Law Society of NSW v Alexander [2016] NSWCATOD 158 (23 November 2016)

Last Updated: 20 December 2016









Civil and Administrative Tribunal New South Wales

REASONS FOR DECISION

The respondent, a legal practitioner, practised without a current practising certificate from 7 October 2011 (the date of his admission to practice) until 15 January 2014, a period of two years and three months. He formally applied for a practising certificate on 15 January 2014, and it was issued the next day. On 18 August 2015 the applicant applied to the Tribunal under the applicable law at the times relevant to this matter, the Legal Profession Act 2004, for disciplinary findings and orders in relation to the conduct of the respondent. The application sought a finding of ‘professional misconduct’ in relation to the respondent’s alleged failure to take the appropriate steps to obtain and renew his practising certificate, and his engaging in practice without a current certificate. The application sought an order that the respondent’s name be removed from the local roll of practitioners, the most severe order that the Tribunal may make under s 562 of the Act. The respondent holds the degree of Bachelor of Veterinary Science (Sydney, 2005), and the law degree Juris Doctor (UTS, 2010). He practised as a veterinary surgeon from October 2005 to February 2008. He commenced work at HWL Ebsworth Lawyers in the firm’s graduate solicitor program in February 2011 and continued there after his admission on 7 October 2011. He remained employed as a solicitor by HWL Ebsworth Lawyers during the period under notice in these proceedings. He met all the conditions required for the issuance of a practising certificate, such as the mandatory continuing legal education requirements and did not have any disqualifying attribute such as a criminal conviction or bankruptcy. He has maintained his practising certificate since 16 January 2014. He is now employed by Tress Cox (commenced 18 July 2014). The matter came on for hearing on 23 November 2016. In preparation for the hearing, the parties had filed the following material

Applicant: Application for disciplinary findings and orders (18 August 2015) together with four affidavits relating to the circumstances of the respondent’s conduct: Anne-Marie Foord (18 August 2015) and Stephen James O’Byrne (18 August 2015, and 9 November 2016), both investigative staff of the applicant; and Renee Dorothy Lawton (10 September 2015), an employee of HWL Ebsworth.

Respondent: Amended Reply to the Application (6 July 2016), which replaced the original Reply (28 October 2015), and an affidavit of the respondent (28 June 2016).

The parties presented for the consideration of the Tribunal an Instrument of Consent filed 22 November 2016. The most material part of the Instrument of Consent, the statement of agreed facts, is annexed to these reasons. Section 564 provides:

564 Consent orders



(1) The Tribunal may, with the consent of the Australian legal practitioner concerned contained in a written instrument, make orders under this Part without conducting or completing a hearing in relation to the complaint.



(2) Consent may be given before or after the proceedings were commenced in the Tribunal with respect to the complaint.



(3) If consent is given before the proceedings were commenced, the requirement to conduct 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 practitioner unless the practitioner, the Commissioner and (if applicable) the relevant Council 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 practitioner.



(6) The instrument of consent must be filed with the Tribunal.



(7) Nothing in this section affects the procedures regarding the commencement of proceedings in the Tribunal where consent was given before the proceedings are commenced.



(8) If consent was given before the proceedings are commenced, the proceedings are nevertheless to be commenced 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 under this Part 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.

The Commissioner to whom s 564(5) refers is the Legal Services Commissioner. Ms G Millar, legal officer, appeared at the hearing to confirm the agreement of the Commissioner to the terms of the instrument of consent. In support of the Instrument of Consent, the parties filed the following additional material on 22 and 23 November 2016: Applicant: written submissions.

