Law Society of New South Wales v McCarthy
[2003] NSWADT 198
•08/13/2003
CITATION: Law Society of New South Wales v McCarthy [2003] NSWADT 198 DIVISION: Legal Services Division PARTIES: APPLICANT
Council of the Law Society of New South Wales
RESPONDENT
Peter James McCarthyFILE NUMBER: 032001 HEARING DATES: 10/07/2003 SUBMISSIONS CLOSED: 07/10/2003 DATE OF DECISION:
08/13/2003BEFORE: O'Connor K - DCJ (President); Hale S - Judicial Member; O'Neill A - Member APPLICATION: Penalty MATTER FOR DECISION: Pricipal matter LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: Law Society of New South Wales v McCarthy [2002] NSWADT 58
Re Hodgekiss (1962) 62SR (NSW) 340; 79 WN 163
Briginshaw v Briginshaw (1938) 60 CLR 336REPRESENTATION: APPLICANT
I Wales, barrister
RESPONDENT
R Cuddy, barristerORDERS: 1. The practitioner’s practising certificate be suspended for a period of 3 months commencing on 1 September 2003 or on another date not being later than 1 December 2003 if agreed by the Law Society.; 2. The practising certificate entitle the practitioner to practise on his own account subject to the following restrictions:; (i) that he act as a solicitor only in the course of an engagement by another solicitor holding an unrestricted practising certificate; (ii) that his engagement will be under the supervision of the solicitor who sought his services; (iii) that prior to such engagement as referred to in (i) above the legal practitioner make available to the solicitor, for whom he has been requested to undertake work, a copy of these conditions and this Order.; 3. The practitioner pay the costs of the Law Society as agreed or as determined after assessment in accordance with the Legal Profession Act 1987.
REASONS FOR DECISION
1 The Law Society on 6 February 2003 laid an Information before the Tribunal pursuant to the provisions of the Legal Profession Act 1987 (LPA) alleging that the respondent, Peter James McCarthy, a legal practitioner who practises as a solicitor (‘the practitioner’), is guilty of professional misconduct on four grounds. The Law Society sought orders under s 171C that the practitioner’s name be removed from the roll of solicitors, that he pay the Society’s costs of the proceedings and such other orders as the Tribunal considers appropriate.
2 The conduct in question involves one transaction. The following facts are not disputed. In 1999 the practitioner was practising as a solicitor, but (as is permitted) did not operate a trust account. He received a payment in settlement of a client’s case which related to costs and disbursements incurred by him on the client’s behalf. The amount of the payment was $4200, of which it was said by the practitioner and not disputed, that $3000 was in respect of counsel’s fees and $1200 was in respect of his costs. A cheque for $4200 was drawn in favour of the practitioner. It was deposited into the practitioner’s personal account on 24 June 1999.
3 The matter of non-payment of counsel’s fees was drawn to the attention of the Law Society by the client on 8 March 2000. Counsel’s fees were paid on 28 June 2000.
4 There are specific rules relating to the receipt of monies on trust for a third party (here counsel). The two put in issue by the Law Society in this case are found in s 61 and s 62 of the LPA. Section 61 lays down the requirements governing the handling of money received on behalf of another person, of which the following provisions are most relevant to this case:
5 It is required that trust account records be maintained in respect of money received on trust. Section 62 provides, as relevant:
‘ 61. Money received by solicitor on behalf of another
(1) A solicitor who, in the course of practising as a solicitor in this State, receives money on behalf of another person:
(a) must pay the money, within the time prescribed by the regulations, into a personal trust account in New South Wales at an approved financial institution and must hold the money in accordance with the regulations relating to trust money, or
(b) if the person on whose behalf the money is received directs that it be paid or delivered to a third party free of the solicitor's control, must ensure that the money is paid or delivered:
(c) if the person on whose behalf the money is received directs that it be paid otherwise than into a personal trust account or to a third party, must pay the money as directed and (if the money is to be held under the direct or indirect control of the solicitor) must hold the money in accordance with the regulations relating to controlled money.
