Law Society of New South Wales v Allen

[2000] NSWADT 188

CITATION:	Law Society of New South Wales -v- Allen [2000] NSWADT 188
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Craig Michael Allen
FILE NUMBER:	002002
HEARING DATES:	17/11/2000
SUBMISSIONS CLOSED:	11/17/2000
DATE OF DECISION:	12/22/2000
BEFORE:	Nicholas W QC - Judicial Member; Hale S - Judicial Member; O'Neill A - Member
APPLICATION:	Professional Misconduct - misappropriate trust moneys/moneys
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	The Law Society of NSW v Foreman ((1994) 34 NSWLR 408
REPRESENTATION:	APPLICANT D Barton, solicitor RESPONDENT B Collins QC with L Stapleton, barristers
ORDERS:	1. That the name of Craig Michael Allen be removed from the roll of Legal Practitioners in New South Wales; 2. That Craig Michael Allen pay the costs of the Law Society of New South Wales in the sum of $2,464.40 inclusive of GST.

1 By Information dated 23 February 2000 the Council of the Law Society of New South Wales claimed that Craig Michael Allen (“the Solicitor”) was guilty of professional misconduct on the ground that he misappropriated moneys from the Central Coast Law Society Incorporated (“the Society”).

2 The particulars relied upon and contained in the First Schedule of the Information are as follows:

1. In the period 1 January 1998 to 31 December 1998 (inclusive), the solicitor was the Treasurer of the Society.
2. At all material times the Society maintained a current account with the Gosford Branch of Westpac Banking Corporation (“the bank”), being account number 032-523-24-2080 (“the account”), in which account the funds of the Society were held.
3. Pursuant to his position as Treasurer, the solicitor had custody of the cheque book for the account and his signature was recognised by the bank as the signature of a person authorised to sign cheques for and on behalf of the Society.
4. Between approximately September 1998 and January 1999 (inclusive) the solicitor drew the following cheques on the account and took the proceeds thereof, being the moneys of the Society, for his own benefit:
Date Cheque No Amount
15.9.98 200105 $800.00
18.9.98 200106 $700.00
21.9.98 200107 $350.00
25.9.98 counter cheque $500.00
29.9.98 counter cheque $600.00
2.10.98 counter cheque $1,000.00
6.10.98 200108 $250.00
6.11.98 200109 $200.00
18.1.99 counter cheque $1,350.00
Total: $5,750.00

During the hearing on 17 November 2000 Mr D K Barton, solicitor for the Complainant, withdrew the complaint in respect of cheque number 200109 dated 6 November 1998 in the amount of $200.00.

3 The Solicitor caused to be filed his Reply dated 22 March 2000 to the particulars in the Information in the following terms:

Allegation 1 The solicitor does not deny that he misappropriated moneys.
Allegation 2 The solicitor does not deny paragraphs 1, 2 & 3 of the first schedule to the information.
Allegation 3 The solicitor does not deny paragraph 4 of the first schedule to the information except the allegation in relation to cheque no 200109.

4 The evidence in support of the complaint was contained in the affidavits of Raymond John Collins sworn 23 February 2000, Emanuell Conditsis sworn 24 February 2000, Leanne Margaret White sworn 17 February 2000, Natasha Anne-Maree Konic sworn 13 March 2000 and 13 June 2000. The deponents were not required for cross-examination and Mr B W Collins QC (with whom appeared Ms Lisa Stapleton) for the Solicitor informed the Tribunal that the facts and materials disclosed in the affidavits were not in dispute.

5 For the Solicitor the Tribunal had the benefit of the oral evidence of the Solicitor himself and of Dr N H Maclean, a consultant psychiatrist. Also before the Tribunal was the evidence contained in the affidavits of the Solicitor sworn 25 May 2000, Neil Hector Maclean sworn 23 May 2000, Patricia Irene Davies sworn 18 May 2000, John Edward Southerden sworn 27 April 2000, Ian Douglas McLachlan and Leonie Veronica McLachlan sworn 23 May 2000, Michael Anthony Nash sworn 23 May 2000, Michael James Williams sworn 22 May 2000, Warren Richardson sworn 22 May 2000, John Butlin sworn 23 May 2000, Maurice John McCarthy sworn 23 May 2000. The affidavits were admitted without objection and the deponents (with the exception of the Solicitor and Dr Maclean) were not required for cross-examination. Additional documentary evidence related to the financial position of the Solicitor at particular points of time, a medical certificate, and correspondence with the Complainant.

