Law Society of New South Wales v McNamara

[2007] NSWADT 162

CITATION:	Law Society of New South Wales v McNamara [2007] NSWADT 162
DIVISION:	Legal Services Division
PARTIES:	APPLICANT The Council of the Law Society of New South Wales RESPONDENT Gerard Michael John McNamara
FILE NUMBER:	072001
HEARING DATES:	5 April 2007 and 30 May 2007
SUBMISSIONS CLOSED:	30 May 2007
DATE OF DECISION:	26 July 2007
BEFORE:	Riordan M - Judicial Member; Cox R - Judicial Member; Costigan M - Non Judicial Member
CATCHWORDS:	Solicitor – Disciplinary application
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 2004
CASES CITED:	Dupal v Law Society of New South Wales, Unreported, 26 April 1990, Court of Appeal, NSW (BC9002508) Jauncey v The Law Society of New South Wales Unreported, 1 February 1989, Court of Appeal, NSW Law Society of New South Wales v Goold [2001] NSWADT 171 Law Society of New South Wales v Jones Law Society of New South Wales v Peck (Statutory Committee 23/04/1981) Law Society of New South Wales v Penfold (1998) 2 LPDR 19 Law Society of New South Wales v Witherdin [2004] NSWADT 237 Unreported, 27 July 1978, Court of Appeal, NSW
REPRESENTATION:	APPLICANT L Pierotti, Solicitor RESPONDENT In person
ORDERS:	1. That Gerard Michael John McNamara be suspended from practice for a period of 12 months.; 2. When Gerard Michael John McNamara, after the expiry of 12 months suspension, first applies to the Law Society of New South Wales for a practising certificate he shall accompany such an application with a medical report by a psychiatrist nominated by the Manager of the Professional Standards Department of the Society. The costs of the assessment and report are to be met by Mr McNamara and no practising certificate is to be issued to him unless [and until] such medical report indicates that the examining doctor is of the opinion that Mr McNamara is fit to resume the practice of law.; 3. For a period of five (5) years [after the expiration of his suspension] during which Gerard Michael John McNamara again holds a practising certificate, any practising certificate so held shall be endorsed with the following conditions:; a) The Solicitor’s right to practice is restricted to that of an employee of a Solicitor holding an unrestricted practising certificate; and; b) The Solicitor is not to operate on any account of any Solicitor that may contain trust funds.; 4. Gerard Michael John McNamara shall pay the Applicant’s costs of and incidental to these proceedings, as agreed or assessed.

Introduction

1 In this matter, the Applicant, the Law Society of New South Wales (“the Society”) made by its Council an Application against the Respondent, Gerard Michael John McNamara (‘the Solicitor’), alleging that he was a legal practitioner within the meaning of the Legal Profession Act 2004 (“the Act”) and that while practising as a Solicitor he was guilty of professional misconduct on two grounds.

2 The Society requested in the Application that the Tribunal make orders as follows:

1. That Gerard Michael John McNamara be suspended from practice for a period of 12 months.

2. When Gerard Michael John McNamara, after the expiry of 12 months suspension, first applies to the Law Society of New South Wales for a practising certificate he shall accompany such an application with a medical report by a psychiatrist nominated by the Manager of the Professional Standards Department of the Society. The costs of the assessment and report are to be met by Mr McNamara and no practising certificate is to be issued to him unless [and until] such medical report indicates that the examining doctor is of the opinion that Mr McNamara is fit to resume the practice of law.

3. For a period of five (5) years [after the expiration of his suspension] during which Gerard Michael John McNamara again holds a practising certificate, any practising certificate so held shall be endorsed with the following conditions:

i. The Solicitor’s right to practise is restricted to that of an employee of a Solicitor holding an unrestricted practising certificate; and

ii. The Solicitor is not to operate on any account of any Solicitor that may contain trust funds.

4. Gerard Michael John McNamara shall pay the Applicant’s costs of and incidental to these proceedings, as agreed or assessed.

3 The Application set out two grounds, supported by particulars, for a finding of professional misconduct against the Solicitor. They were that the Solicitor was guilty of:

a) Misappropriation of Trust moneys; and

b) Misleading the Partners of Braye Cragg.

4 Section 254 of the Act provides:

(1) Subject to Section 258A, as soon as practicable after receiving trust money, a law practice must deposit the money in a general trust account of the practice unless:

(a) the practice has a written direction by an appropriate person to deal with it otherwise than by depositing it in the account, or

(b) the money is controlled monies, or

(c) the money is transit money, or

(d) the money is to be dealt with under a power to receive or disburse money for or on behalf of another person exercisable jointly and severally with the other person or a nominee of the other person.

5 The Solicitor was born on 1 June 1962 and is now 45 years of age. He was admitted to practice on 19 June 1986. He practised as an employed Solicitor for a number of different Firms between 29 January 1987 and 13 June 1994. On 14 June 1994, he was employed by firm of Braye Cragg (‘the Firm’), whose Principals were John Anthony, Frank Maher and Robert McKessar. He was appointed as an Associate of the Firm in 2005. His employment was terminated on 28 April 2006.

6 The conduct of the Solicitor on which the Law Society relies in these proceedings occurred between 18 April 2005 and 17 February 2006 in the course of his employment with the Firm.

7 The Solicitor filed a Reply on 19 February 2007. He did not deny that this conduct occurred or that it amounted to professional misconduct. Accordingly, it is not necessary for the Tribunal to set out in detail the evidence tendered by the Society. A summary of the admitted facts is sufficient.

8 However, the Tribunal notes that on 16 March 2007, the Solicitor filed an Application under Section 75 of the Administrative Decisions Act 1997, in which he sought the following orders:

a) An Order that the hearing be conducted wholly in private;

b) Further and/or in the alternative, an order prohibiting or restricting the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of the Applicant/Respondent Gerard Michael John McNamara, or the doing of any other thing that identifies, or may lead to the identification of that person;

c) Further and/or in the alternative, an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal.

9 The Solicitor swore an Affidavit on 16 March 2007 in support of this Application. However, he formally withdrew that Application at the commencement of the hearing on 5 April 2007. The Tribunal does not propose to discuss this Application, but some of the evidence in that Affidavit is relevant to the issue of penalty and will be discussed in due course.

The Relevant Conduct of the Solicitor

10 The Society relies upon an Affidavit of Raymond John Collins sworn in December 2006 and an Affidavit of Leo Sydney Gore sworn 8 December 2006. Mr Collins was not required for cross-examination. However, Mr Gore was required for cross-examination.

