Legal Services Commissioner v Rushford
[2012] VSC 632
•20 December 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2012 4383
| LEGAL SERVICES COMMISSIONER | Plaintiff |
| v | |
| ROBERT RUSHFORD | Defendant |
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JUDGE: | BELL J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 November 2012 | |
DATE OF JUDGMENT: | 20 December 2012 | |
CASE MAY BE CITED AS: | Legal Services Commissioner v Rushford | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 632 | |
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LEGAL PRACTITIONERS – order for removal of local lawyer from roll of practitioners – recommendation by Victorian Civil and Administrative Tribunal – application by Legal Services Commissioner – non-compliance with trust accounting rules – using client’s trust money for private purposes – repeated refusal to provide Commissioner with documents and information – repeatedly failing to comply with orders of tribunal – no adequate explanation offered – no participation in proceeding in tribunal – no participation in proceeding in court – inherent jurisdiction of the court – whether court should make removal order in chambers on the papers – whether court should make order by consent – whether solicitor a fit and proper person to practice law – governing principles – onus of proof – standard of proof – discretionary considerations – scope of tribunal’s power to recommend – ‘fit and proper person’ – Legal Profession Act 2004 (Vic) ss 2.4.42, 4.4.17(a), 4.4.39.
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Elizabeth Bennett | Brylee Newman, Solicitor to the Legal Services Commissioner |
| For the defendant | No appearance |
HIS HONOUR:
After finding Robert Rushford guilty of five charges of misconduct under the Legal Practice Act 1996 (Vic) and 15 charges of professional misconduct under the Legal Profession Act 2004 (Vic) (‘the Act’), the Victorian Civil and Administrative Tribunal (among other things) recommended to this court that Mr Rushford’s name be removed from its roll of practitioners. On that recommendation, the Legal Services Commissioner applied by amended originating motion for a removal order to be made in the inherent jurisdiction of the court
The Commissioner and Mr Rushford signed a minute consenting to the making of a removal order and I was invited to make one in chambers. But, when I first read the papers, I was not completely persuaded that removal was called for. Further, the making of a removal order is very significant. There was a need to consider several important issues. Surprisingly, the Commissioner was not able to point to a reported case of the court exercising this inherent jurisdiction. Finally, removal of the name of a person from the roll of practitioners in the exercise of that jurisdiction is at the discretion of the court, even where he or she consents.[1] I therefore declined to determine the application on the papers and heard it in open court. At the end of that hearing, I was satisfied to the requisite standard that Mr Rushford was not a fit and proper person to practise law and made a removal order. These are my reasons.
[1]Re an Application by a Solicitor [1966] 1 NSWR 42, 43 (Wallace P, Jacobs and Asprey JJA agreeing).
The recommendation of the tribunal was made under s 4.4.17(a) of the Act, which relevantly provides:
The Tribunal may make the following orders under this section–
(a) an order recommending to the Supreme Court that the name of the practitioner be removed from the local roll; …
The only jurisdiction which the court had to make a removal order in the present case was its inherent jurisdiction. Section 4.4.17(a) confers discretionary power on the tribunal to make a recommendation that the name of the practitioner be removed from the roll by the court in the exercise of that jurisdiction.
The court has a statutory power of removal on the application of the Commissioner pursuant to the show-cause procedure in s 2.4.42 of the Act. That power and procedure does not depend on any recommendation of the tribunal. It was not applicable in the present case.[2] The show-cause procedure which may be activated by the Commissioner under s 2.4.42 and the recommendation which may be made by the tribunal under s 4.4.17(a) are separate. Neither qualifies the other.
[2]Section 2.4.42(1) provides:
This section applies if the Board is satisfied that–
(a) a local lawyer’s interstate practising certificate has been cancelled; or
(b)a local lawyer has been found guilty, in Victoria or elsewhere in Australia, of an offence–
whether before or after the commencement of this section.
Neither has happened.
It is well established that, in addition to any statutory jurisdiction, the court possesses an inherent jurisdiction to remove a person from its roll of practitioners.[3] This inherent jurisdiction is an incident of the jurisdiction to admit a person to practice and enter his or her name on the roll[4] and includes the power to re-admit someone whose name has been removed.[5] As provided in s 4.4.39 and as has been held by this court,[6] the procedure in s 2.4.42 supplements and does not detract from this inherent jurisdiction and the general powers of the court with respect to the control and discipline of lawyers.
