Legal Services Commissioner v Veneris
[2002] NSWADT 135
•08/23/2002
CITATION: Legal Services Commissioner -v- Veneris [2002] NSWADT 135 DIVISION: Legal Services Division PARTIES: APPLICANT
Legal Services Commisisoner
RESPONDENT
James VenerisFILE NUMBER: 012025 HEARING DATES: 05/04/02, 05/06/02 SUBMISSIONS CLOSED: 06/05/2002 DATE OF DECISION:
08/23/2002BEFORE: Staff C - Judicial Member; Norton S - Judicial Member; Quayle C - Member APPLICATION: Professional Misconduct - fail to carry out instructions - Professional Misconduct - fail to comply with s. 152 Notice - Professional Misconduct - mislead client - Professional Misconduct - mislead Law Society/Bar Association/LSC MATTER FOR DECISION: Principal matter LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: Law Society v. Veneris LPDR4 of 1998
Legal Services Commission v. Veneris NSWADT160
Barwick v. Law Society 74 ALJR 419
Law Society of New South Wales v. Walsh (unreported), Court of Appeal 15 December, 1997
Wentworth v. New South Wales Bar Association (1992) 176 CLR 239
Clyne v. New South Wales Bar Association (1960) 104 CLR 186
New South Wales Bar Association v. Evatt (1986) 117 CLR 117
Weaver v. Law Society of New South Wales (1979) 142 CLR 201
Walter v. Council of Queensland Law Society Inc. (1988) 62 ALJR153
Harvey v. Law Society of New South Wales (1975) 49 ALJR 362
Allison v. General Council of Medical Education and Registration [1894] 1 QB 750
Kennedy v. Council of Incorporated Law Institute of New South Wales (1939) ALJ 563
Law Society v. Foreman (1994) 4 LPDR 1
Law Society of New South Wales v. McNamara (unreported) NSW Court of Appeal 7 March, 1980
Dupal v. Law Society of New South Wales (unreported 26 April, 1990REPRESENTATION: APPLICANT
T Lynch, barrister
RESPONDENT
A Radojev, barristerORDERS: 1. The name of James Veneris be and the same is removed from the Roll of Legal Practitioners in New South Wales.; 2. The Solicitor to pay the costs of the Office the Legal Services Commissioner as agreed or as assessed.
1 The Legal Services Commissioner (“the Commissioner”) informed the Legal Services Division of the Administrative Decisions Tribunal (“the Tribunal”) of a complaint of professional misconduct against James Veneris (“the Practitioner”).
2 Grounds on which the Complaint was made are as follows:
PARTICULARS:
2.1 Between about 1 May, 1999 and 18 February, 2000 the Practitioner, without reasonable excuse, had failed to comply with a direction by a client, M.J. Stoffels Pty. Ltd., made on or about 9 April, 1999 that he, the Practitioner, transfer the files of that client to Wilson Fardell & Moore, solicitors.
2.2 On 23 August, 1999 the Practitioner misled the Commissioner in that he stated to Simon Healey, an officer of the Commissioner investigating a complaint about the Practitioner, that he, the Practitioner, had on or about 19 August, 1999 transferred to Messrs Wilson Fardell & Moore, solicitors, files relating to M.J. Stoffels Pty. Limited, whereas in fact that had not occurred as at either 19 August or 23 August 1999.
2.3 At or immediately after 5.00 p.m. on 25 February 2000 the Practitioner, without reasonable excuse, failed to comply with the requirements of a notice in writing issued under s.152(1) of the Act, dated 3 February 2000 in respect of M.J. Stoffels Pty. Ltd.
2.4 At or immediately after 5.00 p.m. on 17 January, 2000, the Practitioner, without reasonable excuse, failed to comply with the requirements of a notice in writing issued under s.152(1) of the Act, dated 6 December, 1999 in respect of Mr Adolf Kemper.
2.5 Between about:
the Practitioner, without reasonable excuse, neglected to act on instructions received by him on or about 11 April 1995 from Ms Kay Collins in respect of a personal injury claim by her daughter Bronya Collins arising out of incidents in about 1989 and March 1995 when Bronya Collins was in the case of the Spastic Centre of New South Wales (the “claim by Bronya”).
1. 11 April 1995 and 29 March 1996, and
2. 13 May 1996 and 12 March 2000
2.6 On or about each of the following dates:
the Practitioner misled and deceived Kay Collins about:
-10 July 1995
-9 August 1995
-20 May 1996
-25 September 1996
-25 October 1996
-12 November 1996
-6 January 1997
-27 March 1997, and
-1 May 1997
as at any of those dates.
1. The claim by Bronya
2. The K-Mart claim in that he represented to her that Legal Aid had been obtained (by about August, 1995), and thereafter that the matter was progressing, whereas in fact:
1. no application for Legal Aid had been made, nor
2. any demand made on, or proceedings commenced against, the Spastic Centre of NSW,
2.7 Between about 19 March 1997 and 12 March 2000, the Practitioner without reasonable excuse, neglected to act on instructions received by him on 19 March 1997 from Ms Kay Collins in respect of a personal injury claim by her arising out of an incident at a K-Mart store in Albury on or about 6 January 1997 (the “K-Mart claim”).
2.8 On or about each of the following dates:
the Practitioner misled and deceived Kay Collins about:
27 May 1997
20 June 1997
19 September 1997
31 October, 1997
13 February 1998
24 August 1998
6 October 1998
17 November 1998
21 January 1999, and
15 February 1999
in that he represented to her that each of those matters was progressing, whereas in fact:
1. the claim by Bronya, and
2. the K-Mart claim,
2.9 On or about 21 January 1999 the Practitioner misled Kay Collins in that he stated to her that there would be a hearing of the K-Mart claim in May 1999, whereas in fact no hearing for that claim had been fixed, and no proceedings in respect of it commenced.
3. in respect of the claim by Bronya, no demand had been made on, or proceedings commenced against, the Spastic Centre of NSW, and
4. in respect of the K-Mart claim, no proceedings had been commenced.
2.10 On or about 23 February 1999 the Practitioner misled Kay Collins in that he stated to her that:
whereas in fact no hearing for either claim had been fixed, and no proceedings in respect of either claim commenced.
1. there would be a hearing of the K-Mart claim in May 1999, and
2. there would be a hearing of the claim by Bronya in September, 1999
2.11 On or about 7 May, 1999 the Practitioner misled Kay Collins in that he stated to her that:
whereas in fact no hearing for either claim had been fixed, and no proceedings in respect of either claim commenced.
