Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the New South Wales Bar Association v Nagle (No 3) [2019] NSWCATOD 26 Hearing dates: 31 January 2019 Date of orders: 19 February 2019 Decision date: 19 February 2019 Jurisdiction: Occupational Division Before: The Hon F Marks Principal Member R L Hamilton SC Senior Member (Legal) B G Thomson General Member Decision: (1) the respondent is reprimanded (2) the respondent is to pay the applicant's costs as agreed or assessed. (3) the respondent must refrain from taking any action to enforce the fees agreement dated 28 January 2014 with the client. (4) the respondent must refrain from making any claim against the client in respect of fees or disbursements or both arising out of or in connection with the proceedings in the Local Court which are the subject of these proceedings. (5) the Council of the New South Wales Bar Association is to cause within 14 days of this date to be forwarded by email or prepaid post a communication to the client of the respondent, being the client referred to in these proceedings. That communication must advise the client that the Tribunal requires that he inform the Registrar of the Tribunal in writing, with a copy to the respondent at an address nominated in the communication, within a period of 28 days from the date of the communication whether he wishes to make any claim for compensation against the respondent arising out of his engagement of the respondent to represent him in the proceedings before the Local Court, and the details of the amount of the claim and how it is calculated. If the client fails to so inform the Registrar that he wishes to make a claim for compensation and the manner in which the claim is formulated within the time so fixed, or informs the Registrar earlier that he does not wish to make any such claim, the balance of these proceedings will thereby be dismissed administratively. (6) if a claim for compensation is formulated by the client, the respondent is directed to file and serve a reply to that claim within 21 days of receipt, in which event the Tribunal will conduct a Directions Hearing either by way of a formal hearing or a telephone hearing, in its discretion, to fix a timetable for the hearing of the claim for compensation. Catchwords: Legal practitioner-finding of unsatisfactory professional conduct-Instrument of Consent-orders made as sought Legislation Cited: Legal Profession Uniform Law (NSW) 2015 Legal Profession Uniform Law Application Act 2014 Category: Principal judgment Parties: Council of the New South Wales Bar Association (applicant) Peter Richard Nagle (respondent) Representation: Counsel: C A Webster SC and S Palaniappan (applicant) Solicitors: Hicksons (applicant) Respondent self-represented File Number(s): 2017/00271905 Publication restriction: The publication of the name of any client or former client of the respondent or any information which may tend to identify such person is prohibited REASONS FOR DECISION Background 1. These proceedings concern an Application for Disciplinary Findings and Orders filed by the applicant Council of the New South Wales Bar Association seeking findings of misconduct as particularised against the respondent Peter Richard Nagle arising out of his former practice as a barrister. The disposition of these proceedings has been delayed by reason of certain interlocutory matters, and the ill-health of the respondent. 2. In the course of a hearing conducted on 31 January 2019 the Tribunal was notified that the parties had reached an agreement as to the appropriate disposition of the proceedings, and that the Legal Services Commissioner of NSW had acquiesced in the making of orders consequent upon and consistent with the agreement so reached. Although we received affidavit and other documentary material into evidence for the purpose of the hearing, it is only necessary that we refer to it to the extent set out in our reasons below. 3. The proceedings are governed by the provisions of the Legal Profession Uniform Law (NSW) 2015 ("the Uniform Law") which regulates the legal profession within New South Wales. They arise out of the retention of the respondent by one client to represent him as a defendant in certain legal proceedings before a Local Court. We have anonymized these reasons for decision, and we shall hereafter refer to the client as "the client." The complaints made against the respondent 1. The Application as originally filed contained 15 grounds of complaint. As a result of agreement reached between the parties, the applicant has determined not to proceed with some of those grounds, and the respondent has admitted that he is guilty of the complaints set out in the remaining grounds. To this end it is not necessary to set out in full all of the grounds of complaint initially made against the applicant. We shall set out the details of the remaining grounds to which he concedes he is guilty, which can most appropriately be accomplished by replicating an Agreed Statement of Facts handed up during the course of the hearing. In order to set the context for the creation of the agreed factual background, we note that it forms part of an Instrument of Consent filed in these proceedings and created pursuant to section 144 of the Legal Profession Uniform Law Application Act 2014 which is in the following terms; 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. For completeness, we note also the provisions of section 301 of the Uniform Law which is in the following terms; 301 Procedure of designated tribunal (1) Proceedings initiated under this Chapter in the designated tribunal are to be dealt with in accordance with the procedures of the designated tribunal. (2) Subject to any procedural requirements, the designated tribunal may determine proceedings without conducting a formal hearing, but is bound by the rules of procedural fairness. (3) It is intended that jurisdictional legislation may determine whether the designated tribunal is bound by the rules of evidence in conducting a hearing in relation to an allegation of professional misconduct, but the designated tribunal is otherwise not bound by those rules in relation to matters arising under this Chapter. 