[3]Re a Solicitor [1952] VLR 385, 388 (Lowe, Martin and Dean JJ); Weaver v Law Society (NSW) (1979) 142 CLR 201, 207 (Mason J, Barwick CJ, Gibbs, Stephen and Aickin JJ agreeing) (‘Weaver’).
[4]Re The Justices of the Court of Common Pleas of Antigua (1830) 12 ER 321 (Lord Wynford) (‘Antigua’); Re Davis (1947) 75 CLR 409, 414 (Latham CJ, dissenting but not on this point), 419 (Starke J), 423 (Dixon J, Williams J agreeing), 427 (McTiernan J).
[5]Re a Solicitor [1952] VLR 385, 389 (Lowe, Martin and Dean JJ).
[6]Legal Services Board v McGrath (2010) 29 VR 325, 327-28 [4] (Warren CJ) (‘McGrath’); Legal Services Board v Di Cioccio [2012] VSC 41 (24 February 2012) [13] (Macaulay J) (‘Di Cioccio’). The position is the same in the other States: see Re an Application by a Solicitor [1966] 1 NSWR 42 (Wallace P, Jacobs and Asprey JJA agreeing); A Solicitor v Council of the Law Society (NSW) (2004) 216 CLR 253, 264 [12] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ) (‘A Solicitor’).
It follows that the power of the tribunal to make a recommendation for removal under s 4.4.17(a) is not limited to the circumstances in which removal might be carried out under that s 2.4.42. If s 4.4.17(a) applies, whether the inherent jurisdiction is the only one which is available or the procedure in s 2.4.42 might also be available, the tribunal may recommend the making of a removal order in the inherent jurisdiction of the court and the court can, if it decides to do so, exercise that jurisdiction. As it happens, the procedure in s 2.4.42 was not applicable and the inherent jurisdiction of the court was the only jurisdiction which was available.
Having regard to the impact of a recommendation on the practitioner, a recommendation for removal is very serious and would not be made lightly. However, where the tribunal concludes, after due consideration, that the circumstances call for the making of the recommendation, the tribunal should not hesitate to take that course. As will be seen, I think the tribunal was right to do so in the present case.
Under ss 4.4.16 and 4.4.17(a), the power to make a recommendation is not at large. It is only available where, after the completion of a disciplinary hearing, the tribunal has determined that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct. Those conditions are satisfied here.
Under the provisions, the tribunal ‘may’ make a recommendation for removal. The power to make a recommendation is therefore discretionary. The relevant considerations are not specified but, according to general principles, the discretion must be exercised for the purposes of, and by reference to considerations derived from, the Act. As the removal power must be exercised for protective reasons and not as punishment (see below), the recommendation power must also be so exercised.
Section 4.4.17(a) is not a power of referral. Nor does it authorise something like a decision to prosecute. It is a power conferred on the tribunal to recommend actual removal on the completion of a disciplinary hearing after certain findings of guilt have been made. Once the recommendation is made, it is up to the Commissioner to bring the matter to the court. As the power is to recommend actual removal, the tribunal must independently consider whether a removal order is called for under the governing principles, which I discuss below. In doing so, it will take into account the evidence and other material which is before it, and any findings which it makes, in the disciplinary proceeding. Although the language used in the tribunal’s reasons for decision in the present case left me in some doubt as to what it had determined on this point, I was convinced by the reasons as a whole that it determined that removing Mr Rushford’s name from the roll of practitioners was called for under those principles.
The tribunal is rightly independent of the Commissioner and has a central role in the statutory scheme for the discipline and regulation of the legal profession in the public interest. It is implicit in the provisions conferring the power on the tribunal that any recommendation for removal is to carry appropriate weight at the court. It is therefore of importance that the tribunal’s reasons for making a recommendation be given clearly and fully, as they were in this case.
