Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Council of the Law Society of NSW v Byrnes [2016] NSWCATOD 64 Hearing dates: 9 May 2016 Date of orders: 23 May 2016 Decision date: 23 May 2016 Jurisdiction: Occupational Division Before: Cowdroy ADCJ, Principal Member D Fairlie, Senior Member E Hayes, General Member Decision: (1) The Tribunal finds that the respondent, on 18 January 2013, breached Rules 2 and 31 of the Revised Professional Conduct and Practice Rules 1995 by causing his office manager to communicate with the secretary of the client of another solicitor and thereby engaged in conduct which was unprofessional, contrary to s496 of the Legal Profession Act 2004 (NSW) (repealed). (2) The Tribunal orders that the Respondent pay the costs of the Applicant. (3) Reserves the question of compensation claimed by any aggrieved party. Catchwords: Legal Practitioner communicating with client of another solicitor - circumstances providing explanation - conduct amounting to unprofessional conduct Legislation Cited: Legal Profession Act 1987 Legal Profession Act 2004 Revised Professional Conduct and Practice Rules 1995 Cases Cited: Law Society of New South Wales v Walsh [1997] NSWCA 185 New South Wales Bar Association v Butland [2008] NSWADT 120 Category: Principal judgment Parties: The Council of the Law Society of New South Wales (Applicant) Kevin Patrick Byrnes (Respondent) Representation: Counsel: P Maddigan (Applicant) M Walsh (Respondent) Solicitors: The Council of the Law Society of New South Wales (Applicant in person) Equilaw Solicitors (Respondent) File Number(s): 1520228 REASONS FOR DECISION 1. The Council of the Law Society of New South Wales (the Applicant) has filed an Application for Disciplinary Findings and Orders against Kevin Patrick Byrnes (the Respondent) including a finding that he has engaged in unsatisfactory professional conduct and that he be reprimanded for such conduct. 2. The Respondent acknowledges the conduct which gives rise to these proceedings and accepts that he may be reprimanded by the Tribunal for such conduct. Facts 1. The Respondent was admitted in the Supreme Court Roll on 18 December 1987. At all relevant times he is (and was) the principal of the law practice known as Byrnes Lawyers, formerly known as Byrnes & Cox Lawyers which carried on practice at 54 Horton Street, Port Macquarie. 2. In approximately March 2010 the Respondent commenced to act for a wife in a bitter matrimonial dispute. The dispute concerned custody of three infant children and a dispute concerning property settlement. The litigation continued for more than two years, during which time it was necessary for the Respondent, acting on behalf of his client, to take proceedings against the husband for contempt of court, garnishee proceedings and enforcement proceedings. At one stage during the prolonged litigation, a settlement was arrived at between the parties. However, it is claimed that the husband did not abide by the settlement and as a result the litigation was reignited. Ultimately, on 20 July 2012 consent orders were entered by the Federal Circuit Court (the Orders) which finally resolved the differences between the parties. 3. Pursuant to the Orders, two final stages of the proceedings were to be implemented. Clause 3 of the Orders provided: "That the husband pay the wife the following sums: (a) the sum of $25,000 within three months of the date of these Orders; and (b) the sum of $20,000 within six months of the date of these Orders with both payments to be made to the solicitors for the wife" 1. In January 2013 the Respondent was aware that the husband had complied with the obligations contained in clause 3(a) of the Orders by making the payment of $25,000, although such payment was two days beyond the specified period. 2. The issue giving rise to these proceedings arises out of the second payment required by the Orders, namely the fulfillment of clause 3(b). The payment under this order was to be made on 20 January 2013, which was a Sunday. As at this date, the Respondent remained the wife's solicitor for the purpose of the implementation of the final property settlement, although the relations between the solicitor and the wife had clearly become strained resulting from her complaint to the Law Society concerning an allegation of overcharging by the Respondent. Such complaint was readily dismissed when the costs assessed showed that the Respondent had in fact undercharged his client by approximately $50,000. 3. Nevertheless, the remaining payment provided by clause 3(b) was important to the Respondent, as it was his intention to apply a substantial portion of it, namely approximately $15,000 towards his unpaid costs and disbursements which had been owing by the wife for many months. The Respondent also held an irrevocable authority from the wife authorising such payment to be made to him. 4. In view of the animosity which had generated between the respondent and his client by 20 July 2013, the Respondent became concerned that the husband might pay the $20,000 directly to the wife, thereby obstructing the Respondent from obtaining his costs. For this reason the Respondent was assiduous in checking that the payment of $20,000 under clause 3(b) of the Orders would be made as provided by such orders. The relevant conduct 1. On 8 January 2013 the Respondent wrote to the husband's solicitor seeking confirmation that the husband would comply with order 3(b) of the Orders on or before 20 January 2013. No response was received to such letter. 