Law Society of New South Wales v MacKenzie

[2003] NSWADT 92

CITATION:	Law Society of New South Wales v MacKenzie [2003] NSWADT 92
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Jacklyn Isabel MacKenzie
FILE NUMBER:	022018
HEARING DATES:	4th February 2003
SUBMISSIONS CLOSED:	02/04/2003
DATE OF DECISION:	05/02/2003
BEFORE:	Nader J QC - ADCJ (Deputy President); Pheils J - Judicial Member; Kirkby E - Member
APPLICATION:	Professional Misconduct - breach of s. 61 of the Legal Profession Act - Professional Misconduct - breach of s. 62 of the Legal Profession Act - Professional Misconduct - fail to communicate - Professional Misconduct - misappropriate trust moneys/moneys - Professional Misconduct - mislead client - Professional Misconduct - mislead Solicitor
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987 Legal Profession (Trust Accounts and Controlled Money) Regulation 1988
CASES CITED:
REPRESENTATION:	APPLICANT L Pierotti, Solicitor RESPONDENT No Appearance
ORDERS:	1. That the Solicitor's name be removed from the Roll of Legal Practitioners.; 2. Tha the Solicitor pay the costs of the Informant of and incidental to the hearing of this information.

1 The Council of the Law Society of New South Wales (the Informant), by Information under section 167 of the Legal Profession Act 1987 (“the Act”) dated 28 August 2002, filed 29 August 2002, seeks orders against Jacklyn Isabel MacKenzie (the Solicitor) in the following terms:

(i) That the Solicitor’s name be removed from the Roll of Legal Practitioners.
(ii) That the Solicitor pay the costs of the Informant of and incidental to the hearing of his Information.
(iii) Such further ancillary orders as the Tribunal sees fit.

2 The Solicitor did not appear at the hearing, either in person or by a solicitor or barrister. We were satisfied that she was made aware of the time and place of the hearing with reasonable notice. No reason was communicated to us relating to her non-appearance. We infer that she did not wish to contest any of the matters alleged in the Information and supporting documents. The Solicitor’s failure to participate in the hearing does not constitute proof of any of the conduct complained of but it does enable us more readily to accept the evidence put forward by the Informant and to draw the inferences contended for by the Informant, all of which were specified in the documents served upon the Solicitor.

3 We will deal separately with each of the five grounds relied upon by the Informant.

Ground 1.

MULALLY & MYLOTT -v- HARPLEY

(i) The Solicitor’s letter dated 25 August 1993 to Messrs Mulally & Mylott was misleading.

4 In relation to ground 1, the evidence establishes that the Solicitor, whilst she was an employee of Messrs Mulally & Mylott, had the conduct of a matter styled Starling v Bothand Pty Ltd and Ors in the Supreme Court of NSW. She acted for three of the Defendants, G R Harpley, L W Harpley and Uvalde Pty Limited.

5 On 20 November 1992, the Solicitor ceased to be an employee of Messrs Mulally & Mylott and on 2 December 1992 she became a principal of Messrs Dunbier MacKenzie. By letter dated 25 November 1992 Messrs Dunbier MacKenzie wrote to Messrs Mulally & Mylott advising that they now had instructions to act in the Harpley proceedings and enclosed authorities from their client to uplift the file and requested an account.

6 From 25 February 1992 until approximately 19 July 1993, correspondence passed between Messrs Dunbier MacKenzie and Messrs Mulally & Mylott concerning Messrs Mulally & Mylott’s account and their declining to release their file.

7 On 24 May 1993, the Solicitor became a Principal of the firm of Messrs Gorman Dunbier MacKenzie. She continued to have conduct of the Harpley proceedings.

8 On 27 July 1993, Messrs Mulally & Mylott filed a Statement of Liquidated Claim for their unpaid costs in the Harpley proceedings [Local Court Campbelltown No.1001 of 1993] (“the Local Court proceedings”). The amount claimed was $18,843.60 plus interest, service fee and costs. The Statement of Liquidated Claim was served on the three defendants on 28 July 1993. Pursuant to the Local Court Rules a Notice of Grounds of Defence was to be filed by 26 August 1993.

