| CITATION: | The Council of the New South Wales Bar Association v Hart [2009] NSWADT 252 | |
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| DIVISION: | Legal Services Division |
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| PARTIES: | APPLICANT The Council of the New South Wales Bar Association RESPONDENT John Peter Hart |
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| FILE NUMBER: | 082021 |
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| HEARING DATES: | 3 February 2009, 25 May 2009, 7 September 2009 |
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| SUBMISSIONS CLOSED: | 7 September 2009 |
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| DATE OF DECISION: |
30 September 2009 |
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| BEFORE: | Robberds L QC- Judicial Member; Wright R, SC - Judical Member; Fitzgerald R - Non-Judicial Member |
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| CATCHWORDS: | Barrister – disciplinary application – unsatisfactory professional conduct – no costs charged - failure to repay money paid in advance for costs – failure to provide costs disclosure – failure to comply with NSW Barristers’ Rule 80 – orders – protection of the public. |
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| LEGISLATION CITED : | Legal Profession Act 2004 |
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| CASES CITED: | Smith v New South Wales Bar Association 176 CLR 256 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 |
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| REPRESENTATION: | APPLICANT M Lynch, barrister RESPONDENT G Walsh, solicitor |
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| ORDERS: | The Tribunal makes the following orders: 1.An order that John Peter Hart has engaged in unsatisfactory professional conduct 2.An order pursuant to section 562 (2) (e) of the Legal Profession Act 2004, reprimanding John Peter Hart 3.An order that John Peter Hart pay a fine of $5,000 within 3 months from the date of these orders. If the fine is not paid within that period, his practising certificate is to be cancelled and no further certificate is to be issued to him until it is paid 4. An order pursuant to section 562 (5) of the Legal Profession Act 2004 that for a period of 3 years from the date of these orders, any practising certificate issued to John Peter Hart shall be endorsed with the following conditions: (i) to attend for treatment and counselling for alcohol dependency on Dr John Roberts at the rate of not less than one consultation every three months from the date of these orders, provided that in the event that Dr Roberts is unable or unwilling to continue consultations with him, then he is to consult with another specialist practitioner approved by the Bar Council (in either case the “treating specialist”);(ii) John Peter Hart shall comply with any treatment (including medication, any further attendances for treatment (including but not limited to attendances at meeting of Alcoholics Anonymous) and urine, blood and other testing) recommended by the treating specialist;(iii) John Peter Hart shall arrange for the treating specialist to provide a written report to the Bar Council every three months reporting on:(a)his attendance on the treating specialist;(b)his compliance with any treatment recommended by the treating specialist;(c)his progress under treatment; (d)any continuing treatment recommended.(iv) The first report of the treating specialist is due three months after the date of these orders;(v)John Peter Hart shall meet the costs of the treating specialist and any other required treatment or testing. 5.An order that John Peter Hart pay the Council’s costs of these proceedings, as agreed or assessed 6.An order that these reasons for decision and orders be published. |
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REASONS FOR DECISION 1 On 8 September 2008 the Council of the New South Wales Bar Association (the Council) filed in the Tribunal an application for original decision which sought the following orders against John Peter Hart (the Barrister): i. That John Peter Hart has engaged in unsatisfactory professional conduct. ii. Such further or other orders as are provided in s.562 (2) (b) – (e) or s.562 (4) (a) – (j) of the Legal Profession Act 2004 as the Tribunal thinks fit. iii. The respondent John Peter Hart pay the applicant’s costs of the proceedings. iv. Liberty to apply. For the reasons set out below the Tribunal is of the view that the Barrister engaged in unsatisfactory professional conduct. The Council’s application and the Barrister’s reply 2 The Council’s application included 3 grounds each of which was particularised. 3 The Barrister filed a reply to the application. In that document the Barrister replied to each of the 3 grounds and set out particulars of each reply. 4 Set out below is each ground of the application and the Barrister’s reply. Ground 1
Reply
Ground 2
Reply
Ground 3
Reply