11 In his oral evidence, Mr Gore confirmed that he is an Investigator employed by the Trust Accounts Department of the Society and that the contents of his Affidavit were true and correct. His Investigation Report dated 15 May 2006 and other documents including Statements from the Solicitor, Karen Soper (a Legal Assistant employed by the Firm), and John Anthony and Robert McKessar (Partners of the Firm) were annexed to his Affidavit. He also indicated that he had prepared an Amended report pursuant to Section 270 of the Act, However, this related to recovery of the costs of the Investigation.

12 Mr Gore’s report and the Statement of Robert McKessar indicate that the Solicitor’s day to day duties included preparation of Wills, Powers of Attorney and Guardianship Orders and the carriage of Probate, Conveyancing, leasing and general commercial matters. However, he had never been a signatory to any of the Firm’s bank accounts and he was not authorised to write off debtor amounts on the Firm’s Locus accounting system (which may permit the archiving and closing of client matters from the accounting system).

The Solicitor’s dealings with payments received from clients.

13 Mr Gore reported that on twenty-four occasions between 18 April 2005 and 17 February 2006, the Solicitor received payments in cash on behalf of the Firm. These payments were made by or on behalf of clients of the Firm in order to meet payment of anticipated disbursements that were to be incurred in matters of which the Solicitor had carriage. However, instead of paying these moneys into the Firm’s trust account, the solicitor misappropriated them for his own use. Accordingly, he failed to account for the payments, to hold and disburse them in accordance with the clients’ directions.

14 Mr Gore’s report includes a Table (at Page 4), which sets out the date of instruction in each matter, the name of the client, the relevant matter number and the cash amount received (and subsequently misappropriated) by the Solicitor.

15 This Table has been largely reproduced in the Society’s Application to the Tribunal, although the matter numbers have been deleted. In chronological order the Table contains the following information:

Date of Instruction	Client	Amount
Hardy	$176.00
18/04/2005	Hunter	$198.00
3/6/2005	Wardley	$55.00
28/06/2005	Bell	$198.00
10/07/2005	Williams	$176.00
12/08/2005	Peters	$198.00
16/8/2005	Anderson	$77.00
16/08/2005	Noyley	$100.00
31/08/2005	Smith	$110.00
7/9/2005	Fletcher	$77.00
27/09/2005	Sparkes	$176.00
26/10/2005	Buckley	$165.00
3/11/2005	Burgess	$132.00
15/11/2005	Elvers	$220.00
15/11/2005	Lumsden	$220.00
12/12/2005	Barnes	$110.00
10/01/2006	Brecht	$165.00
11/01/2006	Timpson	$110.00
16/01/2006	Priestly	$200.00
18/01/2006	French	$1,600.00
7/02/2006	McDonald	$99.00
13/02/2006	Irwin	$198.00
14/02/2006	Turnbull	$247.50
17/02/2006	Carroll	$220.00
Total Trust Misappropriations	$5,227.50

16 The total of the twenty-four amounts received by the Solicitor is $5,227.50.

17 While the Application does not specify the purpose for which all of these monies were received, the Solicitor does not dispute that they were trust monies. The Society did present evidence regarding the purpose of the trust payment that ultimately led to the discovery of the misappropriations. This is found in the Statement of Karen Soper dated 9 May 2006, which is an annexure to the Affidavits of Mr Collins and Mr Gore. Ms Soper stated:

On Monday 24 April 2006 I had two phone conversations with the client Betty French who is the Executor in the Estate of Wilfred Walton. Betty French phoned in the morning and I recall that she:
- asked if it was all right to get the house of the deceased cleaned and sprayed for pests as the deceased was elderly and couldn’t clean her house very well. That if she could organise for these things to be done and as she did not have the cash herself to do it, whether we could use the $1,600 cash she gave to Gerard when came in for the first appointment.

- stated that just prior to Winifred Walton death the deceased withdrew $2,000.00 in cash and that she (Betty French) had paid a bill for $400.00 and gave the balance of the cash (1,600.00) to Gerard.

On the morning of Monday 24 April 2006 I looked on the firm’s Locus accounting system to confirm if the money had been paid into trust and found that the matter file had not been opened on the system. I went into Gerard’s office and found the file on his desk and opened the Estate file on the Locus system.

Also on the morning of Monday 24 April 2006 I then asked Gerard about the money and whether the client had brought it in. Gerard said:

She did and I will call her back and look after it.
I asked Gerard again about the money that afternoon. Gerard said:
I have spoken the (sic) Renee in accounts about the money. She said it has been put into the wrong account and she will fix it today.
I had some concerns about what I was told and that day I had a conversation with Renee who told me something (that she had no (sic) spoken to Gerard about the matter).

During the afternoon of Monday 24 April 2006 I phone (sic) the client Betty French and she told me something (that Gerard had called her back and confirmed that she had given him $1,600.00 and that it was ok to go ahead and order the cleaning and pest spray and that we would use the money to pay for these things.

Tuesday 25 April 2006 was a public holiday and I was on leave on Wednesday 26 April 2006. On returning to work on Thursday 27 April 2006 I check the Locus system and the money was not in the account. I reported my concerns to the firm’s Office Manager Michelle Faithfull.

18 On Wednesday 26 April 2007 the Solicitor tendered his resignation, indicating that his last day of duty would be 12 May 2006. His resignation was accepted by the Principals of the Firm.

19 On 27 April 2007 the Solicitor sent an email to Mr Anthony at 9:01am, in which he stated:

I have tendered my resignation to the Partners effective from 12/5/2006 as I have decided to pursue other opportunities. We will be discussing workflow in the near future. I have requested that there be no formal send off. Regards.

20 The Application also alleges that the Solicitor misled the Partners of the Firm, as follows.

On 27 April 2006 the Solicitor and Mr John Anthony, a partner of the Firm, had a conversation in relation to the sum of $1,600 which had been received from Ms Betty French, which had not been banked into the firm’s trust account. During that conversation words to the following effect were spoken:

Anthony: I am concerned about $1,600 cash you received.

Solicitor: It was a cheque and it has gone astray.

Anthony: What I am told it was cash. I want you to go home and think about it. I will see you in the morning.

21 In his Statement dated 10 May 2006 (annexed to Mr Gore’s report), Mr Anthony stated (at page 2):

On Friday 28 April 2006 I had a meeting with Gerard and my partner Robert McKassar (sic) attended.