1. there would be a hearing of the K-Mart claim on 16 June 1999, and
2. there would be a hearing of the claim by Bronya in September 1999
2.12 On or about 25 June 1999 the Practitioner was instructed by Kay Collins to immediately forward his files in relation to:
to Mr Paul Robb at Harris, Leibermann, Boyd, solicitors, but he did not comply with that instruction until 12 March 2000.
1. the claim by Bronya;
2. the K-Mart claim, and
3. all other files for the Collins family
2.13 Between about 26 July 1995 and 6 May 1999 the Practitioner, without reasonable excuse:
1. made 20 appointments to meet with Kay Collins, but cancelled 11 of them, and
2. failed to return 57 telephone calls from Kay Collins requesting that he contact her, or in respect of which he stated he would ring her back.
3 Ground 1
4 Ground 2
3.1 On or about 9 April, 1999 Wilson Fardell & Moore wrote to the Practitioner requesting all files and documents held on behalf of M.J. Stoffels Pty. Limited be made available to them. This letter enclosed an authority of M.J. Stoffels Pty.Ltd for that to be done.
3.2 The Practitioner did not respond to this request.
3.3 On or about 10 May, 1999, 31 May, 1999, and 11 July, 1999, Wilson Fardell & Moore sent further requests for the documents.
3.4 The Practitioner did not respond to any of those requests.
3.5 The Practitioner made the relevant files available to Wilson Fardell & Moore on or about 10 March, 2000.
5 Ground 3
4.1 On about 13 August, 1999 Wilson Fardell & Moore, solicitors, made a complaint that the Practitioner had not provided them files of M.J. Stoffels Pty. Ltd., despite a direction from the client to do so.
4.2 The complaint was investigated by the Commissioner.
4.3 On 23 August, 1999 Mr Simon Healy, the Legal Services Commissioner’s Investigation Officer, phoned the Practitioner about that complaint.
4.4 During that conversation the Practitioner stated to Mr Healy that the files the subject of the complaint had been sent to Wilson Fardell & Moore, the previous Thursday.
4.5 As at 23 August, 1999 the files had not been so sent.
4.6 The relevant files were not made available to the client’s solicitors until about 10 March, 2000.
6 Ground 4
5.1 On or about 25 October, 1999 the Commissioner instituted a complaint into the matter of whether the Practitioner had misled him on or about 23 August, 1999.
5.2 The Commissioner investigated that complaint.
5.3 On 3 February, 2000 the Commissioner issued a notice in writing under s.152(1) of the Act addressed to the Practitioner in respect of the Commissioner’s complaint, compliance with which was required by 5.00 p.m. on 25 February, 2000.
5.4 On 8 February, 2000 the notice under s.152(1) was served.
5.5 The Practitioner did not by 5.00 p.m. on 25 February, 2000 comply with that notice.
5.6 The Practitioner has not provided any reasonable excuse for his failure to comply with that notice.
5.7 The notice was complied with on or about 10 March, 2000.
7 Ground 5
6.1 On or about 14 September, 1999 the Commissioner received an updated complaint against the Practitioner from Mr Adolf Kemper (“the Kemper complaint”).
6.2 The Commissioner commenced an investigation of the Kemper complaint.
6.3 On or about 6 December, 1999 the Commissioner issued a notice in writing under s.152(1) of the Act addressed to the Practitioner, in respect of the Kemper complaint, compliance with which was required by 5.00 p.m. on Friday, 17 January, 2000.
6.4 On 10 December, 1999 the Practitioner was served with that Notice.
6.5 The Practitioner did not by 5.00 p.m. on 17 January, 2000 comply with that notice.
6.6 The Practitioner has not provided any reasonable excuse for his failure to comply with the notice.
6.7 The Practitioner complied with the notice on or about 22 May, 2000.
8 Ground 6
7.1 On or about 11 April, 1995 the Practitioner received instructions from Kay Collins in respect of a personal injuries claim against the Spastic Centre of New South Wales for injuries sustained by her daughter, Bronya Collins, during 1989 and March, 1995.
7.2 Between 11 April, 1995 and 12 March, 2000 the Practitioner did not make any demand for Bronya’s claims against the Spastic Centre of NSW nor commence any proceedings for her for compensation for her claim.
9 Ground 7
8.1 On each of the following dates:
Kay Collins spoke with the Practitioner either on the telephone or in person about the claims by Bronya.
10 July 1995
9 August 1995
20 May 1996
25 September 1996
25 October 1996
12 November 1996
6 January 1997
27 March 1997, and
1 May 1997
8.2 In either July or August 1995 the Practitioner told Kay Collins that Legal Aid had been obtained for the claim by Bronya.
8.3 In each of the conversations in 8.1 above, the Practitioner made a statement to Kay Collins to the effect that the claim by Bronya was progressing.
8.4 At the time of each of those conversations no demand had been made on, nor proceedings commenced against the Spastic Centre of NSW.
10 Ground 8
9.1 On or about 10 January, 1997 the Practitioner received instructions from Kay Collins in respect of a personal injury claim by her arising out of an incident at a K-Mart store in Albury on or about 6 January.
9.2 Between March 1997 and 12 March 2000 the Practitioner did not commence any proceedings for her for compensation for her K-Mart claim.
11 Ground 9
10.1 On each of the following dates:
Kay Collins spoke with the Practitioner either on the telephone or in person about the claim by Bronya and the K-Mart claim.
27 May 1997
20 June 1997
19 September 1997
31 October 1997
13 February 1998
24 August 1998
6 October 1998
17 November 1998
21 January 1999
15 February 1999
10.2 In each of the conversations in 10.1 above, the Practitioner made a statement to Kay Collins to the effect that both the claims were progressing.
12 Ground 10
11.1 On or about 21 January 1999 the Practitioner had a conversation with Ms Kay Collins in which he stated that:
11.2 At the time of that conversation no demand had been made on, nor proceedings commenced in respect of the claim by Bronya, or proceedings commenced in respect of the K-Mart claim.
(a) the K-Mart claim had been fixed for hearing in May, and
(b) he had not ever intended to seek legal aid for the claim by Bronya.
13 Ground 11
12.1 On or about 23 February, 1999 Kay Collins met with the Practitioner at his offices.
12.2 In the course of that meeting, the Practitioner stated to Kay Collins:
12.3 At the time of that conversation no demand had been made on, nor proceedings commenced in respect of the claim by Bronya, and no proceedings commenced in respect of the K-Mart claim.
