Legal Services Commissioner -v- Berry [2000] NSWADT 139

Legal Services Commissioner -v- Berry [2000] NSWADT 139

Because the solicitor admitted both alleged failures and the evidence established that he failed to honour his undertaking and failed to respond to the Section 152(1) notice, the Tribunal found professional misconduct on both counts. Although repeated prior dilatory conduct aggravated the misconduct and warranted a...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
12 October 2000
Procedural Posture
Professional Misconduct Disciplinary Proceedings / Principal Matter; Decision on Admitted Counts and Penalty
Outcome
The solicitor was found guilty of professional misconduct on both counts; cancellation of the practising certificate was refused; reprimand, fine and costs orders were made.
Legal Topics
['professional Misconduct' 'failure to Comply With S. 152 Notice' 'failure to Meet Undertaking' 'disciplinary Penalty' 'practising Certificate Cancellation']
['legal Profession Regulation' 'professional Discipline'] ['professional Misconduct' 'failure to Comply With S. 152 Notice' 'failure to Meet Undertaking' 'disciplinary Penalty' 'practising Certificate Cancellation']

Source-derived case record

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Procedural Posture

Professional Misconduct Disciplinary Proceedings / Principal Matter; Decision on Admitted Counts and Penalty

Legal Issues

  1. 1 ['Whether the respondent solicitor was guilty of professional misconduct by failing to meet an oral undertaking given to a Principal Legal Officer in the Office of the Legal Services Commissioner.' 'Whether the respondent solicitor was guilty of professional misconduct by failing, without reasonable excuse, to comply with a notice in writing pursuant to Section 152(1) of the Legal Profession Act 1987.' "What disciplinary penalty should be imposed, including whether the solicitor's practising certificate should be cancelled."]

Ratio Decidendi

Because the solicitor admitted both alleged failures and the evidence established that he failed to honour his undertaking and failed to respond to the Section 152(1) notice, the Tribunal found professional misconduct on both counts. Although repeated prior dilatory conduct aggravated the misconduct and warranted a substantial sanction, cancellation of the practising certificate was rejected as unduly harsh in light of the solicitor's age, long and largely meritorious service, and apparent steps to obtain professional assistance; a reprimand, substantial fine and costs order were imposed instead.

Court Disposition

The solicitor was found guilty of professional misconduct on both counts; cancellation of the practising certificate was refused; reprimand, fine and costs orders were made.

Orders

  • ['That the legal practitioner be reprimanded.' 'That the legal practitioner pay a fine of $20,000.00 such payment to be made within 90 days of the date of Order.' 'That the legal practitioner pay the costs of the Legal Services Commissioner agreed in the sum of $3,500.00 such payment to be made within 12 months of...