Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: Council of the Law Society of NSW v Mayo [2014] NSWCATOD 134
• Decision date: 03 November 2014
• Jurisdiction: Occupational Division
• Before: The Hon G Mullane, Senior Member; R Dawson, Senior Member; M Bolt, General Member

Decision

1. The name of Richard Neil Mayo is removed from the Roll.

2. Richard Neil Mayo must pay the costs of the Law Society.

3. The Registrar is to notify Ms Anne Janet Bury of the Orders and Reasons.

• Catchwords: Solicitor - professional misconduct - misappropriation - striking off
• Legislation Cited: Legal Profession Act 2004
• Category: Principal judgment
• Parties: Council of the Law Society of NSW (Applicant); Richard Neil Mayo (Respondent); Legal Services Commissioner (Intervener)
• Representation: Law Society of NSW (Applicant); W G McNally Jones Staff Lawyers (Respondent); Legal Services Commissioner (Intervener)
• File Number(s): 142114

reasons for decision

INTRODUCTION

1 These are disciplinary proceedings commenced by the Law Society against the Respondent.

2 The Law Society seeks orders for the name of the Respondent to be removed from Roll of Solicitors and for the Respondent to pay the Law Society costs. The Application also seeks compensation in respect of allegations of conduct prejudicial to Ms Anne Bury.

3 At the commencement of the hearing the Tribunal was provided with an Instrument of Consent signed by the parties and the Legal Services Commissioner consenting to the orders sought by the Law Society.

4 The Respondent had indicated by letter at least a year earlier that he would consent to such orders and surrendered his Practising Certificate.

THE EVIDENCE

5 The evidence comprised:

(1) The Instrument of Consent filed 31 October 2014;

(2) The Application for disciplinary findings and orders filed 28 February 2014;

(3) The Reply filed 3 September 2014;

(4) The Affidavit of John Earnest Mitchell sworn 14 February 2014;

(5) The Affidavit of John Leslie Sutton sworn 20 February 2014;

(6) The Affidavit of Anne-Marie Foord sworn 27 February 2014;

(7) The Affidavit of the Respondent sworn 1 September 2014.

(8) The Affidavit of Sally Mayo sworn 1 September 2014;

(9) The Affidavit of Michael Jalousis sworn 12 September 2014.

SOME BACKGROUND

6 The Respondent is 33. He commenced practice as a solicitor in May 2005. He was employed by Gadens Lawyers from May 2005 to June 2006. Then he took up a position with the Commonwealth Director of Public Prosecutions and he worked there until October 2009. From October 2009 until when he was dismissed on 12 April 2012 he worked for a Sydney law practice, Armstrong Legal. At Armstrong Legal he specialised in criminal law and appearing for Defendants.

ADMITTED FACTS

7 The Grounds are that the Respondent between about April 2011 and about May 2012 engaged in various professional misconduct concerning the receipt of trust moneys on behalf of the law practice. The moneys were usually payments on account for costs and disbursements for acting for a client. Sometimes he received cash and kept it for his own use. Other times he instructed the client to deposit the amount to the law practice trust account but gave the BSB number and account number for his own personal bank account so that the trust funds went to his account.

8 In many cases, the Respondent did not cause the client's file to be registered in the law practice's file and client registers. He conducted a file of his own and the law practice had no record of the client or the matter.

9 The Respondent admitted the Grounds and particulars set out in the Instrument of Consent signed by the Legal Services Commissioner and by the solicitors for the parties. Those details are as follows:

AGREED STATEMENT OF FACTS

Re: RICHARD NEIL MAYO

In respect of the following ground of complaint RICHARD NEIL MAYO ["the Solicitor"] engaged in professional misconduct as set out in the following allegation:

Grounds of complaint

In respect of the complaint by Ms Ann Janet Bury:

1. Failed to account.

2. Misled Ms Bury into depositing money in Mr Mayo's personal account.

3. Failed to provide receipts.

In respect of the complaint by the Law Society:

1. Misappropriated trust money.

2. Misappropriated money belonging to the practice of Armstrong Legal.

Particulars of Grounds of Complaint

In these Particulars:

"the Solicitor" means Richard Neil Mayo

"the Society" means The Law Society of New South Wales

"the firm" means Armstrong Legal

"the Solicitor's account" means the Solicitor's Account [No.101319256 (BSB 112879)] with the St George Bank.