I said: What about the $1,600 cash paid in the Walton Estate?

Gerard said: I took it.

I said: Are there any other monies that you have taken?

Gerard said: Yes, there are other small amounts on various files, but no other major amount.

I said: Can you tell us the other matters?

Gerard said: If shown the files I am confident that I can identify the matters. To the best of my recollection the other matters were wills, power of attorneys and guardianship orders.

I said: We will need to discuss this with Frank. But I think your employment will be terminated today. You are to have no further involvement with files or clients.

22 This evidence indicates that the Solicitor misled the Partners of the Firm, in that he had not received a cheque for $1,600. He had received the sum in cash and had misappropriated it.

23 On Friday 28 April 2006, the Firm formally terminated the Solicitor’s employment.

On 2 May 2006, Mr Anthony wrote to the Solicitor. He confirmed that his employment had been summarily terminated for serious and wilful misconduct on 28 April 2006, based on his admission on 28 April 2006 that he had misappropriated an amount of $1,600 cash paid by Mrs Betty Doreen French for his own purposes and his further admissions on 28 April 2006 and 1 May 2006 that there may be other files in which he had misappropriated funds, estimated by the Solicitor to be in the vicinity of some $4,000.00. He attached a cheque in payment of the Solicitor’s accrued annual leave and confirmed that the Solicitor had authorised that payment of his long service leave would be adjusted when the full extent of his defalcation had been ascertained.

24 Mr McKessar also provided a Statement that is annexed to Mr Collins’ Affidavit. At page 28 he indicated that the Solicitor attended the Firm on Monday 1 May 2006 and that they began reviewing his opened client files. He stated:

Gerard appeared to have no difficulty identifying client matters where he had taken monies and saying in each case words to the effect:
“I received” then nominating the amount “and I kept it”…

25 Mr McKessar also indicated that on 9 May 2006 Gerard McNamara endorsed his long service leave entitlement cheque in the amount of $6,940.26 to the firm and that amount as agreed has been credited to the firm’s trust account to cover the misappropriated monies.

26 In cross-examination, Mr Gore stated that the Solicitor had been “totally cooperative” with his investigation and that his cooperation assisted the investigation and expedited the time for its completion.

Considerations relevant to penalty

27 The Tribunal is satisfied that this conduct, as admitted by the Solicitor, accords with the allegations stated and particularised in the Application. In a number of transactions, the Solicitor failed to account for monies received from or for the benefit of a client, wilfully breached the requirements of the Act and misappropriated trust monies. He also misled the Partners of the Firm as alleged and particularised in the Application. Having so concluded, we are required by the Act to consider what order or orders by way of penalty we should make.

Submissions by the Law Society.

28 Mr Pierotti, appearing for the Society, submitted that the Committee of the Society had formed a view, based on these events, that it may be possible to discipline the Solicitor without striking him off. He stated that the Tribunal can chastise the Solicitor, but form the view that despite his actions he can remain on the Roll of Practitioners. He formally sought the orders contained in the Application and stated that those orders put in place a regime that would be in place for a period of at least six years, which the Solicitor could not bypass.

29 Mr Pierotti referred the Tribunal to three cases in which the Tribunal determined not to strike off a Solicitor, namely:

a. Law Society of New South Wales v Goold [2001] NSWADT 71;

b. Barry John Penfold [1997] NSWLST 23; and

c. In the matter of Colin Walter Peck (Solicitor’s Statutory Committee – 23 April 1981).

30 We note that in Goold, the Tribunal was concerned with a Solicitor who, in circumstances of significant personal stress, misappropriated moneys totalling $1,500 that he received from a client on account of costs due to the firm that employed him. The Tribunal determined that this single instance of professional misconduct, which the Solicitor admitted, did not necessitate the making of a striking off order. It accepted that the Solicitor had been contrite and ashamed and noted that his employer spoke highly of his competence and integrity. It ordered that his practising certificate should be restricted for a period of three years, preventing him from practising as a principal, and that he pay a fine of $10,000.

31 We further note that in Penfold, the Tribunal took into account that the theft was of a relatively small amount and noted that, although $6,000 was misappropriated, less than $2,500 had been paid by the Solicitor to his own purposes. There was no compounding of that theft by other thefts from other clients to make good the theft from the first client. By the day of confession almost half the money had been repaid and the remainder of the debt to the client was paid within a further eight months. The Solicitor satisfied the Tribunal of his genuine remorse. Further, the Solicitor was bankrupt and virtually unemployed; he had previously been able to make no reserve provisions for his family; the family home had been sold and his personal life and that of his family is deeply affected. It stated:

… the tribunal is inclined to ask the question, as did James QC in the matter of Jauncey , “should the Solicitor be given a sentence of ‘professional death’”? It is clear that, if our task be merely punitive, then there would be no question of what the Tribunal would wish to do. The Solicitor has already been severely punished in a financial, personal and professional sense, and further punishment would seem to serve little purpose. But the law is that the public must be protected and the various decisions quoted to the Tribunal in argument are replete with those observations. The closing words of the Judgment of Starke J in ex parte Lenehan at page 431 are as clearly in point as any. His Honour, having resolved that Lenehan (contrary to the majority decision) should not be re-admitted, observed that the New South Wales Supreme Court was right in concluding that:
… it would be guilty of dereliction of duty if it were to admit the appellant, tainted as he is, as a fit and proper person to be enrolled as a solicitor of the Court and to stand in the ranks of an honourable profession to whom the public might resort or assist in the conduct and management of their affairs with confidence and security.

32 In Peck, the Solicitors Statutory Committee stated:

The Committee finds that the Solicitor has been guilty of professional misconduct and that he is not a fit and proper person to practise as a solicitor on his own account. Having regard to the frankness with the Law Society and this Committee and his contrite approach the Committee finds that after a period of suspension he will be a fit and proper person to practise as an employed solicitor.

33 The Committee ordered that Colin Walter Peck be reprimanded and suspended from practice for a period of two years.

34 However, Mr Pierotti also referred the Tribunal to the decisions of the New South Wales Court of Appeal in Law Society of New South Wales v Jones and Dupal v The Law Society of New South Wales.

35 In Jones, (Unreported decision dated 27 July 1978) His Honour Street CJ stated (at page 10):

Reliability and integrity in the handling of trust funds are fundamental pre-requisites in determining whether an individual is a fit and proper person to be entrusted with the responsibilities belonging to a Solicitor.