1. We set out below the document as suitably anonymized. (The references in brackets are to paragraph numbers in the original Application). Background (Application [8-15]) 1. At all material times, the respondent was a lawyer within the meaning of s.261 of the Uniform Law and an Australian legal practitioner within the meaning of s.6 of the Uniform Law. 2. The respondent was admitted to the Roll of Barristers (as it then was) of the Supreme Court of New South Wales on or about 8 May 1981. 3. The respondent was issued with a practising certificate as a barrister in New South Wales on 1 July 1988 when practising certificates were introduced. The respondent held a practising certificate without restriction as follows: 01.07.88 to 30.06.06 24.07.06 to 30.06.07 02.07.07 to 28.01.10 16.07.10 to 30.06.12 03.07.12 to 30.06.13 16.07.13 to 30.06.14 05.09.14 to 30.06.15 07.08.15 to 30.06.16 4. The respondent currently does not hold a practising certificate as a barrister or a solicitor. 5. On or around 28 January 2014, the respondent was engaged by a client on a direct access brief to perform legal services in respect of the proceedings in which the client was a defendant filed in a Local Court on 13 December 2012 ("the Proceedings"). 6. The respondent entered into a costs agreement with the client, dated 28 January 2014 ("Costs Agreement") . 7. The Costs Agreement stated that the agreement constituted "the whole of my disclosure and the whole of my offer." 8. No solicitor was engaged in the matter during the period of the respondent's representation of the client. 9. On or around 9 November 2014, the respondent ceased appearing for and returned his brief to the client. 10. On 9 September 2015, the client made a complaint to the Office of the Legal Services Commissioner ("OLSC") . The complaint was referred to the Council of the New South Wales Bar Association ("Bar Council") ("First Complaint") . On 9 March 2017, Bar Council resolved that three of the grounds of complaint made by the client be the subject of proceedings before the New South Wales Civil and Administrative Tribunal ("the Tribunal") pursuant to s.300 of the Uniform Law. 11. On 23 June 2016, Bar Council resolved to make a complaint against the respondent alleging further matters arising out of the complaint by the client ("Second Complaint"). On 9 March 2017, Bar Council resolved that 10 of the grounds of complaint made by it, be the subject of proceedings before the Tribunal pursuant to s.300 of the Uniform Law. 12. On 27 October 2016, Bar Council resolved to make a further complaint against the respondent concerning his conduct in respect of Bar Council's investigation of the First Complaint ("Third Complaint"). On 9 March 2017, Bar Council resolved that the Third Complaint be the subject of proceedings before the Tribunal pursuant to s.300 of the Uniform Law. Ground 2 (Application [17]) 13. On 24 April 2014, the respondent sent an email to the client requesting that the client deposit $300.00 in the respondent's bank account. The respondent promised to repay the amount to the client by the following Wednesday. 14. On 24 April 2014, the client performed the transaction "Withdrawal – Internet Online Banking ……. Payment Peter Nagle 24-Apr" for $300.00 from his …. Business Cheque Account. 15. In a letter dated 22 February 2016 from the respondent to the Bar Association, the respondent admitted borrowing the money from the client. 16. In a Statutory Declaration made 6 June 2016, the respondent acknowledged borrowing money from the client on at least one occasion. Ground 4 (Application [19]) 17. The Costs Agreement did not contain, and the respondent did not disclose to the client, details required to be disclosed under s. 309 of the Legal Profession Act 2004, which applied as at January 2014, in the case of a direct access retainer between a barrister and a client of the barrister: a. the client's right to negotiate a costs agreement; to receive a bill from the respondent or request an itemised bill; and to be notified of any substantial change to matters disclosed: s. 309(1)(b); b. an estimate of the total legal costs or a range of estimates of the total legal costs and an explanation of the major variables that would affect the calculation of those costs: s. 309(1)(c); c. the avenues open to the client in the event of a dispute regarding costs: section 309(1)(i). Ground 5 (Application [20]) 18. Paragraph 1 of the Costs Agreement stated "…The Legal Profession Act requires me to enter into a "fees agreement" with you in respect of all work to be done by me" . 