(i) before the end of the next working day or, if that is not practicable, as soon as practicable after the next working day, or
(ii) no later than the day allowed by the solicitor's authority or instructions (if that day is later than the day allowed under subparagraph (i)), or
(2) In any of those three cases, the solicitor must hold the money exclusively for, and must disburse the money in accordance with the directions of, the person on whose behalf it is held.
(3) This section:
(a) does not prevent a solicitor from depositing money with the Law Society in compliance with section 64, but this section continues to apply to any money so deposited that is repaid to the solicitor, and
(b) does not prevent a solicitor from withdrawing or receiving, from trust money or controlled money:
so long as the procedure prescribed by the regulations is followed, and
(i) reimbursement for disbursements paid by the solicitor, or
(ii) money for disbursements to be paid by the solicitor, or
(iii) money due, or to accrue due, to the solicitor for costs,
(c) does not affect any enforceable lien or claim that a solicitor has to any money, and
(d) does not prevent a solicitor from exercising a personal retaining lien for unpaid costs and disbursements in respect of money in a trust account or a controlled money account (other than money received subject to an express direction by the client with respect to the purposes for which the money is to be applied), and
(e) does not prevent a solicitor from holding, or disposing of, a cheque or other negotiable instrument payable to a third party if the solicitor does so on behalf of a client and in accordance with directions given by the client, and
(f) does not affect an authority that a solicitor has and that, apart from this section, is irrevocable.
(4) A lien referred to in subsection (3) (d):
(a) may not be exercised for an amount in excess of the sum of the costs and disbursements unpaid, and
(b) may not be exercised unless the solicitor has delivered a bill of costs and disbursements to the client on whose behalf the money is held.
(5) Money received by a solicitor on behalf of another person:
(a) is not available for payment to a creditor of the solicitor, and
(b) is not liable to be taken in execution of any judgment, order or other process of any court or tribunal at the instance of a creditor of the solicitor,
unless the creditor is the person on whose behalf the money is held by the solicitor.
(6) …
(7) …
(8) It is professional misconduct for a solicitor to wilfully contravene subsection (1) or (2).
(9) In this section:
"approved financial institution" means a bank, building society or credit union that has an agreement with the trustees of the Public Purpose Fund relating to the payment of interest on personal trust accounts (as referred to in section 69E).
"controlled money" means money required to be dealt with in accordance with subsection (1) (c) that, while under the direct or indirect control of the solicitor by whom or on whose behalf it is received, is for the time being held otherwise than in a personal trust account at an approved financial institution.
"trust money" means money required to be dealt with in accordance with subsection (1) (a).
(10) ….’
6 In addition to constituting professional misconduct within the meaning of s 61 and s 62, the Law Society alleged that the conduct also involved misappropriation of trust funds amounting to professional misconduct, and involved such a degree of delay in making payment to counsel that it amounted to professional misconduct.
‘ 62. Keeping of accounts
(1) A solicitor shall keep:
(a) in the case of trust money (within the meaning of section 61)---accounting records, or
(b) in the case of money other than trust money---such accounting records or other records (if any) as may be required by the regulations,
that disclose at all times the true position in relation to money received by the solicitor on behalf of another person.
(2) The accounting records referred to in subsection (1) shall be kept in a manner that enables them to be conveniently and properly audited.
(3) …
(4) A wilful contravention of subsection (1), (2) or (3) is professional misconduct.’
7 In his reply the practitioner admitted contravention of s 61 and s 62, but denied that the contraventions were wilful, and accordingly did not amount to professional misconduct. The practitioner denied misappropriation, and consequently any professional misconduct. The practitioner admitted delay in paying counsel and that it amounted to professional misconduct.
8 The Law Society relied on the evidence contained in its senior officer’s affidavit in support of the Information; an affidavit of the affected client; an affidavit from affected counsel as to fees charged and the history of payment. None of the deponents were called for cross-examination.
