Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Soszyn [2019] NSWCATOD 73 Hearing dates: 30 April 2019 Date of orders: 17 May 2019 Decision date: 17 May 2019 Jurisdiction: Occupational Division Before: M Sindler, Senior Member P Moran, Senior Member E Hayes, General Member Decision: The Tribunal declines to make the finding and orders set out in the Instrument of Consent filed by the parties. The Tribunal finds the solicitor guilty of unsatisfactory professional conduct and orders that: (1) the solicitor be reprimanded; and (2) the solicitor pay the applicant's costs as agreed or assessed. Catchwords: PROFESSIONS AND TRADES – legal practitioner – failure to comply with subpoena – provisions of Instrument of Consent varied - professional misconduct – unsatisfactory professional conduct – reprimand - costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Legal Profession Uniform Law Application Act 2014 Legal Profession Uniform Law (NSW) Cases Cited: Briginshaw v Briginshaw and Anor[1938] 60 CLR 336 Council of the Law Society of New South Wales v Renfrew [2019] NSWCATOD 63 Council of the Law Society of NSW v Weller [2017] NSWCATOD 38 Kennedy v The Council of the Incorporated Law Institute of NSW (1939) 13 ALJ 563 Law Society of New South Wales v Walsh [1997] NSWCA 185 Mace v Mace [2015] NSWSC 1659 NSW Bar Association v Meakes [2006] NSWCA 340 Texts Cited: Nil Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Belinda Joanne Soszyn (Respondent) Representation: Solicitors: Law Society of New South Wales (A-M Foord represented by C Flax) (Applicant) Belinda Joanne Soszyn (Respondent) in person File Number(s): 2018/350178 Publication restriction: Nil REASONS FOR DECISION What this case is about 1. By an Application for disciplinary findings and orders filed on 14 November 2018 (Application), the Council of the Law Society of New South Wales (Law Society) has applied for a disciplinary finding of professional misconduct in respect of Belinda Joanne Soszyn (the solicitor) who at all material times was an Australian legal practitioner within the meaning of Section 6 of the Legal Profession Uniform Law (NSW) (Uniform Law). 2. The Law Society alleges that Ms Soszyn attempted to mislead the Supreme Court of New South Wales because, on or around early August 2012, she produced to the Court documents in response to a subpoena that purported to be, but were not, documents that the subpoena required her to produce. 3. The factual basis for the application is not in contention in these proceedings and Ms Soszyn has made certain concessions as to her conduct. In January 2019 she entered into an Instrument of Consent with the Law Society under Section 144 of the Legal Profession Uniform Law Application Act 2014 (Uniform Law Application Act). In the Instrument of Consent filed on 24 January 2019, Ms Soszyn consented to the making by this Tribunal of a finding of professional misconduct and the orders sought by the Law Society for a reprimand, a fine of $2500 and costs. 4. In determining whether to make the orders sought by the parties we must consider, for ourselves, whether it is appropriate to characterise the admitted conduct of the respondent as professional misconduct. Section 144 of the Uniform Law Application Act empowers us make such enquiries of the parties as we think fit and to conduct or complete a hearing in relation to the complaint if we consider that to be in the public interest. Factual Background 1. The Instrument of Consent set out the following Agreed Statement of Facts: "1. The Respondent: was admitted as a lawyer in New South Wales on 14 February 2003; currently holds, and since 14 February 2003 has held, a New South Wales Practising Certificate; and is, and since 11 February 2008 has been, BJS Legal's sole principal. In 2012, Mr Brett Mace commenced proceedings in the Supreme Court of New South Wales seeking an order granting him probate over a Will made by Ms Marjorie Rose Mace in August 2000 (Proceedings). In or around August 2012, Mr Mace's solicitor caused to be served on the Respondent in the Proceedings a subpoena, which required the Respondent to produce to the Supreme Court of New South Wales: "1. All original files and documents relating to instructions received in relation to the preparation of any Will or other testamentary documents of Marjorie Rose Mace, deceased. 2. All original files and documents relating to the transfer of real estate of the deceased located at [location described] to Glen Rodeny [sic] Mace". (Subpoena). The Subpoena required the Respondent to produce a number of file notes that the Respondent drafted on paper bearing the name "Blake Dawson Waldron" (File Notes). On or around August 2012, the Respondent produced to the Supreme Court of New South Wales documents in response to the Subpoena. The documents that the Respondent produced to the Supreme Court of New South Wales: did not include the original versions or copies of the File Notes; and included a copy of documents that the Respondent created by re-writing the File Notes' contents onto paper that did not bear the name "Blake Dawson Waldron". 7. In the circumstances referred to in paragraphs 2 to 6 above, the Respondent attempted to mislead the Supreme Court of New South Wales." Legislation 1. The Instrument of Consent is formulated on the basis that the solicitor concedes that she is guilty of professional misconduct. Misconduct of this kind is defined in the Uniform Law by reference firstly to the definition of unsatisfactory professional conduct. The relevant provisions of the Uniform Law (sections 296 and 297) are: 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 […..] 