19. It was not a requirement of the Legal Profession Act 2004 that the respondent enter into a "fees agreement" with the client in respect of all work to be done by the respondent. Ground 6 (Application [21]) 20. The respondent accepted the direct access brief from the client and failed to provide written disclosure to the client of the matters required to be disclosed pursuant to Rule 24B of the New South Wales Barristers' Rules dated 6 January 2014, which applied as at January 2014. That rule required a barrister who proposed to accept instructions directly from a person who was not a solicitor, or officer of a government department or agency whose duties usually include engaging lawyers, to: a. inform the prospective client in writing of: i. the effect of Rules 15 and 17; ii. the fact that circumstances may require the client to retain an iinstructing solicitor at short notice, and possibly during the performance of the work; iii. any other disadvantage which the barrister believes on reasonable grounds may, as a real possibility, be suffered by the client if the client does not retain a solicitor; iv. the relative capacity of the barrister in performing barristers' work to supply the requested facilities or services to the client compared to the capacity of the barrister together with an instructing solicitor to supply them; and v. a fair description of the advocacy experience of the barrister; and b. obtain a written acknowledgement, signed by the prospective client, that he or she has been informed of the matters in (a) above. Ground 7 (Application [22]) 21. The Costs Agreement contained the following clause: "Normal work, including conferences, advices and reading, settling affidavits and pleadings including preparation generally, attending mentions court or directions hearings will be charged at the rate of $350.00 per hour plus GST of $50 per hour" . This rate of GST exceeded the amount of GST that could lawfully be imposed or recovered. 22. The respondent purported to agree to a term of a costs agreement that would enable him to charge the client GST at a higher rate than could lawfully be imposed or recovered. Ground 8 (Application [23]) 23. November 2014, the respondent asked the client for $1,500.00 to be paid in respect of the respondent's fees. 24. On 10 November 2014, the respondent sent an email to the client stating that: a. outstanding fees totalled in excess of $13,200 were owed to the respondent in respect of the respondent's work for the client but offering to settle the fees in dispute for $9,900; and b. "If you do not agree I will give you a Bill of fees in taxable form for all the work I have done to date, which I estimate that memo of fees will be far in excess of $13,200.00 and you can get it taxed in the Supreme court [sic]." 25. On 14 November 2014, the respondent sent an email to the client stating that the respondent would: a. send the client an itemised bill of fees, and that the respondent would be charging the client a further $1000 to appear at a pretrial hearing in the Proceedings on 19 November 2014; b. "tell Magistrate (name omitted) that your case is ready, more than ready, for Trial and on Sunday 9th when you withdrew my instructions after I asked you to pay me $1500.00 on account of outstanding fees you showed your real colours…"; c. agree to continue to represent the client on condition of the client signing a Deed of Agreement including the following clauses: i. Clause 1(i): "(name omitted) acknowledges that he (owes Peter Nagle the sum of $13,300 for the legal wok [sic] that Nagle has done to date in the matter known as (name omitted)"; ii. Clause 1(iv): "Nagle shall accept the sum of $9,900 in full settlement of his fees, including the sum necessary for the hearing on the 21st November, if the client does win the matter". 26. No itemised bill or invoice was provided by the respondent to the client for work in connection with the Proceedings. Ground 9 (Application [24]) 27. On 10 November 2014, the client sent an email to the respondent: a. referring to the respondent's departure from (a named place) on 9 November 2014, and requesting "information from [the respondent] in writing or via email of, what [the respondent's] future and immediate intention and position is in representing [the client] and (a named company) for [the client's] Court Hearing listed at Mudgee on the 21st November 2014?"; 28. On 14 November 2014, the respondent sent an email to the client: a. stating that the respondent would "tell Magistrate (name omitted) that your case is ready, more than ready, for Trial and on Sunday 9th when you withdrew my instructions after I asked you to pay me $1500.00 on account of outstanding fees you showed your real colours…"; and b. providing that the respondent would continue to represent the client on certain conditions. 