36 In Dupal (Unreported decision dated 26 April 1990), His Honour Justice Kirby P stated (at pp 3-4):

The researchers of neither Counsel before the Court could produce a single case in which following a finding of misappropriation of trust funds or wilful contravention of Section 41(1) of the ( Legal Practitioners Act 1898 ) Act, the Court had not proceeded to remove the name of the practitioner concerned from the roll of practitioners… (the) normal consequence of the misuse of entrusted funds by a solicitor, and a finding of wilful breaches of the statutory prohibition in that regard, is removal of the name of the solicitor from the roll.

37 In Dupal, Kirby P referred to Peck (at page 3) and stated:

That was a case where a solicitor, who inherited his father’s practice on retirement, experienced severe financial difficulties when, for want of new instructions the outgoings came to exceed the income. To “keep functioning” he withdrew various amounts from his trust account which he was unable to make good from his own resources. There was a deficiency in his trust account of almost $2,750. He himself drew this to the notice of the Law Society. He disclosed a number of health problems and had numerous character witnesses.

38 His Honour further stated:

I regard the decision in Peck , which is not a decision of this Court as wholly exceptional. True, each case must depend upon its unique facts. But for the reasons which I have stated, the normal consequence of the misuse of entrusted funds by a Solicitor, and a finding of wilful breaches of the statutory prohibition in that regard, is removal of the name of the solicitor from the roll.

39 Mr Pierotti submitted that the relevant question is whether the Solicitor’s conduct makes him a danger to the public. If so, the Tribunal cannot set aside its protective role, but, if he is not a danger to the public, it can set aside that role and make the orders sought by the Society. He argued that the current matter can be distinguished from Dupal, based on the evidence from Mr Gore that the Solicitor was co-operative with the investigation and the evidence of Dr Brash in cross-examination, that the Solicitor’s actions were arguably like those of a man in the surf with his hand up (as if drowning) who was crying out for help.

40 Mr Pierotti also noted that the treating General Practitioner, Psychologist and Psychiatrist were all largely positive about the Solicitor’s condition and their evidence was that the Solicitor had taken pro-active steps regarding his situation. Despite this, there were concerns arising from the Solicitor’s oral evidence that he knew that what he was doing was wrong but that he kept on doing it anyway.

Evidence and Submissions put to us by the Solicitor

41 The Solicitor, who appeared in person, relied upon two Affidavits sworn by him as well as Affidavits sworn by his wife - Susan Margaret Mansfield, Dr Larry Brash, Dr Catherine Riedel and Ms Colleen Wilson and a Professional Commendation that was issued to him by the Firm on 10 December 2004.

42 Mr Pierotti objected to some of the evidence contained in Ms Mansfield’s Affidavit. The Solicitor did not oppose the objections and consented to the controversial evidence not being read. On that basis, Ms Mansfield was not required for cross-examination. The Solicitor, Dr Brash, Dr Riedel and Ms Wilson were required for cross-examination.

43 The Tribunal also notes that additional evidence from the Solicitor is annexed to Mr Collins’ Affidavit, namely his Statement dated 12 May 2006 and his letters to the Professional Standards Department of the Society dated 3 August 2006 and 10 October 2006.

44 While the Solicitor also relied upon a letter from Robert McKessar to the Professional Conduct Department of the Society dated 3 August 2006 (annexed to Mr Collins’ Affidavit), this essentially related to the Section 75 Application.

45 Much of the evidence contained in the Solicitor’s Affidavit sworn on 16 March 2007 and his previous Statements and letters were relevant to the Section 75 Application and concerned the alleged consequences of his professional misconduct rather than the conduct itself. However, we regard the following evidence as relevant to the question of penalty.

46 In his Statement dated 12 May 2006, the Solicitor stated that he and his wife left Sydney following a personal tragedy in 1993 (their prematurely born twin baby boys died).

47 While the Solicitor stated that the Partners of the Firm had always been approachable, he said that he “felt the burden of having to be completely independent in an area of law (Conveyancing, Estates, Commercial) with which I was unfamiliar” and that the Partner that he worked with when he commenced employment in 1994 gave him very little assistance. He was often the only Solicitor in that area for lengthy periods and did not have a colleague to discuss matters with. This made it extremely difficult for him to take holidays. He also “developed a tendency to accept too much work from clients and other solicitors within the office” despite feeling that he was extended too far.

48 The Solicitor said that he began to have serious difficulties at the end of 2003, when the Firm’s commercial lawyer and paralegal resigned within one month of each other. He inherited both of their practices “on top of my own” and felt that he should not have been placed in or accepted this situation. He believed that “the extreme pressures felt at this time triggered the onset of serious clinical depression” and stated:

From this time I felt loss of control, despair and lack of motivation. Unfortunately I began to self-medicate by drinking alcohol to unhealthy levels and gambling – both of which are completely out of character. In particular, gambling of any nature was virtually unknown to me, and indeed, I have had a lifelong aversion to it. I senselessly gambled thousands of dollars of my own money during this time, and acknowledge that I have caused great hurt to my family.

49 The Solicitor said that he initially consulted Dr Pratt, his General Practitioner, in 2002 because he was “feeling a bit down”, but he did not take this any further. He saw Dr Pratt again in 2004 “about depressive symptoms” and he was given the names of some psychiatrists. However, the first doctor that he contacted had closed his books and another could not take an appointment for at least a year. He obtained an appointment with Dr Larry Brash in October 2005. He stated:

Within the last twelve to eighteen months my situation became such that I experienced suicidal thoughts and took some steps towards that outcome. During the worst of this time I began to gamble some money belonging to clients and the firm – this from someone who has always prided himself on honesty and ethics. On these particular occasions it is not overstating to say I did not care whether I lived or died.

50 The Solicitor said that he also consulted Law Care and had telephone consultations with both Lifeline and G Line (counselling for problem gambling) and began to attend Gamblers Anonymous meetings. He said that he found those meetings “extremely beneficial” and that he did not believe that gambling would continue to be a problem for him.

51 In his letter to the Professional Standards Department of the Society dated 3 August 2006, the Solicitor said that during the previous eighteen months he had been debilitated by a chronic form of depression, known as Dysthymic Disorder, which was diagnosed by Dr Brash. He stated:

Only now am I beginning to understand the effects of this illness on my state of mind. The misappropriation occurred in the context of this disorder, resulting in actions that are completely out of character. I had no need to take this money as I had more than this amount freely available from my own funds, but my state of mind during this period was completely irrational. The misappropriated money as well as a large sum of my own was used on a pathological gambling habit which arose during this time and has now ceased. Gambling of any nature had never previously been part of my life. After seventeen years of absolute integrity in the practice of law, I am devastated by this situation and the shock and distress it has caused my colleagues and family.

