Law Society of New South Wales v Strong

[2002] NSWADT 71

CITATION:	Law Society of New South Wales -v- Strong [2002] NSWADT 71
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Geoffrey Keith Strong
FILE NUMBER:	002026
HEARING DATES:	12, 13, 14/09/2001; 27/11/2001
SUBMISSIONS CLOSED:	11/27/2001
DATE OF DECISION:	05/03/2002
BEFORE:	Clisdell RJ - Judicial Member; Robinson WL QC -Judicial Member; Bennett C - Member
APPLICATION:	Professional Misconduct - fail to account - Professional Misconduct - misappropriate trust moneys/moneys - Professional Misconduct - prefer own interests to those of others
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Law Society -v- Foreman (1994) 34 NSWLR 408
REPRESENTATION:	APPLICANT P Boyd, solicitor RESPONDENT T Williams, solicitor
ORDERS:	Orders made on 27 November 2001: 1. That the name of Geoffrey Keith Strong be removed from the Roll of Legal Practitioners; 2. That the Solicitor pay the costs of and incidental to these proceedings.

1 This matter came before the Tribunal following a complaint to the Law Society by Leslie Raymond Fleming (Junior) in relation to conduct of the Solicitor when acting for his father Leslie Raymond Fleming who is now deceased. The Law Society appointed Gary Napper to investigate the Solicitor and Mr Napper completed his investigation and report on or about 8 January 1997. On 8 December 2000 the Law Society then laid an Information in the Tribunal under Section 167 of the Legal Profession Act 1987 alleging that the Solicitor was guilty of professional misconduct on the grounds that:

The Solicitor wilfully contravened Clause 23 of the Professional Conduct and Practice Rules.
The Solicitor failed to account for funds under his control.
The Solicitor failed to comply with the provisions of Division 3, Part 7A of the Legal Profession Regulation 1994 relating to controlled money.
The Solicitor misappropriated his client’s funds.
The Solicitor preferred his own interests to those of his client.
The Solicitor took advantage of the vulnerability of his client.

2 The hearing of this matter occupied some four days with oral evidence being given on behalf of the Law Society by the Complainant, Leslie Raymond Fleming (Junior) and Gary Terence Napper. A Statutory Declaration by the late Leslie Raymond Fleming was admitted over objection, being a declaration made in 1996 during the course of the investigation by Mr Napper. Mr Williams objected to the admission of the Statutory Declaration or so much of it as was pressed by Mr Wales (references to allegations of forgery not being pressed by the Law Society) on two grounds. The first ground was that it was inadmissible because of the failure to give adequate notice under Section 67 of the Evidence Act as required by Section 63. The second ground was that it should not be admitted on the basis that it was prejudicial to Mr Strong under Section 135 under the Evidence Act. Mr Williams requested a voir dire in respect of the document by conducting a cross-examination of Mr Napper. After conducting the voir dire and hearing submissions by Mr Williams and Mr Wales, the Tribunal admitted the Statutory Declaration excluding those parts which were not pressed by Mr Wales. The Tribunal was mindful of the prejudice to Mr Strong in admitting the declaration but in the end it became a matter of what weight would be placed upon that declaration. As it turned out because of other evidence in the matter it became unnecessary for the Tribunal to place any weight on the declaration of the late Mr Fleming.

3 The Solicitor, Mr Strong, gave evidence on his own behalf and called another Solicitor Adrian Phillip Holmes and his wife Julie Ann Strong. A number of Statutory Declarations were tendered on behalf of Mr Strong. Some of these dealt with issues regarding the capacity of Mr Fleming including a declaration from Ross Carmen, an Accountant, who interviewed Mr Fleming at the request of Mr Strong in November 1995. He was satisfied that Mr Fleming was aware of all of the transactions being gifts to Gevieson Nominees. There were also a number of Statutory Declarations by way of character evidence.

4 In addition to the declarations and oral evidence a great many documents were attached to Mr Napper’s report and other documents were tendered by both the Law Society and on behalf of the Solicitor.