6 Before turning to the circumstances in which the withdrawals were made it is appropriate to record some background. The Solicitor is 34 years of age. He was admitted to practice as a solicitor on 16 December 1992, having qualified through the Solicitor’s Admission Board. Thereafter he practiced as a solicitor employed by the firm of Nash Allen Williams and Wotton of The Entrance, New South Wales, at its offices at various locations on the Central Coast. He remained with the firm until his dismissal on 8 February 1998 following the disclosure of the matters the subject of these proceedings. It appears that he worked with diligence, and attended to the diverse matters which arise in a busy suburban practice in a sound professional and competent manner.

7 The Solicitor was married in July 1991. In the following years there developed major emotional problems. Unfortunately, the marriage developed into a relationship of conflict and the source of considerable stress particularly associated with fertility difficulties and financial concerns. His wife ceased her employment in July 1998 with the result that the reduction of income to the household exacerbated the difficulties in meeting liabilities for credit card transactions and a personal bank loan incurred in respect of their personal requirements generally, and in particular in respect of IVF treatment. From the standpoint of the Solicitor, at least, the situation was made worse by reason of the difficult and unharmonious relationship which developed between his wife and his parents. The marriage was dissolved on 14 May 2000.

8 In December 1997 the Solicitor was given the carriage of a family law matter for a client who became extremely difficult to deal with. The client would often telephone the Solicitor many times a day and incessantly pressed his cause with him. His conduct became threatening and intimidating. On an occasion in June 1998 in the legal profession rooms in the Family Court at Newcastle the client said to the Solicitor:

“If you can’t get this organised I’ll put a bullet through you and fix everybody else as well”.

The Solicitor came under the care of Dr D Smith, his general practitioner, who noted this conduct as a stressor on 25 June 1998, and concluded that as a result the Solicitor suffered anxiety, insomnia, weight loss, poor concentration and had become phobic of his office and the telephone. Dr Smith referred his patient to Dr Maclean on 28 July 1998 and 2 November 1998. (In fact, the Solicitor’s first consultation with Dr Maclean was on 17 November 1998. The Tribunal was informed by his Senior Counsel that the earlier referral was not taken up).

At about this time the Solicitor also injured his wrist.

It may be observed that although the Solicitor said in evidence that the threats were such that he feared for his life he did not report the situation to either the Police or to fellow practitioners or members of the firm. He said that he tried to deal with the situation on his own, without assistance because he wished to cope with the matter himself. As it happened, the Solicitor continued acting for the client until mid-November 1998 and, as he said, achieved a very good result for him.

9 Before the Solicitor’s wife ceased work in July 1998 her gross weekly income was $420.00, net $270.00, and his gross weekly income was $735.00, net $456.00, total net income being $726.00. The total net income fell to $456.00 upon her cessation of employment. The couple’s weekly expenditure remained the same, namely the sum of $844.50. Expenditure was in respect of general household and personal items including mortgage repayments, food, insurance, motor vehicles, and medical expenses including IVF treatment. On the information in evidence the situation appears to be that while his wife was earning, expenditure exceeded income by the sum of $118.50 per week and, upon cessation of her earning, expenditure exceeded income by $388.50 per week.

10 The Solicitor served as Treasurer of the Society from 1 January to 31 December 1998. Ms Leanne White was President for the same period. The Society is the regional professional association for solicitors on the Central Coast. It maintained an account at the Gosford branch of Westpac Banking Corporation. During this period the Solicitor had custody of the financial records of the Society including the cheque book. He was authorised to operate the bank account and was entrusted with the responsibility of attending to the Society’s financial transactions.