9 By letter dated 25 August 1993, the Solicitor wrote to Messrs Mulally & Mylott containing amongst other things the statement:

“A defence has been entered to your Statement of Claim.”

10 This statement, to the knowledge of the Solicitor, was false and is the basis of ground 1. of the Information.

11 By letter dated 2 September 1993, the Solicitor wrote to Messrs L W & G R Harpley, her clients and being two of the defendants in the Local Court proceedings, in following terms: -

“We enclose herewith defence and affidavits. Please sign where indicated and have sworn in the presence of a Justice of the Peace.”

12 On 7 September 1993, no defence having been filed in the Local Court proceedings, Messrs Mulally & Mylott obtained judgment against all three defendants.

13 By letter dated 9 September 1993, hand delivered to the Solicitor’s office on that date, Messrs Mulally & Mylott notified the Solicitor of the Judgment in the Local Court proceedings. That letter also indicated:

“ ... contrary to what is set out in the second paragraph of your letter of 25 August 1993, no defence has been entered to the Statement of Liquidated Claim filed in these proceedings.”

14 Ground 1 is established by the evidence. The evidence is unambiguous and uncontradicted. The Solicitor’s letter of 25 August 1993, stating that a defence had been entered, was false. It was clearly calculated to mislead.

15 The proposition that, knowingly, and, in some cases, negligently, to mislead another legal practitioner with respect to a matter significantly relevant to professional business is serious professional misconduct needs no judicial authority. Such conduct undermines one of the foundations of trust that the community has to be able to place in legal practitioners, namely, that what one practitioner says to another in the furtherance of practice can be accepted without question as having been made both truthfully and carefully. It is analogous with, the duty of a legal practitioner to avoid misleading a court, or with the duty to adhere to an undertaking given to another practitioner in the course of legal practice. We could wax eloquent about the consequences of legal practitioners being permitted with impunity to mislead other practitioners but such elementary and fundamental matters do not require to be elaborated, especially to the audience by whom these reasons may be read.

16 We find that the letter of 25 August, 1993, was misleading in a material respect and that its publication by the Solicitor to Messrs Mullaly Mylott amounted to professional misconduct. The Solicitor has elected not to assist the Tribunal by taking part in the hearing. We assume that if there were any explanation or fact that would operate in mitigation of the seriousness of the Solicitor’s conduct she would have presented it to us. In the absence of any such explanation we evaluate the conduct on its face value as a serious departure from acceptable practice.

Ground 2.

READ

(i) The Solicitor’s letter dated 9 August, 1993 to Messrs Gordon Cavanagh was misleading.

(ii) The Solicitor failed to diligently conduct the client’s Family Law proceedings, including:

(a) Failing to take any steps to comply with the Directions of the Family Court for her client to file and serve his documents by 30 July, 1993.
(b) Failure to arrange for the representation of her client before the Court on 5 August, 1993.
(c) Failure to file documents before 23 August, 1993 although sworn on 11 August, 1993.
(iii) As a result of the Solicitor’s handling of her client’s matter costs orders were made against the client.

17 On 18 May 1993, Mr Peter Bartels, then an employed solicitor of Messrs Bryan Gorman & Co. was instructed to act for the husband, James Read (“the client”), in family law proceedings in which the wife was represented by Messrs Gordon Cavanagh, Solicitors. On 24 May 1993, Messrs Bryan Gorman & Co. and Messrs Dunbier Mackenzie merged to form the firm of Messrs Gorman Dunbier MacKenzie.

18 On or about 26 May 1993, the Solicitor took over the carriage of the client’s matter. The client handed the Solicitor a letter dated 25 May 1993, from Messrs Gordon Cavanagh, addressed to the client, enclosing an application in the family law proceedings referred to.

19 On 4 June 1993, the Solicitor wrote to Messrs Gordon Cavanagh noting that the application was returnable on 12th July, 1993, and advising that a cross application would be filed.

20 On 29 June 1993, Messrs Gordon Cavanagh wrote to Messrs Gorman Dunbier MacKenzie requesting a Statement of Financial Circumstances and Answer.

