Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Law Society of New South Wales v Mulock [2018] NSWCATOD 147 Hearing dates: 20 August 2018 Date of orders: 28 August 2018 Decision date: 28 August 2018 Jurisdiction: Occupational Division Before: C Ludlow, Senior Member M Sindler, Senior Member B Thomson, General Member Decision: 1. The Tribunal finds that the respondent is guilty of professional misconduct. 2. The Tribunal orders that: (a) the respondent be reprimanded; and (b) the respondent pay the costs of the applicant as agreed or assessed. Catchwords: PROFESSIONS AND TRADES - lawyers – practising law without a practising certificate – failure to obtain professional indemnity insurance – conduct admitted – professional misconduct - mitigating circumstances – consent orders. Legislation Cited: Legal Profession Uniform Law Application Act 2014 (NSW) Legal Profession Uniform Law (NSW) Cases Cited: Mee Ling v The Law Society of NSW [1974] 1 NSWLR 490 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Mark Joseph Mulock (Respondent) Representation: Counsel: Mr C Flax (Applicant) Mr M Higgins (Respondent) Solicitors: Law Society of NSW (Applicant) Self-represented Respondent File Number(s): 2018/00104543 REASONS FOR DECISION Background 1. The Council of the Law Society of New South Wales has applied for a disciplinary finding of professional misconduct in respect of the respondent solicitor and seeks orders that he be reprimanded and pay the costs of the Society as agreed or assessed. 2. By an instrument of consent filed on 16 August 2018, the respondent consents to the making of that finding and those orders by this Tribunal. 3. Section 144 of the Legal Profession Uniform Law Application Act 2014 ("the Application Act") provides for this Tribunal, in dealing with disciplinary applications under the Legal Profession Uniform Law (NSW) ("the Uniform Law"), to make orders without a hearing in relation to a complaint, with the consent of the respondent lawyer. It states: "144 Consent orders (1) The Tribunal may, with the consent of the respondent lawyer contained in a written instrument, make orders without conducting or completing a hearing in relation to the complaint. (2) Consent may be given before or after the proceedings were initiated in the Tribunal with respect to the complaint. (3) If consent is given before the proceedings were initiated, an investigation of the complaint (whether commenced or not) may be dispensed with, and any investigation of the complaint already being conducted may be suspended or terminated. (4) This section does not apply to consent given by the respondent lawyer unless the lawyer and the NSW Commissioner have agreed on the terms of an instrument of consent. (5) Without limiting what may be included in the instrument of consent, the instrument is to contain an agreed statement of facts (including as to the grounds of complaint) and may contain undertakings on the part of the respondent lawyer. (6) The instrument of consent must be filed with the Tribunal. (7) Nothing in this section affects the procedures regarding the initiation of proceedings in the Tribunal where consent was given before the proceedings are initiated. (8) If consent was given before the proceedings are initiated, the proceedings are nevertheless to be initiated with respect to the complaint in the same way as if the consent had not yet been given. (9) The Tribunal is to be constituted in the same way as for the conduct of a hearing into the complaint. (10) In deciding whether to make orders pursuant to an instrument of consent, the Tribunal may make such inquiries of the parties as it thinks fit and may, despite any such consent, conduct or complete a hearing in relation to the complaint if it considers it to be in the public interest to do so." 1. The matter came before us on 20 August 2018. Following a short hearing we made findings and orders and now set out our reasons. 2. The instrument of consent set out the following Agreed Facts. "1. The Solicitor was admitted in New South Wales on 10 July 1981. 2. Relevantly, between 1 July 2013 and 30 June 2016 the Solicitor was the principal of the Law Practice. During that period the Solicitor was the holder of a practising certificate in NSW and held professional indemnity insurance. 3. As at 1 July 2016, Section 45 of the Uniform Law provide that the designated local regulatory authority (i.e. the Society) may grant or renew an Australian practising certificate only if (emphasis added) it was satisfied that the applicant – (a) is an Australian lawyer; and (b) if required by this Law to have professional indemnity insurance – has, or will have on or before the grant or renewal, professional indemnity insurance in accordance with this Law and the Uniform Rules; and (c) has indicated in the application that he or she does not hold ( and he or she does not have a current application for) another Australian practising certificate that would be in force concurrently with the certificate whose grant or renewal is sought under this section." 