SOLICITOR/CLIENT RELATIONSHIP

5 By way of background the Solicitor, Geoffrey Keith Strong, was at the relevant time a partner in the Parramatta firm of Coleman & Greig. Mr Strong had become a partner in Coleman & Greig on or about 1 February 1990. The late Leslie Raymond Fleming (Senior) had been a client of Mr Strong prior to him joining Coleman & Greig and current matters involving Mr Fleming’s affairs came to Coleman & Greig with Mr Strong. Mr Fleming (Senior) had inherited a property from his late father which was sold for approximately $2.6 million in September 1990. Half of those funds went to Mr Fleming as a beneficiary.

6 In November 1990 Mr Fleming (Senior) purchased a property at Rouse Hill for $650,000.00. Mr Strong acted for Mr Fleming on the purchase. Mr Fleming’s remaining moneys were held in the trust account of Coleman & Greig, in controlled money accounts or in other investment accounts. Trust account ledgers showed that the firm of Coleman & Greig continued to conduct matters for Mr Fleming (Senior) between 24 June 1991 and 18 September 1995. Although Mr Strong contended that during that period he was not acting as a Solicitor, it is clear from the records produced to the Tribunal that the firm of Coleman & Greig were conducting work for Mr Fleming (Senior) and indeed Exhibits H, J, K & L were accounts from Coleman & Greig to the late Mr Fleming. They were issued using Mr Strong’s reference under file number 911203 and detailed work carried out including the payment of medical bills and the withdrawal of investment moneys for the period up to 12 September 1995.

7 The Tribunal was therefore in no doubt that Leslie Raymond Fleming (Senior) was a client of the Solicitor and a Solicitor/Client relationship existed between them at all relevant times. There were however some aspects of the relationship which marked it as one going beyond the normal Solicitor/Client relationship.

8 Despite owning a house it appears that Mr Fleming chose to reside at the Gazebo Hotel in Parramatta. Sometime in February 1995 Mr Fleming became ill at the Gazebo Hotel and staff at the hotel telephoned the Solicitor to assist in having Mr Fleming transferred to hospital. He was admitted to Westmead Hospital on 18 February 1995 and spent some time in intensive care. He was discharged on 13 March 1995 and after being discharged went to live in a caravan on the Solicitor’s property at Kellyville, where he continued to reside until 1996. Evidence was given that meals were provided for Mr Fleming and amounts paid to the Strongs for board by Mr Fleming. The Strongs also gave Mr Fleming a 50th birthday party.

POWER OF ATTORNEY & USE OF ATM CARD BY SOLICITOR

9 On 7 March 1995 Mr Fleming gave the Solicitor a General Power of Attorney. Earlier, in approximately November 1994 Mr Fleming had given the Solicitor custody of his bank debit card with the National Australia Bank. This allowed the Solicitor to make withdrawals from Mr Fleming’s account. The Solicitor contended that all withdrawals made using Mr Fleming’s card were authorised by Mr Fleming either expressly or impliedly. However during cross-examination the Solicitor admitted that there were some occasions when he had used the card without Mr Fleming’s authority although again he contended that on those few isolated occasions he obtained an authority after the event from Mr Fleming.

10 A great deal of the case turned on the use of this debit card by the Solicitor. There were extensive withdrawals from that account by use of automatic teller machines from 1994 until the card was returned to Mr Fleming in approximately March 1996.

11 Mr Napper’s report contained an analysis of moneys withdrawn from Mr Fleming’s accounts by automatic teller machine and by cash withdrawals over the bank counter for the period 1 October 1994 to 31 May 1996. Those withdrawals totalled $228,676.00. Although the Tribunal was generally not impressed with certain aspects of Mr Napper’s report, the Tribunal was able to rely on the transaction records annexed to that report and other documents tendered to the Tribunal which speak for themselves, or on the other evidence before the Tribunal to assist the Tribunal in making findings. The Tribunal also noted that Mr Strong was not able to produce the accounting records of Gevieson Nominees when called for, despite the fact that a number of those records should have been retained if for no other purpose then for the requirements of the Income Tax Assessment Act.