21 On 12 July 1993, Messrs Gulley Helene Bullock Scerri appeared as the Solicitor’s agent at the first return date of the Application.

22 By letter dated 16 July 1993 (received 19 July 1993), Messrs Gulley Helene Bullock Scerri advised the Solicitor of the orders made by the Family Court, in particular:

“1. That the respondent file and serve an Answer/Cross Application by 30th July, 1993.
2. That the respondent file and serve a Statement of Financial Circumstances by 30th July, 1993.
3. That the Application for property settlement be adjourned to 5 August, 1993 at 9.45 a.m. and that the parties be at liberty to apply on 7 days notice to the other parties.
...”
The respondent referred to is the client.

23 On 28 July 1993, Messrs Gordon Cavanagh sent a letter to the Solicitor advising:

“.... We may also remind you that the Family Court issued Orders to the effect that these documents be filed by the 30 July, 1993 ....
As we are unable to properly advise our client without the provision of these documents and on the basis of this the prospect of further Court appearances beyond next Thursday it is our intention to ask the Court to award the costs of these attendances against your client for unnecessarily delaying the prospects of settlement.
....”
The documents referred to were the Cross Application and Affidavit in Support.

24 On 5 August 1993 the Application came before the Family Law Court at Parramatta. The client’s Cross Application and Affidavit in Support had still not been filed. There was no appearance on behalf of the client and the Application was adjourned to 18 August 1993. A costs order of $300.00 was made in favour of the Applicant wife. The Court also ordered, in part, that:

“18.Wife’s sols are to notify the husband personally and through his solicitors if does not appear and file documents on next occasion orders will be made in accordance with wife applications within 3 working days.

19.Husband’s solicitors are to file a NAFS w/i 5 w/days.”

25 On the next day, 6 August 1993, Messrs Gordon Cavanagh forwarded letters to the client and to the Solicitor’s firm in accordance with the Orders of the Court. Those letters did not inform either the client or the Solicitor of the adjourned date of the proceedings, namely, 18 August 1993. That omission did not in any way excuse the Solicitor from making her own inquiries about the adjourned date. However, one cannot know whether the failure to pass that information to the Solicitor affected her conduct in any relevant way. She clearly had a positive duty in the interest of her client to make the appropriate inquiry. It should also be said that it is possible that Messrs Gordon Cavanagh may have omitted to advise the client and the Solicitor of the adjourned date because the court had not expressly directed them to do so.

26 On 9 August 1993 the Solicitor sent a letter to Messrs Gordon Cavanagh advising she was awaiting receipt of Form 17 from the client, advising that an offer of settlement would be made and that an “Application and Cross Answer which has been forwarded to the Family Court for filing” (sic) was enclosed. The Application and Cross Answer were, in fact, not enclosed. Messrs Gordon Cavanagh’s note is, “No Cross Application received. 11/8/93”.

27 On 9 August 1993 a further letter was sent to Messrs Gordon Cavanagh in which the Solicitor advised:

“We refer to your letter of 6 August, 1993 and apologise for our non attendance. Our message book indicates our agent advised that documents were to be filed by 5 August, 1993 not that the matter was listed for 5 August, 1993. Due to the illness of the writer’s secretary, the Form 17 has not been typed. Please advise how the costs of $300.00 are calculated.”

28 On 10 August 1993 Messrs Gordon Cavanagh wrote to the Solicitor repeating their earlier request that the Solicitor file and serve the necessary documents. On 11 August 1993 the client swore the Cross Application and Answer and Statement of Financial Circumstances.

29 On 12 August 1993 the Solicitor wrote to Messrs Gordon Cavanagh advising:

“We refer to the above matter and enclose copy of: -
1. Answer & Cross Application;
2. Statement of Financial Circumstances.”

30 On 18 August 1993 the matter was listed before the Family Court. There was no appearance for the client. A costs order in the sum of $600.00 was made against the client. The matter was adjourned to 17 September 1993.

31 On 19 August 1993 the Solicitor wrote to Messrs Gordon Cavanagh advising:

“We enclose Answer and Cross Application and Form 17”.

