In the Matter of Claire Amy Morel

[2015] SASCFC 20

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

In the Matter of CLAIRE AMY MOREL

[2015] SASCFC 20

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Stanley and The Honourable Justice Parker)

27 February 2015

PROFESSIONS AND TRADES - LAWYERS - READMISSION TO PRACTICE - AFTER BEING STRUCK OFF

Application for readmission as a legal practitioner.  Applicant struck off the Roll in 2004 for having fostered inappropriate relationships with clients and lying to the Department of Correctional Services.  The applicant subsequently underwent counselling and worked as, among other things, a law clerk in Victoria. 

Held per the Court (granting the application):

1.  The Court has a responsibility to protect the public interest by ensuring that only fit and proper persons are admitted to practise as legal practitioners.  Where a practitioner’s name has been removed from the Roll, that person bears the onus of satisfying the court that it is not contrary to the public interest to readmit them to practise.  This is a heavy onus to discharge.  It requires, relevantly, the applicant to satisfy the Court of their rehabilitation and that, notwithstanding their prior misconduct, their readmission would not damage the standing of the legal profession. 

2.  The evidence establishes that the applicant has rehabilitated and can cope with the rigours and stresses as an employed legal practitioner.

3.  Notwithstanding the seriousness of her prior misconduct, the applicant can now be held out to the public as a fit and proper person capable of acting as a lawyer in all matters usually transacted by or entrusted to lawyers.

4.  The applicant has behaved appropriately in her employment in legal offices.  In the circumstances she should only practise as a legal practitioner as an employed practitioner for at least five years.

Legal Practitioners Act 1981 (SA) s 15; Supreme Court (Civil) Rules 2006 (SA) r 371; Supreme Court Admission Rules 1999 (SA) r 6 and r 8, referred to.
Legal Practitioners Conduct Board v Morel (2004) 88 SASR 401; Incorporated Law Institute (NSW) v Meagher (1909) 9 CLR 655; Ex parte Lenehan (1948) 77 CLR 403; Re Harrison (2002) 84 SASR 120; Dixon v Legal Practice Board of Western Australia [2012] WASC 79, considered.

In the Matter of CLAIRE AMY MOREL
[2015] SASCFC 20

Full Court:  Gray, Stanley and Parker JJ

THE COURT

1. This is an application for readmission as a practitioner of this Court.

2. The applicant, Claire Amy Morel, was admitted as a barrister and solicitor of this Court on 19 December 1988.  On 9 June 2004, Ms Morel’s name was removed from the Roll of Practitioners by order of this Court.[1] 

   [1]    Legal Practitioners Conduct Board v Morel (2004) 88 SASR 401.

3. On 26 August 2010, Ms Morel applied for readmission as a practitioner.  On 16 January 2012, following a hearing, the Board of Examiners submitted a report to the Court expressing the view that Ms Morel was not a fit and proper person to be readmitted. 

4. On 29 May 2013, Ms Morel filed a further application for readmission, which is the subject of these reasons.  The application was not opposed by the Law Society of South Australia or the Legal Practitioners Conduct Board. 

   Removal from the Roll

5. Before turning to consider Ms Morel’s present application, it is convenient to address the circumstances of Ms Morel’s removal from the Roll.  Ms Morel was admitted as a mature age graduate.  She commenced employment with the Legal Services Commission and then worked for the Aboriginal Legal Rights Movement. 

6. In 1989, when visiting Yatala Prison in her capacity as a solicitor, Ms Morel met a prisoner, Brett McFarlane, and developed a relationship with him.  In 1990, Ms Morel married Mr McFarlane, while he was still imprisoned.  The relationship came to an end in 1996, while Mr McFarlane was still imprisoned. 

