Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v King [2018] NSWCATOD 157 Hearing dates: 7 September 2018 Date of orders: 19 September 2018 Decision date: 19 September 2018 Jurisdiction: Occupational Division Before: The Hon F Marks, Principal Member P Moran, Senior Member E Hayes, General Member Decision: (1) The name of Denise Elizabeth King is removed from the local roll (2) The respondent is to pay the costs of the applicant in an amount assessed in default of agreement (3) We grant liberty to apply to the applicant with respect to any claim for compensation which must be exercised within two months of this date. Catchwords: Legal practitioner – allegation of inappropriate and derogatory communication concerning client with Judicial Officer-improperly demanding immediate payment of invoices whilst threatening legal proceedings - held in the aggregate constitutes professional misconduct justifying removal of the name of the Respondent from the local roll of solicitors - failure to make timely cost disclosure - held to constitute unsatisfactory professional conduct - costs order made Legislation Cited: Legal Profession Act 2004 Guardianship and Administration Act 1986 (Vic). Evidence Act. Family Law Act (C'wlth) Civil and Administrative Tribunal Act Cases Cited: Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Denise Elizabeth King (Respondent) Representation: L Pierotti Solicitor (Applicant) D King (Respondent in person) File Number(s): 2016/00378651 Publication restriction: Non-publication order extending to the name of any person who was a client of the respondent, the name of any member of the family of any such client and any information which might tend to identify any such persons reasons for decision Background 1. These proceedings are constituted by an Application for Disciplinary Findings and Orders brought by the applicant Council of the Law Society of New South Wales seeking certain disciplinary orders against the respondent solicitor Denise Elizabeth King based on allegations of professional misconduct and unsatisfactory professional conduct. 2. The respondent formerly carried on a practice as a solicitor in a regional area in New South Wales. At the time that these proceedings commenced the respondent resided in New South Wales, and the Application was served on her in New South Wales. The respondent now resides in Victoria, and no longer practices as a solicitor for reasons unassociated with these proceedings. State Trustees Ltd which carries on business in the State of Victoria was appointed as the administrator of the estate of the respondent on 8 September 2017 pursuant to Part 5 or Part 5A of the Guardianship and Administration Act 1986 (Vic). The administrator has informed this Tribunal that the respondent would not be represented in these proceedings, and they were conducted ex parte. The complaints 1. By reason of the time when the alleged misconduct occurred, the applicant asserts, and we accept, that these proceedings are governed by the provisions of the Legal Profession Act 2004 ("the Act"). 2. The applicant alleges that the respondent acted against the interests of a client in forwarding a letter dated 3 October 2012 to the Associate of a Judicial Officer who was presiding over proceedings in which her client was a party. It is further alleged that the contents of that letter and of an email communication forwarded by the respondent to the Associate on the same day contained comments which were derogatory of the client and a partner of the client. The applicant also alleges that the respondent breached client confidentiality in making these communications. 3. The applicant also alleges that the respondent engaged in threatening behaviour by improperly demanding immediate payment of invoices and making repeated threats to institute proceedings for defamation if her account was not paid immediately. 4. The applicant asserts that the respondent was guilty of professional misconduct as defined in the Act by reason of the matters set out in [4] and [5] above. 5. In addition, the applicant asserts that the respondent was guilty of unsatisfactory professional conduct as defined in the Act by failing to make a timely costs disclosure. The evidence in the proceedings 1. As we have indicated, the proceedings were conducted on an ex parte basis and it was necessary for the applicant to prove all of the factual matters which supported the allegations of misconduct. The principal evidentiary basis of the proceedings was an affidavit of the solicitor for the applicant, A-M Foord which exhibited a large volume of documentation, principally consisting of copies of emails and letters in which the respondent participated, either by way of sender or receiver. Furthermore, the respondent filed a Reply document which made a number of admissions which we have taken into account in considering the evidentiary material. 2. The narration which follows is based on the material which we have admitted into evidence, conscious that we are bound by the provisions of the Evidence Act. 3. The respondent was retained by a client in January 2012 to represent her in proceedings brought under the Family Law Act (C'wlth) which concerned parenting arrangements for her daughter. The client wished to travel overseas for an extended period with her then partner, who was not the father of the child and take her daughter with her. Following an unsuccessful mediation, proceedings were commenced in the then Federal Magistrates Court and the respondent attended to the preparation of the client's case. There were discussions with the client in May 2012 because the client was becoming concerned about the amount of costs being incurred. On 26 May 2012 the respondent forwarded a costs agreement to the client stating that it should have been provided to her earlier. 