12 In addition to the sums that were withdrawn over the counter and at automatic teller machines Mr Fleming advanced moneys to the Solicitor’s private company Gevieson Nominees Pty Limited. The first of these advances was on or about 16 December 1994 in an amount of $40,000.00. Mr Strong arranged for Mr Fleming to be independently advised by Mr Adrian Holmes in respect of that loan. Mr Holmes gave evidence and was cross-examined. Of particular significance was Mr Holmes’ evidence that Mr Strong failed to advise him of his Part X arrangement which had been entered into before this loan transaction. It was clear from Mr Holmes’ reaction in giving evidence that he was obviously unaware of that position at the time he gave advice. Tendered to the Tribunal was Mr Holmes’ letter of advice to Mr Fleming and the Tribunal had the benefit of Mr Holmes’ oral evidence. Mr Holmes had been an employee of Coleman & Greig between February 1990 and July 1992 but at the time of giving the advice was a sole practitioner.

13 However that was not the end of advances to Gevieson Nominees Pty Limited. Mr Napper in his report identifies total advances to that company of $129,500.00.

14 In addition to the Solicitor having custody of the debit card, the Solicitor also made large withdrawals on Fleming’s account at the National Australia Bank. Although there was some disagreement about who had signed the withdrawal forms the Tribunal accepts the evidence of the Solicitor that apart from those documents which clearly show that the Solicitor signed on behalf of Mr Fleming, all other signatures are those of Mr Fleming. It is clear that from time to time and on his own admission Mr Strong signed withdrawal forms for cash and bank cheque withdrawals. Included in those amounts under the signature of the Solicitor are the following amounts:

10/05/1995 $25,000.00 to Gevieson Nominees Pty Ltd
(Annexure AA-Napper)

23/06/1995 $2,500.00 to Gevieson Nominees Pty Ltd
(Annexure AH-Napper)

24/08/1995 $35,000.00 to Gevieson Nominees Pty Ltd
(Annexure AM – Napper)

05/12/1995 $17,000.00 to Gevieson Nominees Pty Ltd
(Annexure AW-Napper)

15 It is Mr Strong’s evidence that each of these advances were gifts and not loans. Mr Strong maintained that he had to make all of the withdrawals at automatic teller machines because Mr Fleming refused to do so. They were all authorised by Mr Fleming. In the absence of Mr Fleming it is of course impossible for the Tribunal to determine one way or the other whether or not such authority was given. However in respect of the transaction on 24 August 1995 the Tribunal is able to make a determination that this transaction could not have been authorised by Mr Fleming. The reason for this is that on 24 August 1995 Mr Fleming was in intensive care in Westmead Hospital and sedated. The hospital notes indicate that a rectal tube was inserted. On 23 August Mr Strong had attended Westmead Hospital and had spoken to medical staff. There is a notation in the hospital records for that day which is as follows:

“D/W Mr Fleming’s attorney. – There is every likelihood that the embolisation procedure may not be successful. Under this circumstance Dr Gillespie and I understand and so does the attorney, that no further interventions are possible.
Therefore in the event of further bleeding or a cardio respiratory arrest, CPR protocols are inappropriate and should not be undertaken.”

16 Clearly, Mr Fleming was critically ill and certainly not in a condition to give any authority for a gift to the Solicitor’s company. For the days immediately after 24 August Mr Fleming remained on sedation and was intubated and ventilated. He did not become capable of responding either orally or otherwise until 4 September 1995. The hospital notes at that time record that he responded to his name, did not obey simple commands, was unco-operative, stared into space and verbalised inadequately. On 5 September he was still non communicative and confused and on 7 September underwent speech pathology because of intubation of about 14 days. It was not until 19 September that the hospital notes report a dramatic improvement.

