Law Society of New South Wales v Kourgialis

[2002] NSWADT 262

CITATION:	Law Society of New South Wales -v- Kourgialis [2002] NSWADT 262
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Louis Kourgialis
FILE NUMBER:	022008
HEARING DATES:	04/11/2002
SUBMISSIONS CLOSED:	11/04/2002
DATE OF DECISION:	12/16/2002
BEFORE:	Nader J QC - ADCJ (Deputy President); Hale S - Judicial Member; Costigan M - Member
APPLICATION:	Professional Misconduct - borrow money from client - Professional Misconduct - breach of s. 61 of the Legal Profession Act - Professional Misconduct - fail to keep accounts - Professional Misconduct - mislead Law Society/Bar Association/LSC - Professional Misconduct - possess prohibited drug
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985` Legal Practitioners Act 1898 Legal Profession Act 1987
CASES CITED:	Re Vickery (1931) 1CL 572 Re Hodgekiss (1962) 79 WN (NSW) re Mayes and Legal Practitioners Act (1974) 1 NSWLR 19 Law Society of New South Wales v Hill [2002] NSWADT 190 O’Reilly -v- The Law Society of NSW [1988] NSWLST 2
REPRESENTATION:	APPLICANT D Barton, solicitor RESPONDENT No appearance
ORDERS:	1.That the Solicitor’s name be removed from the roll of legal practitioners; 2.That the Solicitor pay the Council’s costs of and incidental to these proceedings as assessed under Division 6 part 11 of the Legal Profession Act, 1987.

1 The Council of the Law Society of New South Wales (the Council), by Information dated 5 March 2002, and Amended Information dated 6 September 2002, informed the Administrative Decisions Tribunal that as a result of the Council’s investigation of complaints made under Part 10 of the Legal Profession Act 1987 (the Act) against Louis Kourgialis (the Solicitor), a legal practitioner within the meaning of S.128 of the Act, that the Solicitor, while practising as such, was guilty of professional misconduct on grounds specified.

2 The Amended Information repeated all of the allegations made by the Information and, in addition, made other allegations of a different kind from those made by the Information. Hereafter, references to the Information should be taken to be references to the Amended Information.

3 The Solicitor was aware of the place and date of the hearing: see letter from Mr D. K. Barton to the Solicitor dated 24 September 2002, the reply of the Solicitor dated 17 October 2002 and the letter from the Registrar of the Administrative Decisions Tribunal to the Solicitor dated 18 September 2002. Neither the Solicitor nor any person on his behalf appeared at the hearing. No communication was received from the Solicitor or any person on his behalf indicating that he would not appear or that he was unable to appear at the hearing, or that he would not be represented. Therefore, the Tribunal considered it appropriate that the matter should proceed notwithstanding the Solicitor’s absence.

4 The grounds relied upon are that the Solicitor:

(a) wilfully breached section 61 of the Act;
(b) wilfully breached section 62 of the Act;
(c) borrowed money from a client;
(d) on 14 July 1999, possessed a prohibited drug, contrary to section 10(1) Drug Misuse and Trafficking Act 1985; and
(e) attempted to mislead the Law Society.
5 Particulars of the alleged grounds, together with the substance of Solicitor’s responses thereto are as follows.

Alleged wilful breach of section 61 of the Act:
6 On or about 1 April 1999 the Solicitor opened a trust account with Westpac Bank at Earlwood (account no. 12-6522): ("the first trust account").

7 On or about 1 May 1999 the Solicitor opened a further trust account styled "Kourgialis & Associates" with the same bank (account no. 127605): ("the second trust account").

8 The initial deposit to the first trust account of $1,200.00 was disbursed on 29 June 1999 after which there were no further transactions in that account except that the bank continued to debit bank charges totalling $83.21 monthly between 1 September 1999 and 1 September 2000.

9 On 13 March 2000 the Solicitor deposited to the credit of the second trust account a cheque in the sum of $664.20 from Centrelink. Prior to the cheque having been cleared, an amount of $664.00 was the same day withdrawn from that trust account.

