New South Wales Bar Association v Mitry

[1999] NSWADT 75

Set aside by Appeal: Set aside by Appeal on 28/8/01 (Court of Appeal)

CITATION:	New South Wales Bar Association -v- Mitry [1999] NSWADT 75
DIVISION:	Legal Services
APPLICANT:	Council of the New South Wales Bar Association
RESPONDENT:	Richard Mitry
FILE NUMBER:	9721
HEARING DATES:	02/23/1998; 02/24/1998; 06/02/1998; 07/23/1998; 05/03/1999; 05/04/1999; 05/06/1999; 05/07/1999
SUBMISSIONS CLOSED:	05/07/1999
DATE OF DECISION:	30 August 1999
BEFORE:	C Needham - Deputy President M J Finnane QC - Judicial Member P O'Grady - Member
PRIMARY LEGISLATION:	Legal Profession Act 1987
APPLICATION:	Dishonest/infamous conduct not in connection with legal practice; Professional misconduct - barrister -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: S Rushton, counsel, instructed by Hickson, Wisewoulds, Solicitors Respondent: F McAlary QC (on 23/2/98, 24/3/98) A McQuillan (on 2/6/98, 23/7/98) In person (on 3/5/99, 4/5/99, 6/5/99, 7/5/99)
ORDERS:	1. The barrister is guilty of professional misconduct 2. The name of the barrister is removed from the Roll of Legal Practitioners. 3. The barrister is to pay the costs of the appliant.

1 Richard Mitry was brought before the Tribunal on a complaint of the New South Wales Bar Association which led to an Information being filed with the Tribunal on 27 June 1997. What had caused this complaint to be made was a newspaper article of 16 April 1996, which revealed that Mr Mitry had pleaded guilty before a magistrate to an offence of being knowingly concerned in a company known as Red Anchor Resources financing the purchase of its own shares.

2 The Bar Council on 24 April 1996 resolved as follows:

"(d) Barristers and Criminal Charges

Further RESOLVED that the Bar Council institute a complaint pursuant to s.135 of the Legal Profession Act against Mitry in respect of his plea of guilty to charges by the Australian Securities Commission that he was knowingly concerned in Red Anchor Resources financing the purchase of its own shares."

3 When the proceedings commenced on 23rd February 1998, it became apparent that Mr Mitry did not dispute what the Bar Council alleged against him, but sought to raise three issues:

1. At material times, he was unaware of the provisions of the Companies Code

2. He was suffering from a depressive illness

3. He received no financial benefit from the transaction.

4 Initially, the approach of Mr Mitry was that he admitted the facts concerning the transactions that led to his being taken before a magistrate to answer an allegation that he had committed an offence against the Companies Code, but he wished to claim that he had no idea at the time of those transactions that what he did amounted to a criminal offence and that he had acted honestly, but mistakenly.

For its part, the Bar Association wished to prove that he had acted dishonestly and that this conduct amounted to professional misconduct.

Facts

5 Mr Mitry was admitted to the Roll of Solicitors on 19th May 1978. He was admitted to the Roll of Barristers on 14th September 1978 and remained a barrister until 7th August 1986. He then became a solicitor between 8th August 1986 to 22nd September 1988 and a barrister again on 23rd September 1988. Thereafter, he practised as a barrister between 9th March 1989 to 30th June 1992 and 31st March 1994 to 30th June 1996. He did not renew his practicing certificate in 1996. In 1997 he was granted a practising certificate by the Law Society and has practised since that time as a solicitor employed by a firm mainly doing litigation.

6 The Information which brought Mr Mitry before a magistrate alleged an offence against Section 129 of the Companies (New South Wales) Code and provisions of associated legislation then in force. It was in the following terms:

“That Richard Mitry between about 7 August 1990 and 30 November 1990 at Sydney in the State of New South Wales was knowingly concerned in Christopher James Donlon, an officer of Red Anchor Resources Limited, being in default in that Christopher James Donlon was knowingly concerned in the contravention of section 129(1)(a)(i)(A) of the Companies (New South Wales) Code (“the Code”) by Red Anchor Resources Limited in that Red Anchor Resources Limited did in a manner not expressly provided by the Code give financial assistance in connection with the acquisition by Selmit Pacific Property Holdings Pty Ltd of shares in Red Anchor Resources Limited”.