4. Subsequently, negotiations with the father of the child culminated in an agreement allowing the client to take the child overseas for a period of eight months in 2013. On 22 September 2012 the respondent forwarded copies of agreed Terms of Agreement signed by the parties seeking the making of consent orders. The Court then conducted a telephone conference with the parties on 27 September 2012. The presiding Judicial Officer asked the father whether he wished the child to be placed back on the Airport Watch List and the father replied in the affirmative, despite the respondent wishing to make submissions to the contrary. The Judicial Officer then dictated the final orders that he proposed to make over the telephone. As it happened, the dates which were specified in the final orders were incorrect, and if complied with represented a period of less than the agreed period of eight months. 5. The mistaken dates were identified by the client. The respondent sought to change the dates, but the father refused to accept the change. Then followed a series of communications and negotiations between the respondent, the father of the child and her client. 6. On 28 September 2012 the respondent forwarded an account in the sum of $1330 for work performed in the previous week and requested immediate payment. The respondent had previously given her client an estimate of about $285 for her to draft the orders and have them signed by the Judicial Officer if they were to be made in chambers. 7. On the evening of 28 September 2012 the partner of the client forwarded an email indicating that he had spoken to the father and had resolved the matter. He referred also to the form of the Consent Orders which the respondent had forwarded to the parties, which he said contained mistakes. The email communication contained a number of allegations critical of the work performed by the respondent for her client. He asked that the respondent amend the document and send it to the father. He said he would look at her invoice "but not before you do your job properly." 8. The Consent Orders which the applicant said the respondent forwarded to her client and to the father of the child are in evidence. It is clear that they contain errors. An examination of the documents indicates that they were produced from software utilised by a provider of legal forms and appear to have been copied from a form which had been produced by another firm of solicitors. Whilst the documents referred to the client and the father by name they also contain other names which had not been deleted when the author had obviously sought to use the form as a precedent. There is reference to the names of persons as applicant and respondent who were not the parties to these proceedings, and there is also a reference to other parties, including "Homer Simpson." 9. The respondent next forwarded an email to her client at 10:54 AM on 3 October 2012. She pointed out that it was not necessary to obtain the signatures of the parties to the Orders, and it was only necessary that they be signed by the Judicial Officer. She then asked for "immediate payment" of her invoice and said that she would send a copy of the sealed orders after she had received payment of her account. 10. At 11:12 AM that day the client responded by complaining about the manner in which her case had been handled, particularly in creating a document with false names on it, and requiring signatures of the parties when this was not necessary. The client indicated that she had been in touch directly with the Judicial Officer and the father in order to have the matter resolved. She said that she did not wish the respondent to perform any further work for her, that she would not pay her outstanding charges and that she would be "taking this matter further." 11. The respondent replied by email at 11:26 AM that day. She said that she had made only one mistake, which was to seek the signatures of parties to the consent orders. She asserted that she had represented the interests of the client appropriately and had saved her costs. She threatened to commence debt recovery proceedings. At 1:30 AM that day the client responded saying that the matter had been taken care of, that she would not be proceeding and that she had "already explained this to the associate of (the Judicial Officer)". She then said "Please stop this now, it is unwarranted!" 