7. In 1997, Ms Morel was contacted by a former client, Paul Page, and began a professional and personal relationship with him.  Ms Morel represented Mr Page in the Supreme Court in 1997 and continued to maintain a relationship with him until early 2000.  In October 1998, Ms Morel intentionally made a false statement to the Department of Correctional Services, claiming that she needed to urgently speak to Mr Page concerning legal matters when she in fact wanted to speak to him about personal matters.  In November 1998, Ms Morel had a monitored telephone call with Mr Page, who was unaware that the call was monitored.  During the call, Mr Page admitted he “slashed” another prisoner and Ms Morel proceeded to joke about it with him.  Mr Page was unable to have unmonitored “legal calls” with Ms Morel and understood that he could only have unmonitored legal calls if he changed solicitors.  In December 1998, Ms Morel was banned from visiting Mr Page in any capacity on the basis that she was using the privilege of legal visits to further her personal relationship with him.  The Department of Correctional Services subsequently reported Ms Morel to the Conduct Board as her conduct had arguably caused Mr Page’s privilege to be waived in relation to his attack on another prisoner.  Ms Morel continued to act for Mr Page after the making of this complaint.

8. In 2002, Ms Morel befriended Derrick Smith, a prisoner.  Ms Morel ceased to act for Mr Smith after they became friends, but maintained contact with him.  In June 2002, Ms Morel signed a home detention resident agreement in which she agreed to accommodate Mr Smith at her residence in the event that he was granted home detention.  In May 2003, Mr Smith absconded from the Adelaide Pre-Release Centre and attended at Ms Morel’s home.  Ms Morel attempted to persuade him to surrender.  She reported his appearance at her home to police and co-operated with their investigations.  Ms Morel subsequently sought therapy to address her tendency to foster inappropriate relationships, but accommodated Mr Smith in her home when he was released on parole.  Mr Smith was residing with Ms Morel at the time of her disciplinary hearing.

9. In assessing Ms Morel’s conduct, the Full Court said:

   Ms Morel’s conduct represented a serious departure from proper professional standards. She allowed a personal relationship to interfere with her professional duties to a client who was charged with serious criminal conduct. Ms Morel’s unprofessional conduct allowed her client to make recorded admissions of serious criminal conduct during a telephone conversation. The client was unaware that the conversation was monitored. At the time Ms Morel was aware of the monitoring. At the very least this led to an inappropriate disclosure and possibly to a loss of legal professional privilege with respect to an admission. As the result of this unprofessional conduct, the client was left without independent legal advice about important matters concerning his liberty. The client’s repeated complaints and frustrations about his “legal calls” being monitored were well documented.

   On Ms Morel’s own admission she lied to the Department for Correctional Services with a view to obtaining legal visiting rights for the ulterior purpose of furthering a personal relationship. This represented serious unprofessional conduct putting in jeopardy the good standing of those members of the profession who have regular contact with the Department for Correctional Services.

   In regard to Ms Morel’s statement concerning her association with Mr Smith, the Tribunal noted:

   The Tribunal finds this an extraordinary statement in view of the situation the practitioner had been placed in her relationships with previous prisoners and given the fact that at the time she agreed to accommodate [Mr Smith] the Tribunal hearings were current. It is a statement which in the view of the Tribunal is indicative of the immaturity and naivety of the practitioner.

   It is a matter of considerable concern that Ms Morel lacked the basic understanding of legal professional duties to understand the nature of the conduct that she engaged in and the way in which it disadvantaged her client. Having recognised the problems when dealing with Mr McFarlane, she failed to act in an appropriate way when she became infatuated with Mr Page. Although her later conduct concerning Mr Smith is not the subject of charges, it is further and continuing conduct showing Ms Morel’s naivety in her relationships with prisoners. As was observed in A Solicitor v Council of Law Society (NSW), fitness is to be decided at the time of the hearing.

10. The Court considered the psychological and psychiatric assessments of Ms Morel and concluded:

    As earlier observed, Ms Morel has demonstrated a lack of understanding of professional obligations and an inability to restrict her relationship with clients within appropriate limits. Dr Raeside suggests that she may suffer from a borderline personality disorder.

    Ms Morel is now aged in her 50s. She has been slow to commence and continue psychological treatment. To date it has been of doubtful value. She has not taken any step to obtain any meaningful professional mentoring. Ms Morel is presently unfit to practise the law. It is possible that with treatment there will come a time when she is fit to practise. In the event that Ms Morel satisfactorily undertakes the recommended courses of treatment including appropriate professional mentoring she may be able to demonstrate that she has become fit to practise law. However, this is not presently the case.