Concession by the Barrister Background 7 The complaint described the main issues that Ms Lane was complaining about as: (a) deposit of funds not refunded; (b) no work performed nor invoices for work performed. No legal schedule of fees issued; and (c) constant promises to refund the funds. 9 On 11 December 2006 the Legal Services Commissioner referred the complaint for investigation by the Council. On 20 December 2006 Ms Lane wrote to the New South Wales Bar Association (the Association) stating that she had received a lump sum payment of $10,000 from the Barrister and that she wished to withdraw her complaint. 10 On 22 February 2007 the Council resolved to accept the withdrawal of the complaint but further resolved to make a complaint against the Barrister the details of which basically corresponded with the 3 grounds set out in the application filed in the Tribunal. 11 No affidavit by Ms Lane was placed before the Tribunal and she did not give oral evidence. The Facts Ground 1 12 The Barrister was admitted as a barrister of the Supreme Court of New South Wales on 19 December 1986. He has practised as a barrister since that time and the vast majority of his work is in the area of criminal law. He has carried out some family law and civil work but that is not his preference (3 February 2009 T24\37 – 48 and para 4 of the Barrister’s affidavit sworn 28 January 2009). 13 In about November 2005 the Barrister received instructions directly from Ms Lane. Ms Lane was a friend of the Barrister’s sister in law and they met, not for the first time, in about November 2005 when the Barrister was staying at the home of his sister in law at Ulladulla on the South Coast (3 February 2009 T10\4 – 19). Ms Lane instructed the Barrister to act on her behalf in relation to a family law\apprehended violence matter concerning her son and her ex partner who was the father of her son (paras 5 – 7 of Barrister’s affidavit and para 10 of Ms Lane’s complaint form). 14 According to Ms Lane the Barrister asked her to ring him when he got back to Sydney and when she did so he told her to put $10,000 into his account and that that amount would cover costs. According to Ms Lane she extended her house mortgage and deposited the $10,000 into the Barrister’s bank account on 29 November 2005 (para 10 of her complaint form and the bank records showing the withdrawal and the deposit of that sum on 29 November 2005). 15 The Barrister recalls handing to Ms Lane a fee disclosure statement but he does not recall whether he handed that document to her before or after the receipt of the money. He had assumed that the document was adequate but in his affidavit sworn in these proceedings he conceded that he was clearly wrong (para 10). 16 According to the Barrister: (a) he attended upon Ms Lane at his sister in law’s home at Ulladulla on a number of occasions from late 2005 until March\April 2006; (b) on such occasions he attended upon Ms Lane for approximately 1 hour or more; (c) it is his best recollection that over that period he attended upon Ms Lane on approximately 10 occasions; (d) he took notes in respect of her instructions however the file in which these notes were kept has been destroyed; and (e) he left his file with his sister in law but it was thrown out by his sister in law’s partner (paras 11 – 13 of the Barrister’s affidavit; 3 February 2009 T29\10; the letter dated 20 June 2007 from the Barrister’s solicitor to the Association; and 3 February 2009 T32\25 - 31). 17 According to Ms Lane things settled down between her ex partner and herself with the result that she apparently had no further need for the Barrister’s assistance. On 12 May 2006 she rang the Barrister and asked for any balance of funds to be returned to her. The Barrister told her that he would do so by 19 May 2006 (para 10 of the complaint form and para 17 of the Barrister’s affidavit). 18 According to Ms Lane she made further telephone calls to the Barrister’s message bank and left messages for him which he did not return (para 10 of the complaint form). On 8 November 2006 Ms Lane wrote to the Barrister referring to their telephone discussion on 12 May 2006 confirming that the Barrister stated that the balance of the moneys not used would be returned to her by 19 May along with invoices for work performed on her behalf. The letter went on to say that the $10,000 had not been returned even though the Barrister knew that it was acquired from an extension to her mortgage with the result that she was being penalised by additional payment amounts. She referred to the fact that she was a single mother and that these payments were creating severe hardship for her. She demanded a return of the money within 14 days after which date legal action would be commenced. The letter indicated that a copy was sent to the Legal Services Commissioner. 19 The Barrister accepts that the letter of demand was forwarded to him and that he should have by that time refunded the moneys to Ms Lane (para 18 of his affidavit). 