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NSW Crest

Administrative Decisions Tribunal
New South Wales

Medium Neutral Citation:
Council of the Law Society of NSW v Mee Ling [2012] NSWADT 146
Hearing dates:
1 April 2011 & 17 June 2011 [102024 & 102025]29 March 2012 [102024 & 102025 (as amended) & 112033]
Decision date:
25 July 2012
Jurisdiction:
Legal Services Division
Before:
M Riordan, Judicial Member
J Pheils, Judicial Member
C Bennett, Non Judicial Member
Decision:

1.The Solicitor's name be removed from the local Roll of Legal Practitioners;

2. The Solicitor pay the Law Society's Costs of Applications numbered 102024 and 102025 (including the costs of the Amended Applications) and 112033, as agreed or assessed.

3. While we are satisfied that a compensation order is appropriate, we note that the claim has not yet been quantifed. We therefore grant the Compensation Claimant liberty to apply in respect of that claim.

Catchwords:
Solicitor - Disciplinary Application - Professional Misconduct - Claim for Compensation
Legislation Cited:
Legal Profession Act 1987
Legal Profession Act 2004
Legal Profession Regulation
Revised Professional Conduct and Practice Rules 1995 (Solicitors' Rules)
Cases Cited:
Allinson v General Council of Medical Education and Registration (1894) 1 QB 750
Law Society of New South Wales v Walsh [unreported, December 1997];
Harvey v The Law Society of New South Wales (1975) 49 ALJR 362 at 364;
Ex parte Macauley (1930) 30 SR (NSW) 193;
Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 297-8;
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 441-442;
Dupal v Law Society of New South Wales [1990] NSWCA 56;
New South Wales Bar Association v Evatt (1986) 117 CLR 177 at 184;
Category:
Principal judgment
Parties:
Council of the Law Society of New South Wales (Applicant)
Paul Adrian Mee Ling (Respondent)
Representation:
Counsel
E A Englebrecht (Respondent)
L W Pierotti (Applicant, and mentioned appearance of Mr Ellison SC (the Compensation Claimant)
Mee Ling (Respondent)
File Number(s):
102024, 102025 & 112033

REASONS FOR DECISION

Background

1The Council of the Law Society of New South Wales ("the Law Society") filed a total of 4 Applications under the Legal Profession Act 2004 ("the LPA 2004") alleging that the Respondent, Paul Adrian Mee Ling ("the Solicitor") was guilty of professional misconduct and unsatisfactory professional conduct as follows.

Application no. 102024 - Filed 5 October 2010

2The Law Society alleged that the Solicitor was guilty of professional misconduct on the following grounds:

(1)Failure to comply with undertaking;

(2)Failure to comply with condition on practising certificate;

(3)Failure to respond to the Society's correspondence.

3The grounds were particularised as follows:

(1)"Together with his Application for Practising Certificate for the year ending 30 June 2009 Mr Paul Adrian Mee Ling ["the Solicitor"] provided a letter to the Society's "Membership Department" advising that he had not complied with the Mandatory Continuing Legal Education requirements ["MCLE requirements"] for the 2007 -2008 year. The Solicitor sought an extension to 31 December 2008 by which to comply with the MCLE requirements for the 2007 - 2008 year which had ended on 31 March 2008.

(2)By letter dated 31 July 2008 the Society informed the Solicitor its Licensing Committee had considered his request for an extension of time by which to comply with the outstanding MCLE requirements and had granted him an extension of time to 31 December 2008 by which to complete same subject to receipt from him of an undertaking to the effect that he would comply with the MCLE requirements for the year ended 31 March 2008 by 31 December 2008 and would provide evidence of such compliance.

(3)By undated letter received by the Society on 8 August 2008 the Solicitor provided his signed undertaking dated 1 August 2008 ["the undertaking"] as requested by the Licensing Committee. The undertaking was in the following terms:

"I undertake to satisfy my Mandatory Continuing Legal Education requirements by the date specified by the Licensing Committee and to provide evidence of compliance on the form provided. I understand that failure to comply with this undertaking may result in the matter being referred to professional Standards Division. "

(4)As at 31 December 2008 the Solicitor had not informed the Society as to his compliance or otherwise with the MCLE requirements.

(5)By letter dated 18 February 2009 the Society wrote to the Solicitor requesting his advices as to his compliance with and details of the MCLE undertaken by him in compliance with his undertaking. The Solicitor did not respond to the Society's letter.

(6)By letter dated 17 April 2009 the Society wrote to the Solicitor again requesting his advices as to his compliance with and details of the MCLE undertaken by him in compliance with his undertaking. The Solicitor did not respond to the Society's letter.

(7)By letter dated 3 August 2009 the Society wrote to the Solicitor again requesting his advices as to his compliance with and details of the MCLE undertaken by him in compliance with his undertaking. The Society also informed the Solicitor that failing his response by 17 August 2009 the matter would be referred to the Licensing Committee with a recommendation that the matter be referred to the Professional Standards Department of the Society in respect of his failure to comply with his undertaking and his further failure to respond to the Society's correspondence. The Solicitor did not respond to the Society's letter.

(8)By letter dated 28 October 2009 the Society informed the Solicitor that on 26 October 2009 the Licensing Committee had referred his conduct to the Professional Standards Department.

(9)On 8 April 2010 the Solicitor's conduct was referred to the Professional Standards Department.

(10)On 15 April 2010 the Society's Professional Conduct Committee resolved, relevantly, that the following complaints be made against the Solicitor:

(a)Failure to comply with undertaking.

(b)Failure to comply with condition on practising certificate.

(c)Failure to respond to the Society's correspondence.

(11)By letter dated 19 April 2010 the complaints referred to in paragraph 10 above were referred to the Solicitor for his response. No response was received from the Solicitor.

(12)Under cover of the Society's letter of 4 May 2010 a Notice issued pursuant to the provisions of Section 660 of the Legal Profession Act, 2004 ["the Act"] was forwarded to the Solicitor.

(13)By letter dated 26 May 2010 the Society wrote to the Solicitor noting that it had yet to receive a response from him to both the correspondence and the Section 660 Notice.

(14)By letter dated 31 May 2010 the Solicitor wrote to the Society requesting that he be allowed to 5.00pm on 1 June 2010 by which to respond to the Notice.

(15)Under cover of letter dated 1 June 2009 (sic), the Solicitor forwarded a completed MCLE record form for the 2007 - 8 year. The MCLE form indicated that the Solicitor had completed the requisite 10 units on 26 March 2009.

(16)Under cover of a further letter dated 1 June 2009 (sic), the Solicitor provided his response to the Notice."

Application no. 102025 - Filed 5 October 2010

4The Law Society alleged that the Solicitor was guilty of both professional misconduct and unsatisfactory professional conduct on the following grounds:

(1)Professional misconduct

(a)Complaint by Mr Thangaraj - File 36774

(i)Failure to pay the complainant's fees

(b)Complaint by Law Society - File 37635

(i)Without reasonable excuse, failed to comply with a requirement under section 660 of the Legal Profession Act 2004

(ii)Failed to assist the Law Society with the investigation of a complaint.

(2)Unsatisfactory Professional Conduct

(a)Complaint by Mr Thangaraj - File 36774

(i)Failure to respond to complainant's communications.

5The grounds were particularised as follows:

(1)"On or about 18 June 2007 the Solicitor briefed Mr Murugan Thangaraj of Counsel ["the complainant"] to appear as junior Counsel to Mr Paul Byrne SC in the matter of R v Richard Kurland.

(2)On 19 June 2007 the complainant forwarded a costs agreement [dated 18 June 2007] to the Solicitor. The Agreement was between the complainant and the Solicitor.

(3)On or about 9 July 2007 the complainant rendered to the Solicitor a fee note of that date in the sum of $10,351.00.

(4)On or about 17 July 2007 the complainant rendered to the Solicitor a fee note of that date in the sum of $8,910.00.

(5)On 20 July 2007 the Solicitor rendered to his client an account in the sum of $47.227.95 which included the complainant's fees [as per paragraphs (3) and (4) above] in the sum of $19,261.

(6)Some time after 17 July 2007 the Solicitor informed the complainant that his client had placed him in funds for the total of the complainant's outstanding fees but that the client had asked the Solicitor not to forward same to the complainant as there were insufficient funds in the cheque account in question. No funds were forwarded to the complainant.

(7)By e-mail dated 8 January 2008 the complainant asked the Solicitor to contact him with regard to his outstanding fees.

(8)On or about 28 January 2008 the Solicitor informed the complainant that he was "seeing the client and would call back regarding when payment of fees would take place." The Solicitor did not telephone the complainant as promised.

(9)Under cover of an e-mail of the same date, the complainant's assistant clerk ["the clerk"] forwarded a letter of demand to the Solicitor dated 12 February 2008. There was no payment by the Solicitor.

(10)By e-mail transmission dated 5 March 2008 the clerk again asked the Solicitor to attend to the payment of the complainant's outstanding fee notes failing which the Solicitor's continuing failure would be referred to the Society.

(11)On 12 March 2008 the Solicitor informed the clerk to the effect that that he had an $11,000, 00 cheque and will be there by Tuesday, 18 March.'' The cheque was not received by the complainant by the promised date.

(12)On 19 March 2008 the clerk telephoned the Solicitor seeking payment of Counsel's outstanding fees. The Solicitor told her he would deliver a cheque himself on 20 March. The Solicitor did not deliver the cheque as promised.