11 As the particulars to the Information show, the Solicitor made unauthorised cash withdrawals from the account for various amounts on five occasions in September 1998 (the first of which was 15 September 1998 for the sum of $800.00), two occasions in October 1998 and on 18 January 1999 for the sum of $1,350.00. The total sum misappropriated was $5,550.00.

12 On the occasions of 15, 18 and 21 September and 6 October 1998 the Solicitor drew cheques payable to cash. No information was recorded on the butts. On the occasions of 25 and 29 September, 2 October 1998 and 18 January 1999 the withdrawals were effected by means of counter cheques payable to cash. No information was recorded in the Society’s books in respect of them.

13 It was the Solicitor’s evidence that he used the proceeds personally. He said: “… I was attempting to prop up holes in my financial affairs. I tried to pay the things that became the most extremely urgent and try and resolve them on a piecemeal basis which I realised was wrong and flawed from the beginning”. (T. p 69).

The priority seemed to have been to reduce credit card debts, motor vehicle and general living expenses. He explained the failure to record details of the transactions in the cheque books as completely inadequate management and as a failure to fulfil his duties.

14 The first indication that the management of the account was awry was on 18 December 1998 when Ms White was informed that a cheque drawn on the Society’s account by the Solicitor payable to the Galley Beachfront Restaurant in the sum of $2,139.00 had been dishonoured on presentation. The cheque was to pay the restaurant’s outstanding account for the Society’s Christmas party. That day Ms White caused her secretary to so advise the Solicitor. He told Ms White’s secretary that the account was in funds and that there must have been a bank error. He said that he would rectify the matter with the bank and would advise the proprietor of the restaurant as to arrangements. Ms White assumed all would be well.

15 On 18 January 1999 Ms White was informed that there had been no communication to the restaurant from anyone on behalf of the Society. Thereupon her secretary spoke to the Solicitor who indicated he would attend to the matter. On 20 and 21 January 1999 unsuccessful attempts were made to contact the Solicitor by telephone and facsimile. As at 25 January 1999 the restaurant’s account remained unpaid.

16 On 28 January 1999 Ms White sent a facsimile to the Solicitor in the following terms:

“I have been contacted again by the Galley Beachfront Restaurant. I was dismayed to learn that they have still not been paid nor have they received any contact from you. Central Coast Law Society owes the Galley Beachfront Restaurant the sum of $2,139 for the Christmas party on 4 December 1998. Needless to say, it is incredibly embarrassing that our cheque bounced when presented. It is even more embarrassing that the Galley Restaurant continues to chase payment and that we cannot get any sense from you about what is going on. The reputation of all solicitors on the Central Coast is a stake here because no doubt this restaurant is in a state of disbelief that the Central Coast Law Society cheque bounced.

When we initially queried this with you, you said that a “bank error” had occurred. If that were the case, surely it would be easy to rectify this and advise the Galley that it was OK for them to re-present the cheque.

Natasha has still not received the bank records from you so she cannot do anything about these problems including finding out a bank balance so that we can at least let the Galley re-present their cheque.

Wamberal Cellars have also advised that the Central Coast Law Society has invoices dating back to September 1998 which have not been paid. What is going on?

As you know I finished as President at the end of last year but I am obliged to make sure that all our bills from last year are paid as a courtesy to the new President and Committee.

I have previously left telephone messages for you which have not been returned. I don’t know what to tell the Galley Restaurant. Please advise urgently.

Yours faithfully

PENMANS

Leanne White”

She received no response.

17 s Natasha Konic is a solicitor employed by Brazel Moore and Daly, solicitors of Gosford. She was elected Secretary and Treasurer of the Society effective from 1 January 1999. On about 23 or 24 December 1998 she telephoned the Solicitor and spoke to him. She requested him to arrange for delivery to her of the Society’s books and documents. She made similar requests of him on occasions towards the end of January 1999 and, although assured that arrangements had been made for the delivery of the records to her, no delivery was in fact made.

