Law Society of NSW v Paling

[2008] NSWADT 344

CITATION:	Law Society of NSW v Paling [2008] NSWADT 344
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Law Society of New South Wales RESPONDENT William Harold Paling
FILE NUMBER:	072041
HEARING DATES:	12 May 2008 15 October 2008
SUBMISSIONS CLOSED:	17 December 2008
DATE OF DECISION:	24 December 2008
BEFORE:	Karpin A - ADCJ (Deputy President); Bishop C - Judicial Member; Bennett C - Non-Judicial Member
CATCHWORDS:	Solicitor - disciplinary application
LEGISLATION CITED:	Legal Profession Act 2004
CASES CITED:	Prothonotary of New South Wales v P. [2003] NSWCA 320 Prothonotary v Del Castillo [2001] NSWCA 75
REPRESENTATION:	APPLICANT L Pierotti, solicitor RESPONDENT G Walsh, solicitor
ORDERS:	1. The Solicitor is reprimanded 2. The Solicitor shall, within 8 months of being granted a Practising Certificate, [“the specified period”] undertake and pass [with a mark of not less than 50%] courses in ethics and solicitors trust accounting as approved by the Manager of the Professional Standards Department of the Law Society of New South Wales [‘the Manager”] and as then conducted by the College of Law. In the absence of suitable courses being conducted by the College of Law, the Manager shall nominate similar courses to be undertaken. Such courses may be undertaken personally or on line 3. Should the solicitor fail to comply with order 2 within the specified period, any Practising Certificate then issued to the solicitor shall be cancelled forthwith upon the expiration of the specified period, and no further Practising Certificate may be issued until such time as the said courses have been completed and passed 4. For a period of five (5) years during which the Solicitor again holds a Practising Certificate [“the period”], any Practising Certificate so held, shall be endorsed with the following conditions: (a) The Solicitor’s right to practice is restricted to that of an employee of a Solicitor holding an Unconditional Practising Certificate (b) The Solicitor is not to have access to or be signatory to or operate any account conducted by his employer or client of his employer with any financial institution (c) The Solicitor shall continue consulting Dr. John Albert Roberts at the rate of not less than one consultation every 3 months from the date of these orders provided that in the event that Dr. Roberts is unwilling or unable to continue consultations with the Solicitor, then the Solicitor is to consult such other practising specialist psychiatrist who is willing to provide reports in terms of paragraph (d) hereof as the Solicitor may elect from time to time until the expiration of the period and subject to the terms of paragraph (d) hereof (d) The Solicitor shall provide authorisation in writing to Dr. Roberts and to any psychiatrist subsequently consulted by the Solicitor in accordance with these orders, to permit the psychiatrist to report on the consultations with the Solicitor to the Manager, such reports to commence three (3) months after a Practising Certificate is issued to the Solicitor and every six (6) months thereafter, and at such other times as Dr Roberts, or any practising specialist psychiatrist with whom the Solicitor is consulting, may be of the opinion that matters need to be brought to the attention of the Manager (e) The Solicitor is to bring to the attention of his then employer and any psychiatrist upon whom he attends, the Tribunal’s Determination in these proceedings and permit the Manager, in his discretion, to confirm with the Solicitor’s then employer and psychiatrist that he or she is fully conversant with such Determination 5. The Solicitor is to pay the costs of the Law Society of New South Wales as agreed or assessed.

1 The Law Society of New South Wales seeks findings that the respondent, William Harold Paling, be found guilty of professional misconduct on the grounds that he misappropriated monies in two matters.

2 The proceedings are brought pursuant to the provisions of section 551 of the Legal Profession Act 2004.

3 The application filed on 15 November 2007, seeks the following consequential orders:

That the name of the respondent be removed from the Roll of Legal Practitioners;

That the legal practitioner be fined;

That the legal practitioner pay the costs of the Society;

Such further orders as the Tribunal considers proper.

