Council of the Law Society of New South Wales v Autore [2019] NSWCATOD 72

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Autore [2019] NSWCATOD 72 Hearing dates: 29 April 2019 Date of orders: 14 May 2019 Decision date: 14 May 2019 Jurisdiction: Occupational Division Before: J O'Meally, Principal Member J Pheils, Senior Member E Hayes, General Member Decision: 1. No further practising certificate be issued to the solicitor (respondent) until such time as he has complied with the notice issued to him pursuant to Section 371 of the Legal Professional Uniform Law (NSW) and dated 27 April 2017. 2. The respondent is reprimanded. 3. The respondent will pay the applicant's costs as agreed or assessed. Catchwords: Solicitor – Professional misconduct – Failure to comply with S 371 notice – Restriction on application for further practising certificate until notice complied with Legislation Cited: Legal Profession Uniform Law Application Act 2014 (NSW) Legal Profession Uniform Law (NSW) Cases Cited: Law Society of New South Wales v Walsh [1997] NSWCA185 Texts Cited: Nil Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Anthony Autore (Respondent) File Number(s): 2017/00376917 Publication restriction: Nil

Reasons for decision 1. On 9 January 2019, the Tribunal published its reasons in proceedings brought by the Council of the Law Society of New South Wales (the applicant) against Anthony Autore (the respondent). 2. The respondent was found guilty of professional misconduct and ordered to pay the applicant's costs. As initially published, the phrase "professional negligence" was used erroneously. The decision was corrected to substitute the phrase "professional misconduct". A further typographical error appeared in paragraph 17 of the decision where the word "applicant" was used instead of the word "respondent". Neither of these errors affects the decision and they have been corrected. 3. When submissions were made on 16 November 2018, the applicant, subject to the finding then yet to be made, sought that we reconvene to consider what further orders should flow. We heard submissions from both parties on 29 April 2019. 4. On 29 April 2019 the applicant sought that its application be amended by deleting paragraph 2 and substituting the following: 2. No further practising certificate be issued to the solicitor (respondent) until such time as he has complied with the notice issued to him pursuant to Section 371 of the Legal Professional Uniform Law Application Act (NSW) and dated 27 April 2017. The amendment was consented to by the respondent, but he resists the order. He consents to orders that he be reprimanded and that he pay the applicant's costs. 1. This is not the first time complaints have been made against the respondent. 2. He has been reprimanded six times: twice by the Legal Services Commissioner, twice by the Law Society, once by the Administrative Decisions Tribunal and once by this Tribunal. He has also been fined. On four occasions proceedings were taken against him for failing to assist the Law Society in investigations it was conducting. He was ordered to attend a practice management course. He failed to complete it. As earlier determined, he failed to answer the questions recited in the Section 371 notice, considered in our decision published on 9 January 2019. 3. The respondent resists the second order sought by the applicant, saying if made, it will punish him. It is trite to say that proceedings in the Tribunal are not punitive. They are educative and protective. There is a useful recitation of authorities contained in Law Society of New South Wales v Walsh [1997] NSWCA185 at p 40, line 40 - line 14 on p 41. Sometimes, orders which are either educative or protective will have punitive consequences, but punishment is not the purpose of such orders. 4. The respondent has been obdurate in his failure to comply with the Section 371 notice and has variously said he complied with, and has not complied with it. 5. We find much of what the respondent put to us in submissions to be facile. His evidence and submissions demonstrate a complete lack of understanding of his obligations as a solicitor and of his duties to comply with lawful professional requirements. He has displayed an attitude of indifference, bordering on contempt, in honouring those obligations and duties. As noted in the decision of 9 January 2019 there were contradictions and inconsistencies in both his evidence and submissions. 6. On 29 April 2019 the respondent submitted that, "No client has been disaffected" by anything referred to in the complaint. On the same day, he informed us that he had sold his practice and had surrendered his practising certificate. Assuming that the sought amendment made to order 2 would not be made, he told us that when he resumes practice he will join a partnership or submit to supervision. He explained his difficulties with the applicant as stemming from the stress of being a sole practitioner. Also on 29 April 2019 he put to us material upon which there is no evidence. It has not been considered. 7. There is and has always been an obligation on the respondent to be fully frank with the applicant and the Tribunal. We regret to say we have not seen an appropriate degree of frankness in the respondent. Though the respondent consents to orders that he be reprimanded and that he pay the applicant's costs, he has not acknowledged that his conduct was wrong. 8. The respondent tendered a character reference from Dr J A Schuster, an academic in the School of History and Philosophy of Science at the University of Sydney. Even accepting the matters referred to in that reference, we find it of no assistance in determining the outcome of these proceedings. 9. It is significant that the respondent continues to demonstrate a lack of understanding of his obligations. Notwithstanding that his conduct has been the subject of criticism in other proceedings, he fails to acknowledge that it was wrongful. In these, and in other proceedings, he should have adopted a more cooperative approach with the applicant. 10. The public must be protected from the consequences of professional misconduct of the type we have found committed by the respondent, but also we must ensure others in the profession will be deterred from like conduct. Our decisions must embrace both educative and protective elements. In all the circumstances, we are of the opinion that the following orders should be made.