Law Society of New South Wales v Scanlan [2015] NSWCATOD 44

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Law Society of New South Wales v Scanlan [2015] NSWCATOD 44 Hearing dates: 7 April 2015 Decision date: 07 April 2015 Jurisdiction: Occupational Division Before: J Mullane, ADCJ (Presiding Member) J Wakefield (Senior Member) J Schwager (General Member) Decision: 1.Margaret Joan Scanlan is removed from the roll of Local Lawyers. 2. Margaret Joan Scanlan must pay the costs of the Law Society of and incidental to the proceedings no. 1420049 and 1420275 as agreed or assessed Catchwords: Solicitor – misappropriation of trust money- forging documents, false evidence to tribunal, removed from roll Legislation Cited: Legal Profession Act 2004: Legal Profession Regulation 2005; Civil and Administrative Tribunal Act 2013 Cases Cited: Dupal v Law Society of NSW (Unreported, NSWCA, 26 April 1990); NSW Bar Association V Hamman (1999) 217 ALR 553 Category: Principal judgment Parties: Law Society of New South Wales (Applicant) Margaret Joan Scanlan (Respondent) Representation: Counsel: P Maddigan (Applicant) E Green (Respondent) (withdrew on instruction) Solicitors: Law Society of New South Wales (Applicant) J Scalan (Respondent in person) File Number(s): 14200491420275

Judgment

INTRODUCTION 1. This was a hearing of two applications for disciplinary findings and orders against the respondent. The first application was made on 14 January 2014 and seeks a reprimand, a fine and the order for costs. The grounds for the applications are allegations that the respondent: - 1. Failed to invest trust money in accordance with the instructions provided by those persons entitled to the money; 2. Failed to provide statements in relation to a Controlled Money Account; 3. Failed to respond to the correspondence in relation to the investment of/or dealings with the trust monies; 4. Breached Section 255 of the Legal Profession Act 2004 ('the Act"); 5. Breached Section 256 of the Act; and 6. Breached Section 264 of the Act. 1. The second application was filed on 19 August 2014. That application seeks an order that the respondent be removed from the Roll of Local Lawyers and pay the costs of the applicant. The grounds of that application are that the respondent is guilty of professional misconduct because she: 1. Misappropriated the trust funds; 2. Caused the deficiencies in a Trust Account; 3. Failed to account; 4. Falsified Trust Ledgers; 5. Engaged in an elaborate scheme of falsehoods including production of files in non-existent matters containing fraudulent file notes, statements, letters and invoices to conceal her misappropriation; 6. Attempted to mislead Mr Anthony Fairbairn, Law Society Trust Account Investigator and Ms. Michelle Lai, Law Society Chapter 4 Complaints Investigator, providing false information concerning her dealings with Trust money; 7. Mislead Mr. Fairbairn and Ms Michelle Lai by providing false information concerning her dealings with the Trust monies; and 8. Attempted to mislead the NSW Civil and Administrative Tribunal by virtue of her Affidavit dated 4 May 2014 filed in proceedings Council of the NSW Law Society v Margaret Joan Scanlan and numbered 1420049 1. The applications were listed for hearing together on 7 April 2015. When the matter commenced at 10 am, Mr Green of counsel appeared for the respondent, but the respondent was not present. He asked for the matter to be stood down for about an hour as his client had provided him with a box of documents only that morning and he needed to read the documents and obtain further instructions from her. He also indicated that he had been able to narrow the issues in consultation with the client. 2. The proceedings were adjourned to 11 am. At that time Mr Green informed the Tribunal that the respondent was not present but he suspected she was on her way to the hearing room. He informed the Tribunal that the respondent would not be relying on her Affidavits in the proceeding or the documents that had been produced that morning. He said he wanted some more time to reach agreement with the applicant regarding the facts. 3. When the Presiding Member enquired as to where the respondent was, Mr Green informed the Tribunal that she had left and said "she wanted a breath of fresh air". The panel decided to commence the hearing. 4. Counsel for the Applicant opened. There were then discussions identifying of the documents relied upon and the witnesses that would be required in the Applicant's case for cross–examination. 5. At 11:40 am the respondent was present in the hearing room and on Mr Green's application the proceedings were adjourned till 12:10 pm, so he could get further instructions. At 12.10 pm when the matter resumed, Mr Green was without his client but informed the Tribunal he was instructed that his client would agree to allegations in both Applications, The Law Society announced this would not help because Consent orders would require the Legal Services Commissioner to be a party and therefore involve unnecessary delay. That is a requirement under S 364 of the Act, but it was still open for the respondent to have made factual admissions. 6. The respondent had again left the Tribunal hearing room and the adjacent waiting areas. Mr Green then, with leave, withdrew and the Tribunal conducted the hearing as an undefended hearing.