(13)The clerk again telephoned the Solicitor on 26 March 2008 seeking payment of Counsel's outstanding fees. The Solicitor told her he would deliver the cheque himself on 27 March.

(14)Under cover of letter dated 27 March 2008 the Solicitor provided to the complainant his client's cheque in the sum of $11,000. The Solicitor wrote:

"The writer apologises for his tardiness in this matter, but the client has raised objections to your charges. The writer has not had time to apply himself to the substance of these and thus either proceed upon them or take the matter further with the client. We are in the throes of moving office at present. As from 1 April, the new address will be... "

(15)On 4 April 2008 the clerk forwarded e-mail to the Solicitor therein on forwarding the complainant's acknowledging receipt of the aforesaid $11,000 and, relevantly, canvassing with the Solicitor his client's 'objections'.

(16)By letter dated 11 June 2008 the clerk wrote to the Solicitor noting that despite the Solicitor's earlier assurances that the matter of the outstanding fees would be addressed shortly after his letter of 27 March 2008, there had been no further communication from the Solicitor. There was no response from the Solicitor.

(17)By e-mail dated 30 June 2008 the clerk informed the Solicitor that formal steps would be taken to recover the complainant's outstanding fees. There was no response from the Solicitor.

(18)The Solicitor did not pay the complainant's outstanding fees and on 7 July 2008 the complainant made a formal complaint to the Office of the Legal Services Commissioner in respect of the Solicitor's continuing failure to pay his outstanding fees and to his failure to respond to correspondence in relation to those outstanding fees ["the complaint"].

(19)The complaint was referred to the Solicitor under cover of the Society's letter dated 8 August 2008 and to which the Solicitor responded on 22 August 2008 therein requesting that he be given a further fourteen (14) days in which to fully respond but, in the interim, indicating that "[T] he reason for the non-payment of the complainant's fees is the client's dissatisfaction with the complainant's work..."

(20)By letter dated 15 September 2008 to the Solicitor the Society noted that the Solicitor had not further communicated with it in respect of the complaint and requested that a response be provided by 29 September 2008.

(21)By letter dated 27 September 2008 to the Society, the Solicitor, relevantly, advised that the monies to meet the complainant's outstanding fees were being retained in trust, had not been paid on instructions that the complainant's fees were being disputed by the client. The Solicitor raised various objections to the complainant's fees and although he submitted that there were substantial and reasonable grounds upon which to dispute the complainant's account", he conceded that his client had taken some time "in reaching a conclusion about them". The Solicitor conceded that no application had been made to have the complainant's fees assessed, that to do so would then require an extension of time to be granted by the Court and suggested that "the matter is one best dealt with by dealing with by way of mediation and informal determination."

(22)By letter dated 23 December 2008 the Society wrote to the Solicitor informing him of the advices of the Society's Costs Solicitor to the effect that the Solicitor should immediately advise his client that the complainant's fees should be paid from the monies held in trust and that if the Solicitor's client did not authorise such payment, the Solicitor should personally pay the outstanding fees and subsequently consider recovering the paid fees pursuant to Clause 88(3)(a)(iii) of the Legal Profession Regulation, 2005. The Solicitor did not respond to the Society's letter of 23 December 2008.

(23)By letter dated 8 April 2009 the Society requested, in part, that the Solicitor provide copies of bills issued to his client and all pages of the Solicitor's trust ledger in relation to his client's matter. This material was provided by the Solicitor under cover of his letter dated 20 April 2009.

(24)Under cover of the Society's letter dated 29 June 2009 the Solicitor was, in part, provided with a draft Section 660 Notice which it was proposed be served on him absent his voluntary provision of the information therein sought. The Solicitor did not respond to this correspondence by the date stipulated therein.

(25)On 17 July 2009 the Solicitor was served with a Notice pursuant to the provisions of Section 660 of the Legal Profession Act, 2004 ["the Act"] and issued on 16 July

2009 ["the Notice"]. The Notice required compliance within 21 days of its service on the Solicitor.

(26)The Solicitor did not comply with the requirements of the Notice within the requisite time period.

(27)On 12 August 2009 the Solicitor was personally served with an Information Notice pursuant to Section 61 of the Act inviting his submissions, by 19 August 2009, as to why Council should not suspend his Practising Certificate due to his failure to comply with the Section 660 Notice.

(28)By letter dated 19 August 2009 the Solicitor responded to the Information Notice.

(29)On 20 August 2009 the Professional Conduct Committee of the Society resolved, pursuant to the provisions of Section 504 of the Legal Profession Act, 2004, to make further complaints against the Solicitor:

(a)Without reasonable excuse, failed to comply with a requirement under Section 660 of the Legal Profession Act, 2004.

(b)Failed to assist the Law Society with the investigation of a complaint.

["the further complaints"].

(30)On 31 August 2009 the Solicitor provided to the Society a Statutory Declaration in response to the Notice.

(31)The further complaints were referred to the Solicitor under cover of the Society's letter of 15 September 2009. The Solicitor did not respond to the further complaints.

(32)The complainant's fees, other than for the payment of the abovementioned $11,000, remain outstanding."

Amended Applications in 102024 & 102025 - Filed 5 December 2011

6The Law Society sought leave to amend Applications numbered 102024 and 102025 to include the following additional allegations:

(1)The Legal Practitioner has failed to comply with an Order of the Administrative Decisions Tribunal.

(2)The Legal Practitioner attempted to mislead the Administrative Decisions Tribunal.

7These grounds were particularised as follows:

(1)"PAUL ADRIAN MEE LING ["the Legal Practitioner"] was the Respondent in proceedings 092004 ["the first proceedings"] heard by the Administrative Decisions Tribunal [Legal Services Division] ("the Tribunal"].

(2)The Tribunal having heard the first proceedings, on 16 February 2010 ordered, in part:

(3)That Paul Adrian Mee Ling is permitted to continue practising as a Solicitor on the condition that he shall within 14 days of the date of this Decision provide the Society with the following irrevocable written undertakings:

(a)That he will on and from the date of his undertakings participate in the Senior Solicitors Program and accept mentoring by a Senior Solicitor nominated by the Society for a period of no less than (3) years from the date of this decision and to confer frequently and co-operate with that Senior Solicitor in the conduct of his program...

(4)By letter dated 3 March 2010 the Legal Practitioner advised:

"I have spoken to Mr. Greg Walsh today. He accepts my nomination of him as a Senior Solicitor for the purpose of my participation in the programme. I informed him of the circumstances and I shall be communicating with him on a monthly basis.
Kindly advise me of your decision about this arrangement. If you do not accept Mr. Walsh, then I will change Senior Solicitors."

(5)By letter dated 4 March the Applicant Society informed the Legal Practitioner, relevantly:

"The Law Society agrees to the nomination of Mr Greg Walsh as Senior Solicitor for the purposes of the (sic) Order 3(c)."

(6)The Legal Practitioner was the subject of two further Applications before the Tribunal - 102024 and 102025 [the subsequent proceedings], which were heard on 1 April 2011.

(7)On 1 April 2011 the Tribunal Ordered [specifically with respect to Proceedings 102025], relevantly, as follows:

"The Respondent to pay to the Compensation Claimant, Mr Murugan Thangaraj, the sum of $8,261, such sum to be payable within fourteen (14) days."

(8)On 1 April 2011 the Tribunal had said of the payment of compensation: "We are making an order that the respondent pay the sum."

(9)The subsequent proceedings were adjourned to 17 June 2011 for further hearing as to final Orders.

(10)With respect to the further hearing on 17 June 2011 the Legal Practitioner filed an Affidavit sworn 3 June 2011 ["the Affidavit"].

(11)At paragraph 4 of the Affidavit the Legal Practitioner swore, relevantly:

"...I paid Mr. Thungaraj the sum of $8,261.00 by trust cheque on 8 April 2011 by delivering the same to his chambers. ..."

(12)At paragraph 13, of the Affidavit the Legal Practitioner swore: "My Senior Solicitor is Mr. Greg Walsh."

(13)The Legal Practitioner, in breach of the Order of the Tribunal in the subsequent proceedings, did not pay the compensation in the manner ordered by the Tribunal.

(14)The Legal Practitioner did not, as required by Order 3(c) of the Tribunal's Orders in the first proceedings, retain Mr Greg Walsh as his "Senior Solicitor".

(15)By virtue of the contents of paragraph 13 of the Affidavit, the Solicitor attempted to mislead the Tribunal hearing the subsequent proceedings."

8Leave was granted to amend those Applications and the Tribunal ordered that the amended Applications should be heard together.