1. Christopher Oldfield

1. The Solicitor appeared in the Local Court and the District Court on appeal for Mr Oldfield in relation to breaches of an AVO and an alleged assault against Ms Ann Bury.

2. The Solicitor received, at least, the sum of $9,000.00 in relation to Mr Oldfield's matter. These funds were paid to him by Ms Bury. $9,000 of this sum was paid by deposits into the Solicitor's account on 20 October 2011,12 March 2012 and 14 March 2012 (each in the sum of $3,000).

3. The Solicitor asserts that he paid the sum of $818.40 for a

Psychologist's report.

4. Ms Bury received a refund of certain moneys from the Solicitor.

5. A further sum of $3,000 was subsequently refunded to Ms Bury by the firm.

6. The Solicitor did not open a file in respect of this matter and the transactions in this matter were not transacted through the firm's trust account.

7. Other than for the sum of $3,000 retained in cash in the Solicitor's office [which was refunded to Ms Bury by the firm], the Solicitor has not accounted to the firm for the funds received from Ms Bury.

8. The Solicitor did not issue any receipt to Ms Bury for the moneys paid by her.

2. Ashish Awasthi

1. The Solicitor acted on behalf of Mr Ashish Awasthi in relation to a charge of 'fail to quit licensed premises'. Instructions were received on or about 19 November 2011.

2. By email of 1 December 2011 the Solicitor recommended to Mr Awasthi that his matter be adjourned and requested Mr Awasthi that he provide "the remaining funds" - the Solicitor having agreed to appear for Mr Awasthi for $1,000.00 and the sum of 200.00 having earlier been provided to him in cash.

3. The Solicitor requested Mr Awasthi that he deposit a further sum of $800 into a nominated account which he described as belonging to the firm. The account was the Solicitor's account.

4. On 2 December 2011 the sum of $800.00 was paid by Mr Awastihi into the Solicitor's personal account.

5. The Solicitor has not accounted to the firm for the $1,000.00 received by him in relation to this matter.

6. The Solicitor did not open a file in respect of this matter and the transactions in this matter were not transacted through the firm's trust account.

3. Saud Almaki

1. On or about 23 June 2011 Mr Saud Almaki instructed the Solicitor in relation to a charge of 'low range PCA' with 'exceed speed greater than 30km per hour'.

2. A file was opened by the firm.

3. Correspondence was issued on the letterhead of the firm dated 18 July 2011, 2 November 2011 and 20 December 2011 and related to adjournments of the matter which was ultimately adjourned to 9 January 2012 for sentence.

4. By email dated 28 October 2011 the Solicitor received a reminder from a paralegal at the firm requesting that he pursue trust funds in the event that they were required in Mr Almaki's matter.

5. On the same day the Solicitor replied:

"Not proceeding, regards Richard Mayo."

6. On 15 December 2011 the firm's paralegal sent a further reminder by email to which the Solicitor replied, on the same day:

"He is not going to use us."

7. To a further email of 4 January 2012 from the paralegal again reminding the Solicitor to seek trust funds from Mr Almaki, the Solicitor responded to another employee of the firm:

"As discussed please receipt the $150 agency for Alqahtani into the file of Almaki 21906 and then immediately issue Dean his Agency Fees. Almaki and Alqahtani are cousins and Almaki has provided this money to me for the express purpose of paying this agency fee ... "

8. Mr Almaki had paid the Solicitor the sum of $800.00 which was banked to the Solicitor's personal account - $200.00 on 18 July 2011, $200.00 on 25 August 2011 and $400.00 on 16 September 2011.

9. The Solicitor admitted to having received a further amount of $750.00 from Mr Almaki and of which $600.00 were deposited to the firm's trust account.

10. The Solicitor has not accounted to the firm for the sum of $950.00 received by him in relation to this matter.

4. Ali Alqahlani

1. On or about 24 November 2011 Mr Alqahtani instructed the Solicitor in relation to offences of 'drive while licence suspended' and 'drive while visiting privileges withdrawn'.

