Agreed facts

Ms Lal was “at all material times in a personal relationship” with the purchaser of a property in Pemulwuy, NSW, from Ms Chiu.

Following settlement, the purchaser made a claim for payment from Ms Chiu in relation to costs incurred for a locksmith, removal of property/rubbish and a new remote control for garage access, amounting to more than $1,000.

On three occasions between mid-December 2020 and mid-February 2021, Ms Lal sent correspondence to Ms Chiu in relation to the claim for payment, including by letter using firm letterhead and by email using her work email address and signature block stating she is a solicitor at the firm.

The correspondence contained representations that the purchaser was a client of the firm, including that the firm would commence legal proceedings on his behalf to recover costs.

There existed no formal solicitor/client relationship between Shine Lawyers and the purchaser and, as the NSW Civil and Administrative Tribunal noted, Ms Lal knew at all relevant times that there was no formal, or any, solicitor/client relationship between her firm and the purchaser.

In March of last year, Ms Chiu lodged a complaint to the Office of the NSW Legal Services Commissioner.

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Upon being notified of the complaint, Ms Lal admitted to the alleged conduct and expressed contrition and remorse.

Form of professional misconduct

NCAT noted that both the LSC and Ms Lal agreed that her conduct, as set out in the agreed statement of facts, amounted to professional misconduct under the Uniform Law. However, the two parties disagreed as to which part of the definition of said conduct was applicable.

The LSC argued that Ms Lal is guilty of professional misconduct as described in s 297(1)(b) of the Uniform Law, being “conduct…occurring 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”.

It submitted that the sending of correspondence, on three separate occasions, including using firm letterhead and a firm email signature block, involved a “willingness to make false representations, in writing, for the purposes of assisting her partner in his dispute with the vendor of the property”, the tribunal outlined.

Ms Lal rejected that interpretation, arguing that the appropriate foundation for a finding of professional misconduct is s297(1)(a) of the Uniform Law.

She submitted that the conduct is “sufficiently serious to warrant a finding of professional misconduct, but does not, in all of the circumstances, justify a finding that the respondent is, or was at the time of sending the correspondence in issue, not a fit and proper person to engage in legal practice”, NCAT noted.

Consideration

In its reasons, NCAT said that it acknowledges that there had been no criticism of Ms Lal’s technical skill as a lawyer.

“However, her conduct in misleading the vendor to think that the legal practice which employed her was acting for her partner was below the applicable standard of competence and diligence which the public is entitled to expect of a reasonably competent lawyer,” the tribunal noted.

By reason that the conduct in question took place over two months and four days, and comprised three pieces of correspondence, NCAT did not consider the conduct to be a consistent failure within the meaning of the Uniform Law.

“It was, however, as the respondent has readily conceded, a substantial failure,” it noted.

The tribunal thus determined that the conduct constituted professional misconduct under s297(1)(a) of the Uniform Law.

The LSC had “very properly, submitted that Ms Lal’s conduct amounted to an error of judgement on her part and resulted from a lack of objectivity and detachment in a stressful situation”.

“The applicant further noted that Ms Lal has no other adverse disciplinary findings recorded against her. She has expressed contrition, remorse and insight. The favourable evidence of her good character was acknowledged,” NCAT detailed.

“The respondent submitted that the conduct was confined to one matter and three pieces of correspondence over a short period of time. The matter was a stressful matter in which Ms Lal was seeking to assist her partner. Ms Lal realised that her conduct was wrong after sending the second email. The conduct was an error of judgement on Ms Lal’s part, confined to one specific set of circumstances.”

There is no doubt, the tribunal went on, that Ms Lal has demonstrated insight into her conduct and remorse, noting that she is “deeply ashamed and embarrassed”.

“In her affidavit, she acknowledged the impact of her actions on the vendor and on the legal profession. She demonstrated an understanding of the importance of honesty in the practice of the law,” NCAT said.

“Ms Lal has sent a letter of apology to the vendor. She has cooperated fully with the investigation of the matter. Her character references are very supportive. We accept that Ms Lal is a person of good character, and that the conduct the subject of this matter was out of character.

“We note that Ms Lal has attended a legal ethics course at the behest of her employer.”

Statement from Shine Lawyers

A spokesperson for Shine said, in a statement, that the national firm “takes seriously its ethical and professional obligations to the court and our clients”.

“Recently, one of our legal practitioners engaged in inappropriate conduct outside the scope of their employment.

“The legal practitioner has apologised and been reprimanded. They will continue to work for the firm, having agreed to undergo further ethics training,” the spokesperson concluded.

Orders

NCAT resolved to issue a reprimand to Ms Lal and ordered her to undertake and complete an LSC-approved legal ethics course.

Moreover, she is to pay the costs of the LSC in the amount of $3,000.

The case citation is NSW Legal Services Commissioner v Lal [2022] NSWCATOD 144.