Application no. 112033 - Filed 5 December 2011

9The Application (as originally filed) included detailed particulars, which included particulars of both professional misconduct and unsatisfactory professional conduct against the Solicitor, but it did not separately plead any Grounds, as follows:

"The Grounds of the Application (including particulars) are as follows:

(1)Complaints by Mr Ellison SC

  • On 14 August 2007 the Solicitor was instructed by Ms Jill Ortner ["Ms Ortner"] in respect of a claim against the Estate of the late Alan Shing.
  • On 30 January 2008 Supreme Court proceedings were commenced ["the proceedings"].
  • On or about 16 May 2008 Mr Lindsay Ellison SC ["Mr Ellison"] was instructed by the Solicitor to represent Ms Ortner in the proceedings.
  • Mr Ellison provided to the Solicitor his costs disclosure document dated 21 May 2008 and which he replaced with a further costs disclosure document dated 23 May 2008.
  • The proceedings were the subject of a judgment on or about 10 December 2009.
  • On 11 December 2009 Mr Ellison rendered a memorandum of fees to the Solicitor in the sum of $33,495.00. The Solicitor did not communicate with Mr Ellison in respect of his memorandum.
  • On 17 May 2010 Mr Ellison sent to the Solicitor a further account of that date. The Solicitor did not communicate with Mr Ellison in respect of his further account.
  • On 18 June 2010 Mr Ellison wrote to the Solicitor again seeking payment of his fees. The Solicitor did not communicate with Mr Ellison in respect of his letter.
  • On 29 July 2010 and 2 August 2010 Mr Ellison telephoned the Solicitor but was not able to speak to him. The Solicitor did not return Mr Ellison's telephone calls.
  • On 3 August 2010 Mr Ellison wrote to the Solicitor again seeking payment of his fees. The Solicitor did not communicate with Mr Ellison in respect of his letter.
  • On 18 February 2011 the Solicitor had delivered to Mr Ellison a trust account cheque in the sum of $20,000 together with a covering letter.
  • The balance of Mr Ellison's fees remain unpaid.

(2)Complaints by Law Society

  • The Solicitor's Memorandum of Account to Ms Ortner was dated 17 November 2010 ["the account"]. The Solicitor had not rendered to Ms Ortner any earlier account.
  • During the time of his instructions from Ms Ortner, the Solicitor received the following sums on the dates next thereto stated:
  • 21 September 2007 $500.00
  • 1 February 2008 $1,000.00
  • 9 December 2008 $2,000.00
  • 29 May 2009 $1,000.00
  • 25 May 2010 $700.00
  • The Solicitor received a further sum of $800.00, which was deposited into his trust account ["the trust funds"].
  • The trust funds were accounted for in a Trust Account Statement dated 17 November 2010.
  • The payments were not deposited into the Solicitor's trust account. The payments were, according to the Solicitor, made for the following purpose(s):
  • 21 September 2007 $500.00 costs and disbursements
  • 1 February 2008 $1,000.00 filing fee reimbursement
  • 9 December 2008 $2,000.00 for fees
  • 29 May 2009 $1,000 for fees
  • 25 May 2010 $700.00 on account of account
  • and were banked in the Solicitor's office account.
  • The Solicitor did not provide a costs disclosure to Ms Ortner."

10The Tribunal ordered that this Application should be heard together with the Amended Applications 102024 and 102025 and listed the matter for further hearing on 29 March 2012.

11On 29 March 2012 the Law Society sought leave to amend this Application to include separate "Grounds" before the particulars of the complaints, as follows:

"Professional Misconduct

Complaint by Lindsay Ellison - File 38387

1. Breach of Rule 32 of the Professional Conduct and Practice Rules.

2. Breach of Rule 33 of the Professional Conduct and Practice Rules.
Complaint by Law Society - File 38635

1. Breach of s.254 of the Legal Profession Act, 2004.

2. Breach of s.260 of the Legal Profession Act, 2004.

Unsatisfactory Professional Conduct

Complaint by Lindsay Ellison - File 38387

3. Failure to respond to the complainant's correspondence or to return his telephone calls."

12While the Solicitor opposed these amendments, the evidence before us indicated that the Law Society wrote to him on 28 July 2011, specifically advising him of the terms of a Resolution made by the Professional Conduct Committee on 21 July 2011 (Annexure "Z" to Exhibit H1) and that the proposed "Grounds" were identical to the terms of that Resolution.

13Accordingly, we determined that the proposed amendments did not cause the Solicitor any prejudice, as he had been on notice of the terms of the Resolution (and therefore the Grounds) for approximately eight (8) months. We therefore granted leave to amend the Application.

Orders sought by the Law Society

14In the original Applications numbered 102024 and 102025, the Law Society sought orders that the Solicitor be reprimanded and that he pay an extensive fine and pay its costs of and incidental to the proceedings, together with any further orders as the Tribunal sees fit.

15However, in the Amended Applications no. 102024 and 102025, the Law Society sought orders that the name of the Legal Practitioner be removed from the Roll and that he pays its costs of the Amended Applications and any further hearing of it, and such further orders as the Tribunal sees fit.

16In Application no. 112033 the Law Society sought orders that the Application be heard together with the previous Applications, as well as orders that the name of the Legal Practitioner be removed from the Roll and that he pay the costs of the Amended Application and any further hearing of it and such further orders as the Tribunal sees fit.

17In addition, in Application no. 112033 Mr Lindsay Ellison SC sought compensation "the nature of which is to be advised".

Relevant Legislation, Regulations and Rules

18Rule 32 of the Revised Professional Conduct and Practice Rules 1995 (Solicitors' Rules) provide:

"Contracting for services
A practitioner who deals with a third party on behalf of a client for the purpose of obtaining some service in respect of the client's business, must inform the third party when the service is requested, that the practitioner will accept personal liability for payment of the fees to be charged for the service or, if the practitioner is not to accept personal liability, the practitioner must inform the third party of the arrangements intended to be made for payment of the fees."

Rule 33 of the Solicitors' Rules provides:

"Undertakings

A practitioner who, in the course of providing legal services to a client, and for the purposes of the client's business, communicates with a third party orally, or in writing, in terms which, expressly, or by necessary implication, constitute an undertaking on the part of the practitioner to ensure the performance of some action or obligation, in circumstances where it might reasonably be expected that the third party will rely on it, must honour the undertaking so given strictly in accordance with its terms, and within the time promised (if any) or within a reasonable time."

Section 254 of the 2004 Act provides:

"Certain trust money to be deposited in general trust account
(1) Subject to section 258A, as soon as practicable after receiving trust money, a law practice must deposit the money in a general trust account of the practice unless:

(a) the practice has a written direction by an appropriate person to deal with it otherwise than by depositing it in the account, or
(b) the money is controlled money, or
(c) the money is transit money, or
(d) the money is the subject of a power given to the practice or an associate of the practice to deal with the money for or on behalf of another person.
Maximum penalty: 100 penalty units.
(2) Subject to section 258A, a law practice that has received money that is the subject of a written direction mentioned in subsection (1) (a) must deal with the money in accordance with the direction:

(a) within the period (if any) specified in the direction, or
(b) subject to paragraph (a), as soon as practicable after it is received.
Maximum penalty: 100 penalty units.
(3) The law practice must keep a written direction mentioned in subsection (1) (a) for the period prescribed by the regulations.
Maximum penalty: 50 penalty units.

(5) A person is an "appropriate person" for the purposes of this section if the person is legally entitled to give the law practice directions in respect of dealings with the trust money."

Section 260 of the 2004 Act provides:

"Intermixing money

(1) A law practice must not, otherwise than as permitted by subsection (2), mix trust money with other money.
Maximum penalty: 100 penalty units.

(2) A law practice is permitted to mix trust money with other money to the extent only that is authorised by the Law Society Council and in accordance with any conditions imposed by the Law Society Council in relation to the authorisation."

Section 4 of the 2004 Act defines "law practice" as including:

"(a) an Australian legal practitioner who is a sole practitioner,"

Matters in Dispute

19The Solicitor filed Replies in relation to each of the Applications and their contents are summarised as follows:

(1)Application [Original] 102024

He admitted all grounds as alleged and all particulars and stated:

"The respondent relies in mitigation on the facts stated in the correspondence and Section 660 Notice in the applicant's evidence".

(2)Application [Original] 102025

He admitted all grounds as alleged and all particulars and stated:

"The respondent relies in mitigation on the facts stated in the correspondence and Section 660 Notice in the applicant's evidence".

(3)Amended Applications 102024 & 102025

(a)He admitted the grounds and particulars alleged in paragraphs 1 to 11 (inclusive).

(b)In relation to paragraph 12, he stated:

"The respondent says Mr Thangaraj's fees were paid from monies in the trust account in the matter of Kurland pursuant to the client's oral authority; in the alternative, the respondent was entitled to apply the money under Clause 88(4) of the Legal Profession Regulation 2005."

(c)In relation to paragraphs 13 and 14, he stated:

"The respondent says he took steps to make Mr Walsh his senior solicitor and he believed that Mr Walsh was his senior solicitor."

(4)Application 112033

The Solicitor stated:

"The facts alleged are admitted save that the respondent says:

(i)Sum of $800 and $500 were received into the respondent's trust account;

(ii)The respondent made oral disclosure to the client of counsel's initial costs disclosure; and

(iii)Gave a written estimate to the client by letter dated 2 March 2009".

The Evidence

20The hearing of these matters commenced on 1 April 2011 and continued on 11 June 2011. The Amended Applications and matter 112033 were the subject of a further hearing on 29 March 2012.

21The Law Society relied upon the following evidence, which was admitted without objection and none of the deponents were required for cross examination:

  • Affidavit of Raymond John Collins sworn 24/9/2010;
  • Affidavits of Anne Marie Foord sworn 2 May 2011 and 10 June 2011;
  • Affidavit of Murugan Thangaraj sworn 2 September 2010;
  • Affidavit of Kristie Lee McDonald sworn 1 September 2010;
  • Affidavits of service of Jeffrey David Edwards sworn 17 July 2009 and 12 August 2009;
  • Affidavit of Anne Marie Foord sworn 2 May 2011;
  • Anne Marie Foord sworn 10 June 2011;
  • Affidavit of Anne Marie Foord sworn 2 December 2011;
  • Further Affidavit of Anne Marie Foord sworn 2 December 2011; and
  • Affidavit of Lindsay James Ellison sworn 24 November 2011.