    The technical competence of Ms Morel as a legal practitioner is not the subject of complaint. What makes her unfit to practise is an apparent and continuing failure to discern the barrier between professional and personal relationships, to the detriment of her clients and her integrity as a legal practitioner.

    ...

    Suspension may be appropriate where there is a reasonable prognosis that, with appropriate treatment or supervision, the practitioner is likely, within a finite time, to be fit to practise. That cannot be said of this practitioner at this time. In this case, there is no certainty that the practitioner will be fit to practise or, if she is, when that will be. Suspension until further order would therefore be inappropriate. The practitioner’s name should be removed from the roll.

    Had there been some demonstrable ability to recognise and to deal appropriately with the boundaries between the personal and the professional and some demonstrable understanding of basic professional obligations, an appropriate course to follow may have been to order suspension for a discrete period. However, Ms Morel’s attempts at treatment appear to have led to little improvement. There has been no attention to her professional education. There is no clear prognosis. In these circumstances a suspension from practice is inappropriate.

    As King CJ observed in Re a Practitioner, the practitioner should not feel that a striking-off order necessarily closes the door to the legal profession for all time. In that case King CJ expressed the hope that after a period of time the practitioner might be able to establish to the satisfaction of the court that he had re-established himself in the esteem of his profession and the eyes of the general public. The same observations apply to this practitioner. However, certain observations of the Tribunal and of Dr Raeside and Ms Tiggeman are relevant to a consideration of any such application for readmission.

    Dr Raeside has recommended that she requires ongoing therapy and that she attend professional education courses in boundary violation. If readmission is to be considered, that would have to be undertaken. However, if Ms Morel is serious about seeking readmission to practise the law she will also need to ensure that she has had access to the services of a professional mentor of the type suggested by Ms Tiggeman. Ideally that would be in conjunction with some employment in legal practice. Her being struck off does not preclude her from making an application to the Tribunal pursuant to s 23AA of the Legal Practitioners Act.

    The totality of the circumstances before the court demonstrate that Ms Morel does not have the necessary attributes of a person to be entrusted with the responsibilities of a legal practitioner. The Tribunal has found that Ms Morel’s conduct has involved deception and dishonesty. Even if the deception and dishonesty were occasioned by Ms Morel’s borderline personality condition, the misconduct is serious. As earlier observed, such conduct has a tendency to bring the profession into disrepute and to undermine the confidence of the public in the legal profession. Suspension is not an appropriate order with respect to a practitioner whose conduct establishes that the practitioner lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner.

11. As noted earlier in these reasons, Ms Morel previously applied to be readmitted in 2010.  In assessing Ms Morel’s application, the Board of Examiners had regard to the relevant medical evidence and concluded:

    A person cannot be said to be fit and capable of acting as a practitioner in all business and matters usually transacted by or entrusted to practitioners if that fitness and capability depends on a range of factors which may or may not be met or continued.

    The implication from the comments in the reports as to the supervisory regimes is that the Applicant is at risk of straying again into inappropriate professional behaviour unless given the stringent supervision and support which is referred to in those reports.

    ...

    The Board is concerned that after a period of 7 years since the strike off Order was made and intensive therapy over much of that period, those with whom she has had a therapeutic relationship find themselves unable to express the opinion that the Applicant is now able to practice without having to have in place strategies to enable her to be reminded of her boundary and other obligations and to offer guidance to ensure that she does not again stray into prohibited territory.

    The Board has no unequivocal endorsement from those who have treated her that she is capable of acting as a legal practitioner in all matters normally dealt with by legal practitioners. It is clear that even now she has to be closely supervised. It appeared to the Board that if such a level of supervision was required for a person of her age and experience, she was not fit to perform the business usually transacted by or entrusted to practitioners of the Court.

    ...

    The Board is concerned that the Applicant is vulnerable to relapse into boundary violations unless and until evidence is given that she can function in practice with far less support than recommended and with a freedom to take employment in less supported circumstances.

    The Board of Examiners further expressed concerns about the practicality and enforceability of the proposed supervision arrangements. 