9 The practitioner relied on the evidence contained in his affidavit, and affidavits comprising testimonials from a former barrister Paul Evans, a solicitor Richard Brennan, a solicitor David John Coleman, and a medical practitioner Thomas Patrick Sheehan.
10 The Law Society also placed in evidence bank account records relating to the account operated by the practitioner into which the money in issue was paid, covering activity over the period 21 June 1999 (the pay-in occurred on 24 June 1999) to 1 September 1999.
11 The practitioner was cross-examined by the Law Society.
12 There were submissions on behalf of the Law Society by Mr I Wales SC and for the practitioner by Mr R S Cuddy.
13 An Earlier Matter: It will be seen that the present case involves similar conduct to that found proven in an earlier case involving the practitioner: Law Society of New South Wales v McCarthy [2002] NSWADT 58 (23 April 2002). It was not made clear why the present matter was not joined to the earlier proceedings. The allegation giving rise to the present matter was known to the Law Society as at 8 March 2000. The earlier Information was filed on 17 November 2000.
14 The Tribunal found the practitioner guilty of professional misconduct and made a number of orders, most importantly that the practitioner be publicly reprimanded, that the practitioner be prohibited from receiving instructions from any person in circumstances where he receives money from a client and that the practitioner’s practising certificate be endorsed with a condition restricting him from acting as a solicitor other than in the course of employment by a solicitor holding an unrestricted practising certificate. The order relating to the condition was later varied, with the consent of the parties, by the Appeal Panel. The condition to be endorsed upon the practising certificate was varied to entitle the practitioner to practise on his own account but subject to the following restrictions:
15 The Appeal Panel accepted submissions, not opposed by the Law Society, that the original version of the condition was too restrictive, as the practitioner’s mode of work is to take work from other solicitors on what might be described as a sub-contract basis. For that purpose it was accepted by the Appeal Panel that he needed to have a full practising certificate, as he was not being engaged as an employee.
(i) that he act as a solicitor only in the course of an engagement by another solicitor holding an unrestricted practising certificate
(ii) that his engagement will be under the supervision of the solicitor who sought his services
(iii) that prior to such engagement as referred to in (i) above the legal practitioner make available to the solicitor, for whom he has been requested to undertake work, a copy of these conditions and the Orders of the Appeal Panel made 5 August 2002.
16 The matters found proven by the Tribunal in those earlier proceedings related to failure to pay the counsel’s fees. The counsel’s fees were incurred early in 1997 and the practitioner had been put in funds sufficient to meet those fees by 13 November 1997. The costs agreement with the client was of a usual kind, and did not contemplate or provide, for example, for direct payment by the client of counsel’s fees.
17 There were six barristers affected. The practitioner presented cheques for payment to two of them which were not met on presentation, and failed to pay in a timely way the four others. Ultimately he paid all of them by bank cheque on 8 May 2001. The Tribunal noted at para [41] of its reasons:
18 The Tribunal continued:
‘What the practitioner did with the $17,000.00 [the funds received by November 1997] was never properly explained, rather perhaps the Tribunal is invited to infer that the money was otherwise spent on his practice or for his own personal requirements and there is no doubt that at the relevant time the practitioner was an adjudicated bankrupt, a status of which we do not accept that he informed Mr Whelan [the client] and in relation to which there was no evidence that he informed briefed counsel.’
19 As noted earlier, the conduct was found to constitute professional misconduct. The Tribunal found that the practitioner had held out to the client Whelan that he did have a trust account when he clearly did not have an account, and had never had one. (This representation was not the subject of a formal charge.) Despite those findings, the Tribunal found that charges laid in the Information in respect of s 61 and s 62 were not proven for technical reasons to do with the way in which the Society limited the particulars on which it relied in that regard. The Tribunal’s reasons need not be recounted here.
