The NSW Civil and Administrative Tribunal (Tribunal) found the solicitor guilty of professional misconduct but first had to determine whether the solicitor acted in the course of legal practice in representing the client.
The solicitor was the son-in-law of the client in the negotiation of an aged care accommodation agreement1 with The Salvation Army (TSA) and claimed he was not acting for the client in the course of legal practice but was doing so as her son-in-law and/or attorney, that he held a practising certificate that only enabled him to act as a “corporate solicitor” and the legal firm noted on his letterhead did not exist and therefore, by implication, he could not act as her solicitor.
The Tribunal noted the following with regard to determining whether the solicitor did act in the course of legal practice in representing the client:
- undertaking work of a kind done by a solicitor even if it is work of a kind sometimes done by a non-solicitor does not excuse a solicitor from their ethical obligations2;
- the majority of the solicitor’s numerous and differing signature blocks indicated that he was sending his correspondence on behalf of the client as a solicitor and not her son-in-law;
- the contents of the emails including threats to commence legal action, the letterhead bearing the firm’s name, holding himself out as the “principal”3 and referencing himself as a solicitor all significantly bolstered “an inference that the solicitor was acting as a legal practitioner”4;
- failure to correct the solicitor acting for TSA who clearly believed that Mr Sideris represented the client was also relevant to the inference test;
- engaging in legal analysis and including references in his emails to limited liability and legal professional privilege supported the Council of the Law Society of New South Wales’ submission that he was her legal representative.
The Tribunal accepted that “the reasonable inference test is to be considered by reference to a reasonable person with knowledge of the material activities, which will include any statement by which the person performing the activities … explains that he or she is not a solicitor.” That would include explanations that a person is acting as an attorney or as a son-in-law.5
The Tribunal concluded that due to the above actions, the solicitor was acting as a legal practitioner in the course of the dispute.6
Once this was determined, the Tribunal then considered the following:
- Did the solicitor breach rule 33 (Communicating with another solicitor’s client) of the Conduct Rules? The Tribunal were satisfied that the solicitor breached this rule on numerous occasions despite the solicitor for TSA on repeated occasions requesting the solicitor to cease communicating directly with TSA. The Tribunal found that considered cumulatively, the conduct of the solicitor who sent 46 items of correspondence to TSA directly amounted to professional misconduct.7
- Did the solicitor send discourteous communications? The Tribunal accepted that the use of profanities, offensive and otherwise inappropriate language on numerous occasions was discourteous and once again, cumulatively justified the finding of the more serious, professional misconduct rather than the finding of unsatisfactory professional conduct.
The Tribunal then made directions requiring further evidence within 14 days of the publication of its decision (5 January 2024) in relation to the next stage of the proceedings involving the making of any protective orders, together with the awarding of costs.