Paul Gregoire and Ugur Nedim
All Australian lawyers are required to hold a current practising certificate in order to practise law in this country. The certificate acts as a licence, allowing a person to provide legal services. In New South Wales, they’re issued by the Council of the Law Society of NSW.
Practising certificates certify that a person has satisfied the academic and practical legal training requirements for becoming a lawyer, and that they’re a ‘fit and proper person’ to practise law. They represent a formal agreement to abide by the profession’s strict rules and codes of conduct.
Section 58 of the Legal Profession Act (LP Act) provides that practising certificates are issued on the understanding that a number of conditions apply to the holder, and lawyers “must not contravene (in this jurisdiction or elsewhere) a condition to which the certificate is subject.”
The certificates are renewed on an annual basis, and any breach can result in a lawyer having their certificate suspended or cancelled, and/or a fine of up $11,000.
A repeat offender
The Council of the Law Society of NSW had filed an application against the legal practitioner, on the single ground that he was guilty of professional misconduct for contravening a condition of his practising certificate.
And it wasn’t Mr Weller’s first time around the block either. He was previously issued with a reprimand back in November 2013, which resulted in the condition in question being imposed upon his practising certificate.
The condition required Mr Weller to undertake a trust accounting course that had been approved by the manager of the NSW Law Society’s Professional Standards Department. This was necessary as it was found the lawyer had failed to deposit trust money into a trust account, as well as neglecting to make a full disclosure of costs.
Mr Weller was required to complete the course within a six months period ending 12 May 2014. On completion, he had a week to provide the Law Society with the results.
The Council argued that Mr Weller’s failure to complete the course amounted to a breach of section 58 of the LP Act for the period of May 2014 through to 18 August 2015.
It proposed that Mr Weller be reprimanded, fined and ordered to pay legal costs.
Although the case against Mr Weller was filed after the LP Act was repealed and replaced by the Legal Profession Uniform Law (the Uniform Law Act) on July 1 2015, NCAT found that the former Act still applied.
This is because the Uniform Law Act provides that when a complaint is made against a lawyer before the LP Act’s repeal, these matters are to be dealt with under the earlier legislation.
A serial absentee
As the six month deadline approached, Mr Weller had his personal assistant, Ms Robyn Sheffield, contact the Law Society. In 2014, she wrote three letters dated 23 April, 1 May and 30 May.
Ms Sheffield explained that her boss had enrolled and paid for the course in March that year, but had since fallen ill and wasn’t able to complete the course, and was seeking an extension of four to five months.
However, the Law Society refused to grant the extension.
On 13 April 2015, eleven months after he was required to have successfully completed the course, Mr Weller contacted the Law Society by phone and told them he had undertaken some study for the course in March that year, but still hadn’t completed it.
The lawyer then sent a fax to the Law Society on 18 May explaining that he sat for a course exam, but had failed the subject due to a second independent marking.
On the next day, the Law Society notified Mr Weller that he had until 8 July to re-sit the exam and notify them that he had completed the course. He was also warned that if he failed to do so, his practising certificate would be suspended.
However, the lawyer did not comply. On 16 July, he contacted the Law Society asking for another extension, as an exam was scheduled for 5 August. The Law Society replied that he could have until 18 August, and warned him again that he could be suspended from practising.
Finally, Mr Weller emailed the Law Society on 18 August stating that he had complete the course, and provided the relevant documentation a week later.
On 13 February this year, Mr Weller filed a reply to the Council admitting the particulars of the case against him. However, he disputed that he was guilty of professional misconduct, as he’d notified the Law Society that the reason for the delay was his ill health.
Whether the conduct amounted to professional misconduct, or the less serious finding of unsatisfactory professional conduct, was a matter for NCAT.
Section 498(1)(a) of the Act provides that “conduct consisting of a contravention of this Act, the regulations or the legal profession rules” can be classified as either unsatisfactory professional conduct or professional misconduct.
The evidence at hearing
It came before NCAT that Mr Weller’s personal assistant had submitted medical certificates in the letters sent to the Law Society. However, this documentation was found to be “vague.”
The manager of the Professional Standards Department wrote to Mr Weller on 3 June 2014, explaining that she could not grant an extension, as none of the medical evidence indicated that he was unable to complete the course.
The fact that he was continuing to practise as a lawyer seemed to contradict his claim that he was too ill to attend the course, the manager pointed out.
Mr Weller did not respond to the letter.
On 13 April 2015, the manager sent another letter to Mr Weller warning that his practising may be suspended if he did not complete the course – in accordance with the provisions of section 61 of the Act.
This letter seemed to spring Mr Weller into action. He responded on 4 May explaining that he is legally blind, and detailing a serious illness his daughter had contracted. A medical report from psychologist Dr Tim Watson–Monro confirmed these matters.
During the hearing, Mr Weller also outlined that he had closed his practice down for a six week period, from mid-December 2014. He explained that when he reopened at the end of January 2015, he contacted the College of Law to arrange to undertake the course.
The NCAT ruling
NCAT found there was no dispute that Mr Weller “breached the condition on his practising certificate and that this breach lasted more than 14 months.” The Tribunal added that he was “only galvanised into action,” after receiving the threat to suspend his certificate.
While NCAT said it was “sympathetic” regarding the lawyer’s personal situation, it was not a “persuasive explanation” for his failure to contact the Law Society before the receiving the threatening letter.
Mr Weller was found to have fallen short of “the standard of competence and diligence” expected of an Australian legal practitioner.
Although the Council suggested Mr Weller should be fined, NCAT ruled that this was not necessary, as he always intended to complete the course and was late to do so because of the “real and very substantial” issues he was dealing with at the time.
The Tribunal ruled on 17 March that Mr Weller was indeed guilty of professional misconduct and ordered that he be reprimanded, as well as having to pay the Council of the Law Society of NSW’s court costs.
He was therefore not fined or suspended from practising as a lawyer.
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