12. At 12:20 PM on 3 October 2012 the respondent forwarded an email communication to the associate to the Judicial Officer. In that email the respondent referred to "defamatory allegations" which had been made to her by email, presumably from her client, and that those allegations had been communicated to the Judicial Officer. She then referred to the problems in reproducing the orders made in Chambers because of the mistaken dates. She denied that she had forwarded any document containing a reference to Homer Simpson whom she then understood to be a cartoon character. She said that the document could only have been generated by the father "in order to cause mischief and/or my client to avoid payment." The respondent then went on to refer to allegations made by her client that she had made excessive charges for her work, and denied this. After further detailed discussion of the events surrounding the contents of the consent orders which she had reproduced, the respondent said that it was "important that HIs Honour and the Court are informed of the defamatory and outrageous allegations that have been made against me." She referred to her experience conducting family law work, her qualifications and denied that she would ever act in the manner complained of by her client. 13. At 12:25 PM that day the respondent forwarded an email to her client expressing disbelief that there was a reference to Homer Simpson in the consent orders which she had forwarded to her, forwarding an amended account deleting reference to certain email communications but adding reference to additional communications concerning the false allegations and asking for immediate payment "or I will commence debt recovery and proceedings against you for defamation." The respondent forwarded a further brief email to her client to similar effect at 2:27 PM 14. At 2:35 PM the client replied by email asking the respondent to stop harassing her. At 2:41 PM the respondent replied to the effect that she was instructing a lawyer to commence defamation proceedings against the client and asking for immediate payment of her account. 15. At 5:40 PM the respondent sent an email to her client accusing her of "telling lies" and stating that she could not contact the Judicial Officer or his associate for any reason. She then said, significantly, "I am inclined to ask the (Judicial Officer) to reconsider allowing you to go to the UK for eight months because of the way you are behaving and will do so tomorrow." 16. The respondent forwarded a letter dated 3 October 2012 to the Associate of the Judicial Officer in which she referred to the difficulties that she was experiencing with her client and the father, and, significantly, stating; I believe that it may be appropriate for His Honour to reconsider the orders he has made in the light of deception of my former client (with a reference to her name) who clearly cannot be trusted. A copy of that letter was forwarded to the client by email. The response of the respondent to the complaints 1. The catalyst for these proceedings is a complaint made by the former client of the respondent to the Legal Services Commissioner concerning her conduct, who then referred it to the applicant as is permissible under the Act. There is in evidence a letter written by the respondent to the Professional Standards Committee of the applicant dated 21 November 2012. We should immediately state that the respondent has, in the Reply which she has filed to the Application vehemently denied reproducing the document allegedly containing the names of other parties including Homer Simpson, and a reference to a legal software company and another firm of solicitors. 2. However, that letter did refer specifically to the allegation that the respondent had made inappropriate comments to the Judicial Officer. In that letter the respondent said; A solicitor's first duty is to the Court. It was my duty to the Court to inform His Honour of the false allegations about me that showed my client was not honest. Considering the extent (the client) and (her partner) have gone to in accusing me of having provided the ridiculous orders that an untrained teenager would not have done and then allegedly informing court staff, the Associate and His Honour, indicated that (the client) could not be trusted to comply with the orders that His Honour had dictated and I had typed. In fact, from my observation, it was because (the client) did not want to comply with an order that her child be placed back on the Watch List when she returned from England that (her partner) then allegedly spoke with the father (by his name) and they came to an agreement to sort things out themselves of which they allegedly informed His Honour. 1. The letter then went on to refer to other conduct of the parties of which the respondent did not approve. 2. Significantly, the respondent attached to that letter copies of the documentation containing the Minutes of Orders which she said reflected the orders made by the Judicial Officer and which she had forwarded to his Associate. Those documents are in normal form and contain no reference to other parties, including Homer Simpson, and no reference to the legal software company or another firm of solicitors. 3. In a letter dated 18 June 2015 addressed to the President of the applicant, the respondent said that "in hindsight…… I could have written a more objective letter to the court. However, at the time, I was in shock and emotionally distressed that the client would turn against me in this manner when she had previously been happy with my service and expressed this in her earlier emails contained in the file provided to the Professional Conduct Committee. I was also suffering the stress of significant pain due to surgery that following on 3 December 2012, and moving house and these allegations increased that stress significantly." 