Respondent: written submissions; supplementary affidavit of the respondent; testimonial affidavits as to character and fitness, from Gary Michael Gregg, a highly experienced barrister (adm 1984), formerly a solicitor (adm 1980); and Lynda Robyn Young, a barrister since 2005, who was admitted as a legal practitioner in 2000, and worked as a solicitor from 2000 to 2005. Following an adjournment to consider the additional material, we advised the parties that we were satisfied that the orders sought by the Instrument of Consent were appropriate in the circumstances. We did not find it necessary to make any additional enquiries of the parties, or conduct a hearing of any kind in relation to the complaint. In brief, the agreed facts are that HWL Ebsworth Lawyers had made two attempts to reach the respondent via email in relation to his lack of a practising certificate, on 29 October 2013 and 11 November 2013. There is evidence that those emails did reach the respondent – by at least 11 November 2013, and he was negligent and reckless in not attending personally to sorting out the problem. As we decided it was not necessary to conduct any hearing into the matter, we will not enter into question of what the truth is in relation to the matters of difference between the parties as to the nature and degree of the respondent’s culpability. It is plain that the Tribunal has before it a practitioner who is a junior lawyer, and recent entrant to the profession. He has clearly made a very serious mistake in not attending to his practising certificate obligations. We are satisfied that he is very remorseful and ashamed by his conduct. He has furnished in support of the Instrument of Consent two impressive testimonials from barristers who have worked with him in recent times in the conduct of high level litigation. They gave their testimonials fully informed as to the charge brought against him. They see the respondent’s conduct as entirely out of character. We are satisfied that he is deeply remorseful in relation to his conduct, and ashamed of it. He understands, we consider, the damage to the public standing of the profession that failure to hold a current practising certificate entails. In his original Reply and more fully in the Amended Reply, the respondent acknowledged many of the Particulars of the applicant’s Application. He has conceded from the outset that his conduct amounts to professional misconduct. In our view, the characterisation of his conduct as ‘professional misconduct’ is open on the facts as agreed. While a failure to have a practising certificate for a short period might fall at the lesser end of the spectrum of unsatisfactory professional conduct, this was a serious failure extending across three practice years. The Act, s 497, includes within the meaning of ‘professional misconduct’ conduct that involves ‘a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence’. This is an instance of both a substantial and consistent failure to maintain a reasonable standard of competence and diligence in meeting one’s occupational licensing obligations. It is not a case that raises issues in relation to the respondent’s competence and diligence in his professional work. The testimonials support that conclusion. As Gleeson CJ observed in A Solicitor v Council of the NSW Law Society [2004] HCA 1; 216 CLR 253; 204 ALR 8; 78 ALJR 310 (4 February 2004)

...[N]ot all cases of professional misconduct justify or require a conclusion that the name of a practitioner should be removed from the roll. Where an order for removal from the roll is contemplated, the ultimate issue is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court upon whose roll the practitioner's name presently appears.

There is nothing in this case, as it has evolved, that suggests that the respondent’s misconduct warrants a finding that he is not a fit and proper person to retain his place on the roll of the Supreme Court. Nor is there any reasonable basis for concluding that an order that might affect his continuation in practice (such as suspension, cancellation, or the imposition of practice conditions) is required. We think the outcome reached by the parties is appropriate, and sufficient to protect the public interest. We have noted that the Instrument of Consent has, as required by the Act, the approval of the Legal Services Commissioner, a statutory officer independent of the profession with a special charter to safeguard the interests of consumers of legal services. In that regard, we note in particular the applicant’s acknowledgment in the agreed facts of the respondent’s claim that in the period under notice the respondent’s conduct as a practitioner was covered by the group Professional Indemnity Insurance policy held by his firm. So the public was not placed at risk in that respect by his failure to hold a current practising certificate. In conclusion, we reaffirm the importance to the community of a practitioner holding a current practising certificate. The matter was addressed in some detail by the applicant’s submissions. The public’s confidence in, and trust of, the legal profession has some fundamental features. One is that a person who holds out that he or she is qualified to practise lawyer does so accurately. ‘Qualified’ for this purpose goes beyond having one’s name on the roll of persons ‘admitted’ to practice by the Supreme Court. It also necessary to hold a current practising certificate issued by the relevant body, here the applicant, the Law Society. The higher courts have emphasised the importance for public protection of these matters, and in particular, the need for practitioners to be punctilious in complying with practising certificate obligations: see, for example, Council of the NSW Bar Association v Perry [2007] NSWCA 111 at [20] per Mason P (Hodgson and Santow JJA, agreeing). As the applicant submitted (and the respondent has not disputed), the issue of an annual practising certificate is not a mere formality. Nor is it a device for raising revenue. It serves to protect the public (see Mee Ling v Law Society of New South Wales [1974] 1 NSWLR 490 at 497E per Hardie JA, at 498D-E and 499F-G per Reynolds JA; Supreme Court of New South Wales v McCaffery [2004] NSWCA 470; and Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407). The findings and orders which follow were made at the close of hearing on 23 November 2016.