4. As at 1 July 2016, Rule 17 provided that: (1) An Australian practising certificate is in force: (a) if granted, from the commencement date specified in it until the following 30 June, or (b) if renewed, from the date of its renewal until the following 30 June, unless the certificate is earlier suspended, cancelled or surrendered. (2) However, if an application for the renewal of an Australian practising certificate has been properly made to the designated local regulatory authority before its expiry but the authority has not determined the application by the following 1 July, the certificate is taken to continue in force on and from that 1 July until whichever of the following first occurs: (a) the authority renews or refuses to renew the certificate, (b) the holder withdraws the application for renewal, Unless the certificate is earlier suspended, cancelled or surrendered." 6. On 23 June 2016, the Society sent the Solicitor a letter reminding him that he had not yet applied to renew his practising certificate. 7. The Solicitor failed to renew his practising certificate prior to 30 June 2016. Consequently, he ceased to hold a practising certificate on and from 1 July 2016. 8. During the period 1 July 2016 to 1 August 2017, the Solicitor conducted a legal practice and carried out legal work for clients. 9. On 7 July 2016, the Society sent a further letter to the Solicitor confirming that the Solicitor had ceased to hold a practising certificate. 10. On 13 July 2016, the Solicitor applied for the grant of a practising certificate for the practising certificate year commencing 1 July 2016. At that time, the Solicitor did not continue to hold a practising certificate by virtue of Rule 17 because he had not applied for practising certificate before 30 June 2016. 11. During the period 13 July 2016 to 30 June 2017, the Solicitor did not have in force a policy of professional indemnity insurance for the period 1 July 2016 to 30 June 2017. As a consequence, no practising certificate was issued to the Solicitor for the practising certificate year commencing 1 July 2016. 12. By letter dated 19 July 2017, the Solicitor wrote to the Society therein setting out his apparent difficulties with obtaining a professional indemnity insurance policy with LawCover. 13. On 2 August 2017, the Council of the Law Society appointed Mr John Rudolph De Mattia, as Manager of the Law Practice. 14. On 2 August 2017, the Society received from the Solicitor an application for a practising certificate for the practising certificate year commencing 1 July 2017. 15. On 16 August 2017, the Solicitor obtained from LawCover a professional indemnity insurance policy for the period 1 July 2016 to 30 June 2017 inclusive. 16. On 22 August 2017, the Solicitor was issued with a practising certificate for the practising certificate year commencing 1 July 2017. 17. In the circumstances referred to in paragraphs 1 to 16 above, during the period 1 July 2016 to 1 August 2017, the Solicitor engaged in legal practice without: a. holding a practising certificate, and b. holding or being covered by a policy of professional indemnity insurance that covered that legal practice." 1. Affidavits of Louis William Pierotti, the Solicitor for the Council of the Law Society, and Terrie Maree Gibson, Head of Licensing for the Law Society, were in evidence. 2. Also in evidence was a letter from the Legal Services Commissioner, dated 13 August 2018. The applicant had sought the Commissioner's view concerning the terms of the Instrument of Consent. The Commissioner's letter stated in part: "Whilst there is objective seriousness of the 2 grounds of the Application, I agree that there are some notable mitigating factors. These mitigating factors are summarised as follows: Circumstances of conduct • Conduct occurred in respect of one event and was not a repetitive course of conduct. • Conduct occurred due to a failure to properly monitor his practice obligations and was not carried out with the intent to mislead or deceive. • The Lawyer unreservedly accepted responsibility for the fact the conduct occurred due to a failure on his part to effect professional indemnity insurance with LawCover. Co-operation with investigation of the Law Society of NSW • Full and frank admissions as to conduct to the Law Society of NSW • The Lawyer co-operated with the appointment of the Manager and with the Law Society's investigation. • Repeated acknowledgement of the seriousness of the conduct and that it was behaviour inconsistent with the ethical principles to which a Lawyer is bound. • Assertion that the conduct resulted from an administrative error and apparent issues with the processing, assessment