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A summary of recent NCAT decisions involving solicitors.

Kazas-Rogaris v Council of the Law Society of New South Wales [2024] NSWCATOD 166

Decision published: 15 October 2024

On 15 October 2024, the New South Wales Civil and Administrative Tribunal (Tribunal) published its decision in administrative review proceedings that Ms Anne Kazas-Rogaris commenced against the Council of the Law Society of New South Wales (Council).

On 28 April 2022, the Professional Conduct Committee (PCC), as delegate of the Council, resolved (Resolutions):

  1. that Ms Kazas-Rogaris had engaged in unsatisfactory professional conduct; and
  2. to make orders:
    1. reprimanding Ms Kazas-Rogaris; and
    2. requiring her to pay a fine in the sum of $2,500.00.

The PCC made that resolution on the basis of it being satisfied that Ms Kazas-Rogaris, in breach of Rules 34.1.1 and 34.1.3 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015:

  1. made a statement which grossly exceeded the legitimate assertion of the rights or entitlements of her client and would have misled and/or intimidated another person; and
  2. used tactics that went beyond legitimate advocacy, and which were primarily designed to embarrass or frustrate another person.

On 27 May 2022, Ms Kazas-Rogaris commenced proceedings in the Tribunal to seek review of the Resolutions, seeking:

  1. an order setting aside the Resolutions; or
  2. if the Tribunal concluded that a finding of unsatisfactory professional conduct was justified, orders issuing her with a caution and a reduced fine.

The Tribunal published a decision affirming the PCC’s resolutions.

The Tribunal held:

“[61] We find that the Solicitor did not have a subjective belief in the accuracy of the assertions she made on a matter of law in the Messages, nor were they reasonably open. She threatened that a crime will be referred to the appropriate authorities, in circumstances where there was no basis in fact to apprehend that a crime had been committed. The authorities say that practitioners must be extremely careful before resorting to any even arguably threatening conduct and are well advised to err on the side of caution. The Solicitor did not do so.

[62] For these Reasons, we find that the Solicitor’s conduct in sending the Messages fell well below the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer and is thus unsatisfactory professional conduct as defined in s 296 of the Uniform Law.

[…]

[66] We have agreed with the PCC’s finding of unsatisfactory professional conduct under s 298 of the Uniform Law and we have, in addition, found the solicitor guilty of unsatisfactory professional conduct under s 296 of the Uniform Law.

[…]

[71] … in our view, the Decision of the PCC to reprimand the Solicitor and impose a $2,500 fine was the correct and preferable decision after taking into account the need for specific and general deterrence in light of the seriousness of the conduct, and to maintain public confidence in the integrity of the legal profession in New South Wales.

[72] We accordingly affirm the Decision made by the PCC on 28 April 2022.”