(a) the K-Mart claim had been fixed for hearing in May 1999, and
(b) the claim by Bronya had been fixed for hearing in September 1999.
14 Ground 12
13.1 On or about 7 May 1999 Kay Collins met with the Practitioner at his offices.
13.2 In the course of that meeting, the Practitioner stated to Kay Collins:
13.3 At the time of that conversation no demand had been made on, nor proceedings commenced in respect of the claim by Bronya, and no proceedings commenced in respect of the K-Mart claim.
(a) the K-Mart claim had been fixed for hearing on 16 June, 1999, and
(b) the claim by Bronya had been fixed for hearing in September 1999.
15 Ground 13
14.1 On or about 25 June 1999, Kay Collins instructed the Practitioner to transfer the files in respect of the claim by Bronya, the K-Mart claim and all other files for the Collins family to Mr Paul Robb at Harris, Leibermann, Boyd.
14.2 On 12 March 2000 the Practitioner transferred the files for the claim by Bronya and the K-Mart claim to the new solicitors.
16 THE SOLICITOR’S CASE:
15.1 On each of the following dates:
Kay Collins rang the offices of the Practitioner.
1995: July 26, 28,31
September 6
October 26
November 3, 6
December 4
1996: January 31
February 13, 23
May 10, 16
June 10, 17
July 8, 9
October 21, 25
December 2
1997: January 13, 27, 28, 31
February 3, 11, 13, 18, 21
March 4, 5
April 14, 18, 21, 28
May 22
July 9, 14, 29, 31
August 11, 12, 22
September 5, 9, 17
October 15
1998: March 16, 31
April 15
May 13
June 5, 7
November 23
1999: February 11
March 29
April 19
15.2 On each of those 57 occasions Kay Collins either:
15.3 In respect of each of the calls in 15.1 above the Practitioner did not ring Kay Collins back.
(a) spoke to the Practitioner who represented to her that he was not then able to speak to her about her matter but that he would ring her back to do so; or
(b) was unable to speak to the Practitioner but left a message asking him to ring her back.
15.4 In respect of the claim by Bronya and/or the K-Mart claim the Practitioner agreed to 20 appointments with Kay Collins as particularized below but cancelled 11 of those appointments as particularized below:
01.03.96 10.00 a.m. Cancelled
04.03.96 2.00 p.m. Cancelled
05.03.96 2.30 p.m. Cancelled
03.05.96 10.30 a.m. Cancelled
09.07.96
10.01.97 11.40 a.m.
10.03.97 4.00 p.m.
09.04.97 3.30 p.m.
01.05.97 2.00 p.m.
04.06.97 10.00 a.m.
24.10.97 9.30 a.m. Cancelled
27.10.97 Cancelled
28.10.97 9.30 a.m. Cancelled
31.10.97
13.02.98
18.02.99 10.00 a.m.
22.02.99 10.30 a.m. Cancelled
23.02.99 10.30 a.m.
29.04.99 2.30 p.m. Cancelled
06.05.99 Cancelled
17 HISTORY OF THE SOLICITOR:
16.1 By Affidavit sworn 14 February, 2002, the solicitor admitted each of the grounds of complaint and was therefore not required for cross examination during the hearing on 5 June, 2002. The proceedings on that day were adjourned to allow the Solicitor to obtain any medical evidence and character evidence he may wish to submit to the Tribunal. When the hearing resumed on 5 June, 2002 the Solicitor gave some short evidence and was cross-examined. We will refer to this evidence later in this Decision.
The 1998 Complaint
17.1 The Solicitor was admitted to practice in 1982 at which time he commenced employment with D.G. Skinner, a sole practitioner who specialized almost exclusively in conveyancing in Albury. The solicitor’s evidence is that he did not receive any guidance in regard to litigation although he did do what litigation there was in the firm.
17.2 In January, 1988, the Solicitor became a partner in the practice, such partnership being dissolved in or about March, 1996, amidst a degree of acrimony.
17.3 The Solicitor then opened his own practice in about April, 1996, in Albury, focusing on conveyancing and associated commercial work. The Solicitor says that in 1996 only about 5% of his work involved civil litigation. Since that time the percentage has steadily declined. The solicitor says that since 1999, he has built his conveyancing practice up to a level where he would have on average 7 to 8 settlements per week and that he has no intention to do personal injury litigation as he does not feel confident about it.
18 On 30 March, 1998, this Tribunal heard four complaints filed by the Council of the Law Society of New South Wales (“the Society”). The information filed by the Society alleged that whilst the Solicitor acted for two named clients, he failed to carry out instructions, he was guilty of delay and inaction, failed to communicate and failed to respond to direct inquiry from and on behalf of his clients.
18.1 The Tribunal in its decision delivered 29 June, 1998 Law Society v. Veneris LPDR4 of 1998 – (“the 1998 proceedings”) referred to the submissions made by Mr Gullotta, for the Solicitor:
18.2 The Tribunal then noted.
“Mr Veneris by admission through his declarations and by his demeanour, you will accept as fully cognisant that he has not met the standards required of him as a solicitor. He has said on his declaration that he is ashamed of what he did and that is indeed his position. He has faced ignominy of telling family and friends of what has happened as well as other solicitors who have given him character references and who needed to be appraised for what their references was required in respect of: “they know of these matters.”
18.3 The Tribunal noted that the Solicitor had recently completed Law Cover’s Risk Management Modules and in September, 1996 completed the Law Society’s Management and Development Court for Sole Practitioners. During those proceedings, the Solicitor tended three statutory declarations by solicitors as to his character and reputation and a statutory declaration from Hugh Morrison Jolly, a Consultant Psychiatrist. Part of Dr Jolly’s report stated:
“He then went on to point out to us that Albury is a small community and the effects that the proceedings will have upon himself in the community and his family in the community. Mr Gullotta then went on to deal with the Solicitor’s present practicing position and we will set that position out in more detail. Mr Gulotta’s submission is that in the time that he has been a sole practitioner, “displayed a much different attitude to his responsibilities to which brings him here”. My submission is that from the demeanour he has shown before you and the practical matters he has involved himself in, he may reasonably be charged by you with the important position of acting as a Solicitor in future with members of the public without, in my submission, there being a need for real concern that the problems of the nature of those that bring him here will re-occur.
18.4 Dr Jolly recommended the Solicitor receive ongoing support and counselling as part of a general therapeutic and rehabilitation plan which we note, regrettably, did not occur.
“Indirectly, I am asked to infer and accept that on account of the therapeutic work that Mr Veneris has done with the Consulting Psychologist, there would not be a repeat of problem professional behaviours, such as procrastination, or somehow misleading the client.”