4. In her Reply document filed in this Tribunal, the respondent either denied or did not admit all of the grounds contained within the complaints set out in the Application. Factual findings 1. We should state at the outset that we are not persuaded to the Briginshaw standard that the documents which the client alleges were created by the respondent containing references to other parties including Homer Simpson were in fact created by her. This is a matter which is relevant when evaluating the overall conduct of the respondent in the context of characterising her conduct in terms of whether it constitutes professional misconduct as alleged by the applicant. 2. However, we are comfortably satisfied consistent with the Briginshaw principle that the respondent wrote the email and the letter both dated 3 October 2012 to the associate to the Judicial Officer who had the conduct of the proceedings in which the client was involved and in which she made derogatory comments about her client and the father of the child. As is patently clear from the contents of these communications the respondent disclosed information of a confidential kind and which was prima facie the subject of legal professional privilege to the presiding Judicial Officer. Furthermore, the respondent suggested, contrary to the interests of her then former client that the Judicial Officer should reconsider the orders made alleging that her client had engaged in deception and that she "clearly cannot be trusted." 3. It should be remembered that this suggestion was made by the respondent in the context of a delicate matter involving the grant of permission by the Court for a parent to remove a child from the jurisdiction of the Court for a prolonged period. It is common knowledge that these are serious matters and must be carefully evaluated by the Court. Furthermore, as the respondent well knew, there had been great difficulty in obtaining the eventual consent of the father to the arrangements which the client sought. In these circumstances, the allegations made by the respondent about her client were of the most serious kind. The only justification made by the respondent for making these allegations was the personal difficulties which she had encountered in dealing with her client. Whilst the respondent clearly maintained that she had done nothing wrong other than become engaged in resolving time restrictions with respect to the absence of the child from Australia, and was clearly angry with her client and her client's partner, viewed objectively there must be serious doubt whether this constituted deceit and a lack of trust which would somehow impact upon the validity of the decision to make orders permitting the client to take the child out of Australia. The behaviour of the client and her partner about which the respondent complained was solely directed to the respondent's relationship with them. Certainly, their attitude with respect to the payment of the costs does not constitute deception and lack of trust which would militate towards a review of the Court Orders. 4. We are also satisfied to the Briginshaw standard that the respondent did engage in threatening behaviour by improperly demanding immediate payment of her invoices, and by making repeated threats to institute proceedings for defamation if the account was not paid immediately. We regard this as a serious matter, but of lesser severity than the allegations made about her client to the presiding Judicial Officer. 5. Finally, we are also satisfied to the Briginshaw standard that the respondent did not make a costs disclosure as required by section 309 of the Act. By section 311, such disclosure must be made in writing as soon as practicable after the solicitor is retained by the client. On the evidence, the respondent conceded in her email communication of 26 May 2012 which attached a costs agreement that she had failed to do so previously. On the evidence, the respondent commenced conducting this legal work for the client in February 2012. Professional misconduct – relevant principles and consideration 1. The applicant sought a finding that the conduct which we have found proven should be characterised as professional misconduct for the purpose of the Act. Professional misconduct is defined in section 497 as follows; 497 Professional misconduct (1) For the purposes of this Act: professional misconduct includes: (a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and (b) conduct of an Australian legal practitioner 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 practitioner is not a fit and proper person to engage in legal practice. (2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters. 1. This definition makes reference to unsatisfactory professional conduct which is in turn defined in the Act in section 496 in the following terms; 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. For completeness we also set out the provisions of section 498 which are as follows; 498 Conduct capable of being unsatisfactory professional conduct or professional misconduct (1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct: (a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules, (b) charging of excessive legal costs in connection with the practice of law, (c) conduct in respect of which there is a conviction for: (i) a serious offence, or (ii) a tax offence, or (iii) an offence involving dishonesty, (d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration, (e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth, (f) conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice), (g) conduct of an Australian legal practitioner in failing to comply with an order of the Disciplinary Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law), (h) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law. (2) Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention. 