Council of the Law Society of New South Wales v Tsalidis (No 2)

[2010] NSWADT 297

CITATION:	The Council of the Law Society of NSW v Tsalidis (No 2) [2010] NSWADT 297
DIVISION:	General Division
PARTIES:	APPLICANT The Council of the Law Society of New South Wales RESPONDENT Charles Kiriakos Tsalidis
FILE NUMBER:	092033
HEARING DATES:	11 June 2010, 25 June 2010, 16 August 2010 and 13 September 2010
DATE OF DECISION:	14 December 2010
BEFORE:	Currie J - Judicial Member; Fairlie D - Judicial Member; Bubniuk L - Non-Judicial Member
CATCHWORDS:	Solicitor- professional misconduct – failure to comply with section 660 Notice
LEGISLATION CITED:	Legal Profession Act 2004 Legal Professsion Act 1987
CASES CITED:	The Council of the Law Society v Sheehan (No2) [2010] NSW ADT 135 Legal Services Commissioner v Knudsen [2000] NSW ADT 62 Law Society of NSW v Knudsen (No 2) [2006] NSW ADT 245 NSW Bar Association v Howen [2003] NSW ADT 117 NSW Bar Association v Howen (No2) [2003] NSW ADT 235 Law Society of NSW v Cunningham [2003] NSW ADT 138
REPRESENTATION:	APPLICANT L Pierotti, solicitor RESPONDENT P Kintominas, barrister D Smallbone, solicitor
ORDERS:	1.The Solicitor be publicly reprimanded 2.The Solicitor be fined an amount of $4,000, to be paid in four instalments of $1,000 each, the first to be paid by 1 February 2011, the second by 1 August 2011, the third by 1 February 2012, and the final instalment by 1 August 2012 3.The Solicitor pay the Law Society’s costs as agreed or assessed 4. The Solicitor attend upon his psychologist, Mr R.W. Backen as Mr Backen shall advise, and at least once per month until 30 June 2011, and thereafter until Mr Backen certifies that the course of treatment necessary to restore the Solicitor to full health is complete 5. The Solicitor shall cause a report of Mr Backen, and if appropriate the aforesaid certificate, to be provided to the Council of the Law Society (“the Council”) immediately after 30 June 2011. If the course of treatment continues after that date, then the Solicitor shall cause a further report and the aforesaid certificate of Mr Backen to be provided to the Council at the time of completion of the course of treatment.6. If Mr Backen is unable or unwilling to continue acting, the Solicitor shall appoint another qualified psychologist and notify in writing the name and address of that person to the Council within 14 days and the preceding two paragraphs of these orders shall take effect as if that psychologist were named therein.7. Until the completion of the course of treatment, the Solicitor shall also provide copies of any correspondence or notices that he receives from the Law Society or the Legal Services Commissioner in relation to any professional conduct matters to his counsel, Mr D. A. Smallbone, or such other counsel as the Solicitor notifies in writing to the Council.

REASONS FOR DECISION

Introduction

1 These proceedings were commenced on 11 December 2009, when the Council of the Law Society of NSW (“the Law Society”) filed an Application alleging that the Respondent, Charles Kiriakos Tsalidis (“the Solicitor”) was guilty of professional misconduct in that he had failed, without reasonable excuse, to comply with a requirement under section 660 of the Legal Profession Act 2004(‘the Act”), and that he had failed to assist the Law Society in the investigation of a complaint.

2 The Law Society sought the following orders:

1. The Australian lawyer comply with the section 660 Notice issued in aid of a complaint by the Legal Aid Commission and served on him on 25 March 2009.
2. The practising certificate of the Australian lawyer be suspended until such time as he has fully complied with the outstanding section 660 Notice of 18 March 2009.
3. A substantial fine.
4. Costs.
5. Such further or other Orders as the Tribunal may consider appropriate.

3 In support of its Application, the Law Society filed an affidavit from Raymond John Collins, sworn 4 December 2009. Mr Collins deposed that the Legal Aid Commission first made its complaint to the Legal Services Commissioner on 11 September 2008, who, in turn referred the matter to the Law Society the following day.