10 On 24 March 2000 the Solicitor deposited to the credit of the second trust account a cheque in the sum of $332.45 from Centrelink. On the same day, prior to the cheque having been cleared, the Solicitor withdrew the sum of $330.00.

11 On 28 March 2000 the Solicitor deposited to the credit of the second trust account a cheque in the sum of $925.60 from Centrelink. On the same day, prior to the cheque having been cleared, the Solicitor withdrew the sum of $925.00.

12 The Solicitor says that the cheques referred to in this and the two preceding paragraphs were deposited to the trust bank account "in error on his part". He said that his intention was to deposit them to the credit of his general bank account. He says that having made the error with the first cheque, he used the receipt given to him by the bank for information for the subsequent deposits as a result of which all three cheques were erroneously deposited to the credit of his trust account. The cheques were intended by Centrelink to be for the benefit of the Solicitor who had applied for financial assistance.

13 However, it appears that the Solicitor deliberately deposited the money in question to the credit of his trust bank account (See Annexure "A" to Ms Sayer’s affidavit sworn 14 December 2001 {Ms Sayer’s affidavit} pp. 4, 5, 6 and 7). The most telling item in that passage is as follows:

"It appears that (the Solicitor) may have always intended to deposit the sum of $332.45 to his Trust Account and not to the General Account. There is a note written by (the Solicitor) on the trust ledger account of William Villacres concerning the deposit. This account had a nil balance when the client instructed another solicitor and requested a refund of costs paid of $300.00. The note written on the ledger account states as follows:
‘Notified of change of solicitors. Client sought total reimbursement due to delay in filing, serving, S.O.C.
24th March, 2000 I personally deposited moneys $332.45 - $300.00 for Villacres $32.45 bringing the account in order.’
This note indicates that (the Solicitor) was aware that the sum of $332.45 was deposited to the Trust Account and not as suggested that the bank in error deposited the cheque to the Trust Account instead of the General Account."
14 On 28 March 2000 the Solicitor withdrew for his benefit sums of $2,000.00 and $3,000.00 respectively from the second trust account.

15 On 29 March 2000 the Solicitor withdrew for his benefit the sum of $1,250.00 from the second trust account.

16 On 31 March 2000 the Solcicitor withdrew for his benefit the sum of $900.00 from the second trust account.

17 Referring to the withdrawals specified in paragraphs 7, 8 and 9, above, the Solicitor says that he believed that the withdrawals would not place the “account concerned” in debit.

18 At the time of the withdrawal referred to in paragraph 9, above, the trust account ledger of the Solicitor in the second trust account was in debit in the sum of $7,394.75.

19 On 31 August 2000 the Solicitor deposited the sum of $6,250.00 to the second trust bank account. The Solicitor indicated that that amount represented the total of the three cheques (2 drawn on 28 March 2000 and 1 on 29 March 2000) incorrectly drawn on that account.

20 The amount of $6,250.00 so deposited reduced the deficiency in the account from $7,394.75 to $1,144.75.

21 At 1 September 2000, because of bank charges, that deficiency had increased to $1,308.97.

22 The deficiency in the Solicitor’s second trust account ledger was created by the withdrawal of funds by the Solicitor when there were insufficient funds to cover the withdrawal.

23 The Solicitor, by his Reply admits the particulars alleged in paragraphs 1 to 14, inclusive. They are supported and significantly elaborated by the affidavit of Ms Jean Sayer who was appointed receiver of the Solicitor’s practice by order of the Supreme Court of NSW on 1 September 2000 pursuant to section 92 of the Act.

24 Ms Sayer says that the Solicitor’s trust account records, apart from cheque butts, receipt books and some trust account bank statements, were comprised only of partly written up loose cards to form the trust ledger account.

25 In order to rectify a shortage of trust money in his trust bank account, the Solicitor deposited the sum of $6,250.00 to the account on 31 August 2000. The Solicitor informed Ms Sayer that the deficiency had been caused by the fact that three withdrawals of cash from the trust bank account totalling $6,250.00 had been made by him in error and that they should have been drawn on his general account. The moneys drawn by the Solicitor included trust moneys received and held in trust in the matters of Stanojevic, Kelly and Theofilopoulos.

