The LSC alleged that he had applied for a default judgment knowing that the defendants intended to file defences, and without notice to the defendants and contrary to the duty to the administration of justice (ground one); that he had misled the defendants into believing they had until a given date to file a defence (ground two); that he had misled the court in an affidavit in support of the application for default judgment, in that it failed to set out the complete and relevant circumstances in which a default judgment was being obtained (ground three); and that he applied for issue of a bankruptcy notice to the fifth defendant without prior notice (ground four).

Mr Yakenian admitted all four grounds and, in an Instrument of Consent filed by both parties, he agreed that he had engaged in professional misconduct.

In his affidavit, he wrote that his actions were done on instructions from his client, despite legal advice he and counsel had given. Despite his evidence to the contrary, he wrote, he was still instructed to proceed with applying for a default judgment and filing the bankruptcy application in respect of one of the defendants.

In hindsight, he reflected “it would have been more appropriate if he had told the client that he was no longer prepared to act for them” but accepted that this was not an excuse for his conduct.

The NSW Civil and Administrative Tribunal accepted that “some clients can be very demanding and choose to ignore sound advice”, but that acquiescing to the client’s demands in the circumstances of this matter “was completely inappropriate, no matter how overbearing the client”.

“The tribunal also accepts that the impact on a small practice of the potential loss of a significant client could be catastrophic. However, the potential loss of a client does not excuse the solicitor’s conduct. The profession relies on all of its solicitors to act with honesty and candour, and solicitors have a legitimate expectation that they will not be misled by the other solicitors with whom they deal,” it held.

The tribunal further considered the third ground of alleged professional misconduct to be the most serious, as a “solicitor has a fundamental obligation not to mislead the court and the solicitor knew that failing to inform the court of communications between the parties’ solicitors was false or misleading, or alternatively, was recklessly careless as to whether to the statement was false or misleading”.

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In determining disciplinary orders, the tribunal observed that “this is not the first time” that Mr Yakenian “has come to attention”, and referenced an alleged caution issued in 2010 for “failure to appear in court on multiple occasions”, as well as a reprimand issued in 2012 “for having hindered and obstructed” a trust account investigator and the supervisor of the trust money for his practice.

Ultimately, Mr Yakenian was reprimanded, fined $7,500, ordered to undergo a legal ethics course and achieve a pass mark, and was ordered to pay costs.

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