2. The Solicitor received into the Solicitor's personal account the sum of $200.00 on 25 November 2011; $300.00, on 19 December 2011 and $300.00 on 11 January 2012. A total of $800.00.

3. The Solicitor did not open a file in respect of this matter and the transactions in this matter were not transacted through the firm's trust account.

4. The Solicitor has not accounted to Armstrong Legal for the sum of $800.00 received by him in relation to this matter.

5. Riley Krishnan

1. The Solicitor acted for Ms Krishnan in respect of an alleged

overpayment by Centrelink. The Solicitor received instructions on or about 25 October 2011.

2. Ms Krishnan paid the sum of $500.00 to the Solicitor in cash.

3. The Solicitor did not open a file in respect of this matter and the transactions in this matter were not transacted through the firm's trust account.

4. The Solicitor has not accounted to the firm for the sum of $500.00 received by him in relation to this matter.

6. Pranav Mool

1. In or about March 2012 the firm received instructions from Mr Mool in relation to three (3) charges of dishonestly obtaining a financial advantage.

2. A client service agreement with an estimate of fees of $3,000.00 was issued.

3. On 22 March 2012 the sum of $2,000.00 was paid into the Solicitor's personal account.

4. The Solicitor has admitted to having received a further sum of $1,000.00 which was deposited into the Solicitor's personal account.

5. The Solicitor has not accounted to the firm for the sum of $3,000.00 received by him in relation to this matter.

7. Mario Ottaviano

1. On about 7 June 2011 Mr Mario Ottaviano instructed the Solicitor in relation to a 'stalk/intimidate' charge.

2. A file was duly opened within the firm's records.

3. A client registration form was partially completed with an estimate of fees of $5,000.00 and a required retainer of $200.00.

4. On 10 June 2011 the sum of $200.00 was paid into the firm's trust account. Of this sum, the sum of $65.00 was, on 28 September 2011, paid out by way of conduct money.

5. A payment of $220.00 for a tax invoice of 10 June 2011 from Ms Sarah Talbert, Barrister, for her appearance at Burwood Local Court on 10 June 2011 was, on 4 August 2011, made from the firm's general account, there being insufficient funds in the trust account.

6. The Solicitor admitted to having received, in addition to the $200.00 banked into the firm's trust account, the sum of $3,000 in cash from Mr Ottaviano and that he had refunded to him the sum of $2,000 after Mr Ottaviano was convicted.

7. The Solicitor did not invoice Mr Ottaviano for any work carried out on his behalf.

8. The Solicitor has not accounted to the firm for the sum of $1,000.00 received by him in relation to this matter.

8. Huwaei Hu

1. On or about 19 November 2011 the Solicitor received instructions from Mr Hu to act on his behalf in relation to a charge of 'drive whilst disqualified'.

2. Mr Hu entered into a client services agreement in which it was indicated that the firm's costs would be $2,000.

3. The Solicitor received from Mr Hu the sum of $200 on 19 November 2011; $1,800 on 1 December 2011 and $800.00 on 29 February 2012. A further $200 was received by the Solicitor on another date. The initial sum of $200 was banked into the Solicitor's personal account on 22 December 2011 and the balance, received in cash, was not banked by the Solicitor.

4. The Solicitor has not accounted to the firm for the sum of $3,000.00 received by him in relation to this matter.

9. Dejan Strezovski

1. On or about 19 December 2011 the Solicitor received instructions from Mr Strezovski in relation to a debt matter.

2. On or about 15 April 012 the Solicitor received the sum of $18,550 from Mr Strezovski and banked it into his personal account. A further sum of $500.00 was banked into the Solicitor's personal account on 19 December 2011.

3. The funds referred to in paragraph 2 above were receipted by the Solicitor from Mr Strezovski to be paid, at least in the sum of $18,400, to Sydney Sports Medicine Centre.

4. The Solicitor has not accounted to the firm for the sum of $19,050.00 received by him in relation to this matter.

5. The Solicitor did not open a file in respect of this matter and the transactions in this matter were not transacted through the firm's trust account.

10. Pawel Kulisewicz

1. On or about 28 April 2011 the Solicitor obtained instructions from Mr Kulisewicz in relation to proceedings involving ASIC.