4 The substance of the complaint from the Legal Aid Commission was that, in relation to instructions received to act on behalf of a man in criminal proceedings in the District Court, the Solicitor had failed to respond to correspondence from counsel, failed to attend Court for listings, failed to interview witnesses or conduct any preparation of the case, and failed to respond to letters from the Legal Aid Commission seeking an explanation of the Solicitor’s conduct. The events in question took place between July and September 2007.

5 The Solicitor is a sole practitioner, practicing in the Wollongong area. He was first admitted to practice in 1982.

6 The Law Society then wrote to the Solicitor on three occasions between October 2008 and February 2009 seeking his response to the complaint made against him. The Solicitor did not respond. On 18 March 2009, the Law Society issued the Solicitor with a Notice pursuant to section 660 of the Act ( “the Notice”), requiring him to provide to it within 21 days of the service of the Notice upon him, the information set out in schedule 1 to the Notice and the documents specified in schedule 2.

7 Again he did not reply, although the correspondence suggests that during the 21 day period, the Solicitor may have telephoned the Law Society saying that he would be responding, but nothing was received. Accordingly, on 1 May 2009 the Law Society wrote to the Solicitor informing him that on 23 April 2009, the Professional Conduct Committee of the Law Society had resolved to make a complaint against him pursuant to section 504 of the Act, on the grounds set out in paragraph 1 of these Reasons for Decision. That letter pointed out that failure to respond to a section 660 Notice would amount to Professional Misconduct unless a satisfactory explanation for that failure was received.

8 The Solicitor was then given a further opportunity to respond to the complaint, but in the continuing absence of a reply, on 16 July 2009 the Professional Conduct Committee resolved to institute proceedings against the Solicitor in this Tribunal and to seek the orders set out in paragraph 2 of these Reasons for Decision.

The Initial Directions Hearings

9 The matter was first listed for directions on 3 February 2010. Counsel appeared on behalf of the Solicitor. Directions were made for the filing of a Reply and affidavits on behalf of the Solicitor. These directions were not complied with. The matter was next listed on 3 March, and then on 7 April, 5 May and 2 June and again similar directions were made, which were not complied with. On each occasion counsel appeared on behalf of the Solicitor, but the Solicitor did not attend.

10 On the final directions listing on 2 June 2010, the matter was also set down for hearing on 11 June 2010. On that day counsel for the Solicitor objected to the Tribunal, as constituted, continuing to hear the matter. That application initially encompassed an objection to all of the members of the Tribunal, although this was subsequently limited to an objection only to Member Bubniuk.

11 The application itself was adjourned, part heard, to 25 June. On that day it was dismissed. The reasons for the dismissal are the subject of a separate written judgment.

12 The hearing of the substantive proceedings was then ready to proceed on the afternoon of 25 June. The Solicitor was not present before the Tribunal. Mr Pierotti, appearing for the Law Society, tendered, unopposed, the affidavit of Mr Collins sworn 4 December 2009 and other short formal affidavits.

13 Mr Kintominas, counsel for the Solicitor then informed the Tribunal that, although nothing had yet been filed in the registry, certain documents had been left at the Law Society, and that the solicitor ,who was on his way, was bringing with him a completed response to the section 660 Notice and his own affidavit, as yet unsworn. Mr Kintominas also provided the Tribunal and Mr Pierotti with the names of other persons who had, or were about to give affidavits on the Solicitor’s behalf.

14 Because of the unsatisfactory state of the Solicitor’s evidence, and, as it was apparent that the proceedings would again need be adjourned, the Tribunal turned its mind as to what further procedural orders it should make. Mr Pierotti directed our attention to the provisions of section 563 of the Act, enabling us to make interim or interlocutory orders, including an order that the Solicitor’s practising certificate be suspended.