‘42 The fact is that the practitioner, and even disregarding his bankruptcy status (a very difficult matter to disregard!), had an absolute obligation to pay counsel whom he briefed. There cannot be any argument that, absent an agreement between the person (whether that person be a barrister or otherwise) and the client that the client would pay the person direct and the person agreed with that arrangement, there is clearly a contractual obligation to pay the person instructed. It used to be regarded, at least as regards barristers, as a matter of honour but in more recent economically rational times the obligation to pay counsel rests in contract and also falls within practice rule 32.’
20 As to the relevance of the earlier proceedings to the present matter, the Tribunal accepts Mr Wales’ submission that they are relevant to the extent to which they are a guide to the mental state of the practitioner so far as his awareness of his s 61 obligations are concerned.
21 Present Matter: At hearing Mr Wales for the Law Society emphasised that the third of the charges, that of misappropriation, was seeking to refer to no more than the fact of the payment of the money into the personal account and the subsequent use of the money for purposes other than immediate payment to counsel. It was not seeking to suggest that the practitioner had been engaged in any more heinous conduct.
22 In its earlier decision the Tribunal outlined the practitioner’s professional history and other relevant circumstances: admitted 1973 and employed and then a partner with the one firm, described as a well known and respected firm of solicitors, until 1996; one year as a sole practitioner; and thereafter from February 1997 to date of that decision performing locum work under contract; made bankrupt in 1996 as a result of taxation and investment property difficulties; and considerable expense since that time in connection with a member of the family. He has never had a trust account.
23 In light of the practitioner’s answers to questions asked in cross-examination and by the Tribunal, we are satisfied that:
24 We are satisfied that prior to going to Darwin around 9 June 1999 the practitioner knew that receipt of this cheques was imminent. He had written to the firm responsible for issuing the cheque on 9 June 1999, as follows: ‘We note your client's agreement before the Court, to pay $4200, in costs thrown away by the granting of an adjournment, within 28 days’; and that he asked them therefore to ensure that it was received in his office, accordingly, on or before 14 June 1999.
(a) The practitioner was a highly experienced solicitor, had been a partner for many years, and was well aware of the requirements relating to trust accounts and the handling of moneys received on behalf of clients and payable to third parties.
(b) That he had until 1996 worked in a firm of some size in which there were the usual arrangements for handling settlement cheques, and that it was his practice to ensure that all such cheques were dealt with in compliance with trust account requirements.
(c) He had made an unfettered decision not to operate a trust account in connection with his practice as from April 1999 when he was discharged from bankruptcy. Between 1996, when he became bankrupt and left the partnership, and 1999, he had seen himself as precluded from having a trust account by reason of the Law Society rule that a bankrupt solicitor is not permitted to operate a trust account.
(d) He failed to respond promptly within the 14 days stipulated to the letter from the Law Society formally advising him of its resolution to make a complaint against him over his delay in payment of counsel’s fees (letter dated 16 October 2000). He failed to furnish a written reply until the letter dated 30 November 2000 written on his behalf by John Joseph Mannix, consultant solicitor.
(e) The following assertions made in the letter of Mr Mannix had no credible or reasonable basis; one, that counsel had possibly acted pro bono in the court proceedings, and consequently, two, that the practitioner had a possible claim over the $3000 portion of the cheque for $4200 against his client in respect of costs due to him from her. In particular there was no evidence from the practitioner that could possibly give rise to a rational assumption that he could exercise a lien on account of costs due from his client on the amount representing the fees due to counsel.
(f) The practitioner admitted that the assertion in that letter that the practitioner had about $3000 owing on account of costs in the matter was wrong. The statement was untrue. The practitioner could offer no credible explanation as to why he had made such a statement.
(g) The practitioner did not in the reply from Mr Mannix give an account of the circumstances that occurred in relation to the banking of the cheque. The practitioner first advised as to those circumstances in the letter from his solicitor, Mr Cuddy, dated 24 March 2002. He informed the Law Society that the cheque for $4200 was received at his Sydney address at a time when he was absent from Sydney on holiday in Darwin. The cheque was banked into his personal account by his son, with whom he had made arrangements to pick up mail. The practitioner acknowledged at hearing that the son had acted in accordance with his instructions.