However, only the court possesses statutory and inherent jurisdiction to make a removal order. The court must independently exercise that jurisdiction and, to state the obvious, it is not bound by the tribunal’s recommendation. As we have seen, the court’s inherent jurisdiction to make a removal order is not qualified or limited by the recommendation provisions. As we will see, the court’s statutory and inherent jurisdiction must be exercised on the evidence or other material which is before the court, which may be different to that which was before the tribunal.
The power of the court to remove Mr Rushford from its roll of practitioners must be exercised according to long-standing and well understood principles. As stated by Kitto J in Ziems v The Prothonotary of the Supreme Court of New South Wales:[7]
The issue is whether the appellant is shown not to be a fit and proper person to be a member of the Bar of New South Wales. It is not capable of more precise statement. The answer must depend upon one's conception of the minimum standards demanded by a due recognition of the peculiar position and functions of a barrister in a system which treats the Bar as in fact, whether or not it is also in law, a separate and distinct branch of the legal profession.[8]
[7](1957) 97 CLR 279 (‘Ziems’).
[8]Ibid 297-98.
The courts apply this principle of removal because it is the one which applies when determining whether a person will be admitted to practice as an officer of the court. After a person has been so admitted, the courts implicitly hold him or her out to be a person who is fit to hold that office. When it is brought to the court’s attention that the person’s conduct or situation gives cause to challenge the continuation of that position, the courts must reconsider his or her suitability to practise. That principle was explained by Lopes LJ in Re Weare:[9]
To my mind the question which the Court in cases like this ought always to put to itself is this, Is the Court, having regard to the circumstances brought before it, any longer justified in holding out the solicitor in question as a fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor? That appears to me to be the question which the Court always has to answer when a matter of this kind comes before it.[10]
Such reconsideration is seen to be the court’s positive responsibility. So, in Southern Law Society v Westbrook,[11] O’Connor J said:
The Supreme Court in admitting a solicitor to the roll incurs very great responsibility to the public. Having admitted him, it incurs an equally serious responsibility in keeping him on the roll if once the attention of the Court has been called to conduct on his part which shows that he is not a fit and proper person to remain there.[12]
[9][1893] 2 QB 439 (‘Weare’).
[10]Ibid 448.
[11](1910) 10 CLR 609 (‘Westbrook’).
[12]Ibid 619.
It will be obvious to everyone why the courts are concerned to ensure that only fit and proper persons are admitted to and continue in practice as officers of the court. Legal practitioners have heavy responsibilities and particular privileges which must be properly exercised in the interests of justice and of maintaining public confidence in the legal profession. The importance of this point was emphasised by Doyle CJ and Stanley J in Legal Practitioners Conduct Board v Clisby:[13]
It is of the utmost importance that public confidence in the legal profession be maintained. Legal practitioners play an integral part in the administration of justice. The obligations which accompany a practitioner’s position are commensurate with the responsibility involved. The duties of legal practitioners include a duty to uphold the law, a duty to the Court, a duty to clients and a more general duty to members of the public. The Court and the public demand high standards from practitioners. This is reflected in the legislative processes that regulate the admission of practitioners and govern their conduct.[14]
[13][2012] SASCFC 43 (1 May 2012) (Doyle CJ, Anderson and Stanley JJ).
[14]Ibid [6].
In Re Davis,[15] Dixon J made similar remarks about advocates, which could equally apply to all legal practitioners:
The Bar is no ordinary profession or occupation. The duties and privileges of advocacy are such that, for their proper exercise and effective performance, counsel must command the personal confidence, not only of lay and professional clients, but of other members of the Bar and of judges. It would almost seem to go without saying that conviction of a crime of dishonesty of so grave a kind as housebreaking and stealing is incompatible with the existence in a candidate for admission to the Bar of the reputation and the more enduring moral qualities denoted by the expression, ‘good fame and character,’ which describe the test of his ethical fitness for the profession.[16]
[15](1947) 75 CLR 409 (‘Davis’).
[16]Ibid 420.
In this court, Warren CJ recently said in Legal Services Board v McGrath[17] that the purpose for the requirement for a lawyer to be a fit and proper person to practise was to protect the public but, more than that, it was to protect ‘the legal profession as a group,[18] the courts, the justice system and community confidence in [the legal] system.[19]’
[17](2010) 29 VR 325, 329 [10].