15 The Tribunal ultimately made orders that the Solicitor should deliver to the Law Society and to the Tribunal, if necessary in soft copy, all affidavit evidence and other documentation on which he would be relying, no later than 4pm on Monday 28 June 2010, and that he should file hard copies as soon as possible thereafter. If the Solicitor failed to comply with this order, the Tribunal indicated that it would give consideration on the next occasion to making orders affecting the Solicitor under section 563 of the Act, as well as orders under section 562. The proceedings were stood over until 30 June for further mention.

16 On that occasion the Tribunal was satisfied that the Solicitor had complied with, or at least had complied substantially with the order made on the previous occasion. The Tribunal noted that the Solicitor had filed his Reply and his own affidavit sworn on 28 June 2010. There were also three affidavits as to character, filed on his behalf from solicitors in the Wollongong area, and an affidavit with a report attached from a psychologist, Mr Backen. All were sworn on 28 June. The Tribunal was also informed that a further affidavit as to character from another solicitor, Mr Potts would be filed in the next week. We will return to the date on which this affidavit was in fact sworn, later in these Reasons. The matter was then fixed for hearing on 16 August.

17 The procedural history of this matter between February and June 2010 has been set out in some detail in these Reasons, because by 25 June, we considered the Solicitor’s attitude towards the Tribunal to be bordering on the contemptuous. Apart from the recusal application, which the Solicitor was entitled to bring, there had been five directions hearings and the matter had been listed for hearing on two further occasions, yet the Solicitor had still not filed his Reply, nor any affidavits, notwithstanding that the Tribunal had been informed, from the time of the first directions hearing, that the Solicitor would be filing this material, and the Tribunal had ordered him to do so. Further, up to that time at least, the Solicitor had not proffered any explanation for his failure to comply with these orders.

18 If the Solicitor had not complied with the orders made by the Tribunal on 25 June, it was likely that at the next directions hearing on 30 June, we would have made an order under section 563 of the Act, suspending the Solicitor’s practising certificate, at least until he had fully answered the Notice.

The Hearing

19 At the commencement of the hearing on 16 August, Mr Pierotti informed the Tribunal that, because the Solicitor had now answered the Notice, the Law Society did not press orders 1 and 2 in its Application. Mr Smallbone, who then appeared for the Solicitor, noted, that in his Reply, the solicitor had also accepted that he should pay a fine, that the should pay the Law Society’s costs, and in response to order 5, that he would consent to an order requiring him to attend his psychologist once a month for the next six months.

20 The Tribunal indicated that, although there now appeared to be substantial agreement between the parties as to the orders sought, in view of the history of the matter, the hearing should be conducted in full, in order that the members of the Tribunal could satisfy themselves as to the appropriateness and adequacy of the orders.

21 Mr Pierotti tendered, unopposed, the affidavit of Mr Collins, sworn 4 December 2009 and Mr Smallbone tendered his affidavit evidence, largely unopposed, except in some minor instances, as to form.

22 In relation to the character evidence in support of the Solicitor, each deponent referred to the generally high reputation in which they held the Solicitor as a colleague. They also proffered reasons to explain his delay in responding to the Law Society. However the Tribunal was not inclined to give as much weight to this evidence as it otherwise might have done, for two reasons.

23 First, none of the four deponents appeared to have been informed of the full particulars of the complaint against the Solicitor as set in the Law Society’s original Application. For instance, Mr Pearsall says that he was aware only that the Solicitor was before this Tribunal “in relation to his failure to reply to correspondence from the Law Society of New South Wales”, and Mr Potts that “the complaint relates to his failure to respond to the correspondence from the Legal Services Commissioner stretching over a period of at least two years”. When Mr Pierotti cross- examined a number of these witnesses, they conceded that they were not aware, specifically, that the matter involved issues of professional misconduct or that the Solicitor had failed to comply with a section 660 notice.

24 Secondly, except in relation to Mr Potts who did not swear his affidavit until 28 July 2010, the deponents did not seem to know whether or not the Solicitor had answered the correspondence, the subject of the complaint. Their evidence would have been more persuasive if they had been able to say that they were aware that the Solicitor had now responded to the Law Society.

