Council of the Law Society of New South Wales v Gallego [2014] NSWCATOD 102

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Gallego [2014] NSWCATOD 102 Hearing dates: 8 May 2014 Decision date: 19 September 2014 Jurisdiction: Occupational Division Before: M Chesterman, Principal Member M Riordan, Senior Member C Bennett, General Member Decision: 1. The Respondent is guilty of professional misconduct under Grounds 1, 2, 3 and 5. 2. The Respondent is guilty of unsatisfactory professional conduct under Ground 4. 3. The matter is set down for further directions at 9.30 a.m. on 25 September 2014. Catchwords: Disciplinary application - solicitor - acting in breach of conditions attached to practising certificate - misleading a court Legislation Cited: Civil and Administrative Tribunal Act 2013 Legal Profession Act 2004 Cases Cited: Law Society of New South Wales v Jayawardena [2005] NSWADT 96 Law Society of New South Wales v Singh [2011] NSWADT 47 Mee Ling v Law Society of New South Wales [1974] 1 NSWLR 490 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Mark Francisco Gallego (Respondent) Representation: Counsel J Merkel (Respondent) C Groenewegen (Applicant) File Number(s): 132025

reasons for decision

Introduction 1On 28 November 2013, the Council of the Law Society of New South Wales ('the Law Society') filed in the Administrative Decisions Tribunal an Application claiming that the Respondent, Mark Francisco Gallego ('the Solicitor'), was guilty of professional misconduct. 2The orders sought in the Application were as follows:- (1)The Solicitor be reprimanded (2)The Solicitor be fined (3)The Solicitor pay the costs of the Law Society; and (4)Any other orders as the Tribunal deems appropriate. 3The Grounds for the Application were formulated as follows:- Mark Gallego ['the Solicitor'], while practising as a solicitor, was guilty of professional misconduct on the bases that he: 1. Failed to indicate on a Notice of Appearance dated 6 January 2009 in the matter Dawn Wade v Suzanne Suttor, Supreme Court of NSW case no 1001/2009 that Mr Robert Silberberg was retained as the solicitor for the defendant [Particular 19] 2. Failed to indicate in his affidavit dated 4 December 2009 that he was employed in the law practice of Mr Robert Silberberg [Particular 26] 3. Failed to indicate in a letter dated 19 July 2009 and on his letterhead to Ms Dawn Wade that he was an employed solicitor [Particular 23] 4. Attempted to mislead the Court of Appeal on and before 3 November 2011 [Particulars 39 to 55 incl] 5. Practised outside the conditions of his practising certificate between 10 December 2004 and 1 July 2010 [Particulars 1 to 38 incl]. 4In the following version of the accompanying Particulars, we have deleted a sentence in paragraph 32(d) that was not pressed and some references to passages in the evidence tendered by the Law Society. We have also abridged the Table in paragraph 1:- Definitions The Solicitor is the respondent, Mark Gallego, who: - was born on 30 April 1958 and is aged 55 years - was admitted as a solicitor of the Supreme Court of NSW on 10 July 1981 - held a practising certificate from 10 July 1981 to 1 July 2003 and 12 August 2003 to the present - was unemployed from 9 December 2004 to 1 July 2008 - was employed as an unrestricted non principal with Morgan Lawyers from 1 July 2008 to 30 June 2010 - has been the sole principal of the law practice Mark Gallego Solicitor since 1 July 2010. 1. Following is a table of the dates since 1999 when the Solicitor applied for renewals of his practising certificate: Year Date of application Type of certificate issued 1999/2000 13 May 1999 A/1 Principal 2000/2001 5 May 2000 A/1 Principal 2001/2002 29 June 2001 B/1 Employee 2002/2003 28 June 2002 B/1 Employee 2003/2004 11 August 2003 B/1 Employee 2004/2005 30 June 2004 B/1 Employee 2005/2006 30 June 2005 B/1 Employee 2006/2007 30 June 2006 Restricted /Non Principal 2007/2008 29 June 2007 Restricted /Non Principal 2008/2009 30 June 2008 Unrestricted /Non principal 2009/2010 30 June 2009 Unrestricted /Non principal 2010/2011 29 June 2010 Unrestricted /Non principal 2011/2012 29 June 2011 Unrestricted /Non principal 2012/2013 29 June 2012 Unrestricted /Non principal