The NSW CA turns down two appeals from solicitors in strife with the Bureau de Spank … Old timer’s dodgy dealings with estates and property … Suspended with conditions … Now struck off the jam roll … Another solicitor forgot to tell the Law Society about her suspension as a migration agent … So many things to worry about … Duty of candour … Janek Drevikovsky reports
Berger, who is well into his seventies, signed onto the jam roll in 1969. He made his career at J.W. Milne which, by the time Berger was made principal in 2006, had become Milne Berry Berger & Freedman (MBBF).
Around that time, Berger was retained by Mrs Domabyl, an elderly woman in declining health. Domabyl instructed Berger to prepare a will, which he did. He did not, however, say how much it would cost – despite the requirements of the old Legal Profession Act.
In 2007, Mrs Domabyl granted Berger powers of attorney. Again, no costs disclosure. In 2008, he prepared another will for Mrs Domabyl, this time appointing himself executor. Still no costs disclosure.
Things went on in this vein, with Berger running up a bill for hundreds of attendances, phone calls and bitsy tasks.
In 2011, Berger told Domabyl’s husband, who was living abroad, that he was worried for his client’s mental and physical health. He wanted her to move to a nursing home.
By now, the rest of MBBF had got the jitters over Domabyl’s growing bill. The firm asked Berger to waive all fees and stop charging to the account. After some huffing and puffing, Berger gave in – or at least that’s what he told his partners.
In fact, he did not stop. And in June 2012, Berger sent a letter to Domaybl’s son and husband, enclosing an account for $176,800.94.
Berger next set his eyes on the part of Domabyl’s estate that was held in the MBBF trust account. As executor, he scooped $20,000 to repay a debt to his son-in-law.
By now, the Sgt Plod at the Law Society was looking into the Domabyl case. In July 2013, the society suspended Berger’s ticket over his lack of fee disclosure. He won a stay in the Supreme Court, on the condition he tell all his clients that his ticket was on the line.
Which is exactly what he did not do, never informing one Ms Frischer, who had retained him for probate work, about the conditional suspension.
Around this time Berger was involved in another set of dodgy dealings through his real estate company, Storey Street Development. This outfit was flogging a crop of off-the-plan apartments, and had piqued the interest of Mr and Mrs Ho.
Berger wanted a $57,000 deposit and the authority to draw down on it. But the Hos’ lawyer, Rosenblum & Co, insisted any disbursements were out of the question until the development got planning approval and that they wanted to be notified before Berger dipped into their deposit.
Berger agreed to these conditions, and the Hos signed on August 16, 2012. The $57,000 was transferred the same day.
Soon after, Berger started drawing from the deposit. He did not notify the Hos, and the development had not yet received approval.
By 2014, Storey Street was in receivership, and there had been no movement on the development. In July, Berger wrote to Rosenblum rescinding the Hos’ contract. He said Storey Street had tried its best to get planning approval, but had failed.
Rosenblum rejected the rescission, and demanded the Hos’ money back. Silence from Berger, followed by a complaint to the Law Society, then onwards to NCAT.
NCAT heard the matter in 2017 and found, inter alia, that Berger had improperly failed to disclose fees; had overcharged Mrs Domabyl; had abused his powers of attorney; had misappropriated money from her estate; had, by not telling Ms Frischer about his suspension, breached an order of the Supreme Court; had breached his agreement with the Hos; and had used their money unethically.
Some of this behaviour amounted to professional misconduct; other parts to unsatisfactory professional conduct. The tribunal described him as “dishonest and fraudulent” and he was struck him off.
The appeal to the NSWCA was heard in October 2018, where Berger submitted that his conduct wasn’t serious enough to lose him his ticket.
He said the tribunal had been wrong to label him dishonest, because the Law Society hadn’t properly put a case of dishonesty. In particular, the society had not shown that he had the subjective knowledge to make his behaviour dishonest, as required by Peters v The Queen (1998) 192 CLR 493.
The majority, made up of Meagher and Payne JJA, agreed. They said it was unfair for the tribunal to act on its own reasoning, rather than the arguments made by the Law Society. Doing so Berger never had the chance to respond to the dishonesty argument in its final form.
Because of this error in the tribunal’s reasoning, the court reheard of the matter under s 75A of the Supreme Court Act and made up its own mind.
On most grounds of complaint, Berger’s behaviour amounted to either misconduct or unsatisfactory professional conduct – even if it was not strictly dishonest. And, on a few of the grounds, they thought the tribunal had been basically right with its dishonesty finding.
