Hegney v Law Society of New South Wales
[2008] NSWADT 150
•23 May 2008
CITATION: Hegney v Law Society of New South Wales [2008] NSWADT 150 DIVISION: Legal Services Division PARTIES: APPLICANT
RESPONDENT
Sam Hegney
Council of the Law Society of New South WalesFILE NUMBER: 072019 HEARING DATES: 10 December 2007, 14 April 2008 SUBMISSIONS CLOSED: 24 April 2008
DATE OF DECISION:
23 May 2008BEFORE: Molloy GB - Judicial Member; Riordan M - Judicial Member; Fitzgerald R - Non Judicial Member CATCHWORDS: Review - approval to employ a clerk MATTER FOR DECISION: Principal matter LEGISLATION CITED: Legal Profession Act 2004 CASES CITED: Briginshaw v. Briginshaw 60 CLR 366
Dawson v Law Society (No 590 of 1988)
Dezarnaulds and Wawn v Law Society [1995] 5 LPDR 9
Dupal v The Law Society of New South Wales (unreported)
La Fontaine v Law Society [2006] NSWADT 244
Law Society Society of New South Wales v Kennedy [2006] NSWADT 132
Law Society v Bannister [1993] 4 LPDR 24
Law Society v Young (No.3) (LSD) [2001] NSWADTAP 38
Michael John Charles Caiger (1994) 1 LPDR 32
Miedzinski v Law Society [2007] NSWADT 268
Re: Clayton [1962] SR (NSW) 132
Weal v Bathurst City Council [2000] NSWCA 88REPRESENTATION: APPLICANT
RESPONDENT
D Carroll, barrister
L Pierotti, solicitorORDERS: 1. Pursuant to Legal Profession Act 2004 Section 17, the Tribunal approves the employment of Rodney James Kennedy in the practice of the Applicant upon the following conditions:
A. Mr Kennedy’s employment to be limited to:
i) office organisation and administration
ii) assisting applicants and recipients of legal aid, including preparation of documents in support, preparation of legal aid applications and assisting applicants to complete application forms
iii) obtaining preliminary instructions in Legal Aid, Victims Compensation Claims, Family Law matters, criminal matters and Children’s Court Care proceedings; such to include obtaining preliminary instructions from clients, preparation of statements (but not including preparation of affidavits), providing assistance to the Applicant, employed solicitors of the Applicant, and briefed counsel in relation to factual matters
iv) Attendance in Court on mentions only, and then only by leave of the Judicial Officer.
B. Conditions of Employment:
i) Mr Kennedy to be supervised by the Applicant at all times
ii) Mr Kennedy is not to have access to or be signatory to any account conducted by the Applicant with any financial institution in the course of his practice
iii) No document, letter or any other written material drafted by Mr Kennedy is to be dispatched from the Applicant’s office without prior approval of the Applicant
iv) No document or written communication of any nature is to leave the Applicant’s practice under the name or signature of Mr Kennedy
v) Mr Kennedy is not to receive any money from any client or potential client of the Applicant
vi) Mr Kennedy is not to hold himself out or represent himself as being a qualified legal practitioner but rather is to inform those persons with whom he has contact in the course of his employment of the Applicant that he is in fact a clerk of the Applicant and is not authorised and cannot tender to any such person any legal advice
vii) Mr Kennedy not to tender to any person any legal advice
viii) Mr Kennedy not to have a business card or any other form of identification identifying him in any capacity with the Applicant’s practice without prior approval of the Law Society of NSW
ix) Mr Kennedy not to have any key or other means of entry to any office from which the Applicant carries on his legal practice; not to attend any such office without, at the same time, the attendance of the Applicant or of another solicitor in the Applicant’s employ; not to have access to mail, e-mail transmissions or other forms of written communication received in the Applicant’s office other than as provided to him by the Applicant
x) The remuneration of Mr Kennedy to be by way of a stipulated salary or hourly rate, not to include or be calculated by reference to income received or success in any matter
xi) All files opened by Mr Kennedy to be forwarded to, and reviewed by, the Applicant within seven (7) days of being opened.
C. Additional Conditions:
i) The Applicant to report on a three monthly basis commencing three calendar months from the date of this decision, to the Manager, Professional Standards Department of the Law Society of NSW, in writing, on Mr Kennedy’s standard of work, behaviour and application to his duties
ii) Prior to the commencement of any employment by the Applicant of Mr Kennedy, both the Applicant and Mr Kennedy to inform the Tribunal and the Law Society of NSW, each in writing, that they individually understand the conditions set out in this Determination and each individually give an undertaking that each will, as far as the conditions relate to them, abide by those conditions; in each case such to be in writing, signed by the Applicant and Mr Kennedy
iii) A copy of these conditions to be sent to the clerks of all Courts which are attended by the Applicant or other persons within his employiv) These conditions to cease and have no further effect upon Mr Kennedy ceasing to be employed by the Applicant, provided that should Mr Kennedy seek to be employed by another solicitor these conditions may be used as a basis for an application by that other solicitor for employment of Mr Kennedy
v) Upon Mr Kennedy ceasing to be employed by the Applicant the Applicant shall advise the Manager, Professional Standards Department of the Law Society of NSW in writing of such cessation and provide a final report in accordance with the terms of condition C(i) above.
2. No order as to costs.
REASONS FOR DECISION
Application
1 Sam Hegney is a well known and respected solicitor. His full name is Selwyn Eric Hegney; was admitted to practice in 1993; has carried on business as a sole practitioner since October 2000 (with the exception of less than one year); is aged 51 years; trades as “Sam Hegney Solicitors” with his principal office at Armidale, other offices at Moree and Walgett and has visiting offices/sites at Mungindi, Boomi, Boggabilla, Warialda and Lightning Ridge.
2 Mr Hegney’s firm employs two office managers and four solicitors who, together with Mr Hegney himself, staff the three main offices.
3 Mr Hegney’s firm conducts “a significant amount of criminal legal aid work for disadvantaged” in the Courts of Armidale, Moree and Walgett and also in Coonamble, Mungindi, Boggabilla and Lightning Ridge. His firm participates in the Regional Solicitors Program consistent with the publication of that name put out by the Legal Aid Commission of New South Wales.
4 In the proceedings before this Tribunal Mr Hegney gave evidence, which clearly supported the contention that there was a pressing need for solicitors in the north west of this State and that he and his staff were hard-pressed to get around to all the locations in an endeavour to provide quality legal services to persons in need. During the course of the hearing this Tribunal made it clear that it accepted without reservation the demands on legal practitioners in country and remote locations and the fact that legal practitioners in these locations, and magistrates, were under considerable pressure to meet demand in a manner consistent with the proper delivery of justice.
5 Mr Hegney has brought proceedings in this Tribunal by way of a review of a decision by the Law Society refusing permission for Mr Hegney to employ a Rodney James Kennedy as a clerk.
6 The application to the Law Society for such permission was made by letter 16 January 2007; was refused by the Law Society 13 April 2007; and Mr Hegney commenced proceedings by way of a Application for Review of a Reviewable Decision pursuant to Legal Profession Act 2004, Section 17 seeking permission of this Tribunal to employ Mr Kennedy as a clerk. Consequent upon the formal Application to the Tribunal the Law Society formally resolved on 14 September 2007 “that the Society remains of the view that any Application by Mr Selwyn Eric Hegney to employ Ronald James Kennedy should be refused”.
Background
7 Rodney James Kennedy was a solicitor until 3 May 2006. On that day he was struck off the Roll of Legal Practitioners by Orders made by this Tribunal in Law Society of New South Wales v Kennedy [2006] NSWADT 132.
