Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of NSW v Coren [2019] NSWCATOD 61 Hearing dates: 17 September 2018 Date of orders: 26 April 2019 Decision date: 26 April 2019 Jurisdiction: Occupational Division Before: J S Currie, Senior Member M Sindler, Senior Member B Thomson, General Member Decision: (1) The name of Nicholas Mitchell Coren be removed from the Roll. (2) Nicholas Mitchell Coren pay the costs of the Council of the Law Society of New South Wales, as agreed or assessed. Catchwords: PROFESSIONAL DISCIPLINE-Legal Profession- Solicitor- Professional misconduct: breach of trust account obligations: Legal Profession Act 2004 ss 254, 255, 258A and misappropriation of clients' funds. Unsatisfactory professional conduct: failure to communicate with client. Instrument of Consent and Agreed Statement of Facts: Legal Profession Act 2004, s564. Findings of professional misconduct and unsatisfactory professional conduct; removal from the roll, costs order. Legislation Cited: Legal Profession Act 2004 (NSW) Legal Professional Uniform Law (NSW)No.16a Cases Cited: A Solicitor v Law Society of New South Wales [2004] 216 CLR 253; Allinson v General Council of Medical Education and Registration [1894] 1 QB 750; BRJ v Council of the New South Wales Bar Association [2016] NSW SC 146; Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32; Law Society of NSW v Walsh [1997] NSWCA 185; The Prothonotary of the Supreme Court of New South Wales v Demetrios [2015] NSWCA 258. Texts Cited: Nil Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Nicholas Mitchell Coren (Respondent) Legal Services Commissioner (Party to the Instrument of Consent) Representation: Counsel: P. A. Maddigan (Applicant) Solicitors: Council of the Law Society of NSW (C. Flax) (Applicant) N Coren (Self Represented)(Respondent) G Garland (Legal Services Commissioner) File Number(s): 2018/00104553 Publication restriction: Nil reasons for decision What are these proceedings about? 1. Mr Nicholas Mitchell Coren ("Mr Coren") was admitted as a solicitor on 27 August 1999 and from 28 October 2011 he practised on his own account under the name of The Law Practice. 2. Mr Coren is a party to an agreed statement ("the Agreed Statement of Facts") which forms an annexure to an instrument of consent ("the Instrument of Consent") made pursuant to section 564 of the Legal Profession Act 2004 (the LPA"). 3. It is uncontested and is conceded in the Agreed Statement of Facts that between mid-2012 and May 2013, in the course of acting for particular clients, Mr Coren committed substantial breaches of his trust account obligations to those clients under Part 3.1 of the LPA and misappropriated the funds of some of them. It is also uncontested and conceded in the Agreed Statement of Facts that he acted for a client (through her tutor) in a professional negligence action against that client's former solicitors and that between September 2011 and April 2013 he failed to inform either his client or her tutor of any of the major developments in the matter, including ultimately the fact that the District Court had entered a verdict for the defendants and had ordered Mr Coren client to pay the defendant's costs. The application and the Instrument of Consent 1. The Council of the Law Society of New South Wales ("the Law Society") commenced proceedings against Mr Coren in this Tribunal on 4 April 2018, by an application which specified 19 Grounds of complaint, in respect of 10 of Mr Coren's former clients. Ultimately, as reflected in the Instrument of Consent, it was agreed that the Tribunal should make findings that Mr Coren was guilty of professional misconduct in respect of 13 of those grounds and guilty of unsatisfactory professional conduct in respect of one ground (the remaining 5 grounds not being pressed). 2. The Instrument of Consent is made under section 564 of the LPA and, as required by that section, each of the Law Society, Mr Coren and the Legal Services Commissioner ("the Commissioner") is a party to it and has signed it. The Instrument of Consent contains an Agreed Statement of Facts as required by s 564 (5). For convenience of reference the text of the Instrument of Consent and the Agreed Statement of Facts is annexed as the Appendix to these reasons for decision. 3. We had to decide whether we would make findings and orders with the consent of the three parties as set out in the Instrument of Consent or make any further or other orders available to us under section 562 of the LPA. Jurisdiction: applicable legislation 1. It was common ground that the complaint on which the application is based was made but not disposed of prior to 1 July 2015 and that therefore the application stood to be determined under the Legal Profession Act 2004 and not the Legal Professional Uniform Law (NSW) No.16a ("the Uniform Law"), by operation of Division 7 of Schedule 4 of the Uniform Law. The nature of the hearing 1. Sub-section 564 (10) of the LPA allows us to make such enquiries of the parties as we think fit in deciding whether to make disciplinary orders under Part 4.8 of that Act and, despite the consent of the parties, to conduct or complete a hearing in relation to the complaint if we consider that to be in the public interest. We decided that we should make further enquiries of the parties in deciding what orders to make and that it would be in the public interest for us to conduct a brief hearing of the matter in order to do this. The real issues for determination 1. It follows that the issues for our determination are: 1. whether the facts of the matter justify findings by us of professional misconduct, or of unsatisfactory professional conduct; or both, and if so; 2. whether the penalty order stated in the Instrument of Consent, namely the removal of Mr Coren's name from the Roll and an order that he pay the costs of the Law Society, is appropriate, or whether we should make any further or other orders. Our decision and orders 1. We decided that : 1. the established and conceded facts justified a finding of professional misconduct in respect of the conduct described in Grounds 1 to 9 and 15 to 18 of the Agreed Statement of Facts and a finding of unsatisfactory professional conduct in respect of Ground 19; and 2. it was appropriate for us to order that Mr Coren's name be removed from the Roll and that he pay the costs of the Law Society as agreed or assessed. We could not see a need for any further or other order. 