The NSW Supreme Court Court of Appeal has rejected a solicitor’s challenge to a finding of unsatisfactory professional conduct, confirming that his actions fell short of the competence and diligence expected of a reasonably competent lawyer.
Appeal dismissed, conduct deemed unsatisfactory
The case arose from a client who was placed under a financial management order by the NSW Civil and Administrative Tribunal, which appointed a state‑appointed trustee to handle her affairs.
The solicitor, who later appealed, initiated Supreme Court proceedings seeking a declaration that the client retained capacity to manage her own finances.
During an April 2019 hearing, senior counsel argued that a hearing on capacity was unnecessary because a professor’s report already demonstrated the client’s ability.
He also contended that the defendants should not introduce further expert evidence.
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Judge Lindsay J, however, permitted the defendants to apply for leave to file additional expert reports on the capacity issue.
Following the hearing, the trustee asked the Supreme Court to assess the solicitor’s costs. In a letter to the costs assessor, the solicitor claimed that Judge Lindsay had unequivocally affirmed the client’s capacity.
At the time of writing the letter, the solicitor did not possess the hearing transcript or any contemporaneous notes, a fact later highlighted by the court.
In November 2020 the Law Society of New South Wales received a formal complaint alleging that the solicitor had misrepresented Judge Lindsay’s comments to the costs assessor.
The council of the Law Society, invoking section 296 of the Legal Profession Uniform Law 2014, concluded that the solicitor’s conduct was unsatisfactory and recommended a sanction.
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The solicitor sought a review before the tribunal’s occupational division, which upheld the council’s decision, stating that their behavior did not meet the standard of competence and diligence a member of the public could reasonably expect.
Court analysis of the appeal
The appellate court affirmed the existence of a disparity, noting that the transcript recorded Judge Lindsay’s observation that a capacity issue remained, while the solicitor’s letter asserted a clear finding of capacity.
It also held that the tribunal’s conclusion did not hinge on that memory, as recollection could not substitute for the documented statements.
The judgment was final.