The 2000 Complaint
18.5 The Tribunal at page 13 under the heading “Comments” commenced its consideration of the complaints by observing: “Cases like this are very difficult. There was no debate before us to suggest otherwise than that the solicitor has been both individually and collectively guilty of misconduct. The debate certainly did not suggest that the conduct so categorised was at the higher end of the spectrum of seriousness”.
In determining its orders the Tribunal at page 14 said:
18.6 The Tribunal ordered that:
“The Tribunal has reached the conclusion that some sympathy can be extended to the Solicitor which will result in a less ultimate order then removal of his name from the Roll of Solicitors.”
1. The Solicitor in relation to each of the complaints is found guilty of professional misconduct.
2. The Solicitor is reprimanded.
3. The Solicitor is fined the sum of $5,000.00 such sum to be paid within six calendar months of this date.
4. The Solicitor be suspended from practice at the expiration of the period of six calendar months if the said fine has not been paid and such suspension to continue until the fine is paid.
5. The Solicitor’s practise is to be subject to a periodic inspection for the next 12 calendar months from this date by Mr Christopher William Welsh, solicitor of Albury or should he not be available by a person nominated by the Law Society of New South Wales, such inspection to take place at least once per calendar month for a period of at least two hours and the cost of the inspection is to be borne by the Solicitor.
6. The Solicitor pay the cost of the Law Society.
19 On 24 March, 2000, the Tribunal considered a further complaint made by the Commissioner as to whether the Practitioner, whilst practising as a Solicitor was guilty of professional misconduct on the grounds that he failed, without reasonable excuse, to comply with a notice in writing given by the Commissioner under s.152(1) of the Legal Profession Act 1987 (“The Act”) in respect of Ms Kay Collins.
20 During the 2000 proceedings, (the second proceedings) the Tribunal was told that in compliance with the orders in the first proceedings, the Respondent’s practice had been inspected by a visiting Solicitor approximately once a month, but there was no real explanation from the Respondent why the two Collins matters had not been identified and transferred to a Solicitor more skilled in personal injury litigation work. In light of the procedures set in place following the 1998 proceedings, failing to result in either the identification or the assignment of the Collins matters, or an expeditious handling of them, the Tribunal was concerned that there may be other “undiscovered” matters. The Tribunal noted its proper predisposition was to allow the Practitioner to continue in practice, but it was clear that the Respondent’s affairs were at a turning point. It was with these matters in mind that the Tribunal directed an adjournment of the 2000 proceedings to allow the Solicitor to fully review his whole practice so that on his return he could, on the one hand, propose to the Tribunal a resume of restriction which was workable for him and would leave him in a viable practice, and on the other hand, would allow the Tribunal to be sure that there were no other matters in his practice which would need the guidance of another. When the matter came before the Tribunal on 24 May, 2000, the Solicitor advised the Tribunal that no new difficulties had come to light.
19.1 In Legal Services Commission v. Veneris NSWADT160, (the 2000 proceedings) the Tribunal determined that:
19.2 Briefly, the background to the 2000 proceedings were that the Respondent had failed to lodge an application for legal aid for the complainant’s (Ms Kay Collins’) disabled daughter to pursue a claim for compensation of a physical injury incurred by the daughter whilst participating in the Independent Living Scheme administered by the Spastic Centre of New South Wales. At the same time she further complained of the Respondent’s failure to communicate the progress of the claim itself and further complained of a failure to communicate progress of a claim which she, the complainant had made against K-Mart, both such failures subsisting over a period of nearly four years.
1. The Respondent be reprimanded.
2. The Respondent be fined the sum of $2,000.00 payable within 28 days from the date of these orders.
3. The Respondent pay the costs of the Office of the Legal Services Commissioner agreed at $5,000.00 payable within 56 days from the date of these orders.
4. The Respondent be restricted from undertaking civil litigation, but may practise family law, property relationships and criminal law.
5. That in default of orders (2) & (3) above the Respondent’s Practising Certificate be cancelled until compliance.
19.3 The Respondent was asked by the Legal Services Commissioner (the Commissioner) for a written response in respect of the complaints by Ms Collins within 21 days. The Respondent did not respond and a further letter was forwarded by the Commissioner which requested a response within 14 days drawing the Solicitor’s attention to the ramifications of s.152(1) of the Act, if the Respondent failed to answer the second letter.
19.4 When no response was received to the second letter, the Commissioner issued a Notice under s.152(1) of the Act requiring that a response to the Complainant’s complaint in the form of a statutory declaration be received. When the Solicitor failed to respond the Commissioner’s staff telephoned him to enquire about the complaint. The Respondent advised that he was in the course of providing the information. When still no response was received following the telephone call, the Commissioner forwarded a letter to the Solicitor advising that a new complaint under s.136 of the Act had been initiated. When no response was received to this complaint, the Commissioner determined under s.155 of the Act that he was satisfied that there was a reasonable likelihood that the Respondent would be found guilty by the Tribunal of unsatisfactory professional conduct or of professional misconduct in relation to the complaint “that the Practitioner without reasonable excuse did fail to comply with a notice in writing under s.152(1) of the Legal Profession Act 1987 in respect of a complaint by Ms Kay Collins”.
21 Regrettably, as will be noted later in this decision, this was incorrect. At this time, i.e. 24 May, 2000, it was revealed to the Tribunal that there were other complaints against the Solicitor that were currently being investigated by the Commissioner. Although those matters had not been fully investigated and the Commissioner was not ready to make a decision, whether those matters should result in an information being laid, it did appear to the Tribunal that they were not dissimilar to the matters currently before it. It was indicated on behalf of the Commissioner that, in view of the decision of the High Court in Barwick v. Law Society 74 ALJR 419, the Commissioner was not prepared (even by consent) to place those matters before the Tribunal. The Tribunal noted that such a process could not be seen to be fair to the Practitioner, noting that there were other matters being considered by the Commissioner in relation to that same Practitioner, it was appropriate to offer the Practitioner the opportunity of having all those matters dealt with in the same hearing or series of hearings to achieve a full catharsis.
22 Mr Radojev, appearing for the Solicitor in these proceedings adopts the observations of the Tribunal as previously constituted (Mr R. Fox, Ms C. Gailey and Mr M. Andrews) and asserts that there has been a real prejudice to the Solicitor because the additional potential complaints were not dealt with in the May 2000 hearings. It is submitted that the Practitioner was denied an opportunity to make a clean breast of all matters in May 2001.