2. On 17 January 2013 at 4.30pm the Respondent telephoned the husband's solicitor but was unable to speak with him. The Respondent requested a return telephone call. No return telephone call was made. 3. On 18 January 2013 (the Friday before the due date) the Respondent telephoned the husband's solicitor to seek confirmation that payment would be made as per the consent orders. The Respondent received a reply which was inconclusive. The husband's solicitor stated that he had spoken to his client and "it is in hand'. When clarification was sought the husband's solicitor stated that he did not know what was intended by such statement. The husband's solicitor informed the Respondent that he would seek clarification and advise the Respondent. No further telephone call was received by the Respondent from the husband's solicitor. 4. Accordingly on Friday afternoon (18 January 2013) sometime before 3pm the Respondent instructed his office manager, Mrs Byrnes, to telephone the husband to confirm that the Respondent would receive $20,000 by the close of business on that day (the direction). 5. Mrs Byrnes duly made such telephone call and spoke with the husband's receptionist Ms Kathy Tierney. A message was left for the husband by Mrs Byrnes. 6. At 2.43pm on 18 January 2013 the husband's receptionist forwarded an email to the husband advising of the contact and requesting that he call Mrs Byrnes urgently. 7. At 4.14pm the husband sent an email to the Respondent. Such email expressed the husband's annoyance at having been communicated with directly by the Respondent's office manager rather than through his solicitors and stated that he considered "today's actions extremely inappropriate". The husband demanded an apology, otherwise he threatened to complain to the Legal Services Commission. 8. At 4.57pm the Respondent replied by email, noting that he had attempted to communicate with the husband's solicitors but the telephone calls and contact had been ignored. No apology was offered. The Respondent's email concluded: "Finally, if payment of the moneys is not received by us by 5pm on 20 January 2013 then we will institute recovery action against you without further notice". Infringing conduct 1. Arising out of the communication made by the Respondent's office manager to the husband, the husband made a complaint to the Legal Services Commission. Such complaint has resulted in four charges brought by the Applicant, namely: Ground 1: That the Respondent instructed his office manager to communicate with a client, or the employ of a client, of another solicitor; Ground 2: The Respondent failed to supervise the office manager in that she breached confidentiality in a conversation with Kathy Tierney on18 January 2013; Grounds 3 and 4: That the Respondent communicated with the client of another solicitor and threatened the husband with the institution of recovery action. 1. The Revised Professional Conduct and Practice Rules 1995 were made by the Council of the Law Society of New South Wales pursuant to its power under s57B of the Legal Profession Act 1987 on 24 August 1995. They were current at the time of the matters the subject of these charges. Rule 2 provides: 'Confidentiality 2.1 A practitioner must not, during, or after termination of, a retainer, disclose to any person, who is not a partner or employee of the practitioner's firm, any information, which is confidential to a client of the practitioner, and acquired byh the practitioner during the currency of the retainer, unless – 2.1.1 the client authorises disclosure; 2.1.2 the practitioner is permitted or compelled by law to disclose; or 2.1.3 the practitioner discloses information in circumstances in which the law would probably compel its disclosure, despite a client's claim of legal professional privilege, and for the sole purpose of avoiding the probable commission or concealment of a felony. 2.2 A practitioner's obligation to maintain the confidentiality of a client's affairs is not limited to information which might be protected by legal professional privilege, and is a duty inherent in the fiduciary relationship between the practitioner and client." Rule 31 provides: "31. Communicating with another practitioner's client 31.1 A practitioner who is acting on behalf of a party in any matter must not communicate in connection with that matter directly with any other party for whom, to use the practitioner's knowledge, another practitioner is currently acting, unless: 3.1.1 notice of the practitioner's intention to communicate with the other party in default of a reply from the other practitioner, has been given to that practitioner, who has failed, after a reasonable time, to reply; 3.1.2 the communication is made for the sole purpose of informing the other party that the practitioner has been unable to obtain a reply from that party's practitioner, and requests that party to contact the practitioner; and 3.1.3 the practitioner, thereafter, notifies the other practitioner of the communication. 