Law Society of New South Wales v Portale

[2001] NSWADT 68

Pending Appeal:

CITATION:	Law Society of New South Wales -v- Portale [2001] NSWADT 68
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Giuseppe Portale
FILE NUMBER:	002003
HEARING DATES:	21/11/2000, 22/11/2000
SUBMISSIONS CLOSED:	11/22/2000
DATE OF DECISION:	05/04/2001
BEFORE:	Hale S - Judicial Member; Currie JS - Judicial Member; Dyster B - Member
APPLICATION:	Professional Misconduct - breach of s. 61 of the Legal Profession Act - Professional Misconduct - fail to keep accounts - Professional Misconduct - prefer own interests to those of others - Professional Misconduct - prepare false documents - Professional Misconduct - wilfully breach a court order
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Allinson v General Counsel of Medical Education and Registration [1894] 1 QB 750 The Law Society of NSW v Foreman (1994) 34 NSWLR 408
REPRESENTATION:	APPLICANT I M Wales SC, barrister RESPONDENT C Evatt, barrister
ORDERS:	1.That the name of Giuseppe Portale be removed from the roll of Legal Practitioners in New South Wales; 2. That the Solicitor pay the costs of the Society to be agreed or as determined by the Tribunal.

1 These proceedings are before the Tribunal following the filing of an Information by the Law Society of New South Wales (‘the Society’) on 24 February, 2000. The claim against the Solicitor is that he was guilty of professional misconduct on the grounds that:

(a) The Solicitor wilfully breached S. 61 of the Legal Profession Act. (Eleven alleged breaches)
(b) The Solicitor prepared false documents
(c) The Solicitor wilfully breached a Court Order
(d) The Solicitor misled or endeavoured to mislead his clients and third parties.
(e) The Solicitor preferred his own interests to those of others.
(f) The Solicitor shared the receipts of his practice with an unqualified person
(g) The Solicitor wilfully breached S. 62 of the Legal Profession Act.

2 Three further alleged breaches of S. 61 were withdrawn by the Society at the hearing

3 The Solicitor admitted all but three of the complaints being the complaint of Ellis (misleading third parties) Bouradas (wilful breach of S. 61) and Francica (wilful breach of S.61 & wilful breach of Court Order) which was admitted in part

4 The evidence in support of the complaints is contained in the Affidavit of Jean Sayer sworn 14 August, 1997, Raymond John Collins sworn 24 February, 2000 and David John Francica sworn 9 October, 2000. The deponents were not required for cross examination apart from Mr. Francica for whom notice was given on the morning the hearing commenced. He was not able to be present on such short notice and his affidavit was tendered on the basis that the Solicitor’s short Affidavit in response was also tendered without objection.

5 For the Solicitor the Tribunal had the benefit of the oral evidence of the Solicitor himself. Also before the Tribunal was the evidence contained in three Affidavits sworn by the Solicitor on 12 February, 1998, and 17 November, 2000 (two) the Solicitor’s Reply to the Law Society dated 16 October, 1995 and a bundle of 9 testimonials from legal practitioners and family members.

6 The particular matters the subject of the complaint are set out as follows:

Towler Estate (wilful breach S61; preparation of false document)

7 The Solicitor acted on behalf of the Executor of the above estate and obtained a Grant of Probate on 13 April, 1994. On l June, 1994 the solicitor received proceeds of bank accounts into his Trust Account totalling $5,244.52. On 29 September, 1994 the Solicitor transferred those moneys from his trust account to his office account. The Society contends the Solicitor had no authority to transfer such funds. The Solicitor admitted that no significant work had been done by him in the estate after 6 June, 1994 on which date a bill had been rendered to the Executor for work undertaken to that date. The Solicitor’s file contained a handwritten draft Bill dated 28.8.1994 for $5,300.00 prepared by the Solicitor and a diary note of the same date “T/A John – he said OK to be paid bal of t/ac monies of $5,300 for all extra work .(word illegible) ¼” The Solicitor’s contention was that the word ”extra” should have been read as “estate” however it is the Tribunal’s view that the word actually reads “extra”

8 The Solicitor admitted that such a telephone conversation never took place and contended that the note had been made on the basis that it set out matters that he intended to raise with the client when he did telephone him. It was put to the Solicitor that the diary note and draft Bill were deliberately prepared to cover his tracks. This was denied by the Solicitor.