23 The difficulty with this Submission is that, as we read the Tribunal’s decision of 24 May, 2000, the Commissioner was not yet ready and indeed had not made a decision whether further matters should result in an information being laid.
24 The Tribunal, in its decision, in respect of the 2000 proceedings reached the conclusion that the matters then before the Tribunal did not raise anything different to the previous proceedings, and so did not reveal any further flaw in either the Practitioner’s character, or his method of conducting his practice which demanded he not further practise. The Tribunal noted, however, at paragraph 22 that
25 The Tribunal went on to observe at paragraph 23:
“if it ever be demonstrated that he had sworn an affidavit in support of his application for an annual practicing certificate to the effect that he had adhered to the restrictions imposed, upon it being found that this was not the truth, he would, virtually, then and there, forfeit the right be on the rolls.”
26 We observe at this point that grounds 3 and 4 of the current information allege a failure to comply with the requirements of a notice in writing issued under s.152(1) of the Act.
“In lest let it be said that the Tribunal was prepared to indulge the Solicitor who had failed to justify the trust placed in him by the orders made in the previous proceedings, the Tribunal noted the Commissioner proposed that the Respondent be given liberty to show cause to have the (order 4) restriction on his practicing certificate lifted at any time after 12 months from the making of our orders, that being accepted by us as an indication from the investigating authority that this matter did not call for serious punishment.
It also appears to us proper to observe, once again, to the profession in general that the legislature has postulated a very serious penalty for a failure to promptly and fully respond to a proper request of the Commissioner for information. Although it is not for us to speculate further, it should be noted that, had the Respondent promptly, frankly and fully responded to the Commissioner’s request for information, the whole matter might well have taken a different course.”
27 In the present proceedings, the Commissioner seeks, in respect of each ground of complaint, the following:
28 Before turning to consider the current complaints, there is one further matter that we should refer to. By letter dated 12 February, 2002, the Society advised the Solicitor that the Professional Conduct Committee of the Society had considered a complaint by Ms Y. Batcheldor and was satisfied that there was reasonable likelihood the Solicitor would be found guilty by the Tribunal of unsatisfactory professional misconduct as follows:
1. A finding that the Tribunal is satisfied that the Practitioner is guilty of professional misconduct, or, alternatively, unsatisfactory professional misconduct;
and orders that the Practitioner:
2. Be removed from the Roll of Practising Solicitors, or alternatively, that the Practitioner’s Practising Certificate be cancelled and that no further practising certificate be issued to the Practitioner for such period as the Tribunal determines;
3. Be fined.
4. Be publicly reprimanded, and
5. Pay the costs of, and incidental to, the filing and hearing of this information, and
6. Such further orders as the Tribunal thinks fit.
29 “1. The solicitor failed to carry out the complainant’s instructions.
30 2. The solicitor lied to the complainant.
Particulars:
(a) In June of 1999 the solicitor received instructions from the complainant to act in relation to the estate of Stewart Ian McLaren who died on 9 May 1999.
(b) The solicitor obtained an affidavit from the complainant in support of an application for administration of the estate, which affidavit was sworn on 16 December 1999.
(c) On or about 18 February 2000 the solicitor received four requisitions from the Probate Registry of the Supreme Court of New South Wales. In answer to one of these requisitions the solicitor obtained an affidavit from Helen Maree Zani sworn on 20 June, 2001.
(d) The solicitor has admitted that the did not otherwise fully carry out the complainant’s instructions “with due expedition”.
31 The Practitioner was advised that the Committee had resolved that the Solicitor be reprimanded pursuant to s.155(3)(a) of the Act . . The administration of a reprimand requires the consent of the solicitor. By letter dated 1 March, 2002, the solicitor consented to the reprimand.
Particulars:
(a) The solicitor has admitted that he indicated to the complainant that the matter was progressing, when he knew that it was not.
(b) The solicitor has admitted that he stated to the complainant that the money would be available in two weeks time in circumstances where the solicitor was merely hopeful that this would occur and had no realistic expectation that it would occur.
(c) The solicitor has admitted that he indicated to the complainant that the papers would be available on 7 June 2001 when he knew that this would not be the case.
(d) The solicitor has admitted that he indicated to the complainant that he had spoken to Mr Gould on 12 or 13 June 2001 when he in fact he had spoken to Mr Gould’s assistant, Mr Clinton Jones.
The Committee resolved that you be reprimanded (Section 155(3)(a) of the Act).
The administration of a reprimand requires your consent. If you consent, the complainant will be notified, our records noted and the file closed. If you do not consent, the Professional Conduct Committee must re-consider the matter. You should bear in mind that the Committee has already made a finding of unsatisfactory professional conduct and may not easily be persuaded to change its view. If it adheres to its view, it will have no option but to resolve that this complaint be referred to the Administrative Decisions Tribunal for hearing.
The Legal Profession Act provides that where a reprimand is administered, the complainant may seek a review of the Law Society’s treatment of the complaint by the Legal Services Commissioner.
You must inform me in writing within 14 days of the date of this letter if you wish to accept the Committee’s offer of a reprimand. If I do not hear from you or you decline the offer within that time, I shall refer the matter back to the Professional Conduct Committee and inform you of its decision.”
The 2002 Complaints
32 The present complaints against the Practitioner can be summarized as follows:
33 Between 26 July, 1995 and 6 May, 1999, the Practitioner cancelled 11 out of 20 appointments made with Ms Collins and failed to return 57 telephone calls from Ms Collins. In respect of complaints 8 and 9, Ms Collins was misled in respect of a personal injury claim arising out of an incident at a K-Mart store on or about 6 January, 1997 and in respect of a personal injury claim in respect of her daughter advising her that the matters were progressing well when in fact no application had been made for legal aid, nor any demand on or proceedings commenced against the Spastic Centre despite Ms Collins enquiring about this matter on nine occasions between July, 1995 and May, 1997. Ms Collins was further misled by the Practitioner on 21 January, 1999 when he stated to her that a hearing of the K-Mart claim would occur in May, 1999 when in fact no hearing for that claim had been fixed and no proceedings in respect of it commenced.
One complaint of misleading the Commissioner. Complaints 6, 8, 9, 10 and 11 relate to misleading clients between 1995 and May 1999. The balance of the complaints, that is, complaints 1, 3, 4, 5,7 and 12 relate to a failure to act which occurs between April, 1995 and March 2000. Complaint 13 amounts to an extended failure to act.