22The Solicitor relied on Affidavits that he swore on 3 June 2011 and 27 March 2012. These were admitted subject to the Solicitor being required for cross-examination.

Determination of Original Applications 102024 and 102025

23On 1 April 2011 the Tribunal delivered the following ex-Tempore decisions:

Application no. 102025

(1)"In this matter the Council of the Law Society commenced proceedings by way of an application for original decision dated 24 September 2010. It alleges that the respondent is guilty of professional misconduct and unsatisfactory professional conduct as follows:

1 . Complaint by Mr Thangaraj regarding failure to pay his fees.

2. Complaint by the Law Society

(a) That the respondent without excuse failed to comply with the requirement under s 660 of the Legal Profession Act 2004; and

(b)That the respondent failed to assist the Law Society with the investigation of a complaint.

3. That the respondent is guilty of unsatisfactory professional conduct as a result of his failure to respond to communications from the complainant.

(2)The applicant relies upon affidavit evidence of Raymond John Collins, Kristie Lee McDonald and of Murugan Thangaraj, none of which has been disputed by the respondent and none of the deponents were required for cross-examination.

(3)The affidavits of service of Geoffrey Edwards (x 2), being evidence of service of both the s 660 Notice and the separate information Notice pursuant to s 61 of the Legal Professional Act.

(4)The respondent has filed a reply in which he admits the allegations and particulars of the complaints but seeks to rely in mitigation on the facts stated in the correspondence and s 660 Notice in the applicant's evidence.

(5)The tribunal notes that the most recent letter between the Respondent and the Applicant is that from the Respondent dated 19 August 2009 which is to be found at pp 58 and 59 of exhibit A1.

(6)It appears that the Respondent seeks to explain his misconduct on the basis of work pressures and the like.

(7)However, the Respondent has not filed any affidavit evidence in these proceedings and there is no evidence before us as to his understanding of his duties and obligations as an Australian Legal Practitioner as at today. This is of particular concern to the Tribunal.

(8)As the Applicant's evidence in the matter is not contested, we are comfortably satisfied that the grounds of the Application are made out.

(9)Accordingly, we find as follows:

(a)The Respondent is guilty of professional misconduct by failing to pay the fees rendered by and owing to Mr Murugan Thangaraj pursuant to the fee agreement that is found at pp 25 and 26 of exhibit A1.

(b)Further to that finding, the Tribunal refers to the application for compensation made by Mr Thangaraj. In this regard, s573 of the Legal Profession Act empowers the Tribunal, if is found that the Respondent has engaged in unsatisfactory professional conduct or professional misconduct in relation to a complaint, to make a compensation order.

(c)In the circumstances, we feel that it is appropriate to make such an order ad we therefore order that the Respondent pay to the Compensation Claimant, Mr Murugan Thangaraj, the sum of $8,261 such monies to be paid within fourteen days of the date of this order.

(d)We further find that the Respondent is guilty of professional misconduct as he failed to assist the Law Society in the investigation of a complaint.

(e)While the application alleges that the Respondent is guilty of unsatisfactory professional conduct as a result of his failure to respond to communications made by or on behalf of Mr Thangaraj, the tribunal has formed the view that this is evidence of further professional misconduct by the respondent as a consequence of the duration of the conduct in question and also on the basis that we believe that the Respondent's professional brethren of good conduct would regard his conduct in this matter as disgraceful and dishonourable."

Application no. 102024 [Original]

(1)In relation to matter number 102024, also involving the Council of the Law Society of New South Wales and Paul Adrian Mee Ling, in this matter the Applicant commenced proceedings by way of an Application for Original Decision also dated 24 September 2010. This Application alleged that the Respondent was guilty of professional misconduct on three grounds as follows:

(a)Failure to comply with an undertaking.

(b)Failure to comply with a condition on his practising certificate.

(c)Failure to respond to the Law Society's Correspondence.

(2)The Applicant relies on affidavit evidence of Raymond Collins, which was not disputed by the Respondent. Mr Collins was not required for cross-examination.

(3)Again the Respondent has filed a Reply in which he admits the conduct alleged but seeks to rely in mitigation on the facts stated in correspondence under the Section 660 Notice.

(4)In this regard, the Tribunal refers to and relies upon its Ex Tempore decision in matter number 102025 with respect to that evidence.

(5)We repeat that there is no evidence before us as to the respondent's understanding of his obligations and duties as an Australian legal practitioner as at today, a matter that we drew to the attention of Mr Englebrecht during the hearing.

(6)We are satisfied based on the evidence before us that the grounds of the application have been made out. We therefore find that the respondent is guilty of professional misconduct with respect to each of the three grounds alleged in the application and referred to previously in this decision."

24In relation to both matters generally, we determined as follows:

"... the Tribunal is not bound by the orders sought by the applicant and has expressed during the hearing of these matters its concerns about the respondent's fitness to practice as an Australian legal practitioner as at today's date.

We therefore feel it is appropriate to afford both parties the opportunity to file and serve any further evidence that they wish to rely upon solely with respect to the issue of the final orders to be made by the Tribunal and we grant leave as follows..."

25We therefore ordered the Law Society to file and serve any further evidence that it wished to rely upon by close of business on 6 May 2011 and directed the Solicitor to file and serve any further evidence he wished to rely upon by close of business on 3 June 2011, with the Law Society to file and serve any evidence in response by 10 June 2011. We listed the matter for further hearing on 17 June 2011.

26Mr Pierotti sought clarification of our order regarding the payment of compensation to Mr Thangaraj, as follows:

"And my final point is something that came from my friend and I do not want there to be any misunderstanding. You have made an order for compensation. My friend during his address to you said that that could be resolved by you directing in respect of the moneys in trust. If nothing else, simply for the record that I am taking it that this Tribunal is not directing anything to do with the solicitor's trust account, simply making an order personal to the practitioner."

27We confirmed that we ordered the Solicitor to pay the compensation sum to Mr Thangaraj and that we made no order in respect of his trust account.

Hearing on 17 June 2011

28At the further hearing of the matters on 17 June 2011 the Tribunal noted that the Solicitor had filed a further Affidavit, sworn on 3 June 2011, in which he deposed (in relation to the compensation order):

"4. I acknowledge that any failure to either advise the client to take assessment proceedings against Mr Thangaraj or to pay Mr Thangaraj has resulted in the client losing an opportunity to contest Mr Thangaraj's bill and in keeping Mr Thangraraj from his fees. The fees were in my trust account. I paid Mr Thangaraj the sum of $8,261.00 by trust account cheque on 8 April 2011 by delivering the same to his chambers. A true copy of the cheque and its covering letter is annexed hereto and marked with the letter "A". The cheque was presented on 11 April 2011."

29We noted that this evidence suggested that the Solicitor had failed to comply with the terms of the order made on 11 April 2011, namely he (personally) should pay the compensation sum and that we confirmed on that occasion that we made no order against his trust account. Mr Pierotti confirmed that this was an issue that he wished to raise with the Solicitor in cross-examination.

30The solicitor was called and re-sworn. He stated that the contents of his further Affidavit were true and correct and that he had nothing to add to it. He was then cross-examined as follows:

"Q. Can you explain to the Tribunal in what circumstances you withdrew those funds from the trust account for payment to Mr Thangaraj?

A.I had obtained Mr Kurland's authorisation actually before the hearing on the last occasion to pay those funds if there was an order that the funds should be paid.

...

Q. Did you not hear Madam Chair's response as she's quoted to you this morning as to where the payment ought to come from?

A. Yes

Q. You did hear it?

A. Yes

Q. But you didn't pay the compensation, Mr Kurland paid the monies to Mr Thangaraj.

A. Mr Kurland left that money with me for the purposes of making the payment if it should be ordered that Mr Thangaraj was to be paid, so in that sense they were actually my monies rather than his because it was subject to that.

Q. But it was in the trust account wasn't it?

A. Yes

Q. It was his money.

A. Well it was subject to counsel's fees, counsel's right to the paid.

Q. If the Tribunal had not ordered the compensation, was that still your money?

A. No

Q. Well I'm sorry, Mr Mee Ling, I'm having some difficulty. If it's your money, as you say it was, it was sitting nevertheless in your trust account. If the order had not been made, why then was it still not your money?

A. If the order had not been made then I would still regard the money as being subject to whatever Mr Thangaraj may still have on it, which he of course still would, that would not be altered I think by the terms - by whatever order the Tribunal makes and, subject to that, then it would be money which I could - well money which is being held for Mr Kurland.

Q. Isn't that the point Mr Mee Ling, that it was money that you were holding for Mr Kurland, not your money?

A. It became my money in the sense of being applicable to this once the circumstances were made out which fulfilled the client's authority.

Q. But it could never be your money, could it Mr Mee Ling?

A. Well -

Q. It could never be your money.

A. Well excuse me Mr Pierotti, I have a personal obligation to pay counsel. When I tender a bill then monies, which I receive from the client or on the client's account are subject to that. Now when the client gives me authority to pay pursuant to the bill or when I avail myself of I think it's clause 88 then it is literally my money, which I may take out. Now in this case I was given an authority but it is that it should be paid in a certain way if certain things happen and once that occurred then it was up to me to pay it.

