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Below is a summary of a recent NCAT decision involving a solicitor.

Di Giovanni v Council of the Law Society of New South Wales [2024] NSWCATOD 66

Decision published: 24 May 2024

On 24 May 2024, the New South Wales Civil and Administrative Tribunal (Tribunal) published its decision in administrative review proceedings that Ms Maria Di Giovanni had commenced against the Council of the Law Society of New South Wales (Council).

Specifically, Ms Di Giovanno sought a review of the Professional Conduct Committee of the Council’s (Committee) resolution, dated 19 May 2023, to find Ms Di Giovanni guilty of unsatisfactory professional conduct and to make orders issuing Ms Di Giovanni with a reprimand and requiring her to undertake ethics training. The Committee made that finding and those orders on the basis of it being satisfied that she or her law practice acted in the sale of a property in circumstances where there was a conflict of interest.

The Tribunal made the following orders:

  1. The decision of the Council of the Law Society of New South Wales dated 19 May 2023 is varied as follows:
    1. The Applicant is reprimanded.
    2. The Applicant shall, within three months of the date of these orders:
      1. complete an ethics tutorial with the Respondent’s Ethics Unit which addresses the issues arising from paragraph 83 of this decision; and
      2. within seven days of completing that tutorial is to provide to the Respondent’s Director, Legal Regulation (Director) a report which demonstrates, to the reasonable satisfaction of the Director, the Respondent’s understanding of matters dealt with in the tutorial.
    3. The Applicant is to provide an apology to her client, described in this decision as the vendor, in a form approved by the Director, within 45 days.

With respect to the characterisation of Ms Di Giovanni’s conduct, the Tribunal held:

[76] Not every professional failing constitutes unsatisfactory professional conduct. Rather, the “falling short” of the standard of competence and diligence contemplated by s 296 of the Uniform Law must be sufficiently substantial. An isolated instance, not involving unethical conduct and more in the nature of conduct which might give rise to an assertion of negligence is less likely to amount to unsatisfactory professional conduct: Legal Services Commissioner v Laylee [2016] QCAT 237 at [69] per Thomas J.

[77] However, here there was a substantial and clear failure of the Solicitor to maintain the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. The Solicitor failed to recognise her obligations under r 11 of the Conduct Rules and to implement even the most basic of processes to seek the vendor’s informed consent. A finding of unsatisfactory professional conduct is warranted.