    Readmission – General Principles

12. Section 15(1) of the Legal Practitioners Act 1981 (SA) provides:

    Entitlement to admission

    (1)     A person who satisfies the Supreme Court—

    (a)     that he or she is a fit and proper person to practise the profession of the law; and

    (c)     that—

    (i)     he or she has complied with—

    (A) the rules of the Supreme Court relating to the admission of barristers and solicitors of the Supreme Court; and

    (B) the rules made by LPEAC under this Act prescribing the qualifications for admission as a barrister and solicitor of the Supreme Court; or

    (ii) insofar as there has been non-compliance with those rules, he or she should be exempted from such compliance,

    is entitled to be admitted and enrolled as a barrister and solicitor of the Supreme Court.

13. Rule 371 of the Supreme Court (Civil) Rules 2006 addresses applications for admission by a person whose name has been struck off or removed from the Roll.[2]  Subsection (5) provides:

    The applicant must satisfy the Full Court as to his or her fitness and capacity to act as a lawyer in all matters usually transacted by or entrusted to lawyers.

    [2]    See also Supreme Court Admission Rules 1999 rules 6, 8.

14. In Incorporated Law Institute (NSW) v Meagher, Isaacs J conducted a review of the authorities in the United Kingdom and said:[3]

    So that the decisions in England resting on the self-same words “fit and proper” are exactly in point in the present case. Lord Esher M.R., in Weare’s Case, goes on to make some observations very pertinent to Meagher’s application for re-admission. After saying that the Court below, in view of the nature of the offence, was bound to strike the solicitor off the roll, he said:‑ “I know how terrible that is. It may prevent him from acting as a solicitor for the rest of his life; but it does not necessarily do so. He is struck off the roll; but if he continues a career of honourable life for so long a time as to convince the Court that there has been a complete repentance, and a determination to persevere in honourable conduct, the Court will have the right and the power to restore him to the profession....

    That indicates the conditions under which the Court will have, as the Master of Rolls expresses it, “the right and the power” to restore the applicant who has once erred.

    It may be that the error, though flagrant, has proved to be a solitary lapse. It may be that after sufficient time has passed the applicant can satisfy the Tribunal that his purgation is complete, his repentance real, his determination to act uprightly and honourably so secure that he may be fairly re-entrusted with the high duties and grave responsibilities of a minister of justice. But that obligation lies upon him, and is no light one. The errors to which human tribunals are inevitably exposed, even when aided by all the ability, all the candour, and all the loyalty of those who assist them, whether as advocates, solicitors, or witnesses, are proverbially great. But if, added to the imperfections inherent in our nature, there be deliberate misleading, or reckless laxity of attention, to necessary principles of honesty on the part of those the courts trust to prepare the essential materials for doing justice, these tribunals are likely to become mere instruments of oppression, and the creator of greater evils than those they are appointed to cure. There is therefore a serious responsibility on the court ‑ a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential. It is not a question of what he has suffered in the past, it is a question of his worthiness and reliability in the future....

    [3]    Incorporated Law Institute (NSW)v Meagher (1909) 9 CLR 655, 680-2.

15. Higgins J stated the test in the following terms:[4]

    ... The true question is not whether the respondent has been proved “almost conclusively” guilty of misfeasances since 1896, but whether he has proved that notwithstanding his misconduct before 1896 he is now a “fit and proper” person. The presumption in favour of innocence is not applicable. The respondent has been found guilty in 1896 of misconduct such as showed him to be unfit for the office of a solicitor. As he has shown himself to be capable of such misconduct, has he shown that he is now incapable of it, or, at the least, that he is no longer likely to err in the direction of deception? It is not his reputation that is in question, but his intrinsic character.

    [4]    Incorporated Law Institute (NSW)v Meagher (1909) 9 CLR 655, 692.

1. In Ex parte Lenehan, Latham CJ, Dixon and Williams JJ considered the relevant authorities and said:[5]

   The decisions cited refer to cases where a solicitor who had been on the roll was struck off the roll. When such a person applies for reinstatement he is in a more disadvantageous position than an original applicant because he must displace the decision as to probable permanent unfitness which was the basis of his removal. A solicitor may be restored to the roll after he has been struck off, but the power to reinstate should be exercised with the greatest caution and only upon solid and substantial grounds (Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655).

