Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Clarke [2022] NSWCA 57 Hearing dates: On the papers Date of orders: 12 April 2022 Decision date: 12 April 2022 Before: Basten JA; Macfarlan JA; Simpson AJA Decision: (1) Declare that the respondent is not a fit and proper person to remain on the roll of Australian lawyers maintained by the Court pursuant to s 22 of the Legal Profession Uniform Law (NSW). (2) Order that the respondent's name be removed from that roll. (3) Order the respondent to pay the applicant's costs of the proceedings. Catchwords: LEGAL PRACTITIONERS — disciplinary proceedings — practitioner convicted of offences under s 192E(1)(b) of the Crimes Act 1900 (NSW) of dishonestly obtaining an advantage — sentence of imprisonment — declaration that the practitioner is not a fit and proper person to remain on the roll of Australian lawyers Legislation Cited: Crimes Act 1900 (NSW), s 192E(1)(b) Legal Profession Uniform Law (NSW), s 22 Cases Cited: Council of the Law Society of New South Wales v Jafari [2020] NSWCA 53 Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655; [2020] NSWCA 163 NSW Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 Prothonotary of the Supreme Court of NSW v Alcorn [2007] NSWCA 288 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Brody Jack Clarke (Respondent) Representation: Counsel: C Webster SC (Applicant) Self-represented (Respondent) Solicitors: Law Society of New South Wales (Applicant) File Number(s): 2021/282504 Publication restriction: Nil [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: The respondent, Mr Brody Jack Clarke, is an Australian lawyer admitted to the Australian legal profession in NSW. His name is recorded as a lawyer on the roll maintained by the Supreme Court of New South Wales pursuant to s 22 of the Legal Profession Uniform Law (NSW). Mr Clarke was born in 1982 and was admitted to practice on 7 December 2007. 2. The Council of the Law Society of New South Wales ("the Law Society") applies for orders to be made by the Court in its inherent jurisdiction as follows: (1) a declaration that the respondent is not a fit and proper person to remain on [the] roll of Australian lawyers maintained by the Court (Roll) pursuant to s 22 of the Legal Profession Uniform Law (NSW); (2) removal of the respondent's name from the Roll; and (3) costs. 1. On 3 January 2019 Mr Clarke adhered to pleas of guilty entered on 26 June 2018 in the Local Court on the following criminal charges of conduct contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW): 1. On 29 December 2015 he caused Directors Interest Pty Limited, a client of Atanaskovic Hartnell, to transfer $18,035.97 in company funds to his private bank account (Seq 12); 2. On three occasions between 21 August 2016 and 30 June 2017 he caused WIN Corporation Pty Ltd to transfer company funds totalling $2,537,266.00 to his private bank account (Seq 11, formerly Seq 6, 7 and 8); 3. On 2 December 2016 he caused Aurora Funds Management Ltd, a client of Atanaskovic Hartnell, to transfer $82,070.38 in funds to his private bank account (Seq 9); 4. On three occasions between 21 April 2017 and 23 June 2017 he caused Birketu Pty Ltd to transfer company funds totally $260,664.65 to his private bank account (Seq 10, formerly Seq 3, 4 and 5); 5. On or about 18 August 2017 he caused Deutsche Bank to transfer $4,455,000.00 held on behalf of Birketu to his private bank account (Seq 2); and 6. On 1 September 2017 he caused Deutsche Bank to transfer $2,500,740.00 held on behalf of Birketu to his private bank account (Seq 1). 1. Consequently Mr Clarke was convicted of six offences against s 192E(1)(b) of the Crimes Act of dishonestly obtaining an advantage. On 16 January 2019 he was sentenced in the District Court to an aggregate sentence of imprisonment of 6 years commencing on 14 January 2019 and expiring on 13 January 2025, with a non-parole period of 3 years expiring on 13 January 2022. 2. The sentencing judge described Mr Clarke as a "highly intelligent, well-educated 36-year-old man with a stellar curriculum vitae" who had had periods of employment with leading investment banks and law firms. He was employed by the law firm of Atanaskovic Hartnell at the time he committed the subject offences. He fraudulently transferred money, or caused its transfer, from bank accounts of entities associated with clients of the firm with whom he had developed close relations and for whom he acted in a number of transactions. The sentencing judge referred to Mr Clarke foolishly deciding "to attempt to fund an irrational gambling addiction by stealing about $9 million from his client, a well-known Australian business entity". 