Ethics and Professional Responsibility Assessment PDF

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Ethics and Professional Responsibility Assessment 2: Nate Mathein Council of the Law Society of New South Wales v Davidson [2020] NSWCATOD 71 The case of ‘Davidson,’ was applied by the Law Society of New South Wales, involving the respondent who was a practicing lawyer, ‘Chona Encarnacion Castillo Davidson.’ The case was ultimately split into two segments and held on two separate dates, ‘The Liability Decision’ and ‘Stage 2’. The reasoning for this was a publication of a decision in Council of the Law Society of New South Wales v DXW, where the Law Society was questioned on the basis of jurisdiction and relevant authority1, this was until the amendment of Justice Legislation Amendment Act 2019, where the Law Society was given the affirmation of proper authority. The application was in respect to Ms Davidson misspending clients’ money held within trust accounts where she; drew cheques on a trust account using money held for a client to pay the filling fee for another and misappropriated a sum of $10,000 by transferring it into a personal account that was overdrawn breaching s 146 as money had been interchanged between clients trust funds and her personal accounts.2 It was found that Davidson had failed to keep records of trust accounts which contravened s 370 and s 147 of Legal Profession Uniform Law (NSW) showcasing unsatisfactory professional conduct, where it was considered dishonest ‘according to the standards of ordinary and decent people.’3 Davidson was issued with a ‘restricted practicing certificate’. Are Character References from lawyers more relevant than non-lawyers? A character reference is made upon the basis of trying to show whether the accused or in this case the respondent is of good or bad character, the importance of good character in law is paramount as ‘conduct and behaviour should reflect the character we aspire to have as a profession.’4 In 1 Council of the Law Society of New South Wales v DXW [2019] NSWCATOD 101. 2 Legal Profession Uniform Law (NSW) s 146 3 Council of the Law Society of New South Wales v Davidson [2020] NSWCATOD 71 (‘Davidson’), see also R v Ghosh [1982] EWCA Crim 2. 4 The Law Society of New South Wales, ‘Statement of Ethics’ (28 May 2009).

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the case of Davidson the tribunal stated that ‘character references from non-lawyers should be given less weight than references from people who are legally qualified.’5 It was explained that lawyers have a profound knowledge of law and its practice, where they can properly assess the respondents actions. In Law Society of New South Wales v Foreman (1994), a solicitor was found fabricating timesheets in order to prove that a cost agreement was established between himself and the client where substantial fees were present.6 Character references were used to portray her good work and strong qualities as a solicitor, ‘It is in the public interest that such a conscientious legal practitioner should remain in practice.’7 However the question was asked if ‘other practitioners would feel able to trust a person who had been found to have committed the wrong.’8 Foreman was however still disbarred due to professional misconduct under s 297 where it was found she was not ‘fit and proper to engage in legal practice.’9 Within Davidson three character references were made towards the defendant where two legal practitioners had attested to her good character, this however followed the same path as Foreman and was given low weight as such a wrongdoing cannot be overthrown due to serious misconduct. Lawyers are placed in a position of trust where a duty of care may arise that must be responsibly and carefully approached. A legal practitioners statement is not merely more or less relevant than a non-practising person, rather professional expertise showcases the professional standard, assessing if such conduct would seriously affect future inter-client relations or the relationship between legal practitioners. The Importance of Protecting the Public in Disciplinary Proceedings ‘Disciplinary proceedings are concerned with the protection of the public.’10 In ‘Ethics: For the protection of the public,’ the key rational is that professional misconduct followed by strict proceedings 5 Council of the Law Society of New South Wales v Davidson [2020] NSWCATOD 71 [13]. 6 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 see also 441 per (Mahoney JA). 7 Ibid, (Justice Kirby P) at 448-449. 8 Ibid. 9 Legal Profession Uniform Law (NSW), s 297 see also Legal Profession Uniform General Rules 2015 (NSW) r 13(1). 10 Council of the Law Society of New South Wales v Davidson [2020] NSWCATOD 71 [3].

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are unique as they serve to emphasize the professions ‘public service’ values.11 The article purses the idea that professional disciplinary conduct proceedings are focused solely on protecting the public, where a civil standard of proof is applied rather than a criminal.12 In NSW Bar Association v Evatt (1968), found that a barrister was unfit for practice due to subsequent facilitation and conduct towards clients and other legal practitioners, where he had breached r 4.1.1 in promoting the clients best interests and r 12.2 as he had exercised undue influence to benefit himself.13 The Supreme Court had explicitly stated that the exercise of their powers, whilst it may have a detrimental effect upon Mr Evatt, was in protection of the public not ‘a punishment for wrongdoing.’14 The importance of public protection is paramount as lawyers serve as public servants, where the ‘law’ must be abided by those who seek to protect and serve it. ‘In practice, the client must depend upon the standards as well as the skill of his professional adviser.’15 If fiduciary duties such as loyalty to the client, confidentiality, to serve in the clients best interests and to not put your own interests before those of the client are then broken then the publics overall perception and trust in the profession of law would diminish. A lawyers overriding duty is to the administration of justice, where they must ensure the integrity of the rule of law. ‘When lawyers fail to ensure their duty to the court is at the forefront of their minds, they do a disservice to their client, the profession and the public as a whole.’16 Are Lawyers Health Problems a Mitigating Circumstance? The health and wellbeing of those in the practice of law, is of the upmost importance as long hours and high stress environments can have negative mental and physical impact on solicitors. A requirement under rule 23 of the Admission rules states that ‘the Board may require the applicant to 11 Gino Point, ‘Ethics: The Protection of the Public’ (2004) 78(9) Law Institute Journal, p. 81. 12 Evidence Act 1995 (NSW), s 140. 13 Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 (NSW), r 4.1.1 and r 12.2. 14 NSW Bar Association v Evatt (1968) 117 CLR 177 p 183-184. 15 Ibid, 184. See also Rondel v Worsley [1969] 1 AC 191, 227 (Lord Reid). 16 Hon. Marilyn Warren, ‘The Duty Owed to the Court’ (Speech, Judicial Conference Melb, 9 October 2009).

