Law Society of New South Wales v Muir
[2004] NSWADT 61
•03/29/2004
CITATION: Law Society of New South Wales -v- Muir [2004] NSWADT 61 revised - 1/04/2004 DIVISION: Legal Services Division PARTIES: APPLICANT
Council of the Law Society of New South Wales
RESPONDENT
Brian Thomas Gregory MuirFILE NUMBER: 032011 HEARING DATES: 18/11/2003 SUBMISSIONS CLOSED: 11/18/2003 DATE OF DECISION:
03/29/2004BEFORE: Barnes M - Judicial Member; Durbach A - Judicial Member; Taksa L - Member APPLICATION: Professional Misconduct - breach of s. 61 of the Legal Profession Act MATTER FOR DECISION: Principal matter LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: Iliija Danilo Vickovich [1997] ILSTR32
Hodgekiss (1962) 62 SR(NSW) 340
Mayes and Legal Practitioners Act [1974] 1NSWLR19
Law Society of New South Wales –v- Jones (NSW Court of Appeal unreported decision of 17 July 1988)REPRESENTATION: APPLICANT
P Boyd, solicitor
RESPONDENT
R MacDougal, solicitorORDERS: 1. Brian Thomas Gregory Muir be publicly reprimanded; 2. Brian Thomas Gregory Muir pay a fine of $2,500.00; 3. Brian Thomas Gregory Muir is ordered to pay the costs of the Informant of and ancillary to these proceedings.
REASONS FOR DECISION
1 The Council of the Law Society of NSW (hereafter the Council) initiated proceedings by Information on 8 August 2003.
2 Specifically it is alleged that the Solicitor wilfully breached Section 61 of the Legal Profession Act.
3 The Tribunal notes at the relevant time Section 61 provided:
4 Particulars of the Solicitor’s alleged professional misconduct were set out in the first schedule of the Information.
(1) If a solicitor, in the course of practising as a solicitor, receives money on behalf of another person, the person shall:
(2) Money received on behalf of another person by a solicitor, in the course of practising as a solicitor:
(a) hold the money exclusively for the other person, and
(b) ensure that subsection (2) and the regulations are complied with in relation to the money.
(7) A wilful contravention of subsection (1) is professional misconduct
(a) shall, except where the person on whose behalf the money is received otherwise directs, be paid, within the prescribed time, to the credit of a general trust account at a bank in New South Wales and be held in accordance with such regulations as may be in force in relation to trust money.
.....
and in any case shall be disbursed as directed by the person on whose behalf it is held.
......
5 Relevantly it should be appreciated that this Information was not presented before the Tribunal on the basis of any deliberate dishonesty or deceptive conduct by the Solicitor.
6 Nor is there any foundation in the public interest to consider that there is any basis for the Solicitor’s Practising Certificate being cancelled at this time.
7 This Tribunal is a protective jurisdiction and it is comfortably satisfied that the difficulties in the Solicitor’s practice that have bought this matter to the Tribunal’s attention have been addressed.
8 The Solicitor was admitted to practice as a Barrister in February of 1974 and has held various positions prior to entering private practice as a Solicitor in1988 before becoming a sole practitioner in August of 1992. He has continued in private practice thereafter to date. Evidence was adduced as to his good character and his commitment to providing a professional service to his clients.
9 Many of the allegations in these proceedings are agreed and it is important to consider what constitutes a wilful contravention of Section 61.
10 Significant judicial comments have been made in relation to wilful contravention and such authoritative observations include:
11 It is accordingly necessary for this Tribunal to examine the facts and the circumstances relevant to the practitioner’s state of mind, knowledge and intention at material dates.
In the decision in the matter of Ilija Danilo Vickovich [1997]ILSTR32 where the Tribunal at page 36 said:
The dicta of Vickery J were also referred to in the matters of Bryson – Taylor [1999] NSWADT42 and Giuseppe Portale [2001] NSWADT68.
“The wilful contravention of these provisions of section 61 is professional misconduct. In this context the following statement of Maughan J (as he then was) in Re Vickery (1931) 1 Ch 572 at 583 when dealing with the concept of “wilful neglect or default” is relevant.
“A person is not guilty of wilful neglect or default unless he is conscious that, in doing the act which is complained or in omitting to do the act which it is said he ought to have done, he is committing a breach of his duty or is recklessly careless whether is it a breach of his duty or not.”