25 In making these comments, the Tribunal does not wish to be at all critical of the deponents. They can only proceed on the basis of what they are told by those briefing them. Evidence as to character, particularly from fellow practitioners is often of great assistance to the Tribunal and it should be encouraged in appropriate cases. However, in relation to complaints involving professional misconduct, character witnesses should, as a minimum, to be provided with the grounds for the Application, the orders sought against the Legal Practitioner, the Legal Practitioner’s Reply and any other facts and circumstances relevant to the deponent’s understanding of the complaint.

26 The important evidence came from the Solicitor himself and to a lesser extent from Mr Backen. In his affidavit, the Solicitor said “I did not comply with the requirements of the Notice because I was unable to bring myself to face the matter, and I was in a state akin to mental paralysis”. He said also that in April 2008, when he had first received correspondence from the Legal Aid Commission about the complaint, his elderly father fell from a patio roof sustaining a serious head injury which required hospitalisation for three weeks. His mother also suffers from dementia. The episode caused him stress and anxiety and significantly contributed to his failure to respond to the correspondence.

27 More recently, the Solicitor said that he had come to realise that he did suffer from depression and that he needed professional help to overcome it and to overcome “his inertia when faced with criticism”. His affidavit set out in some detail the changes he had recently made to his daily working regime, including implementing an exercise programme, to ensure a less stressful and more productive practice environment.

28 Mr Backen said that he first saw the Solicitor in April this year and confirmed that in his professional opinion, the Solicitor at that time was suffering from “a depressive pattern which appears to have been problematic for at least two years”, that is from the time of his father’s fall. However, following regular consultations with the Solicitor since that time, he said that he had been very responsive in treatment, and that “the prognosis is positive regarding Mr Tsalidis’ recovery”. He said that a further six months of treatment would complete the Solicitor’s recovery from the depression.

29 When questioned by Mr Pierotti during the hearing, Mr Backen confirmed this opinion in the following exchange:

Q Certainly you’re comfortable that a period of six months effectively sometime early next year, Mr Tsalidis continuing to consult you –
A Yeah
Q whatever difficulties he has had should evaporate or at least decrease substantially.
A One hundred per cent yes.

The Tribunal’s Findings

30 The Tribunal accepted much of the Solicitor’s evidence and that of Mr Backen. However, it was somewhat doubtful of Mr Backen’s optimistic prognosis of a six month time frame leading to almost complete recovery. One reason for this doubt was the manner in which the Solicitor responded to the Tribunal’s final directions made on 25 June 2010 relating to the filing of his evidence.

31 When the proceedings were mentioned on 30 June to ascertain whether there had been compliance with these directions, the Tribunal was informed that although the majority of the affidavits had been filed, the Solicitor wished to file a further affidavit as to character from a Wollongong solicitor, Mr David Potts. The Solicitor sought leave, and the Tribunal consented, reluctantly, in view of the extended delays up to that time, to allow the affidavit to be filed within a further seven days.

32 In the event, a letter dated 7 July 2010 was forwarded to the Tribunal Registry attaching an unsworn affidavit from Mr Potts. The letter referred to Mr Potts commencing two week’s leave in Queensland from 5 July and that the affidavit would now be sworn on Mr Potts’ return on 19 July.

33 The affidavit was in fact sworn only on 28 July and leave was only sought to file it when the hearing resumed on 16 August. No explanation for the further delay was given. We were concerned about what appeared to be a further lack of respect displayed by the Solicitor towards the Tribunal, although in the end we accepted the Solicitor’s apology, tendered through his counsel that, whilst his steps to comply with the order were inadequate, they were done in good faith.

34 However the real issue arising from this incident for the Tribunal, was whether the Solicitor’s failure to comply with this consent order was indicative of his continuing inability to respond to important correspondence and, generally, to deal with difficult issues. It should be noted that these events occurred in July 2010, when, according to Mr Backen, the Solicitor was already on the road to recovery.

35 As Mr Pierotti put to the Solicitor in his cross-examination:

Q Well, what are you going to do stop this happening again? How can the Tribunal be comfortably satisfied that that when you walk out of there, (and) there’s another letter from the Law Society, you’re going to pick it up, you’re not going to put it in the file, you’re going to answer it. If this Tribunal today makes a direction, that you’re going to comply with it?

