Lawyer who engaged in professional misconduct keeps his job

By Blake O’Connor and Ugur Nedim

NSW lawyer’s career was saved this week in a last ditch appeal to the NSW Court of Appeal after the Civil and Administrative Tribunal (NCAT) ordered that he be ‘struck off’ the roll of legal practitioners for professional misconduct.

Salvatore Russo, a solicitor of 29 years standing, was the subject of a complaint to the Legal Services Commissioner, which alleged he failed to pay barrister fees after the client had paid $13,650.35 for that work.

The client instructed another law firm to proceed with the case, who then asked Mr Russo to forward bank account statements demonstrating that the barrister’s payment had been made. The solicitor did not reply for eight days, after which a complaint was made to the commissioner.

Proceedings were then commenced against Mr Russo in the NCAT, which determined that the failure amounted to professional misconduct. The tribunal found that the conduct fell:

“… far short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian Legal Practitioner”.

Mr Russo was struck off the role of practitioners as a result.

The solicitor appealed the decision to the NSW Court of Appeal on the basis that he was denied procedural fairness. The Court affirmed that the conduct amounted to professional misconduct, stating that:

“The overall impression from the material before the court is that Mr Russo failed to make even the most rudimentary enquiry as to the status of the client’s accounts”.

However, the Court reversed the decision to remove Mr Russo from the role of practitioners, instead ordering that he pay a fine of $20,000.

Laws Governing the Conduct of Lawyers

In Australia, solicitors and barristers are bound by rules which dictate their professional responsibilities. These rules are contained in the Legal Profession Uniform Law (the rules), Solicitors Rules and Barristers Rules.

Lawyers who breach these rules can be subjected to disciplinary action, which can range from a formal reprimand to permanent removal from the role of practitioners – which is also known as being ‘struck off’.

The most serious breaches can amount to professional misconduct, which under section 297 of the rules includes:

(a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.

Examples of Professional Misconduct

There are several recent examples of lawyers being struck off for engaging in professional conduct.

One lawyer was caught cheating in – of all things – an ethics exam by hiding notes down his pants. He was deemed not to be a ‘fit and proper person’ to practice law and was struck off the roll.

In another case, a lawyer was removed from the roll for charging $42,000 for ‘non legal services’ to a 78 year old client who was suffering from dementia.

Lawyers are in a position of trust when it comes to representing their clients, and it is vital that those who engage in serious misconduct are disciplined in order to maintain the integrity of the profession.