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provide a health report to the Board,’17 if it is found that the Board considers the report made is insufficient, the individual can be refused ‘for reasons of health’ satisfactorily required to carry out practice. The disclosure of mental health is covered within Psychiatric disability and the practising lawyer in Australia, where it is often a problem that practicing lawyers may face termination or refusal from practice if they disclose such information such as mental or physical ilnesses.18 The article states that lawyers have a higher chance of being bullied within the work place and are in higher stress related environments than most professions due to management issues, KPI requirements and long hours.19 In the case of Davidson the respondent had serious health issues and had undergone chemotherapy, which a psychological side effect surfaced. The tribunal found that the respondent practiced 14 years as a government lawyer where she had no prior knowledge of trust accounts, however the physical and mental effect stated by her doctor should have been reported to her employer.20 The tribunal found that the respondent was not functioning as she normally would due to her health and thus it must be taken as a mitigating circumstance. Davidson was not removed from the role, but placed on a restricted practice certification.21 Health, both physical and mental should be held as a mitigating circumstance, as the wellbeing of solicitors in situations of high stress and pressure may cause unforeseen or extraordinary incidents from occurring. Did Davidson Find the Correct Balance Between maintaining professional standards, protecting the public and disciplining the offender? The liability decision held that the conduct the respondent had undertaken was objectively dishonest for a lawyer, moreover in regard to the standard of an ordinary and decent person.22 ‘Conduct of a lawyer that falls short 17 Legal Profession Uniform Admission Rules 2015 (NSW), s 23(1), s 23(3)(b). see also s 24. 18 Frances Gibson, ‘Psychiatric disability and the practising lawyer in Australia’ (2012) 20 Journal of Law and Medicine 391. 19 James C, "Lawyer Dissatisfaction, Emotional Intelligence and Clinical Legal Education" (2008) 18 Legal Education Review 123 at 136. 20 Legal Profession Act 2004 (NSW), s 9, Suitability matters. 21 Council of the Law Society of New South Wales v Davidson [2020] NSWCATOD 71 [18]. 22 R v Ghosh [1982] EWCA Crim 2.

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of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.’23 The tribunal however held that removal from the roll was unnecessary as the solicitor could partake in social justice,24 where the core of the misconduct could not be repeated as her license was to be restricted. The tribunal had explicitly mentioned the need to protect the public and make an overall statement of deterrence towards those who may think to offend, where the restricted license was the ‘statement’ as she could not practice with a trust account.25 This however may be problematic as Davidson had shown that she was not of ‘good fame and character,’ the question arose, if her mental and physical disabilities at the time resulted in a lesser penalty. The outcome of Davidson’s restricted license would ultimately result in the termination of her current employment as she could no longer work around trust funds.26 The tribunals decision to keep the respondent on the roll may be controversial, however Davidson would surely face the repercussions for the rest of her career in the practice of law.27 The tribunal in Davidson had balanced all elements of professional conduct effectively with the exception of protecting the public, the issue being if Davidson’s health at the time saved her from being struck from the roll. Objectively in regard to common law Davidson should have been removed from the roll, this decision may cause complications in future instances of professional misconduct.28 Bibliography A Articles/Books/Reports Frances Gibson, ‘Psychiatric disability and the practising lawyer in Australia’ (2012) 20 Journal of Law and Medicine 391

23 Legal Profession Uniform Law (NSW), s 296. 24 Council of the Law Society of New South Wales v Davidson [2020] NSWCATOD 71 [21]. 25 Law Society of New South Wales v Walsh [1997] NSWCA 185. 26 Ibid [22]. See also Legal Profession Uniform Law (NSW), s 58. 27 Dupal v Law Society of New South Wales [1990] NSWCA 56 (Kirby P) [28]. 28 Law Society v Mattila [2018] NSWCATOD 9 at [41]. “Probable permanent unfitness”.

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Gino Point, ‘Ethics: The Protection of the Public’ (2004) 78(9) Law Institute Journal James C, "Lawyer Dissatisfaction, Emotional Intelligence and Clinical Legal Education" (2008) 18 Legal Education Review 123 The Law Society of New South Wales, ‘Statement of Ethics’ (28 May 2009) B Cases Council of the Law Society of New South Wales v Davidson [2019] NSWCATOD 105 Council of the Law Society of New South Wales v Davidson [2020] NSWCATOD 71 Council of the Law Society of New South Wales v DXW [2019] NSWCATOD 101 Dupal v Law Society of New South Wales [1990] NSWCA 56 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Law Society v Mattila [2018] NSWCATOD 9 Law Society of New South Wales v Walsh [1997] NSWCA 185 NSW Bar Association v Evatt (1968) 117 CLR 177 Rondel v Worsley [1969] 1 AC 191, 227 R v Ghosh [1982] EWCA Crim 2 C Legislation Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Justice Legislation Amendment Act 2019 (NSW) Legal Profession Act (NSW) 6

Legal Profession Uniform Admission Rules 2015 (NSW) Legal Profession Uniform Law (NSW) Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) Legal Profession Uniform General Rules 2015 (NSW) D Treaties E Other Hon. Marilyn Warren, ‘The Duty Owed to the Court’ (Speech, Judicial Conference Melb, 9 October 2009)

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