2. Between 28 April 2011 and 17 August 2011 Mr Kulisewicz paid into the firm's trust account the total sum of $3,050.

3. The Solicitor received into his private account the following amounts on the relevant dates:

9 November 2011	$1,000
29 December 2011	$2,500
29 December 2011	$5,000
7 March 2012	$5,000
8 March 2012	$5,000

4. The Solicitor admitted that he had received a further $2,000 in cash from Mr Kulisewicz.

5. The Solicitor has not accounted to the firm for the sum of $20,500.00 received by him in relation to this matter.

11. Hannah Mathew

1. On or about 24 March 2012 the Solicitor received instructions from Ms Matthew in relation to a charge of high range PCA. The matter was to proceed at Ryde Local Court.

2. On 25 March 2012 the Solicitor requested Ms Matthew to deposit the sum of $300 to his private account which he described to her as 'Armstrong Legal' BSB 112879 ACC 101319256.

3. On 26 March 2012 Ms Matthew deposited the sum of $300 into the Solicitor's personal account.

4. Further amounts of $600.00 on 12 April 2012 and $400.00 on 20 April 2012 were deposited into the Solicitor's personal account.

5. The Solicitor did not account to the firm for $1,300.00 deposited by Ms Mathew.

6. The Solicitor did not open a file in respect of this matter and the transactions in this matter were not transacted through the firm's trust account.

12. Adam Tilley

1. On or about 31 October 2011 the Solicitor received instructions from Mr Adam Tilley. Mr Tilley was charged with a number of matters involving drug and weapons possession.

2. Mr Tilley, by internet payment, paid into the Solicitor personal account the sums of $500 on 12 April 2012; $1,500 on 29 March 2012 and $500 on 15 December 2012.

3. The Solicitor has not accounted to the firm for the sum of $2,500.00 received by him in relation to this matter.

13. David lIufi

1. On or about 5 December 2011 the Solicitor received instructions from Mr Ilufi.

2. On 6 December 2011 the Solicitor requested that Mr lIufi deposit the sum of $1,000 into his personal bank account. That amount was deposited on 9 December 2011.

3. The Solicitor has not accounted to the firm for the sum of $1,000.00 received by him in relation to this matter.

4. The Solicitor did not open a file in respect of this matter and the transactions in this matter were not transacted through the firm's trust account.

14. Julie Ireland

1. On or about 7 December 2010 the Solicitor received instructions from Ms Ireland in relation to a charge of larceny as a clerk to which she had pleaded guilty and was awaiting sentence.

2. The total sum of $4,500.00 was paid by Ms Ireland and deposited into the firm's trust account.

3. A further sum of $3,000.00 was received from Ms Ireland directly into the Solicitor's personal account on the following date and in the following amounts:

27 March 2012	$2,600
28 March 2012	$1,000
2 April 2012	$ 400
3 May 2012	$2,500
9 May 2012	$2,500

4. The Solicitor has not accounted to the firm for the sum of $9,000.00 received by him in relation to this matter.

15. Rodney Vanderpoel

1. In or about February 2012 the Solicitor received instructions from Mr Vanderpoel in respect of a charge of 'drive whilst cancelled'.

2. The Solicitor had previously acted for Mr Vanderpoel.

3. On 17 February 2012 the Solicitor attended Blacktown Local Court in relation to the charge and at which time Mr Vanderpoel gave to the Solicitor the sum of $500.00 in cash.

4. Mr Vanderpoel made deposits into the Solicitor's personal account as to $100.00 on 3 February 2012 and a further sum of $100.00 on 17 February 2012.

5. Mr Vanderpoel informed the firm that there were at least two other deposits made into the Solicitor's personal account in the sum of $100.00 and possibly $200.00.

6. The Solicitor has not accounted to the firm for the sum of, at least, $700.00 [or possibly $1,000.00] received by him in relation to this matter.

16. Jessie Zhe Niu

1. On or about 13 May 2012 the Solicitor received instructions from Ms Niu in relation to charges of make false representation.

2. On 20 March 2012 Ms Niu paid the sum of $3,000 into the Solicitor's personal account.

3. The Solicitor has not accounted to Armstrong Legal for the sum of $3,000.00 received by him in relation to this matter.