The Tribunal was referred to Re Hodgekiss (1962) 62 SR(NSW) 340 where Hardie J said:
Hardie J expounded his views further in Mayes Case (Re Mayes and Legal Practitioners Act ) [1974] 1 NSWLR 19 where he said:
“In the instant case the duty of the solicitor to his client is based upon a contractual and fiduciary relationship. Upon that relationship and duty the legislature has superimposed express statutory duties. Breaches of those duties are not made an offence punishable summarily, as are breaches of other sections of the Act. The sanction or penalty provided by the Act is the exposure of the solicitor concerned to the disciplinary and punitive powers of the Court and of the statutory committee in the event of the provisions being breached and such breach or breaches being wilful, and to the exercise by the institute of its powers to cancel or to refuse to renew the solicitor’s practising certificate whether – it would seem – the breaches be wilful or not.
The fact that the duties which form the subject matter of Section 42 are statutory does not render in appropriate or inapplicable the principles laid down in the cases already cited for the determination of the question as to whether there has been “wilful failure” on the part of the solicitor to comply with Section 41 or Section 42. Applying those principles, I am of opinion that the Section deals with personal breaches of the statutory provisions in question on occasions when the solicitor knew or believed he was committing such breaches or was recklessly careless in that regard. It is thus essential in an enquiry as to whether there have been wilful braches by a solicitor of the provisions of ss 41 and 42 to examine the facts and circumstances relevant to his state of mind, knowledge and intention at the material dates.”
In Law Society of New South Wales v Jones (NSW Court of Appeal unreported decision of 27 July 1988) Street CJ said:
“It is well settled law that there can be wilful failure within the meaning of the section without any positive intention to breach the law; breaches committed over a period of time can, in the light of the relevant circumstances, be so substantial and reckless and show such complete indifference on the part of the solicitor to his important obligations to his clients and to the public, as to amount to wilful failure.”
“Reliability and integrity in the handling of trust funds are fundamental prerequisites in determining whether an individual is a fit and proper person to be entrusted with the responsibilities belonging to a solicitor. Members of the public, many of them wholly inexperienced and unskilled in matters of business or of law inevitably must put great faith and trust in the honesty of solicitors in the handling of moneys on their behalf. The Court must ensure that this trust is not misplaced.”
12 It is appreciated that Section 61 of the Legal Profession Act subsequent to the particulars relied upon in this matter has been amended. Whilst not specifically addressed on the issue the Tribunal determines that the provision on which the Solicitor’s behaviour needs to be considered is the provision of Section 61 as at the date of the relevant particulars. However if the Tribunal fell into error in that regard the Tribunal further finds in the alternative:
The Tribunal is satisfied the same issues of construction and application to the findings of fact applies in relation to the phrases “wilful contravention” of the former provision and “wilfully contravene” the current provision.
(a) The amendments give rise to the same factual considerations.
(b) Section 61(8) provides
“It is professional misconduct for a Solicitor to wilfully contravene sub-section (1) or (2)”
13 Particulars of the allegations against the Solicitor relate to five matters he was conducting on behalf of clients.
14 Four of the particulars are very similar in that the Solicitor’s bookkeeper prepared trial balance reports which identified a Trust debit and they involve matters associated with clients K. Fitzpatrick, J. Mariconte, John Bays and A. Le Breton and the preparation by the Solicitor’s bookkeeper of trial balance reports.
15 A further matter involving a separate factual circumstance involves Ms. D. Hellstrom-Roux.
16 The particulars of the matters in the initial group of matters are:
17 The Solicitor’s Reply in relation to the matter involving K. Fitzpatrick the Tribunal accepts the Solicitor instructed his staff to draw an office cheque and he did not notice that it was in fact a Trust cheque.
K. Fitzpatrick
1. The Solicitor employed a person named K. Fitzpatrick.
2. On 15 September 1999 the Solicitor drew a cheque on his trust account in favour of K. Fitzpatrick in the sum of $120.00 thereby creating a debit balance.
3. On many occasions commencing on 2 October 1999 the particulars set out in paragraphs 1 and 2 above were bought to the solicitor’s attention on a monthly basis by his bookkeeper.