26 At the date of his last withdrawal on 31 March 2000, the shortage in the trust bank account by reason of cash withdrawals by the Solicitor was $7,394.75. That deficiency remained until 31 August 2000 when the Solicitor deposited the sum of $6,250.00 referred to above reducing the deficiency by reason of moneys drawn by him personally to $1,144.75.

27 Withdrawal of the Centerlink moneys cannot be connected in any way with the deficit in the trust bank account referred to, they having been banked and withdrawn on the same day. Those deposits and withdrawals had no net effect on the amount of money available in the bank accounts of the Solicitor.

28 Any contention that trust funds had found their way into the Solicitor’s general accounts by error and were available for the clients on whose behalf they were held is effectively refuted by Ms Sayer who, in her affidavit, says:

"In the letter to the Society Messrs. Greg Walsh & Co. advised that (the Solicitor) believed that at the time when he withdrew cheques of approximately $6,000.00 there was a credit balance in his General Account of $7,000.00.
The solicitor kept three General Accounts and the position at 28 March 2000 being the date when amounts totalling $6,250.00 were withdrawn was as follows:-
1. Account No.12-6477 - Overdrawn $9,674.69Dr.
2. Account No.12-7584 - Overdrawn $11.20Dr.
3. Account No.12-6485 - Overdrawn $2,199.68Dr.
1. In respect of Account No.12-6477 there is a letter in (the Solicitor’s) file received from the bank dated 27 March, 2000 concerning the overdraft in his account of $9,674.69.
2. Account No.12-7584 was seldom used and at all times generally had a small debit balance.
3. There was a letter from the bank in the file of (the Solicitor) dated 14th March, 2000 concerning the overdraft of $2,199.68 in Account No.12-6485."
Alleged wilful breach of section 62 of the Act:
29 The trust account records of the Solicitor had not been written up and balanced from the date when the Solicitor commenced practice as a sole practitioner in April 1999 to the date of the appointment of Ms Sayer, chartered accountant, as receiver as at 1 November 2000. The trust account records were therefore not maintained in a manner which disclosed at all times the true position in relation to moneys received by the Solicitor on behalf of his trust clients and could be conveniently and properly audited.

30 The Solicitor admits this allegation.

31 We are satisfied upon the stated facts that the Solicitor, having received money on behalf of other persons, failed to pay the money into a general trust account and to hold the money in accordance with the regulations relating to trust money.

32 We are also satisfied upon the facts disclosed by the affidavit of Ms Sayer that the Solicitor failed to keep, in the case of trust money within the meaning of section 61 of the Act, accounting records that disclosed at all times the true position in relation to money received by him on behalf of other persons and that such records as were kept by the Solicitor were not kept in a manner that enabled them to be conveniently and properly audited.

33 We are satisfied that the Solicitor’s failure was a contravention of subsections 62(1) and (2) of the Act.

34 It is professional misconduct for a solicitor to wilfully contravene section 61 or section 62 of the Act.

35 The interpretation of ‘wilful’ within the context of section 61(8) of the Legal Profession Act 1987 has been the subject of some consideration both by the appellate courts and by the Legal Services Division. The position appears to be that some degree of knowledge or intention must be established in order for a contravention to be wilful. Alternatively if the solicitor is recklessly careless, this may amount to a wilful contravention.

36 In Re Vickery (1931) 1CL 572 at 583, Maugham J said:

"A person is not guilty of wilful neglect or default unless he is conscious that, in doing the act which is complained of or in omitting to do the act which it is said he ought to have done, he is committing a breach of his duty, or is recklessly careless whether it is a breach of his duty or not."
37 In Re Hodgekiss (1962) 79 WN (NSW) 163 at 172, Hardy J considered the meaning of alleged breaches of ss 41 and 42 of the Legal Practitioners Act 1898 (the precursors of the present ss61 and 62) said:
"In the instant case the duty of the solicitor to his client is based upon a contractual and fiduciary relationship. Upon that relationship and duty the legislature has superimposed express statutory duties. Breaches of those duties are not made an offence punishable summarily, as are breaches of other sections of the Act. The sanction or penalty provided by the Act is the exposure of the solicitor concerned to the disciplinary and punitive powers of the Court and of the statutory committee in the event of the provisions being breached and such breach or breaches being wilful, and to the exercise by the institute of its power to cancel or to refuse to renew the solicitor's practicing certificate whether - it would seem - the breaches be wilful or not.

