Yael Jimenez [1992] NSWLST 9

Yael Jimenez [1992] NSWLST 9

The Tribunal found professional misconduct in the two breaches of undertaking in Ground 1, breach of Section 26 in the Peralta matter under Ground 9(2), and failure to pay counsel's fees under Ground 10. It found unsatisfactory professional conduct on Grounds 2, 3 and 5. Grounds 4, 7, 8, 9(1) and 11 were not established, with Grounds 7 and 8 failing because wilfulness was not proved. The Solicitor's psychiatric condition explained and mitigated much of the conduct, but did not excuse it; however, the conduct did not render her unfit to remain on the Roll, and reprimand, fine and costs orders were appropriate.

Jurisdiction
Australia
Judgment Date
21 February 1992
Procedural Posture
Professional Disciplinary Complaint Alleging Professional Misconduct and Unsatisfactory Professional Conduct / Reasons for Determination and Orders After Hearing
Outcome
Complaint partly established; Solicitor reprimanded, fined and ordered to pay the Law Society's costs.
Legal Topics
['professional Misconduct' 'unsatisfactory Professional Conduct' 'solicitor Undertakings' 'trust Account and Controlled Money Obligations' 'practising Certificate' "failure to Pay Counsel's Fees" 'costs']
['legal Profession Regulation' 'professional Discipline'] ['professional Misconduct' 'unsatisfactory Professional Conduct' 'solicitor Undertakings' 'trust Account and Controlled Money Obligations' 'practising Certificate' "failure to Pay Counsel's Fees" 'costs']

Case Brief

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Procedural Posture

Professional Disciplinary Complaint Alleging Professional Misconduct and Unsatisfactory Professional Conduct / Reasons for Determination and Orders After Hearing

Legal Issues

  1. 1 ["Whether the Solicitor's failures to honour written undertakings to other solicitors constituted professional misconduct." 'Whether failures to communicate with other solicitors and respond to the Law Society constituted unsatisfactory professional conduct.' 'Whether the Solicitor failed to follow client instructions in the Guido and Pintos matters.' 'Whether alleged breaches of trust account and controlled money obligations were wilful.' 'Whether the Solicitor held herself out as a solicitor in breach of Section 26 of the Legal Profession Act 1987 after her practising certificate expired.' "Whether the Solicitor failed to pay counsel's fees in circumstances amounting to professional misconduct." 'Whether the Solicitor made a false statement in a Statutory Declaration intending to mislead the Tribunal.' "What orders should be made having regard to the Solicitor's psychiatric condition and the seriousness of the established conduct."]

Ratio Decidendi

The Tribunal found professional misconduct in the two breaches of undertaking in Ground 1, breach of Section 26 in the Peralta matter under Ground 9(2), and failure to pay counsel's fees under Ground 10. It found unsatisfactory professional conduct on Grounds 2, 3 and 5. Grounds 4, 7, 8, 9(1) and 11 were not established, with Grounds 7 and 8 failing because wilfulness was not proved. The Solicitor's psychiatric condition explained and mitigated much of the conduct, but did not excuse it; however, the conduct did not render her unfit to remain on the Roll, and reprimand, fine and costs orders were appropriate.

Court Disposition

Complaint partly established; Solicitor reprimanded, fined and ordered to pay the Law Society's costs.

Orders

  • ['That the Solicitor be reprimanded.' 'That the Solicitor be fined $2,000 such amount to be paid within ninety (90) days from the date of this order.' 'That the Solicitor be suspended from practice as from the expiration of the said period of ninety days if the said fine shall not then have been paid until it shall...