4. The debit balance remained uncorrected by the solicitor until 26 June 2000.
J. Mariconte
1. The solicitor acted for a client named J Mariconte (“the client”).
2. As at 13 September 1999 the balance in the client’s trust account was $600.00.
3. On 21 December 1999 the solicitor made a payment in his favour in the sum of $1,433.10, being part of a trust account cheque drawn by him on that day in the sum of $1,938.00.
4. On many occasions commencing 1 January 2000 the fact that the client’s trust account showed a debit balance of $833.10 was bought to the solicitor’s attention on a monthly basis by his bookkeeper.
5. The debit balance remained uncorrected by the solicitor until 26 June 2000.
John Bays
1. The solicitor acted for a client named John Bays (“the client”).
2. As at 13 September 1999 the balance in the client’s trust account was $431.25.
3. On 15 September 1999 the solicitor drew a trust account cheque, in his favour, in the sum of $1,000.00.
4. On many occasions commencing on 2 October 1999 the fact that the client’s trust account showed a debit balance of $568.75 was bought to the solicitor’s attention on a monthly basis by his bookkeeper.
5. The debit balance remained uncorrected by the solicitor until 26 June 2000.
Le Breton
1. The solicitor acted for a client named A Le Breton (“the client”).
2. As at 3 June 1999 the balance in the client’s trust account was $269.00.
3. On 23 June 1999 the solicitor drew a trust account cheque, in his favour, in the sum of $300.00.
4. On many occasions commencing after 30 June 1999 the fact that the client’s trust account showed a debit balance of $31.00 was bought to the solicitor’s attention on a monthly basis by his bookkeeper.
5. The debit balance remained uncorrected by the solicitor until 26 June 2000.
18 The Solicitor similarly admits that between 2 October 1999 and 26 June the monthly balances for his Trust account during the period prepared by his bookkeeper showed an error balance of $120.00 in the Trust Ledger account of B. Muir – “Card opened to correct errors” but otherwise did not admit the allegations. The Solicitor admits the correction did not occur until 26 June 2000.
19 In relation to J. Mariconte the Solicitor made relevant admissions and it is accepted that the sum of $1,433.10 was for costs and disbursements due and owing from the client to the Solicitor. The Solicitor further admits that between 21 January 2000 and 26 June 2000 the monthly balances for his Trust Account during this period prepared by his bookkeeper showed a debit balance of $833.10. He further admits that on 26 June he deposited the sum of $833.10 into his Trust Account.
20 In relation to John Bays the Solicitor admits that between 2 October 1999 and 26 June 2000 a monthly trial balance of his Trust Account prepared by his bookkeeper showed a debit balance of $568.75 and further admits that on 26 June 2000 he deposited the sum of $568.75 into his Trust Account from his own funds.
21 As to A. Le Breton the Solicitor admitted that between 2 October 1999 and 26 June 2000 monthly trial balances for his Trust Account for the period prepared by his bookkeeper showed a debit balance of $31.00. The Solicitor further admits that the debit balance remains uncorrected until 26 June 2000.
22 There is certainly no basis for making a finding of a wilful contravention of Section 61 in relation to any of the circumstances in these four matters that gave rise to the Trust Account being initially placed in debit.
23 The focus of the controversy is upon when was the Solicitor aware of the trust debit, and what steps if any did he take to correct the trust debit and all relevant surrounding circumstance.
24 As to the further matter of Ms. D Hellstrom-Roux the particulars allege:
25 In relation to the matter Ms. D. Hellstrom-Roux by Reply of his Solicitor admits all allegations save for the following qualifications:
Ms D Hellstrom-Roux
1. The solicitor acted for a client named Ms. D. Hellstrom-roux (“the client”) with respect to the sale of the client’s property at Robertson which settled on 25 September 2000.
2. Later the solicitor acted on the purchase by the client of a property at Tomerong.
3. As at 3 October 2000 the balance in the client’s trust account was $5,740.41.
4. On 11 October 2000 the solicitor drew a cheque, in favour of the client, in the sum of $9,297.20 thereby creating a debit balance of $3,556.79.
5. On 28 November 2000 the solicitor forwarded to the client a letter which said in part:
6. On 28 November 2000 the solicitor forwarded to the client a letter which said in part:
PURCHASE OF 18 KELLS ROAD, TOMERONG
We write to advise that settlement of this matter took place on 3 October 2000.... Owing to the state of the property at settlement time $300 was retained by the solicitor for the vendor in trust to provide for plumbing and cleaning accounts as discussed with you. We await further instructions in relation to the plumbing account.
