A principal who misrepresented a judge’s opinion in a letter to a costs assessor has lost his appeal of a disciplinary finding that he engaged in unsatisfactory professional conduct.
In a New South Wales Court of Appeal judgment on 20 August, Appeal Justices Mark Leeming and Anna Mitchelmore, and Acting Justice Derek Price, found the characterisation of conduct made by the NSW Civil and Administrative Tribunal on 7 November last year was correct.
In their 34-page decision, the judges outlined the history of the matter involving the principal of a Sydney boutique firm, who had been practising as a solicitor for more than 24 years.
The Law Society of New South Wales received a complaint in November 2020 on behalf of a client who had been the subject of financial management orders made in 2018 by the NSW Civil and Administrative Tribunal, under which the NSW Trustee and Guardian had been appointed to manage the client’s finances.
The practitioner was retained by the client in February 2018 and began several proceedings on behalf of the client in the Supreme Court, including proceedings seeking a determination that she was capable of managing her own financial affairs.
The transcript of a directions hearing in April 2019 recorded an exchange between Justice Geoff Lindsay and the client’s senior counsel, in which senior counsel pressed for a hearing on the question of capacity, submitting there was “no doubt” that the client currently had capacity, and that the defendants should not be permitted to file further expert evidence.
Justice Lindsay did not accept those submissions and made directions permitting the defendants to seek leave to file further expert evidence
Separately, the NSW Trustee and Guardian filed for an assessment of the practitioner’s costs in the various Supreme Court proceedings. In just over a year, the practitioner’s costs had exceeded $1.2 million.
In a letter to the costs assessor seeking a stay of the assessment, the practitioner stated that His Honour had noted at the April 2019 directions hearing that there was no doubt that the client had capacity.
At the time, the practitioner did not have the transcript of the hearing or a contemporaneous note about it.
The complaint made against him was that he tried to have the costs assessment stayed by inaccurately representing to the costs assessor that Justice Lindsay had expressed an unqualified positive opinion about the client’s capacity.
In July 2024, the Law Society concluded that the appellant had engaged in unsatisfactory professional conduct within the meaning of s 296 of the Legal Profession Uniform Law 2014 (NSW), and should receive a caution.
On review, the tribunal affirmed the Society’s decision, then the practitioner appealed to the Supreme Court. His four main grounds were: a disparity between the letter and what was said at the April 2019 directions hearing, the reasonableness of his recollection of what was said there, the capacity of the letter to mislead the costs assessor, and the “recklessness” of his use of language in the letter.
The judges found the tribunal was correct to find the practitioner’s conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.
They found that, in context, the practitioner’s statement in the letter, conveyed an unequivocal opinion from the judge that the client had capacity.
Justice Leeming said that throughout the April 2019 directions hearing, it was plain that Justice Lindsay did not accept the question of the client’s capacity was resolved.
“The fact that his Honour granted leave for additional expert evidence to be adduced is consistent only with a view that the issue of capacity remained in issue,” he said.
Following that directions hearing, the costs assessor directed the practitioner and the client to provide submissions within 14 days. The practitioner responded with a letter which included the statement: “At the last Directions Hearing on 15 April 2019, His Honour noted that there is no doubt that (the client) has capacity.”
“At the level of substance, the critical sentences of (the practitioner’s) letter are a substantially distorted description of the contested directions hearing on 15 April 2019,” Justice Leeming said.
“The whole point of the directions hearing was to resolve doubts about the client’s capacity, and to that end, leave was granted to adduce further evidence, over the opposition of counsel instructed by (the practitioner).
“Far from there being ‘no doubt that [the client] has capacity’, that was the whole point of the contest at the hearing and the orders which emerged.”
The judges found the reasonableness of practitioner’s recollection was not determinative of the tribunal’s conclusion.
Justice Leeming said the practitioner claimed to have a “clear” recollection of the April directions hearing when he affirmed an affidavit of 20 December 2024, more than five-and-a-half years later, and despite no note being taken.
“And he said that he had a clear recollection of Lindsay J saying, ‘there is no doubt that (the client) has capacity, what we don’t know is whether she will continue to have capacity’,” he said.
Justice Leeming said even though the practitioner’s evidence as to his recollection was accepted by the tribunal, when the practitioner wrote to the costs assessor, he was in a position of direct conflict between self interest and his obligations to his client.
“The course he urged upon the costs assessor was to (his) immediate financial advantage – he was seeking not to have to prepare submissions justifying the over $1.2 million he had by that time charged his client,” he said.
“(The practitioner’s) ability to ask, on behalf of his client, to stay the process of that assessment presupposed that the client had given her fully informed consent to a course which was in his interest and at least arguably contrary to her own.
“That consent turned upon her capacity. In those circumstances, it was incumbent upon (the practitioner) to be assiduous in his statements of his client’s capacity.”
The judges said the tribunal’s use of the word “reckless” to describe the practitioner’s conduct was not intended to characterise it as more than “careless”.
Justice Leeming said that even if the letter’s inaccuracy was merely due to carelessness, the error was “nonetheless a serious departure from the substance of what occurred at the directions hearing”.
The judges said it was unnecessary to determine whether the letter misled the costs assessor.
They also ordered the practitioner to pay the Society’s costs.
Read the case here.
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