Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Council of Law Society of NSW v Guy [2012] NSWADT 200
• Hearing dates: 22 August 2012
• Decision date: 26 September 2012
• Jurisdiction: Legal Services Division
• Before: D Patten, Deputy President; M Riordan, Judicial Member; Professor R Fitzgerald, Non Judicial Member

Decision

1. That the Solicitor is guilty of Professional Misconduct as alleged.

2. That the name of the Solicitor be removed from the local roll.

3. That the Solicitor pay the Applicant's costs.

• Catchwords: Multiple breaches of the Act and Regulation - Professional Misconduct - Removal from roll appropriate
• Legislation Cited: Legal Profession Act 2004; Legal Profession Regulation 2005
• Cases Cited: Allinson v General Council of Medical Education and Registration [1884] 1KB 750; Council of Law Society v Clapin (No. 2) [2011] NSWADT 246; Law Society v Jones Unreported Court of Appeal 29 July 1978
• Category: Principal judgment
• Parties: The Council of the Law Society of NSW (Applicant); Gregory Peter Guy (Respondent)
• Representation: Counsel; Ms C Webster (Applicant); Mr R M Smith SC and Ms S Hughes (Respondent); Council of the Law Society of NSW (Applicant); Low Doherty & Stratford
• File Number(s): 122003

REASONS FOR DECISION

1 By application filed with the Tribunal on 23 February 2012, the Council of the Law Society of NSW (the Council) seeks a finding that Gregory Peter Guy (the Solicitor) is guilty of Professional Misconduct and an order that his name be removed from the roll.

2 Originally the matters alleged against the Solicitor were grouped under 12 headings but one of them was not pressed at the hearing. Within most of the headings more than one breach of the Solicitor's obligations was alleged.

3 The Solicitor was born on 24 September 1953. He was admitted as a Solicitor on 11 May 1979 and became the principal of the firm Guy and Associates in July 1984. He continued in this role until his practising certificate was suspended on 28 February 2009 pursuant to s 70 of the Legal Profession Act 2004 (the Act).

4 For the most part, the Solicitor admitted what was alleged against him and an agreed Summary of Facts was tendered as Exhibit A. It was conceded by the Solicitor's counsel, Mr R M Smith SC, (who appeared with Ms Hughes) that Professional Misconduct had been established.

5 Before coming to a consideration of the facts, it is appropriate that we set out the relevant statutory and regulatory framework contained in the Act and the Legal Profession Regulation 2005 (The Regulation). Most of the matters alleged involve breaches of the Act and/or the Regulation.

6 Sections 255, 260, 262, 309, 311, 497, 498, 660 and 674 of the Act provide so far as relevant to the circumstances of this case:

"255 Holding, disbursing and accounting for trust money

(1) A law practice must:

(a) hold trust money deposited in a general trust account of the practice exclusively for the person on whose behalf it is received, and

(b) disburse the trust money only in accordance with a direction given by the person.

Maximum penalty: 50 penalty units.

(2) Subsection (1) applies subject to an order of a court of competent jurisdiction or as authorised by law.

(3) The law practice must account for the trust money as required by the regulations. Maximum penalty: 50 penalty units.

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260 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.

262 Deficiency in trust account

(1) An Australian legal practitioner is guilty of an offence if he or she, without reasonable excuse, causes:

(a) a deficiency in any trust account or trust ledger account, or

(b) a failure to pay or deliver any trust money.

Maximum penalty: 200 penalty units.

(2) A reference in subsection (1) to an account includes a reference to an account of the practitioner or of the law practice of which the practitioner is an associate.

(3) In this section: "cause" includes be responsible for. "deficiency" in a trust account or trust ledger account includes the non-inclusion or exclusion of the whole or any part of an amount that is required to be included in the account.