36 In his response to this question, the Solicitor spoke at length about his new daily work regime, which would ensure that events of this nature would not occur again. The Tribunal is prepared to accept that the Solicitor has indeed dramatically changed his practice arrangements for the better in the past months. The question is whether this change, together with his continuing consultations with Mr Backen, will be sufficient.

37 The Tribunal is mindful, particularly, that in the coming months the Solicitor may need to respond to further correspondence from the Law Society relating to the original complaint from the Legal Aid Commission. In making this observation the Tribunal does not express any view on the merits of that complaint or its ultimate outcome. However the fact remains that now that the Solicitor has answered the Notice, the Law Society’s investigation will no doubt proceed in the usual manner.

38 Section 674(4) of the Act provides that an Australian lawyer, who, without reasonable excuse, fails to comply with a requirement under section 660 of the Act, is guilty of professional misconduct. The Tribunal believes that, in this instance, a finding of professional misconduct is justified. We do not accept that the Solicitor’s depression and inertia at the time of his failure to answer the Notice, being a year after his father’s fall and hospitalisation, were so disabling as to prevent him from at least contacting the Law Society, if only to explain his circumstances and to request an extension of time. The Notice itself also stated plainly that failure to comply with its terms without reasonable excuse, would lead to a finding of professional misconduct.

39 The tribunal believes that it was appropriate for the Solicitor to consent to this finding being made against him in his Reply. Likewise it was appropriate for the Solicitor to consent to an order to pay the costs of the Law Society.

The Remaining Orders

40 The orders which required more consideration on the part of the Tribunal, were whether the Solicitor should pay a fine and, if so how much, whether the Solicitor should receive a reprimand, and finally, what was the most appropriate means of monitoring the Solicitor’s ongoing recovery from depression, to ensure, as far as possible, that he would comply with his professional obligations in the future (Order 5 in the Law Society’s original Application).

41 In relation to the fine, in his Reply, the Solicitor had said that he accepted that he should be fined, but asked the Tribunal to take into account his taxable income in the financial years ending in June 2008 and June 2009. The evidence from the Solicitor in relation to his financial position was not all together clear, He said in his affidavit that his personal taxable income for the year ending 30 June 2009 was $34,820, and that he did not expect it to have increased in the following year.

42 However, he later said in cross-examination that this amount represented his net income after the payment of income tax and all other expenses. The Solicitor also said that he had about 200 active files at any one time, which is perhaps not consistent with his low net income. The Solicitor’s tax returns were not tendered.

43 In any event the Law Society did not seek to rebut this evidence from the Solicitor and the Tribunal is prepared to accept that the Solicitor does not have a large income and that this position is unlikely to change in the foreseeable future.

44 Mr Pierotti referred the Tribunal to a number of decisions of this Tribunal relevant to the question of what would be the appropriate amount of a fine in this instance. All these decisions concerned, at least in part, the failure by practitioners to answer Notices under section 660 of the Act, or the equivalent section in the Legal Profession Act 1987. They were:

The Council of the Law Society v Sheehan (No2) [2010] NSW ADT 135
Legal Services Commissioner v Knudsen [2000] NSW ADT 62
Law Society of NSW v Knudsen (No 2) [2006] NSW ADT 245
NSW Bar Association v Howen [2003] NSW ADT 117
NSW Bar Association v Howen (No2) [2003] NSW ADT 235
Law Society of NSW v Cunningham [2003] NSW ADT 138

45These decisions gave an indication to the Tribunal of the range of fines that had been imposed in the past in relation to what could be described, in the broadest sense, as similar matters. The fines ranged from $1,000 to $8,000.

46 More importantly, these decisions assisted the Tribunal in its consideration of the factors that should be taken into account in fixing the fine in this instance. The matters that appeared to the Tribunal to be relevant, were the following:

(i) whether the Notice been answered at the time of the hearing ;
(ii) whether the practitioner had given an explanation for the failure to comply;
(iii) the practitioner’s financial circumstances; and
(iv) whether this was a first offence.