8 There is no need for us to review in detail the Tribunal’s 2006 decision. However, it is important to highlight relevant salient important points. The reason for this type of analysis is because the Law Society, in its letter of refusal 13 April 2007, rejected the application for employment for the following reasons:
9 At the hearing a further, and important, point was raised by the Law Society in or to the effect that the application for employment was made less than 1 year after Mr Kennedy was struck off and in those circumstances, and having regard to the reasons for the strike off, if permission was granted to employ Mr Kennedy as a clerk that would send a bad signal to the profession, and to the public, to the effect that it was alright to misappropriate moneys because you can simply get back (effectively) into the law by being employed as a clerk, and that type of message should not be sent.
“The reasons for the Council’s decision for refusing permission to you to employ Mr Kennedy was based on the evidence before the Administrative Decisions Tribunal which allowed that Tribunal to find that he had:
Further, the Council noted that Mr Kennedy had failed to evidence any contrition or proper explanation for his conduct either at the Tribunal proceedings or in the course of the application for his employment – this failure pointing to a deficiency in Mr Kennedy’s character and conduct which is indicative that he is not an appropriate person to be employed in a legal practice.”
(1) at least two statements made by him when giving sworn evidence to the Tribunal were false to his knowledge.
(2) materially changed his explanations over time – going backwards and forwards at will between explanations.
(3) misappropriated the Regional Law Society’s funds.
10 The important salient points raised in the 2006 Tribunal decision were, so it seems to us, as follows:
11 The 2006 Tribunal rejected Mr Kennedy’s explanations for his conduct and made a “finding of cardinal importance” (at [49]) to the effect that Mr Kennedy made the various withdrawals “for his own purposes” and that he “did not intend to use the money wholly for the purposes of the (Regional) Society”. In other words, Mr Kennedy “intentionally breached his fiduciary duties to the (Regional) Society” as its President. The 2006 Tribunal could not “accord any creditability” to Mr Kennedy’s claims to the effect that the withdrawals were entirely explicable by reference to “running totals” that he (Mr Kennedy) maintained in his mind in relation to amounts owing from time to time by the Regional Society in relation to an account for the supply of stationery and contract forms. In particular the Tribunal rejected Mr Kennedy’s submission that the withdrawals were made to “keep abreast of orders” given to the stationery supplier. The Tribunal regarded his explanations as “unconvincing” and concluded that “the inference is inescapable that (Mr Kennedy) spent (the withdrawn moneys) on purchases for his own benefit”.
a) Mr Kennedy misappropriated (stole) the sum of $2,000.00 by five withdrawals of cash made between 22 and 27 July from an account held by the North and North-West Law Society with a credit union; that those withdrawals were not made for the purposes of the said Law Society and that until 4 August he retained the amount so withdrawn and on that day he arranged for the sum of $2,000.00 to be refunded to the said Society.
b) The dates, times, amounts and locations of the 5 withdrawals were as follows:
c) In addition, after the 4th withdrawal 25 July, with the balance remaining in the account at $211.00, on 27 July before he made the final withdrawal of $200.00, Mr Kennedy twice attempted, at an ATM in Skygardens, Sydney, to withdraw unspecified amounts from the account, which attempts were unsuccessful on the ground of insufficient funds.
22 July - 10.40pm - $300.00 - 81-87 Bryon Street Inverell
23 July - 3.21pm - $700.00 - 204 Beardy Street, Armidale
25 July - 5.41pm - $400.00 - Armidale Ex-Services Club
25 July - 7.27pm - $400.00 - Armidale Ex-Services Club
27 July - 8.55pm - $200.00 - Civic Hotel, Sydney
d) The moneys so withdrawn became intermingled, in a physical sense, with Mr Kennedy’s own money.
e) The withdrawals came to the attention of the Secretary and Treasurer of the said Regional Society on 30 July 2004 and on 4 August Mr Kennedy deposited $2,000.00 in cash into the Regional Society’s account.
12 At [59] the 2006 Tribunal found itself “bound, moreover, to make the finding that at least two statements made by Mr Kennedy in giving sworn evidence to the Tribunal were false to his knowledge. We refer here to (a) his claim that his sole purpose in withdrawing the money was to “build up a fund” for the payment of the Society’s debts to (the stationery supplier) and (b) his allegation, which wholly lacks credibility, that during the period of five days when he was making the withdrawals (certain persons) communicated figures to him from which (Mr Kennedy) calculated “running totals” of the amount owing to (the stationery supplier”.
13 In his Reply in the 2006 proceedings Mr Kennedy “conceded that his conduct in withdrawing (the) funds was unsatisfactory professional conduct” (Judgment at [61]). In his submissions through his leading counsel Mr Kennedy submitted that any “order by way of “penalty” should be one of suspension from legal practice rather than removal from the roll” thereby “implicitly to have conceded that it would be a case of professional misconduct, not merely unsatisfactory professional conduct”. The 2006 Tribunal had “no doubt that this is correct. Save in the most exceptional circumstances, deliberate misappropriation of any significant amount from the funds of a professional association that have been placed under a legal practitioner’s control by virtue of his accepting office as the association’s president is unquestionably conduct “which would be reasonably regarded as disgraceful or dishonourable” by fellow practitioners who are “of good repute and competency … ”. The Tribunal (properly in our respectful opinion) concluded (at [65]) that Mr Kennedy’s “conduct as alleged and particularised in the Information has been proved and that it amounts to professional misconduct”.
14 The 2006 Tribunal then went on to consider penalty. There is no doubt that Mr Kennedy had, at the relevant times, difficulty in “the regulation of stress”; that his “principle problem was alcohol abuse, in which he had engaged for most of his adult life”; that his “marital relationship had been damaged with the result that he and his wife were more or less separated but lived together in a companionable way”; and the consulting clinical psychologist (Dr Christopher Lennings) concluded that what had happened to Mr Kennedy was “a very large “wake up call” in terms of what is required of diligence” and that in his opinion Mr Kennedy was “unlikely to repeat the mistakes that he had made”. A personal counsellor (Ms Cecilia Blackwell) agreed with the opinion of Dr Lennings “that it was unlikely that another error of judgment such as this case is concerned with would occur if (Mr Kennedy) was permitted to remain in his chosen profession” and she recommended further counselling sessions ([68] and [70]).
15 The 2006 Tribunal stated (at [101]) that consistent with authority, it was “established in the case law that we should not make an order for removal of the Roll unless we are persuaded of (Mr Kennedy’s) “probable permanent unfitness” for practice, “or (put another way) that Mr Kennedy “must be regarded, at the present time, as permanently unfit to practice”. The Tribunal’s decision (at [112]ff), by majority, was that Mr Kennedy’s “infringement of the fundamental standards of his profession”, coupled with his refusal or failure, both before and during the Tribunal hearing, to admit to his serious breaches of well-established fiduciary duties, lead to the conclusion that he “must be regarded, at the present time, as permanently unfit to practise”; and that an important factor was Mr Kennedy’s “refusal or failure to admit to his wrong doing, both before and during the Tribunal hearing … and that Mr Kennedy “could not or would not acknowledge and come to terms with the legal and ethical implications of what he did (such that) it cannot be assumed in his favour that if (the Regional Society’s Secretary) had not intervened he (Mr Kennedy) would, soon afterwards, would have ceased of his own accord to make use of the (Regional) Society’s money”. The ultimate decision, set out at [115], was that in “the view of the majority the fact that (Mr Kennedy) took on the role of President of the Society well before attaining the customary seniority associated with such an office and the value of his work as a solicitor for disadvantaged people in the area of Armidale should … be taken into account … (but) they are insufficient to displace the opposing considerations … ” such that his name should be removed from the Roll.