The fact that the duties which form the subject matter of Section 43 are statutory does not render inappropriate or inapplicable the principles laid down in the cases already cited for the determination of the question as to whether there has been 'wilful failure' on the part of the solicitor to comply with Section 41 or Section 42. Applying those principles, I am of opinion that the Section deals with personal breaches of the statutory provisions in question on occasions when the solicitor knew or believed that he was committing such breaches or was recklessly careless in that regard. It is thus essential in an inquiry as to whether or not there has been wilful breaches by a solicitor of the provisions of Sections 41 to examine the facts and circumstances relevant to his state of mind, knowledge and intention at the material dates."

38 Considering predecessor provisions Hardie J, in re Mayes and Legal Practitioners Act (1974) 1 NSWLR 19, said:
"there can be wilful failure within the meaning of the section without any positive intention to breach the law: breaches committed over a period of time can, in the light of the relevant circumstances, be so substantial and reckless and show such complete indifference on the part of the Solicitor to do his important obligations to his clients and to the public, as to amount to wilful failure".
39 In Law Society of New South Wales v Hill [2002] NSWADT 190 the Tribunal considered the meaning of the word wilful in s 61(8), holding that because there was no evidence of the solicitor’s ‘state of mind, knowledge and intention’ the Tribunal could not be satisfied that there had been a wilful contravention and dismissed this aspect of the complaint. The Tribunal observed that ‘the complaint cannot be sustained unless the "wilful" component is established. The wilfulness may in many circumstances be apparent but it clearly cannot be simply implied on the basis that a provision of s 61 has been breached’.

40 Without the Solicitor’s participation in the proceedings and without any testimony by him, it has been rather more difficult to decide whether the conduct complained of was done with a consciousness that he was committing a breach of duty than it might otherwise have been. However, there is a strong probability that he was so aware. The very attempts to rectify the deficiencies in his trust bank account strongly suggest a consciousness of having failed in his duty.

41 In any event, the evidence proves that the Solicitor’s manifestly unsatisfactory professional conduct with respect to his obligations under sections 61 and 62 of the Act amounted to professional misconduct by reason of the operation of section 127(1) (a). That subsection provides that professional misconduct includes unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence. The Solicitor’s conduct demonstrated a consistent failure by him to reach such reasonable standards.

42 We are comfortably satisfied that the Solicitor’s contravention of sections 61 and 62 of the act was professional misconduct, not by reason of being wilful breaches of section 61 or 62 but by the operation of subsection 127(1) of the Act on his conduct with respect to duties imposed by sections 61 and 62.

Alleged borrowing from clients:
Julyn Kean
43 The Solicitor acted for Julyn Kean ("Ms Kean") on a workers compensation claim which was settled by Commutation on 26 November 1999.

44 Messrs McDonell Vertzayias acted for Ms Kean when the Soilcitor was employed by that firm. The matter was taken over by the Solicitor when he commenced to practise as a sole practitioner on or about 26 March 1999.

45 In February 2000 the Solicitor entered into a borrowing transaction with Ms Kean wherein he borrowed from her the sum of $20,000.00.

46 Ms Kean purchased from the National Australia Bank a cheque payable to the Solicitor which she deposited to his office account kept with the Westpac Bank at Earlwood (account no. 12-6477) ("the office account") on 8 February 2000. After the deposit the office account was in credit in the sum of $20,003.61.

47 On 9 February 2000 the bank reversed the deposited cheque.

48 During the period between between 8 and 9 February (sic) 2000 the Solicitor had withdrawn sums totalling $9,500.00 from the office account.

49 By letter dated 9 February 2000 the bank advised the Solicitor that the cheque for $20,000.00 had been reversed and as the limit on the office account was $5,000.00, the bank made demand on 27 March 2000 for the Solicitor to make good the overdraft of $9,674.00.