34 Mr T. Lynch for the Commissioner submitted that in 16 of the 20 years that the Practitioner had been in practice, he had failed to act on clients’ instructions. He referred to a complaint in the 1998 proceedings that a client had received no communication from the Practitioner. Similarly, in the 1998 proceedings, the Practitioner on numerous occasions informed the client that he had handed a file to another solicitor although this had not occurred. Furthermore, in the 1998 proceedings the Society complained that the Practitioner misled a client on or about 20 October, 1995 when he advised her that her matter had settled for $45,000.00 and she could expect payment within six to eight weeks, knowing that statement was not true. Nothing could have been further from the truth as the Defendants had listed the proceedings for dismissal for want of prosecution. At no time did the Practitioner inform the client of this information.
35 Mr Lynch points to this behaviour of the Practitioner in 1993 and 1995 as similar to informing Ms Collins that her claim will be heard when, in reality, proceedings have not been filed. Furthermore, in the 1998 proceedings, the Tribunal did not accept the Practitioner’s explanation in respect of a conversation which took place on 23 and 24 December, 1996. The Tribunal found that this conversation had occurred for the purpose of inducing a Ms Rickard not to proceed with a complaint to the Commissioner. The Tribunal further found that the Practitioner did request Ms Rickard to withdraw the complaint and that request was accompanied by the offer of payment of money.
36 The actual background that emerges here is that a Practitioner has engaged in a continual pattern of behaviour of lying to clients and the Commissioner since April, 1996. Although the restrictions imposed upon the Practitioner’s practice by the 1998 proceedings excluded carrying out any civil litigation, the complaint made by Mrs Batcheldor for which the Practitioner received a reprimand involved an administration of an Estate. There is an overlap of two years of the Practitioner engaging in misleading conduct, that is, between April, 1995 and April, 1999. The 2000 proceedings, as we have already noted, dealt only with the complaint pursuant to s.152(1) in respect of the Collins matters but did not deal with the complaints regarding failure to act and lying to Mrs Collins which form part of the complaints presently before us. There are two additional complaints in respect of s.152(1) which relate to clients other than Mrs Collins in these proceedings.
37 Mr Lynch points to the 1998 proceedings and submits that nothing has changed. In those proceedings, the Practitioner admitted he had misled clients and misled the Society by telling each of them that he had done something which he had not.
38 The Practitioner admitted in cross examination that he had informed the Tribunal in June, 1998 that he had reviewed all of his files including the Collins files and that they were in order. He accepts this was not the case. Similarly, in respect of the Batcheldor complaint, the Practitioner acknowledged that he obtained an affidavit from the Complainant in support of an application for administration of the Estate which was sworn on 16 December, 1999. On or about 18 February, 2000, the Practitioner received four requisitions from the Probate Registry of the Supreme Court of New South Wales. In answer to one of these requisitions, the Practitioner had obtained an affidavit from a Helen Zarney sworn 20 June, 2001. However, in respect of the 2000 proceedings, these were adjourned on 13 March, 2000 to enable the Practitioner to fully review his whole practice so that on his return he could ensure the Tribunal that there were no other matters in his practice which would need guidance. The Tribunal was given this assurance on 24 May, 2000. As at 24 May, 2000 requisitions from the Probate Registry of the Supreme Court had been outstanding for some three months. These requisitions were not responded to fully until June, 2001. Needless to say, this did not involve a litigation matter, however, when the Practitioner was before the Tribunal on 24 May, 2000, he acknowledged that he knew that he had difficulties in responding to the requisitions although despite this he informed the Tribunal that there were no difficulties in his practice. Similarly, the Practitioner acknowledged that between December, 1999 and 7 June, 2001, he informed Ms Batcheldor that her matter was progressing well when indeed it was not. The Practitioner accepted that he misled Ms Batcheldor. As we have previously noted, the Practitioner received a reprimand for this conduct. It is not the subject of further consideration before us, however, it is a further sad example of a continuation of a pattern of behaviour of misleading clients and failing to attend to the orderly disposal of matters.
39 The Practitioner tendered a report from Dr Alex Gilandas, a corporate and medical psychologist. Dr Gilandas’ recommendations are as follows:
40 Under the heading “History of Problem” Dr Gilandas refers to difficulties that the Practitioner experienced in working in partnership with Mr Skinner, however, this partnership was dissolved in 1996 and the Practitioner continued to mislead the Commissioner and clients after that time. Indeed, despite no doubt the shock of the 1998 proceedings, the Practitioner has breached s.152(1) on three further occasions and again misled clients, in particular, Ms Collins on at least five occasions after this Tribunal’s decision on 29 June, 1998. Furthermore, despite receiving instructions from Ms Collins on 29 June, 1999 to forward her files to another solicitor, this did not occur until 12 March, 2000, some nine months later. Furthermore, at least four appointments with Ms Collins were cancelled after the 1998 proceedings, those being on 18 February, 1999; 22 February, 1999; 29 April, 1999 and 6 May, 1999 out of a total of 11 appointments that were cancelled between March, 1996 and May, 1999. Similarly, five telephone calls were not returned to Ms Collins after the decision in the 1998 proceedings.
“It is recommended that a therapeutic approach be taken to Mr Veneris’ lapses of professional judgment, rather than a punitive approach. He has already had the courage to make radical changes in his personal and professional circumstances which would safeguard his clients. Not only does he now have insight into the psycho-dynamics of his professional lapses but he is closing the “knowing doing” gap by taking constructive action.
I took time to deepen his understanding of his problems and also formulated a constructive plan of action to maintain his professional integrity.
Mr Veneris is a highly motivated professional who wishes to redeem himself. I have instructed him to establish regular appointments with a psychologist in the region. The latter could help to reinforce a structured environment and to closely supervise his professional result. Mr Veneris has promised to do this. I also agreed to monitor his progress by telephone consultations and to liaise with my professional colleagues in Albury to ensure that he maintains his progress.”
41 We note that in the Tribunal’s 1998 decision, it records that Dr Jolly recommended that the Practitioner receive ongoing support and counselling as a part of a therapeutic and rehabilitation plan. The Practitioner tells us that he saw a Dr Speed before the 1998 proceedings but did not continue to see him after those proceedings. We can only conclude that the Practitioner did not accept Dr Jolly’s report in respect of ongoing treatment. Although Dr Gilandas recommended regular appointments with a psychologist in the Practitioner’s area, the Practitioner had taken no steps in this regard at the time of the resumed hearing on 5 June, 2000.
