Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Council of the Law Society of NSW v Galloway [2012] NSWADT 176
• Hearing dates: 23 July 2012
• Decision date: 23 July 2012
• Jurisdiction: Legal Services Division
• Before: Deputy President D Patten; J Currie - Judicial Member; Professor R Fitzgerald - Non Judicial Member

Decision

1. The Solicitor be reprimanded.

2. The Solicitor be fined in the sum of $8,000.00

3. The Solicitor be prohibited from operating a Trust Account until he successfully undertakes, at his own expense, a course approved by the Law Society on Trust Accounting.

4. Subject to 3 above, upon the Solicitor commencing to operate a Trust Account, he shall on a quarterly basis and for a period of three years during which he first operates a Trust Account, at his own cost, have his Trust Account audited by a person approved by the Law Society. The person undertaking such audits is to provide a report on each audit to the Law Society within 21 days of each audit being performed.

5. By consent the Solicitor pay the Applicant's costs assessed at $5,000.00

• Catchwords: Multiple Trust Account irregularities - no dishonest conduct - finding of Professional Misconduct
• Legislation Cited: Legal Profession Act
• Category: Principal judgment
• Parties: Council of the Law Society of NSW (Applicant); Brett William Galloway (Respondent)
• Representation: Council of the Law Society of NSW (Applicant); Horowitz & Bilinsky (Respondent); Legal Services Commissioner
• File Number(s): 122002

REASONS FOR DECISION

1 The Council of the Law Society of New South Wales applied to the Tribunal for a finding that Brett William Galloway, a practising solicitor, has been guilty of professional misconduct and for consequential orders.

2 A number of particulars were furnished involving breaches of s 262 of the Legal Profession Act, failure to report Trust irregularities to the Society contrary to s 263(i) of the Act, causing unidentified transactions to be posted to a miscellaneous Trust ledger; unauthorised payments from the Trust account to the office account; failure to implement a compliant trust account record; failure to deposit transit money received in cash into his trust account; failure to lodge an External Examiners Report within the required period; failure to report to Austrac significant cash transactions; and a failure to supervise staff. There was also a failure to pay superannuation entitlements and annual leave entitlements and provide a Group Certificate to an employee.

3 The breaches were very numerous and disclose on their face a very serious state of affairs giving rise to the question whether the solicitor is a fit and proper person to remain in practice.

4 The solicitor has formally admitted the matters alleged against him. He was admitted as a barrister and solicitor on 8 December 1984 in New Zealand and in New South Wales as a solicitor on 8 April 1989. He has practiced on his own account since March 1995. His practice was mainly in criminal law.

5 Since the matters alleged against the solicitor came to light he has had a condition imposed on his practising certificate that he not operate a trust account. He has practiced on this basis since 24 November 2010.

6 The solicitor's trust account has been subject to supervision since the matters came to notice and there are in evidence before us reports from Mr Greg Livermore a Trust Account Investigator and Mr Thomas Mitchell who has been supervising the solicitor's trust account.

7 Both Mr Livermore and Mr Mitchell expressed the view that the solicitor was not dishonest but merely very lax in the supervision and management of his trust account. His solicitor Mr Claude Bilinsky wrote a detailed explanation to the Law Society on 24 March 2011, the contents of which the solicitor verified on his affirmation before us today.

8 The Law Society and the solicitor, with the consent of the Legal Services Commissioner, have put before us an Instrument of Consent pursuant to s. 564 of the Legal Profession Act. The instrument, predicating a finding that the solicitor has been guilty of professional misconduct, proposed the following orders:

"1. The Solicitor be reprimanded.

2. The Solicitor be fined in the sum of $8,000.00

3. The Solicitor be prohibited from operating a Trust Account until he successfully undertakes, at his own expense, a course approved by the Law Society on Trust Accounting.

4. Subject to 3 above, upon the Solicitor commencing to operate a Trust Account, he shall on a quarterly basis and for a period of three years during which he first operates a Trust Account, at his own cost, have his Trust Account audited by a person approved by the Law Society. The person undertaking such audits is to provide a report on each audit to the Law Society within 21 days of each audit being performed.

5. By consent the Solicitor pay the Applicant's costs assessed at $5,000.00

9 We were initially hesitant given the apparent seriousness of the matters alleged. However the material does satisfy us that there was no dishonesty. As it appears, when the trust account offences occurred most of the funds in it actually belonged to the solicitor and the transgressions did not in actuality involve the solicitor using the funds of others for his own purposes.

10 In the circumstances and giving the views of the Law Society and the Legal Services Commissioner the respect which they deserve, having regard to the responsibilities entrusted to them, we are satisfied that the Consent Orders proposed are appropriate in the public interest.

11 We accordingly find that the solicitor is guilty of professional misconduct. We make the following orders:

1. The Solicitor be reprimanded.

2.The Solicitor be fined in the sum of $8,000.00

3.The Solicitor be prohibited from operating a Trust Account until he successfully undertakes, at his own expense, a course approved by the Law Society on Trust Accounting.

4. Subject to 3 above, upon the Solicitor commencing to operate a Trust Account, he shall on a quarterly basis and for a period of three years during which he first operates a Trust Account, at his own cost, have his Trust Account audited by a person approved by the Law Society. The person undertaking such audits is to provide a report on each audit to the Law Society within 21 days of each audit being performed.

5. By consent the Solicitor pay the Applicant's costs assessed at $5,000.00

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Decision last updated: 29 August 2012