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309 Disclosure of costs to clients

(1) A law practice must disclose to a client in accordance with this Division:

(a) the basis on which legal costs will be calculated, including whether a fixed costs provision applies to any of the legal costs, and

(b) the client's right to:

(i) negotiate a costs agreement with the law practice, and

(ii) receive a bill from the law practice, and

(iii) request an itemised bill after receipt of a lump sum bill, and

(iv) be notified under section 316 of any substantial change to the matters disclosed under this section, and

(c) an estimate of the total legal costs if reasonably practicable or, if that is not reasonably practicable, a range of estimates of the total legal costs and an explanation of the major variables that will affect the calculation of those costs, and

(d) details of the intervals (if any) at which the client will be billed, and

(e) the rate of interest (if any), whether a specific rate or a benchmark rate, that the law practice charges on overdue legal costs, whether that rate is a specific rate of interest or is a benchmark rate of interest (as referred to in subsection (1A)), and

(f) if the matter is a litigious matter, an estimate of:

(i) the range of costs that may be recovered if the client is successful in the litigation, and

(ii) the range of costs the client may be ordered to pay if the client is unsuccessful, and

(g) the client's right to progress reports in accordance with section 318, and

(h) details of the person whom the client may contact to discuss the legal costs, and

(i) the following avenues that are open to the client in the event of a dispute in relation to legal costs:

(i) costs assessment under Division 11,

(ii) the setting aside of a costs agreement or a provision of a costs agreement under section 328 (Setting aside costs agreements or provisions of costs agreements),

(iii) mediation under Division 8, and

(j) any time limits that apply to the taking of any action referred to in paragraph (i), and

(k) that the law of this jurisdiction applies to legal costs in relation to the matter, and

(l) information about the client's right:

(i) to accept under a corresponding law a written offer to enter into an agreement with the law practice that the corresponding provisions of the corresponding law apply to the matter, or

(ii) to notify under a corresponding law (and within the time allowed by the corresponding law) the law practice in writing that the client requires the corresponding provisions of the corresponding law to apply to the matter.

Note. The client's right to sign an agreement or give a notification as mentioned in paragraph (l) will be under provisions of the law of the other jurisdiction that correspond to section 304 (Part also applies by agreement or at client's election).

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311 How and when must disclosure be made to a client?

(1) Disclosure under section 309 must be made in writing before, or as soon as practicable after, the law practice is retained in the matter.

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497 Professional misconduct

(1) For the purposes of this Act:

professional misconduct includes:

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and

(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.

498 Conduct capable of being unsatisfactory professional conduct or professional misconduct

(1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct:

(a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules,

(b) charging of excessive legal costs in connection with the practice of law,

(c) conduct in respect of which there is a conviction for:

(i) a serious offence, or

(ii) a tax offence, or

(iii) an offence involving dishonesty,

(d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration,

(e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth,

(f) conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice),

(g) conduct of an Australian legal practitioner in failing to comply with an order of the Disciplinary Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law),

(h) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law.

(2) Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention.

660 Requirements in relation to complaint investigations

(1) For the purpose of carrying out a complaint investigation in relation to an Australian lawyer, an investigator may, by notice served on the lawyer, require the lawyer to do any one or more of the following:

(a) to produce, at a specified time and place, any specified document (or a copy of the document),

(b) to provide written information on or before a specified date (verified by statutory declaration if the requirement so states),

(c) to otherwise assist in, or co-operate with, the investigation of the complaint in a specified manner.

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(3) A person who is subject to a requirement under subsection (1) or (2) must comply with the requirement. Maximum penalty: 50 penalty units.

(4) A requirement imposed on a person under this section is to be notified in writing to the person and is to specify a reasonable time for compliance.

(5) A person who is subject to a requirement under subsection (1) or (2) is not entitled to charge the investigator for doing anything in compliance with the requirement.

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674 Obstruction or misleading of investigator

(1) A person must not, without reasonable excuse, obstruct or mislead an investigator exercising a power under this Act. Maximum penalty: 100 penalty units.

(2) In this section: "obstruct" includes hinder, delay, resist and attempt to obstruct."

7 Clauses of the Regulation relevant to this case are 82 and 88:

"82. (1) A law practice must furnish a trust account statement to each person for whom or on whose behalf trust money (other than transit money) is held or controlled by the law practice or an associate of the practice.