and payment of the Law Cover premium and was not a deliberate act nor intended to deceive. • Undertaking that it will not happen again. • The Lawyer provided an apology and appeared to show remorse and contrition in regard to his conduct. Disciplinary history • No prior adverse disciplinary findings – held a practising certificate for around 36 years. Personal circumstances • Long standing family tradition of service to and charitable support within the local Penrith community. • Period of challenging personal circumstances involving marital issues. … In my view, the proposed orders sought are sufficient to protect the public. It can be accepted, based on the Lawyer's conduct during the Law Society's investigation, content of the Lawyer's response, and submissions, that this conduct is most unlikely to be repeated." 1. Annexed to Mr Pierotti's affidavit was a submission on behalf of the respondent dated 15 August 2017. By way of that submission the respondent unreservedly accepted the blame and responsibility for the failure to effect his professional indemnity insurance and continuing to practise for a period thereafter. 2. While there was no direct evidence from the respondent, it was evident that the Council's Professional Conduct Committee considered the applicant's submission in its determination as to the orders to be sought, which are those sought in the Instrument of Consent. The submission stated that the respondent's office manager had ceased her employment with his practice in November 2016. The respondent had previously delegated all administrative tasks to his office manager. While he discovered in December 2016 that his insurance had not been paid and also that his practising certificate had not been renewed, he delayed acting on this until about the middle of February the following year, partly due to the time of year and feeling "overwhelmed" with various pressures, but also partly due to marital issues which occupied his attention. 3. A delay of some months followed before the situation was rectified, although the respondent contacted LawCover and applied to renew his practising certificate. As noted in the Agreed Facts, there were difficulties in obtaining the required policy. According to the evidence of Ms Gibson, no practising certificate could be issued until he had the benefit of the policy. It was not until July that he sought legal advice and steps were taken to appoint a manager to the practice. 4. It was stated in Mr Pierotti's affidavit that the applicant had previously been late on two occasions with the payment of his insurance, but the applicant was unable to clarify what was meant by "late" and did not allege any previous instance of similar conduct. There was no evidence that any client had been put at risk by the respondent's conduct. 5. The applicant relied on the authority of the decision of the Court of Appeal in Mee Ling v the Law Society of NSW [1974] 1 NSWLR 490 which held that practising without a practising certificate amounted to professional misconduct. 6. Professional misconduct is defined in s 297(1) of the Uniform Law as follows: "(1) For the purposes of this Law, professional misconduct includes— (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice." 1. Unsatisfactory professional conduct is defined in s 296 as including "conduct of a lawyer 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 lawyer". 2. We are satisfied that the conduct which the respondent has admitted, amounts to professional misconduct for the following reasons: 1. The period during which the respondent continued to practice without either a practising certificate or professional indemnity insurance was just over thirteen months. 2. The conduct shows a lack of regard for the purpose of the requirement for a practising certificate and professional indemnity insurance, which is to protect clients of law practices and the public. 1. In our view the respondent's conduct over the period amounted to unsatisfactory professional conduct in connection with his legal practice which involved a substantial failure to maintain a reasonable standard of competence and diligence. We therefore find that the respondent is guilty of professional misconduct. 2. We note the respondent's admissions, his co-operation with the investigation and manager, his previous unblemished record, his standing in the community and among his fellow practitioners and the difficult circumstances which contributed to the conduct. 3. For these reasons we are satisfied that the orders sought in the Instrument of Consent are appropriate. 4. Orders 1. The Tribunal finds that the respondent is guilty of professional misconduct. 2. The Tribunal orders that: 1. the respondent be reprimanded; and 2. the respondent pay the costs of the applicant as agreed or 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: 28 August 2018