17. Tracey Taylor

1. In or about ear1y 2012 the Solicitor received instructions from Ms Taylor in relation to a taxation matter.

2. Deposits into the Solicitor's personal account were made by Ms Taylor as to $200.00 on 10 May 2012, $1,000.00 on 12 April 2012, $250.00 on 29 March 2012 [total of $1,450.00 Jand by her partner in the sum of $500.00 on 21 March 2012.

3. The Solicitor has not accounted to the firm for the sum of $1,950.00 received by him in relation to this matter.

18. Andrew Toth

1. On or about 26 May 2011 the Solicitor received instructions from Mr Toth.

2. The sum of $2,625 was paid into the firm's trust account by Mr Toth. In addition, Mr Toth paid one or more amounts of $100 directly to the Solicitor.

3. The Solicitor has not accounted to the firm for any funds he received directly from Mr Toth and in relation to this matter.

19. Van Winkelhof

1. In or about April 2012 the Solicitor received instructions from Mr Winkelhof in relation to a criminal law matter.

2. On 11 April 2012 Mr Van Winkelhof deposited the sum of $2,500.00 into the Solicitor's personal account and gave a further sum of $1,000.00 in cash to the Solicitor.

3. The Solicitor has not accounted to the firm for the sum of $3,500.00 received by him in relation to this matter.

4. The Solicitor did not open a file in respect of this matter and the transactions in this matter were not transacted through the firm's trust account.

20. Mathew Turner

1. In or about November 2011 the Solicitor received instructions from Mr Turner in respect of a traffic matter.

2. On 24 November 2011 Mr Turned paid the sum of $500.00 into the Solicitor's personal account. A further sum of $1,000 was paid by Mr Turner into the Solicitor's personal account on 2 December 2011.

3. The Solicitor has not accounted to the firm for the sum of $1,500.00 received by him in relation to this matter.

4. The Solicitor did not open a file in respect of this matter and the transactions in this matter were not transacted through the firm's trust account.

21. Lisa Milgate

1. The Solicitor acted for Lisa Milgate.

2. The Solicitor received the sum of $500.00 from Ms Milgate.

3. The Solicitor has not accounted to the firm for the sum of $500.00 received by him in relation to this matter.

4. The Solicitor did not open a file in respect of this matter and the transactions in this matter were not transacted through the firm's trust account.

22. Hoctor Uribo

1. On or about 25 February 2012 the Solicitor received instructions from Mr Uribe in relation to an AVO matter.

2. At the time the Solicitor received instructions from Mr Uribe he received the sum of $500.00 from Mr Uribe by way of retainer.

3. The Solicitor has not accounted to the firm for the sum of $500.00 received by him in relation to this matter.

4. The Solicitor did not open a file in respect of this matter and the transactions in this matter were not transacted through the firm's trust account.

23. Honryk Bakiera

1. On or about 13 January 2012 the Solicitor received instructions from Mr Bakiera in relation to a traffic matter.

2. On 16 January 2012, at the request of the Solicitor, Mr Bakiera deposited the sum of $1,200 into the Solicitor's personal account.

3. The Solicitor has not accounted to the firm for the sum of $1,200.00 received by him in relation to this matter.

4. The Solicitor did not open a file in respect of this matter and the transactions in this matter were not transacted through the firm's trust account.

24. Genc

1. The Solicitor received instructions from Mr Genc and on completion of his matter received the sum of, at least, $800.00.

2. The Solicitor has not accounted to the firm for the sum of $800.00 received by him in relation to this matter.

25. Debbie Feening

1.On or about 18 November 2011 the Solicitor received instructions to act for Ms Feening in relation to proceedings brought against her in the Supreme Court.

2. With his employer's permission, instructions were accepted on a limited basis.

3. On 21 November 2011 Ms Feening paid the sum of $5,000 into the Solicitor's personal account.

4. The Solicitor has not accounted to the firm for the sum of $5,000.00 received by him in relation to this matter.

26. Jarrod Hall

1. On or about 25 January 2012 the Solicitor received instructions from Mr Hall in relation to Local Court proceedings.

2. Mr Hall paid into the Solicitors personal account the sums of $350.00 on 2 February 2012; $1,000 on 5 March 2012 and $1,000 on 9 March 2012.