18 On 4 February 1999 the committee of the Society met for the purpose of discussing apparent irregularities in the Society’s finances and, in particular, embarrassment experienced in respect of the payment of the Society’s creditors. On that day Ms White arranged for her firm, Penmans, to pay the restaurant the amount outstanding by a cheque to be held pending receipt of a cheque from the Society. However, on 8 February 1999 she was informed by a person on behalf of the restaurant that no cheque had been received other than the one from her firm.

19 Mr Emanuell Conditsis, solicitor of Gosford was the President of the Society during 1999 and remains in that office. At the beginning of his presidency he became aware of outstanding debts incurred by the Society, and that its financial affairs were in a state of uncertainty by reason of the lack of treasurer’s reports from the then outgoing treasure, the Solicitor. He was aware that Ms Konic had been unable to obtain the financial records and bank books of the Society from the Solicitor.

20 On the morning of 8 February 1999 there was a meeting in Mr Conditsis’ office attended by Ms White, Mr Keith Allen, and Mr Michael Williams, the last mentioned being partners in the firm of Nash Allen Williams and Wotton. Matters relating to the Society’s financial affairs were made known to Mr Allen and Mr Williams. Later that day Mr Conditsis received a telephone call from Mr Michael Nash, another partner of Nash Allen Williams and Wotton. Mr Nash informed him that the Solicitor had admitted the misappropriations and that his employment had been suspended pending counselling treatment and assessment. He was also informed that the firm had paid an outstanding account on behalf of the Society and would pay the Society the sum of $5,000.00 on account of any missing moneys pending audit.

21 On 10 February 1999 Mr Conditsis attended a meeting with Mr Allen, Mr Williams and the Solicitor. He was handed a number of documents including the financial records of the Society, and a letter from Nash Allen Williams and Wotton advising as to the action taken in respect of reimbursing an outstanding account and as to the suspension of the Solicitor’s employment. In particular, the letter stated that the practice had been unaware of the problems until 5 February 1999 and it was the view of the partners that the Solicitor needed ongoing treatment and assistance. It recorded that his work had always been satisfactory and that his problems had not affected his work performance. Also handed over was the Statement by the Solicitor dated 10 February 1999, together with the firm’s cheque in favour of the Society in the sum of $5,000.00.

22 In his statement dated 10 February 1999 the Solicitor explained his conduct as being the result of an inability to think clearly due to stress and anxiety during the relevant period. Inter alia, he said:

“5. In this period of personal turmoil and anguish I was at a stage of crisis. At this time without thinking of any personal ramifications I succumbed to the opportunity of borrowing funds from the Central Coast Law Society Account conducted at Westpac Banking Corporation, Gosford branch”.

He expressed regret, and acknowledged what he described to be the irreparable damage caused to members of the Society, and his breach of trust. He said he was willing to repay “any moneys borrowed” (sic).

23 In a document dated 17 February 1999 the Solicitor gave certain undertakings to the Complainant. These included undertakings not to practice as a solicitor in New South Wales without the written consent of the Complainant, and not to seek employment as a solicitor. On 23 July 1999 application was made to the Complainant to vary the terms of the undertaking to permit the solicitor to accept employment with a local firm of solicitors as a research assistant, and in the preparation and costing of matters. By letter dated 16 December 1999 the Complainant advised that it did not consent to any variation. The Solicitor has complied with the undertakings and has not engaged in practice since 8 February 1999.

24 Between February and November 1999 the Solicitor consulted Dr Maclean on several occasions. As at 31 August 1999 Dr Maclean was of the view that no further psychiatric or psychological intervention was necessary, and that there was no likelihood of need for any sort of treatment in the future. The Solicitor was back to his normal self and the stressors had been resolved. Consultations on 16 November 1999 and 12 May 2000 confirmed this view and the fact that the Solicitor’s adjustment disorder with depressed mood had resolved.