[18]See on this point, Ziems (1957) 97 CLR 279, 298 and Ex parte Brounsall (1778) 98 ER 1385 (Lord Mansfield) (‘Brounsall’).
[19]See particularly, Clyne v New South Wales Bar Association (1960) 104 CLR 186, 201-2 (Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ) (‘Clyne’).
In Hughes & Vale Pty Ltd v New South Wales [No 2],[20] Dixon CJ, McTiernan and Webb JJ said the standard of being a ‘fit and proper’ person to practise involved three things: ‘honesty, knowledge and ability’.[21] In McGrath, Warren CJ said the concept of ‘fit and proper’ required ‘technical and moral aptitude sufficient to meet the demands of the role in question’.[22] Her Honour went on to adopt the analysis of Walters J in Sobey v Commercial and Private Agents Board.[23] Speaking in an analogous context, his Honour said the concept of ‘fit and proper’ required the person to be
possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence … but also … of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.[24]
[20](1955) 93 CLR 127.
[21]Ibid 156.
[22](2010) 29 VR 325, 329 [12].
[23](1979) 22 SASR 70.
[24]Ibid 76.
The conduct or circumstances which may establish that a person is no longer a fit and proper person to be on the roll of practitioners are not closed. Judgments of the High Court have repeatedly stressed the need to consider ‘the whole position’.[25] The authorities refer to criminal offending,[26] mental incapacity,[27] serious private misconduct[28] and professional misconduct[29] as examples of what may need to be examined. This includes recent and past conduct, including pre-admission conduct, making due allowance for the passage of time and any restoration of character.[30]
[25]See eg Ziems (1957) 97 CLR 279, 288 (Fullagar J); A Solicitor (2004) 216 CLR 253, 266 [18] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ).
[26]Brounsall (1778) 98 ER 1385 (Lord Mansfield); Weare [1893] 2 QB 439, 445 (Lord Esher MR, Lindley LJ agreeing), 449-50 (Lopes LJ); Davis (1947) 75 CLR 409, 416-17 (Latham CJ), 419 (Starke J), 426 (Dixon J, Williams J agreeing), 427 (McTiernan J); Ziems (1957) 97 CLR 279, 286 (Dixon CJ), 287 (McTiernan J), 288 (Fullagar J), 298 (Kitto J), 308 (Taylor J); Law Institute of Victoria v Gough (Unreported, Supreme Court of Victoria, Hansen J, 10 February 1995) 11-13; Legal Services Board v Bourozikas [2009] VSC 382 (3 September 2009) [14]-[19] (Forrest J); Di Cioccio [2012] VSC 41 (24 February 2012) [18]-[20] (Macaulay J).
[27]Re B (a Solicitor) [1986] VR 695, 702 (Brooking J).
[28]Ziems (1957) 97 CLR 279, 290 (Fullagar J); A Solicitor (2004) 216 CLR 253, 267 [19] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ).
[29]Antigua (1830) 12 ER 321 (Lord Wynford); Westbrook (1910) 10 CLR 609, 612-13 (Griffith CJ), 620 (O’Connor J), 626 (Isaacs J); Clyne (1960) 104 CLR 186, 200, 202 (Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ); New South Wales Bar Association v Evatt (1968) 117 CLR 177, 183-84 (Barwick CJ, Kitto, Taylor, Menzies and Owen JJ) (‘Evatt’); A Solicitor (2004) 216 CLR 253, 267-68 (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ); Re a Practitioner (1982) 30 SASR 27, 30-31 (King CJ, Mitchell and White JJ agreeing).
[30]Davis (1947) 75 CLR 409, 425-26 (Dixon J).
In the present case, what had to be considered, among other things, was professional misconduct of which Mr Rushford had been found guilty. The need for lawyers to observe their professional obligations cannot be stressed too highly. Serious professional misconduct has repeatedly been cited in authorities of high standing as grounds for a possible finding that a person is no longer fit and proper to practise law. Hansen J acted on that basis in Law Institute of Victoria v Gough.[31] His Honour held that the person was not fit and proper to be a lawyer, because:
The conduct (or misconduct) was grave (as were the offences), striking at the very heart of the standards of honesty and observance of proper professional standards which are essential to practice as a solicitor. Nor was there just one transaction, but a series of appropriations over a prolonged period of time.[32]
[31]Unreported, Supreme Court of Victoria, 10 February 1995.