25 We do not accept his assertion that he expected the other solicitor to send separate cheques. He made no reference to the possibility in the letter of 9 June 1999, and he produced no other evidence other than his own assertion that he believed he made such an arrangement.
26 We do not accept his evidence that his instructions to his son were merely general ones to place all cheques received while he was away in his personal account. Initially he denied in cross-examination that he had given any special instructions in relation to the cheque in issue. When confronted with bank records showing that the cheque was paid in on 24 June 1999 and there was a special clearance fee marked against it, he acknowledged that the cheque was the subject of a special clearance. We accept the inference which arises that he did give instructions to his son to watch out for this cheque, and have it cleared as soon as possible.
27 The practitioner’s evidence was that he was desperately short of funds at this time. We are satisfied that he did intend to bank the cheque in his own bank account, and then use the funds for his own purposes, and attend to any payment to counsel at some later time.
28 He was referred to a letter of his own to the Law Society dated 21 February 2001. In that letter he claimed that he believed at the relevant time that he had a proper lien. In cross-examination he claimed that he had formed the view that he had a lien in November 1999, five months after the money had been received. He said that his mistaken belief at the time was that any lien extended to money paid on account of counsel. He acknowledged that his final account to his client dated January 2000 for all costs and disbursements incurred on her behalf had been in the sum of $1777. We are satisfied that the practitioner could not reasonably have held any belief that he had a claim in excess of that amount.
29 As to his current work, the practitioner told the Tribunal that
30 He said that if he re-encountered the circumstances that had arisen in this case he would in future make sure that separate cheques were drawn.
‘all the work I am currently doing is for insurance companies, and they draw the cheques payable directly to the people to whom they are going. Insurance companies have a policy where they don't make out cheques to the solicitors for any counsel's fees or others - whether it's doctor's fees or anything else, they make it out directly to the - you have to forward the invoice and they - with an A.B.N. number, and they make the cheques out directly to those people.’
31 The Tribunal asked the practitioner why when he became aware that he was under investigation by the Law Society in relation to the irregularities that affected the payment of counsel’s fees in the 1997 matter that he did not himself bring to notice the present irregularity (of a similar kind) that had occurred during 1999, and that ultimately was the subject of complaint to the Law Society early in 2000. In answer, the practitioner said that there had only ever been two cases since he commenced sole practice in 1996 in which he had acted for plaintiffs, the 1997 matter and the present matter. He seemed to see this answer as somehow explaining his omission in not bringing the other irregularity to attention. The answer, we consider, suggests that the practitioner had given no attention after 1997 as to how he should deal with settlement payments in favour of clients who were plaintiffs in a way which complied with trust account requirements.
32 ‘Wilfulness’: The Tribunal is satisfied that there was a failure by the practitioner to comply with s 61 and s 62, and that the conduct amounted to a misappropriation of funds of the kind suggested by Mr Wales. We turn to the question of whether the practitioner wilfully breached s 61 and s 62.
33 Mr Cuddy said that his client’s belief that there might be a lien arose from the exceptions in s 61(3), one of which ((c)) is that the section
34 Mr Cuddy submitted that the practitioner’s view may have been legally quite wrong and possibly ridiculous, but if he held it he was entitled to the benefit of the doubt as to whether his conduct was wilful.
‘does not affect any enforceable lien or claim that a solicitor has to any money’.
35 Mr Cuddy noted that the term ‘wilful’ is not the subject of any special definition and referred to Re Hodgekiss (1962) 62SR (NSW) 340; 79 WN 163. He submitted that if his client’s evidence were accepted it supported a finding that there was a lack of a subjective intent to contravene the trust account requirements, that he had been mistaken as to his rights, and therefore his client’s conduct could not be found to be ‘wilful’ and as a consequence amount to professional misconduct. He submitted that his client gave general, unqualified instructions as to all cheques, and that the special clearance was simply to be explained by reference to his special need for funds at the time. (The practitioner was at the time receiving the Newstart benefit.) On this hypothesis the special clearance was to be understood as having no special reference to this cheque. We acknowledge that a high standard of proof is required in a matter as serious as this; see Re Hodgekiss per Owen J at WN 168.