Q. You didn't tell this to the Tribunal on the last occasion that you had those instructions, did you?

A. No

Q. Did you discuss with Mr Kurland prior to the last hearing in April the prospects, or sorry, the opportunity that might be availed of by him to seek some form of out of time permission to tax, or sorry, to assess Mr Thangaraj's bill?

A. No..."

31On further questioning from the Tribunal, the Solicitor stated that he did not have Mr Kurland's authority with him and, suprisingly he expressed the view that he did not think that it would have assisted us if he had put it in evidence. We observed:

"I'm just a little concerned that on the last occasion there was no mention of your being authorised by Mr Kurland to pay out any monies from the trust account if we made an order upholding his claim for compensation. My understanding was that you would have to go to the Supreme Court to be released from your obligations because Mr Kurland wouldn't authorise you to pay out the money to Mr Thangaraj..."

32Mr Pierotti referred to paragraph 3 of the orders that the Tribunal made against the Solicitor in matter no. [2010] ADT 48 (decision dated 16 February 2010), namely:

"3. That Paul Adrian Mee Ling is permitted to continue practising as a Solicitor on the condition that he shall within 14 days of the date of this Decision provide the Society with the following irrevocable written undertakings:

(a)That he will undertake a course in Practice Management that is approved by the Society, such course to either commence prior to 31 March 2010 (or if such a course is unavailable prior to that date, the first course thereafter), with the proviso that the course must be completed to the satisfaction of the Society by 1 August 2010.

(b)That he will undertake a course in Ethics that is approved by the Society that commences either prior to 31 March 2010 (or if such a course is unavailable prior to that date, the first course thereafter), with the proviso that the course must be completed to the satisfaction of the Society by 1 August 2010.

(c)That he will on and from the date of his undertakings participate in the Senior Solicitors Program and accept mentoring by a Senior Solicitor nominated by the Society, for a period of not less than three (3) years from the date of this decision and to confer frequently and co-operate with that Senior Solicitor in the conduct of his program. The costs of his participation in this program are to be borne by the Solicitor."

He put to Solicitor that he had been "quite tardy in complying with those orders". The solicitor did not admit this and asserted that he could not find courses that were "within the terms of the orders". However, he could not produce any evidence to support his asserted attempts to find relevant courses.

33In relation to Order 3(c) in [2010] ADT 48, Mr Pierotti referred to paragraph 13 of the Solicitor's Affidavit sworn 3 June 2011, in which he deposed:

"My Senior Solicitor is Mr Greg Walsh"

He asked the Solicitor how many times he had attended on Mr Walsh since February 2010 and the Solicitor replied that he had spoken to him on the telephone a number of times, but that he had not physically attended on Mr Walsh. The following evidence was then adduced:

"Q. Would you accept from me that paragraph 13 would give this tribunal some solace in thinking that you were in liaison with Mr Walsh in the dealings with your practice?

A. Yes.

Q. And would you agree with me that that is misleading?

A. No because I have been in contact with him and -

Q. How many times have you telephoned Mr Walsh?

A. Three or four times.

Q. About?

A. About whether he would be a senior solicitor and what he would like me to do and -

Q. I ask you to think about this very carefully Mr Mee Ling, what did Mr Walsh say to you?

A. He said that he would consider what needed to be done and then I didn't hear from him for quite some time. Well I didn't hear from him.
Q. When were these conversations?
A. At the time that I engaged him."

The Solicitor asserted that he could not state the exact date that this occurred.

34The Tribunal put to the Solicitor:

"Q. Did you think it was incumbent upon you to chase Mr Walsh, if I can use that term, to make sure that you were suitably aided?

A. Well, in retrospect I realise that I should have. I acknowledge, I admit, that had I properly pursued Mr Walsh then - that's the wrong word - had I engaged in the program as I realise that I ought to have then much of what has occurred here may very well not have. I had felt at the time that he was my mentor and that it was up to me to do what he wanted me to do but I acknowledge, I admit, that it was my obligation to have pursued him actively and in the event that he had been too busy or whatever then I ought to have seen about obtaining another senior solicitor, I admit that."

35However, the Solicitor later conceded that although Applications numbered 102024 and 102025 commenced on 5 October 2010, he only advised Mr Walsh about them after he received a letter from the Law Society about 10 days previously and sent him copies of the documents by express post at that time, which involved a delay of about nine (9) months. He agreed that "in retrospect" it was incumbent upon him to be in contact with his senior solicitor and to seek guidance as to the issues that had arisen in the Tribunal. He stated:

"...As I say, I admit had I engaged in this program as I ought to have then I'm sure this would have been dealt with differently and it was wrong of me to do that but I didn't at the time. I felt that I had done the wrong thing and these events had occurred before the Tribunal had made its orders and I felt that I must simply suffer the consequences because I hadn't honoured my undertakings before. I hadn't paid counsel as I ought to have or brought matters to a head as I ought to have and I hadn't cooperated as I ought to have".

36Nevertheless, the Solicitor denied that he had procrastinated in his dealings with the Tribunal, but conceded that he had been "inattentive".

37The Solicitor asserted that he had spoken to Mr Kurland within one or two days of the Tribunal's Ex Tempore decision and that he obtained his authority to pay the monies that were ordered to be paid to Mr Thangaraj from his trust account "because he was of the view that the order was for payment of his fees". His attention was drawn to his letter to the Law Society dated 19 August 2009, in which he stated:

"I admit that I have not given the matter the priority which I ought to have. I also submit that the subject matter at the root of the dispute - the safeguarding of counsel's fees - is in fact and continues to be secure in that the relevant funds have been and are still in my trust account pending determination."

38The Solicitor stated that when he wrote that letter he held the view that some formal determination, by way of Assessment or Mediation as to the merits of the disputed fees, was required before they could be paid from his trust account. He agreed that the Law Society had provided him with a copy of a Memorandum of Advice from Ms Marina Wilson of the Law Society dated 23 December 2008, in which she concluded:

"...The practitioner should immediately advise the client that he has to pay the barrister out of the money in trust. If the client does not authorise the practitioner to pay the barrister then the practitioner should consider paying the barrister and recovering the amount pursuant to cl. 88(3)(a)(iii)."

He said that he did not regard Ms Wilson's opinion as "a determination" as she did not consider the disputed fees on their merits and, in any event, he did did not believe that Ms Wilson was correct in law. However, he did nothing to obtain a determination. He then gave the following evidence:

"Q. What did you say to Mr Kurland had been a determination which persuade him to give you other instructions?

A. I think it was either the morning or the day before I rang him up and said the complaint is before the tribunal, he knew about that and I asked him if an order is made that Mr Thangaraj is to be paid, may I pay him out of the trust account and the answer was yes.

Q. Well that was not the order the tribunal made was it? It didn't make any order about Mr Thangaraj being paid was it?

A. Well it ordered that effectively the fees be paid.

Q. The tribunal made an order that he be paid compensation?

A. Yes and the compensation is the fees that he was entitled to.

Q. Well whatever the amount may be, it made no determination about his bill did it?

A. No.

Q. It's like you said of the Society, it didn't deal with the merits of his fees?

A. No. But --

Q. So how could you say to Mr Kurland the tribunal has made an order that Mr Thangaraj be paid?

A. Well I asked him if the tribunal makes an order that Mr Thangaraj be paid, may I pay him out of the trust account and the basis on which I was holding the money in the first place was in the event that I am ordered then it's there.

Q. So you told Mr Kurland that if compensation is awarded against you can I use the money in the trust account to pay the compensation, is that correct?

A. Can I pay Mr Thangaraj's fees, yes.

Q. No, that wasn't the question. Did you say to Mr Kurland, if the Tribunal orders compensation in favour of Mr Thangaraj that I pay him monies, whatever the amount may be, can I use the money in the trust account to pay the compensation order? Yes or no?

A. I didn't use those words, no.

Q. Did you say anything to that effect?

A. I believe that I had.

Q. What words did you use?

A. I said if the tribunal orders that Mr Thangaraj is to be paid can I use the money out of the trust account to pay him and I might add, Mr Pierotti, the whole basis of my holding that money is that it was for the purpose if the need should arise. It was that way from the outset."

39The Solicitor stated that he believed that he had made a file note of his conversation with Mr Kurland, but that he had not brought it with him to Court. We note that he did not place it in evidence. He stated that he did not confirm those instructions by way of a letter sent to Mr Kurland.

40In re-examination, Mr Englebrecht put to the Solicitor that he had not been given Notice to produce any file notes. However, the Tribunal observed that it was not for the Law Society to seek to adduce evidence in the case. and that it was not for the Society to adduce evidence in the Solicitor's case.

41In further cross-examination the Solicitor conceded that he had made no mention of his communications with Mr Kurland in his Affidavit sworn 3 June 2011.