4 The facts relied upon by the applicant Law Society are admitted by the respondent.

5 Following 2 hearing days that included a substantial amount of medical evidence, and after an indication from the Tribunal as to its preliminary vie of the matter, it was agreed that the parties would endeavour to submit consent draft orders. On 31 October 2008, the applicant submitted the orders sought. Those were substantially agreed to by the respondent. However, one area was in dispute. Accordingly, the matter was listed for further submissions on 1 December 2008.

6 Due to difficulties in framing agreed orders, and the failure of the respondent to adhere to his treatment regime, the matter was listed for further argument on 17 December 2008.

7 The Tribunal accepted the affidavit evidence of the respondent concerning an isolated failure, which appeared to be supported by a letter to the applicant from Dr. J. Roberts dated 10 December 2008.

8 At all relevant times the respondent was a solicitor in the employ of Messrs Marsdens, Solicitors [“Marsdens”], by whom he was employed between 25 March 2004 and 30 March 2006.

9 The brief facts of each admitted misappropriation are set out below.

Matter of Udo Czeikel

10 On or about 25 November 2005 Mr. Udo Czeikel [“Czeikel”] instructed Marsdens in relation to two driving offences. The respondent had carriage of the matters for Czeikel. He advised that the fee to attend to the matters would be $800.00.

11 Czeikel paid the sum of $800.00 to the respondent in 2 instalments comprised of $100.00 shortly after giving instructions and the balance of $700.00 on the day he appeared before the Court on 3 November 2005.

12 On 4 November 2005, the respondent deposited $400.00 into Marsden’s Trust account.

13 On 16 November 2005 the respondent prepared a memorandum of fees in the sum of $400.00.

14 The respondent did not account to Marsdens for the balance of $400.00 received from Czeikel.

Matter of Mathew Tindall

15 On 2 March 2006 Mr Tindall [“Tindall”] instructed Marsdens to represent him in relation to a driving offence. The respondent had carriage of the matter.

16 On 2 March 2006 Tindall was informed in writing that Marsden’s costs for representing him would be $1,650.00, inclusive of GST.

17 On or about 2 March 2006 Tindall paid $500.00 to Marsdens which sum was placed in the firm’s Trust account.

18 On or about 2 March 2006, the respondent informed Tindall that he would attend to the matter for $1,4000.00; he would account to Marsden’s for $1,000.00 and retain the balance of $400.00 for himself. The respondent asked Tindall to bring $400.00 in cash to Court on the hearing date.

19 On the day of the hearing, 29 March 2006, Tindall paid $900.00 to the respondent.

20 On 29 March 2006, the respondent placed $500.00 of this sum into Marsden’s Trust account, and produced a memorandum of fees for $1,000.00

21 The respondent did not account to Marsdens for the balance of $400.00 received from Tindall.

22 On 12 April 2006, Mr. JB Adam, managing partner of Marsdens wrote to the Law Society to complain about the respondent’s conduct in each of the above matters.

23 The matters came to light when Tindall informed his employer about the arrangement suggested by the respondent. His employer contacted Mr. Crittenden [“Crittenden”] a partner in Marsdens, who in turn contacted Tindall. After being informed of the arrangement suggested by the respondent, Crittenden requested that Tindall proceed with the arrangement.

24 On 30 March 2006, the respondent was confronted with the allegation concerning the Tindall matter. He made full admissions, and on that day paid $400.00 to Marsdens.

25 The respondent was dismissed from Marsdens on 30 March 2006.

26 Following his dismissal, Marsdens undertook an audit of matters conducted by the respondent, which uncovered the matter of Czeikel.

27 When asked about the Czeikel matter by a partner in Marsdens, the respondent said he could not remember the incident, but that he accepted Czeikel’s account of the matter.

28 Ultimately the complaint was referred from the Legal Services Commissioner to the Law Society to be considered by the Professional Conduct Committee, which by letter of 26 July 2006, sought a response from the respondent.