The balance of purchase monies was paid with funds provided by you in the sum of $123,499 with the balance of funds being available from moneys held in trust following receipt of funds from Judy Frisk for which a receipt if attached. We note that stamp duty in the sum of $2,439 was paid out of trust moneys held by us as were other amounts. Unfortunately as the attached statement shows there has been an overpayment to you in the sum of $3,556.79. We apologise for this and note this would have been revealed earlier except that this report was delayed having regard to the need to finalise the amount held in trust by the vendor’s solicitor. We ask that you repay this amount as soon as possible.
7. Between 24 November 2000 and 25 January 2001 the solicitor was requested by a Trust Account Inspector, Mr. G. Napper, to rectify the debit balance.
In accordance with the requirements of the Law Society of New South Wales we hereunder list the transactions which we have undertaken on your behalf from money held in trust in your name during the period 27 September 2000 to 11 October 2000 (Other transactions not listed by Tribunal)
Date Transaction Details Payee Balance
11.10.00 Cheq refund D.Hellstrom-Roux $3556.79dr
post settlement
$9297.20
8. On 18 June 2001 the solicitor forwarded a letter to the Society in which he said:
On 1 February 2001 Mr. Napper prepared a report, a copy of which was forwarded to the solicitor. The report concluded:
“At the date of finalisation of the inspection, the debit balance remained. The practitioner was requested to correct the debit balance and advise when this had been done.”
9. On 10 September 2001 the solicitor forwarded a letter to the Society in which he said:
“2. I agree that there has been delay in rectifying the balances and that I should have paid more attention to the matters raised. For example in relation to the matter involving Hellstrom-Roux which I was fully cognisant of soon after it happened I had hoped to repay the amount by having the client reimburse me, knowing that if I paid the money in as I accept I was required to do I would not then bother to pursue the client. I now simply find it hard to explain how I could take so long to address the issue of redressing the balance and especially in view of the adverse report from the accountant and can only say that my judgment has been somewhat clouded. Since becoming aware of the frightening error in that case I have been very anxious about writing any cheques and certainly will have a much more circumspect approach to the operation of the trust account in the future”.
10. The debit balance remained uncorrected by the solicitor until 29 June 2001.
“I enclose a copy of the trust account receipt giving evidence of my payment of $3,471.80 (in so fare as I ms(sic) able as I cannot in the time available produce the original) towards the sum of $3,556.79 and copy of the bank statement registering the deposit. The balance of the sum was paid from the Cann/Murphy-Cann account”.’
The bank statement forwarded by the solicitor shows the sum of $3,471.80 was deposited to the solicitor’s trust account on 26 June 2001. The sum of $85.00 held by the solicitor in the Cann/Murphy-Cann trust account was transferred on 29 June 2001.
26 The Tribunal finds that there was an overpayment of $3,556.78 to Ms. D Hellstrom-Roux on 11 October 2000.
7.1 The Solicitor is unable to admit or deny the allegation
8. The Solicitor admits that paragraph 8 accurately records part of his letter dated 18 June 2001 and further says that the reasons why did “not then bother to pursue the client” and has not pursued the client was and is because she was of “very meagre resources” as set out in his letter to the Society of 8 August 2002 at page 52 of Mr. Collins’ Affidavit.
27 Further the Tribunal finds this overpayment placed the Trust Account in debit to that amount and was identified by the Trust Account Inspector who bought it to the Solicitor’s attention. This was bought to the Solicitor’s attention on 24 November 2000, 7 December 2000, 18 December 2000 and 25 January 2001 incidental to the Trust Account Inspector’s personal attendance upon the Solicitor’s office.
28 It was further bought to the Solicitor’s attention in an Inspector’s report of 25 January 2001 where there was a handwritten endorsement “please correct current debit balances and advise when this is done”. This clearly included the debit balance regarding the matter of Hellstrom-Roux. The Solicitor did not correct the debit balance until 29 June 2001.
29 It is accepted he corrected the debit from his own funds and the Tribunal accepts that the Solicitor has not sought recourse from his client.
30 The Solicitor in his evidence in particular his Affidavit of 15 October 2003 said:
31 He further said:
“The correspondence flowing from the investigation of that Complaint appears in the Affidavit of Mr. Collins sworn 28 July 2003. In my answers I focus my attention on the debit balances and alleged delay in rectifying the Trust balances. I rely up my correspondent to the Law Society to answer these allegations”.