50 Ms Kean had requested the bank to ‘stop payment’ on the bank cheque in the sum of $20,000.00 advising that the cheque had been lost.

51 The $20,000.00 referred to in paragraph 3 above was borrowed by the Solicitor from Ms Kean, she being a client of the Solicitor.

52 The Solicitor by his Reply admits allegations 1 to 9, inclusive. He says that he intended to borrow the sum of $20,000.00 but that he did not in fact borrow it. He argued that Ms Kean "is not out of pocket" in relation to the alleged transaction.

53 The evidence establishes that the Solicitor deposited the cheque into his office account but that he was frustrated in his attempt to gain the benefit of the loan by Ms Kean’s stopping payment on the cheque, informing the bank that she had lost it. The Solicitor’s Admission of fact 9, that he borrowed the money, is qualified by his saying that he intended to borrow the money but did not do so. His belief that the loan had been made is evidenced by the fact that he had withdrawn sums totalling $9,500.00 from the office account in overdraft. The time and amount of those withdrawals points strongly to the fact that the Solicitor thought that the loan arrangement with Ms Kean had in fact been executed and that the money was available in his office bank account to be used by him. That Ms Kean was “not out of pocket” was due to her own actions, not those of the Solicitor.

Milija Stanojevic
54 The Solicitor acted for Mr Milija Stanojevic ("Mr Stanojevic") in respect of a motor vehicle accident claim filed in the District Court on 6 May 1999.

55 The initial instructions were received by Messrs McDonell Vertzayias when the Solicitor was an employee of that firm. The Solicitor had the conduct of the matter.

56 Upon commencement of sole practice in April 1999 Mr Stanojevic became the Solicitor’s client and the Solicitor continued to have the conduct of the District Court proceedings.

57 The matter was settled on or about 7 October 1999 in the sum of $38,747.00 which included the Solicitor’s costs and disbursements of $9,000.00.

58 The net proceeds of the settlement, $33,290.98, were received by the Solicitor on 28 October 1999 and deposited into the second trust account to the credit of Mr Stanojevic’s trust ledger.

59 From the trust ledger account of Mr Stanojevic the following amounts were paid:

28.10.99 Chq.No. 400015 Transferred to the Solicitor for costs 9,000.00

26.11.99 Chq.No. 400017 Brian Guest - Counsel’s Fees 2,200.00

28.11.99 Chq.No. 400018 Dr Drummond 880.00

29.11.99 Stanojevic - Transferred to Solicitor as Loan 15, 000.00

10.12.99 Transferred to Solicitor as Loan 5, 000.00

10.12.99 Balance 1, 210.98

$33, 290.98
60 The cheque in the sum of $880.00 to Dr Drummond was not paid to Dr Drummond but remained in the Solicitor’s file as at the date of the Appointment of the Receiver, Ms Jean Sayer, on 1 November 2000.

61 The sums totalling $20,000.00 withdrawn by the Solicitor on 29 November and 10 December 1999 were deposited into the Solicitor’s office account.

62 The $20,000.00 referred to in paragraph 8 above was borrowed by the Solicitor from Mr Stanojevic, he being a client of the Solicitor.

63 The cheque in the sum of $9, 000.00 transferred to the Solicitor on account of costs was drawn on the second trust account on the date of deposit of the settlement funds and without the cheque for those funds having been cleared.

64 We are satisfied that the Solicitor borrowed the amount of $20,000.00 from his client Mr Stanojevic, as alleged.

65 Mr Barton referred us to regulation 12. Practitioner and client - Borrowing transactions of the Legal Profession Regulations 1994 which, we understood from Mr Barton, were in force at the material times. That provision provides, relevantly, that a practitioner must not borrow any money from a person who is currently a client of the practitioner, or the practitioner’s firm.

66 Although borrowing the money in each case was intentional and deliberate, it is not clear that the Solicitor was aware of the prohibition against borrowing from clients except under stringent conditions designed to provide protection to the client. If he was not aware of it, he was nevertheless guilty of a breach of the regulation, however, his culpability would not have amounted to professional misconduct in that respect. We find that the borrowing transactions amounted to unsatisfactory professional conduct.

