rate payment. 11. Prior to Mr Brawn commencing employment as a lay associate, each of Mr McCowan and Mr Brawn shall: (a) confirm in writing to the Manager of the Professional Standards Department of the Law Society of New South Wales that he understands these conditions; and (b) provide the Law Society of New South Wales with a signed undertaking that he will abide by these conditions in all respects insofar as they impose an obligation on either Mr McCowan or Mr Brawn. 12. Within 7 days of the termination of employment of Mr Brawn by the law practice Mr McCowan will notify the Manager of the Professional Standards Department of the Law Society of New South Wales of that termination. 13 The scope of Mr Brawn's duties as a lay associate are limited to carrying out the following tasks, each task to be referred to Mr Brawn individually by Mr McCowan and undertaken as directed by him: (a) maintaining and updating client database; (b) opening client files; (c) drafting legal documentation; (d) drafting correspondence; (e) drafting, perusing and commenting on contracts for sale, leases and other agreements for clients of the law practice; (f) conducting legal research on matters referred by Mr McCowan; and (g) preparation of conveyancing matters for completion, such work to include preparation of settlement adjustment statements, rate enquiries and ordering searches. Catchwords: Lay associate application. Fitness to resume involvement with a law practice. "Fit and proper person" tests. Character. Insight. Contrition. Rehabilitation. Application granted subject to appropriate conditions and restrictions on scope of authority in employment. Legislation Cited: Crimes Act 1900, s558. Legal Profession Act 1987, s 61. Legal Profession Act 2004, ss 7, 17. Cases Cited: Dawson v Law Society of NSW [1989] NSWCA 58.