7 The information was laid on 4th August 1995 and first came before a court on 4th September 1995. Ultimately it came for hearing before a magistrate on 15th April 1996, when a plea of guilty was entered on behalf of Mr Mitry by his counsel, Ms L McSpedden. A statement of facts was tendered by consent and the proceedings adjourned for further hearing on 20th June 1996. On that day counsel addressed and the magistrate convicted Mr Mitry and after expressing the view that the offence warranted a sentence of imprisonment, awarded a sentence that he perform 400 hours of community service.

8 Mr Mitry appealed against conviction and sentence to the District Court and came before His Honour Judge P. J. Phelan on 14th August 1996. Although the appeal was an all grounds appeal, it was conducted as if it were an appeal against severity, apparently in the hope that His Honour might dismiss the proceedings under the provisions of Sec 556A of the Crimes Act. In the event, His Honour imposed a fine of $2500 in lieu of the community service order.

9 In his remarks on sentence, His Honour said, inter alia,

“The gravamen of course of the offence is the deception that can be worked upon the public who consider or who might be led to consider that a company is a far more viable institution than it really is, that its assets are far more substantial than it really is, and therefore the capacity to hoodwink those not in the know is manifest and the deception can sometimes have some quite catastrophic effects upon the pockets of investors”.

His Honour made it clear that the sentence that was imposed reflected parity with the sentence imposed upon Mr Donlon, who was the principal in the transaction.

10 The agreed Statement of Facts was in the following terms:

“STATEMENT OF FACTS”

Red Anchor Resources Limited ("RAR")was a company incorporated in New South Wales. During the relevant period the directors of RAR were Christopher James Donlon ("Donlon") and Robert Marshall McLennan ("McLennan"), Gordon Walker and Graeme Philip. It is alleged that Donlon was in default contrary to section 129(5) of the Companies (New South Wales) Code in that Donlon was knowingly concerned in RAR giving financial assistance in connection with the acquisition by Selmit Pacific Property Holdings Pty Limited ("Selmit') of shares in RAR and that the defendant was knowingly concerned in Donlan’s default.

On 30 April 1990 RAR issued a prospectus. The prospectus sought to raise $1.6 million by offering for subscription 8 million fully paid ordinary shares of 20 cents each and 8 million transferable options at an issue price of 1 cent each. Pursuant to the prospectus an application was made for the admission of RAR to the Official List of the ASX for the company's securities to be listed for quotation. As a prerequisite for listing, the ASX required an applicant company to demonstrate that it had received applications from at least 300 independent subscribers for parcels of at least 2,000 shares each and that the spread of shareholders was sufficient for the conduct of an orderly and liquid market in those shares. The ASX initially declined to grant listing approval to RAR until it was satisfied that there was a sufficient spread of subscribers to support a reasonable market in the shares.

Selmit was a company incorporated in New South Wales and the defendant was a director of Selmit. The defendant was also a director of and a registered shareholder in Tamsalu Pty Limited ("Tamsalu") and Valdese Pty Limited (“Valdese”).

On 29 August 1990 the defendant drew three cheques on the Selmit account at Bank Nationale de Paris, Sydney Branch ("BNP"), each cheque was payable to RAR, in the following amounts:

Cheque No. 27325 $30,000.00

Cheque No .27324 $4,200.00

Cheque No. 27323 $300,000.00

On 30 August 1990 Selmit paid the three cheques to RAR and at the same time delivered an application for 1.5 million shares in the RAR issue at 20 cents per share and for 1.4 million options to purchase shares in RAR at an option fee of 1 cent per share. Donlon received Selmit's application, signed by the defendant, and noted the particulars on it. On Friday 31 August 1990 the said three cheques were presented by RAR through its own bank, Westpac to BNP . The cheques were not honoured and were returned to BNP on Monday 3 September 1990, marked “present again”.

On 13 September 1990 a meeting of the directors of RAR was held which was attended by Donlon and 2 other directors of RAR - McLennan and Graeme Philip. . The meeting resolved to allot shares in RAR to Selmit and to grant options to Selmit in accordance with its application dated 30 August 1990. Also at this meeting the directors resolved to make payments of $165,000 to Valdese and a further $165,000 to Tamsalu.