36 We have considered these submissions and can not accept them.
37 We agree with Mr Wales for the Law Society that the evidence clearly shows that the practitioner gave instructions as to how all cheques were to be dealt with including one that he knew was imminent, was to be received in a professional capacity and related to a settlement. He was well aware of the obligations that apply to the receipt of such settlement payments. We do not accept that the practitioner had any honest belief at the time the money was received that he had a lien or some other claim of right over the funds due to counsel. He was an experienced solicitor.
38 We also agree with the submission of Mr Wales that a practitioner who might have held such a belief would, once he was asked for an explanation, have acknowledged his mistake and indicated a preparedness to make the payment to counsel. That did not happen in this case.
39 We are satisfied that the Law Society has established to the requisite standard that the practitioner’s contraventions of both s 61 and s 62 were wilful.
40 Accordingly the practitioner is guilty of professional misconduct in respect of the contraventions of s 61 and s 62. We are also satisfied that the Law Society has established to the requisite standard that the money was misappropriated, and that the practitioner is guilty of professional misconduct in that regard.
Findings as to Guilt
41 The Tribunal is also satisfied that the delay in paying counsel’s fees was, in the circumstances, unreasonable and without any adequate explanation. As to the delay, the practitioner has conceded that the conduct amounts to professional misconduct, giving as his reason for that concession the decision of the Tribunal in the earlier matter. We are satisfied that he was guilty of professional misconduct in respect of the length of delay in paying counsel after being put in funds.
42 Mr Cuddy asked the Tribunal to note that while there might not have been a change of heart on his client’s part as to the culpability of his conduct as at November 1999 (when he first responded to the Law Society through Mr Mannix) there was later a change after he had consulted a leading solicitor (Mr Conrad Staff, who is as it happens is a member of the Legal Services Division of the Tribunal) and then accepted that he was mistaken. We accept that the practitioner did have such a consultation and reconsidered his conduct.
Culpability
43 Mr Cuddy saw as significant that the complaint came not from the barrister but from the practitioner’s client. He referred to the client as ‘difficult’. We give this submission no weight. It makes no difference in our view on the question of the appropriate order who complains or what their motive might have been once the culpable conduct is established. The focus at that point becomes the nature of the misconduct and what it says about the practitioner’s current fitness to practise.
44 We accept Mr Cuddy’s submission that the practitioner did eventually rectify the position and paid counsel the fees due; and this must count to a small degree in his favour.
45 Mr Cuddy said that some sympathy should be shown towards a practitioner who was near the end of his career, and was now only seeking to work on a restricted basis, and that an order should be no more serious than the one in the previous matter.
46 We are not satisfied from his appearance before us that the practitioner has, even now, any real appreciation of the gravity of his conduct, or any contrition or remorse for what has occurred. We are not confident that if he were to find himself back in a situation where he was doing plaintiff’s work, or found himself in receipt of substantial trust monies while personally short of money, that he would not be tempted to place the money in a personal account and use it to meet short term personal necessities.
47 We agree with the submission of Mr Wales that there has been a lack of responsiveness and a lack of candour in the way in which he has dealt with the Law Society over this matter. There remains doubt in our minds as to whether the practitioner attaches any degree of gravity to his long delay in paying the fees due to counsel. Whether the third party professional is a barrister, a medical practitioner or some other form of service provider, it is incumbent on a solicitor once placed in funds to meet their accounts in a timely way. The practitioner seems to have difficulty in accepting that an egregious breach of the standard of timeliness might amount to professional misconduct, simply conceding guilt in this case on the basis of the Tribunal’s prior ruling in respect of the 1997 matters rather than out of recognition of the intrinsic strength of the views expressed by the Tribunal on that occasion.