Estate Late Charles Francica (wilful breach of S.61, wilful breach of Court Order)

9 The Solicitor acted on behalf of the Executor, Mr David Francica, of the above estate. The Solicitor rendered bills totalling $39,483.04 which sum was transferred from his trust account to his office account on 11 January, 1994. At the foot of the Solicitor’s letter accompanying the Bills the Solicitor had written in his handwriting “I agree to the above.. Dated.. Signed”

10 The Society contended that at the time the Solicitor made the transfer to his office account, he did not have authority to do so. The Solicitor relied on an authority signed by the Executor dated 11 January, 1994 which the Solicitor said was prepared at the time the Executor was in the office on that day.

11 In an Affidavit sworn by Mr. Francica he states “I do not recall signing the authority nor do I recall ever accepting that the sum claimed was properly due to Mr. Portale. At all times, I strongly objected to Mr. Portale claiming such a sum” Mr. Francica also states in the same Affidavit that during the course of the Estate matter, Mr. Portale presented documents for signing to him including two blank pages which he signed saying “What do you want the blank ones for” to which Mr. Portale replied “just in case we need your signature later on for something”

12 The Society put to the Solicitor under cross examination that he had manufactured the authority but the Solicitor vehemently denied this proposition. The Solicitor also swore an Affidavit on 17 November, 2000 denying that he had ever said anything to Mr. Francica about signing blank pieces of paper. As mentioned above, Mr Francica was not available for cross examination.

13 Included in the moneys transferred from trust to office account by the Solicitor were substantial disbursements due to Counsel and a Costs Consultant which the Solicitor failed to pay at the time the transfer of moneys from trust to office account took place. In fact at the time the receiver was appointed in March, 1995 these disbursements had still not been paid to the third persons by the Solicitor. It was the Solicitor’s contention that the reason for the non payment was because the client was disputing the amount of the disbursements and that he was negotiating to obtain a reduction. The solicitor agreed under cross examination that the money which was due to Counsel and the Costs Consultant should have remained in trust.

14 A subsidiary complaint concerning this estate relates to an alleged failure to cause monies to be paid pursuant to a Court order. As at the 31 March, 1994 the Solicitor held $27,009.68 of which an amount of $12,009.68 subsequently became payable to Mr. George Francica pursuant to Family Court Orders dated 12 September, 1994

15 On 20 December, 1994 the solicitor transferred from his trust account an amount of $14,483.04 to a trust account styled “D. Francica-estate motor vehicle accident” and on the same date transferred the funds from that trust ledger account to his office account. The Society contended the Solicitor had no instructions or authority which permitted the transfer of the funds from the estate trust account.

16 As at September, 1994 the solicitor held $24,009.68 in trust account on behalf of George Francica. By Orders of the Family Court made 12 September, 1994 $12,000 of that amount was to be paid to Ms Sharon Louise Cameron and the balance payable to George Francica. On 20 December, 1994 the solicitor transferred an amount of $14,483.04 from the above funds to a trust account styled “D Francica-estate motor vehicle accident account No. 188” On the same day, funds in the amount of $14,483.04 were taken from the lastmentioned account and deposited to the solicitor’s office account.