(2) In the case of trust money in respect of which the law practice is required to maintain a trust ledger account, the practice must furnish a separate statement for each trust ledger account.

(3) In the case of controlled money in respect of which the law practice is required to maintain a record of controlled money movements, the practice must furnish a separate statement for each record.

(4) In the case of trust money subject to a power given to the law practice or an associate of the practice in respect of which the practice is required to keep a record of all dealings with the money to which the practice or associate is a party, the practice must furnish a separate statement for each record.

(5) A trust account statement is to contain particulars of:

(a) all of the information required to be kept under this part in relation to the trust money included in the relevant ledger account or record, and

(b) the remaining balance (if any) of the money.

(6) A trust account statement is to be furnished:

(a) as soon as practicable after completion of the matter to which the ledger account or record relates, or

(b) as soon as practicable after the person for whom or on whose behalf the money is held or controlled makes a reasonable request for the statement during the course of the matter, or

(c) except as provided by subclause (7), as soon as practicable after 30 June in each year.

(7) The law practice is not required to furnish a trust account statement under subclause (6) (c) in respect of a ledger account or record if at 30 June:

(a) the ledger account or record has been open for less than 6 months, or

(b) the balance of the ledger account or record is zero and no transaction affecting the account has taken placed within the previous 12 months, or

(c) a trust account statement has been furnished within the previous 12 months and there has been no subsequent transaction affecting the ledger account or record.

(8) The law practice must retain a copy of a trust account statement furnished under this clause."

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88. (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 costs owing to the practice by the person for whom the trust money was paid into the account.

(2) The trust money may be withdrawn in accordance with the procedure set out in either subclause (3) or (4).

(3) The law practice may withdraw the trust money:

(a) if:

(i) the money is withdrawn in accordance with a costs agreement that complies with the legislation under which it is made and that authorises the withdrawal, or

(ii) the money is withdrawn in accordance with instructions that have been received by the practice and that authorise the withdrawal, or

(iii) the money is owed to the practice by way of reimbursement of money already paid by the practice on behalf of the person, and

(b) if, before effecting the withdrawal, the practice gives or send to the person a request for payment, referring to the proposed withdrawal.

(4) The law practice may withdraw the trust money:

(a) if the practice has given the person a bill relating to the money and

(b) if:

(i) the person has not objected to a withdrawal of the money within 7 days after being given the bill, or

(ii) the person has objected within 7 days after being given the bill but has not applied for a review of the legal costs under the Act within 60 days after being given the bill, or

(iii) the money otherwise becomes legally payable.

(5) Instructions mentioned in subclause (3)(a)(ii):

(a) if given in writing, must be kept as a permanent record, or

(b) if not given in writing, must be confirmed in writing either before, or not later than 5 working days after, the law practice effects the withdrawal and a copy must be kept as a permanent record.

(6) For the purposes of subclause (3)(a)(iii), money is taken to have been paid by the law practice on behalf of the person when the relevant account of the practice has been debited.

8 We proceed to outline the transgressions alleged against and largely admitted by the Solicitor:

Regarding the Estate of the late Herbert Cupit and Dorothy Cupit

9 The Solicitor acted in both estates Mrs Cupit having died on 6 September 2007 and Mr Cupit on 11 October 2007. Probate was only obtained in respect of Mr Cupit's estate the executors being Ms P A Cupit and Mr G Leonard. Monies came into the Solicitor's trust account before probate was granted and from those monies he immediately transferred $10,000 as costs to his office account. He did this in October 2007 even though probate was not granted until 15 January 2008. No tax invoice was prepared by the solicitor in respect of the transfer to his office account and when spoken to by Trust Account Investigator Mr James Sofiak he replied:

"I have done work for Mr and Mrs Cupit for many years and had not charged them. This was monies owed to me".

10 Costs payable to a solicitor in respect of probate applications are fixed by regulation. S 329(2) of the Act prohibits a law firm from recovering costs in excess of those fixed. The costs payable in respect of an application for probate in Mr Cupits estate were fixed at $2,112.00.