1. Section 144 of the Uniform Law Application Act makes provision for the Tribunal to make consent orders. For present purposes it is sufficient to set out here subsections 144 (1) and (10): (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. [……] (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. Hearing 1. As just noted, subsection 144 (10) of the Uniform Law Application Act allows us to make such enquiries of the parties as we think fit in deciding whether to make disciplinary orders 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 decision and orders to make and that it would be in the public interest for us to conduct a brief hearing of the matter to do this. 2. The matter came before us on 30 April 2019. 3. We asked the parties to address us concerning the terms of the Instrument of Consent, and certain documentation was admitted into evidence for the limited purpose of enabling us to consider whether and to what extent we would exercise our discretion to make the orders sought. Law Society's Evidence 1. The Law Society tendered without objection and we admitted into evidence an affidavit of Ms Anne-Marie Foord, the solicitor for the Law Society and its Director of Professional Standards, sworn on 31 October 2018 including annexures A-I (Exhibit A-1). 2. The Law Society also tendered without objection and we admitted into evidence a letter from the Legal Services Commissioner dated 1 April 2019 setting out his views concerning the proposed Instrument of Consent (Exhibit A-2). Notwithstanding that the agreement of the Commissioner is no longer required under the Uniform Law, the Commissioner was prepared to express his views as the views of a person with statutory responsibility for enforcing appropriate professional standards of the legal profession in New South Wales. Solicitor's Evidence 1. Ms Soszyn attended the hearing in person, unrepresented. She tendered her affidavit affirmed on 23 January 2019 which was admitted without objection (Exhibit R-1). Parties' Positions and Submissions 1. The Law Society submitted that Ms Soszyn's conduct satisfies the description contained in s 297(1)(a) of the Uniform Law, in that the conduct involved a substantial failure to reach or maintain a reasonable standard of competence and diligence. The Law Society does not rely on the alternative limb of section 297, namely that the conduct constituted a "consistent" failure to reach or maintain a reasonable standard of competence and diligence. In its oral submissions, the Law Society conceded that the conduct was a single incident and consequently it does not contend that there was a consistent failure in the conduct nor is there any allegation that the conduct amounted to professional misconduct at common law. 2. The Law Society argues that the failure was "substantial" having regard to the circumstances that: 1. a subpoena is a direction from the Court and requires strict compliance; the solicitor's conduct in failing to comply with that direction from the Court was a substantial failure to reach an acceptable standard of professional conduct; 2. creating new documents by rewriting file notes and producing those new documents in answer to a subpoena asking for original files without any explanatory note is a breach of basic ethical principles of legal practice; and 3. producing rewritten copies of the file notes was false and misleading (even though the Law Society does not argue that there was any intention to mislead or deceive). 1. The Tribunal's orders must act as a mark of the profession's disapproval of the conduct and as a deterrent to the profession generally. 2. Ms Soszyn explained that between July 2005 and January 2011 she was the Principal Solicitor of the Mt Druitt & Area Community Legal Centre. During that time the major international law firm then known as Blake Dawson Waldron provided financial support to the Centre, as well as reference books and stationery including diary note writing pads bearing the name of the firm. The solicitor prepared file notes of her attendances on Mrs Mace, a client of the Centre, using that stationery. 3. Before the solicitor produced her file to the Court in answer to the subpoena, she "made the misguided decision to rewrite the file notes on plain paper as I firmly believed it was inappropriate to hand in any file notes on Blake Dawson and [sic] Waldron letterhead." (Exhibit R-1, para 20). 4. Apart from the heading on the stationery, "the only difference between the notes and the originals was neater handwriting and perhaps a few grammatical corrections." (Exhibit R-1, para 22). Ms Soszyn said that the notes were otherwise true and accurate copies of the original file notes. This is not disputed. 5. She explained (Exhibit R-1, para 21): "My motivation and intent for this was nothing other than protecting both the Mt Druitt and Area Legal Centre and Blake Dawson from any possible ramifications. I did not wish to jeopardise the support supplied by Blake Dawson to the Centre and I did not want to embarrass Blake Dawson or the legal centre." 1. Further (Exhibit R-1, para 23): "There was no deliberate intention to mislead or deceive the Court or the Plaintiff on my part. I did what I believed was correct at the time. Clearly I was mistaken." 