25 Between November 1998 and August 1999 the Solicitor attended Ms Patricia Davies, a clinical psychologist, on a number of occasions for cognitive behaviour therapy. As at 10 August 1999 Ms Davies was of the view that no further therapy was necessary, and that the conditions of alexithymia and dysthymia from which he suffered at the time of the misappropriations were resolved. Consultation on 16 May 2000 confirmed this view.

26 Since 1 February 2000 the Solicitor has been employed by GIO Insurance Limited as a precautionary loss advice assessor. Initially employment was on a casual basis, but since 18 April 2000 it has been on a fulltime basis.

Findings as to the Solicitor’s Conduct

27 In final submissions, Senior Counsel for the Solicitor put that the conduct amounted to ‘unsatisfactory professional conduct’. It was put that were it not for the Solicitor’s personal position and state of mind at the time his conduct would amount to ‘professional misconduct’. Therefore the Tribunal gave careful consideration to the evidence as to the Solicitor’s mental condition.

28 Dr Maclean’s first consultation with the Solicitor was on 17 November 1998. (This, of course, was several weeks after all but the last of the defalcations). He found the Solicitor to be both dysthymic and alexithymic. Dysthymia is a chronic depressive condition associated with stress. Alexithymia is a term used to describe individuals who have a difficulty in expressing emotion; it is not a psychiatric diagnosis but a personality characteristic. Mental state examination revealed the Solicitor to be alert and orientated. The doctor described him as a serious individual who was not really clinically depressed. There were no psychiatric features. Higher cognitive functioning was intact as was insight and judgment.

He was next seen on 17 February 1999, by which time the Solicitor had been confronted with the defalcations and his conduct was under investigation. He was treated for an adjustment disorder with depressed mood.

The Tribunal regards as significant the doctor’s oral evidence that a person with dysthymia has the ability to decide between right and wrong. It heard that it is a very common problem throughout the community and sufferers function reasonably well in practical and ethical terms. The doctor did not know the reason why the Solicitor took the money, “Except”, as he said “he needed it, I presume”.

29 The Solicitor was referred by Dr Maclean to Ms Davies for cognitive behaviour therapy, the first session taking place on 26 November 1998. In her report of 22 March 1999 she observed that the Solicitor had problems identifying what he really feels or taking responsibility for his feelings. She noted that, despite being an intelligent man, he took the money without even trying to cover his tracks to gratify his wife’s needs and avoid her censure of him. Her opinion was that he had a modifiable personality disorder, not a psychiatric illness. He readily admitted to her that his actions were wrong.

30 The Solicitor’s evidence was to the effect that during the relevant period his personal affairs were in crisis, with resultant stress and anxiety which severely impeded his ability to think clearly as to the significance of taking the money. Nevertheless, throughout this period he was satisfactorily performing his professional duties for his clients.

31 Put at its highest, the evidence as to the Solicitor’s mental condition at the relevant times provides something by way of explanation, but nothing by way of excuse.

32 Upon consideration of the whole of the evidence the Tribunal is in no doubt that the Solicitor misappropriated the money and on each occasion he knew that what he was doing was dishonest, and it so finds. The issue is put beyond doubt by the statement made in final submissions by the Solicitor’s Senior Counsel in the following terms (T. p.92):

“Bearing in mind what appears in Dr Maclean’s report, it will come as no surprise to you to hear that we have never contended that (the Solicitor) didn’t know the nature and quality of his act or that what he was doing was wrong. That submission would be against the evidence from Dr Maclean. We don’t make it. We don’t rely upon it.”

33 In the Tribunal’s opinion the evidence compels a finding that the Solicitor was guilty of professional misconduct. The Tribunal finds that the Complainant has proved that the Solicitor misappropriated moneys from the Society as alleged in the Information in these proceedings.

34 It was strongly contended for the Solicitor that the Tribunal should not order the removal of his name from the roll of legal practitioners, and that various different orders were appropriate to be made in the circumstances. It was put that he is now a fit and proper person to practice as a solicitor.