On 14 July 1999, the Solicitor possessed a prohibited drug, contrary to section 10(1) Drug Misuse and Trafficking Act 1985:
67 On 14 July 1999 the Solicitor's car was stopped by police in Enmore Road, Stanmore.

68 The police found some white substance on the Solicitor's person and seized a sample. They saw some of it fall onto the floor of the Solicitor's car.

69 On analysis, the white substance proved to contain cocaine, being a prohibited drug, possession of which was contrary to section 10(1) Drug Misuse and Trafficking Act 1985.

70 On 5 February 2001, at Newtown Local Court, the Solicitor pleaded guilty to and was found guilty of a breach of section 10(1) Drug Misuse and Trafficking Act.

71 It appears to us from the evidence that the Solicitor was convicted and fined $400.00 by the Magistrate. He appealed to the District Court of NSW where he was given the benefit of section 10 of the Crimes (Sentencing Procedure) Act 1999. Therefore, it is true to say that he does not now stand convicted of any crime upon the facts referred to above. Nevertheless, the significant matter for present purposes is that the facts were found to have been proved. Relevantly, section 10 of that Act is as follows:

"(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make either of the following orders:
(a) an order directing that the relevant charge be dismissed,
(b) ...
(2) ...
(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:
(a) the person’s character, antecedents, age, health and mental condition,
(b) the trivial nature of the offence,
(c) the extenuating circumstances in which the offence was committed,
(d) any other matter that the court thinks proper to consider."
72 The Solicitor had no convictions for crime at the material times.

73 Notwithstanding that the Solicitor was given the benefit of section 10 of the Crimes (Sentencing Procedure) Act 1999, he did possess a prohibited drug as alleged in ground (d), namely, that on 14 July 1999, he possessed a prohibited drug, contrary to section 10(1) Drug Misuse and Trafficking Act 1985. Ground (d) of the Information is made out.

Alleged attempt to mislead the Law Society:
74 The Society repeated particulars 1 to 4, inclusive, immediately preceding, in support of this ground.

75 During the course of the proceedings at Newtown Local Court the Solicitor caused a report dated 1 February 2001 by Dr John Albert Roberts (the Roberts report). That report addressed the issue of cocaine abuse by the Solicitor, together with the abuse of alcohol, in the context of certain stress factors ('stressors').

76 The stressors were identified in the Roberts report as:

• Unexplained threatening telephone calls being made to the Solicitor.
• The calls included threats on the Solicitor's life.
• The solicitor had to cope with a resultant need to move his office from Earlwood to Leichhardt and the stress of managing that change, including interim management of two offices.
• The continuation of threatening telephone calls.
• That in the period March - July 1999 the Solicitor's productivity declined because of the death threats, which caused him to retreat to a nearby hotel for safety at Earlwood.

77 The report concluded "In the atmosphere of being under significant threat, being in fear for his physical safety and having gravitated to the Earlwood Hotel, Mr Kourgialis commenced drinking alcohol and used cocaine socially on 4 or 5 occasions."

78 During the course of the Society's investigation leading to the first Information, the Solicitor caused a report dated 31 January 2002 by Dr John Albert Roberts (The second Roberts report) to be forwarded to the Society. The second Roberts report addressed the issue of the abuse of alcohol by the solicitor, in the context of certain stress factors.

79 The stressors were identified in the second Roberts report as:

• Unexplained threatening telephone calls being made to the solicitor.
• The calls included threats on the solicitor's life.
• The solicitor had to cope with a resultant need to move his office from Earlwood to Leichhardt and the stress of managing that change, including interim management of two offices.
• The continuation of threatening telephone calls, and
• That in the period March - July 1999 the solicitor's productivity declined because of the death threats, which caused him to retreat to a nearby hotel for safety at Earlwood.

80 The second Roberts report concluded, "In the atmosphere of being under significant threat, being in fear for his physical safety and having gravitated to the Earlwood Hotel, Mr Kourgialis commenced drinking alcohol." No reference was made to the cocaine use.

