Practising ticket suspended … Manager appointed … Anonymised solicitor unsuccessful in stay application … Client told incorrect figure for accident payout … A difference of $130,000 … Allegedly false invoices for disbursement funding … Alan Zheng reports
Ask Atwood and her protagonist in the 1972 novel Surfacing, or the paradigmatic “everyman” in Philip Roth’s novel of the same name.
Albert Camus’s main character in The Stranger may as well be nameless for his total detachment from the society around him.
Film directors have experimented here or there with removing character names. Indeed, the audience is never told the name of the protagonist in Christopher Nolan”s latest time-bending film Tenet.
These artistic trends continue shaping Queens Square as current and former members of the legal profession continue receiving the nameless treatment.
The practising certificate of personal injury solicitor here known as XY was suspended until June 30, 2022 and a manager appointed to the legal practice by the Council of the Law Society.
XY sought a stay of these decisions but Justice Christine Adamson was ultimately not so inclined.
The case follows the well-trodden template of New South Wales Bar Association v Stevens which goes something like this:
XY had failed to notify the Law Society within seven days that she had been charged with forgery offences arising from allegedly making and using false documents to obtain an advantage.
She compounded her troubles by allegedly seeking funds from a litigation funder to assist with disbursements which she appears to have falsified.
XY has “strenuously” denied the charges – which have not yet been tested – in their entirety and suggested the evidence is baseless.
XY’s deeds arose from her retainer with a friend, Ms Rafraf, who was struck by misfortune when she sustained serious injuries following a car accident.
XY helped Ms Rafraf obtain a payout of around $450,000 (including costs). The solicitor showed Ms Rafraf a document purporting to be the certificate of determination and the claim assessor’s reasons.
That certificate suggested a different sum of around $320,000 – $130,000 short of the payout figure.
Ms Rafraf then signed an authority to Suncorp/GIO to release the funds to the plaintiff. On October 25, 2019, Ms Rafraf contacted the plaintiff and asked about the payment, only to be told that the payment had not yet been received.
It was Centrelink that notified Ms Rafraf with advice that the awarded sum was actually over $453,000, being around $403,560 and costs of $50,000.
After Ms Rafraf tipped off the police, Bankstown detectives attended XY’s law shop to interview her – an opportunity she declined.
And then came the court attendance notice. Philip Boulten SC and Mario Licha would act for her in the criminal proceedings.
A non-publication order was made by Local Court Magistrate Daniel Covington which purported to apply to “all media anywhere in the Commonwealth” until the proceedings were determined.
Such an order is reminiscent of comments made in Fairfax Digital v Ibrahim, in which Justice of Appeal John Basten noted “no specific attention was given to the fact that the order purported to prevent access in other states” and HH expressed in obiter that “whether a judge of the District Court had power to control the access of parties and citizens so broadly might itself raise a serious question for consideration”.
The Law Society asked XY to explain herself. Despite claiming to have emailed the Law Society, that email apparently disappeared into the ether. Boulten had also advised XY to inform the Law Society but, it seems, to no avail.
In deciding to suspend XY’s practising certificate, the Law Society pointed to the serious nature of the charges, the conflict of such conduct with XY’s paramount duty and the fact that it occurred in the course of her practice.
Chaos begets chaos. XY’s further conduct ultimately emboldened the Law Society’s decision to suspend.
Not to be dissuaded by the fact that a Sword of Damocles now hung over her practising certificate, XY found some further ammunition for the Law Society.
XY sought funding from Legal Pay to assist with, she claimed, covering outstanding invoices to expert witnesses and doctors.
According to its website, Legal Pay provides disbursement funding – “no credit checks required … no assets required … no contracts or even contact with your clients” and deferral of payment for up to three years.
XY asked that Legal Pay provide the funds into her personal account though she represented it as a trust account.
XY did this five times over a month, seeking funding which amounted to $16,610.
Legal Pay, following its usual practice, wired the funds directly to the consulting doctors. XY promptly requested the funds be directly transferred to her account.