35 The submissions on his behalf emphasised the following:

(i) According to Dr Maclean, since about August 1999 the Solicitor’s condition has been resolved. There is no need for further treatment. He is now able to cope with situations of stress should they arise and there is no longer either a psychiatric or psychological impediment to his return to work as a solicitor.
(ii) In her report of 1 September 1999, Ms Davies expressed the opinion that at the time of his misconduct the Solicitor was not thinking rationally or clearly due to his alexithymia and dysthymia, but these problems were resolved. He was capable of resuming practice. She confirmed this opinion in her report of 16 May 2000 in which she noted that he had learned from his mistakes and was aware of his responsibilities both professionally and personally. She considered him ready and capable to return to practice as a solicitor and would not abuse his position of trust with others.
(iii) It was the Solicitor’s evidence that he was driven to taking the money by desperation arising from his troubled personal affairs when his mental condition was such that he gave no thought to the consequences. As a result of his treatment with Ms Davies he is now able to recognise and manage situations of stress and challenge, and to seek assistance if required, an ability he lacked during the period he took the money. He no longer needs treatment and regards himself as free of any mental impediment to the resumption of work as a solicitor. He made plain his regret, and has apologised for, the conduct complained of.
(iv) Evidence as to the Solicitor’s good character and integrity was contained in affidavits from family friends including the Archdeacon of the Central Coast for the Diocese of Newcastle. Other evidence was in affidavits from six solicitors who practice on the Central Coast and who have had a professional association with him. They regard the Solicitor as an efficient and competent practitioner, and as a valuable member and future partner of the firm which employed him. The conduct complained of is regarded as out of character.

36 Weighing against those matters the Tribunal had before it the following:

(i) The moneys were taken from the Society for personal use. The method of cash withdrawal and no record facilitated concealment.
(ii) (a) On occasions in December 1998 and January 1999 the Solicitor failed to respond to requests concerning payments to be made in respect of the Society’s transactions and for delivery up of the Society’s books under his control. The evidence of his treatment of the enquiries of Ms White and Ms Konic has been referred to earlier. Any of these occasions provided the opportunity to make candid disclosure of his activities, and give information as to the state of the account. He consistently avoided doing so. Indeed, as he accepted in evidence, on one of these occasions he lied either to Ms White or to her secretary when he said that the cheque payable to the Galley Beachfront Restaurant had been dishonoured as a result of bank error. Ms White’s facsimile of 28 January 1999, the contents of which are set out above, is eloquent testimony to the frustration and concern directly caused by his conduct.
(iii) (a) His explanation was that such was his condition of turmoil that he was unable to make response. This is difficult to reconcile with his evidence that during these times he was working satisfactorily and with the fact that on 18 January 1999 he made another withdrawal of cash in the sum of $1,350.00 from the Society’s account more than two weeks after he had ceased to hold office as Treasurer
(b) Senior Counsel for the Solicitor quite properly acknowledged these matters in these terms (T. p.81): “There’s no dispute about the facts. Those facts include that during the period of his problems, (the Solicitor) told lies to members of the professions who were seeking to make perfectly legitimate enquiries about the fate of the bank account and the funds in the bank account to which the Central Coast Law Society was entitled. Secondly, there is no doubt that when (the Solicitor) directed his mind to that question and when he had his mind directed to it by others, he fled into irrational retreat. There’s no question about that. He fobbed people off. He did anything but face up to his difficulties, difficulties of his own creation”.
(iv) The Solicitor stated that it remains his firm view that the transactions were “borrowings” . He accepted that his taking of money was unauthorised, and that at the time he had not turned his mind as to how or when repayment could be made. He asserted that from the time of the first withdrawal of cash on 15 September 1998 it was his intention to repay the moneys to the Society. Apparently, the basis for adhering to the description “borrowing” is that it was not his intention to permanently deprive the Society of the money taken. Not surprisingly, the Tribunal finds this evidence implausible and unconvincing. Even if it did accept that he genuinely regards these transactions as borrowings, there would be demonstrated, at the very least, a continuing unwillingness to accept the true nature of his actions. Whichever way it is approached this stance undermines the basis for a finding that he is fit and proper to practice.
(v) In his supplementary statement dated 23 July 1999, the Solicitor admitted that his actions breached the trust and obligations of the office he held with the Society. He accepted that his conduct put his fellow practitioners, his former employers, the Society and the Complainant in an untenable position. His belief was that he had destroyed the trust and relationships that he once had with may solicitors on the Central Coast, and that he would find it difficult to accept employment, whether in law or not, on the Central Coast. The evidence, of course, is ample proof of the truth of these matters.