11 The transfer of funds was a clear breach of regulation 88 whether or not the transfer encompassed legal work carried out in the past for Mr and Mrs Cupit. There were also breaches of s 255 and s 309 of the Act.

Regarding the Estate of the Late Eileen Flynn

12 The Solicitor acted for the estate. In July or August 2007 he was instructed to apply for probate which was granted on 30 November 2007. He did not make a disclosure of costs as required by sections 309 and 311 of the Act. On 3 September 2007, $2,500.00 was received into the Solicitor's trust account on account of costs and disbursements, and other monies representing the realisation of estate assets were subsequently paid into the account. He withdrew from the trust account for costs $1,700.00 on 3 September 2007, $5,500.00 on 14 September 2007, $2,680 on 28 September 2007 and $6,600 on 29 January 2008. The solicitor made those withdrawals without authority of the executors and without providing a bill of costs. The costs fixed by regulation in respect of the application were $2,800.00.

13 In addition to the breaches of the Act and Regulation which the foregoing facts reveal the Council alleges that the Solicitor misled an executor and beneficiary Ms Patricia Maidens by falsely telling her that assets in the estate had not been realised when in fact they had.

14 On 2 April 2008 the Solicitor provided a cheque to Ms Maidens for $65,799.82. This payment created a debit in the trust ledger of $6,599.99 which the Solicitor rectified by a deposit of the same amount. Despite Ms Maiden's requests the Solicitor failed to provide a final accounting in the estate.

15 When questioned about the matter by Mr Sofiak the Solicitor told him:

"I did a lot of work for her (Ms Flynn) that I did not charge her for."

16 This statement was false as the Solicitor had never met Ms Flynn. The facts stated also reveal overcharging contrary to s 329(2) of the Act and breaches of sections 255, 262 and 309 and clauses 82 and 88 of the Regulation.

Regarding the Estate of the Late John Mansfield

17 Mr Mansfield died on 12 April 2008 and probate was granted to his widow Carol on 17 July 2008. The Solicitor acted on the grant of probate. The Solicitor's trust account was credited with $300 on 29 May 2008 on account of disbursements and with $11,000 on 13 October 2008 on account of costs. The costs fixed by regulation for the probate application were $2,856.00.

18 The Solicitor did not issue a bill of costs nor did he enter into a costs agreement with the Executor. He transferred from the trust account to his office account for his costs and disbursements $40.00 on 22 July 2008 and $11,000.00 on 13 October 2008. These transfers involved a breach of clause 88 of the Regulation and s 255 of the Act. There was also overcharging contrary to s 392(2).

Regarding Estate of the Late Enid Gibbs

19 Ms Gibbs died on 12 July 2008 and the Solicitor was instructed to act in the estate. On 15 July 2008 $55,000.00 was paid into the Solicitor's trust account as the proceeds of one of the deceased's bank accounts. Probate was granted on 12 November 2008 to Ms Suzanne Tiddy. On 29 August 2008 the Solicitor withdrew $6,400.00 from his trust account for costs. He did not render a bill of costs until some time later and did not enter into a costs agreement with the Executor. The fixed costs in respect of the Probate application were $2,340.00.

20 Subsequently the Solicitor reduced his costs to $4,400 and in January 2009 refunded $2,000.00. to the Executrix by 2 cheques drawn from his office account.

21 The Solicitor's conduct involved breaches of ss 255 and 309 of the Act of clause 88 of the Regulation and overcharging contrary to s 392(2).

Regarding Tompkinson Purchase

22 The Solicitor acted for Mr D Tompkinson on the purchase of a property at Blacktown which was settled on 3 July 2008. On 4 September 2007, $1,950.00 was paid to the Solicitor's trust account on account of costs and disbursements. On 5 December 2007 the Solicitor withdrew $1,650.00 from his trust account for costs and on 4 June 2008 withdrew the trust account balance of $300.00 for costs.

23 On 11 June 2008 the Solicitor withdrew from the trust account further sums totalling $97.00 creating a debit of $97.00 in the account. He rectified this deficiency by a payment into the trust account on 18 June 2008. He did not issue a memorandum of costs or accounting for the monies withdrawn from the trust account until 7 July 2008.