Berger, as an experienced solicitor, must have known he was outside his powers and acting wrongfully – particularly when he took money from Mrs Domabyl’s estate.
For the majority, it was significant that Berger had misappropriated funds, that his conduct was inveterate, and that in critical respects he had been dishonest. All in all, he was permanently unfit to solicit.
Berger v The Council of the Law Society of NSW
The matter, on appeal from NCAT, will now return to the tribunal for hearing about the severity of the spanking.
From 2011 to 2018, Jaruwan Tangsilsat was sole principal of Thai-Oz Solicitor & Migration, which offered legal and immigration services, mostly to Thai nationals.
As well as holding a lawyer’s ticket, Tangsilsat was also registered with the Migration Agents’ Registration Authority (MARA).
In May 2017, MARA suspended Tangsilsat, saying she’d breached the migration agents’ code of conduct, that she wasn’t fit and proper for the job, and that she’d neglected her professional duties.
Just four days later, Ms Tangsilsat applied to renew her lawyering ticket. The online form included a question in the following terms:
“Is there any matter referred to in rule 13(1) of the Legal Profession Uniform General Rules 2015 which is applicable to you and which you have not previously disclosed to The Law Society? (see rule 13 (1)).”
As above, there was a hyperlink to rule 13(1) and if Ms Tangsilsat had followed the link, she would have learnt that one relevant consideration was whether she was:
“… the subject of current disciplinary action, however expressed, in another profession or occupation in Australia or a foreign country.”
Ms Tangsilsat says she did not follow the link. Instead, the whole business with the MARA simply didn’t cross her mind, and so she sent off her application without even mentioning it.
By June, the Law Society inquisitors knew all there was to be knowed. They wrote accusing her of failing to make proper disclosures.
The solicitor and former migration agent said it was an honest mistake; she hadn’t know the suspension was relevant; and she was pressed for time when completing the application.
Misconduct proceedings were launched in NCAT which gave the case short shrift.
The tribunal held Tangsilsat must’ve had her MARA suspension in mind when, just four days later, she filled out her Law Society ticket renewal.
She had applied for a practising certificate several times before, and so it was not reasonable for her to claim she didn’t know about the requirement to disclose.
And if she really didn’t know, then she was guilty of reckless indifference that, itself, would make her unfit to be a lawyer.
The result was a finding of professional misconduct.
Her appeal was heard by a panel of heavy-hitters – President Taco Bell, Robert Macfarlan and Richard White.
Her grounds were many and varied, including an allegation of apprehended bias on the part of the tribunal. From the outset, the Law Society’s case rested only on the fact of non-disclosure, not on the actual misconduct found by the MARA. That was because the MARA suspension was, itself, under appeal in a separate AAT case (which Tangsilsat later dropped).
When the tribunal heard the gory details, it urged the society to widen its complaint against Ms Tangsilsat. According to the transcript, the tribunal member even suggested he might, of his own motion, amend the charge to take into account the MARA findings.
Tangsilsat claimed this amounted to bias, even though the tribunal eventually agreed to hear the charge in its original form.
Their Honours disagreed with the appellant. Under the Legal Profession Uniform Law Application Act, the terms of a disciplinary charge are a matter for the tribunal. In canvassing other, possibly relevant matters, the tribunal was simply doing its job.
This seems to blur the lines that Meagher and Payne JJA were laying down in the Berger appeal, where the tribunal was told it would be out-of-bounds if it acted on its own thinking.
Then came arguments about the construction of s.297(1); about denial of procedural fairness; about the supposed irrelevance of evidence relied on by the tribunal; and whether the tribunal had improperly taken into account the MARA’s findings.
All of this was rejected. Their Hons. thought Ms Tangsilsat had, in general, misconceived the role the MARA findings played in the proceedings. Ultimately, the contents of the findings did not matter; it was the appellant’s failure to disclose them that got her in trouble.
The court agreed Ms Tangsilsat had not been wilfully deceitful or negligent. But wilfulness is no longer an element of professional misconduct (The Council Of The Law Society Of New South Wales v Graham). Instead, applicants will be unfit for lawyering if they fail to meet the requirements of admission.
One of these requirements was a duty of candour. Citing Prothonotary of the Supreme Court of New South Wales v Montenegro, their Hons. held that certain conduct, even if not deliberate, could show that a person failed to appreciate that duty.
This was one such case. By failing to disclose her MARA suspension, the appellant had shown reckless indifference to the duty of candour.
The tribunal’s finding of professional misconduct was upheld. The matter will now return to NCAT so the parties can spar over the penalties.
Judging from the original hearing, it seems all the Law Society wants is a fine and a light spanking.