Findings and Orders

(1) Instrument of Consent, approved pursuant to s 564 of the Legal Profession Act 2004



(2) The Tribunal finds the respondent legal practitioner guilty of professional misconduct.



(3) The legal practitioner is reprimanded.



(4) The legal practitioner is to pay the applicant’s costs in the agreed sum of $5,500.

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ANNEXURE

INSTRUMENT OF CONSENT: AGREED STATEMENT OF FACTS

Re: George Brett Alexander

George Brett Alexander engaged in professional misconduct in that he practised without a Practising Certificate.

In this Agreed Statement of Facts

The Solicitor means George Brett Alexander

The Society means the Law Society of New South Wales

HWL means HWL Ebsworth Lawyers

1. In 2010 the Solicitor completed his law degree (as part of the graduate law Juris Doctor program) from the University of Technology, Sydney.

2. On 28 February 2011, the Solicitor commenced his employment (as part of the Graduate program) in the Insurance Group of HWL.

3. On 7 October 2011, the Solicitor was admitted to the Roll of the Supreme Court of New South Wales.

4. Subsequent to his admission, the Solicitor continued his employment with HWL as a Solicitor.

5. The Solicitor did not hold a Practising Certificate for the years ending 30 June 2012 and 30 June 2013.

6. On or about 17 April 2013, the Solicitor received an email from Ms Whyburn, Human Resources Advisor at HWL, advising that Practising Certificate Renewal Applications were to be completed online.

7. By 30 June 2013, the Solicitor had not applied for a Practising Certificate for the year ending 30 June 2014. He continued in employment with HWL as a Solicitor.

8. On 28 October 2013, Ms Lawton, a HR Assistant at HWL, forwarded an email to the Registry of the Society (the Registry) enquiring as to why the Solicitor's name was not displaying on the Solicitor Directory.

9. On 29 October 2013, the Registry forwarded an email reply to Ms Lawton stating:

"There is no one coming up with the name Brett Alexander. There is a George Brett Alexander admitted on 07 October 2011 but has never applied for a NSW practising certificate. As he is not holding a NSW practising certificate he will not display on the website. Has he lodged an application, or is he intending to lodge one?"

10. On 29 October 2013, Ms Lawton forwarded the Registry's 29 October 2013 email to the Solicitor seeking his advice.

11. On 11 November 2013, Ms Lawton forwarded a follow-up email to the Solicitor, relevantly, enquiring:

"Could you kindly advise of there is an update with this? I will need to investigate further after you have given me any details I need to know about."

12. On 16 January 2014, Ms Lawton forwarded to the Registry the Solicitor's application for a Practising Certificate completed the previous day. A Practising Certificate was thereafter issued to the Solicitor effective from 16 January 2014.

13. The Solicitor continued in his employment, as a Solicitor with HWL under the supervision of Mr Tim Griffiths and Mr Michael Bowyer, both partners in HWL's Insurance Group, until he ceased such employment on 18 July 2014.

14. During the period 8 October 2011 to 15 January 2014 (Relevant Period), the Solicitor practised as a Solicitor when he did not hold a Practising Certificate.

15. During the Relevant Period, the Solicitor completed his Mandatory Continuing Legal Education requirements.

16. During the period from the date of his admission on 7 October 2011 until the present time, the Solicitor:

(a) was and is not an undischarged bankrupt;



(b) was and has never been convicted of any 'offence' or 'show cause event' requiring notification under Part 2.4 of the Legal Profession Act 2004 (NSW) or the Legal Profession Regulation 2005 (NSW); and



(c) had the benefit of HWL's approved professional indemnity policy at all times whilst he was employed by HWL up until his resignation on 18 July 2014 and accordingly no member of the public was at risk of losing an opportunity to be compensated for any loss they may have suffered from any professional negligence on his part whilst engaging in legal practice in the employ of HWL.

17. The Solicitor's conduct was not dishonest or untruthful.

18. The solicitor was admitted to practice on 7 October 2011 and since then has not had any previous findings of professional misconduct made against him in New South Wales.

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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