32 On the same day the Solicitor forwarded to the Parramatta Family Court the Answer and Cross Application and Form 17 for filing and requested details as to the listing of the matter and the Orders made on 5th August, 1993.

33 On 19 August 1993 Messrs Gordon Cavanagh wrote to the Solicitor providing details of the Orders made on 18th August, 1993. They also observed:

“...kindly note that the unsealed documents served on us 16/8/93 do not comply with the Family Court rules...”

34 On 20 August 1993 the Solicitor wrote to Messrs Gordon Cavanagh stating:

“We note that your recent correspondence does not advise us that you had adjourned the matter to 18 August, 1993 nor had our correspondence to the Court been answered by 18 August, 1993 or even at the time of writing to you.”

35 On 10 September 1993 Messrs Gordon Cavanagh wrote to the Solicitor enclosing an Application with Affidavit in Support and an Affidavit by Mr. Harris, Solicitor. On the same date the Solicitor wrote to Messrs Gordon Cavanagh. She stated:

“We acknowledge receipt of your documents in this matter and note that the Form 17 Application and Reply have been filed at the Family Court and that sealed copies have not been returned to us. If you telephone the Court registry, you may confirm this.

In relation to the Affidavit of Mr Harris and, in particular, to paragraph 10, you should note that Mrs Mackenzie was not at this firm on 19th May and 24th May, 1993.”

36 On 17 September 1993 the matter came before the Parramatta Family Court for a Directions Hearing. The client was represented by Mr Stewart of Counsel. An Order for costs in the sum of $600.00 was made in favour of the Applicant upon the hearing date being vacated and such costs were paid by Mr Stewart on behalf of the Solicitor’s firm.

37 The allegation that the Solicitor’s letter dated to Messrs Gordon Cavanagh dated 9 August 1993 was misleading is ambiguous and lacking in particularity. There are two letters of the Solicitor dated 9 August 1993, both of them referred to above. Both of them might arguably be said to be misleading in some respect. We can find no submission that might identify the letter referred to. In the absence of express particulars of the precise respect in which the letter complained of was misleading and reference to the particular evidence supporting the contention, we are unable to find the allegation proved.

38 There is no doubt that the Solicitor failed to diligently conduct the client’s Family Law proceedings. She failed to comply with the directions of the Family Court to file and serve her client’s documents by 30 July, 1993. She failed to arrange for the representation of her client before the Court on 5 August, 1993. She failed to file documents before 23 August, 1993 although sworn on 11 August, 1993.

39 As a result of the Solicitor’s unsatisfactory handling of her client’s matter costs orders were made against the client. This is unsatisfactory professional conduct involving such a substantial and consistent failure to reach reasonable standards of diligence as to amount to professional misconduct by virtues of section 127 of the Act.

Ground 3

MASTROVASILI

(i) The Solicitor wilfully breached Section 61 of the Legal Profession Act, 1987.
(ii) The Solicitor misappropriated trust funds.
(iii) The Solicitor wilfully breached Section 62 of the Legal Profession Act, 1987.
(iv) The Solicitor failed to adequately communicate with her client.

40 In about February 1993 Julie Mastrovasili, (“the client”), retained the Solicitor to act for her in Family Law proceedings. Those proceedings included issues of child support/maintenance and property. It is alleged by the Informant that in connection with those proceedings, the Solicitor failed to respond to a number of specified telephone messages from the client requesting the Solicitor to return her calls. The failure to return those telephone calls was sought to be proved by diary notes of Ms Mastrovasili. Without intending any implied comment adverse to Ms Mastrovasili’s reliability, we are nevertheless unable to accept that evidence in the absence of better evidence. That evidence should have been readily obtainable. The evidence of failure to respond to telephone calls to be found in photocopies of Ms Mastrovasili’s diary notes annexed to the affidavit (sworn 28 August 2002) of Raymond John Collins, solicitor for the Informant. Whilst the failure of Ms Mackenzie to take part in these proceedings may make evidence adduced by the Informant more readily acceptable, the evidence must nevertheless be presented in admissible form. Compliance with the rules of evidence is especially necessary when a respondent takes no part in the proceedings. We think that in these circumstances the significance of Ms Mastrovasili’s diary notes should have been stated and verified by her own affidavit.