29 By letter dated 8 August 2006, the respondent advised the Committee that he did not dispute the facts of the complaints; that he regarded his dismissal by Marsdens as both warranted and justified; that he sincerely regretted his actions and understood the consequences of his misconduct.

30 The respondent included by way of further information, the following facts: that his father’s death in November 2003 following a long battle with cancer, had proved difficult for the respondent, who thereafter developed a problem with both alcohol consumption and gambling. His health deteriorated to a point where he required medical intervention.

31 In June/July 2005, through the Law Society, he consulted Dr. Chung and was admitted to hospital for treatment for his alcohol and gambling addictions. He believed he achieved a successful outcome and returned to his employment with Marsdens.

32 Subsequently he committed the 2 offences the subject matter of these complaints. His letter continues:

“I failed myself dismally by committing the actions raised in this complaint. I offer no excuses for this behaviour. I can only state that my already difficult financial position…was exacerbated early in 2006 by a sudden and significant increase in Child Support Payments.

…

“I accept the culpability of my actions and I am prepared to accept my forthcoming punishment… I have had several months to reflect on my actions and the negative consequences which have already flowed, including the loss of my position at Marsdens and my employment as a Solicitor, the damage to my colleagues, the profession and my own reputation – all of which still impact upon me on a daily basis.”

33 A copy of that letter was provided by the Law Society to Mr. Adams, who on 22 September 2006 wrote to the Law Society relevantly in the following terms:

“Every mitigating factor outlined in Bill’s letter to my knowledge is true. We understood when we employed Bill he had previously had difficulties with alcohol. He openly advised us of this prior to his employment. Notwithstanding this admission we saw many good qualities in him and decided to give him a chance.

“From a legal point of view Bill was an excellent employee. He was hard working, compassionate, respectful and his standard of work never came under scrutiny by the partners. Even when he had further alcohol problems in 2005 he did not let his work standard slip and he dealt with his problems proactively and as he indicated, sought help.

“… the partnership unanimously supported him.

“His stupid decision to take advantage of a few hundred dollars of cash money to alleviate a short term financial problem will no doubt haunt him for the rest of his life. I believe however that this behaviour is not typical of Bill’s character. I believe that this would be a one off incident and that the resulting penalties of losing his job and having to deal with the Law Society will ensure that in the future he does not digress in this manner again.

“…I believe that Bill is a fit and proper person to continue in this profession. His actions were no doubt not fit and proper however I have faith in him to learn by his mistake and not offend in any way in the future.”

34 By letter dated 12 May 2008 to the respondent’s solicitor, Mr. G. Walsh, Mr. Adam confirmed the above views, saying in part:

“I am still of the belief that the incident with us will not be repeated. I therefore adhere to my previous view and I believe Bill has enough good personal characteristics that would make him a suitable person to continue his role as a solicitor despite his one off indiscretion. Basically Bill is an extremely kind and considerate person who had a passion for his work with us.

“I sincerely wish him well and trust that the tribunal will take into account my view.”

35 Despite the unusually generous reference from his former employer, the Professional Standards Committee came to the only view open to it, namely that the respondent was guilty of professional misconduct, necessarily resulting in the present application to the Tribunal.

36 When the matter came on for hearing before the Tribunal there was no challenge to the case for the applicant. The respondent sought to adduce evidence capable of persuading the Tribunal that there were extenuating circumstances which, if accepted, would lead to a finding that whilst the respondent was unarguably guilty of professional misconduct, a penalty other than his removal from the Roll of Legal Practitioners would be appropriate punishment in all the circumstances.

37 There is extensive medical evidence before the Tribunal.

38 In his report dated 7 April 2008, addressed to Dr. David Baker, Professor Gordon Parker of the Black Dog Institute, noted that the respondent commenced alcohol consumption at age 16, which progressed to a pattern of binge drinking 3-4 times per week, including frequent occasions when the respondent experienced blackouts. When intoxicated the respondent reported being irritable, impulsive, angry, aggressive and disinhibited. He experiences depression following these binges, characterised by low mood and energy levels, poor motivation, poor sleep and suicidal ideas.