   The question to be decided is not one of law to be determined by reference to previous decisions. The duty of the court is to determine in what manner the court should exercise its discretion in the particular circumstances of each case. Generalizations relating to questions of character and moral fitness, such as the statement quoted from Ex parte Macaulay (1930) 30 SR (NSW) 193 should not be treated as if they were propositions of law...

   [5]    Ex parte Lenehan (1948) 77 CLR 403, 422.

2. Re Harrison concerned a second application for readmission.[6]  The application was not opposed by the Law Society, however, the Board of Examiners was neither satisfied that the applicant was a fit and proper person to be readmitted, nor was it satisfied that the applicant was fit to act as a practitioner in all business and matters usually transacted by or entrusted to practitioners.  Doyle CJ, in dissent as to the outcome, considered the High Court’s decision in Ex parte Lenehan[7] and said:[8]

   ... It is also relevant to recall that in such a matter the court acts in the public interest, and not with a view to punishment. The court is concerned to protect the public. It is not concerned with punishment of a practitioner who has done wrong, although the removal of the practitioner's name from the roll of practitioners will operate as a punishment, and a refusal to restore the name of a former practitioner to that roll may seem to be a form of punishment. The court's concern is to protect the public and the administration of justice by preventing a person from acting as a legal practitioner if that person is not fit to remain a member of the profession: see Law Society of South Australia v Murphy (1999) 201 LSJS 456 at 460-461 and Law Society of South Australia v Rodda (2002) 83 SASR 541 at 545 [20]-[22].

   The reasons for this approach are well established. A legal practitioner is held out by the court as a person fit and proper to discharge an important responsibility. A practitioner is an officer of the court, and is involved in the administration of justice. Legal practitioners are also held out to the public as persons upon whom the public may rely, and in whose integrity they may trust. The court cannot hold a person out to the public as a fit and proper person to be a practitioner, if it is not satisfied that this is the case. As I have said, this has nothing to do with questions of punishment or reform or rehabilitation. As I said in Rodda at [29], another factor to consider is the reputation and standing of the legal profession. The court must consider whether public confidence and trust in the legal profession would be eroded if a person were permitted to remain or to become a member of the profession, notwithstanding the past conduct that is in question.

   These remarks were adopted by the Full Bench of the Supreme Court of Western Australia in Dixon v Legal Practice Board of Western Australia.[9]

   [6]    Re Harrison (2002) 84 SASR 120.

   [7]    Ex parte Lenehan (1948) 77 CLR 403.

   [8]    Re Harrison (2002) 84 SASR 120, [60]-[61].

   [9]    Dixon v Legal Practice Board of Western Australia [2012] WASC 79.

3. In Harrison, Bleby J stated the approach to be taken to applications to readmit practitioners in the following terms:[10]

   I accept as appropriate the test referred to in Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 at 681-682 per Issacs J and Higgins J at 692. I also accept what Latham CJ, Dixon and Williams JJ said in Ex parte Lenehan (1948) 77 CLR 403 at 422.

   We are not here to punish the applicant. We must be mindful of the great responsibility placed on this Court in holding out as legal practitioners persons in whom their clients can have trust in their honesty, their integrity and their competence. There is also a need for this Court to be able to rely on the integrity of all members of the legal profession in the administration of justice. It is for those reasons that the law imposes on an applicant for readmission a very high onus to satisfy the court that the applicant is now a fit and proper person to be readmitted as a practitioner where his past conduct clearly demonstrates a serious failure to comply with the necessary standards.

   Whether the applicant has discharged that heavy onus must be considered not only by what he and others say in support of this application but by viewing that information against the circumstances which led his name to be removed from the roll and, in this case, the circumstances of his previous application for readmission in 1992.

   [10]   Re Harrison (2002) 84 SASR 120, [83]-[85].

4. Besanko J also accepted Meagher[11] and Lenehan[12] as the relevant High Court authorities and said:[13]

   Plainly the public interest demands that only fit and proper persons be permitted to practise as legal practitioners. This Court has found that by reason of the conduct identified, the applicant was not a fit and proper person to practise as a legal practitioner.

   The applicant carries the onus of establishing that he is now a fit and proper person notwithstanding a previous finding that he was not such a person. In 1992, the Full Court described that onus, where a practitioner has been involved in financial dishonesty, as a particularly heavy one. I agree. On the other hand, the Full Court rejected the suggestion that the applicant must leave the court in no doubt that he should be readmitted. The court said that applying an onus used in criminal proceedings ‑ the applicant must prove his fitness for readmission beyond all reasonable doubt ‑ is unhelpful.

