Legal Services Commissioner v Miskell [2016] NSWCATOD 95

Legal Services Commissioner v Miskell [2016] NSWCATOD 95

Because the complaint and investigation began before commencement of the Legal Profession Uniform Law Act, the Legal Profession Act 2004 and the Solicitors' Rules 2013 applied. The agreed facts established that the Respondent repeatedly failed to respond to the Commissioner's correspondence and failed without reasonable excuse to comply with s 660 notices, and also breached Rule 43.2. Those failures constituted professional misconduct. The proposed consent orders were within the permissible range, particularly having regard to the Respondent's later compliance, apology, cooperation through the Instrument of Consent, health evidence, undertaking, and prior clear disciplinary record.

Jurisdiction
Australia
Judgment Date
22 July 2016
Procedural Posture
Solicitor Disciplinary Proceedings / Application for Disciplinary Findings and Orders Determined by Consent After Hearing
Outcome
The Respondent was found guilty of professional misconduct in relation to grounds 1 and 2, reprimanded, ordered to pay agreed costs, and his undertaking was noted.
Legal Topics
['professional Misconduct' 'failure to Comply With S 660 Notice' "breach of Solicitors' Rule 43.2" 'consent Orders' 'reprimand and Costs']
['legal Profession Regulation' 'professional Responsibility'] ['professional Misconduct' 'failure to Comply With S 660 Notice' "breach of Solicitors' Rule 43.2" 'consent Orders' 'reprimand and Costs']

Case Brief

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Procedural Posture

Solicitor Disciplinary Proceedings / Application for Disciplinary Findings and Orders Determined by Consent After Hearing

Legal Issues

  1. 1 ['Whether the Respondent failed to comply with requirements under s 660 of the Legal Profession Act 2004 without reasonable excuse.' 'Whether the Respondent breached Rule 43.2 of the NSW Professional Conduct and Practice Rules 2013.' 'Whether the agreed findings and consent orders proposed in the amended Instrument of Consent were appropriate.' 'Whether the Legal Profession Act 2004 applied despite commencement of the Legal Profession Uniform Law Act.']

Ratio Decidendi

Because the complaint and investigation began before commencement of the Legal Profession Uniform Law Act, the Legal Profession Act 2004 and the Solicitors' Rules 2013 applied. The agreed facts established that the Respondent repeatedly failed to respond to the Commissioner's correspondence and failed without reasonable excuse to comply with s 660 notices, and also breached Rule 43.2. Those failures constituted professional misconduct. The proposed consent orders were within the permissible range, particularly having regard to the Respondent's later compliance, apology, cooperation through the Instrument of Consent, health evidence, undertaking, and prior clear disciplinary record.

Court Disposition

The Respondent was found guilty of professional misconduct in relation to grounds 1 and 2, reprimanded, ordered to pay agreed costs, and his undertaking was noted.

Orders

  • ['The respondent is guilty of professional misconduct in relation to grounds 1 and 2 of the application;' 'The respondent is reprimanded;' 'The respondent is to pay the costs of an incidental to the filing and hearing of the Application in the agreed sum of $2,000.00; and' "The Tribunal notes the respondent's...