17 In relation to the said transfers, the Solicitor said that he relied on advice received by him from Ms Ong of the Professional Standards Department of the Society but when it was put to him “Mrs. Ong didn’t tell you that you were entitled to take money to the credit of Mr George Francica and transfer it to Mr. David Francica’s name? the Solicitor replied “She didn’t tell me that, no, I didn’t say that she said that”

Clarence N W Tan & Seumas & T Tan (wilful breach of S.61)

18 The Solicitor acted for Messrs. Tan in relation to their purchase of a home unit. The Solicitor received from the clients a bank cheque for $1200 on account of costs and disbursements and $12,594 payable to the Office of State Revenue. These cheques were deposited to the Solicitor’s office account on 10 August, 1993. It is contended by the Society that the Solicitor had no authority to deposit the funds to his office account.

19 On 8 October, 1993 the Solicitor paid stamp duty in the sum of $12,594 from his office account.

20 Under cross examination, the Solicitor said he did not fully appreciate at the time that it was inappropriate to take moneys to be paid to a third person and pay those moneys into his office account despite the fact that he had been practising for six (6) years and despite the fact that he had undertaken courses in trust accounting. The Solicitor also admitted making changes to the deposit slip which included the cheque payable to the stamp duties office by deleting the reference to “stamp duty” The Solicitor was unable to recall exactly when this was done but thought maybe a month or so after the cheque had been deposited to the office account

Cesar Petersen (wilful breach of S.61)

21 The Solicitor acted for Mr. Cesar Petersen in relation to a claim made against him by the GIO for damage to a motor vehicle. The matter was settled for a sum of $5,500 which amount was paid by Mr. Petersen to the solicitor in cash on 26 August, 1993. This amount was deposited to the solicitor’s office account and on 20 September, 1993 the amount of $5,500 was withdrawn and paid to the GIO.

22 As with the matter of Petersen the Solicitor said he did not appreciate that the money should have been credited to his Trust Account rather than his office account.

Daryl Roy Tonkin (wilful breach of S.61; solicitor misled or endeavoured to mislead his client)

23 The Solicitor acted for Mr. Tonkin in defending proceedings brought against him by the ATO. The Solicitor received from the client an amount of $1000 on account of Counsel’s fees on 25 January, 1994 from which an amount of $380 was paid to Counsel on 2 February, 1994. A further amount of $1000 was received and deposited to the Trust Account on 8 April, 1994 from which Counsel’s fees of $690 were paid on 14 April, 1994 leaving a balance in the trust account of $930.00 on account of Counsel’s fees

24 On 15 July, 1994 the solicitor withdrew the said $930 and deposited it to his office account and prepared a bill of costs on the same day in the same amount. The Society contends that the Solicitor had no authority to transfer the funds to his office account at the time he did so.

25 On 10 August, 1994 a letter was written to the client which stated, inter alia, “we hold $930.00 for you in our trust account” The Society contends this statement was untrue in that on that date there was a nil balance in the trust account.

26 The Solicitor gave evidence to the effect that it was his belief that once he had billed the client, he was entitled to the money and it could go into his office account and that he could pay the disbursements within a reasonable time afterwards but when tested on that point by Counsel for the Society conceded that he did understand it was wrong but he had been confused as he thought the money was his costs and therefore he was entitled to it.

27 In relation to the letter written on 10 August, 1994 it was the Solicitor’s evidence that he had not seen it until the receiver’s report and that it had been written by his employee, Marcus Jafari.

Simon and Jenny Ellis (misleading third parties)

28 The Solicitor acted for Mr. & Mrs. Ellis in respect of the purchase of property at Toongabbie. On 20 December, 1994 St George Bank to whom an application for a loan had been made by Mr. & Mrs.Ellis sent a fax message to the solicitor requesting a receipt confirming that Mr. & Mrs. Ellis had paid a $7,000 deposit. The Solicitor, by handwritten note, instructed his staff to fax to St George Bank a copy of trust account receipt no. 83 in the sum of $12,000. At that time, the amount of $12,000 was not retained in the trust account and the deposit was not paid until 27 January, 1995.