1. We made those decisions and order at the conclusion of the hearing on 17 September 2018 and we reserved our reasons. These are our reasons for those decisions and orders. Consideration Professional misconduct The Law Society's evidence 1. The Law Society tendered without objection and we admitted into evidence the following items: 1. an affidavit of Ms Anne-Marie Foord, the Solicitor for the Law Society and its Director Professional Standards , sworn on 27 March 2018 including a bundle of documents identified as "Exhibit AMF-1"; 2. a helpful schedule of crossed reference paragraphs and an index to Exhibit AMF-1 3. an affidavit of Mr Chandra Sivakumar, a Trust Account Investigator of the Law Society, who conducted an investigation into the affairs of Mr Coren's law practice, sworn on 27 March 2018; 4. an affidavit of Hugh Charles Thomas sworn on 29 March 2018; 5. the Instrument of Consent; and 6. the Agreed Statement of Facts. 1. We understood, and there was no indication to the contrary, that the Law Society maintained the position reflected in the Instrument of Consent, that is that Mr Coren was guilty of professional misconduct and unsatisfactory conduct in respect of the various grounds as noted at [10] (1) above.. Mr Coren's evidence and concessions 1. Mr Coren attended the hearing in person, unrepresented. He tendered his affidavit affirmed on 22 May 2018. Paragraphs [5] to [14] were not read, but the affidavit was admitted without objection. 2. In that affidavit Mr Coren demonstrated considerable insight into his conduct and considerable remorse for it. For example, in relation to his failure to keep the client who was the subject of the complaint in Ground 19 or her tutor informed of progress of her matter, Mr Coren says, at [15] of his affidavit the following: "..I accept that this was a manifest failure of my duty to my former client. I cannot recall what happened in this situation. At this time, in April 2013, my professional life and business was falling apart and my mental health was in a terrible depressed state. It was my usual practice over many years in the Law for me to contact clients by telephone and/or letter to advise them of the details of any judgment or determination in proceedings involving them. I simply do not know why this did not happen with (this client). Again, I apologise for failing to communicate with (her) on this issue and generally." 1. In that affidavit at [16] Mr Coren says he is not seeking to be excused for his conduct and he confirms that he consents to the orders sought in the Application. He goes on in paragraphs [17] and [18] to say: "[17]… although it is not an excuse, I believe that my conduct occurred during a time in 2012/2013 when I was suffering quite severely from psychological illness… [18] During this time in 2012/2013, I failed to uphold the necessary ethical and character standards required of me and that I had applied for many years previously in my involvement with the Legal Profession" 1. In the final paragraphs of the affidavit Mr Coren says : "I am extremely remorseful for my conduct. I recognise my failures and the seriousness of my conduct. I apologise to my former clients, the profession, my former friends and colleagues in the profession, the Court the Tribunal and generally for my behaviour." 1. Indeed his insight into his conduct and what appeared to be genuine contrition was reflected in his short address to us. In referring to his established misconduct and the likelihood that we would remove his name from the Roll he concluded with the words: "I wish I could turn back the clock". 1. Of course, by operation of the Instrument of Consent Mr Coren consents to the findings of professional misconduct and unsatisfactory professional conduct set out in the instrument and the Agreed Statement of Facts and as well as the proposed orders: namely his removal from the Roll and a costs order. Finding of professional misconduct 1. Through the Instrument of Consent and the Agreed Statement of Facts the parties acknowledge and agree that Mr Coren's conduct set out in the Agreed Statement of Facts in respect of Grounds 1 to 9 and 15 to 18 constitutes professional misconduct. We agree. 2. The uncontested facts establish that during the period under consideration Mr Coren engaged in multiple breaches of the basic trust account obligations set out in Division 2 of Part 3.1 of the LPA and that in addition he misappropriated the funds of 5 of his clients. Some of the misappropriations were for quite substantial amounts. For example, in respect of the client identified in Grounds 1 and 2 Mr Coren misappropriated $25,000 and in respect of the client identified in respect of Grounds 8 and 9 he misappropriated $22,000. 