32 In relation to his letter of 18 June 2001 he relevantly said:
“With regard to this investigation I stated in my correspondence to the Law Society that my delay in rectifying the debit balances was contributed to my personal circumstances and depression. I was going through a period of general stress and finding everything was too much. My marriage of 30 years (I was married in 1967) was falling part and was on and off for a period of 10 years”.
33 No expert evidence was adduced before the Tribunal as to the extent of the nature of the Solicitor’s depressive condition, although there was evidence he remained under treatment. Nor was any expert evidence adduced as to how that condition may from time to time impact upon the Solicitor’s capacity to carry out his obligations.
“The delay reflects my personal circumstances which have been unsatisfactory for some time and on reflection are at the root of the matters complained of as well. Having stopped to review my circumstances at the behest of my mother who arranged for a holiday for me from 3-12 June, I am embarrassed to have to consider how I have performed inappropriately in relation to the complaint.
I hasten to say that this behaviour has not been reserved for the Law Society. It has covered every aspect of my personal and professional life. While I work had as a sole practitioner and if I may say so provide a good and professional service I tend to respond to only immediate issue and as I have become busier in my general practice in which it is difficult to control time I have become less focussed and efficient. I have not been managing myself or the practice as I should even to my own advantage, tending to say “yes” too often and particularly failing to address the issue of unsatisfactory support from my main assistant who is a friend of my daughter. This lack of response has affected every aspect including maintenance of MCLE records, recovery of fees or even issuing bills. The situation has been aggravated by the fact that I have not had anybody for almost two years to assist in managing the practice which has in retrospect affected my capacity and created significant stress.
In addition I am depressive as Patrick Toohey, psychiatrist can indicate. Somewhat unusually I respond to immediate pressures and provide effective service and the depression is to a large extent masked. Since September 1999 there have been a number of personal problems particularly to do with the final breakdown of my marriage which culminated in divorce in August last year, my eldest daughter decompensating, opening a branch office in the country, generally being over-committed in relation to personal and professional activities and since January experiencing physical illnesses and injuries an a general lack of my usual condition. It is only in the last week that I have felt any energy to deal with the myriad of items needing to be addressed in my personal and professional life. I have in relation to a number of issues taken steps since the holiday referred to above to alter the management so that my responsiveness is improved. I have commenced to say “no” to some prospective clients and I have resolved to take no pro bono work other than in the area where I have commenced the branch office.
In relation to the three specific complaints dealing with them ad seriatim I say as follows:
1. I agree that there were long term debit balances as indicated in the report. These debit balances were not created by me intentionally as the reporting accountant also indicates. I was confident that I had not taken any moneys to which I was not entitled and did not pay sufficient attention to the book keeper’s report.
2. I agree that there has been delay in rectifying the balances and that I should have paid more attention to the matters raised. For example in relation to the matter involving Hellstrom-Roux which I was fully cognisant of soon after it happened I had hoped to repay the amount by having the client reimburse me, knowing that if I paid the money in as I accept I was required to do I would not then bother to pursue the client. I now simply find it hard to explain how I could take so long to address the issue of redressing the balance and especially in view of the adverse report from the accountant and can only say that my judgment has been somewhat clouded. Since becoming aware of the frightening error in that case I have been very anxious about writing any cheques and certainly will have a much more circumspect approach to the operation of the trust account in the future.
From my clearer view now I know that I should have paid more attention to the issues raised by the bookkeeper but he did not work in the office from about August 1999 and I tended to put aside dealing with any issues that were not immediate. Looking back I should have made firm arrangements to discuss those issues with him with the records present. In the past when the bookkeeper worked in the office any apparent problems tended to be dealt with immediately and there was usually a direct and simple explanation available. The problem was heightened by there being a distinct communication problem that I had with the bookkeeper at the time and my somewhat natural inertia to deal with anything not immediately pressing.