“Profuse apologies” was Legal Pay’s reply. They then happily set about obtaining refunds from the doctors and then transferring them directly to XY’s “trust account”.
The consulting doctors noted there was a disparity in the sums claimed by XY for funding, and the sums actually payable in their existing records. They contacted Legal Pay with this news which then wrote to XY in the following terms:
“Of the 5x invoices you have submitted for funding thus far (attached for ease of reference) in your emails to us of 13 April and 14 April 2021 respectively, all but one of them has turned out to be a falsified record. Dates and amounts owing on doctors’ invoices have been amended without their consent, as the doctors involved have confirmed for us this afternoon. To say they – and we – are unimpressed would be a colossal understatement. Incidentally, the 1 of 5 which did not have a falsified amount owing was nevertheless already paid. In order words, you were requesting funding for an invoice which was not outstanding … We have been labouring under false and misleading representations which has caused us to pay monies into your trust account which are clearly not for the stated purpose and are contrary to what is contemplated in our contract …”
One of the doctors was “speechless”. One assistant described the conduct as “suspicious”. Another assistant described XY as having a “con-artist career”, and said “I just can’t understand how [XY] thought she would get away with it”.
The correspondence with Legal Pay is peppered with various suggestions that the police should be called.
XY called Legal Pay staff 17 times and agreed to refund the money “as a matter of good faith”. The refunded sum even came with a $200 overpayment (which Legal Pay rapidly refunded to XY).
The allegations, XY said, were “unfounded” and that Legal Pay “jump[ed] to conclusions”.
In response to the Law Society, XY mustered two references. Without restraint on the superlatives, they suggest XY is, inter alia:
“The most ethical solicitor and human being I have ever met …”
“She would never step out of line …”
“One of the most honest and upstanding citizens and professionals in the community …”
“… if anyone should be on trial it should be Ms Rafraf”.
Poor Ms Rafraf simply can’t catch a break.
In her defence, XY has argued that it was simply improbable that an experienced practitioner like her would engage in the forgery conduct especially as it would be revealed by direct contact from Centrelink.
Moreover, she had never faced “similar” complaints before and suspension would affect, amongst others, her clients, employees, firm, herself, her brother, her ageing parents and the various “complex equity … complex family law … complex equity and trust” matters she was working on.
All this was to say that the suspension should be stayed and any risk to the public could be managed if the Law Society simply imposed conditions on XY’s practising certificate until the resolution of the criminal proceedings.
If XY were to challenge the suspension before the conclusion of the criminal proceedings, that would reveal XY’s defence against the criminal charges contrary to the presumption of innocence and the privilege against self-incrimination.
Having regard to the broad and interrelated components of the public interest and especially the need for clients to be able to trust their lawyers and the public confidence in the legal profession, Justice Adamson found XY’s entitlement to the presumption of innocence only had a limited role in this calculus. After all, these were not criminal proceedings.
Referring to Marcus Einfeld who was struck off even though no conviction had been recorded, Justice Adamson reasoned that disciplinary proceedings are sui generis and concerned with underlying conduct, not necessarily a criminal conviction.
Murray Gleeson previously wrote, extrajudicially:
“[T]here is no principle of general application that a person who has not been convicted of an offence has a right, for all purposes and in all circumstances, to be treated by everybody as innocent.”
Justice Adamson also identified that personal injury litigation involves substantial sums of money for vulnerable clients handled by legal practitioners.
Ultimately, as XY’s practice posed a risk to the public and the reputation of the profession which could not be ameliorated by conditions on her practising certificate, Justice Adamson refused the stay.
If the suspension caused “personal hardship” or resulted “in the demise of [XY’s] firm”, that was the collateral consequence of the significant weight given to protecting the public interest.
XY’s hearing is listed in the Bankstown Local Court on August 15, 2022.
The NSW Law Reform Commission’s review of open justice is slated to be delivered “in the coming months”, according to a recent email update.
XY v The Council of the Law Society of New South Wales