47 Matters (i) (ii) and (iii) appeared generally to favour the Solicitor. He had answered the Notice, although not until these Tribunal proceedings had been commenced. He had provided an explanation, including evidence from a psychologist, for his initial failure to comply with the Notice. Also, the Tribunal was prepared to accept the evidence of the Solicitor’s financial hardship.

48 However, there was evidence that this was not the first complaint of a similar nature against the Solicitor which had come before this Tribunal. A Notice of Decision dated 2 April 2009 being File No 082024, in proceedings in the Legal Services Division between the Law Society and Charles Kiriakos Tsalidis, was tendered. It revealed that on that day, a finding of professional misconduct was made against the Solicitor. He was also reprimanded, fined $1,000 and ordered to pay the Law Society’s costs.

49 No Reasons for Decision appear to have been given by the Tribunal in that matter. The file relevant to the complaint in the Tribunal’s Registry, reveals that it involved, primarily, an allegation of failing to make a costs disclosure and transferring costs without authority. However it also involved an allegation that the Solicitor failed to communicate and respond to requests from his clients about these matters.

50 The Solicitor appears ultimately to have accepted the substance of the complaint, paid back some of the costs and consented to the findings made against him, but not before the Law Society had served a Notice under section 660 of the Act on him. There was also some delay by the Solicitor in responding to the Notice. In his statutory declaration to explain the initial delay in responding to his clients, and subsequently to the Notice, the Solicitor referred to the sickness of one of his children and the illness of his mother.

51 The Tribunal regards these earlier proceedings as relevant to its consideration of what is the appropriate amount of the fine that should be imposed in this instance. This is not dissimilar to the situation which confronted the Tribunal in Legal Services Commissioner v Knudsen [2000] NSW ADT 62, where (at paragraph 20), the Tribunal was not in a position to take into account the Solicitor’s otherwise clear record.

52 Mr Smallbone submitted that the Tribunal should consider the range for the appropriate fine as between zero and $4,500, on the basis that this was the first time the Solicitor had been before the Tribunal “on a 660 notice matter.” He proposed an amount of $500.

53 As noted above, the Tribunal does not accept this submission and does not believe a fine of $500 to be adequate in the circumstances. It believes a fine of $4000 is warranted. This amount would have been greater, were it not for the Solicitor’s financial circumstances.

54 The next issue was whether the Solicitor should be reprimanded. The Law Society did not seek this order explicitly. This was understandable before the Notice had been answered, and the Law Society was seeking the order that the Solicitor’s Practising Certificate be suspended, but not thereafter. We believe that the circumstances surrounding the delay in responding to the Notice do warrant the making of a public reprimand as well as the imposition of a fine. We note that in the decisions to which were referred by Mr Pierotti, the solicitor or barrister was reprimanded as well as fined.

55 The final issue for the Tribunal was to formulate an order which ensured, as far as possible, that the Solicitor complies with his professional obligations in the future. As was noted above, the Solicitor had indicated a willingness in his Reply to continue his monthly consultations with Mr Backen for a further six months, but, given the history of the matter, the Tribunal’s initial view was that this was inadequate.

56 During the hearing Mr Smallbone tendered a draft order containing a more detailed proposal which addressed this issue. It was in the following terms:

The Tribunal Orders that:
The Respondent do undertake such attendances upon his psychologist Mr R.W. Backen as the same shall advice, and in any event, at least once per month, until the expiry of at least 6 months after the date of these orders and, thereafter, until Mr Backen certifies that the course of treatment necessary or desirable in order to restore the Respondent to full health is complete.
In the event that Mr Backen is unable or unwilling to continue acting, the Respondent shall appoint another qualified psychologist and notify the name and address of that psychologist in writing to the Council of the Law Society and the preceding paragraph of these orders shall take effect as if the psychologist were named therein.
The Respondent cause a report to be furnished to the Council (a) after the said 6 months and (b) if the course of treatment be completed later, then also at the time of completion of that course of treatment as aforesaid ( together with a copy of the aforesaid certificate of the psychologist).