52 Further in this letter, the Solicitor admitted the misappropriation and its serious nature and stated – “I am ashamed and horrified that it occurred and I wish to express my profound remorse.” He further stated:

At the time of my discussion with Mr Anthony and Mr McKessar of Braye Cragg Solicitors on the 28th April 2006 I estimated the misappropriated funds to be in the vicinity of $4000, with the correct amount later ascertained to be $5227.50. I did not endeavour to understate the extent of the misappropriation and at that time determined to be frank and honest with the partners. Further, I did not endeavour to close any files either after the date of my instruction in each of those matters nor up to the 28th April 2006, in any attempt to conceal the misappropriation. Arrangements were made to repay the money immediately and I voluntarily attended the office for a further two weeks after my termination to identify the relevant files as well as assist in the handover of other files.

53 The Solicitor also admitted that he had misled the partners of the Firm on 27 April 2006 and stated:

I sincerely regret having misled people with whom I had developed a strong and trusting working and personal relationship over a period of twelve years. I believe, however, that this 24 hour period should not be viewed in isolation as it is directly related to the first complaint. I reiterate that I was not thinking clearly at that this. Prior to my illness I would never have remotely considered misleading the Partners, nor in fact any other person.

54 The Solicitor indicated that he was continuing to consult Dr Brash regularly for treatment and was also having counselling sessions with Colleen Wilson, psychologist. He asserted that she had given him greater insight into the causes of his depression as well as developing coping strategies by way of Cognitive Behavioural Therapy and that this had helped him to face the aftermath of these events – “which has been devastating”. He said that he had not been employed “since leaving” the Firm, as he recognised that “recovery time” was required, and that “the extreme anxiety as to the outcome of this matter has placed a huge amount of stress on my family.” He said that he had had a chance to reassess his proprieties and was currently seeking work outside the practice of law and did not anticipate that he would wish to practise law in the foreseeable future.

55 In his letter to the Professional Standards Department dated 10 October 2006, the Solicitor did not object to the orders sought by the Society, but sought the opportunity to discuss the issue of publication.

56 The Solicitor gave oral evidence and stated that his Affidavit sworn 16 March 2007 is true and correct. He said following the termination of his employment, he was unemployed until 14 January 2007. He commenced work with the Department of Defence on 15 January 2007. At the same time, he received an offer from the Department of Health & Ageing, in Sydney, and he left the Department of Defence and commenced employment with the Department of Health & Ageing as a Senior Investigator on 12 February 2007. His probationary period will expire in August 2007. He stated:

This position is a significant upgrade from my current position. Neither position involves the practice of Law but they do utilise some of the practical skills that I obtained through legal practice… Without attempting to predict the outcome of these proceedings, I have no intention of returning to the practice of Law. It is not an exaggeration to say that I am completely traumatised by this experience and need to make a fresh start.

57 The solicitor said that since moving back to Sydney he has consulted a General Practitioner, but “not in relation to the issues involved in this matter”. He had made an appointment to see Dr Wu, a psychiatrist, on 27 June 2007 and said that he intended to have ongoing consultations with Dr Wu “for as long as is recommended”.

58 He described the previous twelve months as “an absolutely terrible time for me and my family” and repeated that he is ashamed of his actions, not because he was caught, but by the reality that his conduct was dishonest and dishonourable.

59 The Solicitor described the Orders sought by the Society as “fair and reasonable”. He expressed concern about calling character evidence “because of the stigma involved” and said that if these events become ventilated in a public forum it would impact on his life and family. However, he did not seek to revive his Section 75 Application and indicated that he intended to make submissions directly to the Society regarding publication of the Tribunal’s decision in The Law Society Journal.

60 By reason of the Admissions contained in the Reply, the Solicitor was cautioned and issued a Certificate under Section 128 of the Evidence Act during cross-examination. He conceded that the Particulars contained in the Schedule to the Application are correct and that the activities in question occurred during the period from 18 April 2005 until 17 February 2006. He further conceded that he knew that his conduct was wrong, but that he continued to do it despite knowing it was wrong and that he knew that it was illegal, improper and dishonourable. He did not attempt to justify his conduct. Rather, he had tried to block a lot of things out of his life and did not think that he had a rational thought process at that time.

61 The Solicitor denied that he was flaunting his misappropriation by not attempting to close the files in an attempt to conceal the misappropriations, but said – “… I suppose I could’ve closed files to try to conceal my conduct.” He agreed that he had also possibly left them open in order to maintain control over them. However, the Tribunal notes that the Solicitor was not a signatory to any of the Firm’s bank accounts and that he was not authorised to write off debtor amounts on the Firm’s Locus accounting system, which may have permitted the archiving and closing of client matters from the Firm’s accounting system. It is therefore doubtful that he could have closed any of the files in an attempt to conceal his misappropriations.

62 The Solicitor confirmed the information contained in his Statements regarding the increase in his workload during 2004. He said that he could not recall the exact numbers involved, but that his file numbers may have increased by about one hundred. He said that he did not put his hand up and say that it was too much for him because it would have looked like a sign of weakness, but he thought it was too much and felt overwhelmed. He did not get a pay rise with the increased workload and said that by April 2006 he earned between $65,000 & $70,000 plus superannuation. There was plenty of work, but “I let it get on top of me.”

63 The Solicitor conceded that there were two complaints relating to professional indemnity issues that involved him. One involved a matter that had been struck out. However, this was restored by the Court based on an Affidavit sworn by one of the Partners regarding his medical condition. The other matter was also struck out, but was not restored by the Court. This has resulted in a claim against the Fidelity Fund.

64 The Solicitor said that he chose to resign and because he “couldn’t handle it and I guess I could see the writing on the wall”. He said that he “could not handle work and hated going to work and being there” and “just needed to get away”. He was seeing Dr Brash at that time. He said that he should have sat down with the Partners and spoken to them, but he didn’t and he did not know why. He knew that he had a drinking problem, but was trying to block things out. He had difficulty explaining things to Dr Brash and didn’t talk to him “about things” initially. He said that he was ashamed and did not know how to tell his wife or his father (also a legal practitioner). He felt like “The dam was bursting”.