48 As to the Order that should be made by the Tribunal, Mr Wales noted that while the Information had sought an order for striking off, he acknowledged that had this matter been brought forward at the time of the earlier matter, the order on that occasion may not have been any different. For the technical reasons discussed in the earlier decision, the s 61 and s 62 charges were not made out, and that would have left standing only the delays in payment of counsel’s fees. Mr Wales acknowledged that given the small number of instances of misconduct it may have been that a striking order would not have resulted.
The Appropriate Order
49 These submissions, as we understood them, recognised the possibility that the present circumstances were not in their own right sufficient to justify a striking off order, and that remained the case taking into account the earlier matter.
50 Mr Wales submitted that if the Tribunal was not disposed to make an order for striking off, it should at least impose a fine as well as an order for costs. Mr Cuddy referred to his client’s difficult financial position and opposed any fine. He acknowledged that an order for costs was unavoidable. He contended that there was no real possibility that a cheque involving mixed funds would ever come into his hands again. He referred in that regard to the strict limitations placed on the practitioner’s future conduct by the terms now placed on his practising certificate.
51 In our view an order more serious than that made on the last occasion is warranted. As noted earlier, on the last occasion the primary orders comprised a public reprimand, the placement of restrictive conditions on the practising certificate, and an order for costs.
52 We are not satisfied that the misconduct disclosed is so heinous as to render the practitioner unfit to continue to practise. However we do consider that this is a case in which an order of relative seriousness should be imposed. While it may well have been the case that had this charge been joined in the previous Information the practitioner would have possibly only have suffered the lesser penalty that was imposed on that occasion, that should not, we consider, influence our approach on the present occasion.
53 The position in summary, as we see it, is that the practitioner has engaged in like practices two years apart, and (on his evidence) in relation to the only two matters where the possibility presented itself. He has on this occasion been found to have acted wilfully in regard to failing to deal with the payment in conformity with trust account requirements. His explanations for his conduct to the Law Society were for some considerable time in our view implausible. It is, we acknowledge, the case that he eventually paid the money owed to counsel, as eventually occurred in the previous cases. The delay in the present case while not as long as that of the previous case was egregious.
54 We were not satisfied from the account and explanations given by the practitioner for his conduct before the Tribunal that he had come to terms with the seriousness of his misconduct.
55 We recognise that the practitioner’s career was for 23 years from 1973 to 1996 an unblemished one, and that the financial problems that have beset him in recent years may well offer some explanation for the recent misconduct. We accept that he continues to hold the respect of a number of practitioners, and that they have been prepared to engage him subject to the restrictions contained in the last order.
56 Nonetheless we consider that a sanction that more strongly marks the community’s disapproval of his conduct than occurred previously is required.
57 In our view a short period of suspension from practice is warranted. The practising certificate should remain subject to the conditions imposed on the last occasion. The period of suspension will itself affect the practitioner’s ability to earn income. A fine, in addition, would not be appropriate. The usual order for costs will be made.
58 It will be seen that the suspension order provides for some flexibility as to its commencement. We have done this to take account of the possibility that the practitioner may have work in progress that it may be reasonable to give him the opportunity to complete before the period of suspension commences.
59 To avoid any doubt, we note that the following Order is in addition to, not in substitution for, the Order made in the earlier case.
Order
1. The practitioner’s practising certificate be suspended for a period of 3 months commencing on 1 September 2003 or on another date not being later than 1 December 2003 if agreed by the Law Society.
2. The practising certificate entitle the practitioner to practise on his own account subject to the following restrictions:
3. The practitioner pay the costs of the Law Society as agreed or as determined after assessment in accordance with the Legal Profession Act 1987 .
(i) that he act as a solicitor only in the course of an engagement by another solicitor holding an unrestricted practising certificate
(ii) that his engagement will be under the supervision of the solicitor who sought his services
(iii) that prior to such engagement as referred to in (i) above the legal practitioner make available to the solicitor, for whom he has been requested to undertake work, a copy of these conditions and this Order.
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