1. Whether or not a legal practitioner is guilty of misconduct being either unsatisfactory professional conduct or the more serious professional misconduct involves the exercise of a value judgement taking into account the statutory definitions, what is conveyed by them and all the circumstances that pertain to the relevant conduct. 2. The relevant standards have been described at appellate level on many occasions. There is no one universal description which will accommodate all circumstances. However there are observations of Sackville AJA (Ward and Gleeson JJA agreeing) in the NSW Court of Appeal in Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 which are of assistance. His Honour said (at [103] and following); That professional misconduct is not confined in the manner suggested by the Solicitor is not surprising once regard is paid to the interests that must be protected. Spigelman CJ in New South Wales Bar Association v Cummins[79] identified four interrelated interests involved in the regulation of the conduct of legal practitioners:[80] "Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people." Spigelman CJ also quoted the well-known observation of Kitto J in Ziems v The Prothonotory of the Supreme Court of New South Wales:[81] "... the Bar is no ordinary profession or occupation. These are not empty words, nor is it their purpose to express or encourage professional pretensions. They should be understood as a reminder that a barrister is more than his client's confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations. If a barrister is found to be, for any reason, an unsuitable person to share in the enjoyment of those privileges and in the effective discharge of those responsibilities, he is not a fit and proper person to remain at the Bar." While both Cummins and Ziems involved the conduct of barristers, the observations in those cases apply with equal force to the conduct of a solicitor appearing as an advocate on behalf of a client in judicial proceedings. The concept of "professional misconduct" as applied to solicitors must also be informed by the Solicitors Rules in force at any given time. As has been seen, the "fundamental ethical duties" of solicitors laid down in the 2013 Rules include a requirement that solicitors be "courteous in all dealings in the course of legal practice".[82] In addition, a solicitor is not to engage in conduct which is likely in a material degree to diminish the public confidence in the administration of justice or bring the profession into disrepute, even if the solicitor has not acted dishonestly or in a manner that necessarily infringes "precepts of fair dealing".[83]These rules indicate that a private communication between a solicitor-advocate and a Judge who has heard a case in which the solicitor has appeared may constitute professional misconduct. This may be the case, for example, if the solicitor makes unsubstantiated allegations of bad faith and dishonesty against a presiding Judge arising out of proceedings in which the solicitor has been involved. The authorities recognise that offensive and derogatory comments by a solicitor may amount to professional misconduct. In Ellis v Law Society,[84] a solicitor conducted "inappropriate, offensive and derogatory correspondence directed to and about the Law Society, [a litigant], members of the judiciary and others". Leveson LJ, with whom Lloyd Jones J agreed, dealt with the allegations as follows:[85] "32 ...I find these [allegations] more difficult because, at least in relation to the Law Society and the judiciary, it is necessary to approach the matter on the basis that a solicitor is entitled to hold strong views, however unpalatable others might find them to be, and furthermore, the officials of the former and members of the latter must be and are equally robust in being able to ignore observations of an intemperate or even abusive nature. Disciplinary action of the type taken in this case should not normally follow for this reason alone... 33 I recognise, however, that there must be a line beyond which such proceedings are justifiable and, perhaps, inevitable. It is trite to say that each case must depend on its own facts but the test might well be whether the level of abuse and obsession permeates the solicitor's approach to the real detriment of his client. After all, the reputation and integrity of the profession is essential to maintain public confidence in its ability to act in the very best interests of each client to the highest professional standard without being affected by extraneous issues."