The following are recent decisions made by NCAT.
NSW Legal Services Commissioner v Lal [2022] NSWCATOD 144
Decision Published: 15 November 2022
View the decision on NSW Case Law here:
On 15 November 2022, the New South Wales Civil and Administrative Tribunal (Tribunal) published its decision in disciplinary proceedings that the New South Wales Legal Services Commissioner (Commissioner) commenced against Ms Sandra Lal.
The Tribunal found that Ms Lal had engaged in professional misconduct on the basis that, in 3 instances of correspondence from her to Ms Hei Woon Haywood Chui regarding a claim that Mr G made against Ms Chui, Ms Lal falsely represented that Mr G was a client of her employer.
The Tribunal made orders:
- issuing Ms Lal with a reprimand;
- requiring Ms Lal to undertake and complete a legal ethics course;
- suspending Ms Lal’s practising certificate if she fails to achieve a pass mark in the legal ethics course as at the expiration of 12 months from the date of the Tribunal’s orders;
- prohibiting Ms Lal from being issued with a practising certificate until such time as she achieves a pass mark in a legal ethics course if she does not hold a practising certificate as at the expiration of 12 months from the date of the orders; and
- requiring Ms Lal to pay the Commissioner’s costs of the proceedings in the amount of $3,000.
With respect to a finding of professional misconduct, the Tribunal held (at [41]-[46]):
“It is clear from [41] of [Xu v Council of the Law Society of NSW [2009] NSWCA 430] that dishonest conduct by a solicitor is capable of characterisation as “conduct … that falls short of the standard of competence and diligence that a member of the public is entitled to expect.” In other words, the concept of a standard of competence and diligence has, as one of its many elements, the expectation that such conduct will not be dishonest conduct.
Ms Lal’s dishonest explicit and implicit representations were made on three occasions; 15 December 2020, 5 January 2021 and 19 February 2021.
Ms Lal’s conduct falls within the definition of unsatisfactory professional conduct under s 296 of the Uniform Law because it is below the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. In saying that, we acknowledge that there has been no criticism of Ms Lal’s technical skill as a lawyer. However, her conduct in misleading the vendor to think that the legal practice which employed her was acting for her partner was below the applicable standard of competence and diligence which the public is entitled to expect of a reasonably competent lawyer, on the basis of Handley JA’s words in Xu.
The question, then, is whether the conduct involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence so that it constitutes ‘professional misconduct’ under s 297(1)(a) of the Uniform Law.
The conduct took place over two months and four days. It comprised three pieces of correspondence in relation to the same legal matter. In context, we do not consider that it was a ‘consistent’ failure within the meaning of s 297(1)(a) of the Uniform Law. It was, however, as the respondent has readily conceded, a ‘substantial’ failure. This is consistent with the reasoning in Webb.’
Having determined that Ms Lal’s conduct constituted professional misconduct under s 297(1)(a) of the Uniform Law, it is unnecessary to decide whether it also falls within s 297(1)(b) of the Uniform Law.”
Council of the Law Society of NSW v Alkhair [2022] NSWCATOD 111
Decision Published: 5 October 2022
View the decision on NSW Case Law here:
On 5 October 2022, the New South Wales Civil and Administrative Tribunal (Tribunal) published its decision in disciplinary proceedings that the Council of the Law Society of New South Wales (Law Society Council) commenced against Mr Nawar Alkhair.
The Tribunal found that Mr Alkhair, who had acted for a client in relation to a loan agreement, engaged in professional misconduct by disclosing confidential information about the loan agreement to the solicitor for parties opposing the client in Supreme Court proceedings; and
The Tribunal made orders:
- issuing Mr Alkhair with a reprimand;
- issuing Mr Alkhair with a $4,000.00 fine;
- requiring Mr Alkhair to undertake further legal education; and
- requiring Mr Alkhair to pay the Law Society Council’s costs of the proceedings.
With respect to misconduct finding, the Tribunal held (at [130] and [142] to [143]):
“…in our view the conduct which has been established on the evidence and admitted by the Respondent is serious and goes beyond merely falling short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer within the meaning of s. 296 of the Uniform Law. The Respondent had ceased acting for his clients. He was aware that Supreme Court litigation had commenced between his former clients and the El-Cheikh parties. He was aware that [his former client] raised dispute in the proceedings as to the alleged loan and/or advance of monies.”
…
We are satisfied in all the circumstances that the Respondent’s conduct in disclosing confidential information in breach of rule 9.1 which occurred in connection with the practice of law fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. Accordingly, we find the breach of rule 9 in the circumstances referred to be unsatisfactory professional conduct within the meaning of s 296 of the Uniform Law.
We are further satisfied in all the circumstances of the breach of rule 9, which we have found to be serious, that, being unsatisfactory professional conduct, it involved a substantial failure to reach or maintain a reasonable standard of competence and diligence. We find that, as he has admitted, the Respondent is guilty of professional misconduct within the meaning of s. 297(1)(a) of the Uniform Law.”