24 These facts reveal a breach of clause 88 of the Regulation and s 255 of the Act.

Regarding Tsang Purchase

25 The Solicitor acted for Mr Tsang on the purchase of a property at Liberty Grove which was settled on 29 November 2007. The Solicitor's trust account was credited with $16,584.00 on 31 October 2007 and on the same day he withdrew $1,650.00 on account of costs. He did not render a memorandum of costs until 19 December 2007. In relation to both this matter and the Tompkinson matter the Solicitor claimed to be unaware that he was not entitled to withdraw monies for his own costs from amounts held in trust on account of costs. He said that $1,650.00 at the time plus $300.00 for disbursements was his standard charge on a conveyancing transaction.

26 The Solicitor's conduct again involved a breach of clause 88 and s 255 of the Act.

Regarding Lee Sale

27 The Solicitor acted for Mrs F Lee on the sale of property at Chatswood. The purchase was settled on 14 October 2008. On 16 May 2008 the Solicitor's trust account was credited with $350.00 on account of disbursements. On 18 May 2008 he withdrew $40.00 for a disbursement and on 4 June 2008 the remaining $310.00 for costs. On 7 October 2008 he withdrew a further sum of $99.00 from the trust account as a disbursement creating a deficiency of the same amount. On 15 October 2008 the deficiency was overcome when $1,650.00 was credited on account of costs. On 15 October 2008, the Solicitor withdrew $1,551.00 from his trust account on account of costs leaving a nil balance. On 21 October 2008 he sent a memorandum of costs and disbursements to his client.

28 The facts again reveal a breach of clause 88 and also a breach of s 255.

Regarding Thackray and Alvear Purchase

29 The Solicitor acted for Mr A Thackray and Ms C Alvear on the purchase of a property at Rozelle which was settled on 30 June 2008. On 30 April 2008, the Solicitor received into his trust account $300 on account of disbursements which was paid out for that purpose. On 30 June 2008 he received into his trust account $1,650.00 on account of costs. He transferred that sum as costs to his office account on 2 July 2008. It was not until 6 August 2008 that he sent his clients a memorandum of costs and disbursements which accounted for the monies received. Again there was a breach of clause 88 and s 255.

Regarding Crown Street Holdings

30 The Solicitor assumed the conduct from an ACT firm of Solicitors of a purchase by Crown Street Holdings Pty Ltd, the purchase price being $5.5 million. On 1 November 2007 monies were deposited to the credit of the Solicitor's trust account representing a refund of stamp duty. From September to December 2007 the Solicitor withdrew sums for costs from his trust account totalling $42,500.00. These withdrawals were authorised by his client but he had not rendered to it any memorandum of costs and disbursements.

31 On 18 March 2008 the Solicitor withdrew $12,000 from his trust account to pay fees due to a third party. This withdrawal gave rise to a debit in the trust account of $5,102.84 which the solicitor allowed to remain until 2 April 2008 when he deposited an appropriate sum from his office account. Asked about this he told Mr Sofiak that he:

"Lent the company the money."

32 The facts establish breaches of s 262 and clause 88.

Regarding Puiatta Purchase

33 The solicitor acted for Mr and Mrs Puiatta in respect of the purchase of a property at Gosford. On 7 November 2008 the sum of $11,769.00 was paid into the Solicitor's office account in respect of stamp duty payable on the purchase. A cheque for $11,469.00 was paid from the office account as stamp duty on 17 November 2008. At the time the Solicitor was an undischarged bankrupt and unable to operate a trust account.

34 The Solicitor claimed that his daughter Loretta contrary to his instruction paid the amount on account of stamp duty into his office account. However bank records appear to indicate that the money was paid into his office account by direct electronic transfer.

35 The payment of stamp duty into the office account was a breach of ss 255 and 260.

Regarding File No. 38058

36 On 4 February 2010 the Solicitor was served with a notice issued by Mrs Hilary Young an investigator pursuant to the provisions of s 660 of the Act bearing her file number 38058. The Solicitor neglected to comply with the notice.