Conclusion
42 As has been noted in earlier proceedings dealing with the Practitioner, cases like this are particularly difficult. The Practitioner again asks the Tribunal to trust him and allow him to continue to practice. This is against a background where the Practitioner has come before this Tribunal on two previous occasions, the first of which included complaints regarding the Practitioner failing to carry out instructions; delay; inaction; failing to communicate and respond to clients. This again forms the basis of many of the complaints brought against the Practitioner. It was the prospect of something different occurring in the future that caused the Tribunal to hesitate on the previous occasions and allow the Practitioner to remain on the Roll. Part of the basis for this was that the Practitioner was undergoing treatment by Dr Speed. However, the concern that the Tribunal as presently constituted has is that for 14 out of the 18 years that the Practitioner has held a practising certificate there has been a consistent pattern of behaviour that involved dishonesty to his clients, the regulators and this Tribunal.
43 In the 2000 proceedings, the Practitioner provided a misleading statement to this Tribunal in advising it that there were no problems in his practice when he was aware of the seriousness of a problem involving Ms Batcheldor. Those proceedings were adjourned to enable the Practitioner to examine each of his matters and report back to the Tribunal. The difficulties he was having with the Batcheldor matter should have been disclosed to the Tribunal, particularly as it was a non-litigious matter. In referring to this matter we wish to make it clear that it is not the subject of a complaint before us and it has not been taken into account in determining the orders that we propose to make. The Practitioner has admitted that he continued to mislead clients after the 1998 proceedings. Ordinarily, where issues of dishonesty in respect of the Practitioner arise but do not involve misappropriation, it is not unusual for this Tribunal to extend some sympathy to the Practitioner. This occurred in the 1998 proceedings. However, in 1999 and 2000, particularly with the Collins matter, the Practitioner again misled his client. The Practitioner has been provided with two opportunities to rectify his behaviour. It appears that he is not capable of doing this and that his character is not suited to dealing honestly with people.
44 In Law Society of New South Wales v. Bannister (unreported Court of Appeal, 27 August, 1993) Sheller JA with whom Gleeson CJ and Handley JA agreed stated at 11 “… the supervisory jurisdiction of the Court and of statutory bodies such as the Tribunal is directed in part to ensuring that the requirement enshrined in the charter of justice of persons admitted to practise as solicitors be fit and proper persons or, in the language of s.16 of the Legal Profession Act, 1987 if fame and character is maintained. It follows that if a solicitor is shown not to be a fit and proper person, he or she should be removed from the Roll. The order for removal is not punitive, but protective.”
45 In Law Society of New South Wales v. Walsh (unreported), Court of Appeal 15 December, 1997 Powell JA with whom Beazley JA and Clarke AJA agreed formulated the approach that should be adopted by this Tribunal in this way at 63:
46 Similarly, Beazley JA, in Walsh said at 9:
“The ultimate question for the Tribunal was and the ultimate question for this Court is to determine whether the conduct of the (respondent) renders him a person not of good fame and character, or a person who is unfit to remain upon the Roll of Legal Practitioners; and that, in determining that question, it was open to the Tribunal, as it is open to this Court, to have regard to the whole of the evidence as to the Respondent’s conduct revealed by the evidence and not merely that part of the evidence which might be directly related to the complaints as formulated and as particularized.”
47 We have earlier set out the principles which govern disciplinary proceedings as stated in Law Society of New South Wales v. Bannister. It is undisputed that disciplinary proceedings are concerned with the protection of the public Wentworth v. New South Wales Bar Association (1992) 176 CLR 239 per Dean, Dawson, Toohey, and Gaudron JJ at 251; Clyne v. New South Wales Bar Association (1960) 104 CLR 186 at 201-202; New South Wales Bar Association v. Evatt (1986) 117 CLR 117 at 183-184; Weaver v. Law Society of New South Wales (1979) 142 CLR 201 at 207; and Walter v. Council of Queensland Law Society Inc. (1988) 62 ALJR (153 at 157). Beazley JA dealt generally with this matter in Walsh at page 3:
“Principles, then, which should guide the Court, and I should add, the Legal Services Tribunal, in determining the appropriate penalty may be summarized shortly:
- The Court’s power is discretionary
- Subject to consideration to which would compel the Court to impose a lesser penalty, the protective nature of the jurisdiction calls for the removal of a practitioner’s name from the Roll when the practitioner has been found not to be of good fame and character;
- The subjective considerations which might compel a different course are ones which themselves are relevant to and enhance the essential nature of the court’s jurisdiction, which is protection of the public. An example is where the legal practitioner has reported the subject conduct to the Law Society or Bar Association. The relevance of mitigating conduct of that type is that it encourages practitioners guilty of misconduct promptly to report it:
In general, mitigating factors such as evidence of a respected reputation, no previously found misconduct or service to the profession “are of considerably less significance than in the criminal sentencing process Law Society of New South Wales v. Bannister at 13”.
48 The Court of Appeal in Harvey v. Law Society of New South Wales (1975) 49 ALJR 362 at 364 stated:
“the Court’s duty to protect the public is not confined to the protection of the public against further misconduct by the particular practitioner who is the subject of the disciplinary proceedings. It extends to protecting the public from similar defaults by other practitioners. Thus, it is relevant to take into account the effect the order will have upon the understanding in the profession and amongst the public of the standard of behaviour required of solicitors. In this sense, any penalty imposed should contain an element of “general deterrence publicly marking the seriousness of what the Solicitor has done. Law Society v. Foreman per Mahony JA at 441. See also 444”.
49 In Law Society of New South Wales v. Walsh , Beazley JA with whom Clarke AJA agreed, emphasised the discretionary nature of the Court’s power, leaving open the possibility that the Court may decline in particular circumstances to remove a practitioner’s name from the Roll of Solicitors notwithstanding a finding that the Practitioner is not (that is at the time of the hearing) of good fame and character (at 9-10). Powell J and Clarke JA emphasised however, that once a finding is made that a practitioner is not of good fame and character, the proper exercise of the protective jurisdiction requires the making of an order removing the practitioner’s name from the Roll.
“The function of the Court called upon to consider an application to remove the name of the Practitioner from a roll of practitioners is to examine the material proffered to it in order to determine whether that material establishes that the Solicitor has failed, by action or inaction, to maintain in his conduct the standards required of him as a member of the profession. The Court’s duty is to ensure that those standards of the profession are fully maintained, particularly in relation to the proper relationship of the Practitioner with members of the public who find need to use the services of the profession. It is no part of that function to punish the Solicitor whose conduct the court finds to be in breach of those professional standards.”