3. We find that that conduct and the other instances of conduct set out in the Agreed Statement of Facts constitutes disgraceful and dishonourable conduct and would be regarded as such by Mr Coren's peers of competence and repute. That is the oft-cited common law test of professional misconduct and associated from Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. 4. Meagher JA set out the relevant principles, with particular reference to but not restricted to trust account obligations, in The Prothonotary of the Supreme Court of New South Wales v Demetrios [2015] NSWCA 258, where he said, at [21]: "Legal practitioners are expected to act and must act with scrupulous honesty when discharging their obligations generally, and specifically with respect to the receipt and payment of monies on behalf of clients. There is an unqualified expectation that they adhere to those standards. 1. His Honour relied on the explanation provided by Ipp JA in Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32: 'The trust and confidence which clients place in their solicitors are basic elements of the administration of Justice in this country. Violations by legal practitioners of trust accounts betray that trust and harm the public confidence in the legal system. This explains the sacrosanct nature of trust accounts and the acute concern that courts have when practitioners, in breach of their fiduciary obligations, Miss use trust accounts for their own benefit.' 1. It must follow that Mr Coren's conduct amounted to professional misconduct and we found accordingly. Unsatisfactory professional conduct 1. Again, through the Instrument of Consent and the Agreed Statement of Facts the parties acknowledge and agree that Mr Coren's conduct set out in the Agreed Statement of Facts in respect of Ground 10 constitutes unsatisfactory professional conduct. We agree. 2. Under section 496 of the LPA, 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. In Mr Coren's affidavit that [18] he concedes that his conduct during the relevant period amounted to a failure on his part: "… to uphold the necessary ethical and character standards required of me…" 1. With specific reference to the client affected by the alleged unsatisfactory professional conduct (being the client described in Ground 19) Mr Coren admits that his failure to provide details of the judgment against that client: "… was a manifest failure of my duty to my former client." 1. The Supreme Court case of BRJ v Council of the New South Wales Bar Association [2016] NSW SC 146 ("BRJ") appears pertinent. That case involved disciplinary proceedings against a barrister who claimed that her conduct, including persistent failure to attend Court punctually, arose from her anorexia nervosa. Adamson J gave a detailed exposition of the development of the concept of unsatisfactory professional conduct. Her Honour found, at [57] that the barrister was late because of the physical consequences of her mental condition. Her Honour concluded that she did not consider that the cause of the barrister's lateness (repeated as it was) deprived her conduct of its character as unsatisfactory professional conduct. Relevantly, she commented, at [61] that although the barrister's medical condition may have provided some explanation for her conduct, since it compromised her judgment: "… it did not deprive her conduct of its character as unsatisfactory professional conduct." 1. Adamson J concluded, at [63], that the compromise of the barrister's judgment by reason of a mental condition : "… may explain her breach of the NSW Barristers Rules. However, her mental condition was not such as to render it any less a breach, or to deprive it of its character as unsatisfactory professional conduct." 1. We believe those comments to be equally applicable to Mr Coren's case and find that his conduct amounts to unsatisfactory professional conduct. Are the proposed penalty orders appropriate? 1. It is clear from the authorities that the ultimate issue, where an order for removal from the roll is contemplated, is whether the practitioner is shown not to be a fit and proper person to be an officer of the Supreme Court :A Solicitor v Law Society of New South Wales [2004] 216 CLR 253. 2. It is also clear that, in deciding that ultimate issue, the Tribunal must proceed on the basis that disciplinary proceedings are concerned with protection of the public. See Law Society of NSW v Walsh [1997] NSWCA 185 at 224, per Beazley JA (as she then was) and the authorities cited there. Justice Beazley went on to confirm that: "The Court's duty to protect the public is not confined to the protection of the public against further misconduct by the particular practitioner who is the subject of the disciplinary proceedings. It extends to protecting the public from similar defaults by other practitioners. Thus, it is relevant to take into account the effect the order will have upon the understanding in the profession and amongst the public of the standard of behaviour required of solicitors." 1. We were satisfied that on the basis of these authorities the conceded professional misconduct of Mr Coren justifies his removal from the Roll. Conclusion and orders 1. It follows that we should make orders in accordance with the Instrument of Consent. We therefore ordered that: 1. The name of Nicholas Mitchell Coren be removed from the Roll. 2. Nicholas Mitchell Coren pay the costs of the Council of the Law Society of New South Wales, as agreed or assessed. ********** COREN Appendix - [2019] NSWCATOD 61 (426 KB, pdf) I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 18 June 2019 - Appendix scan errors corrected & re-uploaded. 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: 18 June 2019