3.2 A practitioner who receives notice from another practitioner that the practitioner's client has instructed or retained that practitioner may, after notifying the other practitioner, communicate with the former client for the purpose of confirming the client's instructions and arranging for the orderly transfer of the client's affairs to the other practitioner. 3.3 Rule 31.1 does not apply when the other party is represented by a barrister directly instructed by the party, and the barrister's retainer is so limited, in accordance with the rules of the New South Wales Bar Association, as to preclude the barrister from conducting correspondence on the party's behalf. 1. Section 496 of the Legal Profession Act 2004 was contained in chapter 4 of such Act (now repealed). Section 496 defined "unsatisfactory professional conduct as follows: "496 Unsatisfactory professional conduct For the purposes of this Act Unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner". 1. Section 355(b) of the Legal Profession Act 2004 relevantly provided: "If an application for a costs assessment is made in accordance with this Division: (a) ... (b) The law practice must not commence or maintain any proceeding to recover the legal costs until the costs assessment has been completed'. Respondent's submissions 1. Initially the Respondent denied that any part of his conduct infringed the rules and denied that his conduct constituted unsatisfactory professional conduct. However, having received independent advice the Respondent acknowledges that he was liable for unsatisfactory professional conduct arising from his instruction to his office manager to communicate with a client of another solicitor and secondly by his forwarding the email of 18 January 2013. That is, the Respondent admits that his conduct breached Rules 2 and 31. 2. In mitigation, the Respondent requested the Tribunal to take into consideration the circumstances in which the breaches of the Rules of the afternoon of 18 January occurred, namely against the background of the termination of prolonged, bitter and heavily contested matrimonial proceedings. Such proceedings were attended by allegations of deliberately false affidavits sworn by the husband, a history of non-compliance with court orders, and a complaint by the Respondent's client, towards the end of the litigation which was found to be wholly unsubstantiated. The Respondent states that the direction resulted from his exasperation of not receiving any information which was satisfactory from the husband's solicitor and against the background of his real concern that the funds which were to be deposited in his account pursuant to Order 3(b) of the Orders, would be denied to him because of connivance between his client and the former husband. 3. The Respondent relies upon the fact that his now 54 years of age and was admitted to practice on 18 December 1987. He has held a Practising Certificate issued by the Council of the Law Society of New South Wales for 28 years. 4. The Respondent acknowledges that he has been the subject of prior complaint by clients to the Applicant. The history of such complaints has been tendered before the Tribunal. The Tribunal notes that the last mentioned matter was a complaint in 2000 for which he was publicly reprimanded and was ordered to pay a fine of $4,000. 5. Taking into consideration the fact that the Respondent has apparently conducted an extensive practice in Port Macquarie and that there has been no complaint in the last 16 years, the Tribunal considers that such professional history is not such as to impact upon its present consideration of the penalty which must now be imposed. 6. The Respondent has provided the Tribunal with many references. Such references have been provided by persons who are current legal practitioners who have has long and extensive experience with the Respondent, a former Federal Circuit Court Judge and from a practising barrister. In summary, each of the references show clearly that the Referee understood the nature of the proceedings that was facing the Respondent when they were asked to provide references; that the facts relied upon by the Law Society were known to them and that they were aware of the circumstances giving rise to the complaint. Without exception, each of the references speak of the esteem in which the Respondent is held as a practitioner, of his excellence at his work, at his diligence, honesty and good practice. The Tribunal takes particular note of such references. 7. The Tribunal also notes that, albeit at a late stage, the Respondent has written a letter of apology to the complainant. Findings 1. The circumstances giving rise to the charges brought against the Respondent have arisen in circumstances which are not in doubt. The Respondent has committed a technical breach of Rules 2 and 31. However when one considers the nature of the communication, it is impossible to be satisfied that any confidential information was provided to anyone other than the husband or his secretary. Further, the only information that was provided was an enquiry when a payment was to be made. This is not an instance where confidential information was disclosed of a kind which was obtained, for example, through a conference or through other circumstances warranting total confidentiality. 