50 Clarke AJA emphasising:
51 The most consistently invoked definition of misconduct under the common law is that formulated by Lopes LJ in Allison v. General Council of Medical Education and Registration [1894] 1 QB 750. Lopes LJ said that professional misconduct would be something done by a person in the pursuit of the person’s profession, which would be reasonably regarded as disgraceful or dishonourable by (the persons) professional brethren of good repute and competency.
“Otherwise, as it seems to me, the Court would have failed to recognise the true nature of its obligations to afford protection to the public – an obligation, the ambit of which has been discussed in, inter alia, Law Society of New South Wales v. Bannister.”
52 Justice Rich in Kennedy v. Council of Incorporated Law Institute of New South Wales (1939) ALJ 563 observed that professional ‘misconduct’ need not fall within any definition of wrongdoing. It need not amount to an offence under the law. It is enough that it amounts to grave impropriety affecting (a lawyer’s) professional character and is indicative of a failure either to understand or to practice the precepts of honesty or fair dealing in relation to the Courts, (the Lawyer’s clients or the public).
53 In applying the ‘Allinson’ test, the Tribunal must determine whether the conduct constitutes a breach of the duties and standards which practitioners of good repute and competency should observe; and that the breach is of such magnitude that it would reasonably be regarded as disgraceful and dishonourable by those practitioners who profess the proper standards of professional conduct.
54 The Tribunal is of the view that a Practitioner who is dishonest, who lies to his clients and who misled the Legal Services Commissioner, all of which are admitted by this Practitioner, acts dishonourably and is guilty of professional misconduct. A solicitor has a clear duty to act honestly and fairly in all dealings, not only with the Solicitor’s own clients but also with the Courts and third parties including the Legal Services Commissioner. A solicitor should not represent to a person something that is calculated or likely to mislead.
55 Furthermore in this matter the Practitioner admits that he failed to return 57 phone calls to a client; to act on instructions to commence proceedings; to transfer files and that he cancelled 11 out of 20 appointments in respect of a client. Almost five years elapsed without the Practitioner commencing proceedings in the Bronya claim and approximately three years in respect of the K-Mart claim.
56 In Law Society v. Foreman (1994) 4 LPDR 1 at page 18 Mahoney JA said:
Practitioners have a duty to their clients. That duty requires practitioners to implement instructions in a timely manner; to return phone calls promptly; to respond to correspondence from fellow practitioners in an efficient manner and to act professionally and ensure the trust and confidence that reposes in a relationship between the practitioner and the client is not damaged.
The cancelling of appointments without any apparent excuse; the failure to return phone calls; the failure to act on instructions is professional misconduct and the Tribunal finds accordingly.
57 The Tribunal is satisfied that on the balance of the material before it, the Practitioner has been guilty of a series of acts which constitute common law professional misconduct and in respect of the s.152 complaints, statutory professional misconduct.
“It is also necessary that the Court be able to place reliance upon what practitioners say and do. The administration of justice would proceed more slowly with greater cost to the courts before whom a solicitor practised if felt it necessary to check the accuracy of what the solicitor had said to it… the need to be able to place reliance upon what a solicitor has said is, in a sense, illustrated by the process of discovery itself”.
58 The Tribunal has considered deeply what are serious matters. This is not an easy matter. It is a fine line between the imposition of a substantial fine in circumstances like this and a strike-off order.
59 The authorities suggest that an order for suspension will only be appropriate in very limited circumstances. In Law Society of New South Wales v. McNamara (unreported) NSW Court of Appeal 7 March, 1980, Reynolds JA stated at 7:
60 His Honour further expressed the opinion that when cases of present unfitness were shown, it would not frequently be appropriate to order suspension because it is difficult for a Tribunal to feel confident that at the expiration of one or more years, a person presently unfit to practise will be fit. He continued (at 8):
“An order for suspension must be based upon a view that at the termination of the period of suspension, the practitioner will no longer be unfit to practice because subject to any limitation imposed on the issue of a practising certificate, his name will then be on the Roll of Solicitors and he may resume his practice.”
61 The question is whether the Practitioner is fit to be held out to be a member of the legal profession. We do not believe that he is. This is the third occasion that the Practitioner has been before this Tribunal, despite the Tribunal extending sympathy to the practitioner in the 1998 proceedings which resulted in a less serious ultimate order than the removal of his name from the Roll of Solicitor. The Practitioner continued to lie to his clients, mislead the Commissioner and ignore notices pursuant to s.152(1). The Tribunal noted in the 2000 proceedings:
“The use of the power to suspend is valuable as a punitive measure but needs cautious application where fitness and the Court’s protective function is involved.”
62 The Practitioner did not heed this warning. Although the Practitioner admitted the complaints and expressed remorse for his actions, he called no supporting declarants as to his character and good standing as a legal practitioner, excepting that such declarants ‘are of considerably less significance than in the criminal sentencing process’ Law Society of New South Wales v. Bannister at 13.”
“It also appears to us proper to observe, once again, to the profession in general that the legislature has postulated a very serious penalty for a failure to properly and fully respond to the proper request of the Commissioner for information.
63 It may be that if the Practitioner takes up the recommendation of Dr Alex Gilandos and establishes regular appointments with a psychologist, this may lead to a change in his personal circumstances, which, subject to being able to demonstrate to the appropriate authorities at some time in the future, may result in favourable consideration being given to an application to have his name restored to the Roll. If permitted to continue to practice, the Practitioner would be required, from time to time, to declare the truth or falsity of matters to his clients. The Practitioner had a good opportunity to tell the truth to his clients. He has failed in a fundamental way to adhere to the required standards of behaviour when dealing with his clients.
64 The question is whether the Practitioner is fit to be held out as a member of the legal profession. In all the circumstances and giving due weight to the whole of the evidence as to the Practitioner’s conduct revealed by the evidence, we have reached the firm conclusion that he is not and notwithstanding the great depravation to him, this Tribunal must do its duty and the Practitioner’s name should be removed from the Roll.
To adopt the remarks of Handley JA in Dupal v. Law Society of New South Wales (unreported 26 April, 1990 at page 20)
“any decision to the contrary would signal to the profession and the community that this Court (and we interpolate Tribunal) was no longer insisting on solicitors maintaining the highest standards of professional honesty and integrity in their dealings with clients. Sympathy for the Solicitor and for the tragedy that he has brought on himself and his family by his inability to live up to the high standards which this Court and the profession demands of solicitors cannot be allowed to deflect this Court from doing its duty.”
This Tribunal, for the reasons given orders that the Practitioner’s name should be removed from the Roll.
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