41 On 22 September 1993 the Solicitor commenced practice on her own account. The client continued to retain the Solicitor. On 26 October 1993 Messrs Gorman Dunbier issued an account addressed to the client in the sum of $2,986.06 being costs and disbursements in relation to her Family Law proceedings prior to 24 May 1993. The Solicitor advised the client that the amount of the account from Messrs Gorman Dunbier in the sum of $2,986.06 was “inappropriate” and that she would “look into the matter”.

42 The client became entitled, pursuant to a property settlement with her former husband, to $93,765.00. The Solicitor directed the husband’s Solicitor that the funds be paid as follows:

J Mackenzie $13,000

Jacklyn Mackenzie $4,660

Jacklyn Mackenzie $76,105.00

43 These amounts were duly paid by cheques as directed by the Solicitor.

44 On 24 August 1994 the cheque in the sum of $76,105.00 was deposited into the Solicitor’s trust account and credited to the Mastrovasili trust ledger. The three cheques were delivered to the Solicitor’s husband, John MacKenzie. John Mackenzie’s receipt is for the three cheques dated 28 August 2002. The cheque for $4,660.00 was cashed, a fresh bank cheque issued and deposited into the W Cosgrove controlled money account to repay the sum of $4,050.00 which the Solicitor had drawn out of that account to pay the costs of S J Thompson, the barrister for Ms Mastrovasili. Cosgrove was a client of the Solicitor. This use of the $4,660.00 was not authorised by the client.

45 On 24 August 1994 and 5 September 1994 the Solicitor withdrew from her trust account, for costs, the sums of $3,000.00 and $1,000.00. The Solicitor did not deliver any bill to the client prior to those withdrawals.

46 On 1 December 1994, by journal entry, the sum of $2,986.06 was transferred to a trust ledger styled:

“Dunbier MacKenzie + Gorman Dunbier MacKenzie

A/C for payment of debts from fees RECD due to both firms”

47 This is the amount referred to above as being described to the Client by the Solicitor as “inappropriate”. The transfer was not authorised by the client.

48 The grounds based upon subsections 61(1) and (2) of the Act are established by the evidence. It is manifest that, objectively speaking, each of those subsections has been contravened. By subsection 61(8) of the Act, if the contraventions are wilful, they amount to professional misconduct. The Solicitor, having chosen to take no part in the hearing of this Information, and to offer nothing that might bear on her state of mind at the material times, we are left with no alternative but to take her conduct on its face value and find that the contraventions of subsections 61(1) and (2) were wilful and that they constitute professional misconduct.

49 In general, the same observations are made in respect of the alleged contraventions of section 62 of the Act. The manner in which the trust accounts books were kept manifestly contravened the requirements of the Act. The contraventions, for the same reason as we have given with respect to the contraventions of section 61 must be taken to have been wilful and, therefore, by virtue of subsection 62(4), to constitute professional misconduct.

50 Regrettably, the Informant has not specified precisely what conduct amounted to misappropriation. We seem to have been expected to make an educated guess at what were the transactions that constituted misappropriation. The particulars are vague and incomplete. The evidence shows that the three cheques referred to were delivered to Mr Mackenzie: the ultimate destination of those funds is obscure. However, in view of the allegations contained in the Information and the evidence in support of it, and the failure of the Solicitor to respond in any way to the allegations, we are inclined to give more weight to the circumstantial evidence than might be given to it in other another case. The following facts are significant:

1. The cheque for $13,000 was drawn at the Solicitor’s direction in favour of J. MacKenzie;
2. The two other cheques were drawn at her direction in favour of a payee with the name Jacklyn;
3. The name of the Solicitor’s husband was John MacKenzie;
4. The cheque drawn in favour of J. MacKenzie is not shown by the accounts to have been paid into trust for Ms Matrovasili;
5. The cheque for $4,660.00 was cashed.