On 13 September 1990 RAR again presented to BNP the three Selmit cheques dated 29 August 1990 from Selmit.. On 14 September 1990 Donlon and McLennan signed cheques drawn upon the account of RAR in favour of Valdese and Tamsalu, e each cheque in the sum of $165,000 Each cheque was endorsed with the request for the issue of a bank cheque. On the same day, the defendant converted the cheques to bank cheques in favour of Valdese for $165,000 and in favour of Tamsalu for $165,000. On 14 September 1990 the bank cheques were endorsed by the defendant on behalf of the payees respectively in favour of Selmit.

On 14 September 1990 the defendant, on behalf of Selmit, caused the bank cheques to be deposited to the account of Selmit at BNP. Also on this date the proceeds of the two bank cheques ( total funds $330,000 ) in the account of Selmit at BNP were used to meet the three cheques which Selmit had on 29 August 1990 drawn in favour of RAR, to the total face value of $334,200.00.

The defendant participated in a record of interview with officers of the Australian Securities Commission on 10 June, 1993 and attended an examination conducted pursuant to Section 19 of the Australian Securities Commission Act, 1989 on 2 July, 1993. During the interview and subsequent examination the defendant stated that he had been approached by Donlan and McLennan sometime before 30 August, 1990 with a request to assist in the float of RAR by purchasing shares in RAR to the value of $300,000.00. The defendant drew cheques on Selmit in favour of RAR and these cheques were given to Donlan. The defendant was unable to arrange an overdraft from BNP to meet the cheques and, as there were no funds in the Selmit account, the cheques were not met on presentation. The defendant informed McLennan and Donlan that he was unable to raise the funds necessary to purchase the shares and it was suggested to him that loans could be made to companies in which the defendant had an interest, Valdese and Tamsalu. These loans would enable the Selmit cheques drawn in favour of RAR for the purchase of the shares to be met and to finance Selmit's purchase of sales in RAR. The defendant stated that it was suggested to him that arrangements for the sale of shares would be made "immediately on float" and the loans would be repaid. During the interview the defendant stated that at the time he was not sure where the money came from and it did not occur to him to check whether the money came from RAR or from someone else. Later, during the examination, the defendant stated that he has received the two cheques from RAR. The defendant stated he countersigned the two cheques and paid them into Selmit’s account.

The defendant stated that that he was not aware that the moneys were paid to Valdese and Tamsalu to conceal the fact that the moneys were paid to enable Selmit to purchase the RAR shares. The defendant states that he was told the money would be paid to Tamsalu and Valdese in order to spread the risk and to avoid the need to obtain shareholder approval for the payment. The defendant, as a Director of Valdese and Tamsalu, signed investments agreements with RAR which represented that in each case $165,000.00 had been lent by RAR to Valdese and Tamsalu as an investment. The defendant stated that these agreements did not reflect the nature of the transaction."

11 Much of the oral evidence concerned the matters referred to in the Statement of Facts and Mr Mitry's attempts to persuade us that he innocently became involved in these matters because he wanted to help a friend, Mr Donlan and because he was suffering from the effects of a depressive illness at the time and did not really appreciate what he was doing. We were unconvinced by his evidence and do not accept his explanations concerning his conduct which covered, not one, but a series of transactions.

12 The investment agreements were before us in evidence. Each of them was signed by Mr Mitry on behalf of either Tamsalu Pty Limited or Valdese Pty Limited. Each was dated 13th September 1990, but according to Mr Mitry, was not executed until the end of September 1990. They each recorded that Red Anchor Resources Limited was investing $165,000 with Valdese or Tamsalu for a period of 30 days and that each of Valdese and Tamsalu would pay an interest rate of 2% above the 30 day Bank Accepted Bill Rate. They provided that the investment sum could be rolled over for further 30 day periods and Tamsalu and Valdese were required to advise Red Anchor Resources Limited of any profits made from the use of the funds and these profits were to be split on a 50/50 basis with Red Anchor Resources Limited.

13 In our opinion, these agreements were nothing but a sham, designed to hide the fact that Red Anchor Resources was providing funds through Tamsalu and Valdese and Selmit for the purpose of buying shares in Red Anchor Resources. No funds at any stage went into the bank accounts of Valdese or Tamsalu.