17 In respect of this hospitalisation Mr Fleming was admitted on 22 August. His bank statements which were Exhibit P note the following:

22 August 1995 NAB ATM Parramatta George Street $500.00

24 August 1995 Withdrawal $46,000.00
(this included the $35,000 advance to Gevieson Nominees)

24 August 1995 NAB ATM $500.00

25 August 1995 Deposit $100,000.00
(being a transfer from a controlled money account at Coleman & Greig being a closure of that investment account)

28 August 1995 Withdrawal $86,300.00
(consisting of 3 bank cheques to Australian Tax Office $65,000; Wall Street Travel $20,000 and D Colwell $800)

28 August 1995 ANZ ATM 26th Food Plus Kellyville $200.00

28 August 1995 ANZ ATM 27th Food Plus Kellyville $500.00

30 August 1995 SBN ATM $200.00

30 August 1995 SBN ATM $300.00

31 August 1995 Cuscal ATM George St Parramatta $500.00

1 September 1995 ANZ ATM Food Plus Rose Hill $500.00

1 September 1995 Withdrawal $1,878.86

4 September 1995 ANZ ATM Parramatta $500.00

11 September 1995 Withdrawal $5,285.65

15 September 1995 NAB ATM $500.00

18 September 1995 Cheque withdrawal $1,500.00

18 September 1995 ANZ ATM $250.00

18 September 1995 ANZ ATM $500.00

18 Mr Strong’s explanation for the Wall Street Travel cheque was that Mr Fleming was planning a trip to Canada. In view of Mr Fleming’s condition at that time particularly bearing in mind the Solicitors discussion with medical staff on 23 August, such a contention flies in the face of reality. However, neither the Wall Street Travel cheque nor the ATO cheque were cashed and the moneys were redeposited to Mr Fleming’s account about two months later.

19 Mr Strong contended throughout his evidence that each time he made withdrawals from an ATM he did so at the request and often in the company of Mr Fleming. He claimed that Mr Fleming was profligate with his money, drank heavily and gambled. It is inconceivable that someone in intensive care who is intubated and ventilated could possibly have had any need for the large numbers of cash withdrawals made between the period of 21 August and 18 September.

20 The Solicitor did concede in his evidence that there were some occasions at Thredbo and at Port Macquarie when he had for convenience used Mr Fleming’s debit card to obtain money from automatic teller machines. This was despite the fact that the Solicitor had funds of his own or his wife had funds which were available to him to draw on at that time. In his declarations tendered to the Tribunal as part of his evidence, the Solicitor claimed that he told Mr Fleming about those withdrawals and obtained from him subsequent approval. Of course, Mr Fleming is not available to confirm or deny that subsequent authority. However the Tribunal was not satisfied with Mr Strong’s explanation of each of these transactions. It strongly confirms the suspicion that Mr Strong was using Mr Fleming’s debit card for his own purpose. Clearly the Solicitor could not maintain that these were occasions when Mr Fleming was present, because he obviously was not. What makes these transactions even worse is the fact that in re-examination the Solicitor conceded that these transactions were carried out using Mr Fleming’s debit card for his own convenience.

21 Further when Mr Fleming was admitted to Westmead Hospital in February 1995 he was again in intensive care. Hospital notes record that between 22 February and 28 February he was in intensive care, ventilated and at times intubated. It was not until 7 March that he was capable of leaving the hospital and was not fully discharged until 13 March. However his bank records show that between 22 February and 28 February when he was clearly incapable of giving any instructions and indeed had no need for any moneys, withdrawals were made from ATMs by Mr Strong totalling $1,600.00. Mr Strong gave evidence that Mr Strong needed moneys, even when in hospital, as he was profligate and a gambler. The Tribunal does not believe on the evidence that Mr Fleming had any need for money for the purpose of gambling or otherwise whilst he was in this condition in hospital.

22 Mr Wales, Counsel for the Law Society in this matter, submitted that the evidence particularly of times and dates of withdrawals indicated a pattern by the Solicitor of using the ATM on his way to work and on his way home. Mr Strong gave evidence that he would assist Mr Fleming at all hours of the day including early in the morning, at lunch time and late in the afternoon and go out of his way to make withdrawals for Mr Fleming so that he would have funds available to him. Mr Strong was extensively cross-examined by Mr Wales about these withdrawals but maintained that it was his practice to accompany Mr Fleming to ATMs early in the morning and late at night although that evidence was contradicted by his wife who gave evidence that he did not go out after his return from work in the evening with Mr Fleming to withdraw money. On some of those occasions he would receive money from Mr Fleming after the transactions had been carried out. He conceded that he could not say with certainty that Mr Fleming had accompanied him on all occasions. He rejected the proposition that his secretary could have attended to with withdrawals at the bank for Mr Fleming saying that Mr Fleming did not trust anyone other than Mr Strong.