The Tribunal Notes that:
Until completion of the said course of treatment, the Respondent consents to copies of any further correspondence or notices from the Law Society in relation to any professional conduct matter being sent to his counsel, Mr D. A. Smallbone, or to such other counsel as may be notified in writing to the Council by the Respondent from time to time.
The Respondent undertakes to the Tribunal that he will not withdraw that consent.

57 As Mr Smallbone pointed out, the period of treatment under this regime was not limited to six months, but must continue until his psychologist has certified that the Solicitor has been restored to full health. Secondly, the frequency of attendances during this period was at the discretion of the psychologist, and may be more than once a month.

58 Thirdly, the initial report from the psychologist after six months, and any subsequent reports, must be provided to the Council of the Law Society, who will then be able to determine whether any further supervision of the Solicitor’s practice is appropriate, including, if necessary, imposing restrictions on the Solicitor’s practicing certificate.

59 Finally, during this period, the Solicitor will consent to all correspondence or Notices received from the Law Society in relation to any professional misconduct matter, being provided by him to Mr Smallbone, as his counsel. This arrangement is clearly intended to ensure that the Solicitor does not again get himself into the position that a complaint of the kind made against him in these proceedings, and in the previous proceedings, will be left unanswered.

60 This last proposal is very similar to what the Tribunal proposed in Law Society of New South Wales v Knudsen (No 2) [2006] NSW ADT 245. In that matter, the Tribunal made an order to that effect under section 171C(2)(c) of the Legal Profession Act 1987. In this case, the Solicitor’s consent is put forward only as matter for the Tribunal to note, subject to the Solicitor undertaking to the Tribunal not to withdraw his consent.

61 The Tribunal would prefer that all of the proposal be formulated as an order. Whilst there is no exact equivalent of section 171C(2)(c) in the current Act, section 562(4)(d) appears to us to be even broader in its scope, and enables the Tribunal to make an order in the terms proposed, including that part involving the Solicitor forwarding relevant correspondence and Notices to his counsel.

62 The Tribunal otherwise agrees with the proposals contained in the draft order, as it believes they provide the best means of monitoring the Solicitor’s ongoing rehabilitation. Mr Pierotti, on behalf of Law Society, was also supportive.

63 The Tribunal wishes to express its appreciation to Mr Smallbone for agreeing to take on this mentoring role as the recipient of correspondence and Notices from The Law Society. The only other change that the Tribunal wishes to make to this part of the order, which was acceptable to Mr Smallbone, is to include a reference to the Legal Services Commissioner as well as to the Law Society.

64 We therefore make the following orders:

1.The Solicitor be publicly reprimanded
2.The Solicitor be fined an amount of $4,000, to be paid in four instalments of $1,000 each, the first to be paid by 1 February 2011, the second by 1 August 2011, the third by 1 February 2012, and the final instalment by 1 August 2012.
3.The Solicitor pay the Law Society’s costs as agreed or assessed.
4. The Solicitor attend upon his psychologist, Mr R.W. Backen as Mr Backen shall advise, and at least once per month until 30 June 2011, and thereafter until Mr Backen certifies that the course of treatment necessary to restore the Solicitor to full health is complete.
5. The Solicitor shall cause a report of Mr Backen, and if appropriate the aforesaid certificate, to be provided to the Council of the Law Society (“the Council”) immediately after 30 June 2011. If the course of treatment continues after that date, then the Solicitor shall cause a further report and the aforesaid certificate of Mr Backen to be provided to the Council at the time of completion of the course of treatment.
6. If Mr Backen is unable or unwilling to continue acting, the Solicitor shall appoint another qualified psychologist and notify in writing the name and address of that person to the Council within 14 days and the preceding two paragraphs of these orders shall take effect as if that psychologist were named therein.
7. Until the completion of the course of treatment, the Solicitor shall also provide copies of any correspondence or notices that he receives from the Law Society or the Legal Services Commissioner in relation to any professional conduct matters to his counsel, Mr D. A. Smallbone, or such other counsel as the Solicitor notifies in writing to the Council.