16 Finally, the minority opinion, expressed by the Non-Judicial Member, was that “the evidence does not go so far to establish the “probability” that (Mr Kennedy) is “permanently unfit to practise” … (and that while his) conduct in withdrawing the Society’s funds for his own purposes and persisting in his denial in having done this provides ground for very grave concern as to his fitness for practice, it remains a definite possibility that he might in due time reach the stage of acknowledging fully the wrongfulness of his conduct and adhering consistently to proper standards of professional behaviour … (such that) … the protection of the public, along with the other purposes to be served by orders made following a finding of professional misconduct, would be adequately served by measures falling short of removal of the Roll … (and the Non-Judicial Member was of the view that it) “would be sufficient and appropriate to make … orders suspending Mr Kennedy from practising) for a period of two years and … that a condition of being granted a practising certificate at the conclusion of this period, he should attend a course of legal education focusing on the ethical responsibilities of practitioners”.
17 It is against the background of those findings and orders that this Tribunal is now asked to consider Mr Hegney’s application to employ Mr Kennedy as a clerk.
Principles
18 There is no doubt in our mind that the 2006 Tribunal acted appropriately in removing Mr Kennedy from the Roll. There is no doubt that Mr Kennedy acted in a disgraceful and dishonourable manner in misappropriating funds from the Regional Society at which he was its President. The findings of the 2006 Tribunal are clear and devastating.
19 There is also no doubt that the views of the Law Society must be given serious weight and careful consideration. The primary principle is the protection of the public and the legal profession must be safeguarded. Mr Kennedy’s conduct was clearly an infringement (to put it mildly) of the fundamental standards of the profession.
20 We were referred to a number of decisions on the principles to be applied in this type of application. In Re: Clayton [1962] SR (NSW) 132, where a solicitor had been convicted on two counts of fraudulent misappropriation and various other offences including four under the Legal Practitioners Act 1898, yet notwithstanding those convictions the solicitor had been acting as a sort of managing clerk in a solicitor’s office, the Court of Appeal refused leave to employ Mr Clayton. At page 133 the Court of Appeal said this:
21 In Law Society v. Bannister [1993] 4 LPDR 24 the Court of Appeal again emphasised the importance of the protection of the public, the supervisory jurisdiction of the Court and the Tribunal which was (at page 27) “directed to protecting the public more generally by maintaining and encouraging appropriate standards of professional behaviour”; noting (at page 28) that the “exercise of the power to remove from the roll, suspend or fine a solicitor is directed to protecting the public by ensuring that those unfit to practise do not continue to hold themselves out as fit to practise and that high standards are maintained. The maintenance of such standards involve deterring the offender from repeating the offence and deterring others who might be tempted to offend”; that the Tribunal “must also act so as to deter the offender in the future and any other practitioner minded to behave in like manner” … and the Court expressed the view that “mitigating circumstances are often of less significance than in the criminal sentencing process”.
“Dealing with that situation, the Law Society, ever alive to safeguard the high standards of the legal profession, must necessarily have in mind – as must this Court – the responsibility that a managing clerk bears in a solicitor’s office. That is a responsibility not merely to his employer but also to the public of whom, in a sense, solicitors and their staff are the servants, those to whom the public look for faithfulness and integrity in their professional conduct. Apart from the primary consideration before the Court, that is, the conviction for an indictable offence, it would seem that at certain times when the opportunity appear to offer, Mr Cowley-Cooper did not hesitate to represent himself unjustifiably as a person of some responsibility in legal circles. In the light of the facts outlined, the Law Society, in discharging its important duty to the public and to members of the profession, have made it quite clear that it opposes the proposed employment of Mr Cowley-Cooper in a solicitor’s office”.
Leave was refused.
22 The Court of Appeal when on to quote (at page 30) from the Judgment of Handley JA in Dupal v. The Law Society of New South Wales (unreported) 26 April 1990 at 22-23 where His Honour said “Any decision to the contrary would single to the profession and the community that this Court was no longer insisting on solicitors maintaining the high standards of personal honesty and integrity in their dealings with clients and the public and the handling of moneys entrusted to their charge … Sympathy for the (solicitor) for the tragedy that he has brought on himself and his family by his inability to live up to the high standards which this Court and the profession demand of solicitors cannot be allowed to deflect this Court from doing its duty”.
23 In Dawson v. Law Society (No 590 of 1988) 21/12/89 the Court of Appeal dealt with the principles applicable to restoration to the Roll, noting that the Applicant for restoration bears a heavy onus of proving the case, that (at [3]) the “question whether the claimant is a fit and proper person and one to be trusted to exercise the high responsibilities of the profession is one to be determined on solid and substantial grounds” such that any applicant “must, in effect, displace the decision which has been made. That decision involves the Judgment that the solicitor is “probably and permanently” unfit to have his or her name on the roll … Presumptions of fitness which might arise otherwise from an absence of contrary suggestions, can no longer advantage the former practitioner precisely because of the removal of his or her name from the roll on the basis of unfitness” … and there is an “inevitable burden which a person, having been removed for misconduct, must face in displacing the formal finding of unfitness which is inherent in the earlier removal”.
24 The Court of Appeal made (at [4]) this important point - a point that has been made on more than one occasion in this Tribunal - in or to the effect that the “decision to be made in each case depends ultimately, on the facts proved. There is no simple formula, which can be applied by reference to the seriousness of the offences and the passing of time. There is no sure path to restoration to the roll, guaranteed by engaging in particular activities, whether of employment or service to the community. The opinion of the relevant professional body is taken into account, not to usurp the role of the Court, but as in indication of the opinion of the practitioner’s potential “peers” … (such that (at [5]) the) ultimate issue in each case is whether the Court can conclude, on the basis of all the evidence, that the claimant is now a fit and proper person to join other members of an honourable profession in the responsible and trusted activities which are involved in the work of the legal profession. It has been said many times that what is at stake is not so much the reputation of the applicant but the Court’s assessment of his or her character, uprightness, honour and trustworthiness”. The Court of Appeal then asked itself a number of questions (at [6]) “in the context of the exercise of a jurisdiction for the protection of the public” and the Court referred (at [8]) to “our community’s perception of justice and fairness, reflected from earliest times in the courts … (observing that in part) it derives from the self interest which any community has to encourage the rehabilitation of those who lapse and to hold out to them the hope that, by diligent and honourable efforts over a period, perhaps lengthy, their past may be forgiven and they may be restored to the good opinion of their family, friends, colleagues and society. The public’s interest also includes the economic interest which is involved in utilising, to the full, the skills of talented people who have undergone years of rigorous training but who, having misconducted themselves, have had to be removed for a time from positions of responsibility and trust. Disbarment or removal from the roll of Solicitors is not necessarily intended to be permanent in fact”.
25 In other words, what the Court of Appeal is saying, as is perhaps obvious and has been said on numerous times by this Tribunal and by the Courts, is that each case depends upon its own particular facts and merits and there is no presumption of permanent removal if the facts point to rehabilitation. At [10] the Court of Appeal said:
26 In Dezarnaulds and Wawn v. Law Society [1995] 5 LPDR9 Spender AJ had occasion to review a decision of the Law Society refusing an application by Mr Desarnaulds for approval to become an associate of Mr Wawn. Again, this case was decided on its peculiar facts but it is plain (at page 11) that Mr Dezarnaulds’ application were supported by “a number of eminent lawyers”, that he “had a long career in the law and in that time came to be held in esteem”, that “his career from 1955 until 1988 was an unblemished one” and that he was “deeply remorseful and contrite”. At the time of the application Mr Dezarnaulds was 60 years old, the application was made “just on 2 years and 9 months … since the misappropriations were discovered”; the Court accepted “that there (were) no opportunities for gainful employment for him, other than within the parameters of the kind of work he did before. Experience and common sense tell one that a 60 year old man who has worked in the same occupation for the whole of his working life, and who is not disqualified from his practice, would have very few possibilities for gainful employment … (that) (at page 12) the legislation gives an opportunity for rehabilitation and redemption (and that) conditions “may be attached to meet the circumstances of the case.” Spender AJ made this observation (at page 12):
“There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance, under whatever conditions and after whatever time, the Court considers appropriate. This Court has full power to protect the public by imposing appropriate conditions relating to such matters as limitations on practice or preconditions to refresher legal education”.