14 The cheques drawn in favour of Valdese and Tamsalu were endorsed by Mr. Mitry in favour of Selmit and paid into the Selmit bank account. This enabled Selmit to apply for shares in Red Anchor Resources Ltd. In our opinion, Mr. Mitry was fully aware of the reasons for this method of enabling Selmit to make the share purchases and he knew that the investment agreements were a sham, since he knew at all times that Valdese and Tamsalu had no capacity to engage in any investment activity, no interest in borrowing money and he in fact suggested that he should endorse the bank cheques because if money were paid into either account, the bank would use it to reduce the company’s indebtedness to the bank.

15 On 4th November 1990, a sham demand was made by Red Anchor Resources Ltd by means of letters addressed to Tamsalu and Valdese demanding repayment of the funds advanced by Red Anchor Resources Ltd plus interest and on 6th November 1990, cheques on each company were drawn and presented to the bank. There was some dispute by Mr. Mitry about these cheques. He claimed that the signatures on them were not his but he also conceded that he may have provided to Mr. Donlan blank cheque forms which were not signed. He could not give any satisfactory explanation as to why he would make blank cheque forms available to Mr. Donlan.

In our opinion, these cheques were presented so that Donlan could pretend to the auditor that steps were being taken by Red Anchor Resources Ltd to get the money back. In fact, neither company had any capacity to draw any large cheque and in reality, neither company owed anything to Red Anchor Resources Ltd.

16 On 7th November 1990, the auditor of Red Anchor Resources Limited the wrote to the accountants of the company seeking confirmation that the investments by the Company in Valdese and Tamsalu of $165,000 were bona fide investments “and cannot be characterised as loans to Directors in breach of Section 230, 129 or any other section of the Companies (New South Wales) Code” and that the investments have been repaid in full with interest.

On the same day, the auditors wrote to Mr Mitry and asked him to confirm the bona fides of the transactions. The letter was in the same terms as the letter to the accountants to which we have just referred.

17 By letter of 8th November 1990, written in his own hand and on letterhead proclaiming him to be a barrister at law, Mr Mitry replied to the auditor, confirming that the investments were genuine and were not in breach of the Companies (New South Wales) Code.

What he wrote in this letter was clearly false and was intended, in our opinion, to deceive the auditor. This letter was just another step in the sham transactions which are detailed above. We cannot accept, despite Mr. Mitry’s claims to innocence, that he did not fully appreciate that he was involved in a series of sham transactions which were illegal and designed to deceive the Stock Exchange into giving permission to list a company which in fact did not comply with the listing requirements.

18 We have earlier referred to the remarks on sentence by His Honour Judge Phelan. We respectfully agree with those remarks.

19 The original Information in this Tribunal was filed on 27 June 1997. Annexure A to that Information set out the facts alleged by the Bar Association. It was in the following terms:

"The facts, matters and circumstances on which the Council relies are as follows:

1. Between 7 August 1990 and 30 November 1990 at Sydney in the State of New South Wales, the Barrister was knowingly concerned in Christopher James Donlon, an officer of Red Anchor Resources Limited, being in default in that Christopher James Donlon was knowingly concerned in the contravention of s.129(1)(a)(i)(A) of the Companies (NSW) Code ("the Code") by Red Anchor Resources Limited in that Red Anchor Resources Limited did in a manner not expressly provided by the Code, give financial assistance in connection with the acquisition by Selmit Pacific Property Holdings Pty Limited of shares in Red Anchor Resources Limited contrary to s.129(5) of the Companies (NSW) Code and s.38(1) of the Companies & Securities (Interpretation and Miscellaneous Provisions) (NSW) Code ("the Offence").

2. On or about 4 September 1995, the Barrister was charged with the Offence

3. On or about 20 June 1996, the Barrister pleaded guilty before a Magistrate, Mr Molan, and was sentenced to 400 hours of community service.

4. On or about 20 June 1996, the Barrister lodged an appeal against sentence to the District Court of New South Wales.

5. On 14 August 1996, His Honour Judge Peter Phelan quashed the order for community service and substituted therefore an order that the Barrister pay a fine of $2,500.00.

6. On 24 April 1996, the Council resolved to initiate a complaint pursuant to s.135 of the Legal Profession Act 1987 (as amended).

7. On 15 November 1996, the Council requested the Legal Services Commissioner to accept the complaint pursuant to s.138(2) of the Legal Profession Act 1987 (as amended).