42The Tribunal then heard sworn oral evidence from Gregory Walsh. He stated that to the best of his recollection he had received some papers from the solicitor "a few weeks ago". He confirmed that he had not met the solicitor, but that he was always available to see someone like the solicitor if needed and that it's not hard to come and see him. However, the solicitor has to be proactive and go out of his way to come and see him as he is not going to chase him. He stated that he shared our concern that some 16 months after the previous decision was published the solicitor had still not met face to face with him, while at the same time regarding him as his senior solicitor. He stated:

"I think in a practical sense it is a matter of some concern that a legal practitioner in that position would not go out of his or her way to demonstrate to the tribunal in their interests let alone anybody's interests sufficient enthusiasm to go and see the legal practitioner concerned. I mean it's just a matter of commonsense. I suppose it's unusual of me to be so frank and candid but Mr Ling is hearing my evidence. I imagine it would be ringing in his ears that it's up to him to avail himself of the opportunity if he's given that chance in the future. I don't know. I'm happy to do it..."

Oral Submissions

43Mr Pierotti submitted that the Tribunal would be very concerned about the day's events, as there was now in evidence very serious matters that were not formally before us in any Application. He therefore sought an adjournment to enable the Council of the Law Society to consider whether it should seek leave to amend the existing applications and/or to file a fresh Application based on matters that arose from the hearing. We ordered that he matter be stood over part-heard for Directions on 7 September 2011.

Hearing on 29 March 2012

44This hearing related primarily to the Amended Applications no. 102024 and no. 102025 and the first hearing of Application no. 112033. In this regard, we note that while Orders were made for the filing of a Reply and evidence by the Solicitor in the latter Application, the Solicitor failed to comply with them and filed them only the previous day.

45The Solicitor was recalled. After being re-sworn he was further cross-examined.

46The Solicitor said that he failed to comply with the orders about filing a Reply and evidence as he "...didn't turn my mind to it and I was still going through the files." He agreed that he failed to comply with previous like orders.

47The Solicitor said that he wrote to Mr Walsh on 4 March 2010 and that Mr Walsh wrote to him on 25 May 2010, but that he did not read the letter until after the hearing on 17 June 2011, as it "slipped" his mind. He said that he "...put it aside intending to look at it" and that he "had forgotten about it" and that it was really only after Mr Walsh said in cross-examination that he was not his senior solicitor that he realised this. He asserted that he had misplaced this letter on his desk and that "...it was so overwhelming to be accused of lying to the Court."

48Mr Pierotti put to the Solicitor that based on his Affidavit evidence that "My senior solicitor is Mr Greg Walsh" it was fair for the Tribunal to infer that there was a contractual relationship between them and he replied to the effect:

"I believed on 3 March 2010 that he was going to apply his mind to what was needed to do."

49The Solicitor then stated that he had spoken to Mr Williams (about being his senior solicitor) "yesterday", although it appears to us that this conversation occurred on 26 March 2012. It was put to him that "it was only at the barrier" that he was prepared to do comply with the Tribunal's orders. However, the solicitor disputed this and stated (words to the effect):

"I just have difficulty dealing with it. I can't make a detached and dispassionate assessment of my affairs... I have not done what I should have done and put my obligations first ... it is a failure to grasp what I should have done... It was only when I read the orders last Saturday that it came home to me what I should have done... I felt overwhelmed and threw myself into my work."

He maintained that he did not believe that he had breached the Tribunal's order by paying the compensation to Mr Thangaraj from his trust account as he had an oral authority from Mr Kurland to pay the compensation from the trust account, despite there being no evidence from Mr Kurland to this effect. He said that he had not obtained such evidence as Mr Kurland was "... no longer my client". He also stated that he was "not sure" whether Mr Kurland knew that he had paid the monies from the trust monies to Mr Thangaraj. This suggested that he may not have issued a final trust account statement to Mr Kurland, but this is not a matter that is the subject of any Application before us.

50In relation to his failure to pay Mr Ellison's fees, the Solicitor stated that he had failed to pay them as "I can't afford to". He agreed that this was a disbursement that he owed and it was not a part of his professional fees. He said that he had not yet rendered Ms Ortner a final bill and that she had been "very ill" and that it took him approximately 11 months to compile the bill even though Mr Ellison was writing to him and ringing him about his unpaid fees. When pressed, he said that he was "about half way through compiling his final bill in the matter". He agreed that he had not told Ms Ortner about the amount of Mr Ellison's fees until about 11 months after he had received the memorandum of fees and that she then sent him a cheque for $20,000. He asserted that he had written to Ms Ortner requesting payment of the balance of his fees, but we note that no such letter has been placed in evidence before us.

51The Solicitor conceded that he has an ethical obligation to pay counsel his fees, but said that he did not take any steps to recover his fees as "...the bill took time to do". He asserted that he did not respond to Mr Ellison's letters or answer his telephone calls and that he did not consider it prudent to write to Mr Ellison and tell him of any of these matters because Mr Ellison had made a complaint and he believed that he would have seen his responses to the Section 660 Notice. He also agreed that he had made no attempt to communicate with Mr Ellison since the complaint was made and hat there was no apology to Mr Ellison in any letter that he wrote, or in his Reply or in any Affidavit that he had sworn.

52In relation to the complaints by the Law Society regarding alleged breach of Sections 254 and 260 of the Act, the solicitor agreed that he had received five (5) separate payments from Ms Ortner and that he banked these into his office account. He stated (words to the effect):

"A. ...It is no longer her money if I have done the work and eventually I will have to render a bill.

Q. Are you saying you can appropriate it without rendering a bill?

A. Yes - if the Solicitor has earned it".

He expressed his view that a solicitor is entitled to appropriate a client's money without rendering a bill "if they have earned it". He conceded that he did not issue Ms Ortner with a costs disclosure until 2 March 2009.

Oral Submissions

53In oral Submissions, Mr Pierotti confirmed that the Law Society moved on Application no. 112033 and sought an order that the Solicitor's name be removed from the Roll. He submitted that we would be satisfied on the evidence that the Solicitor had failed to comply with our order that he (personally) pay compensation to Mr Thangaraj, as he had paid it from his trust account in circumstances where there had been a longstanding dispute by Mr Kurland regarding the payment of those fees, and in circumstances where the Solicitor failed to give any evidence of the alleged oral authority from Mr Kurland at the hearing in April 2011 and in his Affidavit sworn in June 2011 and he had not adduced in evidence either a file note or a letter to Mr Kurland confirming that authority. He also noted that the Solicitor had also apparently breached clause 82 of the Regulation by failing to issue a trust account statement to Mr Kurland. He argued that the Solicitor's argument in relation to the payment of compensation was "novel and wrong in law" and that it was clear that he had contravened the order.

54In relation to the allegation of attempting to mislead the Tribunal, Mr Pierotti submitted that the Solicitor's sworn evidence could not be clearer, namely:

"My senior solicitor is Mr Greg Walsh".

He noted that while Mr Walsh wrote to the Solicitor on 24 May 2010, he had only recently opened that letter and sought to explain his failure to read it by asserting that he had "misplaced it". Then after the last hearing, the Solicitor took nofurther action to retain a senior solicitor until 26 March 2012. He submitted that this sworn evidence was made with the clear intention of misleading the Tribunal into believing that he had complied with the previous Tribunal's orders when he had failed to comply with them.

55In relation to the complaint by Mr Ellison SC, Mr Pierotti submitted that the Solicitor conceded that he had entered into a direct contractual relationship with Mr Ellison and that Mr Ellison was entitled to assume that the Solicitor agreed to his fee disclosure. He argued that the Solicitor had wholly disassociated himself from his obligations under Rule 32 and Rule 33 and that he had done very little to advance the matter and that as Mr Ellison had provided the Solicitor with an itemised bill, which he sent to Ms Ortner, he could have had it assessed as a disbursement in his bill. However, he failed to do so and failed to return his telephone calls and failed to answer his correspondence.

56Mr Pierotti argued that the evidence supports a finding that the Solicitor breached both Section 254 and Section 260 of the Act, as if a client pays money to a solicitor and the solicitor did not seek funds from the client in a proper form, he must hold them in trust until the right to transfer them crystallises. This requires informed consent by the client.

57However, the evidence indicates that the Solicitor did not render any bill to Ms Ortner until 17 November 2010 and that it was not until 23 November 2010 that Ms Ortner would have known what he was doing and what fees and disbursements were payable. At that time, there was $423 left in the trust account and Ms Ortner did not know from the terms of the bill what the money that she had paid to the Solicitor had been appropriated for.

58Mr Pierotti submitted that if the Tribunal accepted his submissions, we would be satisfied that the Solicitor's conduct was disgraceful and dishonourable, which satisfied the test expressed in Allinson's case, and that we should then conclude that the Solicitor was unfit to remain on the Roll of Legal Practitioners. He referred to the decision in Law Society of New South Wales v Jones, in which Street CJ (with whom Reynolds and Samuels JJA concurred) expressed the following statement of principle:

"Reliability and integrity in the handling of trust funds are fundamental prerequisites in determining whether an individual is a fit and proper person to be entrusted with the responsibilities belonging to a solicitor. Members of the public, many of them wholly inexperienced and unskilled in matters of business or of law, inevitably must put great faith and trust in the honesty of solicitors in the handling of moneys on their behalf. The Court must ensure that this trust is not misplaced."

In this regard, he argued that the evidence supported a finding that the Solicitor had preferred his own interests to those of Mr Ellison SC.