1. Ms Soszyn drew our attention to the fact that in the proceedings Mace v Mace [2015] NSWSC 1659, Robb J stated at [66-68] that: "Having had the benefit of witnessing the cross examination [...] I accept Ms Soszyn's explanation for why she recreated her file notes so that they would not be on the letterhead of the firm of solicitors who provided the spare paper to her employer, before she produced her file to the court in answer to the subpoena. It was plainly wrong for Ms Soszyn to fail to produce to the court the file in its original condition. However, notwithstanding that she acted in an inappropriate and misguided way, I accept the truth of Ms Soszyn's explanation." 1. By operation of the Instrument of Consent, Ms Soszyn consented to a finding of professional misconduct as well as the proposed orders of a reprimand, a fine of $2500 and costs. Ms Soszyn said she is not seeking to be excused for her conduct. 2. In submissions to the Tribunal, the solicitor repeated that she was incredibly sorry for her conduct and stressed that being before the Tribunal was one of the darkest days in her life. She further submitted that while her conduct did not impact on the case before the Supreme Court, she recognizes that her actions were wrong and she made a serious error which she sincerely regrets and she has accepted responsibility for the stupidity of her conduct. 3. Ms Soszyn acknowledged that she had breached her professional obligations. She also expressed contrition and remorse for so doing. Jurisdiction 1. It is not disputed that the Application falls to be determined under the provisions of the Uniform Law, because the complaint the subject of the Application was made to the Legal Services Commissioner in November 2015; that is; after the July 2015 commencement of the Uniform Law. The relevant provisions of the Uniform Law authorise us to make orders of the kind sought in these proceedings. Consideration 1. Having regard to the nature and extent of the allegations contained in the Application and the nature and extent of the admissions made by the solicitor, we are satisfied that it was appropriate to dispense with a hearing concerning the factual basis for the proceedings which is particularised in the Instrument of Consent. 2. The Tribunal has read and considered the affidavits of Ms Foord (Exhibit A-1) and of the solicitor (Exhibit R-1). The Tribunal finds as proven the matters recorded as Agreed Statement of Facts in the Instrument of Consent (as set out in para 5 above). 3. Therefore, the issues for our determination are: 1. whether the facts of the matter justify a finding by us of professional misconduct or whether we should make some other finding, and 2. whether the penalty orders set out in the Instrument of Consent, namely a reprimand, a fine of $2500 and an order that the solicitor pay the costs of the Law Society, are appropriate or whether we should make some other order. 1. The Law Society submitted that the agreed statement of facts supported by the evidence contained in the exhibits should satisfy the Tribunal that the solicitor has been guilty of professional misconduct and that the orders sought and agreed are appropriate in the circumstances. 2. In considering this matter we have had regard to the views expressed by the Legal Services Commissioner in his letter of 1 April 2019 (Exhibit A-2). As already mentioned, these views reflect those held by the person charged with the overall responsibility of regulation of the legal profession in New South Wales (particularly in initiating and dealing with complaints concerning its members). 3. The Commissioner considered the protective nature of the orders agreed and particularly took into account "the deterrent and educative effect that the proposed consent orders will have upon the understanding in the profession generally and amongst the public of the standards of behaviour required of lawyers" and concluded that the orders proposed in the Instrument of Consent would appropriately reflect disapproval of the solicitor's conduct. 4. While we have regard to these views, the Tribunal must make its own judgment as to whether the conduct that grounds the Application amounts to professional misconduct or unsatisfactory professional conduct, and as to the appropriate disciplinary order. It is not bound by any agreed positions by the parties or the Commissioner's views as to findings and orders. 5. Any finding by us of professional misconduct or unsatisfactory professional conduct must be made to the standard recommended in Briginshaw v Briginshaw and Anor [1938] 60 CLR 336. In that matter Dixon J (as he then was), noted firstly, at 361 that: "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality." 1. His Honour then discussed the dichotomy between the criminal and civil standards of proof and went on to expound what has become known as the "Briginshaw standard": "[A]t common law….. it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal." 1. The major issue in this case turns on the distinction between conduct which is merely a failure to reach or maintain a reasonable standard of competence or diligence and conduct which involves a "substantial" failure of that kind. 2. Whether misconduct of a legal practitioner is to be characterised as professional misconduct or the less serious unsatisfactory professional conduct involves the exercise of a value judgment by the Tribunal taking into account the statutory definitions, what is conveyed by them and all the circumstances that pertain to the specific conduct. In saying this, we are conscious that neither definition (in sections 296 and 297 of the Uniform Law) is expressed to be exclusive of the behaviour which might be so characterised. Characterising the conduct involves an assessment by the Tribunal of the conduct in its particular factual context. Each case must depend on its own particular circumstances. 