29. On 18 November 2014, at 3:12pm, the respondent sent an email to (a named local court email address), copying the client but not the respondent's opponent, addressed "Your Honour", and stating "On Sunday at exactly 3:07pm the 9th November 2014 while finalising the preparation for Friday nexst [sic] hearing a discussion ensured [sic] about payment of my outstanding fees. In the argument, my instructions were withdrawn and if not I formed the view that I could not continue in the case…" . Ground 10 (Application [25]) 30. On 18 November 2014, at 3:12pm, the respondent sent an email to the (same local_court_email address) : a. addressed "Your Honour"; b. copying only the client and not the opponent; 31. The matters raised in the 18 November 2014 email from the respondent to (the named magistrate) concerned a dispute between the respondent and the client regarding fees and other confidential matters inappropriate for disclosure in communications with the Court, including the respondent's statements that: a. The client had "no intention of paying me any outstanding fees or any fees at all even when he wins"; and b. The client "accused me of losing his business $15000.00 because of my intermitten [sic] attendances upon his property to discuss and prepare his case." Ground 11 (Application [26]) 32. In the email sent by the respondent on 18 November 2014, at 3:12pm, the respondent stated that the respondent had formed the view that "The client had no intention of paying outstanding fees or any fees at all even if he were to win". 33. On 19 November 2014, in open court before (a named) Magistrate , the respondent : a. stated that the respondent had told the client "Look if you want me to do it, I'll do it but you got to work out you gotta pay me"; b. accused (the) Magistrate of "berating" the respondent; and c. stated that the client was "struggling in his business"; d. indicated that the client would be capable of running the matter himself because it was "not a difficult matter." 1. Having regard to the nature and extent of the allegations contained in the Application as originally formulated, and the nature and extent of the admissions now made by the respondent, we are satisfied that it is appropriate to dispense with a hearing concerning the factual basis for the proceedings and concerning the precise nature of the findings which are particularised in the Instrument of Consent. We note in particular that the process leading up to the agreement reached between the parties has been a lengthy one and one which has involved substantial consideration on the part of both the respondent and the applicant. The proposed consent orders 1. The Instrument of Consent contained a number of submissions in support of consent orders and a number of findings which were proposed by the parties. They are; Submissions and consent 34. The Applicant and the Respondent submit that findings and orders should be made by consent in accordance with the Instrument of Consent which contains this Agreed Statement of Facts. 35. The Respondent consents to the Tribunal making the findings and orders set out in the Instrument of Consent which contains this Agreed Statement of Facts without conducting or completing a hearing in relation to the complaints the subject of these proceedings. 36. In light of this Agreed Statement of Facts and the submissions by each of the parties, the Applicant and the Respondent submit that the public interest is adequately served by the reprimand and the undertaking and that the conduct of a hearing is not required. Respondent's ill health 37. The Respondent suffers from ischaemic heart disease, hypertension and hypercholesterolemia. Over the last two years he has been hospitalised on multiple occasions, most recently from 23 October 2018 to 26 October 2018 following a heart attack. 1. Ground 1 in the Application for Disciplinary Findings and Orders filed 7 September 2017 ("Application") [16] is dismissed. 2. In respect of Ground 2 in the Application [17] the Tribunal finds that the Respondent was guilty of unsatisfactory professional conduct in borrowing money from his client, The client, in April 2014, contrary to Rule 47 of the NSW Barristers' Rules 2014 ("Barristers' Rules") (as they then were). 3. Ground 3 of the Application [18] is dismissed. 4. In respect of Ground 4 in the Application [19] the Tribunal finds that the Respondent was guilty of unsatisfactory professional conduct in that in or about January 2014 the Respondent did not disclose to his client, the client, all the matters required to be disclosed under s.309 of the Legal Profession Act 2004, which applied at the time, in the case of a direct access retainer between a barrister and a client. 5. In respect of Ground 5 in the Application [20] the Tribunal finds that the Respondent was guilty of unsatisfactory professional conduct in stating in his letter dated 28 January 2014 to The client "…the Legal Profession Act requires me to enter into a 'fees agreement' with you in respect of all work to be done by me…" in circumstances where there was no such requirement under the Legal Profession Act 2004. 6. In respect of Ground 6 in the Application [21] the Tribunal finds that the Respondent was guilty of unsatisfactory professional conduct in that in or about 2014 the Respondent failed to provide a disclosure to his client, the client, of the matters required under Rule 24 of the Barristers' Rules in the circumstances of accepting a direct access brief from The client. 7. In respect of Ground 7 in the Application [22] the Tribunal finds that the Respondent was guilty of unsatisfactory professional conduct in that the Respondent proposed and purported to agree to a term of a fees agreement that would enable the Respondent to charge his client, the client, GST at a higher rate than could lawfully be imposed or recovered. 