Legal Services Commissioner v O’Donnell [2015] NSWCATOD 17

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Legal Services Commissioner v O'Donnell [2015] NSWCATOD 17 Hearing dates: 22 September 2014 Decision date: 20 March 2015 Jurisdiction: Occupational Division Before: D Patten, Principal member J Wakefield, Senior member M Bolt, General member Decision: Finding that the solicitor is guilty of professional misconduct. Order that the name of the solicitor be removed from the local roll of legal practitioners. Order that the solicitor pay costs of Legal Services Commissioner as agreed or assessed. Catchwords: Professional misconduct – numerous findings of disgraceful and dishonourable conduct Legislation Cited: Legal Profession Act 2004 Powers of Attorney Act 2003 Solicitors' Rules Cases Cited: Allinson v General Council for Medical Education and Registration [1894] 1 QB 750 Re Veron Ex Parte Law Society of NSW (1966) 84 WN (Pt 1) 136 Category: Principal judgment Parties: Legal Services Commission (Applicant) Bernard Kevin O'Donnell (Respondent) Representation: Counsel A Matalani (Applicant) Legal Services Commission (Applicant) B O'Donnell (Respondent) File Number(s): 1420058

reasons for decision 1. The Legal Services Commissioner (LSC) seeks a finding that Bernard Kevin O'Donnell (the Solicitor) be found guilty of professional misconduct and consequential orders. 2. There were 8 grounds of complaint. The first three related to withdrawals from the Solicitors trust account which were categorised by the LSC as improperly charged fees, misappropriations, and/or borrowing of a clients funds contrary to rule 12 of the Solicitors Rules. 3. Ground 4 alleged breach of rule 10 of the Solicitors Rules in relation to the preparation of a Will. Ground 5 alleged that the Solicitor misled or attempted to mislead Lloyd & Lloyd Solicitors and the Guardianship Tribunal of NSW. Ground 6 alleged that the Solicitor made a false declaration to the Law Society of NSW in relation to his trust account. Ground 7 alleged that the Solicitor misled or attempted to mislead a trust account investigator and, Ground 8 alleged that the Solicitor misled or attempted to mislead the office of the LSC. 4. At the hearing before us Mr A Matalani of Counsel appeared for the LSC and the Solicitor appeared in person. We pause to note that hitherto the Solicitor had taken a very limited part in the proceedings. He had filed an unverified Reply but neither an affidavit from himself nor anyone else. The observations made by the Court of Appeal (Herron CJ Sugerman and McLelland JJA) in Re Veron Ex parte Law Society of NSW (1966) 84 WN. (Pt1) 136 are relevant to such a situation (omitting citations): As we have said, no affidavit as to the facts was filed by the respondent or on his behalf despite the fact that we repeatedly drew counsel's attention to the omission. Eventually Mr. Gruzman stated that he had with his junior considered the matter carefully with his client and had decided not to file any affidavit of the respondent. He also stated that his client would not offer to give oral evidence in the witness box. This course, we think, was irregular. The respondent is an officer of the court. The Full Court of the Supreme Court held in November 1965 that on the material presented to it by the Law Society a prima facie case of misconduct was made out and called upon the respondent to show cause why he should not be dealt with. The matter arises within the disciplinary jurisdiction of the Court and if the respondent after consideration declines to give his account on oath of the matters charged he cannot complain if the Court holds against him that the facts as deposed to by Mr. Wilton and other witnesses are substantially true. From the earliest times, and as far back as the recollection of the individual judges of this Court goes, disciplinary proceedings in this jurisdiction in this State have always been conducted upon affidavit evidence and not otherwise. They are not conducted as if the Law Society (the successor to the Law Institute) was a prosecutor in a criminal cause or as if we were engaged upon a trial of civil issues at nisi prius. The jurisdiction is a special one and it is not open to the respondent when called upon to show cause, as an officer of the Court, to lie by and engage in a battle of tactics, as was the case here, and to endeavour to meet the charges by mere argument. We are well aware that if