3. His Honour found that Mr Clarke was unlikely to reoffend, had good prospects of rehabilitation and had expressed significant remorse and regret. He recorded that Mr Clarke had made efforts to overcome his gambling addiction but that there was no prospect of Mr Clarke providing any substantial sum of money to recompense the client. 4. The details of Mr Clarke's offences are not in dispute on the present application, the parties having agreed on a Statement of Facts in which they are set out. In its written submissions the Law Society gave a sufficient summary of the offences as follows: "… Seq 1, 2, 10 [(formerly Seq 3, 4 and 5)] and 11 [(formerly Seq 6, 7 and 8)] involved the respondent dishonestly diverting payments due to the firm for legal work performed and client funds to his personal account, representing it to be a trust account of the firm. Seq 10 involved legal fees, and sums said to be for land tax. Seq 11 involved purported stamp duty surcharges and funds withheld by the client (WIN) in connection with a contractual dispute. In connection with Seq 1 and 2 the respondent also falsely identified himself to a Deutsche Bank settlements officer as a director of Birketu to authorise payments in accordance with authorities he procured for the transfer of funds. In the case of Seq 9 and 12, the respondent sent invoices for work performed for clients purporting to be from the firm and seeking payment into his personal account." 1. Mr Clarke consents to the Court making the orders described in [2] above. Notwithstanding that, the Court however needs to satisfy itself that it is appropriate to make them (Council of the Law Society of New South Wales v Jafari [2020] NSWCA 53 at [3]). 2. The question for the Court to determine is whether the Law Society has demonstrated that Mr Clarke is presently not fit to practise and is likely to be unfit in the indefinite future (Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 at [33] and [45]; Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655; [2020] NSWCA 163 at [99]). A criminal conviction, even for a serious offence, does not necessarily warrant a finding that a practitioner is permanently unfit to practice (Parente at [26]) but the offences of which Mr Clarke was convicted in our view leave no doubt that he is not a fit and proper person to be a lawyer and will continue to be unfit for the foreseeable future. The offences involved him taking advantage in a deliberate and calculated fashion of opportunities arising out of his employment as a solicitor and involved significant breaches of trust and serious dishonesty. His acts were antithetical to central requirements for being a fit and proper person, namely honesty and integrity. As stated by Spigelman CJ (with the concurrence of Mason P and Handley JA) in NSW Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [19]–[20] these qualities are essential for a practitioner to have for the following reasons: "Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity. There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people." 1. Mr Clarke's conduct was clearly dishonourable and disgraceful, and inimical to the reputation of the legal profession and to public confidence in its integrity. 2. Commendably however, Mr Clarke is remorseful and wishes to redeem his reputation in the future. Whether he will be able to do this, remains to be seen and is at the present time purely a matter of speculation. As said by Hoeben J (with Beazley and McColl JJA concurring) in Prothonotary of the Supreme Court of NSW v Alcorn [2007] NSWCA 288 at [61], "[r]eformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing". Accordingly, it must be concluded on the present application that Mr Clarke is not, and will continue for the foreseeable future not to be, a fit and proper person to be a lawyer. 3. In these circumstances, the Court orders that Mr Clarke's name be removed from the roll of Australian lawyers maintained by the Court. It is also appropriate that the Court make the declaration sought by the Law Society to the effect that Mr Clarke is not a fit and proper person to remain on the roll (see Jafari at [44] adopting the observations of Spigelman CJ in Cummins at [32]). Further, there is no reason not to award costs to the Law Society in light of its success in the proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 April 2022