8. In respect of Ground 8 in the Application [23] the Tribunal finds that the Respondent was guilty of unsatisfactory professional conduct in that in or about November 2014 the Respondent made demands for payment of money from his client, the client, otherwise than in accordance with the statutory procedure for giving his client a bill. 9. In respect of Ground 9 in the Application [24] the Tribunal finds that the Respondent was guilty of unsatisfactory professional conduct in that by an email dated 18 November 2014 the Respondent communicated with (a named) Magistrate ex-parte without the knowledge of his client, the client, or the opponent and in that email falsely represented that his instructions had been withdrawn. 10. In respect of Ground 10 in the Application [25] the Tribunal finds that the Respondent was guilty of unsatisfactory professional conduct in that the Respondent communicated with (a named) Magistrate ex-parte by email sent on 18 November 2014 without the knowledge or consent of his client, the client, or the opponent, which email was in fact, and in terms, inappropriate. 11. In respect of Ground 11 in the Application [26] the Tribunal finds that the Respondent was guilty of unsatisfactory professional conduct in that in an email sent to (a named) Magistrate on 18 November 2014 and in open court on 19 November 2014 the Respondent made representations that were disparaging to his client, the client, and detrimental to the client's best interests. 12. Ground 12 in the Application [27] is dismissed. 13. Ground 13 in the Application [28] is dismissed. 14. Ground 14 in the Application [29] is dismissed. 15. In respect of Ground 15 in the Application [30] to [31] the Tribunal finds that the Respondent was guilty of unsatisfactory professional conduct in that in respect of the conduct found in respect of Grounds 2, 4, 5, 6, 7, 8, 9, 10 and 11 in the Application, the Respondent's conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. 16. In respect of the unsatisfactory professional conduct found in respect of Grounds 2, 4, 5, 6, 7, 8, 9, 10, 11 and 15 there be an order reprimanding the Respondent. 17. The Respondent undertakes to the Tribunal and to the Applicant that the Respondent will not at any time in the future do any of the following in any Australian jurisdiction or outside Australia: (a) apply to be admitted to practice as a legal practitioner, including as a barrister, solicitor/barrister or solicitor (or similar title); (b) seek or undertake employment or any other form of engagement, in any capacity, within any legal practice or by any legal practitioner including a barrister, solicitor/barrister or solicitor (or similar title); (c) seek or undertake employment or any other form of engagement with any person or entity in any role that is connected with the provision of legal services; (d) provide or offer to provide any person or entity with legal services or services connected with the provision of legal services. (e) represent that he is a legal practitioner, barrister, solicitor/barrister or solicitor (or similar title). 18. Note that the undertaking given by the Respondent in [17] above does not prevent the Respondent from teaching legal subjects at (a named) University or a similar institution. The Respondent undertakes to the Tribunal and to the Applicant that he will use best endeavours to ensure that any teaching institution with which he is associated does not represent that the Respondent is a legal practitioner, barrister, solicitor/barrister or solicitor (or similar title). 19. The Respondent is to pay the Applicant's costs as agreed or assessed. 20. The matter be listed on a date to be fixed for directions as to further proceedings in relation to the complainant's claim for compensation. 21. Order that the Respondent refrain from taking any action to enforce the fees agreement dated 28 January 2014 with the client. 22. Order that the Respondent refrain from making any claim against the client in respect of fees or disbursements or both arising out of or in connection with (the named matter involving the client). 1. As noted above the paragraph numbers referred to in the body of the Instrument of Consent are a reference to the corresponding paragraphs contained within the original Application filed in the Tribunal. We have not reproduced those paragraphs or the omitted parts of the Application because we have determined to make orders which reflect the consent position adopted by the parties, and it is not necessary that these matters be reproduced. The approach of the Legal Services Commissioner and the applicant's submissions 1. There was tendered into evidence before us a letter from the Commissioner to the applicant's solicitor setting out his views concerning the proposed Instrument of Consent. Notwithstanding that the agreement of the Commissioner is no longer required under the Uniform Law, the Commissioner was prepared to express his views, and we for our part find them of assistance as representing the views of a person with statutory responsibility for enforcing appropriate professional standards of the legal profession in New South Wales. 2. In summary, the Commissioner supported the making of the findings and protective orders set out in the Instrument of Consent. In doing so he referred to a number of matters which, in large measure coincide with those contained within the applicant's written submissions. As we are in agreement with the approach contended for by the Commissioner and the reasons therefor it is not necessary that we set them out in any detail. In addition, in that we agree with and accept the submissions of the applicant, which are not opposed by the respondent, is also not necessary that we refer to them in any detail. They are sufficiently referred to in our reasons which follow. 