SUBMISSIONS

23 Mr Wales submitted that the Law Society had established quite clearly a Solicitor/Client relationship. The Society was relying on the evidence rather than any presumption of undue influence in respect of the transactions.

24 Mr Wales submitted that there was clear evidence of Mr Fleming’s physical, psychological and mental disabilities as noted by Mr Napper and by Mr Strong in evidence. In support of the contention that Mr Strong had influence over Mr Fleming, Mr Wales submitted that Mr Strong helped Mr Fleming attend doctors, write letters, take money from the bank and do the things that most of us do on our own. He was living in a caravan at the Solicitor’s residence and depended upon the Solicitor’s family for meals. He had no close friends and there were no common interests between the Solicitor and Mr Fleming.

25 In respect of misappropriation Mr Wales submitted that whether or not it was misappropriation was perhaps irrelevant. He submitted that the Solicitor’s misuse of his influence over Mr Fleming was misconduct of the Allinson kind. He further submitted that the Solicitor’s explanation of withdrawals from the bank by ATM or otherwise could not be accepted. Further the concessions made by the Solicitor about the withdrawals by ATM at Port Macquarie and Thredbo when Mr Strong simply took money because it was convenient to do so, give a strong suggestion that all of the transactions fell into a similar category. He further submitted that a number of withdrawals took place when Mr Fleming was ill, sometimes quite critically ill in hospital. Further the Law Society was relying upon the Solicitor’s offer to repay $300,000.00 to Mr Fleming.

26 Mr Wales submitted that the Solicitor had a strong motivation for his actions. He was on his own admission in a parlous financial position and at times his financial position was desperate. He was unable to pay his Income Tax obligations, his credit card debts, his children’s school fees as they fell due and borrowed large sums from friends to keep himself afloat. He conceded that his income was insufficient to pay his obligations as they fell due.

27 Mr Williams on behalf of the Solicitor urged the Tribunal to accept the evidence on behalf of the Solicitor given both by himself and by the large number of witnesses including Mr Carmen, Mr Colwell, Mr Mathie, Mr Wood, Mr Griffiths and Dr Brunacci, none of whom were cross-examined by the Society. He pointed to the lack of complaint by Leslie Raymond Fleming (Senior).

28 Mr Williams relied mainly on written submissions which had been filed with the Tribunal. In those submissions he raised issues about the unfairness caused to the Solicitor by the Law Society’s delays in bringing this matter to the Tribunal. The unfairness being that during a lengthy delay memories fade or become unreliable, Mr Strong is denied the opportunity of seeking out evidence in material matters and most importantly the death of Mr Fleming.

29 Mr Williams submitted that Mr Fleming was happy to lend money to Mr Strong and was capable of making informed judgments relying on the evidence of Mr Holmes and the Affidavit of Mr Carmen.

30 In respect of Ground 1 Mr Williams submitted that unless transactions can be found to be loans, Clause 23 can have no application. The only loan was that of $40,000.00 to Gevieson Nominees and Mr Williams submitted that Clause 23 had been complied with in respect of that loan.

31 In respect of Ground 2 Mr Williams submitted that Mr Strong was merely a conduit acting as an agent withdrawing funds for Mr Fleming and then passing them on to him. In such circumstances no obligation to account arose.

32 In respect of Ground 3 Mr Williams submitted that for the moneys to be controlled moneys they had to be dealt with by the Solicitor in the course of practising as a Solicitor in this State. Essentially this submission was that the money was not received in the course of practising as a Solicitor and any moneys received by the Solicitor were received as gifts. He also relied on a letter written in December 1995 by Mr Anderson the Professional Liaison Officer of the Law Society who, based on information provided to him by Mr Strong, expressed a view that the bank account was not a controlled money account. If however the Tribunal was of the view that these were controlled moneys the breach was a technical breach only.