59In relation to penalty, Mr Pierotti confirmed that the role of the Tribunal is protective and not punitive, as restated by Mahoney JA in Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 441-442, as follows:

"What, then, are the purposes of the orders to be made and the considerations to be taken into account? It has frequently been said that disciplinary procedures and the orders made in the course of them are directed not to the punishment of the solicitor but to the protection of the public. This, of course, is true. The protection of the public has been described as, for example, the primary purpose or a primary object of such proceedings: Walter v Council of Queensland Law Society Inc (1988) 62 ALJR 153 at 157E; 77 ALR 228 at 235; Smith v New South Wales Bar Association (1992) 176 CLR 256 at 270 per Deane J; or one of the primary objects of the proceedings and the orders made: see Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 251. In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done."

He also referred us to the decision of the Court of Appeal in Dupal v Law Society of New South Wales [1990] NSWCA 56.

60We note that in Dupal, the Legal Profession Disciplinary Tribunal found that the Solicitor had misappropriated funds entrusted to him by his sister and had wilfully contravened Section 61 of the 1987 Act. By majority, it ordered that his name be removed from the Roll. The Solicitor appealed, but the Court of Appeal confirmed both the Tribunal's findings regarding his conduct and its order that he should be struck off. Kirby P stated:

"The result is that in both of the cases complained of, the Society has shown misuse by the appellant of the moneys received by him on behalf of other persons. What follows? The answer to that question takes me back to the observations with which I began these reasons. Such a finding ordinarily requires removal from the roll. The research of neither counsel before the Court could produce a single case in which, following a finding of misappropriation of trust funds or wilful contravention of s41(1) of the Act [this was the equivalent to section 255(1) of the LP Act 2004], the Court had not proceeded to remove the name of the practitioner concerned from the roll of practitioners. Properly, after judgment was reserved, counsel for the Law Society, following further enquiries, drew to the notice of the Court a decision of the Solicitor's Statutory Committee in the case of Colin Water Peck, unreported, 23 April 1981....

I regard the decision in Peck, which is not a decision of this Court, as wholly exceptional. True, each case must depend upon its unique facts. But for the reasons which I have stated, the normal consequence of the misuse of entrusted funds by a solicitor, and a finding of wilful breaches of the statutory prohibition in that regard, is removal of the name of the solicitor from the roll. There is no reason why that consequence should not follow in the present case. To the extent that Peck suggests otherwise, I dissent from its holding."

61Handley JA held (at p 12):

"This Court would be departing from a long course of authority if it were to allow the appeal and substitute a period of suspension for the order of the Tribunal removing the appellant from the roll. Counsel were not able to refer us to any case where a solicitor found guilty of misappropriation or wilful contraventions of s61(1) has not been struck off the roll. Any decision to the contrary would signal to the profession and the community that this Court was no longer insisting on solicitors maintaining the highest standards of personal honesty and integrity in their dealings with clients and the public and in the handling of monies entrusted to their charge. The maintenance of those standards and the public interest require, in my judgment, that this appeal be dismissed. It is well established that the jurisdiction being exercised in this case is not penal but disciplinary and that it must be exercised for the benefit of the public. Sympathy for the appellant 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 demand of solicitors cannot be allowed to deflect this Court from doing its duty."

62Mr Engelbrecht commenced oral submissions on behalf of the Solicitor, but was frequently interrupted and the Tribunal observed a disagreement between them at the Bar Table. We therefore stopped the hearing and ordered that the Solicitor file and serve written Submissions by close of business on 23 April 2012, granting the Law Society leave to file and serve any further written Submissions in response by close of business on 30 April 2012. We reserved our decision subject to receipt of those Submissions.

Written submissions

63While the Solicitor filed submissions on his own behalf, he did not do so until 9 May 2012 (16 days late). We note that the Law Society filed its written submissions in response that same day. At the express request of the Solicitor, we have not read written submissions that were lodged by Mr Engelbrecht.

64The Solicitor argued that we should not find that he had attempted to mislead the Tribunal as he believed that he had a senior solicitor. He stated (relevantly):

"It is submitted that the respondent believed that he did have a senior solicitor. The evidence shows the senior solicitor was contacted, and while the latter gave evidence of his usual practice, he did not testify that this is what was said, and the respondent's evidence is that he was not told that personal attendance was necessary to begin the relationship. The subsequent letter from Mr Walsh shows that contact was made..."

He also said that he had now taken steps to engage a senior solicitor.

65In response, the Law Society submitted:

"In short, whatever the solicitor's communication with Mr Walsh, there was, it is submitted, no relationship established between the two and it could not be said with any logical thought that Mr Walsh was the Solicitor's senior solicitor. To assert the opposite, on any view, can only be classified as misleading.

Counsel for the Solicitor argued that the Solicitor had always believed that Mr Walsh was his Senior Solicitor however, as the chair quite properly raised during the course of oral submissions, was that belief reasonably held, especially since the letter of 24 May 2010 remained unattended for such a lengthy period of time? The Applicant would submit that the answer must be no and that on the evidence the Solicitor would have been well aware of the true position when he came to swear his Affidavit of March 2012."

66As regards the alleged breach of the order to pay compensation to Mr Thangaraj, the Solicitor submitted:

"The Tribunal order compliance issue is determined, it is submitted, by either of two bases. Firstly, the monies in the trust account from which Mr Thangaraj was paid were monies as to which a bill setting out counsel's fees had been sent out long before. The monies were paid for the purpose of covering payment of the bill. The Law Society gave the opinion on 23-12-2008 that Clause 88(3)A9(iii) would apply. The complaint which grounded the order in question was that the money had not been paid. The respondent was entitled to use the trust money on this basis. In any case, the respondent gave evidence that he had asked the client for express authority to use the trust money for payment in the event that the barrister was held to be entitled to be paid, and that authority was given. The absence of evidence from the client is explained by the fact that the client had in the meantime become a former client. That is the reason why no evidence was led."

67In response the Law Society submitted:

"The Applicant would submit that these last explanations fly in the face of the Solicitor's earlier evidence as to the reason(s) for his having omitted to pay Counsel. In any event, as the Chair rightly pointed out to the Solicitor, the Tribunal was "not a means of assessing an entitlement to legal fees" and, in any event, it had "...made an order for payment of compensation by [the Solicitor]..."

Having regard to the oral evidence, the Tribunal will be further concerned that the Solicitor at paragraph 9 of his Affidavit of 27 March 2012, deposes that he is unable to find any note of any oral authority by Mr Kurland.

Simply put, the Solicitor cannot, there having been an adverse finding against him and an order that he personally pay compensation, now choose to do what he had always refused to do and, at the same time, submit that that amounts to compliance with the Tribunal's order."

68In relation to the complaint by Mr Ellison SC, the Solicitor conceded failure to pay and failure to communicate, but submitted "in mitigation" that he had

"...had the view that the constructive step of billing the client was necessary before communicating, and that the respondent believed on reasonable grounds that the client would reasonably promptly pay the amount on receipt."

69We note that the Solicitor made no submissions concerning the allegation that he failed to communicate with Mr Ellison.

70In relation to the alleged breaches of Sections 243 and 260 of the Act, the Solicitor submitted:

"The Respondent submits that the trust money issue is determined by the wording of the Act. Section 243 provides that "...trust money means money entrusted to a law practice [emphasis added]..." and includes costs paid in advance, controlled and transit monies subject to a power. All the examples have this in common: effectively the money is to be held for future use by the solicitor in the manner required by the client. That is the element of entrustment. It is radically different from a payment made for work already done or for a disbursement already incurred. There is no element of entrustment, no future action the Solicitor must undertake in respect of the money. All that is past, because the work has been done or the disbursement incurred.

The Solicitor's entitlement to costs is not predicated upon his having formally issued a bill for the work. His right to enforce the entitlement is, but his entitlement is not. The Regulations specifically contemplate the practitioner being paid by the client from monies held in trust for that client by simple direction: Clause 88(3)(a)(iii). What is the difference between the client directing the solicitor to pay himself from the trust monies and the client paying the amount direct? The only difference is, the money paid into toe trust account for costs in advance was entrusted to the solicitor, as security for his future work and expenses, and it is fundamentally the property of the client save insofar as the solicitor has earned his costs: Kirk v Commissioner of AFP (1988) 19 FCR 530 at 554, per Davies J; [1988] FCA 236 at second paragraph 27, Millar v Atlee (1849) 3 Exch. R. 799; 154 ER 1068. In contrast, where the work has been done or the disbursement paid, there is nothing further for the solicitor to do. The client entrusts the solicitor with nothing by paying him. The Solicitor is still liable to assessment if the client so requires. But that goes to quantification, not to entitlement."

71In response to these submissions, the Law Society submitted:

"...The events which transpired fail the Solicitor's own test for, as he states at paragraph 16 of his 27 March 2012 Affidavit "I only received trust money after I informed the client that money for immediate disbursements was needed and she sent me cheques which I then deposited into my trust account. I did not ask Mrs Ortner for any of the payments I put into my office account except the money paid I reimbursement of the filing fee."

If the money received from the Solicitor's client was received without request then how could the client, using the solicitor's own argument, have given any informed consent to the appropriation of it by the Solicitor. A bill is the method a Solicitor uses in order to seek payment for work done - one cannot rely upon the solicitor's unilateral submission that he was simply entitled to the funds because he had done the work. Indeed, if one looks at the Solicitor's letter of 8 April 2011 to the Society [Annexure "Q" to Ms Foord's Affidavit of 2 December 2011], the Solicitor himself refers to payments as being "unsolicited".