[86] (Citations Omitted) 1. Griffin Concerned circumstances where a solicitor had written to a Judicial Officer concerning a case in which the solicitor was involved and over which the Judicial Officer presided making scathing and inappropriate comments. Whilst the circumstances are relevantly different from those which apply in the context of these proceedings, nevertheless the extract which we have set out above is indicative of the necessity for solicitors to comply with their fundamental ethical duties to a client, and the expectations of clients that they will do so. We should add that although those proceedings involved a form of the Solicitors Rules which would not necessarily apply to these proceedings, nevertheless we regard their contents as reflecting the standards expected of a solicitor for the purpose of sections 497 and 496 of the Legal Profession Act. 2. It is appropriate to commence our consideration of this matter by reference to the circumstances of the proceedings. The client was involved in sensitive negotiations to enable her to remove her child from Australia for an extended period. It is only necessary to state the circumstances to appreciate the profound responsibility which falls upon a presiding Judicial Officer charged with the determination of what are the appropriate orders to be made. It is obvious that such a determination will involve a consideration of the integrity, honesty and responsibility of a parent enabled to remove a child from the jurisdiction of the Court. We next consider the circumstances of the client. She was entitled to have professional legal privilege applied to all of her dealings with her solicitor. (There are exceptions, but they do not apply in the circumstances of these proceedings). The client was entitled to rely on her solicitor in all the solicitor's dealings with the Court to represent her interests to the best of her ability and in conformity with standards of practice which apply to solicitors. Included within these standards of practice is such communication of information and material to a Court which will advance her case. Included also within these standards should be an expectation that a solicitor will refrain from communicating information and material to the Court which it is inappropriate to do so. 3. These expectations which are set by reference to expected standards of practice which a client is legitimately entitled to have are measured against the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. 4. In the context of appropriate and proper communication of information and material to a Court, a solicitor is obliged to conform with certain well-known conduct rules. For example, where a solicitor is provided with information by a client or witness called on behalf of the client which the solicitor later learns is false and this occurs during a hearing, whilst a decision is reserved and pending or after judgement must advise the client that the court should be informed of the falsity and ask the authority of the client to inform the court. The solicitor must refuse to take any further part in the proceedings unless authorised by the client to inform the court of the falsity. However, the solicitor may not inform the court about such a matter unless authorised to do so by the client. There are obviously a number of matters which would need to be considered in this context, depending upon the complexity of the situation. However, we point to this standard in a general manner to highlight the restrictions on making communications to a court concerning a client which are imposed on a solicitor. There are limited circumstances in which information of a kind which is detrimental to a client might be communicated to a court, but these are exceptional and do not impact upon our consideration of the circumstances of these proceedings. 5. In our opinion the information conveyed by the respondent to the Judicial Officer with respect to her client in all the circumstances as we have described them constitutes a failure by the respondent to maintain the reasonable standard of competence and diligence a member of the public is entitled to expect of a reasonably competent solicitor. It is also conduct that in our view justifies a finding that the respondent is not a fit and proper person to engage in legal practice. The communications in question clearly demonstrate unsatisfactory professional conduct. Furthermore, we regard the failure as being substantial, and therefore, constituting professional misconduct. 6. Perhaps the respondent would have argued if she had been able to participate in the proceedings that what she did was undertaken in the heat of the moment in circumstances where she was confronted with a client who had become increasingly difficult to deal with, who made allegations about documentation which she had prepared which she vehemently denied and was intent on refusing to pay her account. Furthermore, all of this occurred in the context of a threat by the client, which she later carried out, to make a complaint about the respondent. In addition, it is clear that the respondent was concerned that the Judicial Officer might also make a complaint about her. Of course, any circumstances of this kind might arguably impact upon the continuing relationship between the Judicial Officer and the respondent who may be assumed to have presided over other proceedings in which her clients were involved. 7. We have a degree of sympathy for the respondent in terms of the circumstances in which she found herself. However, such sympathy evaporates when considered against the nature and extent of the communications made by the respondent to the Judicial Officer. They demonstrate that the respondent had no or insufficient insight into the appropriate boundaries which apply when communicating information or material about clients to a court. The public is entitled to assume that solicitors will maintain appropriate standards of conduct even in stressful circumstances, whether the stress is felt by the solicitor or by the client. Such explanation as is available as to why the respondent engaged in this misconduct cannot condone that conduct. 