3. The Solicitor has not accounted to the firm for the sum of $2,350.00 received by him in relation to this matter.

10 The admitted conduct of the Respondent involved conduct that a law practice was prohibited by law from committing. For example, ss.254(1) of the Act required that "as soon as practicable after receiving trust money a law practice must deposit the money in a general trust account of the practice", and, s.255 of the Act required that 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". Section 260 prohibits a law practice from mixing of trust money with other money.

UNSATISFACTORY PROFESSIONAL CONDUCT AND PROFESSIONAL MISCONDUCT

11 Sections 496, 497 and 498 of the Legal Profession Act 2004 provide:

496 Unsatisfactory professional conduct

For the purposes of this Act:

"unsatisfactory professional conduct" includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

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.

498Conduct 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.

EVIDENCE FOR THE RESPONDENT

12 The Respondent was a school captain of the primary school he attended. He attended Newington College and was dux of the school and captain of the debating team. He attended the University of Technology at Sydney from 2000 to 2004 and graduated in Journalism and Law in early 2005. He was awarded first class honours in Law. He worked as a lawyer for almost 6 years from May 2005 to April 2011 and in respect of that period there has been no evidence of any transgression or inadequacy in his conduct as a lawyer.

13 His evidence is that when he worked for Armstrong Legal he worked:

"primarily autonomously. I estimated costs, issued bills, appeared for clients and managed my own time exclusively. There was some oversight from the partners of the firm but it primarily related to attaining financial targets."

14 In the 2011 financial year he earned over $360,000 in billings.

15 But the Respondent also said:

"21.I found the work that I was doing to be very stressful. I found it difficult to distance myself from clients, as a result I would often take on their issues personally and that would upset me.

22.I worked on most nights and weekends and would answer client's telephone calls on my mobile telephone 24 hours a day, 7 days a week.

23.I estimate I was working 70-80 hours per week between the beginning of 2010 and April 2012.

24.I now realise that my work/life balance was completely unsustainable and that the way I worked was exacerbating my personal problems."

16 His personal problems included that he began to use cocaine and that he also was gambling. These two problems resulted in a serious deterioration in his financial situation. He accumulated substantial debt with credit cards and by August 2010 he was forced to sell his home unit, which was purchased partly with an inheritance of $50,000 from his grandmother. On the sale of the unit he received only $100,000 after payment of his debts. He then increased his gambling. The whole of those funds was exhausted within 7 months by drugs and gambling. He continued to incur debts by personal loans and credit cards to fund his gambling and drug habits. From April 2011 to May 2012 he also used funds that he had misappropriated.

17 Throughout the period from 2008 onwards, his lifestyle and habits also contributed to a decline in his physical health. He had difficulties sleeping and was often physically exhausted at work. His weight increased from 83kgs in 2010 to 104kgs in April 2012.

18 The Respondent's parents are retired. However, when the Respondent informed them of what he had been doing with client's moneys, at about the time he made disclosure to his employers, they arranged for payment of a total of $70,000.00 to the law practice towards covering the losses of the law practice and the clients. He himself arranged payment of $10,000 to the law practice by foregoing termination entitlements and using other money in his possession. He handed in his Practising Certificate to the Law Society on 23 April 2012 and indicated that he would consent to being struck from the Roll. Also in April and early May he attended interviews with the Law Society's Chief Trust Account Inspector and made voluntary disclosure of the information required of him. He also made disclosure to his employers and voluntarily provided his bank records.

19 Since June 2012 the Respondent has attempted to set up a business running web sites and selling advertising. This was unsuccessful. He worked for a while doing industrial cleaning and on some occasions as a labourer. He worked as a casual waiter in a restaurant for a few months in 2012. In late 2012 he also worked for a woman who worked for an on-line health supply business doing packing and mailing. From May 2013 to October 2013 he obtained work as a social media producer for a television show. When the season finished his employment ended. He then had no employment until May 2014.

20 He applied for hundreds of jobs between October 2013 and May 2014 without success. In November 2013 he started work with a publisher, but found his skills were not required. In May 2014 he obtained employment as a receptionist for a small consulting firm and he remained in that employment at the time of the hearing. His salary is $45,000 per annum. He is fearful he will lose his job because of the pending decision by this Tribunal. He has enrolled in a course at the University of Sydney for the degree of Master of Business Administration and has completed his first subject.