a solicitor is called upon to show cause he may do so in several ways. He may (a) argue that the material before the court discloses no evidence of misconduct; (b) argue that the facts adduced in evidence do not warrant a finding of misconduct; (c) meet the situation by a denial or explanation, in either case upon oath, of the truth or of the significance of the facts deposed to. It is the last alternative in the main with which the respondent was faced here. Yet, as we have said, no denial or explanation was forthcoming, the respondent having sought what refuge was available in argument from the Bar table. His counsel elected to cross-examine only nine of the twenty-five deponents. In civil litigation the election of the defendant to call no evidence may have special significance, depending on the circumstances. That it may have significance is well established : May v. O'Sullivan (I). The silence of a party cannot fill the place of actual evidence on an issue but it may serve to resolve a doubt or ambiguity, especially where the facts as here are peculiarly within the knowledge of the silent party: Tozer Kemsley & Millboum (A/Asia) Pty. Ltd. v. Collier's Interstate Transport Service Ltd. (2). 1. Mr Matalani read the affidavit of Mr Malcolm McFadden sworn 13 December 2013, Mr JH Milne, Acting Legal Services Commissioner, 20 December 2013, Mr Chandrasekaran Sivakumar 5 December 2013 and Mr A J Fairbairn 3 March 2014. The Solicitor did not seek to cross examine any of the deponents. 2. The material put before us, which broadly relates to the Solicitor's relationship with a Mr John M, amounts to many hundreds of pages. In summarising that material for the purposes of these reasons we gratefully acknowledge the assistance we have received from the summaries and chronology provided by counsel for the LSC. Shortly stated the relevant underlying facts up to Mr M's admission to hospital on 24 February 2011 are: 1. Mr M was born on 4 July 1932. As at 2001 he owned and was living in units 28 and 29/ 11-17 Selwyn Street Wollstonecraft. 2. Early in 2001 the Solicitor purchased unit 6 at 11-17 Selwyn St Wollstonecraft and in 2002 became a member of the executive of the Owners Corporation. Mr M became the Chairman of that executive in 2004. The Solicitor and Mr M became casual acquaintances in about 2002 and colleagues on the executive about 2004. 3. Up to October 2005 Mr M had for many years been a client of Mr Mc Fadden a Solicitor. In January 2000 Mr Mc Fadden prepared a will for Mr M which nominated his former wife Eileen C as executrix and sole beneficiary. 4. Mr McFadden retired from legal practice in October 2005 and notified his clients, including Mr M, of that fact. As requested Mr M took delivery of his will dated 18 January 2000 and the documents of title to his 2 Units on 27 October 2005 from Mr McFadden. 5. In late 2005 Mr M sought and obtained advice from the Solicitor in relation to an offer of redundancy made by his employer Channel Nine. 6. From, and after, February 2008 Mr M consulted medical practitioners about his cognitive state. Dr Alexandra Draney on March 9, 2009 diagnosed 'mild cognitive impairment'. That diagnosis was confirmed later in 2009 by Dr Kevin Chang. 7. On 12 June 2010 Mr M executed a will whereby he appointed, "my friend and Solicitor Bernard Kevin O' Donnell to be 'the executrix (sic) and trustee of this my will" and gave his entire estate (subject to payment of debts testamentary and funeral expenses) to "my friend and Solicitor Bernard Kevin O'Donnell". The witnesses to the will were Camron Robin Camlon and David Henry both of 3/8a Carlotta Rd, Double Bay. 8. About August 2010 apparently as a consequence of receiving a letter from Dr Draney, Mr M's driving licence was cancelled by the RTA. He told the solicitor of this and the solicitor offered to assist him in selling his car. The car was sold about October 2010 and the solicitor charged $800 for his part in the transaction. 9. On 2 February 2011 Mr M collapsed and was admitted to Royal North Shore hospital. 1. Between 14 February 2011 and 3 March 2011 the solicitor raised accounts to Mr M for legal and other work allegedly performed. The account dated 3 March 2011; invoice 1415 reads: Tax Invoice Memo Date 1415 Invoice: JM 3.3.2011 Matter Person Responsible Matter No 02046 JM Bernard O'Donnell Wills Single Person/Power of Attorney Professional fees payable in 14 days/ Conveyancing Fees payable on settlement