29 Under cross examination the Solicitor relied upon an alleged telephone conversation he had had with St George Bank to the effect that no deposit has been paid nor had any exchange taken place but there had been $12,000 in his trust account but that had been paid as to $5,000 to St George and the rest had been paid for disbursements and that the receipt subsequently faxed to St George Bank confirmed this fact. The Solicitor did not refer to this conversation in his Affidavit and when asked why such an omission had occurred said “I have not referred to it in my Affidavit because……… my Solicitor, did not put it in” The Solicitor did not refer to this conversation in his Reply to the report of Jean Sayer dated 21 June, 1995

Anthoula Bouradas (wilful breach of S.61)

30 The Solicitor acted for Mrs. Bouradas in respect of the finalisation of litigation between her and MLC. Mrs. Bouradas was the recipient of a grant of legal aid. On 5 January, 1994 the solicitor received $3,000 from MLC by way of agreed party and party costs. By letter dated 8 December, 1993 the Solicitor had been instructed by the Legal Aid Commission to either forward the $3,000 to the Commission or retain same in the Solicitor’s Trust Account pending finalisation of the accounting in the matter.

31 The cheque for $3,000 was banked by the Solicitor on 6 January, 1994 to account of Olivieri & Kwok Holdings Pty Ltd a company in which the Solicitor had an interest.

32 The Solicitor contended he had phoned the Commission and obtained authorisation to deal with the cheque in this manner and relied on a file note dated 6 January, 1994 to this effect.The file note did not indicate to whom he had spoken at the Commission nor could the Solicitor recall. On 18 January, 1994 a further letter was received from the Commission noting that the MLC money when received should be retained by the Solicitor in his Trust Account. The Solicitor conceded in his evidence that this second letter was inconsistent with the telephone authorisation referred to above. On 19 September, 1994 a further letter was received by the Solicitor from the Commission dealing with the assessment of costs including the $3,000 held by the Solicitor. Again, this letter was inconsistent with the fact that the Solicitor had already accounted to himself for the $3,000.00.

33 In a file note appearing in the legal aid commission file dated 16 September, 1994 from Miss C. Ridge (the solicitor having carriage of the matter at the Commission) the following appears”

“T/A Joe Portale, Advised him costs assessed at 80 per cent of $8,196.09, had to decide re section 46, would advise and requisition cheque, has $3,000 in trust, authorised him to use that, send cheque for balance”

34 The Solicitor’s explanation for the fact that at the time he spoke to Miss Ridge he did not have the $3,000 in trust was because she was referring to the earlier authorisation. The legal aid file did not contain any file note of a conversation between the Solicitor and an officer of the Commission on 6 January, 1994 as alleged by the Solicitor nor could the Solicitor find any file note in his Bouradas file of a conversation with the commission about the confusion demonstrated by the letter dated 18 January, 1994

Henry John Walton (wilful breach of S.61; preparing false document

35 The Solicitor acted for Mr.Walton in respect of a purchase of property 30 View Street, Woollahra and on 16 September, 1994 rendered an account to the client in the sum of $2,028.00 At that time the Solicitor held $572.00 in his trust account for which no credit was given in the bill rendered. On 6 October, 1994 the Solicitor transferred that sum to his office account. No bill was rendered to the client for this amount and the Society contends that the Solicitor had no instructions to transfer the amount into his office account.

36 The solicitor relied upon a file note dated 5 October, 1994 stating “telephone attendance upon Henry – ok to apply trust account funds towards outstanding costs and disbursements today”

37 The diary note was in the Solicitor’s handwriting but the Solicitor contended that it was not he who had spoken to the client but one of his employees who told him of the conversation. In evidence the Solicitor admitted it was not his practice to write file notes for his employees based on what those employees had been told by clients and conceded that the file note did not make any reference to the fact that it was one of his employees who had spoken to the client.