   [Footnote omitted.]

   [11]   Incorporated Law Institute (NSW)v Meagher (1909) 9 CLR 655.

   [12]   Ex parte Lenehan (1948) 77 CLR 403.

   [13]   Re Harrison (2002) 84 SASR 120, [113]-[114].

5. The Court has a responsibility to protect the public interest by ensuring that only fit and proper persons are admitted to practise as legal practitioners.  Where a practitioner’s name has been removed from the Roll, that person bears the onus of satisfying the court that it is not contrary to the public interest to readmit them to practise.  This is a heavy onus to discharge.  It requires, relevantly, the applicant to satisfy the Court of their rehabilitation and that, notwithstanding their prior misconduct, their readmission would not damage the standing of the legal profession. 

   The Application for Readmission

6. In support of the present application, Ms Morel provided statutory declarations dated 3 October 2013 and 10 February 2014.  The Board of Examiners received medical reports of 26 October 2012 and 14 December 2014 from Andrew Carroll, a psychiatrist, and from Simon Nudds, a psychologist, dated 23 May 2012.  It is to be noted that Dr Nudds has been involved in treating Ms Morel since July 2008. 

7. On 17 May 2011, Polly Dixon, a principal of a firm at which Ms Morel had undertaken periods of part time work experience from 2009 to 2011, wrote a letter in support of Ms Morel’s application for readmission.  In her letter, Ms Dixon said:

   I also observed that in the 12 month period from her previous work experience in 2009 to 2010 that her approach and attitude towards her previous boundary transgressions had continued to develop in a positive and appropriate matter. Again I reiterate my comments that she fully acknowledges the issues and has positively rehabilitated herself. I fully support her re-admission as a practitioner and should the opportunity present itself, would be prepared to re-employ her as a solicitor in my practice in the future.

8. On 10 May 2012, David Robin Joseph, a solicitor in Victoria who employed Ms Morel in a clerical role following her removal from the Roll, wrote to the Legal Services Board requesting a relaxation of Ms Morel’s conditions so that she could perform, under supervision, more tasks of a legal nature.  In his letter, Mr Joseph summarised Ms Morel’s performance in the following terms:

   Miss Morel continues to show a high level of compliance with the Board’s conditions and is a conscientious and capable worker. 

9. On 14 November 2012, Mr Joseph wrote to the Legal Services Board reporting on Ms Morel’s compliance with her conditions.  Mr Joseph summarised Ms Morel’s performance as follows:

   In summary, Ms Morel has diligently complied with the Conditions imposed by the Board. She has given us no concern about the client’s [sic] of the firm: in particular there has been no attempt by Ms Morel to initiate or maintain contact with other clients, other than as directed by the practitioners of the firm, in accordance with the Conditions set by the Board. Her conduct has been efficient, appropriate and professional.

10. In her statutory declaration of 3 October 2013, Ms Morel said:

    ... I have reflected upon the course of my behaviour, which led to the Full Court determination. It is with a deep sense of regret and shame, as well as embarrassment that I look back on the actions that caused my removal from the Roll of Practitioners.

    I agree that my conduct towards Mr Page amounted to a transgression of the boundary between personal and professional life, of a serious and fundamental kind. The most elementary and important of legal duties-the fiduciary duty to act in the best interests of the client at all times and not your own-was breached by my self-centred behaviour.

    As a result of my actions, I compromised Mr Page’s access to impartial legal representation at a time when he was charged with serious criminal offending. I erred in both commencing a personal relationship with Mr. Page and continuing to act for him thereafter. It is clear to me that this behaviour was part of an ongoing improper course of conduct, which included my relationships with prisoners Mr Brett McFarlane and Mr Derrick Smith.

    In Mr. Page’s case, my failure to meet proper professional standards was particularly evident in the monitored telephone conversation between him and me on 19 November 1998. Mr Page’s legal right to confidentiality and legal professional privilege were ignored by me and I failed to protect his interests at a crucial moment. I regret this serious lapse of professional behaviour.

