Mouna Youssef, who was admitted to practice in 2012 and opened her own office as a sole practitioner in 2015, was the subject of a routine trust account inspection from the Law Society of NSW, with the investigator identifying “some outstanding trust accounting issues which needed to be addressed”.
There were a number of exchanges between Ms Youssef and the trust investigator seeking to ascertain progress, however problems arose in scheduling appointments due to her busy practice. Eventually, a notice was issued requesting access to the outstanding trust records, requiring the records within days, however, compliance did not occur despite acknowledgment of receipt of the notice.
Small amounts of material were provided to the Law Society intermittently from February 2017 and all material was not provided until December of the same year, 18 months after the notice was issued. In the meantime, the Professional Conduct Committee of the Law Society had resolved that Ms Youssef’s conduct may amount to professional misconduct, and that proceedings be initiated.
The Law Society sought a finding of professional misconduct from the Occupational Division of the NSW Civil and Administrative Tribunal, on the grounds that Ms Youssef had failed, without reasonable excuse, to comply with the notice, and that she had failed to assist the investigator in an external investigation.
In her filed reply, she admitted to the whole of both grounds, and the question before the tribunal was whether her failure to comply amounted to professional misconduct or whether there was a reasonable excuse that could be relied on to explain that conduct.
Ms Youssef submitted that she had “acted naively but did not behave dishonestly”, which the Law Society accepted, while noting that dishonesty is not a necessary ingredient for a finding of professional misconduct, and further that her conduct over 18 months “demonstrated a complete lack of appreciation of her professional responsibilities”.
“It was the respondent’s obligation to respond and to respond quickly,” the tribunal said.
“She had been asked and directed by the trust investigator to comply and was formally directed in the notice and still failed to respond in a fulsome and timely way. Solicitors would say that was unacceptable and not what they would expect of professional brethren.”
Ms Youssef argued that she had always been a fit and proper person to practice, no allegations of abusing the trust account had been made nor had complaints been made by clients, there were extenuating circumstances for the delays in her responses to the investigator, including being a family carer, she had been “young and inexperienced” in private practice at the time of the conduct, had been overwhelmed by her busy practice and didn’t have assistance.
She noted she had subsequently dealt promptly with all trust accounting matters and no deficiencies currently existed and had engaged the services of other professionals to assist in this area to ensure problems were not repeated in the future.
She further said that – if it were deemed necessary by the Law Society – she would undertake any specified legal ethics course.
“The respondent’s conduct was incredibly naïve and fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer,” the tribunal held.
“The respondent’s evidence both written and on cross-examination also demonstrated that she needs to better understand the regulatory structures of the profession and her duties in that regard.”
But while it was “highly improper” to make arrangements with the investigator and then fail to act as arranged, the tribunal did not accept that her conduct constituted professional misconduct, and “given the particular circumstances, the respondent’s conduct does not deserve to be described as disgraceful or dishonourable”.
Instead, a finding of unsatisfactory professional conduct was made, with the tribunal citing a number of mitigating factors, including but not limited to her youth and relative inexperience, lack of support in her practice at the time, her contrition and earnestness and regret for her actions, and the relatively isolated nature of the conduct.
Ms Youssef was – in addition to the finding of unsatisfactory professional conduct – reprimanded, ordered to pay costs, and instructed to undertake and pass a legal ethics course.