81 The Council submitted that the disclosure of alcohol abuse was intended to mitigate the seriousness of the Solicitor's conduct representing a transient disruption of the solicitor's capacity to function in a logical and prudent manner.

82 It was submitted that the disclosure of alcohol abuse itself raised potential questions of fitness by reason of substance abuse. The Solicitor's failure to disclose his abuse of cocaine in the circumstances was an attempt to mislead the Society by implying that his substance abuse involved only alcohol.

83 In the alternative, it was submitted that, in the circumstances, the Solicitor's failure to disclose his cocaine use amounted to a failure to abide by his duty of candour to the Society.

84 By reason of the Solicitor’s lack of participation in the hearing, it is not possible to decide what was the Solicitor’s precise state of mind at the time of presenting the second report, but his conduct did demonstrate a lack of candour. Having chosen to rely upon the stressors and their consequences on his behaviour, he had an obligation to make full and frank disclosure. The failure illustrates the maxim suppressio veri suggestio falsi: reference to alcohol and not to cocaine suggested that only alcohol was involved.

85 In the circumstances only one conclusion is possible, namely, that the Solicitor deliberately had caused reference to his cocaine use to be omitted from the second Roberts report. The Law Society was thereby deprived of information that would have enabled them to form a fully informed opinion about the Solicitor’s fitness to practise.

86 In O’Reilly -v- The Law Society of NSW [1988] NSWLST 2 it was observed that the appellant had lied to, and deceived, the Law Society and the Statutory Committee. In his reasons, Clarke JA, said:

"It should be said at once that a finding that a solicitor has deceived a court or tribunal provides compelling evidence of his unfitness to practise. The profession is an honourable one and nothing less than complete honesty and candour in all instances is acceptable. The client should be entitled to rely on the truthfulness of all that he is told. The courts should likewise be entitled to accept without question assertions made by a solicitor. If a solicitor is found to have deliberately lied to a client or to the court then he has failed, in a fundamental respect, to adhere to the required standards. (See Law Society of New South Wales v Veron 84 WN Pt 1 136; The New South Wales Bar Association v Kalaf NSW Court of Appeal, 11.10.88, unreported; The Law Society of New South Wales v Jones, NSW Court of Appeal, 27.7.78, unreported; Kotowicz v Law Society of New South Wales, NSW Court of Appeal, 7.8.87, unreported.) But care must be taken in reaching a conclusion that the solicitor has lied or deceived the tribunal. In particular there is a need to distinguish carefully between cases in which the evidence of a solicitor is not accepted and those in which there is an affirmative finding that he has deliberately lied or sought to mislead the tribunal. It goes without saying that a tribunal needs to be satisfied to that degree of persuasion which is necessary to satisfy the Briginshaw test before it can properly make a finding that a solicitor has lied or deliberately deceived the tribunal."
87 There are many judicial statements to the effect that a solicitor has a duty of complete candour to his/her clients, to the body lawfully investigating any professional misconduct or unsatisfactory professional conduct, to the ADT and to the Court. This arises from the fact that he/she belongs to an honourable profession to adopt the words of Clarke JA, above.

88 Ground (e) Attempted to mislead the Law Society, is proved to our comfortable satisfaction.

89 It is not necessary to consider whether any one of the grounds proved against the Solicitor would of itself have justified the removal of his name from the roll of legal practitioners. It might have been argued that any one, or even more, of the proven grounds could have been dealt with by a less severe order than the one we make. But, the grounds proved establish that the departure from proper professional conduct, manifested by those grounds considered together, is such that no other course is open to the Tribunal but to order that the Solicitor’s name be removed from the roll. This conclusion has not been influenced by the fact that the Solicitor does not oppose an order that his name be removed from the roll of legal practitioners.

90 We note that he does not consent to an order for costs.

91 We make the following orders:

1. That the Solicitor’s name be removed from the roll of legal practitioners.
2. That the Solicitor pay the Council’s costs of and incidental to these proceedings as assessed under Division 6 part 11 of the Legal Profession Act, 1987.