Law Society of New South Wales -V- Bird [1998] ADT

Law Society of New South Wales -V- Bird [1998] ADT

The admitted and proven deficiencies in the 14 June 1995 advice and the practitioner's provision of advice to SME in a conflict situation fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner. However, because the conduct arose out of one particular matter and, viewed both separately and cumulatively, did not involve a substantial or consistent failure to reach reasonable standards of competence and diligence, it amounted to unsatisfactory professional conduct rather than professional misconduct.

Jurisdiction
Australia
Judgment Date
15 December 1998
Procedural Posture
Disciplinary Complaint Alleging Professional Misconduct / Determination on Amended Information and Penalty
Outcome
The Tribunal found the legal practitioner guilty of unsatisfactory professional conduct on Grounds 2 and 3, but not professional misconduct, and imposed a public reprimand, fine and costs order.
Legal Topics
['professional Misconduct' 'unsatisfactory Professional Conduct' 'competence and Diligence' 'conflict of Interest' 'solicitor Duties to Clients and Former Clients' 'penalty']
['legal Profession Regulation' 'professional Discipline'] ['professional Misconduct' 'unsatisfactory Professional Conduct' 'competence and Diligence' 'conflict of Interest' 'solicitor Duties to Clients and Former Clients' 'penalty']

Case Brief

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Procedural Posture

Disciplinary Complaint Alleging Professional Misconduct / Determination on Amended Information and Penalty

Legal Issues

  1. 1 ["Whether the legal practitioner's written advice dated 14 June 1995 involved a substantial failure to reach reasonable standards of competence and diligence expected of a reasonably competent legal practitioner." 'Whether the advice was capable of misleading SME, contained incorrect or unsupported assertions of fact and law, omitted significant matters, and lacked appropriate qualifications or caveats.' 'Whether the legal practitioner acted in a conflict of interest by advising SME on a proposed rescission motion when his obligations to Messrs. H. and C. conflicted with obligations to SME.' 'Whether the conduct amounted to professional misconduct or unsatisfactory professional conduct.' 'What penalty should be imposed.']

Ratio Decidendi

The admitted and proven deficiencies in the 14 June 1995 advice and the practitioner's provision of advice to SME in a conflict situation fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner. However, because the conduct arose out of one particular matter and, viewed both separately and cumulatively, did not involve a substantial or consistent failure to reach reasonable standards of competence and diligence, it amounted to unsatisfactory professional conduct rather than professional misconduct.

Court Disposition

The Tribunal found the legal practitioner guilty of unsatisfactory professional conduct on Grounds 2 and 3, but not professional misconduct, and imposed a public reprimand, fine and costs order.

Orders

  • ['That the Legal Practitioner be publicly reprimanded.' "That the Legal Practitioner is fined the sum of $2,000, which is to be paid within two (2) calender months from today's date." "That the Legal Practitioner pay the costs of the Law Society as agreed in $12,144 within six (6) calender months of today's date."]