“Mr Dezarnaulds has offended. He has offended significantly. I take account of the Tribunal’s findings but I do not think that the court should deny the opportunity for Mr Dezarnaulds to work under restricted conditions in his former profession and by that means to seek rehabilitation in the profession’s eyes, and in his own. He is a talented man, and it is a pity if those talents cannot be put to some use. He has reached the stage of life where work opportunities outside of his profession are sparse or non-existent. It is not socially useful to confine a human being to a state of virtual unemployability, when he would then have recourse only to the social welfare system. It is not good for society, nor for the individual. In saying this, one must always take account of the circumstances of the individual case. I have reached the view that Mr Dezarnaulds should be given the opportunity to work as an associate. In so doing, I take account of what has been put by the Law Society, and the concerns expressed that he might misappropriate again. I think that at his age and shame and contrition militate strongly against that, but I take it into account in the conditions I impose.”
The Application was granted and the Court imposed a number of conditions.
27 There is also the matter of Michael John Charles Caiger (1994) 1 LPDR 32. Mr Caiger applied for leave “to be employed and to be paid in connection with” a legal practice. In 1990 he was convicted of 40 counts of forgery and 40 counts of uttering, involving cheques in the total sum of $22,500.00. He made full restitution, having voluntarily confessed his misconduct to the Deputy Head of his Chambers.
28 There is no need to review the whole of this decision. At the time of the hearing the position that Mr Caiger had been offered had been changed from Office Manager to “consultant, to set up office assistance with certain supervisory functions”. Detailed Statutory Declarations by way of character references were tendered, the Tribunal reviewed a number of decisions (including Clayton and Bannister); and at page 38 it summarised the principles as:
a) the protective and not punitive function of the Court and the Tribunal,
b) the deterrent aspect of such function,
c) the maintenance in the interest of the public and the profession and the high standards of honesty of solicitors and,
d) the public interest in maintaining public confidence in the law and the profession.
The Tribunal went on to say this:
“The Tribunal supports and seeks to apply these principles. Anything, which places or is indeed likely to place any member of the public in a situation of risk, must be avoided. The need to protect the public falls squarely on the shoulders of all legal practitioners and through them this includes their employees. This is a heavy and onerous responsibility cast upon each practitioner and any proposed employer supporting an application of this nature is charged with a responsibility to ensure actively that if such an application is granted the public is put to no risk whatsoever.
This particular limb of consideration is consistent with the duties of the Tribunal in exercising its discretion under the Section. The Tribunal has to make a calculated assessment as to the probability of such risk occurring or not occurring. Indeed, the Tribunal is of the view that it has to be satisfied to a degree beyond the test of satisfaction on the balance of probabilities and into being comfortably satisfied pursuant to the principles enunciated in Briginshaw v. Briginshaw 60 CLR 366. The Tribunal’s view is that the burden of proving comfortable satisfaction lies with the Applicant and the prospective employer.
The Section gives the Tribunal discretion and it is not necessarily bound by the strict doctrine of precedent concerning applications disclosing similar facts. Each application must still be determined on its own merits (or lack thereof) to enable proper exercise of this discretion”.
Finally, (at page 39) the Tribunal expressed this view:
“In the result the Tribunal is comfortably satisfied that the employment of Mr Caiger will not materially increase the risk to the public nor undermine public confidence any more or less than any other employee of a solicitor in a practice such as the one (under consideration)”.
29 There are two other decisions to which we were referred. The first is La Fontaine v Law Society [2006] NSWADT 244. This was an application by a solicitor to approve the employment of a Mr Peet, who was struck off the Roll in 1986 for misappropriation of client moneys in total $216,860.00, who was also prosecuted and pleaded guilty to various criminal charges relating to the said sum and who wished to be employed as a “administrative and legal clerical assistant”. The offences in question took place more than 20 years before the application for employment came before the Tribunal. The Tribunal expressed the view that “Mr Peet has expressed remorse for his actions, and the affect his dishonesty had on a number of people”. The Tribunal went on to say at [32]:
“Mr Peet, whilst presenting as a rather gruff and not particularly articulate witness, particularly when questioned about his defalcations and the effect of those crimes on others, nonetheless managed to persuade the Tribunal that his plea of guilty, together with his good conduct and blameless record since his release from custody, bespeak genuine remorse and rehabilitation justifying his limited participation in a law practice”.
30 Lastly, we were refered to Miedzinski v Law Society [2007] NSWADT 268. This was a similar application to that of La Fontaine and that currently before this Tribunal. Here the Applicant sought to employ a disqualified person, Ross Garfield Barwick who had been struck off on 29 April 2002, had appealed unsuccessfully to the Appeals Panel and appealed again to the Court of Appeal which, on 12 March 2004 dismissed his appeal. The events in question took place in 1992 when Mr Barwick was held to have falsified documents and misled the Law Society and had “displayed aspects of his character fundamentally inimical to practise as a legal practitioner”. The Court of Appeal held that, in addition, Mr Barwick had given “deliberately false evidence, was evasive in his answers, did not make full and frank disclosure, and did not accept his obligation to act honestly and openly in all matters”.
31 The Tribunal (at [20]) regarded it as “important to bear in mind that Mr Barwick is not seeking to be restored to the roll … (but rather the application was) to permit Mr Barwick to be engaged as a clerk. As conceded by the (Law Society), it is an application at the lower end of the available forms of employment of disqualified persons”. The Tribunal accepted (at [38]) it must be satisfied that “the public interest will not be jeopardised” … (at [45]), the protection “of the public is paramount in such an application. It is also essential to take into account the necessity to maintain the integrity and standing of the profession. Although Mr Barwick does not seek reinstatement to the roll, it is proposed that he be employed in the legal profession. Accordingly, the Tribunal must be satisfied that neither the public interest nor the integrity of the profession will be damaged by granting him the right to assume a recognised position in the legal profession, albeit at the lower end of the scale”. At [46] the Tribunal said: “The terms upon which the Tribunal may exercise its discretion are broad”. The Tribunal granted the application subject to appropriate conditions.
32 There are, more than likely, other decisions of the Court and the Tribunal dealing with the employment of disbarred practitioners as solicitors or clerks. There is no need to refer generally to other decisions simply because the principles are plain and the authorities set out above are clear as to the principles to be applied. However, the Tribunal does refer to a decision of the Appeal Panel in Law Society v Young (No.3) (LSD) [2001] NSWADTAP 38 decided 23 November 2001. That decision related to an appeal from a decision of the Divisional Tribunal removing the Respondent from the Roll. The Divisional Tribunal made negative findings in respect of 3 charges of professional misconduct (including 5 counts) and one of unsatisfactory professional conduct (involving 2 counts). On the facts the Divisional Tribunal did not remove the practitioner from the Roll but rather imposed two fines, a public reprimand and various other impositions. The Law Society appealed.
33 The Appeal Panel dealt with “penalty” at [22]ff and made these observations as to the principles to be applied:
a) “The fundamental question once there is a finding of professional misconduct is that of the practitioner’s continued fitness to practise” [22]
b) “Professional misconduct is indicative of lack of integrity and bad character. It cannot be assumed that a change of character warranting continuation in practise has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred … In determining whether a practitioner should be permitted to continue to practise after an offence of professional misconduct it is plain that such factors as the gravity and frequency of the conduct giving rise to the finding are relevant … . Also relevant is the nature of the practitioner’s conduct during the period since the conduct in issue and until the question of penalty falls to be determined …” [23]
c) “The focus of the inquiry as to penalty is the conduct itself. The absence of any negative impact of the client is of little, if any, relevance …” [24]
d) “As noted in assessing the gravity of the conduct it is relevant to take into account the frequency of the conduct, including the number of affected transactions, the period of time and amounts of money involved and the extent of any losses caused”. [25]
e) “It is also relevant to have regard to admissions of guilt, expressions of remorse and contrition and candour” [26].