3. We are comfortably satisfied that it is appropriate to make the findings with respect to each of the extant Grounds contained in the Instrument of Consent, and we so order. Consideration 1. We firstly observe that the agreed statement of facts represents a compromise position between the parties. Although the respondent had earlier conceded a number of the factual matters contained in the Application and that he was guilty of unsatisfactory professional conduct with respect to those matters, there remained outstanding a number of factual issues which, if a compromise position had not been reached, would have occupied the Tribunal and the parties in a multi-day hearing, and would have required the deployment of resources. In that the parties been able to reach sensible agreement, and in that, as we apprehend it, the gravamen of the misconduct of the respondent may still be appropriately addressed, this provides an incentive to embrace the consent position of the parties, albeit that it is still necessary that we find it appropriate to do so. Unsatisfactory professional conduct 1. Unsatisfactory professional conduct is defined in the Uniform Law by section 296. A more serious form of misconduct is professional misconduct which is defined in the same legislation, relevantly for our purposes in section 297(1)(a) of that Act. These provisions are in the following terms; 296 Unsatisfactory professional conduct For the purposes of this Law, unsatisfactory professional conduct includes 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. 297 Professional misconduct (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) (remainder of section omitted) 1. As we have said, the respondent conceded that his admitted conduct constitutes unsatisfactory professional conduct, and the applicant asserted that his misconduct should be so characterised. We note for completeness that the Commissioner was of the same view. 2. It is only necessary to traverse the various factual matters contained within the Instrument of Consent to readily appreciate that the respondent, in the course of his practice as a legal practitioner, fell short of the standard of competency and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. We observe firstly that the Barristers' Rules are designed to reflect an appropriate standard of competency and diligence which a member of the public is entitled to expect of a reasonably competent lawyer. Furthermore, provisions of the relevant regulatory legislation are also designed to reflect an appropriate standard. In addition, as is well known, legal practitioners are compelled to conduct themselves appropriately in the course of representing clients in legal proceedings, and in refraining from communicating with judicial officers unless any opponent has been made aware of this. 3. In all the circumstances, it is clear that the conduct of the respondent as conceded by him constituted unsatisfactory professional conduct and we so find. Professional misconduct 1. We are also required to consider whether the misconduct of the respondent might be characterised as professional misconduct for the purpose of the Uniform Law. In considering this matter we note that the misconduct of the respondent arose out of his dealings with one particular client only, although it extended to a number of dealings with this client as well as the respondent's behaviour before the Local Court. Overall, we agree with the Commissioner that the conduct "was not a prolonged repetitive course of conduct involving multiple clients." Although serious, we do not characterise the misconduct of the respondent as involving a consistent failure to attain the relevant standard or as being sufficiently substantial to warrant characterisation as professional misconduct. We note that this is the position taken also by the applicant. Protective orders 1. It is next necessary to determine what protective orders should appropriately be made by reference to the finding of unsatisfactory professional conduct having regard to the respondent's circumstances. In making such a determination we acknowledge that the purpose of protective orders is primarily directed to the protection of the public and is not intended to be punitive, although it is not unusual for punitive consequences to be involved. We also acknowledge that protective orders are intended to provide a deterrent effect with respect to the particular legal practitioner, and, significantly, to create a deterrent effect for other legal practitioners, lest they might be tempted to engage in misconduct of the same or a similar kind. Finally, protective orders also play an important part in enhancing public confidence in the reputation and integrity of the legal profession. 