Council of the Law Society of New South Wales v Wilson [2015] NSWCATOD 93

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Wilson [2015] NSWCATOD 93 Hearing dates: 6 July 2015, September 2015 Decision date: 07 September 2015 Jurisdiction: Occupational Division Before: D Patten, principal Member S Hale, Senior Member M Bolt General Member Decision: 1. Finding of Professional Misconduct 2. Order that the name of Sonny Wilson be removed from the local roll of legal practitioners. 3. Order that the solicitor pay the applicants costs as agreed or assessed. Catchwords: Dishonesty in dealings with Legal Aid – removal from roll called for. Legislation Cited: Legal Professional Act Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Sonny Wilson (Respondent) Representation: Solicitors: L Pierrotti, Law Society of New South Wales (Applicant) S Wilson (Respondent in person) File Number(s): 1520017

reasons for decision 1. By application filed on 30 January 2015 the Council of the Law Society of NSW (The Council) seeks a finding of professional misconduct and consequential orders against Sonny Wilson (the Solicitor). 2. In support of its application the Council relied on 5 grounds: 1. Wilfully breached Sections 254 and 255 of the Legal Profession Act, 2004. 2. Misappropriated trust funds. 3. Made five (5) false certifications in claims made to the Legal Aid Commission for payment of fees. 4. Breached section 254 of the Legal Profession Act, 2004 (the Act) 5. Misappropriated $17,275.50 received on behalf of counsel. 1. By his reply filed 31 March 2015 the Solicitor admitted each of the above grounds and the particulars furnished in support of them. He expressly did not contest the orders sought by the Council namely removal from the roll and costs. 2. In light of the Solicitor's admissions it is necessary to give only a brief summary of the relevant facts which concern four clients of the practice of which the Solicitor was the sole principal. 3. In respect of Mr John Unassa (Mr Unassa) the Solicitor on 5 December 2011 was approved by the Legal Aid Commission for the transfer of a grant of Legal Aid in a criminal matter. On 7 December 2011, 16 March 2012, 17 May 2012, 6 July 2012, 11 August 2012, 10 December 2012 (3 invoices) the Solicitor submitted tax invoices for payment to the Legal Aid Commission of amounts totalling $14, 935.80. In respect of each invoice the Solicitor certified that the invoice accurately reflected the services undertaken and disbursements incurred. Each of the invoices was duly paid by the Commission. 4. The invoice 9657232 dated 10 December 2012 included a claim for counsel fees "Fee on Brief" $1,085.70. In fact as at 10 December 2012 counsel had not been briefed and had submitted no invoice. The claim in respect of counsel fees was false. 5. On 9 April 2013 the Solicitor submitted 5 invoices to Legal Aid totalling $35,063.05. In invoice 969502 the sum of $16,024.80 was claimed as counsel fees and in invoice 9695017, $1,250.70 was claimed. The invoices were duly paid by Legal Aid. In fact no tax invoice had been received from counsel, no money was due to counsel and the work claimed for had not been performed as the trial for which costs were claimed had been adjourned. The Solicitor spent for his own benefit the money paid to him for counsel fees which if they had in truth been incurred should have been retained in his trust account pending payment to Counsel. 6. The Solicitor obtained a grant of Legal Aid in respect of his client Mr Mateaki-He-Lotu Meyer (Mr Meyer) He sent tax invoices to Legal Aid which included a disbursement claimed for interpreter's fees $1,100 and a disbursement for counsel fees totalling $1,181.40. The tax invoices totalling $9,742.70 were duly paid. In fact no tax invoice was issued by an interpreter nor by counsel. Counsel did not appear at the hearing on 23 May 2013 and the Solicitor appeared himself on behalf of Mr Meyer. His claim to have incurred counsel fees was false as was his claim to have incurred a fee for an interpreter. He failed moreover to keep in his trust account the amounts paid to him in respect of those alleged liabilities. 7. The third client involved in these proceedings Limatasi Poto (Mr Poto) was the subject of a grant of Legal Aid. The Solicitor submitted 3 invoices to Legal Aid in respect of Mr Poto totalling $9,742 which amount was duly paid. The invoices 9479619 and 9479620 claimed counsel fees totalling $4,028.20. In fact counsel was not engaged in the matter and the claim was false. Moreover the Solicitor failed to pay into his trust account the amount of counsel fees falsely claimed. 