34 The Appeals Panel observed that the Respondent was “genuinely contrite and realises the enormity of what she has done. And contrite for the actions rather than the discovery”. In addition, the Appeals Panel noted that in order to take relevant matters into consideration calls “for more than merely averting to them. There had to be an understanding of the matters and the significance of the decision to be made about them to warrant the description of the matters being taken into consideration” (referring to observations of Giles JA in Weal v. Bathurst City Council [2000] NSWCA 88 at [80]. Indeed, the Appeals Panel referred to this observation twice, once at [34] and again at [42], and we wish to make it absolutely plain that this Tribunal has borne those observations clearly to the fore in this decision.
35 We have been to some trouble to set out in detail the principles, which, in our opinion, apply to applications of this nature. It is not our intention to depart from those principles. We do not propose to repeat them but simply to attempt to apply them to the facts put before this Tribunal. Clearly, each case depends upon its own particular facts as adduced by the parties and the impression that the Tribunal forms of the person who seeks to employ the struck off practitioner, and the struck off practitioner. We now propose to deal with those factors by way of evidence that has been put before the Tribunal by the parties. Before considering that evidence we would seek to make this observation: the Applicant was roundly criticised by counsel for Law Society for failing to lead corroborative evidence and character evidence of sufficient weight or any weight at all. It was submitted that all the evidence before the Tribunal, in effect, was the word of Mr Kennedy himself, there was no independent or corroborative evidence and no person had come before the Tribunal to say what they think of Mr Kennedy having regard to the 2006 decision of the Tribunal and whether they think he is a person whom they can trust. This submission, very strongly put, has been carefully considered by this Tribunal and put in the scales as part of the balancing act this Tribunal must carry out informing its opinion consistent with the principles that we have set out above. We are also mindful of the fact that the Applicant is a country practitioner who carries out a significant amount of criminal legal aid work, often on the smell of an oily rag, and has, no doubt, attempted to conduct these proceedings (through his counsel) in a cost-effective manner consistent with the type of practice that he conducts and the sort of evidence that might normally be tendered in those types of matters. This is not intended as a criticism but rather as an appreciation of the situation confronted by the Applicant and the milieu in which he operates. It is an entirely different legal milieu to that which is apparent from most of the cases to which we have made reference above where the Tribunal has had to consider cases involving former very senior and long-experienced practitioners who were, until they fell from grace, highly regarded and respected in the profession and who could call on persons of note in the profession to speak for their character. Conducting legal aid business “in the bush” is of a different character entirely, different considerations apply and this Tribunal should be alive to the Applicant’s position in considering this discrete application now before us.
Conduct of the Application
36 The Application firstly came on for hearing on 10 December 2007. Certain evidence as then led including, in particular, preliminary evidence from the Applicant himself. As the hearing progressed it became clear to the Tribunal that there was (perhaps) a mis-understanding or a mis-appreciation by the Applicant of what was required to discharge the onus. Perhaps, again, this can be attributed to the type of practice conducted by the Applicant and the desirability of making a cost-effective submission.
37 The Tribunal drew to the attention of counsel for the Applicant the desirability (to put it neutrally) of evidence being led by the Applicant himself and Mr Kennedy consistent with the principles that we have been at pains to set out above, particularly evidence from Mr Kennedy. The Tribunal expressed the opinion that there was a real possibility of an injustice being perpetrated if in fact Mr Kennedy did not give evidence of the factors that should be borne in mind in the application of those principles. The Tribunal made it plain that absent that type of evidence the Application would more than likely fail. Consequently, an adjournment was granted to enable the Applicant and Mr Kennedy to file additional material (as they may be advised). The question is: is that material and the oral evidence sufficient to discharge the onus?
Case for the Applicant
38 We have referred above to the type and geographical extent of the Applicant’s legal practice. It is not proposed to repeat that material. In oral evidence Mr Hegney stated that he had a lot of time for Mr Kennedy and the work that he had done; that he treated clients and other solicitors well; that he thought the decision of the 2006 Tribunal was too harsh but he did not take issue with it; that there was real possibility of injustice through lack of available expertise in the geographical area serviced by the Applicant’s firm and that the employment of Mr Kennedy would being quality and remove delay.
39 He said he operated 7 offices and that his movements revolved around the Court circuit, sometimes being “on the road” for 3 weeks. His view was that the professional work of Mr Kennedy was not in issue, had not been questioned by the Tribunal, but it was not intended that Mr Kennedy argue cases but simply mention matters (by leave), instruct counsel, take statements from witnesses/clients, not tender advice, complete legal aid forms, not advise whether or not the firm could assist, and with leave only make a plea. He was cross-examined in some detail about Mr Kennedy’s role in dealing with professional fees from clients and Mr Hegney made it plain that his practice was that clients must pay up front before the firm goes to Court.
40 He accepted that there may be circumstances where the client turned up with the money on the day and Mr Kennedy would be the only person there. In those circumstances he would be instructed not to accept the money, but those circumstances would be unusual because if it is in fact a plea then there will be a solicitor present.
41 It was not intended that Mr Kennedy would share in receipts for work generated; he thought Mr Kennedy had suffered and was now very tense, very careful and ultra cautious. The Applicant was clearly of the view, having known Mr Kennedy since 2000-2001, that he was a person with whom you could reach an agreement and stick to it, that he was a person of considerable experience (as we shall set out below), that he wanted to return to the profession in some role and was clearly a person who would be trusted by the Applicant to “do the right thing”, perform in a responsible and professional manner and certainly not transgress again.
42 Mr Kennedy himself gave evidence both by way of affidavit and orally. He was extensively cross-examined.
43 His antecedents were not in question. He was born on 1 January 1950 and had been working since he was 10 years of age. He attained the Immediate Certificate at Randwick Boys High School in 1964 at the age of 14; he worked as a PMG telegram delivery boy and then as a storeman at Pagewood. On 29 November 1965 he was accepted into the NSW Police as a Cadet and was sworn in as a Constable on 1 January 1969.
44 Subsequently, he worked in various locations, Central Police Station, Waverley/Paddington Police and then applied for plain clothes duties at Waverley Police in 1971. He completed his Detectives course in 1974, was transferred to Castle Hill performing full-time Detective duties in the geographical area Baulkham Hills/Bilpin/Wisemans Ferry. In 1980 he was transferred to Mt Druitt Detectives, said to be “the busiest Police Station in NSW”.
45 In 1982 he was transferred to CIB Sydney for 9 months, then to Parramatta Detectives from 1984 to November 1985. Subsequently, he was accepted as Chief of Detectives with the rank of Sergeant and stationed at Walgett covering 11 police stations (Walgett, Lightning Ridge, Goodooga, Coonamble, Quirindi, Gwabegar, Baradine, Burren Junction, Pilliga, Gulargambone and Collarenebri. In 1985 he was promoted to Detective Senior Sergeant and was appointed Chief of Detectives Albury, covering the geographical area Albury, Corowa, Holbrook, Tocumwal and Finley. During his time at Albury he was awarded a Commissioner’s Commendation for his achievements in “leading a detailed investigation into a shooting incident at Wagga Wagga”.
46 In 1987 he was transferred to Deniliquin as Acting Inspector and Duty Officer until his eventual retirement on 2 December 1999.