65 The Solicitor said that the last misappropriation occurred in February 2006. This was possibly because the treatment was working and he was “starting to get a bit more of a handle on how things were”. However, he still couldn’t countenance talking to the Partners. He conceded that between February 2006 and April 2006, he had done nothing in practical terms to remedy the situation. He agreed that he could have repaid the funds, but said that that this would have meant telling his wife - as the funds would have come from their joint account and she would have known and would have queried the withdrawals.

66 The Solicitor said that the treatment received had been “highly beneficial” and he now feels “able to cope with life’s travails more easily”. Now if he feels down he will do something about it. In the last twelve months, he had seen Dr Brash (in either January or February 2007), Dr Riedel (in January 2007) and Ms Wilson (on 5 September 2006).

67 In relation to ongoing treatment, the Solicitor said that he didn’t want to take time off work from his new job to attend medical appointments and that he felt much better. However, he needed to see Dr Wu. He said that his current job is stressful, but that - “I am dealing with it without going stupid, but the battle isn’t over.”

68 The Solicitor said that he did not feel the need to disclose his past conduct to his current employer, but had honestly told his current employer that he did not have a criminal record and that he suffers from depression. He said that both the current employer and Department of Defence were aware that he was previously a solicitor. He had advised them that he had left under bad terms and that the legal profession was not for him and that it had begun to affect his health. He confirmed that he does not deal with any funds in his current position.

69 The Solicitor was adamant that he did not foresee returning to the legal profession and said – “I’m traumatised by this”. He said that if he was offered a job he wouldn’t take it. Mr Pierotti asked: “What if you were offered your dream job in the legal profession. He replied that if the Orders sought by the Society were made, he would tell the employer but that if he didn’t know the employer it would be fatal to the application.

Evidence of Dr Brash

70 Dr Larry Brash, consultant psychiatrist, gave oral evidence by telephone. He stated that the contents of his Affidavit sworn on 21 March 2007 were true and correct. He confirmed that he had issued three medical reports dated 10 May 2006, 1 August 2006 and 15 February 2007, the contents of which were also true and correct. The tribunal noted that the first two medical reports are annexed to the Affidavit of Raymond Collins.

71 Dr Brash’s qualifications and expertise were not challenged. He stated that the Solicitor suffered from depression and that “the bout of depression” that occurred at or about the time that he first saw him and immediately preceding was brought about by a series of factors, some of which were underlying while others may have triggered an exacerbation of the illness. He felt that the immediate triggering mechanism was the high workload the Solicitor was doing and not really coping with. There were also background issues and he thought that there had probably been a propensity towards getting depression for many years, but the work situation had “triggered it to become worse”.

72 Dr Brash felt that there was a significant risk of the depression “re-energising itself in the future” if the Solicitor was exposed to high pressure or to overwork or work-related stress. However, one of the Solicitor’s previous difficulties was that he tended to “bottle things up and not talk to anyone” and that he was too ashamed and embarrassed to approach anyone about his problems. However, he hoped that if he is in a similar stressful situation again, he may be more open to seeking help earlier and talking to people about it.

73 Dr Brash confirmed that he had prescribed medication for the Solicitor and had increased the dosage to the maximum on 18 August 2006. He thought that the Solicitor was still using alcohol at that time and that the dose may have been a bit low. He had not seen the Solicitor since February 2007, but, as he had “quite a long history of recurring depression”, medication would be looked at as a long term treatment.

74 Dr Brash said that there had been “quite a good improvement” in the Solicitor’s condition over the last year or so that he treated him. While he was “obviously stressed” about the current Tribunal issues, he had a much more positive attitude. He had not tested his cognition in actual detail, but his general impression was that it had improved.

75 Dr Brash stated that the Solicitor told him that the current proceedings were about a complaint of misappropriation. In their first consultation, he said that he had a lot of debt from gambling, but he did not disclose that he had misappropriated moneys until May 2006. He said that he was “not altogether surprised” when he learned this. He said – “… one wonders where the money comes from and unfortunately one hears of people taking money from their employers. So, I guess I was maybe not surprised.”

76 Dr Brash felt that shame and embarrassment were main reasons why the Solicitor did not immediately confide in him and that it sometimes takes a while for a patient and doctor to form that good level of trust. He had only seen the Solicitor twice before he disclosed the misappropriations. He also felt that in the long term, terminating the Solicitor’s employment with the Firm had been better for him - as “it’s got him out of the line of work that he was having difficulty with anyway.”

77 Dr Brash stated that the Solicitor was better off working outside the legal profession. He was aware that he had a job in the Public Service and that he seemed to be quite happy with it. His impression was that he was unlikely to ever go back to working “in law”. He had some reservations as to whether he would cope with the stress of legal practice. However, if help, supervision and professional supervision were in place, he might be able to get back to that line of work.

78 Dr Brash agreed with a proposition put to him by Mr Pierotti, namely that the Solicitor’s actions in not closing the files relating to the misappropriated funds, so that they were left available for people to peruse, could be seen as the actions of “the person out in the surf with his hand up”. He concluded that the Solicitor had “come a long way” from when he first met him in 2005 and that he now has a much greater level of insight and understanding about his behaviour and how he got into the situation in the first place, about the gambling, about the alcohol use. He was initially very reluctant to accept responsibility for them or to accept that they really were a problem, but over time he has in a much better way.

Evidence of Dr Catherine Riedel

79 The Solicitor relied upon an Affidavit of Dr Catherine Riedel sworn on 22 March 2007, to which a copy of her report dated 15 February 2007 was annexed.

80 The Tribunal also heard oral evidence from Dr Riedel by telephone. She stated that her Affidavit and medical report were true and correct. She stated that Dr Pratt had referred the Solicitor to her under the “Better Outcomes of Mental Health Initiative.” She had seen him on seven occasions since May 2006 and formed the view that he was suffering from depression, gambling habit and a prior history of excess alcohol consumption that appeared to be now much better controlled. He told her that she used to drink excessively and that he had significantly reduced it in August 2006.

81 Dr Riedel stated that the clinical notes indicated that the Solicitor saw Dr Pratt on 19 September 2002 regarding symptoms of depression and that he was referred to Dr Stephens. However, there is no reference to medication. There was no mention of the Firm in the notes for his attendance on 1 September 2005. Her notes indicate that on 31 May 2006, the Solicitor told her he required a referral to a psychologist and said that he had ceased his legal job and wanted to find another job. She did not make a specific note about “the problem”, but understood from Dr Pratt that he had taken funds from work and was suffering from depression and gambling. He did not mention alcohol. She believed that Dr Pratt had told her this verbally, but did not note when this occurred.