20 In cross examination the Barrister stated that he remembered seeing the solicitor for Ms Lane’s ex partner at a court, discussing the matter and as a result of that discussion the matter settled down (3 February 2009 T39\25 - 26). 21 During the investigation carried out by the Council, it corresponded with the Barrister and his solicitor. On 2 March 2007 the Council forwarded to the Barrister a further copy of Ms Lane’s complaint form. On 20 March 2008 the Council wrote to the Barrister’s solicitor enclosing a copy of a draft report dated 12 March 2008 prepared by a professional conduct committee of the Association. In paragraph 14 of that draft report, reference was made to the complaint made by Ms Lane and the draft report stated: “It was also said that further telephone calls were made where messages were left and remained unreturned (the dates of such calls are not known).” 22 However the Barrister gave evidence to the effect that he had no recollection that Ms Lane extended her house mortgage in order to borrow the $10,000 (3 February 2009 T37\13) and he had no recollection of receiving any further telephone calls or message bank calls from Ms Lane (3 February 2009 T37\16). 23 On 20 December 2006 Ms Lane wrote to the Association advising that she had received a lump sum payment of $10,000 from the Barrister and that she wished to withdraw her complaint. 24 In his affidavit the Barrister: (a) conceded and unreservedly accepted that it was his obligation to return the balance of the funds to Ms Lane after her request made on 12 May 2006. He stated that through this period he simply did not apply himself, due to work and personal commitments, to return the balance of the funds. He also stated that he appreciated that those matters did not give rise to any excuse on his part and that he regretted his conduct (para 17); (b) stated that at the time Ms Lane requested the return of the balance of her funds, his best estimate was that the fees that she had incurred for work carried out by him were approximately $5,000 (para 15); and (c) stated that he did not render Ms Lane a memorandum of fees and that this was never requested by her. He accepted that he ought to have promptly not only refunded the balance of fees to Ms Lane but at the same time rendered to her a memorandum of fees. He stated that he had no excuse for failing to do so (para 20). 25 The particulars in the Barrister’s reply in effect stated that the work which he carried out for Ms Lane would have amounted to approximately $5,000 in fees. 26 There was no documentary evidence before the Tribunal which recorded the dates of the conferences which the Barrister stated he held with Ms Lane. He gave evidence that it was very difficult to work out the times and dates but he would have spoken to Ms Lane 8 or 10 times, perhaps more (3 February 2009 T13\24 – 29). 27 The Barrister was extensively cross examined on this figure of $5,000. He gave evidence that the $5,000 was solely in relation to the eight or ten conferences he had with Ms Lane (3 February 2009 T26\33). It was suggested to him that the $5,000 figure was a significant exaggeration and that he had overstated the extent of the work that he had carried out (3 February 2009 T26\46). He did not agree with either suggestion. 28 He was asked why he did not charge any fees and his answer was to the effect that he decided that if he was going to charge he would have charged about $5,000 but as he did not have the file and as Ms Lane was an ex friend of his sister in law and he had known her for some years, he decided he would not charge anything (3 February 2009 T27\37 and see also T12\50 – T13\18). 29 In paragraph 46 of the draft report the following part of Ms Lane’s letter dated 8 November 2006 was set out: “This money ($10,000) has not yet been returned to me even though you knew that it was acquired from an extension to my mortgage, and as such I am being penalized by additional payment amounts, and being a single mother these payments are creating severe hardship.” 30 The Barrister was invited to provide written submissions and the Barrister was informed that before the Committee submitted its report to the Council it wished to afford the Barrister the opportunity to be heard in relation to any matter contained in the draft report. 31 The Barrister did not respond to the invitation. 32 On 16 May 2008 the Association wrote to the Barrister’s solicitor informing him that on 8 May 2008 the Council resolved that on the material currently available to it, it was minded to form the view in respect of the complaint that the Barrister had engaged in unsatisfactory professional conduct. The letter concluded by informing the solicitor that contact would be made again when the Council was in a position to provide a draft disciplinary application, for the purpose of affording the Barrister an opportunity to provide any submissions he wished to make in respect thereof before the Council made its decision with respect to the complaint. 33 On 10 June 2008 the solicitor for the Barrister wrote to the Association stating that he was instructed that the Barrister did not seek to make any further submissions in relation to the matter. 