38 The Solicitor had also on 5 October, 1994 prepared a bill “To our costs (additional)” which totalled $500.00 and miscellaneous disbursements of $72.00. It was common ground that the bill had never been sent to the client. The Solicitor also conceded that the $72.00 did not reflect any actual disbursement which had been incurred.

39 The Solicitor contended “that the money was for costs and disbursements in the other matter” being a proposed purchase despite the fact that the bill on its face clearly referred to the purchase of 30 View Street, Woollahra and used the words “To our costs (additional)”

40 In further evidence the Solicitor conceded that as far as the other purchase was concerned the extent of his involvement was to read the contract and that the computer printout of his ledger indicated no disbursements had been incurred.

Mr & Mrs. G. Tan (wilful breach of S. 61)

41 The Solicitor acted for Mr. & Mrs. Tan in a dispute concerning a lease. The Solicitor on 18 August, 1993 sent Mr. & Mrs. Tan a bill in the sum of $6,879.50 which included profit costs of $3,875 and counsel’s fees of $2,630.

42 The bill was paid by Mr. & Mrs. Tan in instalments which were deposited directly into the Solicitor’s Office Account.

43 The Society contended that the Solicitor had no authority or instructions to deposit the funds to his general account.

44 In respect of counsel’s fees two amounts were paid in March and April, 1994 and an amount of $410.00 remained outstanding to Counsel until July, 1995.

Simon Khoury (wilful breach S.61)

45 The Solicitor acted for Mr. Khoury in a workers compensation claim which was determined by an award in favour of Mr. Khoury made by the compensation court on 21 April, 1994.

46 On 22 July, 1994 the Solicitor received a cheque for $6,734 representing agreed costs and disbursements payable by the respondent The cheque was deposited into the solicitor’s office account notwithstanding that it included $1,126.00 due to Mr. Khoury which was not paid to him until 30 January, 1995 and an amount of $1,133 which was due to counsel and which was not paid until 12 January, 1995. The Society contended that the Solicitor had no instructions or authority to deposit the funds to his office account. The amount also included costs payable to Mr. Khoury’s former solicitors which amount, when agreed in the sum of $1,800 was not paid until 2 March, 1995.

Neil Hanna (the solicitor preferred his own interests)

47 The Solicitor acted for Mr. Neil Hanna in criminal proceedings.

48 In August, 1994 the solicitor rendered Mr. Hanna a bill of costs in the sum of $2,565.00 which included counsel’s fees and agency fees of $1,050 and $370 respectively. Mr. Hanna paid the solicitor all but $1,265 of the amount of the bill. The Solicitor applied the total sum of $1,300 against his own profit costs, leaving counsel’s fees and agency fees unpaid

49 The Solicitor paid the counsel’s and agency fees after the appointment of the receiver to his practice.

Cherd & Esperanza Chadaeng (wilful breach of S.61)

50 The Solicitor acted for Mr. & Mrs. Chadaeng in respect of a proposed purchase of property at Canley Heights. The Solicitor on or before 23 April, 1993 received from Mr. & Mrs. Chadaeng $500 in cash which was not paid into the trust account. The Society contended that the solicitor had no instructions or authority to deposit the funds other than into his trust account.

51 On 23 April, 1993 the solicitor rendered the clients a bill in the sum of $500 which included $165 for a building inspection report. The building inspection report fee had not been paid at the time the bill was sent and it was not paid until 23 July, 1993.

52 The Solicitor also acted for Mr. & Mrs. Chadaeng in respect of a purchase of property at Smithfield. On 8 April, 1993 the clients paid the Solicitor $200 in cash which was not paid into the solicitor’s trust account

53 The Solicitor subsequently rendered a bill of costs in May, 1993 which gave credit for the $200, claimed interim costs of $200 and disbursements of $850. The Solicitor subsequently paid a survey report fee in January 1994 in an amount of $295 but failed to pay the sum of $366.20 either in payment of the balance of disbursements or by way of refund to Mr. & Mrs. Chadaeng.