82 Dr Riedel said that all of her attendances on the Solicitor related to depression. She had last seen him on 20 January 2007 and said that he appeared to be very concerned about his prior predicament and to improve his lifestyle. He was keen to seek professional help (psychiatrist, psychologist) and to improve his lifestyle by taking medication, reducing alcohol consumption and attending appointments. He appeared to comply with treatments and she felt that they were having a positive effect. She felt that he had made significant improvement and that he had improved his situation at home and with himself at work.

Evidence of Colleen Wilson

83 The Solicitor relied upon an Affidavit of Colleen Wilson sworn 28 May 2007. The Tribunal also heard oral evidence by telephone.

84 Ms Wilson confirmed that she had sworn an Affidavit on 28 May 2007 and that its contents were true and correct. She said that she did not have a copy of her Affidavit with her, but that she did have her records relating to the Solicitor. She said that the Solicitor was referred to her on 31 May 2006 for treatment of anxiety & depression. She had seen him on twelve occasions between 20 June 2006 and 5 September 2006.

85 Ms Wilson confirmed that while Dr Riedel referred the Solicitor for treatment of depression, she did not disclose any difficulties with his work. However, the Solicitor told her that he had seen his doctor “because he wasn’t coping and that he had left work. He said that he was under stress at work and had gambling problems and had left work”. He also told her that he had “a great deal of guilt and anxiety about letting himself and his family down” and that the guilt was about “acting in a way that was different to his beliefs and values”. She said that he discussed misappropriation with her during the first consultation and said that “he took money from the firm during the time that he was drinking and gambling”. However, she did not make a specific note about that.

86 On 20 June 2006 she noted that the Solicitor had a great deal of stress in his family life and was not eating. She noted that the “family difficulties” were that he had difficulty talking to his wife about what had happened and that he said that his wife “appeared to be disappointed.” She did not focus on the legal matters when she prepared the treatment plan, but thought that he had been given a choice of resigning from the Firm or being terminated. She believed that his guilt related to “alcohol, gambling taking over his life and taking money from his employer.”

87 Ms Wilson expressed the view that the fact that the solicitor said that he did something that he knew was wrong and that he kept doing it, indicated that he was suffering from depression and that his judgment wasn’t clear. She expressed surprise that she did not know that he had been seeing Dr Brash for several months at that time.

88 Ms Wilson said that she recorded a history of symptoms of a social anhedonia (an inability to experience joy in life) when the Solicitor was an adolescent and that she formed the clinical view that he had a history of melancholia tendencies and had lived with it. However, in a period of stress that can all change. She said that there are triggers that could cause his illness to resurface if he did not recognise the early symptoms. However, she had discussed cognisance with him, including relapse prevention, and had administered Cognitive Behavioural Therapy.

89 At the end of their twelve sessions, Ms Wilson felt that the Solicitor needed monitoring, because there were some difficult issues to deal with, including that he was unemployed and needed to re-establish himself in the work force. She believed that his depression would be ongoing and that if there was a potential trigger he may slip into a depressive episode. She could not state whether he required long-term monitoring, but said that he needed to know that it was available if he needed it. She concluded that she did not form a view about his capacity to practise law again because the Solicitor made it very clear to her that he did not wish to do so again.

Evidence of Susan Margaret Mansfield

90 Ms Mansfield, the Solicitor’s wife, swore an Affidavit on 17 May 2007. This is in essence, to use her words, “a testimonial”. She deposed that the Solicitor’s behaviour and ethics are beyond reproach and that his values of honesty and integrity are among the most prominent aspects of his character. She said that she noticed a marked change in the Solicitor’s demeanour towards the end of 2004 and that he became increasingly stressed and withdrawn. She stated:

He displayed bouts of anger that were completely out of character, and it is not an exaggeration to say that our family felt like they were living with a total stranger. The most frightening symptom during this time was the absolute dead look in his eyes… Gerard sought and received medical help in the form of psychiatric counselling. Despite receiving this assistance, Gerard’s condition worsened dramatically. He became evasive and uncommunicative, spending increased amounts of money. It was during this time that I discovered his gambling problem. This development absolutely floored me. I can not overstate enough that Gerard has had an aversion to gambling, so I could not understand why he had turned to something he had always rejected. I realised the full seriousness of Gerard’s condition when I witnessed actions that led me to fear his condition was becoming life-threatening.”

91 While Ms Mansfield Affidavit contains further evidence, it is relevant to the issue of publication and is not to the question of penalty.

92 In short Submissions, the Solicitor confirmed that he does not allege that he suffered cognitive deficits or that he did not know what he was doing. He accepted that his conduct was wrong and he found it “extremely shocking”. While the medical evidence indicates that he suffered from a depressive illness, he did not seek to downplay the seriousness of his actions because of that illness. He described the period from and after 2004 as an extremely difficult period in his life. However, he ceased taking monies four months before he ceased working at the Firm and felt that this was evidence that the treatment was working.

93 The Solicitor emphasised that he assisted the Society and the Firm for 2 weeks after he was dismissed and that his cooperation had assisted in expediting the investigation and its completion. This was confirmed by Mr Gore in cross-examination.

94 The Solicitor stated that he intends to have ongoing therapy. He had found a job and was confident of holding onto it. He did not want to practice law, but was consenting to a suspension order. He did not regard that as contradictory.

95 The Solicitor invited the Tribunal to distinguish his case from that of Dupal on the basis that his contrition is genuine. He also referred to the decision of Law Society of New South Wales v Witherdin (decision dated 18 October 2004), in which the Tribunal ordered a Suspension in a matter in which there was no apparent medical condition.

Our Conclusions

96 In considering the orders that we should make, we have taken account of the well established principle that the test to be applied in determining whether a practitioner should be struck off the roll is his present unfitness to be on the roll and not unfitness at the time of the professional misconduct that alleged and proved in the proceedings.

97 At first glance, this matter appears to fall within the proposition stated by Justice Kirby in Dupal, regarding the “criteria of general application” to be used by the Court in cases of ‘wilful misuse of the funds of others”. His Honour stated:

They should such as to leave no doubt in the mind of a practitioner in financial difficulties, exposed to the temptation of using without clear authority the funds of another, the consequences that will flow for the right to practice when such misuse of funds is discovered.