2. Secondly, the communication was made at a stage when, at the conclusion of the protracted proceedings the Respondent wanted to ensure that the final consent order would be complied with. Having attempted to ascertain that information from the husband's solicitor, and receiving no return of phone calls, the Respondent was understandably concerned. It was this concern that resulted in direction to make the enquiry of the husband's secretary. The Tribunal is satisfied that such conduct arose out of the Respondent's exasperation, and not for the purpose of seeking to convey any confidential information. Rather, the contact was in the nature of an enquiry. 3. The Tribunal notes that there is no explanation for the solicitor for the husband failing to respond to the enquiry. 4. Further, the Tribunal notes that when the husband responded, complaining of the communication at 4.14pm on 18 January 2013, the husband failed to disclose that he had in fact already sent the cheque, apparently by mail. If this fact was known to the husband's solicitor, it was, to say the least, regrettable that it was not conveyed to the Respondent. It may well be that the husband deliberately withheld such information from his solicitors to cause deliberate avoidable and unnecessary concern to the respondent. Irrespective, it was regrettable. The Tribunal notes that the husband has now claimed compensation of $40,000 arising from the breach of the Rules by the Respondent. 5. The Tribunal notes that no complaint was made against the respondent rising out of such conduct either by the husband's solicitor, nor by the Respondent's client, the wife. 6. The Tribunal notes that these proceedings are concerned with the protection of the public, rather than punishment of the practitioner: see Law Society of New South Wales v Walsh [1997] NSWCA 185 at [40]; New South Wales Bar Association v Butland [2008] NSWADT 120, at [41]. 7. Before the Tribunal the Respondent gave evidence and acknowledged that he had breached his professional obligations. He also expressed contrition and remorse for so doing. 8. The Tribunal is satisfied that the Respondent would not have so breached the Rules, but for the particular aggravated circumstances on the afternoon of 18 January 2013. The Tribunal acknowledges that such events occurred in the culmination of prolonged and difficult litigation and of the genuine concern held by the Respondent that the order would be subverted or not complied with in view of the prior history of noncompliance with orders by the husband. Further, the circumstances were further heightened by the lack of communication from the husband's solicitor. 9. The Tribunal also notes that Rule 31 has since been amended and that the nature of the communication, being made under the current Rule, may not have constituted a breach of such rule. 10. For these reasons, whilst the Tribunal accepts the Respondent's acknowledgement that his conduct was unprofessional in that he breached Rules 2 and 31, the Tribunal does not consider that any penalty is required in respect of either breach. The Tribunal is satisfied that the proceedings alone, together with the costs which were ordered against the Respondent, will provide sufficient safeguard for the public in the future. 11. As regards charges 3 and 4, the circumstances arise out of the identical matters referred to in 1 and 2. However charge 4 contains the additional complaint that the respondent threatened the husband with the institution of recovery action. It was claimed that such conduct did not constitute a breach of a specific rule but constituted unsatisfactory professional conduct under s496 of the Act. In substance, it was alleged that the respondent was making a demand for the payment of his fees which he was not entitled to do until the cost assessment had been completed. 12. The Tribunal is of the opinion that the respondent's email to the husband sent at 4.57pm referring to his claim did not amount to a demand for payment of his fees. It said no more than that clause 3(b) of the Orders must be complied with by the due date, otherwise a further action would be taken. The Tribunal does not consider that any penalty is required in respect of charges 3 and 4. Findings and Orders The Tribunal finds: 1. The Tribunal finds that the respondent, on 18 January 2013, breached Rules 2 and 31 of the Revised Professional Conduct and Practice Rules 1995 by causing his office manager to communicate with the secretary of the client of another solicitor and thereby engaged in conduct which was unprofessional, contrary to s496 of the Legal Profession Act 2004 (NSW) (repealed). 2. The Tribunal orders that the Respondent pay the costs of the Applicant. 3. Reserves the question of compensation claimed by any aggrieved party. 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 Amendments 24 May 2016 - Corrected date in orders to 18 January 2013. 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: 24 May 2016