Law Society of NSW v Dwyer [2006] NSWADT 247

In this matter Greg Walsh appeared for Bronwyn Ann Dwyer, a solicitor, who was the subject of an application that she was guilty of professional misconduct.

The application was based upon two grounds namely that the solicitor failed to inform a Mr Reed, the complainant, that the Court had dismissed proceedings in which he was the plaintiff, because of inactivity; and secondly, she had misled or attempted to mislead the Law Society.

The history of the matter was referred to at length in the judgment of the Administrative Decisions Tribunal handed down on 17 August 2006. The Tribunal consisting of C Vass, Judicial Member; J Currie, Judicial Member; and A O’Neill, Non-Judicial Member heard evidence as to the circumstances in which the solicitor was asked by a partner at her firm, namely Back Schwartz Vaughan, Solicitors, to deal with a notice issued from the Supreme Court in relation to a defamation matter. That notice was pursuant to Part 32A of the Supreme Court Rules.

The articles that gave rise to the action in defamation had been published as long ago as 20 December 1986. The client had instructed Back Schwartz Vaughan in March 1987. These were separate proceedings instituted in October 1987 arising from two publications. One of these matters was settled as long ago as 18 August 1994 by way of a Deed of Settlement and Notice of Discontinuance. The parties to the Deed were the client and the author of the article from a newspaper that had published the article.

Ms Dwyer who had previously not had the carriage of the matter, nor until 1997 had she been employed by the solicitors, was asked on 18 July 2000 to deal with the notice pursuant to Part 32A of the Supreme Court Rules. Ms Dwyer wrote a letter on 19 July 2000 informing the client of the receipt of the Notice and seeking further instructions.

Thereafter the client communicated with the firm of Solicitors that he in effect wished to proceed with the matter and an amount of $2,000.00 was paid on account of costs. On 13 September 2000, the clients matter was dismissed by the Registrar in Chambers. In the latter part of 2000, the solicitor maintained that she had spoken to the client on 2 separate occasions. It was her honestly held belief that this was the position. In 2002 the client attended the solicitor’s office and Ms Dwyer informed him that the matter had been dismissed. She was then made the subject of a complaint and it was her responses to the Law Society that in effect gave rise to the second and more serious ground of the application.

In the course of the hearing, the Tribunal was taken to the Statement by Lord Reid in Rondel v Worsley [1969] 1 AC 191 at 227 where it was observed:

“Every counsel has a duty to his client fearlessly to raise every issue, advance every argument and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the Court concerned in the administration of justice, he has an overriding duty to the Court, to the standards of his profession and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests. Counsel must not mislead the Court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce.”

In the course of submissions, Ms Dwyer’s position was put in these terms:

“The problem that she has, as a legal practitioner and a human being, is that she does have a recollection of that phone call telling Mr Reed that the matter has been dismissed. Memory, as we all know, is not as if a photograph was taken of some event. It is a reconstructive process.”

The Tribunal administered a public reprimand to the solicitor and ordered that she pay the costs of the Counsel of the Law Society of New South Wales.