39 The respondent had a history of anxiety including panic attacks. These symptoms were relieved by the consumption of alcohol.

40 Professor Parker noted the respondent’s family history of depression, alcoholism, and gambling.

41 Professor Parker diagnosed Generalised Anxiety Disorder and Social Phobia. In his opinion the respondent’s alcohol dependence was secondary to those conditions, and mood changes were the result of excessive alcohol consumption. Professor Parker was not available to give evidence.

42 Dr. David Baker provided a report dated 25 February 2008 and gave evidence before the Tribunal on 15 May 2008. His report outlines a gradual diminution in the respondent’s alcohol consumption until he became abstinent in early November 2007.

43 Dr. Baker noted a steady improvement in the respondent’s mood as his alcohol consumption reduced. Dr. Baker’s primary diagnosis in his report is alcohol dependency rather than a mood disorder. He noted the respondent’s commitment to abstinence and his acknowledgement of the problems that his alcoholism had brought about.

44 In Dr. Baker’s opinion:

“Based on his presentation over the last few months and his obvious commitment to long-term sobriety I feel that Mr. Paling has a good prognosis for remaining alcohol-free. Completely avoiding alcohol would appear to be absolutely essential if Mr. Paling is to continue to work successfully in any career especially as a Legal Practitioner.

“I would support his continuing registration as a lawyer, perhaps with regular reviews and continuing medical treatment, if this is possible.”

45 Dr. Baker agreed with Professor Parker’s diagnosis. He also gave evidence concerning the respondent’s physical health, including a genetic tremor from which he has suffered all his life and which is now being controlled by medication. Dr. Baker pointed out that such tremors cause the sufferer to be anxious in social situations and that increased levels of anxiety, in turn exacerbate the tremor. Alcohol consumption, as used by the respondent, is a means of dealing with social anxiety.

46 In summary, Dr. Baker was of the view that the respondent was dealing well with his range of physical and emotional problems; that he exhibited a commitment to dealing with his alcoholism and gambling addictions, attending regularly for medical consultations, and attending AA and GA meetings regularly. He is seeing a psychologist for anxiety management and taking medication to assist in that regard. Dr. Baker pointed out that the first line treatment for anxiety disorder was lifestyle modification such as exercise, alcohol avoidance and so forth, in which the respondent was actively engaging.

47 Dr. Baker was of the view that the respondent was now more insightful concerning his conditions and appreciated that he needed to deal with his phobias and other issues in order to return to the legal profession as a practitioner.

48 Dr. John Roberts, psychiatrist, provided a report dated 8 July 2008 and gave evidence before the Tribunal on 15 October 2008.

49 In his report, Dr. Roberts diagnosed the respondent as suffering from: i.) substance abuse – Substance Dependency (in remission); ii) Generalised Anxiety Disorder (current); iii. Possible Formes Frust Bipolar Disorder.

50 Dr. Roberts recommended the respondent be medicated with serotonin (50mg per diem); a trial period of Epilim to assess if it would assist whether mood stabilisation would be assisted; and Naltrexone which acts as an inhibitor to gambling tendencies.

51 Dr. Roberts was of the view that if the respondent undertook the recommended treatment he would show improvement in mood and functioning; that the potential for impulsive behaviour would be substantially diminished.

52 In Dr. Roberts view the respondent’s dishonest behaviour occurred in the context of impaired judgment due to excessive alcohol ingestion and mood disturbance.

53 In a further report dated 15 October 2008, Dr. Roberts noted that the respondent’s medication had been amended to:

Zoloft – 50gm per diem

Naltrexone – 50gm per diem

Betaloc – 50gm per diem

He recommended that the respondent attend a psychiatrist of his choice for regular review and that he undertake CDT testing every 6 weeks for 12 months to ensure he remains alcohol abstinent.