37 The matters listed above reveal multiple breaches of varying degrees of seriousness of both the Act and the Regulation. Taken together they undoubtedly warrant a finding of professional misconduct and the Solicitor, as we have indicated did not contend to the contrary.

38 In the Solicitor's case Mr Smith read the Solicitor's affidavit sworn 23 May 2012 and the affidavit of his wife Monica Therese Guy sworn on the same date. Neither was required for cross examination. The Solicitor's position is encapsulated in paragraphs 4 to 7 of his affidavit:

'I do not propose ever to seek a practising certificate or permission enabling me to act as a solicitor.

I am prepared to give whatever undertakings are necessary to give effect to 4.

I would prefer not to have my name removed from the role. But I accept that the Tribunal may find it appropriate to grant that order.

To the extent that the Law Society asserts that I acted dishonestly, I deny ever acting with a conscious appreciation that what I was doing was dishonest.

39 The Solicitor did not put in issue any of the matters alleged against him. However in relation to Mr and Mrs Cupit he said that he visited them on 6 to 8 occasions in the period before their death, prepared wills for them and gave general advice for none of which he charged a fee.

40 In relation to the Flynn Estate he admitted that he never met the deceased and said:

"I accept that if I made a statement to the investigator that I had done a lot of work for Mrs Flynn and not charged her and would go to visit her in a retirement village and had not charged her, was inaccurate and misleading, but not deliberately so."

41 As to overcharging in Probate matters the Solicitor asserted that he was unaware that such costs were regulated by a scale. He also testified as to considerable stress experienced in his personal life during the years 2007 and 2008 which in part explain although do not excuse his conduct. This testimony was supported by his wife's affidavit. His estate was sequestrated in bankruptcy on 24 September 2008 following a long standing dispute with the taxation authorities.

42 A medical certificate from Mr W Paisley was tendered. He said that as a General Practitioner the Solicitor had been his patient since 1990. He listed the consultations the Solicitor had with him during 2007 and 2008 concluding:

I understand furthermore that Gregory has asserted that he was significantly depressed in 2007 and 2008. He did not at any stage notify me of this illness. If he did have clinical depression then it could have impaired his cognitive ability and memory adversely. Clinical depression can result in significant impairment of a patient's judgement, his ability to make sound decisions and his ability to recall events thus resulting in an inability to cope with the pressure of work and homelife.

43 In her closing submissions Ms Webster contended that the Solicitor's misconduct taken as a whole warranted an order that his name be removed from the roll. She referred to Council of Law Society v Clapin (No. 2) [2011] NSWADT 246 a case with features similar to the present case. In Clapin the Tribunal quoted the passage from Law Society v Jones, Unreported, Court of Appeal 29 July 1978 which has particular relevance to this case. The passage is taken from the judgement of Street CJ with whom Reynolds and Samuels JJA concurred:

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 a 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.

44 Mr Smith did not submit that an order removing the Solicitor's name from the roll would be inappropriate. He did however submit in effect that the Solicitor's misconduct should be regarded as stemming from ignorance or negligence rather than dishonesty.

45 As pointed out in the passage from Law Society v Jones, quoted above, a high standard of professional conduct is rightly expected by the community of a Solicitor. We agree that the evidence in this case stops short of establishing that the Solicitor was dishonest.

46 However application of the test propounded in Allinson v General Council of Medical Education and Registration [1884] 1KB 750, whether the lawyer has behaved in a manner that would reasonably be regarded as disgraceful or dishonourable by his or her professional brethren of good repute and competency indicates to us that the name of the Solicitor should be removed from the roll. His transgressions numerically and in degree of seriousness, whatever the reason, do not in our view warrant any other course.

ORDERS

47 Accordingly we make the following finding and orders:

(1) That the Solicitor is guilty of Professional Misconduct as alleged.

(2) That the name of the Solicitor be removed from the local roll.

(3) That the Solicitor pay the Applicant's costs.

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Decision last updated: 26 September 2012