Alexander and J C Freixas (wilful breach of S. 61)

54 The Solicitor acted for Mr. & Mrs. Freixas in respect of the purchase of property at Leichhardt.

55 On 3 August, 1993 the solicitor received the sum of $2,375 in cash from the clients for payment of stamp duty. The amount was banked to the Solicitor’s office account and the Society contends there was no authority or instruction to deposit the funds in this manner.

56 Stamp duty was not paid until 27 August, 1993 when a cheque was drawn on the Solicitor’s office account

Abel Miranda (sharing receipts)

57 The Society contended that the Solicitor shared the receipts of his practice with an unqualified person, Abel Miranda, in relation to immigration matters. Mr.Miranda in effect worked from the Solicitor’s office. The Solicitor in his Affidavit sworn 12 February, 1998 stated that “Mr. Miranda was never employed by me” but under cross examination appeared to resile from that position. He conceded that Mr. Miranda was paid amounts of money from time to time for work that he did such as translating, filling out forms, etc and that he occasionally signed letters but these were only supposed to be letters to obtain a form or similar purpose.

58 It was common ground that the Solicitor was a registered immigration agent at the time the alleged offences took place.

59 The Solicitor gave evidence to the effect that Mr. Miranda was only involved in immigration matters and that the moneys paid to him came from the fees which the clients paid to the Solicitor.

Section 62 breaches

60 The Solicitor admitted that he failed over long periods of time to maintain his trust account records in accordance with the Act. His explanation was to the effect that although he was aware of his obligations to maintain trust records in accordance with the criteria set out in S.62, he had found this difficult having regard to the manner in which he practised and with managing and employing suitable staff which led to the bookkeeping falling behind.

The Tribunal’s Findings

61 It is professional misconduct for a solicitor to wilfully contravene Section 61 or Section 62 of the Act. The principle relating to the meaning of ‘wilful’ or ‘wilfully’ in this context is stated by Maugham J (as he then was) in Vickery (1931) 1CH572 page 583: “….a person is not guilty of wilful neglect or default unless he is conscious that, in doing the act which is complained of or in omitting to do the act which is said he ought to have done, he is committing a breach of his duty, or is recklessly careless whether it is a breach of his duty or not”

62 The overall impression that the Tribunal gained of Mr. Portale’s evidence was that he was not a straightforward witness and when tested on his own evidence he was at times unwilling to make an admission against his own interest. His explanations tended to be inconsistent with earlier evidence, evasive or lacked credibility. As a consequence the Tribunal does not accept his explanations and finds that the Society has satisfactorily made out its complaints in relation to the matters of Towler, Tan, Petersen, Tonkin, Ellis, Tan Mr. & Mrs. G., Khoury, Walton, Hanna, Bouradas, Chadaeng and Freixas and the Solicitor is hereby found guilty of professional misconduct in relation to those complaints

63 In relation to the Francica matter, given the contradictory evidence of the witnesses and the fact that the Tribunal has not had the benefit of the cross examination of Mr. David Francica, it is unable to make an affirmative finding in respect of these grounds and it makes no determination of unsatisfactory professional conduct or professional misconduct.

64 In relation to the immigration matters (sharing receipts with an unqualified person) the Solicitor admitted (shortly before hearing) that he was involved in sharing receipts with Mr. Miranda and the Tribunal finds this ground of complaint satisfactorily made out.