[32]Ibid 13.
Although serious professional misconduct may lead to a finding of lack of fitness and propriety and consequent removal, this must be for protective reasons and not as punishment. That principle was stated in the earliest reported case[33] and restated concisely in this court by Brooking J in Re B (a Solicitor): ‘the power to strike off is not punitive but protective, the court exercising its discretion whether a man whom it has formerly admitted is a proper person to be continued on the roll or not’.[34] The principle has been affirmed and applied in the High Court in the leading authorities[35] and more recently, in this court, by Warren CJ in McGrath.[36] As we have seen, her Honour emphasised in that case that the jurisdiction was protective in a broad and not a narrow sense.
[33]Brounsall (1778) 98 ER 1385 (Lord Mansfield).
[34][1986] VR 695, 698.
[35]Westbrook (1910) 10 CLR 609, 612 (Griffith CJ); Clyne (1960) 104 CLR 186, 201-202 (Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ); Evatt (1968) 117 CLR 177, 183-84 (Barwick CJ, Kitto, Taylor, Menzies and Owen JJ); Weaver (1979) 142 CLR 201, 207 (Mason J, Barwick CJ, Gibbs, Stephen and Aickin JJ agreeing); A Solicitor (2004) 216 CLR 253, 264 [12] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ).
[36](2010) 29 VR 325, 329 [10].
Past conduct and circumstances may be very relevant but the question before the court is one of present and future fitness to practise. Therefore, an application for removal must be decided on the basis of the evidence and other material which is then before the court.[37] The question is whether the practitioner has been shown, at that time and not when any misconduct was committed,[38] not to be a fit and proper person and ‘will likely remain so for the indefinite future’.[39] Considering whether the practitioner’s unfitness to practise is likely to be indefinite allows consideration of whether suspension (for example), rather than removal, is the appropriate response in the circumstances.
[37]A Solicitor (2004) 216 CLR 253, 268 [21] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ); McGrath (2010) 29 VR 325, 328-29 [9] (Warren CJ).
[38]The Prothonotary of the Supreme Court of New South Wales v Del Costillo [2001] NSWCA 75 (6 April 2001) [71] (Heydon JA, Mason P and Priestley JA agreeing).
[39]McGrath (2010) 29 VR 325, 328 [9] (Warren CJ), citing Stanoevski v The Council of the Law Society (NSW) [2008] NSWCA 93 (14 May 2008) [54] (Campbell JA, Hodgson JA and Handley AJA agreeing).
Part 2.3 of the Act lays down a procedure for admitting eligible persons to practice. Pursuant to that procedure, the applicant bears the onus of (among other things) establishing that he or she is a fit and proper person to be admitted (see ss 2.3.6(1)(a)(ii) and 2.3.10(1)(b)(ii)). The position is contrariwise on an application for removal. In such a case, the applicant for removal bears the onus of satisfying the court that the lawyer is not a fit and proper person to practise, whether or not the practitioner appears on the hearing of the application.[40] The standard of proof is the civil standard of the balance of probabilities.[41] As explained by Warren CJ in McGrath,[42] the application of that standard must take account of the serious consequences of removal for the practitioner:[43]
As was set out in Briginshaw v Briginshaw,[44] that standard is not a fixed or simple one, but depends upon the matters before the court. Whilst the onus of proof is a civil one, the court approaches the making of such decisions with caution[45] and ‘meticulous care’[46], and with a great appreciation for ‘the possibly disastrous consequences of disbarment to the individual concerned’.[47]
[40]McGrath (2010) 29 VR 325, 332-33 [26]-[28].
[41]Ibid 328-29 [9], citing TheProthonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 (29 November 2007) [9]-[16] (Hodgson, Tobias and Basten JJA agreeing).
[42]McGrath (2010) 29 VR 325.
[43]Ibid 329 [9].
[44](1938) 60 CLR 336.
[45]Bourozikas [2009] VSC 382 (3 September 2009) [15]. See also, Ziems (1957) 97 CLR 279, 288 (Fullagar J) and A Solicitor (2004) 216 CLR 253, 268 (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ)).