47 Prior to his retirement he had attended Wodonga TAFE in Victoria and achieved his Certificate I and II in Commercial Cookery. He then did work experience at the Harbord Beach Hotel in Sydney until he was accepted as a mature age student at the University of New England, Armidale (UNE) to study law full-time as an internal student.
48 At University he participated in numerous law student activities, won a UNE law student client interviewing competition, represented UNE at a similar competition in Hobart; also won a negotiation competition and represented the University in a similar competition in Sydney. Importantly, whilst studying law he worked as a cook at a local hotel/motel in Armidale. He also did work experience as a volunteer in the North and North West Legal Service Armidale and Kamilaroi Aboriginal Legal Service Armidale until he commenced work as a law clerk for A W Simpson & Co Armidale from approximately June 2000.
49 He graduated Bachelor of Laws from UNE on 23 March 2002; achieved his Graduate Diploma in Legal Practice from the College of Law, Sydney on 24 April 2000; and was admitted as a legal practitioner on 12 July 2002.
50 From June 2000 until his admission he worked as a law clerk with A W Simpson & Co and after admission he worked as a full time solicitor with the same firm until the decision of the Tribunal in 2006. While working with that firm he “primarily did legal aid work with underprivileged persons in criminal law, family law and victims compensation … practiced in Courts covering a wide demographic area from Walcha, to Armidale, Glen Innes, Tenterfield, Inverell, Moree, Walgett, Lightning Ridge, Newcastle and Sydney … (he) appeared for a large aboriginal client base often been called upon to act by the Aboriginal Legal Service and local solicitors in matters were there was a conflict as (he) was one of only a few practitioners in the areas I covered being prepared to do legal aid work … (he) often acted on a pro-bono basis”.
51 He stated that he believed “because of my background prior to becoming a solicitor an inherent abilities I was able to understand and have a rapport with difficult clients in stressful situations. I believe I was able to achieve very positive results for my clients and was able to provide assistance and guidance to many young practitioners both in my firm and other firms in areas where I had special skills, especially criminal law and dealing with difficult clients. I truly loved the practice of law and being able to help persons who through their particular circumstances may not otherwise have achieved assistance.”
52 He then went on to say this:
“It has been very sad for me not being able to utilise the special skills and abilities I say I am possessed of to help the type of individual/s who truly do need what I can offer. I was always prepared to travel long distances and work very long hours to assist my clients as I truly believe I was able to achieve results that may otherwise not have occurred”.
53 It is important to observe that on none of the above Mr Kennedy was the subject of any challenge or cross-examination.
54 He continued, in his first Affidavit, that following that “the decision of the Tribunal I was deeply distressed”. He went travelling with his wife, there was a story published in the Daily Telegraph in Sydney which further distressed him, but he stated that he “still continue(d) to be supported by a large number of former clients, work colleagues and family”. He stated that he was “a person of good health and following a period of “time off” after the decision of the Tribunal I was placed on Social Security benefits until I was able to secure work firstly at a Road House on night duty as a counter operator/cook to my current position of cook at a new child daycare and preschool centre in Armidale”.
55 He then went on to make this statement “I accept the decision of the Tribunal, however, I submit I shall never place myself in a position to be criticised for my actions in such circumstances ever again. I believe I am worthy of a chance to be allowed to utilise my particular skills in relation to the law and my rapport with clients. I can offer my skills to the indigenous and other under privileged persons in North Western New South Wales. I am most appreciative of the opportunity that Mr Hegney is prepared to offer me. If allowed to perform the duties requested I will do so with honour and integrity”.
56 Consistent with the opportunity to file additional material granted to the Applicant on 10 December 2007 Mr Kennedy filed a further affidavit sworn 15 March 2008. In this affidavit he expanded upon his previous affidavit. Importantly, he made these statements:
“I want to go back to working within the practice of the law. It was my life and I loved the work. In fact, since I was 15 years of age and trained as a Cadet within the NSW Police and my eventual police career, the law has encompassed the great majority of my working life.
Almost 4 years have now passed since that most disgraceful time in my life, which eventuated in my being struck off as a solicitor within New South Wales.
Sorry, I am as sorry as hell about the events that caused me to be placed before the Tribunal. The unprofessional manner in which I mishandled moneys that were entrusted to me in my role as President of the North and North Western Regional Law Society in 2004 was nothing short of stupidity.
My handling of the funds was totally unprofessional and I say this with the wisdom of hindsight. Not only did I lose my employment in the practice of law which meant everything to me, but I levelled great discredit upon myself and, more particularly, my family.”
57 Pausing at this point it is worthwhile remembering that the 2006 Tribunal referred to the various stressors that appeared to have affected Mr Kennedy in or about the time of the misappropriation. Evidence was given by Dr Lennings about his “regulation of stress … alcohol abuse … marital relationship …”, the “stress” created at the office of his employer at the time created by an internal dispute between other solicitors within the firm. In relation to these matters Mr Kennedy said in his second affidavit:
“Much evidence has been given to an fro relating to my conduct. Put simply and in common terminology, “I was out of control at the time”. On reflection, I should not have been working in the law with the pressures that I was experiencing. I should have requested time off to get away and settle the financial, marital and emotion issues I had at that time. I realise now these problems were exacerbated by the on-going disputes within (the) firm A W Simpson & Co at Armidale. I liked the people I worked for. I had great respect for all of them, but the on-going office disputes impacted on my day to day decision making and indirectly my health.
I was on the road all of the time travelling to Courts throughout NSW to meet the needs of my clients. At least I did that well. There have never been any complaints from any Magistrate, Judge, or from the clients that I represented.
Strangely enough, it is the encouragement from totally unexpected meetings with clients that I have represented in the past and fellow practitioners, which has rekindled my desire to work in the law again.
After the finding of the Tribunal I walked away from the law. Of course, in real terms I had no choice. In retrospect, it was the best thing that could have happened to me. I did not work for over 12 months. My wife and I rebuilt our relationship. I improved my health and my mental outlook on life. I re-entered the workforce using my cooking qualifications to gain employment. I am the cook at a large children’s day care centre in Armidale at this time.
My superannuation payout settled my financial problems. My wife and two children have forgiven me for the trauma that I brought into our home. My life is back to normal, and I no longer drink alcohol to settle my problems. My mind has cleared of the immense stressors and pressures I was experiencing at the time of my unprofessional conduct.
I thank the Tribunal for the way in which they have dealt with my matter. I fully accept their decision. I apologise for the immense amount of time that so many people have had to devote over my unprofessional actions … .
The events of my life of four years ago can never occur again. Without going into lengthy detail, a myriad of safety flags from family, friends and professional people have now been built into my day to day life that will stand the test of time. I will never, in any future employment, accept extraneous positions, no matter how self gratifying or appealing they may be, nor accept workloads that are beyond my day to day handling capacity.
It should be evident that above all I enjoy assisting those in our community who cannot afford professional representation because of their financial and social circumstances. Should the Tribunal grant me the privilege of again working within the legal profession I know that it is that type of work that I will be going back to.
I am sorry for my professional misconduct of four years ago and I simply ask to be given another chance”.
58 There is good reason for setting out most of the written affidavit evidence in the detail that we have above. Counsel for the Law Society was highly critical of Mr Kennedy, both in cross-examination and in submissions. The criticism was based on the submission that Mr Kennedy had not demonstrated, or even attempted to demonstrate, any contrition or understanding of the gravity of his actions that caused the 2006 Tribunal to remove his name from the Roll. During submissions there was a robust debate between counsel for the Law Society and the Non-Judicial Member over this aspect. This Tribunal is clearly of the view that the statements by Mr Kennedy in his second affidavit 15 March 2008 demonstrate contrition and understanding of the gravity and unprofessional conduct that he engaged in 2004. It may well be that the statements made do not have the finesse of finely crafted drafting but we accept, unreservedly, that Mr Kennedy has made it plain, in his fashion, that he totally and absolutely regrets his conduct, recognises the gravity of it, recognises that it was professional misconduct and that it will not happen again.