    I also regret my conduct in relation to the Department of Correctional Services. In December 1998 I was banned from visiting Mr. Page in either a personal or professional capacity. I took advantage of the privileges offered by the Department of Correctional Services to solicitors to gain access to Mr Page to further a personal relationship. Moreover, I falsely represented to a prison officer, on one occasion that I needed to speak to Mr Page for legal reasons when I intended to pursue personal relations with the prisoner. I agree that these behaviours were deceptive and a misuse of the solicitor privileges provided to facilitate the smooth administration of justice in South Australia.

    I now fully understand that the effective administration of justice requires legal practitioners to be trustworthy and maintain high standards of honestly [sic] and propriety in all their professional dealings with prisoners and the Department of Correctional Services. Should I be re-admitted to legal practice, I would, at all times be scrupulous in my compliance with the rules established for solicitor/ prisoner communication.

    Further, my conduct was of such a standard as to amount to an embarrassment to the legal profession generally. My failure to preserve professional boundaries would have discomforted other solicitors, particularly those who regularly work within the criminal justice system and with the Department of Correctional Services. Moreover, I understand that my propensity for boundary violation had the potential to erode public confidence in the good the [sic] administration of justice in South Australia. I regret these impositions.

    I also regret my relationships with prisoners Mr. Brett McFarlane and Mr. Derrick Smith. Each was entitled to disinterested legal representation and I failed in my legal obligation by allowing my personal needs to subsume my professional duty to them. I am sorry for this.

    Moreover, I had no insight into my own conduct at the time of the disciplinary proceedings against me. I failed to comprehend the low standard of my conduct towards Mr Page or to understand the unsuitability of my relationships with the prisoners. Indeed, such was my lack of awareness that my association with Mr. Derrick Smith continued during the disciplinary hearings against me.

11. Ms Morel further stated that, since her removal from the Roll, she has undertaken regular counselling.  Her declaration discloses that she had been employed as a tutor at La Trobe University and maintained appropriate personal boundaries with students.  As noted earlier in these reasons, Ms Morel also undertook work of a clerical nature for a law firm in Victoria, with the permission of the Legal Services Board.  Ms Morel was permitted to undertake some duties of a legal nature under the supervision of other legal practitioners of the firm, including attending client interviews, taking instructions from clients and drafting documents and correspondence.  Ms Morel stated that she complied with all the requirements of the Legal Services Board and that:

    During the entire cause [sic] of my employment with Mr. Joseph I was not at any time overcome with any urge or sympathy toward any client, which might have caused me to breach the boundary between my personal and working life. I was able to maintain clear and firm boundaries, irrespective of whether clients had legal issues of a family, criminal or civil nature.

    After ceasing her employment with Mr Joseph, Ms Morel worked in an administrative capacity for a conveyancing firm in Benalla.

12. In his report, Dr Nudds described Ms Morel as a “highly committed and motivated, insightful, open and honest” patient.  Dr Nudds concluded as follows:

    ... I have no reservations in supporting this application in relation to Ms Morel having the capacity to act appropriately and ethically and to maintain professional boundaries whilst having direct contact with clients during her employment role as a legal administration and clerk.  In my professional opinion, I believe Ms Morel would be able to act in an ethical and professional manner and maintain appropriate relations and boundaries with the clients she would have contact and direct involvement with.

    ...

    ... I am confident Ms Morel would be in a position to commence transition back into legal practice at this time without these conditions being imposed. However, I am also confident Ms Morel would be able to perform her duties as a legal administration and clerk with direct client contact if she were afforded this opportunity as a preliminary stage of the process if she is to make a further application for reinstatement to the Roll of Legal Practitioners at a later date.

13. In his October 2012 report, Dr Carroll opined, inter alia:

    Based on all the information available inclduing [sic] our extensive interview and mental state examination I could find no evidence that Ms Morel suffers from any psychiatric illness or disorder.

    Based on the relevant information I could find no evidence whatsoever that Ms Morel suffers from a borderline personality disorder as laid out in the relevant DSM-IV-TR diagnostic criteria... She functions well on a day to day basis and does not appear to be someone who is regularly distressed herself or who causes distress to other people. She therefore does not even meet the ‘general criteria’ for a personality disorder...