54 If the medications and treatment recommendations were pursued, Dr. Roberts said: “…I consider his prognosis is positive and his psychiatric conditions would be unlikely to impede his practicing as a solicitor, especially as he would be practicing under supervision.”

55 Dr. Roberts gave extensive evidence, including an explanation of some test material annexed to Professor Parker’s report.

56 When asked about the effect of the respondent’s condition on his wrongdoing, Dr. Roberts said:

A. I think the illness, the mood elevation and the drinking are disinhibitory factors. Without exception we all may desire something but prudence and judgement suggests that we don’t do it. Someone’s in need of money and says, well, look, I didn’t steal it from Joe but we now do it because our judgement suggests that it’s inappropriate behaviour, it’s dishonest and in the sense of a professional person for the few stupid dollars a lifetime investment is down the gurgler. To act in such a manner as Mr Paling did I think shows a lapse of judgement which is accountable on the basis of the conditions that he described as being operative of the time. I …think it reflects a profound lack of judgement because of him being unwell at the time because by taking $800 if you compare that to a potential lifetime an earning capacity of a professional person. To put that at risk is a profound lapse of judgement and I think it’s on reasonable psychiatric grounds best explained by the disinhibitory behaviour that occurs in mood elevation compounded by further disinhibition secondary to drinking.

Q. So to put it on a very basic, it’s not a question of dishonesty per se it’s a question of succumbing to the temptation as a result of?

A. Of an illness, yeah.

Q. Yes. And then compounding that illness by alcohol abuse and so forth?

A. Yes. [pp.15/16 transcript 15/10/08]

57 After noting that the respondent’s condition currently appeared to be in remission, Dr. Roberts was asked about ongoing management:

Q. So other than for self-reporting the only, as I understood your treatment regime as you proposed, would be a, if Mr Paling were to be, continued to be seen by you to monitor this management it would have to be by a series of independent tests not self-reporting, would that be so, such as alcohol consumption?

A. Yes. Well, I would certainly not necessarily projecting indefinitely into the future but I normally when I deal with matters such as this have a time, a treatment plan of about two years, I monitor fairly closely for two years. In those two years I hope that people can change their habits to such a degree that the monitoring can be less and then I try and involve a significant other, an employer or a partner or, and regular attendance upon a medical practitioner who would be feel free to ring me up and say things are not going as well as they should. And so that’s how these conditions are managed. [pp. 16/17 transcript 15/10/08].

58 The respondent filed an affidavit sworn 19 February 2008. After obtaining the High School Certificate he commenced work as a public servant working in various courts, and finally worked with a firm of solicitors for about 12 months before entering the NSW Police Force in 1990. He joined the Prosecution Branch in 1996. Between 1995 and 1998 he undertook a Bachelor of Arts degree at Armidale University. He then undertook a law degree followed be a course at the College of Law that he completed in December 2003. He was admitted as a solicitor of the Supreme Court of New South Wales in April 2004. In March 2004 he commenced employment with Marsdens, where he remained until he was dismissed on 30 March 2006. He primarily undertook court work.

59 In November 2003, his father with whom he enjoyed a close relationship, died of cancer, having been ill for some time prior.

60 The respondent admits that his heavy drinking commenced in the 1980’s and continued despite his attempts to control his alcohol consumption, and in the face of advice from various medical practitioners whom he consulted in later years, that he should abstain from both alcohol and gambling.

61 In 2000, the respondent’s marriage came to an end, largely brought about, in his view, by his drinking and gambling.

62 In April 2004, a solicitor, Benjamin Archbold joined Marsdens. He has played a significant role in the respondent’s life since they met. He gave evidence before the Tribunal on 12 May 2008 and his affidavit sworn 5 May 2008, was tendered in evidence.

63 In about June 2004, Mr. Archbold formed the opinion that the respondent was dependent upon alcohol resulting in extreme intoxication on occasions. He also observed the respondent break down when referring to the death of his father and the end of his marriage. Mr. Archbold was aware that the respondent was experiencing significant financial difficulties, including a substantial credit card debt resulting from his gambling addiction, his alcohol consumption, and his Child Support obligations.