2. In determining whether to make protective orders in the consent terms sought by the parties in the Instrument of Consent we have regard to a number of matters; 1. the respondent has co-operated fully with the applicant in its investigations of complaints giving rise to these proceedings; 2. the respondent conceded at an early stage that he was guilty of misconduct covering a number of the grounds contained in the Application as originally framed, and conceded that he was guilty of unsatisfactory professional conduct; 3. the respondent has acknowledged his misconduct in the admissions contained within the Instrument of Consent and has acknowledged that it is appropriate that protective orders be made; 4. the respondent has held a practising certificate predominantly as a barrister but also as a solicitor for a period totalling 29 years since his admission as a Barrister on 8 May 1981. During this period, he has been the subject of three prior adverse disciplinary findings which we do not apprehend to be significant; 5. there is evidence that the respondent suffers from a serious health issue namely ischaemic heart disease and hypertension and hypercholesterolmia which has necessitated a number of hospital admissions; 6. the respondent was a member of the NSW Legislative Assembly from 1988 to 2001 and as such has provided service to the State; 7. the respondent has undertaken not to practice as a legal practitioner or provide legal services in the future, which significantly reduces the need to make a substantial protective order; 8. the respondent has agreed to pay the costs of the applicant. 1. Having regard to all of these matters we conclude that it is appropriate to make protective orders in the consent terms proposed by the parties. The client's claim for compensation 1. In its Application the applicant also sought the making of directions regarding a claim for compensation by the respondent's client. After discussion with the parties during the course of the hearing we propose to make directions to give the client an opportunity to make such a claim, for the respondent to respond to it, and if necessary, to fix a hearing. Orders 1. Having regard to; 1. the finding which we have made that the respondent has engaged in unsatisfactory professional conduct and 2. the undertaking that the respondent has made to the Tribunal and to the Council of the New South Wales Bar Association that he will not at any time in the future do any of the following in any Australian jurisdiction or outside Australia: 1. apply to be admitted to practice as a legal practitioner, including as a barrister, solicitor/barrister or solicitor (or similar title); 2. seek or undertake employment or any other form of engagement, in any capacity, within any legal practice or by any legal practitioner including a barrister, solicitor/barrister or solicitor (or similar title); 3. seek or undertake employment or any other form of engagement with any person or entity in any role that is connected with the provision of legal services; 4. provide or offer to provide any person or entity with legal services or services connected with the provision of legal services. 5. represent that he is a legal practitioner, barrister, solicitor/barrister or solicitor (or similar title). (We note that the undertaking given by the respondent in (2) above does not prevent the respondent from teaching legal subjects at (a named) University or a similar institution. The respondent undertakes to the Tribunal and to the Council of the New South Wales Bar Association that he will use his best endeavours to ensure that any teaching institution with which he is associated does not represent that he is a legal practitioner, barrister, solicitor/barrister or solicitor (or similar title)). 1. We make the following orders 1. the respondent is reprimanded 2. the respondent is to pay the applicant's costs as agreed or assessed. 3. the respondent must refrain from taking any action to enforce the fees agreement dated 28 January 2014 with the client. 4. the respondent must refrain from making any claim against the client in respect of fees or disbursements or both arising out of or in connection with the proceedings in the Local Court which are the subject of these proceedings. 5. the Council of the New South Wales Bar Association is to cause within 14 days of this date to be forwarded by email or prepaid post a communication to the client of the respondent, being the client referred to in these proceedings. That communication must advise the client that the Tribunal requires that he inform the Registrar of the Tribunal in writing, with a copy to the respondent at an address nominated in the communication, within a period of 28 days from the date of the communication whether he wishes to make any claim for compensation against the respondent arising out of his engagement of the respondent to represent him in the proceedings before the Local Court, and the details of the amount of the claim and how it is calculated. If the client fails to so inform the Registrar that he wishes to make a claim for compensation and the manner in which the claim is formulated within the time so fixed, or informs the Registrar earlier that he does not wish to make any such claim, the balance of these proceedings will thereby be dismissed administratively. 6. if a claim for compensation is formulated by the client, the respondent is directed to file and serve a reply to that claim within 21 days of receipt, in which event the Tribunal will conduct a Directions Hearing either by way of a formal hearing or a telephone hearing, in its discretion, to fix a timetable for the hearing of the claim for compensation. ********** 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 February 2019