[46]Ziems (1957) 97 CLR 279, 288 (Fullagar J).
[47]Ibid 287 (Fullagar J).
Removal is not automatic even where a lawyer has engaged in criminal offending, serious private misconduct or professional misconduct. As Kitto J said in Ziems, lawyers are not disqualified by ‘every proof … of human frailty’ and their conduct is to be compared ‘with men and not with paragons’.[48] In looking at ‘the whole position’,[49] the courts consider the gravity and circumstances of the offending and misconduct, including the mental ill-health of the practitioner if this was a contributing cause.[50] A prior unblemished record, the blameless passage of time, the isolated nature of the offending or misconduct and the lack of any link between private misconduct and professional practice may all count against a finding that someone is not fit and proper to practise. Likewise, practitioners who have damaged their personal and professional standing by offending or misconduct may rehabilitate themselves. Depending on the circumstances, where they cease the offending or misconduct, reform the conduct of their professional practice, cooperate with the authorities and show remorse and insight into their past behaviour, the court may be unpersuaded that they are not fit or proper to practise. These considerations had to be considered in the present case, to which I now turn.
[48]Ibid 298 (Kitto J).
[49]Ibid 288 (Fullagar J); A Solicitor (2004) 216 CLR 253, 266 [18] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ).
[50]On the relevance of the mental ill-health of the practitioner to the imposition of penalties for professional misconduct, see Quinn v Law Institute of Victoria Ltd (2007) 27 VAR 1, 8-9 [36] (Maxwell P, Chernov and Nettle JJA agreeing).
I had the advantage of carefully considered reasons for decision from the tribunal, which was constituted by Jonathan Smithers, Senior Member. As those reasons revealed, Mr Rushford did not have a practising certificate at the time of the hearing in the tribunal. He had not held one since 30 June 2005. He was charged with 20 counts of misconduct or professional misconduct relating, in broad terms, to failing to provide information and files pursuant to statutory requirements and tribunal orders, trust account deficiencies and other breaches of trust accounting requirements, using a client’s trust money for private purposes and engaging in legal practice when he no longer held a practising certificate.
The tribunal gave this helpful summary of the 20 charges, organised under the relevant categories:
J86/2011-Negri complaint
Failing to account for the sum of $2,012 held in trust for Mr & Mrs Negri since 2003; failing to comply with an earlier order of this Tribunal.
J87/2011- Olifent complaint
Failing to provide files sought by his former client, Mr Olifent; deducting trust monies amounting to $3,800 without rendering bills and failing to account for trust monies; failing to comply with an earlier order of this Tribunal for the provision of information.
J88/2011-Payments to Titles Office and for rent
Having a deficiency of $1,682 in his trust account; using his trust account to pay $1,760 rent for his own private purposes; failing to respond to a statutory demand for information from the LSC.
J89/201-Trust accounting breaches
Engaging in legal practice and receiving trust monies when a practising certificate was no longer held; failing to maintain and reconcile trust records, failing to have trust records audited, failing to lodge audit reports; failing to comply with a statutory request by the LSC for an explanation of his conduct.
J90/201-Borello complaint
Failing to account for $1,000 held in trust on behalf of Mr Frank Borello since 2003; failing to comply with an order of this Tribunal to provide an explanation in relation to this matter.
After receiving written and oral evidence, the tribunal found all of the 20 charges to be proven. It made these findings and orders:
FINDINGS
The respondent is found guilty of five charges of misconduct under the Legal Practice Act 1996, and 15 charges of professional misconduct under the Legal Profession Act 2004.
ORDER
1The respondent not be granted a practising certificate before 1 July 2019.
2The respondent not be granted a practising certificate entitling him to act a [sic] principal of a practice, or to hold trust monies, before 1 July 2022.
3The Tribunal recommends to the Supreme Court that the respondent’s name be removed from the local roll of practitioners.