33 In respect of misappropriation Mr Williams strongly submitted that all the Law Society had put before the Tribunal was evidence of suspicion. Without the late Mr Fleming it was not possible to characterise any of his behaviour as amounting to misappropriation. He submitted that the unusual nature of the relationship, where Mr Fleming a wealthy and free spending individual had been taken into the care of the Strong family at a time of great need, should not lead to the extraordinary conclusion that a person of Mr Strong’s history and character would have been misappropriating Mr Fleming’s money, rather it should not be unusual that Mr Fleming would wish to be generous to the Strong family.

34 In respect of the final two grounds Mr Williams submitted that Ground 5 could only be established if there was evidence Mr Fleming did not know or was incapable of knowing that Mr Strong or his family or his company were the beneficiaries of amounts received from Mr Fleming’s bank account and that the evidence of that assertion was to the contrary (Mr Carmen & Mr Holmes). In respect of Ground 6 although it was conceded that Mr Fleming abused alcohol, there was no evidence that he was unable to manage his own affairs.

35 Mr Williams also relied on the extensive character evidence submitted on behalf of the Solicitor as to his excellent character and standing in the community.

FINDINGS
Ground 1 – The Solicitor wilfully contravened Clause 23 of the Professional Conduct and Practice Rules.

36 The Tribunal is satisfied that the borrowing by Gevieson Nominees Pty Ltd in December 1994 was effected in accordance with the guidelines required by the Law Society of New South Wales and accordingly the Tribunal does not find any wilful contravention of Clause 23 of the Professional Conduct and Practice Rules alleged in Ground 1 of the Complaint. The Tribunal accepted Mr Williams’ submission that the only loan transaction was that of the $40,000.00 to Gevieson Nominees. Despite the failure of Mr Strong to tell Mr Holmes about his Part X arrangement it is the view of the Tribunal that Mr Strong had complied with Clause 23. That Ground is not established.

Ground 2 – The Solicitor failed to account for funds under his control.

37 It is the finding of the Tribunal that the Solicitor failed to account for the following funds:

(a) Withdrawals between 22 February and 28 February at the automatic teller machine;
(b) Alleged gift to Gevieson Nominees Pty Ltd on 24 August 1995;
(c) Withdrawals both by cash, bank cheque and automatic teller machine between 22 August 1995 and 18 September 1995;
(d) Withdrawals made at ATMs at Thredbo in 1995 on 4 occasions and at Port Macquarie in April 1995 on 2 occasions while the Solicitor was on holidays.

38 Further the Tribunal is satisfied on the evidence that none of those moneys have ever been repaid. That ground is established and amounts to professional misconduct.

Ground 3 – The Solicitor failed to comply with the provisions of Division 3, Part 7A of the Legal Profession Regulation 1994 relating to Controlled Money.

39 The Solicitor failed to keep records, on his own admission, of the withdrawals from the ATMs and the various bank withdrawals by cash and bank cheque. It is the Tribunal’s finding that in respect of all these moneys to which the Solicitor had access via the ATM and otherwise, that there should have been an accounting pursuant to the Regulation relating to Controlled Money. The Tribunal accepts the submissions of Mr Wales in relation to these moneys being controlled money, although it accepts that such a breach was a technical as submitted by Mr Williams. That ground is established and amounts to professional misconduct.

Ground 4 – The Solicitor misappropriated his client’s funds.

40 The Tribunal is satisfied that each of the withdrawals referred to in the findings in Ground 2 and the alleged gift to Gevieson Nominees amounted to misappropriation of Mr Fleming’s funds.

41 Although the Tribunal has grave doubts about other withdrawals and whether or not these were authorised by Mr Fleming it became unnecessary for the Tribunal to make formal findings in respect of those withdrawals given that the Tribunal had found both the admitted withdrawals without authority and the withdrawals clearly made without authority while Mr Fleming was in intensive care amounted to misappropriation. The Tribunal’s suspicions in respect of the other dealings were heightened by correspondence tendered to the Tribunal during the proceedings which contained offers by Mr Strong to representatives of the late Mr Fleming while he was still alive to repay to him amounts of either $250,000.00 or $300,000.00 at various times. In the end, no moneys were ever repaid. Mr Strong in his Affidavit dated 28 August 2001 which in effect repeated what he had said in a letter to McBride Harle Solicitors of Hurstville, says: “I say also that in addition to writing a letter, I said to Mr Fleming words to the effect “I did not take any money from you that you did not give me. I am offering to pay you all of the money that came out of your account, because of my beliefs and because I don’t have any records to show that I did not have the use of it and I feel responsible about that.” He said words to the effect: “You don’t have to give me any money. I am not asking for any money. I don’t have any complaint about anything you did.””

