Law Society of New South Wales v Rogers [2018] NSWCATOD 32

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Law Society of New South Wales v Rogers [2018] NSWCATOD 32 Hearing dates: 26 February, 2018 Date of orders: 07 March 2018 Decision date: 07 March 2018 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member J Pheils, Senior Member M Bolt, General Member Decision: (1) the Respondent is found guilty of professional misconduct under the provisions of the Legal Profession Act 2004

(2) the Respondent is reprimanded

(3) the Respondent is to pay the costs of the Applicant in an amount assessed in default of agreement. Catchwords: Legal Practitioner – failure to comply with notice – professional misconduct – reprimand imposed-costs order made Legislation Cited: Legal Profession Act 2004 Category: Principal judgment Parties: The Council of the Law Society of New South Wales (applicant) Michael Edward Rogers (respondent) Representation: Solicitors: Law Society of NSW (Applicant) Michael Edward Rogers (Respondent) File Number(s): 2017/00263373

Reasons For Decision 1. The Applicant in these proceedings, the Council of the Law Society of NSW, has applied for the making of disciplinary findings and orders against the Respondent legal practitioner, Michael Edward Rogers. The basis for the application is the failure of the Respondent to provide certain information and documentation contained in a Notice issued pursuant to section 660 of the Legal Profession Act 2004 ("the Act"). 2. In a Reply document the Respondent conceded that he had received the Notice and that he had failed to comply with it within the time specified in that notice, and indeed, for a considerable time thereafter. 3. By section 671 (1) of the Act the failure to comply with the Notice constituted professional misconduct. The Respondent conceded that he was guilty of professional misconduct. 4. The Respondent filed affidavit material and gave oral evidence before us concerning his failure to comply with the Notice. In short, we assess his failure as representative of an inability to face up to and deal with a problem involving the payment of certain moneys on behalf of a prior employee, in circumstances where he readily admitted that he was unaware of his obligation at law to pay those monies. 5. The application brought by the Applicant originally sought suspension of his registration pending compliance with the notice. The Respondent has now complied, and the Applicant no longer seeks his suspension. 6. The Applicant sought that a costs order be made in its favour. Having regard to the relevant provisions of the Act, and the concession by the Respondent that he was liable to pay the costs of the Applicant, we are satisfied that it is appropriate to make a costs order. 7. Given the concessions properly made by the Respondent and taking into account the provisions of section 660 (1) of the Act, we are comfortably satisfied, on the balance of probabilities, that the Respondent failed to comply with the provisions of a Notice properly given under section 671 of the Act and that the Respondent is thereby guilty of professional misconduct. 8. The Applicant sought that a reprimand be imposed on the Respondent. The Respondent conceded that this was an appropriate order in all the circumstances. Having regard to the nature and extent of the misconduct of the Respondent and taking into account his expressions of contrition and remorse given during the course of oral evidence, we are satisfied that a reprimand is an appropriate response to his professional misconduct. 9. We make the following orders; 1. the Respondent is found guilty of professional misconduct under the provisions of the Legal Profession Act 2004 2. the Respondent is reprimanded 3. the Respondent is to pay the costs of the Applicant in an amount assessed in default of agreement.