51 Notwithstanding the failure on the part of the Informant to be specific about what acts constituted the misappropriation, we find that both of the last mentioned amounts of money were misappropriated by the Solicitor: a total amount of $17,660.00. If more than that amount was misappropriated, we cannot reach that conclusion on the evidence as presented to us. The misappropriation constituted a serious case of professional misconduct.

52 For reasons already stated, we do not find the allegation that the Solicitor failed to adequately communicate with her client to be proved. This, we repeat, implies no adverse reflection on Ms Mastrovasili, but is based on the formal quality of the evidence as the Informant has chosen to adduce it.

Ground 4

COSGROVE

(i) The Solicitor wilfully breached Sections 61 and 62 of the Legal Profession Act, 1987.
(ii) The Solicitor misappropriated trust moneys.
(iii) The Solicitor failed to provide an accounting to Mr Philip Cosgrove for moneys received on behalf of Mr William Cosgrove.

53 The Solicitor acted for Mr William Cosgrove (“WC”) in relation to his claim for repayment of a loan to Crash Supplies Pty Limited (“the Crash Supplies matter”). By letter dated 5 April 1994 Mr William Cosgrove wrote to the Solicitor authorising his only child Philip Cosgrove (“PC”) to deal with the Solicitor “ in relation to my claim.”

54 The Crash Supplies matter was settled on 15 April 1994. The settlement monies of $124,000.00 were paid to the Solicitor who banked them into a controlled money account number 148356767 (styled “Jacklyn Mackenzie T-F William Henry Cosgrove”) (“the first account”) with the Advance Bank at Darlinghurst. The Solicitor was the only authorised signatory to the first account. By letter dated 18 April 1994 the Solicitor wrote to the Advance Bank Darlinghurst requesting the transfer from that account of $5,350.00 to her office account, and the withdrawal of $60,000.00 for deposit into an IBD. The IBD Account was numbered 334535128 (“the second account”). The application form for this account, signed by the Solicitor, records that the account is not held in trust for any client.

55 Between 18 April 1994 and 10 April 1995 there were a number of withdrawals by the Solicitor from the first account which were not authorised by either WC or PC.

56 In June 1994 WC suffered a massive fit and was, for some short time, hospitalised at Prince of Wales and Prince Henry Hospitals. Thereafter, and until his death on 12 June 1996, WC resided with PC but at various times he also resided at respite centres and a nursing home. WC was, from June 1994, mentally incapable of making any business decisions.

57 On 24 August 1994 an amount of $4,660 was deposited into the first account. This sum represented moneys paid to the Solicitor by Messrs Marsdens on behalf of their client and in relation to the Solicitor’s client Mastrovasili. This transaction is referred to in connection with Ms Matrovasili’s complaint, above.

58 Between 26 September 1994 and 5 October 1995 there were a number of withdrawals by the Solicitor from the second account which were not authorised by either WC or PC.

59 On 5 October 1994 the sum of $22,000 was withdrawn from the second account and used to open Account No. 335211011 solely in the name of the Solicitor (“the fourth account”). The application form for this account, signed by the Solicitor, records that the account is not held in trust for any client.

60 On 5 October 1994 the balance of the second account ($28,777.32) was withdrawn and used to open Account No. 148968675 styled “ Jacklyn MacKenzie “ (“the third account”). The application form for this account, signed by the Solicitor, records that the account is not held in trust for any client.

61 Between 5 October 1994 and 3 November 1994 there were a number of withdrawals from the third account which were not authorised by either WC or PC.

62 On 4 November 1994 the sum of $18,000 was deposited into the third account. This sum represented an appropriation of funds in a Controlled Money account standing to the credit of Vicki Cooke, a client of the Solicitor.

63 Between 4 November 1994 and 23 February 1995 there were a number of withdrawals by the Solicitor from the third account which were not authorised by either WC or PC.

64 In 1995 PC made numerous requests of the Solicitor for a balance of the trust account.

65 Between 28 March 1995 and 10 April 1995 there were a number of withdrawals by the Solicitor from the fourth account which were not authorised by either WC or PC.

66 On 11 April 1995 the balance of the fourth account ($16,627.02) was withdrawn and deposited in the first account.

67 Between 12 April 1995 and 15 May 1995 there were a number of withdrawals by the Solicitor from the first account which were not authorised by either W C or P C.