3. In the High Court decision in Kennedy v The Council of the Incorporated Law Institute of NSW (1939) 13 ALJ 563 Rich J said that a charge of professional misconduct was enough if it amounted to grave impropriety affecting professional character and was indicative of a failure either to understand or to practice the precepts of honesty or fair dealing in relation to the courts, clients or the public. 4. We were not taken to any cases where the facts may be considered analogous to the facts in these proceedings. The Law Society drew our attention to the decision in Council of the Law Society of New South Wales v Renfrew [2019] NSWCATOD 63 where there was a finding of professional misconduct in circumstances where, among other conduct, a solicitor attempted to, and did, mislead to Supreme Court by filing a Summons for Probate and supporting affidavit with the Court and she knew at the time that the application was false and the affidavit contained a false statement. In that case there was a deliberate intent to mislead the Court. The Law Society accepts that in the case of Ms Soszyn there was no intent or indeed no attempt to mislead or deceive the Court. There is no suggestion in this case that the solicitor acted dishonestly. 5. We are satisfied that the nature and extent of the misconduct of the solicitor as revealed in the Instrument of Consent is not indicative of gross failure to observe professional standards or grave impropriety in the sense of that outlined in Kennedy. The misconduct was confined to a single departure from expected standards and not a repetitive or prolonged course of conduct because it had occurred on one occasion only. 6. In our view, the solicitor's conduct cannot be described as a "substantial" failure to reach or maintain a reasonable standard of competence and diligence. The conduct was isolated to one event and involved one failure which was recognised and admitted as such as soon as it was drawn to the solicitor's attention. We are not satisfied to the Briginshaw standard that it was substantial misconduct and consequently we are not satisfied that Ms Soszyn's conduct constituted professional misconduct. The conduct complained of is of a serious nature and the behaviour is regrettable, as acknowledged by the solicitor, but it cannot in the circumstances be characterised as professional misconduct. 7. It was clearly wrong for the Ms Soszyn to fail to produce her file notes in their original condition to the Court in answer to the subpoena. The solicitor's conduct was plainly inappropriate and misguided and fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer, but it does not in our view, constitute professional misconduct. 8. When the matter relating to the subpoena was ventilated before the Supreme Court of New South Wales in Mace, Ms Soszyn was extensively cross-examined about her conduct. The Court did not make any adverse finding with respect to the solicitor's conduct. There was no finding of illegality, fraudulent or deceptive conduct against her; there was no suggestion that her evidence was false in any material respects. Ms Soszyn's conduct was not the subject of any judicial referral to the Legal Services Commissioner's office. We find this persuasive. 9. In our view, in all the circumstances, the solicitor's conduct is clearly distinguishable from that in Renfrew and it more aptly fits within the description of unsatisfactory professional conduct as described in section 296 of the Uniform Law. On that basis we find that Ms Soszyn's conduct constitutes unsatisfactory professional conduct. 10. Ms Soszyn accepts that her conduct fell short of the standards of competence and diligence that a member of the public is entitled to expect. There were no extenuating circumstances and she accepts unreservedly that her actions were misconceived. 11. She says in her affidavit (Exhibit R-1 para 31): "I have been reprimanded by His Honour [in Mace]. I have been reprimanded by the Law Society. I reprimand myself on a daily basis. The reprimand has taken a huge emotional toll on me personally. I feel ashamed and embarrassed that I have to stand in front of a disciplinary committee for any reason whatsoever." 1. The Tribunal is satisfied that the solicitor would not have rewritten her file notes but for the particular circumstances motivated by a misguided attempt to protect the community legal centre where she then worked and in particular its very existence given it was heavily dependent on support from Blake Dawson which she believed may have been jeopardized if her file notes written on Blake Dawson stationery were brought before the Court. We also accept her evidence that she did not want to cause any embarrassment to that sponsor firm. 2. Section 302(1) of the Uniform Law provides that if after it has completed a hearing in relation to a complaint against an Australian legal practitioner, the Tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the Tribunal may make such orders as it thinks fit, including one or more of the orders specified in the section. Those orders include an order reprimanding the practitioner as well as an order imposing a fine. 3. Consistent with our reasons for finding that Ms Soszyn is guilty of unsatisfactory professional conduct, and the seriousness of the conduct, the reprimand sought by the Law Society in the circumstances of this matter seems to us to be an appropriate and proportionate disciplinary order. As we have recorded, it is one accepted by Ms Soszyn. We propose to make an order accordingly. 