8. On 5 February 1997, the Legal Services Commissioner accepted the complaint.

9. On 6 March 1997, the Council resolved that the complaint be referred to the Legal Services tribunal on the basis that the Council is satisfied, after investigation, that there is a reasonable liklihood that the Barrister will be found guilty of professional misconduct."

20 In his Reply, filed on 10th September 1997, Mr Mitry admitted paragraph 1, but only in a limited way. In effect he admitted that he was knowingly concerned in Mr Donlon being in default, " but not insofar as it is alleged that the barrister was knowingly concerned in C.J.Donlon being knowingly concerned in the contravention of the Companies Code".

He did not deny the other 8 paragraphs and sought to raise various matters in mitigation including his state of health at the time of the offences, that he did not know he was committing offences, that he voluntarily approached the Australian Securities Commission when he became aware of the legal position, that he did not seek to excuse the offence, that he would never have deliberately flouted the law, that he received no financial benefit for what he did, that he was never an officer, nor an employee of the company, that he had engaged in no similar conduct before or since and that he would seek to rely on medical evidence and personal references.

21 On 9th February 1998, he swore an affidavit (exhibit 1) in which he swore that the matters in his Reply were true, gave evidence of matters surrounding the transactions and a personal history.

In our opinion, his Reply and this affidavit not only admit the truth of the complaint, but accept that the facts surrounding the complaint amount to professional misconduct.

22 Notwithstanding this, on 24th February 1998, Mr Mitry filed another Reply in which he denied professional misconduct, denied the truth of the facts set out in paragraph 1 of the facts annexed to the Bar Association's Information and did not admit the truth of the remaining paragraphs. He also sought to rely on a matter not directly alleged by him before, namely:

"At the time the events of the complaint occurred the barrister (as he then was) was suffering from pseudodementia (significant cognitive impairment), triggered by untreated depression caused by the death of a younger brother (in August 1989) and sister (September 1989)”.

He said that because of his impairment of faculties, he did not put in inquiry, as he normally would, Donlon's approaches.

23 This led to the Bar Association filing by leave of the Tribunal a more extensive Amended Information.

The decision to file an Amended Reply arose on 24 February 1998, when his then counsel, Mr F McAlary Q.C. stated that he had advised Mr Mitry that he should not have pleaded guilty and that he was not guilty of any professional misconduct. It became clear that this was the case which he wished to put on behalf of Mr Mitry. It was obviously quite different from the case which was being run on 23rd February and the then Chairman of the Tribunal Panel, Mr Finnane Q.C., directed that an Amended Reply be filed and served. That was done on that day.

24 Since then, Mr Mitry has sought to assert that he was not guilty of the offence to which he had pleaded guilty and that he was not guilty of professional misconduct.

25 Subsequently, after many adjournments, granted at the request of Mr Mitry, or his new counsel, Mr A McQuillen, the hearing of the matter concluded on 7th May 1999. Despite the many adjournments, and the oral evidence of Mr Mitry, the facts alleged by the Bar Council at the outset of the case, were not shown to be in any way incorrect, nor was any doubt ever cast on the validity of the conviction and the correctness of Mr Mitry's plea of guilty. Indeed, he eventually tendered a file note taken from the file of his solicitor, Jenny Bull and Company. This note, drafted by Ms L McSpedden and signed by Mr Mitry makes clear that he was given legal advice about the effect of a plea of guilty and that he instructed his legal advisers that he wished to plead guilty, knowing that he could be given a possible sentence and that his name could be removed from the roll of Barristers. The note, in full, is in the following terms:

"I, Richard Mitry am charged under the Companies (NSW) Code with being knowingly concerned in Christopher James Donlan an officer of Red Anchor Resources Ltd being in default. I have been advised by my solicitor and barrister that I may be convicted if I defend the matter and I also appreciate that I could be acquitted. I instruct that I do not recall the circumstances in which I received bank cheques made out in return for cheques to companies related to me by Red Anchor Resources Ltd. I have seen bank cheque requisition forms which bear signatures purportedly mine and which bear the name of Red Anchor Resources Ltd. I do not recall signing same nor can I say I saw the name Red Anchor Resources. However two weeks after that time I signed loan agreements to Red Anchor Resources and I accept that this is sufficient to constitute the offence with which I am charged.