21 The parents of the Respondent expect him to repay the funds that they have paid to his former employers. He says he intends to do that but that he still owes a substantial debt to the former employers. He says his inconsistent work history has not enabled him to make significant repayments since May 2012. At the time of his dismissal he paid a total of $9,361.71, including statutory entitlements for long service leave and other termination entitlements. He has since paid a total of $4,400 when he was employed as a social media producer for the television show.

22 His evidence is: "I have not declared bankruptcy and do not intend to voluntarily. I am willing to repay everything that I owe, including interest, no matter how long it takes."

23 It is clear from the evidence that the Respondent is seriously remorseful and guilt stricken over what he has done. He has experienced considerable shame and the loss of the opportunity to participate in his chosen vocation. He had thought that he might be able to study medicine but has decided not to do that because he fears that he would be refused admission to the profession because of the subject conduct.

24 In his Affidavit he expressed sincere regret for his conduct and the "incredible upheaval caused to the clients and the employer", "the broader financial and reputational damage that I caused to the firm", and, "bringing my profession into disrepute".

25 He regrets that having worked so hard to become a lawyer and "helped many people until my misconduct". That misconduct "has over-shadowed and to some extent diminished the good work I did prior to that." He is conscious he has caused his friends and family and his partner, who is a legal professional, "pain and suffering". He believes her association with him has damaged her own reputation. He said that his shame has included that his misconduct "has destroyed my reputation and brought my family name into disrepute. I am in financial ruin."

26 He said that because of the shame he feels for what he has done he had to withdraw from all the connections he had in his life as a lawyer, including many colleagues and friends. He said he is very anxious about answering unknown phone calls, checking e-mails, and checking physical mail, and "knowing that disciplinary and criminal proceedings were inevitable and that on any given day, I may be contacted by the Law Society, Armstrong Legal or the Police."

27 He says that he now avoids all areas in the city where he is likely to see his former colleagues and associates in the legal profession "because of the shame I feel for what I have done."

PSYCHIATRIC EVIDENCE

28 A psychiatrist, Dr Selwyn N Smith, conducted the psychiatric examination of the Respondent on 16 June 2014. He was briefed with a copy of the Application of the Law Society and records from North Sydney Local Health Network in relation to the Respondent. Information the Respondent gave Dr Smith was in accordance with his disclosures to the Tribunal. Dr Smith diagnosed the Respondent as suffering from:

• Major Depressive Disorder with Generalised Anxiety
• Alcohol Use Disorder
• Stimulant Use Disorder (Cocaine)
• Gambling Disorder

29 Dr Smith's opinion is that the Respondent developed Major Depressive Disorder in response to work demands that were placed upon him during his employment at Armstrong Legal.

"He experienced excessive anxiety, restlessness and feeling of being keyed up and on edge. He experienced episodic impairments in his ability to focus and concentrate. His sleep patterns were interrupted. His self-confidence was lowered and his [sic] experienced feelings of inadequacy and at times pessimism, despair and hopelessness. He was brooding about adverse experiences. He also experienced irritability with excessive anxiety. Overall he was decreasingly active, effective and productive."

30 Dr Smith's opinion is that the Respondent increased his consumption of alcohol as a method of coping with his problems. His pattern of alcohol use constituted a further significant impairment.

31 Dr Smith said that:

"Despite an intellectual awareness that alcohol was having significant interpersonal, social and occupational adverse effects, he continued to consume alcohol. He developed a tolerance."

32 He said that the Respondent became dependant on alcohol to assist him in sleeping, but "unfortunately alcohol often intrudes into sleep architecture and exacerbates insomnia as well as depression and anxiety, and this was consistent with his clinical picture."

33 Dr Smith also said that the Respondent became dependant on cocaine and was taking it in increasing larger amounts. He had a persistent desire to use cocaine and was unsuccessful in controlling his use. He developed tolerance. The utilisation of cocaine also:

"markedly intruded into his sleep patterns. In all probability it compounded his depressive condition and exacerbated his anxiety. As a method of compensating for his developing financial difficulties, Mr Mayo resorted to gambling. He developed a pattern of recurrent problematic gambling that resulted in incurring significant debt. This further exacerbated his underlying depressive and anxiety symptoms."