59 Mr Kennedy gave oral evidence and was robustly cross-examined. He did not deviate from the written material but rather, in our opinion, added to it by his demeanour, forthright approach and clear acceptance of his position. In our opinion Mr Kennedy was a most impressive witness (as, indeed, was the Applicant Mr Hegney).
60 Mr Kennedy is now aged 58. He made it plain that he had no difficulties in accepting the findings of the 2006 Tribunal – any difficulties were with himself. He accepted that he took moneys that he was not entitled to take and he accepted honestly (in our opinion) that in giving that oral evidence on 14 April 2008 was the first time he had admitted this to the Law Society and to the Tribunal. He accepted uncategorically his breach of trust and his breach of fundamental obligations as a practitioner. He accepted that the 2006 Tribunal was correct in its findings, including its conclusion that he had attempted to mislead it.
61 He accepted that he had not sought counselling relating to his alcohol or marital problems, that he had no employment references and no financial records; but he was not in it for the money and the law was what he loved and what he loved doing. He indicated that at some time in the future he would like to reapply for re-admission as a legal practitioner.
62 He accepted that at the time of the 2006 hearing he could not face up to what he had done but that he now realised that it was wrong; that he had a very serious alcohol problem before but he had now given up alcohol; that he had subsequently travelled around Australia and had a chance to reflect. He could not explain why he acted in the way that he did in 2004 because he did not need to anyway (from a financial point of view) but made it plain that it would never happen again. That it was a dark period in his life and he never wants to go back there again. He asked the Tribunal to give him a second chance.
63 In our view Mr Kennedy showed contrition. He was a forthright witness, honest and has clearly suffered considerably.
Other Evidence
64 Firstly, the Law Society took objection to the Tribunal considering Exhibits “D” and “E” on the basis that the deponents were not available for cross-examination. These exhibits were character affidavits, one from a barrister with over 30 years experience and the other a solicitor with over 10 years experience, both of whom spoke highly of Mr Kennedy and generally deposing that his legal work was of the highest quality and that he always conducted himself with diligence and integrity, both personally and professionally in relation to the deponents. In his secondary submission counsel asserted that, in any event, the Tribunal would give to those affidavits minimal weight.
65 The difficulty with this submission is simply this: at no stage has it been asserted against Mr Kennedy that in any of his professional dealings did he conduct himself in anything other than with propriety. It was never asserted against him in the 2006 proceedings and it is not asserted against him now. Indeed, the evidence, even ignoring these two affidavits, supports the clear inference that in his professional legal activities, including his client trust account dealings (an important point, we think), his conduct was, putting it neutrally, not the subject of adverse comment. Rather, to the contrary.
66 Secondly, there was evidence from Mr Nigel Vertigan, an experienced solicitor, admitted in 1989 and currently holding the position of Senior Advocate in the Parramatta Office of the Legal Aid Commission. He gave affidavit and oral evidence, speaking highly of Mr Kennedy’s work as an instructing solicitor, his observations which “demonstrated that his prior lengthy experience as a police officer was a significant attribute in his conduct of criminal law matters”, that Mr Kennedy “was diligent in carrying out tasks I requested of him … demonstrated initiative in the preparation of matters … (and that) he acted with propriety and demonstrated in an appreciation of this ethical obligations as a solicitor. I considered myself and our clients well served when instructed by Mr Kennedy.”
67 Mr Vertigan has “observed” Mr Kennedy’s “interaction, not only with his clients but also with other legal practitioners. It was apparent to me that he was held in high personal and professional regard by the legal community in Armidale”. Mr Vertigan also observed Mr Kennedy’s appearances in Court and was “of the opinion he demonstrated a level of advocacy that belied his relatively short career as a solicitor. Submissions were principled to the point and delivered with courtesy. I also observed Mr Kennedy on a number of occasion assist accused before those Courts on a pro bono basis”.
68 Finally, Mr Vertigan said this:
“I have and still hold him in high regard for both his abilities and work as a lawyer as well as on a personal basis. Were he to be employed as a law clerk I would have no hesitation in working with him again in any matter I was briefed”.
69 The Law Society through its counsel submitted that there was no evidence from any person of what they think of Mr Kennedy having regard to the decision of the Tribunal and whether they think he is still a person whom they can trust. The Tribunal rejects that submission. The evidence is plain, not only from Mr Vertigan but also (and even discounting to “nil” Exhibits “D” and “E”) also from the Applicant. After all, it is the Applicant who wishes to employ Mr Kennedy and it is the Applicant who wishes to accept responsibility, in a legal professional sense and in a personal sense, for Mr Kennedy and his activities. That, it seems to us, taken individually and together, is a fairly powerful endorsement of Mr Kennedy and his attributes/qualities.
Law Society’s Submissions
70 Counsel for the Law Society made a number of important submissions. Generally, he emphasised the principles that should be applied by this Tribunal and which we have endeavoured to set out above. The primary principle is the protection of the public. He emphasised that this application was made effectively one year after the Tribunal’s 2006 Decision and the approval of the application would send a signal to the public and to the profession that you can misappropriate moneys and effectively get away with it by being employed as a clerk in a law office within a short period of time thereafter.
71 The Law Society opposed the application strenuously and, it submitted (correctly) that the views of the Law Society must be given due and serious weight and careful consideration. Counsel submitted that character evidence made no reference to the matter before the Tribunal (a view with which we would respectfully not agree); that Mr Kennedy had taken a number of years to admit the error of his ways; that we only have Mr Kennedy’s word for his change; that he had not sought counselling and assistance and there was nothing of a corroborative nature to support his submission that he is a changed man – no independent evidence. This, it was submitted was important because the public and the profession must be safeguarded in circumstances where there was, unarguably, an infringement by Mr Kennedy of the fundamental standards of the legal profession.
72 The Law Society submitted that the Applicant had not satisfied the onus of proving that Mr Kennedy was a changed person such that his employment as a clerk would not put at risk the public and/or the profession.
Tribunal’s Opinion
73 In our view, taking into account all of the evidence and having regard to the appropriate conditions that should be imposed, Mr Kennedy is a person about whom we are comfortably satisfied can be employed as a clerk in the offices of the Applicant. We have formed the clear opinion that such employment would not pose a risk to the public nor a risk to the profession and such employment is consistent with the principles that we have been at pains to set out above.
74 Mr Kennedy and the Applicant have satisfied this Tribunal that Mr Kennedy is in fact a changed man, that he realises the gravity of his conduct that brought him undone, that he has changed his lifestyle and approach to life, mended the various stressor fences and is now in a position to move on with his life in a productive capacity within the legal milieu as a clerk. It is our view that he has demonstrated contrition and understanding; that he was a forthright witness and is a person whose undoubted and unchallenged talents will be of considerable benefit to the public in the north and northwestern region of this State. Although it is true that “hard cases make bad law”, in considering this matter we have not (and we wish to make this point quite clear) considered the need for legal expertise in the particular region in which the Applicant practices. That, in our view, is not a factor that we should bear in mind; rather, the only factor is whether Mr Kennedy is a fit and proper person to be employed as a clerk in a legal office wherever situate. We are of the view that he is.
75 It is also important to bear in mind that there was clear unchallenged evidence before the 2006 Tribunal to the effect that Mr Kennedy would not offend again. That independent evidence, given by two professionals, in our view is clearly supported by the material before this Tribunal. Although it is true that many of the prior decisions place some weight upon the length of time between the offences and the application for employment, in our view that is not determinative but rather a factor to consider in the balance. Clearly the relationship between Mr Kennedy and his fellow practitioners and clients is, and was, beyond reproach. He fell by the wayside as a result of various stressors (which have now gone) and as a result of being elevated to the position of President of the Regional Society far too early in his professional career. In the totality of the circumstances bearing in mind the decision of the 2006 Tribunal and the evidence that was placed before us we have formed the clear view that Mr Kennedy is a fit and proper person to be employed as a clerk in a legal office.