I can only say in explanation that I have been insufficiently focussed on such matters as the operation of the trust account having regard to the circumstances given on the first page. In hindsight it is easy to be condemnatory of the breaches but this does not take stock of the very real impediments to operating satisfactorily in all areas. In particular I have been insufficiently cognisant of the need to have the form as well as the substance correct. I acknowledge the importance of complying thoroughly and that any breaches are disruptive to all concerned. I hope I now have everything in proper perspective including the rules for the operation of trust accounts and I will review over the next month whether I should continue to operate a trust account at all. I managed without one in years prior to my commencing the trust account and I must have regard to the trouble caused by the inadvertent mistakes complained of in the report and the cost and the general disruption related to its operation.
In explanation I can only repeat what I have said above in relation to the first complaint and indicate my resolve to be more careful and responsive if I continue with the operation of the account.”
34 Turning to the Hellstrom-Roux matter and the issue of “wilful” the Solicitor had knowledge of the debit dating back to 24 November 1999.
35 The Tribunal accepts the Solicitor’s evidence in relation to his sense of embarrassment about raising the over payment with his client and his concern that if he paid the money in to Trust address the issue of the Trust Account debit that he would then take no action to recover it from his client.
36 However the evidence is that the Solicitor had actual notice of the debit and took no remedial steps at all until he paid money into the Trust Account himself on 29 June 2000.
37 Further in the intervening period there was evidence that the Law Society wrote to the Solicitor on 28 March 2001 a letter which was specifically styled as “Complaint against you by the Law Society” and under cover of that letter provided a copy of the report of 1 February 2001 and annexures thereto from the Trust Account Inspector, Gary Napper.
38 The Law Society wrote again on 21 May 2001 noting there had been no response to the letter of 28 March.
39 Further there were discussions in early June and an exchange of letters of 12 June.
40 By 25 January 2001 the Solicitor had been requested to rectify the debit balance on 4 occasions by a Trust Account Inspector.
41 He was on actual notice of the breach by the Trust Account Inspector. He had the guidance by the Inspector it needed to be rectified. He disregarded the Inspector’s requests.
42 To take no action until 29 June leads the Tribunal to be satisfied that the Solicitor was in wilful breach of his statutory obligations.
43 The Tribunal finds that the relevant circumstances demonstrate that the Solicitor did show complete indifference to his important obligations to the public and his clients, so as to amount to wilful failure. In particular the Solicitor’s conduct amounted to a wilful failure by 1 February 2000 in that he had actual notice dating back to at least 24 November 1999.
44 The Tribunal having regard to the Solicitor’s relevant circumstances and the standard of proof considerations is not satisfied that the Solicitor was in wilful breach prior to 1 February 2000.
45 Turning to the other four matters the subject of particulars being K. Fitzpatrick; J. Mariconte; John Bays and A, Le Breton the Tribunal finds relevantly that the bookkeeper who had previously undertaken his duties on a contractual basis within the Solicitor’s premises, at the time of these breaches was not doing so, and had been preparing reports being trial balance reports for the Trust Account and delivering those reports to the Solicitor’s office on a monthly basis. A cursory inspection of the reports would demonstrate that the accounts in this matter alleged to be in debit were in debit. Neither party called the bookkeeper to give evidence in the proceedings. There is no doubt the Solicitor received the reports on a monthly basis.
46 The Solicitor’s evidence was quite clear that he received the trial balance reports and he tended to put them aside to deal with them later. He did not feel there was a sense of urgency and he did not believe in substance he had done anything wrong.
47 It does not matter whether the Solicitor received the reports and did not read them or received them, read them and took no action. The onus is not on the contract bookkeeper to force the Solicitor to take action. Rather the onus is on the Solicitor to read the trial balance reports, consider them and take appropriate action.
48 The Tribunal does appreciate and accepts the Solicitor’s evidence as truthful as to the significant range of personal circumstances identified in the evidence. The Tribunal is not limited to making its determination strictly in accordance with the particulars set out in the Information and if the Solicitor had taken remedial action when the issues were raised with him initially by the Trust Account Inspector then the outcome of these proceedings could well have been different.
49 There is certainly no evidence as to direct discussions between the Solicitor and the bookkeeper.
50 The Tribunal is mindful of the onus of proof in these circumstances and the standards of proof and is not satisfied the Solicitor was wilfully contravening Section 61 prior to 25 January 2001, the date of the last visit by the Trust Account inspector.
51 However certainly thereafter the Solicitor still had not taken remedial action.
52 This failure is simply inexplicable and from the Tribunal’s perspective there should have been a real sense of urgency in terms of the Solicitor’s thinking of the situation by 25 January and certainly at worst by 1 February or very shortly thereafter when he received a typed copy of the Trust Account Inspector’s report.