68 In about August 1996 PC instructed other Solicitors, Messrs Patrick Grimes & Co., to act on his behalf in relation to his late father’s Estate. Those solicitors wrote to the Solicitor requesting a reconciliation of WC’s trust moneys. The Solicitor did not provide a balance or reconciliation of WC’s trust moneys as requested.

69 By facsimile transmission on 9 September 1996 PC again requested a reconciliation of WC’s trust moneys. The Solicitor did not provide the requested material.

70 We make the same comments with respect to the alleged breaches of sections 61 and 62 of the Act as we made in relation to ground 3. The conduct with respect to this ground amounted to wilful contraventions of the sections and, therefore, constitutes professional misconduct.

71 The alleged failure to provide an accounting to Mr Philip Cosgrove for moneys received on behalf of Mr William Cosgrove is well established by the evidence. It was unsatisfactory professional conduct that involved a substantial failure to reach a reasonable standard of diligence and, therefore, that it constituted professional misconduct by virtue of section 127 of the Act.

72 We find that the several transfers of trust funds into the Solicitor’s personal accounts amounted to misappropriation of the client’s money held by the Solicitor in trust. The report of BKR Walker Wayland, Chartered Accountants, dated 7 December 1998, receiver of the Solicitor’s practice, determined the client’s claim in respect of misappropriated moneys at $30,933.05. The report notes that Mr. P. Cosgrove has agreed with the determination. This misappropriation of the client’s money is clearly professional misconduct of a very serious kind.

Ground 5

COOKE

(i) The Solicitor wilfully breached Section 61 of the Legal Profession Act,1987.
(ii) The Solicitor wilfully breached Section 62 of the Legal Profession Act,1987.
(iii) That the Solicitor’s facsimile transmissions dated 4 and 5 January 1995 were misleading in that the balance of the client’s controlled money account on those dates was $2,170.41 and not $26,896.06 as therein stated.

73 Vicki Cooke (“the client”) retained the firm of Messrs Gorman Dunbier Mackenzie to act for her in relation to her family law proceedings. The Solicitor had the conduct of the client’s matter. From 22 September 1993, when the Solicitor commenced practice on her own account, the client continued to retain her.

74 On 5 November 1993 the Solicitor opened a controlled money account in the name of “Jacklyn MacKenzie T-F Vicki Cooke. She deposited in that account the sum of $26,292.10 being the client’s 50% share in the balance of the proceeds of the sale of the former matrimonial home paid pending further order of the Court.

75 On 5 November 1993 the Solicitor executed a FORM 3, “NOTICE TO CLIENT”, pursuant to the Legal Profession (Trust Accounts and Controlled Money) Regulations 1988. At paragraph 2 of the Notice the Solicitor recorded:“$26,292.10 was received by us on 5 November 1993 from Mrs Victoria Cooke to be held on trust pending completion of family law case.” At paragraph 3 she recorded: “Solicitor’s instructions were received from Vicki Elizabeth Cooke about September 1993 and reconfirmed (?) on 5 November 1993 to deal with money received or held in accounts/deposits noted in paragraph 2, as follows: Strictly in trust Pending completion of F/L matter, presently in Family Court.”

76 In a letter dated 28 July 1994, the Solicitor wrote to the client and advised, in part:

“Re Family Law Hearing
We confirm our firm quote for our professional fees to 27/9/94 as $10,000.00 plus Counsel.
Counsel is now $1,600.00 per day. Our fees for attendance and instructions and travel are the scale of $107. per hour.”

77 On 14 October 1994, orders were made in the client’s Family Law proceedings. After a specific payment of $12,000 to the client’s aunt to satisfy a debt, the net proceeds of the matrimonial home together with accrued interest was to be divided between the client and her husband in the proportion of 73.7% to 26.3%.

78 In about November 1994 an agreement was reached between the husband and the client concerning the division of the proceeds of sale of the former matrimonial home however the funds were not disbursed until about February 1995.