4 The respondent is to pay the applicant’s costs of $11,815.50.
In doing so, the tribunal took into account, in a very balanced manner, the circumstances in which the disciplinary offences had been committed, which it summarised thus:
The overall picture which emerges from the evidence is of a practitioner who, to a significant extent, let things slide after he sold his practice in 2004. He did continue to practise for another year (and for at least a short time after his practising certificate expired on 30 June 2005) but it is clear he was not functioning effectively. He was unable to provide necessary information for matters he had handed over to Makin & Kinsey as part of the sale of his practice. This caused very substantial worry, complexity and expense for the successor firm, its clients, and others involved. He ceased to maintain his trust records properly from September 2004. The drawing of cheques on his trust account to pay rent for the premises he lived in, suggests at the least serious disorganisation and perhaps desperation. His failure to account to his clients the Negris and Mr Borello for monies he held on their behalf appears to be another symptom of his disorganisation.
Mr Rushford made a number of promises to provide files and information required to finalise transactions. He rarely delivered on these, however. Such undertakings were made to the Tribunal as well, as reflected in the orders made by Senior Member Howell in 2006, and Judge Ross in 2009. These also were not complied with. In this regard, I note that Judge Ross based his decision in part on Mr Rushford’s apparent ‘change in his attitude towards complying with the Commissioner’s requests’ [sic] Unfortunately, this change was not sustained.
Mr Rushford did provide a little information at various points, but never enough to make much difference to resolving the issues he had left behind him. In many cases, the issues on files were never resolved, and so the parties had to just negotiate a resolution on a commercial basis as best they could.
There was some evidence before the tribunal that, at the relevant time, Mr Rushford was in a state of mental ill-health. He declined to participate in the proceeding before the tribunal. Instead, he wrote to the tribunal saying (among many other things) that ‘[i]t is with sadness that I now realise that I am unable to practice law and that my health has deteriorated to the current level’. However, there was no evidence before the tribunal suggesting that he lacked mental capacity and he made no such claim. He did not seek to establish that the offending was due to mental ill-health or indeed offer any explanation at all. In the end, as the tribunal found and I too ultimately found, there was very little material in mitigation which could be taken into account in his favour.
From the orders made by the tribunal, it could be seen that, quite apart from recommending removal, it prevented Mr Rushford from obtaining any practising certificate before 1 July 2019 and a practising certificate entitling him to act as a principal or hold trust monies until 1 July 2022. To obtain a certificate, he would (in any event) have to satisfy the criterion (among others) that he was ‘a fit and proper person to hold the certificate’ (s 2.4.7(1)(b)).
If Mr Rushford had to meet that criterion before obtaining any practising certificate, could not obtain a limited certificate before 2019 or obtain a full certificate before 2022, a question arose as to whether it was appropriate, in the public interest, to remove him from the roll of practitioners. The tribunal gave careful consideration to that question, which it answered in the affirmative. Here are its reasons:
In circumstances where a practitioner had taken some part in the proceedings, or shown some improvement in terms of his fitness to act as a solicitor with responsibility for handling his clients’ affairs, the position might be different. However, given the lack of any positive indication in Mr Rushford’s favour, even after seven years, and the opportunities he has been given, I conclude that it is probable he is permanently unfit to practise. There is a line to be drawn between situations where a practitioner should be banned from practising for a lengthy period, yet still be allowed to remain on the roll, and those cases where, even though the practitioner’s misconduct arises in part from an inability to cope, rather than from purely evil intent, it is nevertheless in the public interest for them to be removed from the roll.
I agreed. Applying the governing principles to the present case, I concluded that Mr Rushford was not a fit and proper person to practise law and was likely not to be so for the indefinite future.
This was not a case in which the court was called upon to consider the private conduct of the practitioner. All of the relevant misconduct was professional in nature and it was professional misconduct of which the tribunal had found Mr Rushford guilty. I accepted the submissions made on behalf of the Commissioner as to the nature of that misconduct. The findings of the tribunal were not challenged and seemed to be supported by the evidence, which likewise was not challenged. The court was therefore entitled to take the findings and evidence into account in determining whether Mr Rushford’s name should be removed from the roll of practitioners.