34 At no time prior to giving evidence before the Tribunal did the Barrister ever dispute what was set out in the complaint made by Ms Lane on 6 December 2006 (3 February 2009 T37\43 - 48). 35 Part of the evidence before the Tribunal comprised the draft report of a professional conduct committee of the Association dated 12 March 2008. In paragraph 16 of that report it was stated that the funds ($10,000) were repaid on 14 December 2006. There was no other evidence placed before the Tribunal as to the date of repayment except a statement in paragraph 7 of an earlier draft report dated 30 July 2007 that on 14 December 2006 Ms Lane telephoned the Deputy Director, Professional Conduct and advised that she had received a cheque in the mail that day representing the return of the funds on account. Ground 2 37 The fee disclosure statement accordingly complied only with part of paragraph 309 (1) (a) of the Legal Profession Act 2004 and did not comply with any of the other requirements of that section. Ground 3 39 In paragraph 10 of his affidavit the Barrister stated in effect that he conceded that the fee disclosure statement was inadequate so far as the requirements of section 309 of the Legal Profession Act was concerned. He stated that he had assumed that the document was adequate; that he was clearly wrong and conceded the particulars set out in the application. 40 The Barrister expanded upon that in cross examination saying that he became aware through his correspondence with the Association that the fee disclosure statement was totally inadequate (3 February 2009 T8\45 - 47). He gave evidence to the effect that what was stated in that document was all that he thought that he had to set out (3 February 2009 T21\43 - 44). 41 In his affidavit the Barrister stated that as a result of the complaint against him he had adopted a new form of fee disclosure statement which he believed complied with his obligations under the Legal Profession Act. He also stated to the effect that as a result of what has occurred in this matter he now ensures that he promptly provides any potential client with a copy of his new fee disclosure statement and he also ensures that he promptly renders a memorandum of fees (paras 21 and 22). Finding of the Tribunal Further evidence 44 Upon the resumption of the hearing on 25 May 2009 a report dated 12 April 2009 by Dr John Albert Roberts, a psychiatrist with a special interest in relation to drug and alcohol dependencies, was tendered by the Barrister. In that report it was stated that the Barrister’s alcohol ingestion was of thirty years duration and that he used to be a heavy drinker consuming in excess of ten to twelve schooners of normal strength beer at a session. The report also stated that Dr Roberts considered that the Barrister’s difficulties in functioning normally and of his having had the problems set out in a document “Chronology on penalty” would fulfil the DSM-4 diagnosis of alcohol abuse and at times at least dependency. Dr Roberts also noted that the Barrister’s condition of excessive alcohol ingestion was on reasonable psychiatric grounds, a substantial factor in causing him to engage in behaviour that was contrary to the standard of behaviour that is required of a member of the Bar. Dr Roberts interviewed the Barrister on 25 February 2009. 45 On 25 May 2009 the Barrister gave further evidence and confirmed that the history which he gave to Dr Roberts concerning his ingestion of alcohol was correct. He had been on occasions consuming in excess of ten to twelve schooners of normal strength beer per session and those sessions occurred four to five times per week. However he gave evidence that the last time that he had consumed alcohol of that nature and of that frequency was in February 2009. He also gave evidence that he had not consumed any alcohol since 28 February 2009, that his meeting with Dr Roberts was very insightful to him and that Dr Roberts had helped him a lot in why he drank alcohol and how he drank alcohol. He stated that he was prepared to undertake testing as directed by Dr Roberts. 46 The Barrister also gave evidence concerning his financial position. He said that his approximate gross income on a weekly basis averaged $3,000 to $4,000. He resided with his wife and two of his children aged 16 and 19 resided with him and were dependent on him. His wife works as a nurse two and sometimes three times per week. There is a mortgage on his home of about $350,000 and his wife’s wages are used to pay that mortgage. After payment of expenses he said that there was never much money left over and that an order suspending him from practice would be devastating for his family (25 May 2009 T10 – 12). 