79 On 4 November 1994 the Solicitor prepared a “controlled moneys statement of account”. The client did not receive this document until it was provided to her by the Receiver. On the same day the Solicitor withdrew the sum of $20,000.00 from the client’s controlled money account. She deposited of $2,000.00 of that amount in her office account and the balance of $18,000.00 in a controlled money account of another client, Mr Cosgrove. As at 4 November 1994, the Solicitor had not given a bill to the client.

80 On 26 November 1994 the Solicitor prepared a letter to the client which, in part read:

“We refer to the above matter and note that the matter eventually ran to some 8 days, however as you are not able to pay even the balance of our account we advise that we shall not be charging you for the extra work. However, we must charge you for the dissolution of marriage.”

81 By facsimile transmission of 4 January 1995, the Solicitor, advised the husband’s solicitor that “interest on our clients a/c to 31/5/94 was $576.15 (Bal $26,896.06 however $278.8 TFN tax was deducted …”. By facsimile transmission of 5 January 1995, the Solicitor, advised the husband’s Solicitor in these terms: “The Advance Bank have confirmed that the interest calculated to date is $487.01 on the balance of $26,896.06.” In fact, the bank statement shows that the balance of the account on 4 January 1995 was $2,170.41, not $26,896.06 as stated.

82 On 28 March 1995 a decree nisi was made upon the client’s Application. On the same date, the Solicitor prepared a memorandum of costs in the sum of $600.00 in relation to the client’s Family Law matters. The Solicitor withdrew from the client’s controlled money account the sum of $564.23 and noted on the memorandum that the balance of $35.77 had been “written off”. The client did not receive the memorandum of 28 March 1995 until it was produced to her by the Receiver. On 26 July 1995 the Solicitor prepared a “memorandum of professional fees” in relation to the client’s Family Law matter in the sum of $23,420.00. The client did not receive this memorandum until it was provided to her by the Receiver.

83 The Solicitor’s contraventions of sections 61 and 62 were serious and manifestly culpable. Once again, we do not have the benefit of her participation in the hearing to assist us to see any other way of viewing her conduct.

84 The allegation that the Solicitor’s facsimile transmissions dated 4 and 5 January 1995 were misleading in that the balance of the client’s controlled money account on those dates was $2,170.41 and not $26,896.06 as therein stated complies with the request we have made as to how the conduct complained of should be stated. The statement was clearly misleading in a serious respect and can only be categorised as professional misconduct involving as it does a deliberate misleading of a solicitor in relation to a matter of mutual professional interest.

85 It is convenient here to make a suggestion about the form of Informations. In general, and in future cases, we expect that, when an allegation of misconduct or unsatisfactory conduct is made, the information, after stating the allegation briefly and in a general way, should be followed with a precise description of the acts constituting the contravention. For example, it might be stated that the solicitor contravened section 61 of the Act, or that s/he misappropriated trust funds, by doing x, y and z, or, that s/he contravened section 61 of the Act “in that s/he did x, y and z” or “in that s/he omitted to do x, y and z”, where x, y and z are the precise acts or omissions amounting to the contravention. After stating the acts or omissions complained of it might be helpful to state the evidence that proves those acts. But it is important to remember that the statement of facts constituting the misconduct is more appropriate to an Information than the evidence relied upon, which may well be contained in other documents, or given viva voce. Some of the ‘grounds’ in this case, especially 3 and 4, have been presented by general or compendious statements of the conduct complained, a narrative of evidence from which we have been required to make a choice, or an educated guess, as to the particular acts and omissions relied on, but with insufficient specification of the acts or omissions constituting them.

86 We have found that the Solicitor was guilty of professional misconduct on a number of occasions, all of them serious. They covered a lengthy period of time. Accordingly we make the following orders:

(i) That the Solicitor’s name be removed from the Roll of Legal Practitioners.
(ii) That the Solicitor pay the costs of the Informant of and incidental to the hearing of this information.

We note that by the second schedule to the Information, details of the claims for compensation by Mr. P. Cosgrove and Ms Mastrovasili are to be provided. In the absence of those details, we reserve our orders for compensation. When particulars are provided this matter will have to be relisted for further orders.