By Paul Gregoire and Ugur Nedim
In August 2013, a courier driver sought legal advice from Sydney lawyer Ms Jinhi Kim regarding ten traffic infringement penalty notices he’d received. The pair met, and Ms Kim told her client that she’d write to the State Debt Recovery Office stating he was not the driver.
The lawyer also asked her client to make an advanced payment of $500. She told him to deposit the money into her personal bank account, instead of the firm’s trust account, which is the requirement under the law.
Repeated false statements
In September, Ms Kim’s son received a speeding ticket. The lawyer then proceeded to use her ex-husband’s identification information to produce a false statutory declaration, so that the driver’s identity in relation to the offence was changed to his.
Ms Kim then contacted the courier driver in November and asked him to provide her with his identification information, so that she could use it in relation to a penalty notice that she’d received. Her client agreed, as he was concerned she’d withdraw her services if he didn’t.
Over the following months, Ms Kim proceeded to use her client’s information to produce more false declarations in order to change the driver identity on three more penalty notices. Two were for her son and one was for a ticket her father received for running a red light.
After the client received the extra penalty notices he went to the police and gave a statement. Ms Kim then met with him and tried to persuade him to change his statement and take the wrap for her father. But, the client refused.
And on 29 October 2015, Ms Kim was arrested and charged with twelve offences.
Ms Kim appeared before the Local Court on 23 August 2016. As the result of a plea offer made by the Director of Public Prosecutions, four charges were dropped and another four were taken into account when sentencing.
The lawyer plead guilty to two charges of dealing with identification information with the intent of committing an offence contrary to section 192J of the Crimes Act 1900. The maximum penalty for this offence is 10 years behind bars.
Ms Kim also conceded guilt to two counts of making a false declaration, under 25(b) of the Oaths Act 1900. An individual found guilty of this offence is liable to up to 5 years in gaol.
The court ordered that Ms Kim enter into a two year good behaviour bond and she was fined $2,200.
Seeking removal from the roll
On 15 November last year, the Council of the Law Society of NSW sought declarations and orders be made against Ms Kim in the NSW Court of Appeal (NSWCA).
The Law Society requested that Ms Kim be declared guilty of professional misconduct, that she was not a person of good fame and character, and she was neither a fit and proper person to remain on the roll of Australian lawyers.
In pursuing this request, the Law Society did not rely on any provisions set out in the Legal Profession Uniform Law (Uniform Law) – the Act that regulates the legal profession – rather “it invoked the inherent jurisdiction of the Supreme Court to control and discipline lawyers.”
Along with the crimes Ms Kim was convicted of in the Local Court, the Law Society advanced two further grounds that it put forth warranted her removal from the roll.
Under section 51 of the Uniform Law, a lawyer is required to notify the Law Society within 7 days of being charged with or convicted of a serious offence. And Ms Kim failed to do this in relation to her charges and her convictions.
And section 254 of the Legal Profession Act 2004 requires that money a client provides to a law practice in connection with legal services must be deposited into the firm’s trust account. However, Ms Kim had the courier driver deposit money directly into her personal account.
The Legal Profession Act was repealed and replaced by the Uniform Law on 1 July 2015. However, the new legislation provides that an offence that was committed prior to its enactment can be dealt with under the earlier legislation.
Guilty of professional misconduct
Ms Kim conceded that the declarations and orders should be granted. But, NSWCA Justices Ruth McColl and Richard White, along with Acting Justice Reginald Barrett, made clear that the court still had to ascertain whether she was permanently unfit to be a lawyer.
The court found that while it was Ms Kim’s duty as a legal professional to uphold the law, she disobeyed it. She also abused the power solicitors have to administer oaths. And the fact that she tried to pressure her client into changing his police statement showed no contrition.
“The fact that there was a pattern of unlawful activity to that end over a substantial period bespeaks lack of good character, as does the attempt to change the course of the police investigation by urging the client to change his statement,” the panel of justices declared.
“The conduct constitutes professional misconduct and establishes that the respondent is a person who is neither of good fame and character nor fit and proper to be a solicitor,” their Honours continued and added it was therefore necessary to consider whether she should be struck off.
In making their decision, the justices considered that Ms Kim had accepted criminal responsibility, she’d agreed to the orders currently sought, she was studying divinity at a theological college and that a psychiatrist’s report stated it was unlikely she’d conduct herself in such a manner again.
However, none of these extenuating matters was enough to displace the conclusion that Ms Kim was permanently unfit to be a lawyer.
Struck off the roll
The NSWCA declared that Ms Kim was guilty of professional misconduct. It further stated that she was not a person of good fame and character and neither was she fit and proper to continue practising as a lawyer.
The court ordered that Ms Kim be removed from the roll of Australian lawyers, in accordance with section 22 of the Uniform Law. And she was also ordered to pay the Law Society’s costs.