76 The only question is what conditions should be imposed upon him.
Conditions
77 The Applicant in his original letter to the Law Society put forward a number of conditions, which he proposed should be imposed upon himself and Mr Kennedy if the application was successful. During the course of the hearing, and having regard to the conditions imposed in La Fontaine and Miedzienski, we invited counsel for the parties to make further submissions regarding the conditions that should be imposed. Of course, and again, each matter must be considered on its own facts.
78 The parties thereafter made detailed submissions on the conditions that the Tribunal might consider imposing upon the employment of Mr Kennedy should the Tribunal be of the mind to approve the Application. Speaking generally, there is not a great deal of difference between the submissions on behalf of the Applicant and those on behalf of the Law Society. However, where there are differences those made on behalf of the Applicant seem to us to be too wide in that they tend to put Mr Kennedy in the defacto role of a solicitor/instructing solicitor whereas in the original Application the Applicant sought to employ Mr Kennedy as a clerk and in certain defined roles more specifically set out in the Applicant’s letter 16 January 2007.
79 The Tribunal is inclined to the view firstly, that the conditions to be imposed should be generally consistent with the Applicant’s letter 16 January 2007 but expanded to accommodate the realities of country practice but not expanded to permit Mr Kennedy to act in the role of a solicitor or instructing solicitor; secondly, to permit the Applicant, by leave, to apply (if so advised) to the Tribunal in the future for a variation(s) to the conditions on the basis that the conditions have been satisfied for a number of years and that Mr Kennedy’s standard of work, behaviour and application to his duties is appropriate and satisfactory; thirdly, should Mr Kennedy leave the employ of the Applicant and seek to be employed by another solicitor, whether or not in the same geographical area, the conditions now imposed will cease to operate in so far as any solicitor who would seek to so employ Mr Kennedy would have to apply to the Law Society and/or the Tribunal (as may be appropriate) such that the Law Society and/or the Tribunal would have the opportunity of re-considering the conditions that should be imposed on Mr Kennedy’s new employment. There is good reason for this last-mentioned condition: the evidence of both the Applicant and Mr Kennedy was based, to a large extent, on the geographical area and legal problems encountered in that area and the expertise and assistance that Mr Kennedy would be able to bring to the task in that geographical area (described above).
80 The Tribunal can foresee, but without expressing any final opinion at all, that Mr Kennedy may well be able to return to this profession in the course of effluxion of time and should be so wish. The Tribunal has formed the view that Mr Kennedy will not re-offend but is mindful of his age and relative lack of experience as a legal practitioner; on the other hand, the Tribunal was impressed by his demeanour, forthrightness, the fact that he demonstrated contrition and understanding, his experience “in life” and his clear desire to participate in the legal milieu. We have formed the clear opinion that Mr Kennedy, under appropriate supervision, will be a useful participant in legal matters, initially in accordance with the conditions that we impose below.
81 We have considered the additional submissions and have formed the opinion that conditions should be imposed upon Mr Kennedy’s employment as we set out in the orders below. These conditions, in our opinion, satisfy the interests of the public and the legal profession.
Costs
82 We seek to adopt, if we may and with respect, the views of the Tribunal in Miedzienski at [50]. That Tribunal, in the circumstances of that case, made this observation:
“[50] Whilst the applicant has succeeded on this application the Tribunal is of the view that the original decision arrived at by the Law Society was reasonable having regard to the material that was placed before the Society. The effluxion of time and the additional material available to the Tribunal, particularly the fact that the Tribunal was in a position to make an assessment of Mr Barwick, has resulted in a different determination. It is not, however, a case in which the Respondent should be required to pay the applicant’s costs.”
83 Adopting that view (peculiar to that case) we have formed the same opinion with regard to this matter and we would simply adopt the same words as used by that Tribunal and substitute “Mr Kennedy” for “Mr Barwick”. In other words, each party should pay their own costs of and incidental to these proceedings such that there should be a formal Order: “No order as to costs”.
Orders
84 1. Pursuant to Legal Profession Act 2004 Section 17, the Tribunal approves the employment of Rodney James Kennedy in the practice of the Applicant upon the following conditions:
2. No order as to costs.
A. Mr Kennedy’s employment to be limited to:
B. Conditions of Employment:
i) office organisation and administration
ii) assisting applicants and recipients of legal aid, including preparation of documents in support, preparation of legal aid applications and assisting applicants to complete application forms
iii) obtaining preliminary instructions in Legal Aid, Victims Compensation Claims, Family Law matters, criminal matters and Children’s Court Care proceedings; such to include obtaining preliminary instructions from clients, preparation of statements (but not including preparation of affidavits), providing assistance to the Applicant, employed solicitors of the Applicant, and briefed counsel in relation to factual matters
iv) Attendance in Court on mentions only, and then only by leave of the Judicial Officer.
C. Additional Conditions:
i) Mr Kennedy to be supervised by the Applicant at all times
ii) Mr Kennedy is not to have access to or be signatory to any account conducted by the Applicant with any financial institution in the course of his practice
iii) No document, letter or any other written material drafted by Mr Kennedy is to be dispatched from the Applicant’s office without prior approval of the Applicant
iv) No document or written communication of any nature is to leave the Applicant’s practice under the name or signature of Mr Kennedy
v) Mr Kennedy is not to receive any money from any client or potential client of the Applicant
vi) Mr Kennedy is not to hold himself out or represent himself as being a qualified legal practitioner but rather is to inform those persons with whom he has contact in the course of his employment of the Applicant that he is in fact a clerk of the Applicant and is not authorised and cannot tender to any such person any legal advice
vii) Mr Kennedy not to tender to any person any legal advice
viii) Mr Kennedy not to have a business card or any other form of identification identifying him in any capacity with the Applicant’s practice without prior approval of the Law Society of NSW
ix) Mr Kennedy not to have any key or other means of entry to any office from which the Applicant carries on his legal practice; not to attend any such office without, at the same time, the attendance of the Applicant or of another solicitor in the Applicant’s employ; not to have access to mail, e-mail transmissions or other forms of written communication received in the Applicant’s office other than as provided to him by the Applicant
x) The remuneration of Mr Kennedy to be by way of a stipulated salary or hourly rate, not to include or be calculated by reference to income received or success in any matter
xi) All files opened by Mr Kennedy to be forwarded to, and reviewed by, the Applicant within seven (7) days of being opened.
i) The Applicant to report on a three monthly basis commencing three calendar months from the date of this decision, to the Manager, Professional Standards Department of the Law Society of NSW, in writing, on Mr Kennedy’s standard of work, behaviour and application to his duties
ii) Prior to the commencement of any employment by the Applicant of Mr Kennedy, both the Applicant and Mr Kennedy to inform the Tribunal and the Law Society of NSW, each in writing, that they individually understand the conditions set out in this Determination and each individually give an undertaking that each will, as far as the conditions relate to them, abide by those conditions; in each case such to be in writing, signed by the Applicant and Mr Kennedy
iii) A copy of these conditions to be sent to the clerks of all Courts, which are attended, by the Applicant or other persons within his employ
iv) These conditions to cease and have no further effect upon Mr Kennedy ceasing to be employed by the Applicant; provided that should Mr Kennedy seek to be employed by another solicitor these conditions may be used as a basis for an application by that other solicitor for employment of Mr Kennedy
v) Upon Mr Kennedy ceasing to be employed by the Applicant the Applicant shall advise the Manager, Professional Standards Department of the Law Society of NSW in writing of such cessation and provide a final report in accordance with the terms of condition C(i) above.
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