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Here is a summary of recent court decisions in NSW involving solicitors

NSW Court of Appeal

Council of the Law Society of New South Wales v Croke [2024] NSWCA 195

Decision published: 8 August 2024

On 8 August 2024, the New South Wales Court of Appeal (Court of Appeal) published its decision in roll removal proceedings that the Council of the Law Society of New South Wales (Council) had commenced against Mr Michael Anthony Croke.

On 16 July 2020, Mr Croke was convicted in the District Court of New South Wales (District Court) of:

  1. one (1) count of participating in a criminal group knowing at the time that his participation in that group contributed to the occurrence of criminal activity contrary to section 93T(1A) of the Crimes Act 1900 (NSW) (Crimes Act);
  2. two (2) counts of making a false assertion with the intent to pervert the course of justice, contrary to section 319 of the Crimes Act; and
  3. three (3) counts of publishing a statement with the intention of obtaining a financial advantage, contrary to section 193G(b) of the Crimes Act.

On 29 April 2024, the Council filed a Summons for declaratory relief and orders based on the conduct the subject of the District Court proceedings. The Council sought:

  1. a declaration that Mr Croke is not a fit and proper person to remain on the Roll of Australian Lawyers (Roll) maintained by the Supreme Court pursuant to section 22 of the Legal Profession Uniform Law (NSW); and
  2. orders:
    1. removing Mr Croke’s name from the Roll;
    2. requiring Mr Croke to pay the Council’s costs; and
    3. such further or other orders as the Court of Appeal deems fit.

The Court of Appeal made the declaration and orders that the Council sought, and held:

“‘[15] As was the case in Council of the Law Society of New South Wales v Clarke [2022] NSWCA 57 at [9], where Mr Clarke was found not to be a fit and proper person to be a lawyer presently and in the indefinite future on the basis that his “offences involved him taking advantage in a deliberate and calculated fashion of opportunities arising out of his employment as a solicitor and involved significant breaches of trust and serious dishonesty” such that they were “antithetical to central requirements for being a fit and proper person, namely honesty and integrity”, so too with the Respondent. In like vein, see Karimjee.

[16] It is also appropriate to say something in this judgment about the Respondent’s argument in the Court of Criminal Appeal that he was a “service provider” who acted “very much at the direction” of his co-offenders. That submission bespeaks a fundamental and deeply flawed misconception about the role of a solicitor or a barrister. A lawyer’s first and paramount duty is to the Court and the administration of justice. This paramount duty prevails to the extent of any inconsistency with any other duty: Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), r 3.1. A failure to recognise this fundamental obligation also underscores the Respondent’s ongoing lack of fitness to practise.”

Council of the Law Society of New South Wales v Li [2024] NSWCA 218

Decision published: 9 September 2024

On 9 September 2024, the New South Wales Court of Appeal (Court of Appeal) published its decision in roll removal proceedings that the Council of the Law Society of New South Wales (Council) had commenced against Mr Gen (James) Li.

On 10 May 2023, Mr Li was convicted on his pleas of guilty in the Local Court of New South Wales (Local Court) of three (3) offences of dishonestly obtaining financial advantage by deception under section 192E(1)(b) of the Crimes Act 1900 (NSW). The offences involved defalcations from accounts held by the law practice, Sun Lawyers, by which Mr Li was employed.

Mr Li was sentenced to an aggregate term of imprisonment of 2 years and 8 months, to commence on 10 May 2023 and to expire on 9 January 2026, with a non-parole period of 14 months.

On 12 June 2024, the Council filed a Summons seeking declaratory relief and orders based on the conduct the subject of the Local Court proceedings.

The Council sought:

  1. a declaration that Mr Li is not a fit and proper person to remain on the Roll of Australian Lawyers (Roll) maintained by the Supreme Court of New South Wales under section 22 of the Legal Profession Uniform Law (NSW); and
  2. orders:
    1. removing Mr Li’s name from the Roll;
    2. requiring Mr Li to pay the Council’s costs of, and incidental to, the proceedings; and
    3. such further or other orders as the Court of Appeal deems fit.

The Court of Appeal made the declaration and orders that the Council sought, and held:

“[8] In Council of the New South Wales Bar Association v Einfeld (2009) 258 ALR 768; [2009] NSWCA 255 at [16], it was observed that:

“…When, as happens from time to time, a member of the profession so conducts him or herself as to bring disrepute on to the profession, the administration of justice and the legal system, procedures (such as this hearing) should be unquestionably complete in examination of relevant conduct. To do less may lead to a view (even if misguided) that the system operates without a full opportunity for the public examination of such wrongful conduct. This is not part of any process of punishment; rather, it is as an aspect of protecting the public and fostering the public interest by maintaining full accountability of those in the profession and involved in the administration of justice.”

In that context, it is important in an application of this kind to provide some detail of the nature and extent of the offending which has rendered the Respondent unfit to practice and which warrants his removal from the Roll. The Respondent’s conduct has brought great discredit on the legal profession, and it is importance [sic] for the maintenance (and restoration) of confidence in the administration of justice that the public knows that such conduct is not tolerated and meets with professional consequences that are ultimately for the public’s protection. […]

[24] The Respondent misappropriated a substantial sum of money, affecting a wide range of clients.
As in Council of the Law Society of New South Wales v Clarke [2022] NSWCA 57 at [9], and as described in Croke at [15], the Respondent’s offences:

“‘involved him taking advantage in a deliberate and calculated fashion of opportunities arising out of his employment as a solicitor and involved significant breaches of trust and serious dishonesty’ such that they were ‘antithetical to central requirements for being a fit and proper person, namely honesty and integrity’”.

Such dishonourable conduct harms the reputation of lawyers practising in this State and undermines public confidence in the legal profession: Croke at [13]. As such, the damage done by the Respondent’s acts extended well beyond the clients and principals of the firm by which he was employed. The relief sought by the Law Society is entirely justified.”