Professional Misconduct Generally

65 In addition to statutory professional misconduct, it has been conceded by counsel for the solicitor that the solicitor’s conduct has been disgraceful, and that that would be the view of the solicitor’s peers and, that the solicitor’s “…..standards by any means have fallen well below those accepted by fellow practitioners to the extent that the conduct can be said to be disgraceful”

66 The Tribunal believes that the solicitor’s actions satisfy the common law test of professional misconduct, as articulated in Allinson v General Counsel of Medical Education and Registration [1894] 1 QB 750”

The Solicitor

67 The Solicitor was admitted to practice on 3 July, 1987 and worked for Photios, Slater & Co. for a short period and then for Lyons & Lyons from September, 1987 to March, 1993. During this period of employment he worked on files in the general areas of litigation, conveyancing and immigration. In 1992 he attended the Armidale Management Course conducted under the auspices of the Law Society for persons wishing to enter partnership or sole practice and from April, 1993 practised as a sole practitioner until his practising certificate was cancelled in March, 1995

68 Since that time he has sought and gained alternative employment and undertaken various courses and currently holds a Master Licence issued under the Security Industry Act, 1997.

69 As a consequence of a receiver being appointed to his practice he has been required to pay the receiver’s fees in an amount of $55,000.00 which he is currently paying off and he has incurred substantial legal fees in relation to these proceedings. He has also paid the sum of $14,728.51 in relation to Fidelity Fund claims against him arising out of the appointment of the receiver to his practice.

70 In a chronology tendered by Counsel for the Solicitor it can be seen that the offences complained of commenced very shortly after the Solicitor went into sole practice and it was put by Counsel for the Solicitor that “this is a case where the solicitor should not have gone into practice on his own account at that stage” Whilst this was not put forward as an excuse for his behaviour, it was offered by way of explanation for the Solicitor’s lack of understanding of his obligations as far as the trust account was concerned. The Tribunal finds it difficult to accept that a Solicitor of 6 years standing and one whom had recently undertaken the compulsory preparatory course to prepare him for sole practice did not understand the basics of S. 61 and S. 62 of the Act. Furthermore, the offences continued until December, 1994 shortly before the Solicitor’s practising certificate was cancelled.

Conclusion

71 The applicable principles are well settled and may be conveniently found in The Law Society of NSW v Foreman (1994) 34 NSWLR 408 Of particular assistance in this case is the passage at p 444 per Mahoney JA:

The disciplinary jurisdiction remains one concerned with whether the solicitor is a fit and proper person to be held out by the Court as such…..
In deciding whether a person is a fit and proper person for this purpose, the Court may, in accordance with the circumstances, take into account matters going beyond the mere protection of the public against similar misconduct. The Court may consider the character of the practitioner, or those aspects of it relevant to the office of a solicitor. A Solicitor may affirm and sincerely believe that she will not offend again. But the character of the solicitor – demonstrated by the offence or otherwise – may be such that no sufficient reliance can be placed upon that affirmation.
The practitioner may not understand, or be willing to accept, the obligations which the law places upon a solicitor and the high standard of performance which it requires. The Court may not think that in fact misconduct will occur but may be satisfied that the Solicitor did not understand what was required of him……
It is also, I think, relevant for the Court to take into account the effect which its order will have upon the understanding, in the profession and amongst the public, of the standard of behaviour required of solicitors. The Court will no doubt, where appropriate, articulate the standards required and that they are high. However, the Court must, I think, also take into account the effect upon what it has said of, for example, a decision to allow a solicitor guilty of a serious infringement of those standards to continue to practise.”

72 In the light of these principles the Tribunal has given careful consideration to the competing contentions as to the appropriate orders to be made having regard to the whole of the evidence before it.

73 The Solicitor seeks an order that will allow him to practice again, albeit on a restricted basis, however, the Tribunal is not confident that the Solicitor yet understands all that is required of him by the standards of his profession. It is therefore the opinion of the Tribunal that the Solicitor’s infringement of the fundamental standards of his profession is such that he should not be permitted to practice. Accordingly, the Tribunal finds that the Solicitor is not a fit and proper person to remain on the roll of legal practitioners and his name should be removed from the roll.

74 The Tribunal Orders:

1 That the name of Giuseppe Portale be removed from the roll of Legal Practitioners in New South Wales

2 That the Solicitor pay the costs of the Society to be agreed or as determined by the Tribunal.