    Based on the information available to me, including that from her current treating therapist Simon Nudds and my experience of a prolonged clinical interview with her, Ms Morel appears well able to maintain appropriate personal/professional boundaries.

    Based on the evidence available and her discussion at interview I believe that Ms Morel can now well appreciate the difference between private and professional relations.

14. In his December 2012 letter, Dr Carroll expressed the opinion that Ms Morel could return to work as a solicitor without conditions. 

15. On 7 October 2013, in connection to the present application, the Legal Services Board wrote a letter confirming its understanding that Ms Morel had complied with the conditions it had placed on her working as a lay associate. 

16. On 10 December 2013, Ronald Victor Tait, a solicitor, made a statutory declaration in support of Ms Morel’s present application.  Mr Tait has been acting as a mentor to Ms Morel pursuant to the conditions imposed on her by the Legal Services Board.  Mr Tait provided the following opinion of Ms Morel:

    During my time mentoring the Applicant I was impressed by her forthrightness and unreserved acceptance of the absolute inappropriateness of her behaviour. In discussions with her she has used the words ‘my appalling behaviour’. I cannot but absolutely agree with her description of her behaviour especially when my practice is largely criminal law based. However, in my opinion she has over the last nine (9) years sought the appropriate professional assistance and has been able to rehabilitate herself to the extent that she now deserves to be readmitted to the Roll of Solicitors in South Australia.

17. The Board of Examiners interviewed Ms Morel in person on 30 September 2014.  In its report published the same day, the Board of Examiners said:

    After careful consideration of the material provided by the applicant, and the applicant’s responses and demeanour at the interview on 30 September 2014, the Board is satisfied that the issues leading to the order for the applicant’s name to be struck from the Roll have been addressed and that the applicant is now a fit and proper person to be admitted to practice as a barrister and solicitor of the Supreme Court of South Australia.  However, Ms Morel has now not practised for over 10 years and the Board therefore recommends readmission subject to the following conditions:

    1.   The applicant’s right of practise in South Australia be restricted to that of an employee under the supervision of a South Australian legal practitioner who holds an unrestricted practising certificate until further order by the Board of Examiners.

    2.   Within 12 months of the date of issue to the applicant of a practising certificate, the applicant is to attend and complete any course work for the Trust Account and Law Claims Risk Management Refresher Courses provided by the Law Society of South Australia, and comply with the relevant requirements of the MCPD Scheme.

    The applicant is a fit and proper person to be so admitted as a practitioner of this Court.

18. In our view, the Board of Examiners’ conclusion was fully supported by the available evidence.  It is to be recalled that the Court, when deciding the strike off application, expressly left open the possibility of rehabilitation and noted that Ms Morel’s competence was not in issue.  The evidence now before this Court, spanning more than ten years since Ms Morel was struck off, enables it to have confidence in Ms Morel’s rehabilitation and ability to cope with the rigours and stresses as an employed solicitor in legal practice.  Notwithstanding the seriousness of her prior misconduct, Ms Morel can now be held out to the public as a fit and proper person capable of acting as a lawyer in all matters usually transacted by or entrusted to lawyers. 

1. We consider that Ms Morel has acted appropriately in her employment in legal offices.  In the circumstances, we consider that Ms Morel should only engage in practice as an employed practitioner.  This condition should, in our view, continue for at least five years.  Any variation to this condition should be the subject of a further order of the Court.

   Conclusion

2. We allow the application to readmit Claire Amy Morel as a practitioner of this Court and make the following orders:

   -the applicant be admitted as a barrister and solicitor of the Supreme Court of South Australia;

   -the applicant may not practise as a principal as defined in Rule 1 of the LPEAC Rules 2004 until the applicant has completed a period of supervised practice of at least five years, such supervision to be undertaken by a legal practitioner holding an unrestricted practising certificate;

   -thereafter, the applicant must first obtain an order from the Supreme Court before engaging in legal practice on her own account; and

   -within twelve months of the date of issue to the applicant of a practising certificate, the applicant is to attend and complete any course work for the Trust Account and Law Claims Risk Management refresher courses provided by the Law Society of South Australia, and comply with the relevant requirements of the MCPD scheme.