As I said earlier, when I first read the papers in this matter, I was not completely persuaded that removal was positively called for to protect the public interest. The professional misconduct of which Mr Rushford was found guilty was not at the most serious end of the scale. It seemed more to be due to lamentable mismanagement than deliberate wrongdoing. There was evidence that his mental ill-health may have been a contributing cause and that he appeared to be recovering from that illness. While he had generally failed to cooperate with the Commissioner and the tribunal, he had on occasions done what was asked of him. I could see in these and other circumstances mitigating factors which might be taken into account in his favour.
However, Mr Rushford did not make that case. Just as he did not participate in the proceeding in the tribunal, he did not participate in the proceeding in this court. Indeed, he consented to the making of a removal order. Having considered the matter more fully and after hearing from counsel for the Commissioner, I was satisfied to the requisite standard that a removal order should be made. Such weak mitigating factors as were present did not suggest otherwise.
While the misconduct which gave rise to the tribunal’s findings was not of the gravest kind, it occurred over a number of years. The evidence before the tribunal, reflected in its findings, demonstrated that, over those years, Mr Rushford has consistently:
·showed disregard for his clients’ funds and interests by failing to account to clients for trust money, as well as failing to provide files to enable them to settle their conveyancing matters
·failed to comply with requests made by the Commissioner pursuant to its statutory powers for the provision of information and documents, in breach of his professional obligations under the legislation
·disregarded orders of the tribunal in relation to the provision of information and documents
·failed to provide any adequate explanation to the Commissioner for his conduct, to provide information to the Commissioner and to co-operate with its investigations
·failed to provide any information or explanation to his clients for his conduct.
On examination, this pattern of misconduct clearly established that Mr Rushworth was not a fit and proper person to practise and was likely to remain so indefinitely. In reaching that conclusion, I took into account that he had failed to take responsibility for his actions or to show remorse for his wrongdoing, suggesting a lack of insight, and had failed to improve his professional conduct over the years that he has been the subject of disciplinary proceedings, despite being given many chances to do so.
I viewed Mr Rushford’s misconduct in relation to his trust account very seriously. A lawyer’s trust account is sacred. Trust monies belong to the client and must be kept and disbursed strictly in accordance with the legal requirements. Failing properly to manage a trust account and deal with trust monies is not just evidence that someone is not a fit and proper person to practise law. It brings the legal profession into disrepute. As was held by King CJ in Re a Practitioner:[51]
The public can feel confidence in legal practitioners and their handling of their money only if they know that there is involved no element of judgment on the part of the practitioner, and that their money must remain in his Trust Account until it is disbursed in accordance with their direction.
[51](1982) 30 SASR 27, 31 (Mitchell and White JJ agreeing).
The evidence and the findings of the tribunal revealed that Mr Rushford had failed to account for money held on trust for clients, deducted trust monies to pay for unrendered bills of account, had deficiencies in his trust account, used a client’s trust money for private purposes and failed to comply with the statutory requirements in relation to trust records and accounting. While the amounts involved were relatively small, the individual clients were still affected to their serious detriment. Further, the instances of misconduct were not isolated and constituted a pattern of conduct in which Mr Rushford showed an egregious disregard for his responsibilities in relation to his trust account and his clients’ funds. I noted that former clients of Mr Rushford were so distressed by his treatment of them that they attended personally at the hearing before the tribunal and gave evidence against him.
I also viewed the misconduct in relation to failing to comply with the orders of the tribunal very seriously. The orders of the tribunal are every bit as important as the orders of a court. On pain of enforcement action, all persons are obliged to comply with the orders of the tribunal to which they are subject. It is all the more important for a lawyer to comply with orders of the tribunal, especially in disciplinary proceedings concerning them personally. The tribunal made some of the orders against Mr Rushford to enable the Commissioner to carry out its statutory responsibilities in relation to him personally. The tribunal made all of the orders in proceedings in its disciplinary jurisdiction, likewise in relation to him personally. Absent proper explanation, repeated non-compliance by a legal practitioner with orders of the tribunal in such proceedings is a very serious matter. It suggests that the practitioner does not appreciate his or her legal and professional responsibilities. In the present case, the instances of non-compliance were several, formed part of a pattern of conduct and were unexplained.
In conclusion, for those reasons, I was satisfied to the requisite standard that Mr Rushford was not a fit and proper person to practise law and I made an order for the removal of his name from the roll of practitioners which is kept by the court.
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