64 In June 2005 Mr. Archbold realised that the respondent’s condition had deteriorated over the preceding weeks. Following an evening when the respondent collapsed due to his state of intoxication, Mr. Archbold arranged, through the Law Society, for the respondent to consult Dr. Chung. He accompanied the respondent to Dr. Chung’s rooms on 2 June 2005 and paid for the consultation.

65 The respondent admitted to Dr. Chung that he would not have attended for the consultation had he not been accompanied by Mr. Archbold.

66 After taking a history of significant alcohol abuse over an extended period resulting in “black outs”, liver problems and delusions, Dr. Chung recommended that the respondent enter Wondene Hospital at Kogarah for treatment.

67 The respondent entered Wondene Hospital for 10 days. He consulted Dr. Chung again on 7 July 2005 following his treatment in hospital. He reported that he was not using alcohol or smoking, and was taking Campral, a medication used to reduce the desire for alcohol.

68 Follow up appointments were made with Dr. Chung, which were not adhered to by the respondent.

69 The respondent again consulted Dr. Chung on 12 June 2007, at which time he conceded that he had resumed alcohol consumption although at a much reduced level since entering into a new relationship approximately 6 months earlier. He informed Dr. Chung about the circumstances in which his employment with Marsdens was terminated.

70 Dr. Chung’s report dated 20 September 2007 expresses the view that the respondent has made “little attempt” to address his alcohol and gambling issues. He does, however, note that the respondent at that point appeared to be in a stable relationship and in responsible employment. Dr. Chung also noted that the respondent had been open and frank with him, which he felt was a hopeful indicator as to the respondent’s character, although he was concerned at the non-compliance with alcohol abstinence.

71 After the respondent had completed his treatment at Wondene Private Hospital, Mr. Archbold observed that he remained abstinent and maintained a high level of professional competence, until his dismissal in March 2006.

72 After the respondent was dismissed from his employment with Marsdens, Mr. Archbold provided him with accommodation in his own home until he was able to find alternative employment with a security firm that provided security at the Law Courts Building in Queen’s Square, in which occupation he earned a gross income of $60,000 per annum. He maintained that employment until he left voluntarily to take up a position as a law clerk.

73 In October 2006, Mr. Archbold commenced practice on his own account. In August 2007 he employed the respondent as a law clerk, a position which he maintained at the time the matter was before the Tribunal. In that employment he earns approximately $28,000 per annum, a significant reduction in the earnings available to him as an employee of the security firm.

74 As an employed law clerk, the respondent undertakes work under the supervision of Mr. Archbold both within the office and attending various courts for mentions or instructing counsel in matters.

75 In Mr. Archbold’s opinion, whilst acknowledging his disappointment with the respondent in relation to his acts of dishonesty whilst in the employ of Marsdens, he believes that the respondent is now a fit and proper person to be on the Roll of Legal Practitioners in New South Wales. He believes that the respondent is doing everything possible to defeat his alcohol and gambling addictions; that he is in a stable relationship; obtaining regular medical treatment, and continues to improve.

76 The Tribunal was impressed with the evidence adduced from Mr. Archbold. He appeared to be a thoughtful and careful practitioner. Prior to employing the respondent, he contacted the Law Society to ensure that he was able to offer employment to the respondent as a Law Clerk. He has been circumspect in the way in which he has allowed the respondent to function in the practice. The Tribunal accepted Mr. Archbold’s evidence and his assessment of the respondent both in earlier times and at present. He has had ample opportunity to observe the respondent since meeting him in 2004. He has undoubtedly seen the respondent at his lowest period, and is armed with that knowledge in making an assessment of his current character and capacity. The Tribunal accords considerable weight to the assessments made by Mr. Archbold.