47 On 25 May 2009 the Barrister was further cross examined as to why he had not promptly repaid the $10,000 to Ms Lane. He was asked whether his alcohol problems had anything to do with that failure and he said that in hindsight he would have to agree that it did. (25 May 2009 T22\33 - 34). He gave evidence that he had the money available and could not give any other explanation for his failure to repay. He said he was not using his alcohol problems as any excuse. He also said that it was not until he spoke to Dr Roberts in February 2009 that he first started to attempt to confront his alcohol problem (25 May 2009 T23\40 - 42). 48 He gave evidence to the effect that if the Tribunal thought it appropriate to impose conditions on his right to practice which required him to see Dr Roberts or another suitably qualified practitioner on a regular basis for the indefinite future, he would consent to those conditions. He said he would also submit to any treatment regime which those practitioners recommended to him. 49 He gave evidence that he and his wife had two investment properties but there was a shortfall on one of them and the other had been a disaster moneywise and they put in $2,000 to $3,000 each month to keep it going (25 May 2009 T33\36 – 42). 50 Dr Roberts gave evidence that he did not think that it was conceivable that a person who was drinking ten to twelve schooners of normal strength beer at a session and doing that on a number of occasions per week, could be deemed to be capable of functioning normally (25 May 2009 T38\26 - 32). He was of the view that such a person’s competency would be impaired (25 May 2009 T38\47). 51 He said that people who drink become dysfunctional and then neglectful of their obligations. They simply do not perform and fulfil their obligations, whether personal or professional, as one would anticipate (25 May 2009 T40\50 - 41\2). 52 He gave evidence of a proposed treatment program if the Barrister was to address his long term history of alcoholism. That program included testing to see whether he was drinking to excess (25 May 2009 T43\27 – T44\31). 53 He gave evidence that he was of the view that the Barrister’s level of alcohol ingestion would compromise any professional functioning appropriately (25 May 2009 T48\47 - 48). 54 He expressed the view that if the Barrister abstained from drinking alcohol there was a potential for his brain to get better and that there was no reason why he should not be able to exercise his skills (25 May 2009 T50\1 – 13). 55 He also gave evidence that he thought it would be a very good form of treatment for the Barrister if he attended regular meetings of Alcoholics Anonymous (25 May 2009 T50\46 – T51\14). 56 He gave evidence that when he saw the Barrister in February 2009, when he saw him on 25 May 2009 and when he saw him giving evidence in the Tribunal that day, he was unable to detect any evidence of impaired competency to act as a barrister or as a human being. He said he could find no evidence that he was impaired in terms of the psychiatric presentation currently (25 May 2009 T51\31 – 50). 57 The Tribunal concluded on 25 May 2009 that the evidence given on that day put a different complexion on the evidence previously given and it was of the view that the proceedings should be adjourned for three months provided the Barrister was prepared to give the following undertakings and to carry them out: (i) he would undertake two CDT tests per month and provide the results to Dr Roberts;
(iii) he would see Dr Roberts once per fortnight for a set-up period and each six to eight weeks thereafter; (iv) he would attend Alcoholics Anonymous twice per week and provide to his solicitor weekly written evidence from Alcoholics Anonymous of his attendance; (v) he would obtain a fortnightly report from Dr Roberts as to his contact with him and serve the report upon the solicitor for the Council; (vi) he would obtain a further report from Dr Roberts after eight weeks and serve the same on the Council; and (vii) he would weekly serve the written evidence obtained from Alcoholics Anonymous on the Council. The Barrister gave those undertakings (25 May 2009 T60\49 – T61\13). The proceedings were then adjourned to 7 September 2009. 59 For the hearing that day the Council prepared a document setting out the orders which it sought. One of the orders sought was in the following terms:
to attend for treatment and counselling for alcohol dependency on Dr John Roberts at the rate of not less than one consultation every three months from the date of these orders, provided that in the event that Dr Roberts is unable or unwilling to continue consultations with Hart, then he is to consult with another specialist practitioner approved by the Bar Council (in either case the “treating specialist”) Hart shall comply with any treatment (including medication, any further attendances for treatment (including but not limited to attendances at meeting of Alcoholics Anonymous) and urine, blood and other testing) recommended by the treating specialist Hart shall arrange for the treating specialist to provide a written report to the Bar Council every three months reporting on: Hart’s attendance on the treating specialist; Hart’s compliance with any treatment recommended by the treating specialist; Hart’s progress under treatment; any continuing treatment recommended. The first report of the treating specialist is due three months after the date of these orders; Hart shall meet the costs of the treating specialist and any other required treatment or testing.” 