8. To some extent the threatening behaviour engaged in by the respondent when demanding immediate payment of the costs and threatening to institute proceedings for defamation fall within the same rubric as that which we have referred above, and superficially might attract more sympathy when assessing whether it constitutes professional misconduct. On balance, whilst we appreciate that the respondent was emotionally distressed in the course of her confrontation with her client and her client's partner, and having regard to her fear that the presiding Judicial Officer had received adverse comments about her from her client, again, we would anticipate that the public would expect a solicitor to continue to act in a rational, sensible fashion even when confronted with an emotionally concerning situation. We find that this behaviour, when aggregated with the behaviour involving the communications with the Judicial Officer constitute professional misconduct. 9. The matters concerning the failure to make a costs disclosure, although significant do not assume the same seriousness as applies to the other matters. We find that they constitute unsatisfactory professional conduct. Protective orders 1. Having found the respondent guilty of professional misconduct, we are empowered under the Act to order inter-alia that her name be removed from the local roll pursuant to the provisions of section 562(2)(a) of the Act. Protective orders are imposed for the protection of the public, to act as a deterrent to the practitioner involved and to other practitioners and to uphold the integrity of the profession in the eyes of the community. 2. The applicant sought a protective order that the respondent be removed from the roll of solicitors. It is now well settled by authority that such an order is only appropriate if the Tribunal can be satisfied that the solicitor is currently unfit to practice law and is likely to remain unfit to do so in the foreseeable future. 3. This requires us to consider the respondent's fitness to practice law by reference to her misconduct as found by us. Although the respondent said in her letter to the President of the applicant that she wished that she had framed her letter to the Judicial Officer in more moderate language, she has not sought, on the evidence available to us, to excuse that misconduct other than by reference to what she perceived was her duty to the court. As we have observed, the communication which the respondent made to the Judicial Officer was misconceived. There was no real indication that the client had acted with deceit or that she could not be trusted. In addition, and significantly, the respondent intentionally breached her client's entitlement to legal professional privilege. This clearly demonstrates that the respondent is not a fit and proper person to practice law. 4. There is no evidence that the respondent has expressed any insight into the nature and extent of this aspect of her proven misconduct, nor is there any evidence of any expression of contrition or remorse for her misconduct. In the absence of any understanding by the respondent that she had misconducted herself, and that she has expressed contrition and remorse for what occurred it must be assumed that misconduct of this kind might continue into the future. 5. We take the same approach to the threatening manner in which the respondent conducted herself with her client in order to secure immediate payment of the costs. Again, there is no manifestation of insight, contrition or remorse and we must assume that misconduct of this kind might continue into the future. 6. Having regard to these matters, it seems to us that there is no other protective order available in the circumstances of these proceedings than the removal of the name of the respondent from the local roll. We propose to order accordingly. Costs 1. This is a costs jurisdiction and the applicant sought an order for costs in its favour. There are no exceptional circumstances which would justify any contrary order as provided for in Schedule 5 Clause 23(1) of the Civil and Administrative Tribunal Act and we propose to make a costs order accordingly. Claim for compensation 1. In its Application, the applicant sought an order for compensation payable to the client who had initiated the complaint to the Legal Services Commissioner. Mr Pierotti, solicitor who appeared for the applicant informed us that he would obtain instructions from the client as to whether she wished to maintain a claim for compensation. We shall stand over this aspect of the proceedings, but as they were initiated in 2016, it is appropriate that we provide a time limitation for the making of any such claim, and we shall do so. Orders 1. Pursuant to the findings of professional misconduct which we have made, we make the following orders; 1. The name of Denise Elizabeth King is removed from the local roll 2. The respondent is to pay the costs of the applicant in an amount assessed in default of agreement 3. We grant liberty to apply to the applicant with respect to any claim for compensation which must be exercised within two months of this date. ********** 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: 19 September 2018