8. The fourth client involved in the case was Jennifer Fomai (Ms Fomai). She also had received a grant of Legal Aid. The Solicitor sent 3 invoices to Legal Aid claiming in total $10,182.70 of which $10,107.70 was duly paid, the difference being 'client contribution'. The monies included claims for $5,428.50 Counsel fees. The Solicitor appeared at the hearing himself without counsel and his claim to have included counsel fees was false. Again he did not in any event pay the amount received for counsel fees into his trust account as required by Sections 254 and 255 of the Act. 9. Unsurprisingly the Solicitor by submitting false claims to Legal Aid was acting contrary to the terms and conditions promulgated by it in respect of the conduct required of legal practitioners to whose clients Legal Aid had been granted. 10. Apart from his formal reply to which reference has already been made the Solicitor filed an affidavit sworn 30 march 2015. This affidavit included the following paragraphs: 5. I have not practiced as a solicitor since 1 October 2013 when my pactising certificate was suspended by the NSW Law Society. 6. Since October 2013,1 have been unemployed, except for a period of 5 months from July 2014 - December 2014 when I worked as a Merchandiser on a casual basis with a company called "Strikeforce". I was also in receipt of Centrelink benefits for a period not exceeding 6 months from February 2014 -July 2014. Currently, my wife and two older children are working to financially support me and our family of six (6). 7. Due to the lengthy period of my unemployment and my inability to make payments to my past business creditors, I had no other option but to finally apply for bankruptcy which was finalised on 20 March 2015. 8. 1 am currently studying fulltime at Aiphacrucis College in Parramatta undertaking a Bachelor of Ministry course which is for 3 years. 9. 1 have admitted to all grounds referred to in the Applicant's application and further agreed to all orders sought by the Applicant, as I acknowledge my past mistakes and errors in my previous professional career as a solicitor. 10. 1 am seeking the leniency of the Tribunal when dealing with me in this matter, and I kindly ask the Tribunal to take into consideration the matters referred to above in the Affidavits for the Applicant, as well as the content of this Affidavit. 11. It is my desire to move forward in my life with my family including my wife of 20 years, and our four (4) children ages 19,18,14 and 11. 12. 1 am willing to learn from my past mistakes and errors so that I can hopefully obtain another opportunity in the near future to practice as a solicitor and to be of some use and benefit to others who require legal assistance with their legal problems, which I enjoyed doing from 2000 – 2013 1. In submissions the Solicitor who represented himself said that he had 'no excuses whatsoever' for his conduct. He however sought an order for suspension for a lengthy period rather than an order that his name be removed from the roll. 2. The Solicitor's desire to reorder his life and establish a new career is obviously praise worthy. It may be that ultimately he will be able to establish himself as a fit and proper person to practice law. However in our view the dishonesty involved in his conduct is so egregious that no order other than an order that his name be removed from the roll will meet the circumstances. That is not of course to say that resumption of a practice in the law is lost to him forever but it is upon him to establish his fitness over what would undoubtedly be a lengthy period. 3. Despite his good intentions we are far from satisfied he has achieved this redemption in the relatively short time that has elapsed since his practising certificate was suspended. 4. These proceedings were commenced under the Legal Profession Act 2004 which was repealed by Section 167 of the Legal Profession Uniform Law Application Act 2014. Schedule 4 of the Legal Profession Uniform Law (NSW) Act contains savings and transitional provisions. In effect these proceedings may be continued under the old Act. The Tribunal accordingly has available to it the orders permitted to be made by S562 of the old Act. 5. We make the following finding and orders: 1. That Sonny Wilson is guilty of professional misconduct. 2. That the name of Sonny Wilson be removed from the local roll of legal practitioners. 3. That Sonny Wilson pay the costs of the Council of the Law Society of NSW as agreed upon or as assessed. 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: 07 September 2015