42 The Tribunal doubts whether that was the true reason behind Mr Strong’s offer, but is not comfortably satisfied that on the evidence a finding that each withdrawal from an ATM amounted to a misappropriation of those funds. Nevertheless that ground is established for the reasons set out above and amounts to professional misconduct.

Ground 5 - The Solicitor preferred his own interests to those of his client.
Ground 6 - The Solicitor took advantage of the vulnerability of his client.

43 The Tribunal is comfortably satisfied that each of these remaining grounds has been established. Mr Fleming was in poor health and clearly subject to the influence of Mr Strong. There was extensive evidence before the Tribunal of Mr Strong’s financial difficulties between 1993 and 1998. On two occasions during those years Mr Strong had to enter into a Part X arrangement under the Bankruptcy Act. Although Mr Strong exhibited trappings of success including private school education for his children, expensive motor vehicles and the like, it was apparent from documents tendered to the Tribunal that he was in fact living well beyond his means and in severe financial difficulty. He admitted as much in cross examination. There was a great deal of evidence that Mr Fleming, in addition to his physical problems also had psychological and mental disabilities. Mr Strong himself described Mr Fleming as eccentric, profligate, alcoholic and spent money without regard for tomorrow. He also described Mr Fleming as a person of very strong and often irrational opinions. He agreed that Mr Fleming was in poor health, utterly profligate with money, a hopeless alcoholic, on occasions completely oblivious because of drink and, on occasions, so drunk that he would soil himself. We accept the submission of the Law Society that Mr Fleming clearly was unable to look after his own best interests. We further accept that Mr Fleming was clearly under the influence of Mr Strong. He was living in a caravan at the Solicitor’s residence and depended upon the Solicitor’s family for meals. He had no close friends who came to the house regularly, his wife was dead and he was estranged from his son. He was unwilling to transact the most basic banking business without the assistance of Mr Strong, including the use of an automatic teller machine. Mr Strong and Mr Fleming had no common interests which would otherwise explain the extraordinary steps which Mr Strong says he took on behalf of Mr Fleming. These grounds are established and amount to professional misconduct.

ORDERS

44 Having made these findings the Tribunal then had to determine appropriate Orders. Mr Williams, on behalf of Mr Strong, had tendered a substantial number of character references all of which spoke in glowing terms about the Solicitor. Mr Wales in his submissions pointed out that the Solicitor had not displayed any real contrition or real understanding of what it was that was wrong about his conduct. The Tribunal agrees with that submission. Although Mr Williams on behalf of Mr Strong conceded that his conduct was reprehensible it was clear that Mr Strong in the witness box was unwilling to have his conduct characterised in that fashion and only came to an acceptance of that word with great reluctance.

45 In respect of the excellent testimonials tendered on behalf of Mr Strong, Mr Wales submitted that the evidence of these witnesses does not assist the Tribunal and relied on the findings of the Court of Appeal in Law Society -v- Foreman (1994) 34NSWLR 408 @ 448G-449E. Again the Tribunal while accepting that Mr Strong might be well regarded by clients and associates, the circumstances of this case are extremely serious, the amounts substantial and the influence over Mr Fleming extreme. The Tribunal is of the view that the Solicitor’s conduct is of such a grave nature, particularly in relation to the misappropriations that occurred while Mr Fleming was critically ill in hospital, that for the protection of the public, the only appropriate order was the order proposed by the Law Society that Mr Strong be removed from the Roll of Legal Practitioners. Accordingly the orders made by the Tribunal are:

(1) That the name of Geoffrey Keith Strong be removed from the Roll of Legal Practitioners.
(2) That the Solicitor pay the costs of and incidental to these proceedings.