34 Dr Smith's opinion is that:

"Mr Mayo's behaviour in my opinion was clearly out of character and was driven by the need to avoid dysphoria and pursue euphoria or positive reinforcement. The alcohol and cocaine were utilised to overcome psychological pain, anxiety and depression. In all probability Mr Mayo was at high risk for developing alcohol dependence as well as cocaine dependence."

35 Dr Smith found:

"In my opinion the underpinnings of Mr Mayo's dependence on alcohol, cocaine and subsequently his resorting to pathological gambling was directly related to his Major Depressive Disorder in association with generalised anxiety. In my opinion his Morbid Depressive and Anxiety Disorders made it difficult for him to relinquish his dependent habits.

Since his dismissal from the legal practice where he was employed, Mr Mayo has ceased his reliance on cocaine. He has also ceased his reliance on gambling. He has lapsed only once in regard to alcohol utilisation. He has experienced a marked degree of shame, humiliation and remorse for his conduct. Fortunately this has been well supported by his current partner and family members.

I have only outlined the symptomologies experienced by Mr Mayo. In my opinion the underpinnings to his alcohol, cocaine and gambling disorders are directly related to a Major Depressive Disorder with generalised anxiety. His psychiatric conditions in my opinion were related to the difficulties he was experiencing in his employment with Armstrong Legal.

It is my opinion that at the time he engaged in his aberrant conduct Mr Mayo was experiencing significant psychiatric disability.

I found no competing causes for the emergence of his psychiatric disorder or his untoward conduct other than that produced by his underlying psychiatric condition. It is my opinion that at the time Mr Mayo engaged in conduct that was clearly out of his character his judgment was significantly impaired. He had difficulty in controlling his actions. Intellectually he was aware that what he was doing was wrong but never the less was driven to continue to engage in the conduct in a repetitious and compulsive manner.

In my opinion the most significant substantial contributing factor that precipitated and contributed to his condition related to the demands placed on him during his employment at Armstrong Legal. He was also experiencing significant ambivalence in relation to his capacity to work. He was at a loss to know how to proceed. He was hesitant to disclose his true feelings to other, a characteristic consistent with elexithymia that I have commented upon above."

36 Dr Smith noted that as far as he was aware the Respondent had had only one brief psychological treatment in regard to his condition and he expressed the opinion that the Respondent is in need of further psychiatric and psychological treatment. He said:

"I discussed this aspect with Mr Mayo and he agreed with me for the need to engage in intensive supportive psychotherapy and cognitive behavioural therapy. He may also require the administration of an appropriate anti-depressant of the serotonin specific reuptake type.

Mr Mayo has significant insight into his condition and displayed strong motivation to engage in appropriate treatment."

37 Dr Smith expressed the opinion that the Respondent's prognosis for recovery should be good. He said: "I do not anticipate further deterioration to occur. It is highly unlikely that he will relapse particularly if he continues to engage in psychological and psychiatric treatment."

CONCLUSIONS

38 The primary role of these proceedings is not to punish the Respondent, but to protect the public. Another subsidiary role is to protect the reputation of the profession. Another is to set an example that deters other practitioners.

39 This is a particularly tragic matter.

40 The clients, the public, the courts and other members of the profession and are entitled to expect a solicitor to be a person of honesty, trustworthiness and integrity. They are also entitled to expect a solicitor to exercise due competence and diligence. Diligence, of course, involves maintaining ethical standards in complying with the law.

41 The Respondent's pattern of conduct between April 2011 and May 2012 displayed a lack of diligence, a lack of trustworthiness, a lack of honesty and a lack of integrity.

42 It may be that in time, after on-going psychological and psychiatric assistance a Tribunal would have confidence that the Respondent would meet the required standards if he practiced as a solicitor. But at this time the Tribunal is satisfied that his pattern of conduct over 13 months from April 2011 to May 2012 comprised by the admitted grounds and particulars constitutes professional misconduct and the Respondent at this time is not a fit and proper person to practice as a solicitor.

43 The Tribunal has therefore decided to make the orders agreed to by the parties.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar

Decision last updated: 14 November 2014