98 Also, in this matter, unlike Goold, the Solicitor did not commit a single act of misappropriation. Rather, he engaged in a course of dishonest conduct over a period from April 2005 until February 2006 and misappropriated funds given to him by clients on twenty four separate occasions totalling $5,227.50.

99 Further, the evidence tendered to the Tribunal by way of mitigation included only one testimonial, from the Solicitor’s wife, and none from any fellow practitioner, former clients or other associates of the Solicitor. The Solicitor indicated that he was concerned about calling character evidence “because of the stigma”. However, the fact remains that positive character evidence on his behalf is extremely limited.

100 We are mindful of the decision of in Penfold. Applying Penfold to the current matter, we note that the theft was of a relatively small amount ($5,227.50 in total). Further, the Solicitor endorsed his long service leave entitlement cheque to the Firm on 9 May 2006, so that within a period of twelve days the moneys had been repaid. The Tribunal notes with some concern the Solicitor’s evidence that he could have repaid the money sooner, but did not do so, but that restitution nevertheless occurred shortly after the misappropriations were discovered.

101 The Solicitor has satisfied this Tribunal of his genuine remorse. We also accept that he was unemployed from 28 April 2006, following his summary termination for misconduct, until 15 January 2007. During that time he received ongoing treatment for his depressive illness from Dr Brash and Ms Wilson. He then secured employment with the Department of Defence and is currently employed as a Senior Investigator with the Department of Health & Ageing, in Sydney. Neither of those jobs involved the practice of law and he does not handle any funds in his current position. We therefore accept that the Solicitor has already been severely punished in a financial, personal and professional sense.

102 We agree with the view expressed by the Tribunal in Penfold, namely:

In addition to the obvious benefit to the community which flows from early confession and full restitution, there is public benefit in a clear demonstration to the profession that a single slip from the right path (even if that slip is an act of theft), if made good, not compounded, and expeditiously admitted, does not inevitably mean professional death, because that may mean that those who have given in to temptation may be encouraged to confess and make restitution, rather than start on the more deeply dishonest and devious course of “robbing Peter to pay Paul”. The moral courage demonstrated by timely confession is one of the pointers to a character which is not so flawed it cannot be redeemed.

103 We accept the evidence of Ms Wilson that the Solicitor has a history of melancholia tendencies that he lived with until September 2002, when he suffered depressive symptoms and consulted Dr Pratt seeking treatment. We also accept Dr Brash’s evidence that the trigger for his depression during the period in which the misappropriations occurred was his high workload that he was not coping with. Ms Colleen Wilson felt that the Solicitor’s conduct indicated her that he was suffering from depression and that his Judgment wasn’t clear and Dr Brash described him as the man in the surf with his arm up.

104 The Solicitor also gave evidence, supported by his treating medical practitioners, to the effect that he does not intend to resume the practice of law in the future. However, Dr Brash suggested that he might be able to resume legal practice in the future if certain support mechanisms were in place.

105 We further note the minority decision of his Honour McHugh in Jauncey v The Law Society of New South Wales (unreported decision of the Court of Appeal dated 1 February 1989). That matter concerned an Appeal by the Solicitor against an Order by the Solicitors Statutory Committee removing his name from the Roll of Solicitors. While the Court of Appeal dismissed the Appeal, his Honour Justice McHugh stated:

I have not overlooked the great importance to the administration of justice that a legal practitioner must be a person who can command the respect and confidence of Judges and Magistrates, members of the profession and the public generally. I think that a reasonable person knowing the circumstances of the Appellant’s depressive illness and the opinion of Dr McGuire would not think him unworthy of respect and confidence. In Ziems v The Protonotary (1957) 97 CLR 279 a majority of the High Court saw no difficulty in permitting a barrister to resume practice immediately after he was released from prison after serving a jail sentence for manslaughter.”

106 We also note that in Jauncey, his Honour Justice Clarke said:

…an order for suspension may be appropriate in limited circumstances. This is more likely to arise in cases where an order is made long after the misconduct which demonstrated unfitness occurred and a meritorious degree of rehabilitation extending over the interval between misconduct and the hearing of the case has been shown.

107 In Peck, the Solicitors Statutory Committee stated:

The Committee finds that the Solicitor has been guilty of professional misconduct and that he is not a fit and proper person to practice as a solicitor on his own account. Having regard to the frankness with the Law Society and this Committee and his contrite approach the Committee finds that after a period of suspension he will be a fit and proper person to practice as an employed solicitor.

108 It is the view of this Tribunal that the suspension sought by the Society is appropriate for this Solicitor. It was not considered appropriate for Dupal. However, we accept that the difference in the gravity of their offences and this Solicitor’s established contrition point to the fact that Mr McNamara makes us comfortably satisfied that he is probably not permanently unfit to practice.

109 Of course, we do not condone the Solicitor’s acts of dishonesty and he is properly held up before his peers for castigation. This is a part of his punishment. However, the protection of the public does not require him to be struck off the Roll. Based on the frank evidence of the Solicitor, Dr Brash and Ms Wilson, we are satisfied that the Solicitor is a person who, if faced with the same professional difficulty again today, would take a very different course.

110 In other words, his character is not so flawed that he cannot be trusted again, and indeed is, in our opinion, unlikely to ever again fail to adhere to the high standards of integrity and honesty, which the community rightly expects of the legal profession, if indeed he chooses to further pursue the practice of Law. In our view, the protection of the public is achieved by a substantial period of suspension and the placement of conditions thereafter.

111 We note that the Solicitor does not currently hold a practising certificate.

112 We make the following Orders:

1. That Gerard Michael John McNamara be suspended from practice for a period of 12 months.

2. When Gerard Michael John McNamara, after the expiry of 12 months suspension, first applies to the Law Society of New South Wales for a practising certificate he shall accompany such an application with a medical report by a psychiatrist nominated by the Manager of the Professional Standards Department of the Society. The costs of the assessment and report are to be met by Mr McNamara and no practising certificate is to be issued to him unless [and until] such medical report indicates that the examining doctor is of the opinion that Mr McNamara is fit to resume the practice of law.

3. For a period of five (5) years [after the expiration of his suspension] during which Gerard Michael John McNamara again holds a practising certificate, any practising certificate so held shall be endorsed with the following conditions:

a) The Solicitor’s right to practice is restricted to that of an employee of a Solicitor holding an unrestricted practising certificate; and

b) The Solicitor is not to operate on any account of any Solicitor that may contain trust funds.

4. Gerard Michael John McNamara shall pay the Applicant’s costs of and incidental to these proceedings, as agreed or assessed.