77 Mr. Brian Murray, barrister, in an affidavit sworn 15 February 2008, sets out his knowledge of the respondent over the past 11 years; the respondent’s admissions to him concerning his dishonesty whilst employed by Marsdens; his distress over his conduct and his issues concerning alcohol and gambling.

78 In Mr. Murray’s view, despite the dishonesty of his behaviour in 2005/2006, the respondent is now a fit and proper person to be on the Roll of Legal Practitioners.

79 All the evidence before the Tribunal points to the respondent now being in a stable relationship and in stable employment. Mr. Archbold indicated that, were the respondent able to obtain a practicing certificate, he would expect to employ him as a solicitor.

80 The Tribunal is persuaded that the respondent is genuinely remorseful about his acts of dishonesty, and has been so since they came to light in 2006. He appears to be insightful concerning his addictions to alcohol and gambling and the necessity to ensure that he maintains control over those addictions, and that he deals with the underlying problems that contributed to his difficulties with addictive behaviours.

81 The Tribunal is persuaded that the respondent’s determination to regain he right to act as a legal practitioner has been backed up by his actions in dealing with his alcohol and gambling problems and in taking employment which has been financially disadvantageous to him, in order to better fit himself for a return to the profession.

82 The Tribunal formed the view, and advised the parties, after hearing all evidence and submissions from the applicant’s representative, that subject to determining adequate conditions, it would be appropriate to contemplate Mr. Paling ultimately returning, whether sooner or later, to the capacity to practise as a member of the profession.

83 It was clear following evidence from the respondent, Mr. Archbold, and Mr. Murrary, together with the medical evidence, that the applicant’s attitude to the application changed sufficiently to give room for an alternative result which is reflected in the “consent orders” that were submitted from the applicant in consultation with the respondent’s solicitor.

84 Each of the acts of misappropriation constitutes professional misconduct, and the Tribunal finds the respondent guilty of professional misconduct in relation to each matter.

85 The Tribunal finds that at the time of committing each of those offences, the respondent was not a fit and proper person to remain upon the Roll of Legal Practitioners.

86 The issues to be determined to be determined by this Tribunal are whether or not the respondent is now a fit and proper person to be upon the Roll of Legal Practitioners, and if so persuaded, the terms and conditions, if any, upon which he should be issued with a Practising Certificate.

87 The respondent’s present status is that whilst he has remained upon the Roll he has not sought a practising certificate since his dismissal from the employment with Marsdens.

88 The role of the Tribunal in considering the issue of suitability to be on the Roll of Legal Practitioners, is not to be punitive, but to consider the protection of the public.

89 In Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320, Young CJ in Eq. observed that the general feeling in the community is that there is “…no place in the legal profession for people with a serious criminal record. There is no place in the profession for drug addicts.”

90 The respondent was not charged with any criminal offence. That does not, however, reduce the criminality of his actions. He was fortunate that Marsdens were sufficiently compassionate not to make any complaint to the police. It is also relevant that the misappropriations were of a relatively minor sum and that the respondent made ready admissions concerning his wrong doing. He repaid the money to Marsdens in relation to the Tindall offence when that came to light. There is no evidence before the Tribunal as to whether or not he made restitution in the Czeikel matter when that was uncovered.

91 The respondent’s addiction is to alcohol but no other drug is suggested.

92 An order striking a practitioner off the Roll should only be made where the Tribunal finds that the practitioner is permanently unfit to practice.

93 The Tribunal is satisfied that the conduct of the respondent since his dishonesty came to light is evidence that despite his lapse from the standards of good character and good conduct that are required of a practitioner, which made him unfit at that time to be a practitioner, he has taken appropriate steps to rehabilitate himself.

94 As has been laid down in a number of cases, such as Prothonotary v Del Castillo [2001] NSWCA 75, the issue for the Tribunal is present fitness.

95 The Tribunal has determined that the respondent is a fit and proper person to be upon the Roll. However, having regard to the nature of his professional misconduct, a period of conditional right to practice should be imposed upon the respondent, together with educational requirements to address those areas in which the respondent failed to meet the standards imposed upon a practitioner.