Accordingly I instruct that I wish to plead guilty to the offence knowing that a conviction could involve a sentence and could cause my name to be removed from the roll of barristers. The facts that I will accept on plea are in conformity with the above.

Richard Mitry”

26 When all of the facts and circumstances are given consideration, it is obvious that there was no basis at all for Mr Mitry to claim that he was not guilty of the offence. It is also clear, in our opinion, that what was done by him was done deliberately and with an intention to help Mr Donlon perpetrate a dishonest scheme which involved deceiving an auditor, the Australian Stock Exchange and the investing public.

Medical Evidence

27 Mr. Mitry sought to establish that he was suffering from some form of depression at the time of these transactions and even claimed to have been suffering from a condition known as “pseudodementia". He called in support of his medical condition, Dr. Jonathan Phillips and he relied on some medical material supplied by him to the Bar Association. We do not accept that he was at any relevant time affected by any psychiatric condition which could conceivably have affected his capacity to give consent to the transactions with which he became involved.

Dr. Phillips, in any event, dismisses the possibility of Mr. Mitry suffering from pseudodementia.

Any other explanations

28 Mr. Mitry could not advance to our satisfaction any explanation for his conduct which could satisfy us that he had no intention to commit a crime. He also failed to satisfy us that he did not have a full understanding of what he was doing during the course of these transactions. Indeed, to the contrary, he ultimately conceded that the transactions were sham transactions and that a person who engaged in them was not of good fame and character and was not fit to be on the roll of barristers. Unfortunately, this concession was made only on Tuesday 4th May 1999. It was a concession which, in our opinion, should have been made when the proceedings commenced.

Professional misconduct

29 In our opinion, professional misconduct was established by the evidence brought by the Bar Association and was confirmed by the evidence of Mr. Mitry and in particular, his agreement that the transactions were sham transactions.

Evidence in mitigation

30 Mr.Mitry gave evidence himself about the extensive community work with which he is involved. Much of this is concerned with the Lebanese community. He also gave evidence that he was actively involved in litigation, mainly in civil actions. He pointed out that as a result of his emotional reaction to the deaths of close family members, he had left active practice for some time and had gone to live in a rural area. This had plunged his family into poverty.

He was renting a house in which his family lived and was forced to move from that house because the lease had expired. Without an income as a solicitor-advocate, he would not be able to support his family.

31 His wife gave evidence in support of his being a loving father of six children and a good husband She also supported his evidence that he was a dupe of Mr. Donlan. However, it must be said that little weight can attach to the evidence of Mrs. Mitry on the question whether her husband was a dupe of Mr. Donlan, since clearly she was never told by her husband just what was going on.

Mrs. Mitry also confirmed the fact that the family was suffering considerable economic hardship and would suffer even more if Mr. Mitry were to lose his entitlement to practise law.

32 Evidence was also given by a Shire councillor who knew Mr. Mitry and regarded him as a person of good character. A practising barrister gave evidence as to his good fame and character and some personal references were also produced.

33 Whilst all of the material produced in mitigation could be said to demonstrate that, apart from the matters which were the subject of the complaint, Mr. Mitry was a person of good fame and character, a loyal friend, a person who gave active community service and someone who would suffer considerable hardship if his name were removed from the Roll of Barristers, nevertheless, the duty of this Tribunal is to act in accordance with law as it is laid down by the Courts. Disciplinary proceedings“ are concerned with the protection of the public: Wentworth v NSW Bar Association (1992) 176 CLR 239 per Deane, Dawson, Toohey and Gaudron JJ at 251; Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-2; New South Wales Bar Association v Evatt (1986) 117 CLR 177 at 183-4; 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; 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 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 instant solicitor has done”:Foreman per Mahoney JA at 441; see also 444” (Law Society of New South Wales v Walsh – Court of Appeal unreported 15 December 1997 per Beazley J.A p48; see also Powell J.A p 40).

34 The barrister in these proceedings is guilty of professional misconduct. The misconduct of which we have found him guilty shows that he is not a person of good fame and character. He is not fit to be on the roll of barristers.

35 We make formal orders as follows:

1. We find that the barrister is guilty of professional misconduct as alleged.

2. We order that the name of Richard Mitry be removed from the Roll of Legal Practitioners.

3. We order that the barrister pay the costs of the New South Wales Bar Association.

Last Updated: 09/08/1999