60 The Barrister gave further evidence and during that evidence he was handed a copy of the document and stated that he agreed with that proposed order. He also gave evidence that he was a person that just could not drink alcohol and that his work as a barrister had improved markedly. He said that he had lost 12 kilograms in weight and was feeling better. He also gave evidence that it was his intention to go to Alcoholics Anonymous for the rest of his life and that the previous week he had chaired his first meeting. Maximum fine 62 The Tribunal raised with the parties whether in these proceedings there was more than one complaint. The Council submitted that there was only one complaint. In those circumstances the Tribunal will proceed on the basis that there was only one complaint. The Barrister’s antecedents The Barrister’s alcoholism and the present complaint
66 Three of the orders sought by the Council were that the Barrister be reprimanded, that he pay a fine of $10,000 and that he pay the Council’s legal costs. 67 Although the Barrister’s alcoholism played a part in his conduct the subject of these proceedings, it must be remembered that disciplinary proceedings against a legal practitioner are primarily directed towards the protection of the public and not the punishment of the legal practitioner (Smith v New South Wales Bar Association 176 CLR 256 at 272, Deane J). 68 Section 309 of the Legal Profession Act 2004 is an important section which is aimed at ensuring that a prospective client receives appropriate information about the legal costs which will be incurred if the lawyer is retained. 69 Rule 80 of the New South Wales Barristers’ Rules requires a barrister to inform a prospective client of important information. Failure to comply with section 309 and Rule 80 are serious matters. 70 The Barrister’s failure to return the money to Ms Lane was a serious breach by him of the duty which he owed to his client. 71 The protection of the public is not confined to protection against further default by the legal practitioner in question. It extends also to the protection of the public against similar defaults by other legal practitioners and has, in this sense, the purpose of publicly marking the seriousness of what the instant legal practitioner has done (Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 440G – 441B, Mahoney JA). 72 The Tribunal is of the view that a public reprimand and a substantial fine (having regard to the fact that the maximum fine is $10,000) are appropriate as they will publicly mark the seriousness of what the Barrister has done. 73 In addition to the circumstances of the matter and the Barrister’s disciplinary history, the Tribunal has also taken into account in determining the amount of the fine the relatively poor financial circumstances of the Barrister and the fact that his alcoholism played a part in his conduct. The Tribunal is of the view that the appropriate amount of the fine is $5,000. 74 In accordance with s 566(1) of the Legal Profession Act 2004, the Barrister will be ordered to pay the Council’s costs as no exceptional circumstances have been suggested to exist by the Barrister and the Tribunal does not find there to be any. Orders
2. An order pursuant to section 562 (2) (e) of the Legal Profession Act 2004, reprimanding John Peter Hart. 3. An order that John Peter Hart pay a fine of $5,000 within 3 months from the date of these orders. If the fine is not paid within that period, his practising certificate is to be cancelled and no further certificate is to be issued to him until it is paid. 4. An order pursuant to section 562 (5) of the Legal Profession Act 2004 that for a period of 3 years from the date of these orders, any practising certificate issued to John Peter Hart shall be endorsed with the following conditions:
(ii) John Peter Hart shall comply with any treatment (including medication, any further attendances for treatment (including but not limited to attendances at meeting of Alcoholics Anonymous) and urine, blood and other testing) recommended by the treating specialist; (iii) John Peter Hart shall arrange for the treating specialist to provide a written report to the Bar Council every three months reporting on: his attendance on the treating specialist; his compliance with any treatment recommended by the treating specialist; his progress under treatment; any continuing treatment recommended. (iv) The first report of the treating specialist is due three months after the date of these orders; (v)John Peter Hart shall meet the costs of the treating specialist and any other required treatment or testing. 6.An order that these reasons for decision and orders be published. |
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.
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