4. As the Law Society has submitted, it is well established that disciplinary proceedings are concerned with the protection of the public. The Tribunal's role is aimed at protecting clients and members of the public from harm that could be caused by dishonest, incompetent or non-diligent legal practitioners. It is not punitive. The disciplinary jurisdiction is directed to ensuring the maintenance of high standards within the profession: Council of the Law Society of NSW v Weller [2017] NSWCATOD 38 at [40]. 5. The extent of the protective duty was explained by Beazley JA in Law Society of New South Wales v Walsh [1997] NSWCA 185 at [40]: "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"; see also NSW Bar Association v Meakes [2006] NSWCA 340 per Basten JA at [114]. 1. However, also in Meakes, Basten JA said at [113]: "… no order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose." 1. In considering whether the imposition of a fine is appropriate in this case we have considered a number of mitigating factors in respect of Ms Soszyn's conduct which include: her admission from the outset of the seriousness and gravity of her misconduct and that the conduct was inconsistent with the ethical principles to which a lawyer is bound; she appeared genuinely remorseful for her conduct and has provided sufficient and credible evidence of her insight and contrition which was also reflected in her short address to us; she co-operated fully with the Law Society in its investigation and made timely and frank admissions regarding her misconduct; and she participated in the Instrument of Consent that included all relevant admissions. 2. Ms Soszyn has been in practice for approximately 16 years and she has no prior adverse disciplinary findings. She has spent the majority of her legal life working at community legal centres or assisting clients on a pro bono basis. 3. Ms Soszyn indicated in her oral submissions that she signed the Instrument of Consent to avoid the expenditure of further substantial costs for a contested hearing and to bring the long-running matter to a conclusion. 4. We note in this regard that the conduct occurred in 2012, the complaint was made in 2015 but, from the correspondence we have seen, it was not communicated to the solicitor until late November 2017 (Exhibit A-1, annexure "B") and notwithstanding the relatively simple facts and the admissions made by the solicitor from the very outset (even before the complaint was made – see Mace), the Application was not filed until mid-November 2018. We also find it difficult to understand how, in light of all the admissions and concessions the solicitor made and in light of the decision in Mace in 2015 where the conduct was referred to in detail, the Law Society could inform the solicitor in May 2018 (the last correspondence before the Application was filed) '[I]t appears from the Solicitor's submissions that she did not then [in 2012] – and still does not – understand the impropriety of her conduct…' (Exhibit A-1, annexure "I" p62). That was not a correct statement in all the circumstances. We note that the Instrument of Consent was signed against this background. 5. It is our view that the imposition of a fine in the circumstances of this matter is not necessary or appropriate (even though it was agreed to in the Instrument of Consent). Such an order is not reasonably necessary here in the execution of the protective purpose of the Tribunal's duties and accordingly we decline to make such an order. 6. We are satisfied that having already made an order imposing a public reprimand is a sufficient humiliation and admonishment. The solicitor will also incur a financial penalty by payment of the Law Society's costs. 7. The Instrument of Consent also seeks an order that the solicitor pay the costs of the Law Society. In our view, no other order would be appropriate given the provisions of clause 23 of Schedule 5 of the Civil and Administrative Tribunal Act 2013 which provides that the Tribunal must make orders requiring a respondent lawyer whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs unless the Tribunal is satisfied that exceptional circumstances exist. No exceptional circumstances exist. Accordingly, the solicitor must pay the Law Society's costs. 8. For the reasons outlined above we are not satisfied that all the orders sought in the Instrument of Consent are appropriate and accordingly we decline to make the orders as set out in that document and instead we make the orders below. Orders 1. Consequent upon the finding we have made that the solicitor is guilty of unsatisfactory professional conduct, the Tribunal orders that: 1. the solicitor be reprimanded; and 2. the solicitor pay the applicant's costs as agreed or assessed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 May 2019