CONCLUSION

37 The applicable principles are well settled and may be conveniently found in The Law Society of NSW v Foreman ((1994) 34 NSWLR 408, particularly Kirby, P p. 412B-E; Mahoney, JA pp. 441-446; Giles, AJA pp. 470G-472G). Of particular assistance in this case is the passage at p. 44 per Mahoney, JA:

“The disciplinary jurisdiction remains one concerned with whether the solicitor is a fit and proper person to be held out by the Court as such …

In deciding whether a person is a fit and proper person for this purpose, the Court may, in accordance with the circumstances, take into account matters going beyond the mere protection of the public against similar misconduct. The Court may consider the character of the practitioner, or those aspects of it relevant to the office of a solicitor. A solicitor may affirm and sincerely believe that she will not offend again. But the character of the solicitor – demonstrated by the offence or otherwise – may be such that no sufficient reliance can be placed upon that affirmation.

The practitioner may not understand, or be willing to accept, the obligations which the law places upon a solicitor and the high standard of performance which it requires. The Court may not think that in fact misconduct will occur but may be satisfied that the solicitor did not understand what was required of him …

It is also, I think, relevant for the Court to take into account the effect which its order will have upon the understanding, in the profession and amongst the public, of the standard of behaviour required of solicitors. The Court will no doubt, where appropriate, articulate the standards required and that they are high. However, the Court must, I think, also take into account the effect upon what it has said of, for example, a decision to allow a solicitor guilty of a serious infringement of those standards, to continue to practice.

The Court may also have regard to whether, in the light of the offence in question, the solicitor can establish and maintain the kind of relationship which must exist between solicitors.”


Also at p. 471B per Giles, AJA:
“But the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct, and deterring others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues who practice in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with.”

38 In light of these principles the Tribunal has given careful consideration to the competing contentions as to the appropriate orders to be made having regard to the whole of the evidence before it.

39 There can be no doubt that the professional misconduct of the Solicitor was very serious. He was entrusted with control of his professional Society’s funds and resorted to them on eight occasions over four months to relieve his financial burden. He knew that what he was doing was dishonest. He postponed discovery for as long as he could. An important consequence was the complete abuse of the trust reposed in him by his professional colleagues, and the embarrassment he caused to their Society in the community in which they live and work. These offences took place less than six years after he had been admitted to practice.

40 It must be said that the Tribunal is not confident that the Solicitor yet understands all that is required of him by the standards of his profession, particularly whilst he maintains that what he was doing was merely borrowing from the Society from time to time. Although weight was given to the evidence of the Solicitor’s referees, it is plain that the prospect of the Solicitor to rebuild and maintain the necessary relationship of trust and confidence with his professional colleagues is remote indeed. The Tribunal recognises that the circumstances require that it should take into account matters going beyond the mere protection of the public against similar misconduct by the Solicitor. The object of deterrence is also an important factor in this case.

41 It is the opinion of the Tribunal that the Solicitor’s infringement of the fundamental standards of his profession is such that he should not be permitted to practice. Accordingly, the Tribunal finds that the Solicitor is not a fit and proper person to remain on the roll of legal practitioners. His name should be removed from the roll.

42 By letter dated 29 November 2000 the Complainant informed the Tribunal that the parties had reached agreement on payment of the Complainant’s costs in the sum of $2,464.40 representing costs of $2,240.00 plus GST.

43 The Tribunal orders:

(1) That the name of Craig Michael Allen be removed from the roll of Legal Practitioners in New South Wales.
(2) That Craig Michael Allen pay the costs of the Law Society of New South Wales in the sum of $2,464.40 inclusive of GST.