53 The Solicitor for himself says that in relation to his depressive condition he coped with urgent matters. These Trust account debits were such urgent matters.
54 The Tribunal is accordingly satisfied in these four matters that the Solicitor has offended the provisions of Section 61. The Solicitor had actual knowledge, strong encouragement to take action and still took no action until 16 June 2001. The view of Hardie J in Mayes case has been satisfied. The Solicitor showed complete indifference to his obligations.
55 Turning to the Orders sought by the Council the Council sought a public reprimand and it was submitted on behalf of the Solicitor the circumstance would permit the matter to be dealt with by way of private reprimand.
56 No authorities were adduced to support this submission and the Tribunal whilst not putting it as a matter of universal application considers that the appropriate course in relation to Section 61 breaches is a public reprimand. The importance of Trust Account record keeping and the preservation of the integrity of the Trust Account system is paramount and the entire profession and the wider community needs to be reminded of is pre eminence.
57 The Council sought a fine and whilst a fine of up to $50,000.00 can be ordered, again the Tribunal must act in the public interest and is not motivated by a sense of punishment of the Solicitor.
58 The Tribunal in the public interest considers a fine is appropriate. However, again it is not a punishment. A fine of $2,500.00 is in order. There was no evidence of incapacity to pay or financial hardship for the Solicitor in paying a fine. The figure on one view may be considered modest, however the Tribunal has taking into consideration:
a) The Solicitor has already incurred substantial legal costs of his own and there is evidence that monies have been paid on account of costs and disbursements prior to the hearing in the order of $6,000.00 and the Solicitor acknowledged that he would be, subject to this rights to have his own Solicitor’s bill of costs assessed, be satisfying such fees.
b) The Council seeks an order for costs and the Tribunal will be making such an order.
c) The Solicitor has been unable to deal with certain aspects of his own practice owing to his commitments in conferring with his own Solicitor and attending before the Tribunal and accordingly he has suffered a forfeiture of opportunity to secure fees for his professional services.
59 The Tribunal grants the application for the costs order.
60 In the course of the proceedings several matters arose that the Tribunal considers it appropriate to address.
61 Specifically the Law Society sought to clarify through the evidence of Mr. Napper the relevant Trust Account Inspector that in relation to certain of the trust debits which were alleged in the Information not been corrected until 26 June 2000, were in fact not corrected until 26 July 2000.
62 Instances of this variation were identified for matters such as the Le Breton and Mariconte. Mr. Napper had regard to photocopy records and supported a conclusion that the repayments were not made until 27 July 2000.
63 The Tribunal accepted the witness Mr Napper was doing the best he could in the circumstances, however he acknowledged that it had been a considerable period of time ago, since he checked the records and that it would have been more desirable to reach any conclusions on this issue by reference to the actual original bank statements. Such bank statements were not tendered in the proceedings and these were not available to him at the hearing.
64 The Tribunal is not satisfied to the requisite standard, repayments were not made until 26 July 2000 and relies on the Solicitor’s admissions.
65 That said the Tribunal is not satisfied on the facts anything turns upon whether the debit was adjusted on 26 June or 26 July.
66 Further the Solicitor in his Reply specifically asserted:
67 In final submissions on behalf of the Respondent it was clarified that this aspect of the Reply was not relied upon however it was said it was not relied upon for purposes of the Solicitor having a significant interest in the proceedings being finalised. The Reply was not formally amended to delete the sub-clause from the Reply.
“In answer to the whole of the information, the Solicitor says:
2.1 That the complaint of professional misconduct made on 15 May 2003 occurred in circumstances where the Law Society’s complaint made on or about 28 March 2001 (“the 2001 Complaint”) and later said to constitute unsatisfactory professional conduct is extant.”
68 No authorities were provided in support of this aspect of the Reply and no other submissions were adduced to challenge the jurisdiction of the Tribunal to deal with the Information as filed.
69 Having regard to the evidence adduced the Tribunal is satisfied the Information was appropriately filed and there is no want of jurisdiction in hearing and determining this Information, irrespective of earlier investigation of substantially the same allegations.
PARAGRAPH 66 REVISED 01/04/04 TO CORRECT MISQUOTE FROM SOLICITORS REPLY
0
1