As for the Solicitor's reference to clause 88 of the Legal Profession Regulation, that Clause refers to "the withdrawal of trust money held in a general trust account or controlled money account of a law practice for payment of legal costs owing..." Similarly, Section 261 of the Act, which Section is referred to at the commencement of the clause:

(1)This clause prescribes, for the purposes of Section 261(1)(b) of the Act, the procedure for the withdrawal of trust money held in a general trust account or controlled money account of a law practice for payment of legal cost owing to the practice by the person for whom the trust money was paid into the account

refers to "trust money held in a general trust account or controlled money account of a law practice for a person..."

The solicitor's rhetorical question above omits an important element - that the client had, before the withdrawal of the funds, not been given "... a request for payment, referring to the proposed withdrawal." [cl 88(3)(b)] or, alternatively a bill had been rendered and the provisions of cl 88(4) had come into play. The Solicitor's reliance on the procedure(s) set out in Clause 88 as an example of how the matter may have properly proceeded does not stand testing.

The short of it is that the Solicitor had received unsolicited funds and, it appears appropriated those funds simply on the basis that, in his own mind, he had done work for which he would be entitled to payment.

On any view, the monies received were trust funds which the Solicitor was required to retain in an appropriate trust account pending the obtaining, in the appropriate way, authority to deal with it."

Further Findings

72Having considered all of the evidence before us, we make the following further findings.

73We do not accept that the Solicitor reasonably believed that he had engaged Mr Walsh as his Senior Solicitor when he swore his Affidavit on 3 June 2011, in which he deposed to that fact. On the contrary, the evidence indicates that there was no contractual arrangement between them at that time and that they had in fact not actually met each other face-to-face.

74Further, on the Solicitor's own evidence he had only provided Mr Walsh with limited information and documentation regarding the matters before us and they had not engaged in any formal discussions regarding those matters or the solicitor's practice generally.

75We are comfortably satisfied that by so attesting that Mr Walsh was his Senior Solicitor, the Solicitor attempted to mislead this Tribunal into believing that he had complied with the previous Tribunal's orders. We find that this constitutes professional misconduct.

76We observe that it follows that the Solicitor failed to comply with Order 3(c) until about 26 March 2012, when on his own evidence, he engaged Mr Williams as his Senior Solicitor. However, we are not required to make any formal finding on this matter.

77The Solicitor conceded that he failed to pay Mr Ellison's fees and that failed to respond to his correspondence or to return his telephone calls. We do not accept his explanations for his failure to communicate, particularly his assertion that he believed that it was necessary to bill the client before he communicated with him. We find it difficult to accept that he truly believed this in view of his extensive delay in finalising his bill to Ms Ortner.

78We have previously found the Solicitor guilty of professional misconduct for failing to respond to telephone calls and communications from and on behalf of Mr Thangaraj. We further find that his failure to respond to correspondence and communications from and on behalf of Mr Ellison and is evidence of professional misconduct, by reason of the duration of the conduct and the fact that the Solicitor persisted with that conduct despite our previous determination.

79In relation to the failure to pay Mr Ellison's fees, we are satisfied to the required standard that the Solicitor breached Rules 32 and 33 of the Solicitors' Rules and that this constitutes professional misconduct.

80It is of considerable concern to us that the Solicitor allowed this scenario to arise given our previous determination and order for payment of compensation to Mr Thangaraj. It is apparent to us tha he las learned nothing from the previous determination and that he not only continues to ignore his professional obligations.

81We are also comfortably satisfied that the Solicitor breached section 254 and Section 260 of Act, as alleged. We reject his arguments to the contrary. This also constitutes professioal misconduct.

Penalty

82The Solicitor submitted that none of his impugned conduct involves protection of members of the public as a consequence and that even if that were so, his misconduct was not so grave or serious as to justify a punitive response such as striking off. He relied upon decisions in O'Reilly v Law Society (1988) 24 NSWLR 204 at 236; Prothonotary of Supreme Court v Costello [1984] 3 NSWLR 201 at 207l and Re: Evatt 67 SR 249.

83The Solicitor argued that his continued participation in the senior solicitors scheme would adequately protect the public and stated:

"...In the circumstances the Tribunal can have confidence that this entails real supervision of the practitioner's practice."

84However, with respect to the Solicitor, there is no evidence before us that supports a finding that he ever participated in the senior solicitors' scheme in that he did not ever actually meet with Mr Walsh to discuss the matters that were the subject of either the previous Tribunal's findings or our previous determinations and/or his practice and as at the conclusion of the most-recent hearing he had not actually engaged in any discussions of that nature with Mr Williams. Based on his past inaction, we do not confidence that he will participate in the scheme in the future and/or that if he did participate that this would entail real supervision of his practice.

85The Solicitor also submitted:

"A finding that the respondent put his clients' affairs before his own affairs and thus failed to attend to the latter does not excuse the respondent from his duties and obligations. It bears upon the penalties to be exacted for breach. It also bears upon a protective order. The respondent submits that the Tribunal may find that under supervision the respondent does not pose such a threat to the public as to warrant a protective order, nor any threat at all."

86We do not fully understand this submission. In our view, there is no evidence before us that supports a finding that the solicitor put his clients' affairs before his own. Rather, we have found that he breached his professional obligations to Mr Ellison and that he breached sections of the Act that regulate the handling of trust monies.

87Otherwise, the Solicitor argued that "fines and orders for compensation in lieu of the suspension of the respondent's praticising certificate for a short period of time woud be more appropriate to mark the Tribunal's disapprobation of the respondent's breaches". We are concerned that this submission suggests that the Solicitor believes that an order for payment of compensation is a "penalty" that the Tribunal can impose as an alternative to a protective order. However, this is not the case and in any event, the Solicitor is clearly on notice that Mr Ellison's claim for compensation is separate to the proceedings taken against him by the Law Society.

88Finally, the Solicitor argued that he had undertaken the courses ordered by the previous Tribunal. He said that he has been practising since 1982 and that these complaints "...span a short part of that period. The respondent has received the benefit of further education and if the Tribunal sees fit to permit him to continue to practice, will do so under supervision which will protect the public."

89In response, the Law society submitted that a better summation of the purpose of disciplinary proceedings is found in the decision of Beazley JA in Law Society of New South Wales v Walsh [unreported, December 1997]:

"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 Deane, 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 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. 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": Foreman per Mahoney JA at 441; see also 444. This wider notion of protection of the public involves the Court ensuring that the high standards which are demanded of members of the profession are maintained. As this Court said in Harvey v The Law Society of New South Wales (1975) 49 ALJR at 364:
"The function of a Court called upon to consider an application to remove the name of a practitioner from the 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 practitioner with practitioner, practitioner with the Court and 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."
The same point had earlier been made in Ex parte Macauley (1930) 30 SR (NSW) 193 by Street CJ, who stated at 193-4:
"...unless the Court insists on a high standard of conduct on the part of solicitors - unless the Court punishes severely any lapse from the proper standard - the public will never be properly safeguarded and the profession will ever retain the respect which it ought to have in the community".
In Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 297-298 Kitto J said that: "[t]he 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 (practitioner)".
See also: Clyne v New South Wales Bar Association at 188, 189."

90In relation to the issue of whether or not a protective order is warranted, the Law Society relied upon the decisionin New South Wales Bar Association v Evatt (1986) 117 CLR 177 at 184, as follows:

"The respondent's failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend upon the standards as well as the skill of his professional adviser."

And

"The question of unfitness is not confined to a consideration of the conduct which is the subject of the disciplinary charge. Additional factors may be relevant. A failure to be honest with the Court or with fellow practitioners is one such consideration. In Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655, Isaacs J said at 681:
"...if ... there be deliberate, misleading, or reckless laxity of attention to necessary principles of honesty on the part of those the Courts must trust to prepare the essential materials for doing justice, these tribunals are likely to become mere instruments of oppression, and the creator of greater evils than they are appointed to cure. There is therefore a serious responsibility on the Court - duty to itself to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential. It is not a question of what he has suffered in the past, it is a question of his worthiness and reliability for the future"."

91In view of the reasons expressed previously in this decision and in the Ex-Tempore decisions delivered in relation to the original applications numbered 102024 and 102025 and in view of the determination made by the previous Tribunal, which enabled the Solicitor to continue to practice subject to his compliance with certain orders and the satisfactory completion of certain educational courses, we are greatly concerned that even at the stage of written submissions, the Solicitor was either unable ot unwilling to acknowledge his errors in relation to the handling of trust monies.

92When considered in the light of the numerous findings of professional misconduct and unacceptable professional conduct, we are comfortably satisfied that he is permanently unfit to practice and that a protective order is appropriate.

Orders

93In relation to the proceedings between the Law Society of New South Wales and the Solicitor, we order that:

(1)The Solicitor's name be removed from the local Roll of Legal Practitioners; and

(2)The Solicitor pay the Law Society's Costs of Applications numbered 102024 and 102025 (including the costs of the Amended Applications) and 112033, as agreed or assessed.

94In relation to the claim for Compensation by Mr Ellison SC, we are empowered to make a compensation order pursuant to Section 573 of the Act as we have found that the Solicitor engaged in professional misconduct by failing to pay senior counsel's fees.

95We have therefore determined that it is appropriate to make a compensation order. However, as the nature of the compensation sought by Mr Ellison SC has not yet been particularisd, we liberty to Mr Ellison SC to apply in respect of the compensation sought.

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Decision last updated: 25 July 2012