A lawyer who was cautioned over an attempt to have a costs assessment stayed has failed to have the disciplinary action set aside.
The Council of the Law Society of NSW found a solicitor, known only by the pseudonym HJJ, engaged in unsatisfactory professional conduct when he sent a letter that was “inaccurate and contained language which was likely to mislead” a costs assessor.
Between February 2018 and December 2019, HJJ was retained by a client on a property conveyancing matter. At the time of the misconduct, the NSW Trustee and Guardian had been appointed the client’s financial manager for a period of six months.
The trustee filed an application against HJJ’s firm for a costs assessment in March 2019, around the same time the financial management proceedings were listed for appeal.
A few months later, HJJ sent a letter that claimed his client had “full capacity” and “His Honour noted that there is no doubt that [the client] has capacity”.
In its decision, the council did not accept HJJ’s submission that the statement “was the product of a misunderstanding” of the judge’s comments, and the letter had been “couched in terms of his belief rather than what transpired during the directions hearing”.
The council was also satisfied that the statements did not provide a fair and accurate report of the judge’s observations, “in circumstances where it should have been apparent to the solicitor that the statements had the capacity to mislead the costs assessor”.
The council imposed a caution.
In an application for administrative review, HJJ told the NSW Civil and Administrative Tribunal the council erroneously found it should have been apparent to him that the letter had the capacity to mislead.
He also alleged the decision failed to pay “proper regard” to the fact that the statement was openly copied to the opposing party, that no objections had been taken, and a request for orders was not granted.
On claims the statement was made for his own interests, HJJ claimed it was in support of the client for a stay of the costs assessment.
Deputy president Stuart Westgarth and senior member Michelle Sindler said there was a difference in the language used in HJJ’s letter and the language of the judge as recorded in the transcript.
Whereas the letter stated there was “no doubt the client has capacity”, the transcript displayed a “clear disparity”.
“In our opinion, the letter did not record an accurate representation of what His Honour … had said at the directions hearing and that the letter had the capacity to mislead the costs assessor,” they said.
Westgarth and Sindler were satisfied that HJJ did not intend to mislead the costs assessor or that he was dishonest.
“However, we are comfortably satisfied that the applicant was reckless in the use of language contained in the letter and that in the circumstances, the issue of the letter by the applicant constitutes conduct occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer,” they said.
The case: HJJ v Council of Law Society of New South Wales [2025] NSWCATOD 150.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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