96 The Tribunal’s duty to protect the public requires that measures be put in place that will provide a period of supervision and oversighting to ensure that the respondent remains free of the behaviours that the Tribunal is persuaded brought about his serious lapse from the standards expected of members of the profession.

97 The terms fashioned by the applicant, as previously noted, were substantially agreed to by the respondent. The area of dispute centred on the requirement that the respondent undertake and pass courses in ethics and solicitor’s trust accounting. The applicant sought orders that those courses be satisfactorily completed prior to the grant of a Practising Certificate. The respondent sought to have the condition imposed as a condition to be complied with, within a specified period following the grant of a Practising Certificate.

98 The Tribunal has determined that having regard to the nature and extent of the respondent’s wrongdoing, his prompt frank admissions concerning his misconduct, the steps he has taken in the intervening years to rehabilitate himself, and the totality of conditions that will be imposed upon the respondent, the protection of the public will be adequately safeguarded by a condition requiring the respondent to undertake courses in ethics and solicitor’s trust accounting within a specified period, [eight (8) months] after the grant of a Practising Certificate. There will be a condition that should the respondent fail to satisfactorily complete such courses within the time specified, his Practising Certificate will be cancelled and no further Practising Certificate issued until such time as he complies with the orders.

99 The Tribunal finds the respondent guilty of 2 counts of professional misconduct.

100 The Tribunal orders that:

1. The respondent Solicitor is reprimanded

2. The Solicitor shall, within 8 months of being granted a Practising Certificate, [“the specified period”] undertake and pass [with a mark of not less than 50%] courses in ethics and solicitors trust accounting as approved by the Manager of the Professional Standards Department of the Law Society of New South Wales [‘the Manager”] and as then conducted by the College of Law. In the absence of suitable courses being conducted by the College of Law, the Manager shall nominate similar courses to be undertaken. Such courses may be undertaken personally or on line

3. Should the solicitor fail to comply with order 2 within the specified period, any Practising Certificate then issued to the solicitor shall be cancelled forthwith upon the expiration of the specified period, and no further Practising Certificate may be issued until such time as the said courses have been completed and passed

4. For a period of five (5) years during which the Solicitor again holds a Practising Certificate [“the period”], any Practising Certificate so held, shall be endorsed with the following conditions:

(a) The Solicitor’s right to practice is restricted to that of an employee of a Solicitor holding an Unconditional Practising Certificate

(b) The Solicitor is not to have access to or be signatory to or operate any account conducted by his employer or client of his employer with any financial institution

(c) The Solicitor shall continue consulting Dr. John Albert Roberts at the rate of not less than one consultation every 3 months from the date of these orders provided that in the event that Dr. Roberts is unwilling or unable to continue consultations with the Solicitor, then the Solicitor is to consult such other practising specialist psychiatrist who is willing to provide reports in terms of paragraph (d) hereof as the Solicitor may elect from time to time until the expiration of the period and subject to the terms of paragraph (d) hereof

(d) The Solicitor shall provide authorisation in writing to Dr. Roberts and to any psychiatrist subsequently consulted by the Solicitor in accordance with these orders, to permit the psychiatrist to report on the consultations with the Solicitor to the Manager, such reports to commence three (3) months after a Practising Certificate is issued to the Solicitor and every six (6) months thereafter, and at such other times as Dr Roberts, or any practising specialist psychiatrist with whom the Solicitor is consulting, may be of the opinion that matters need to be brought to the attention of the Manager

(e) The Solicitor is to bring to the attention of his then employer and any psychiatrist upon whom he attends, the Tribunal’s Determination in these proceedings and permit the Manager, in his discretion, to confirm with the Solicitor’s then employer and psychiatrist that he or she is fully conversant with such Determination

5. The Solicitor is to pay the costs of the Law Society of New South Wales as agreed or assessed.