CITATION: Law Society of New South Wales v Martin [2002] NSWADT 280 DIVISION: Legal Services Division APPLICANT PARTIES: Council of the Law Society of New South Wales RESPONDENT Timothy Vincent Martin FILE NUMBER: 022004 HEARING DATES: 23/07/02 SUBMISSIONS CLOSED: 07/23/2002 DATE OF DECISION: 12/24/2002 BEFORE: Vass CB -Judicial Member; Fox R - Judicial Member; Kennedy A - Member APPLICATION: Professional Misconduct - misappropriate trust moneys/moneys MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 CASES CITED: Penfold (1997 [LST23]) APPLICANT REPRESENTATION: P Boyd, solicitor RESPONDENT G Walsh, solicitor ORDERS: 1 That the name of the Respondent be struck from the Roll of Legal Practitioners; 2 That the Respondent pay the costs of the Law Society of New South Wales, within 21 days of the date of this order, liberty to apply if payment not made. 1 The Legal Practitioner has admitted to the matters raised against him by the Law Society, being in summary, the misappropriation of two separate amounts, $2,530.00 (" The Citer Matter") and $17,116.08 ("The Le Blanc Matter"); failure to follow directions of client, failure to comply with Section 152 Notice. The Society sought a striking off order, and, although he originally opposed it, in the days before the hearing, the Legal Practitioner conceded the misconduct and unprofessional conduct complained of and agreed that such an order should be made. The Legal Practitioner has not held a practising certificate since the Council of the Law Society cancelled it on 27 May 1999. 2 At the relevant times between 1996 and 1998, the Legal Practitioner conducted a "one man" practice at Riverwood. He did not conduct a Solicitor's Trust Account. 3 In the Citer matter, which was a sale conveyance for a Mr Hill, the Legal Practitioner held his client's direction to pay $2,600.00 from the proceeds of sale to Citer. At settlement of the conveyance the Legal Practitioner received a cheque payable to him which was partly for costs and disbursements, and partly the amount to be paid to Citer. The Legal Practitioner's general account overdraft was at its limit and the Legal Practitioner paid the cheque into that account. This meant that his costs and disbursements had been paid, but the Legal Practitioner did not immediately draw a cheque to Citer. The funds were received towards the middle of 1996, but payment paid to Citer was not made until October in 1999. 4 In the Le Blanc matter, in 1997 the Legal Practitioner acted for a person who, under the guidance of others, was in the process of realising an inheritance which had recently come into his control. The Legal Practitioner says, and the Tribunal accepts, that it was always clear the that client was only just of sufficient capacity to manage his own affairs, but by the time the proceeds of sale of the home unit (being the only asset) were to hand, it was clear that Mr Le Blanc could not manage his own affairs, and the Legal Practitioner took appropriate steps to protect the funds. However, in the process, in May of 1997, two cheques totalling $17,116.08 found their way into the Legal Practitioner's general account, and were not paid over to or on behalf of the client until August of 1999. 5 On a preliminary overview of the facts of the Le Blanc matter, there may have been sufficient in the Legal Practitioner's favour to bring him within the exception outlined in the Penfold (1997[LST23]) matter, and so the Practitioner might have been justified in seeking a mere suspension, even allowing for the facts of the Citer matter. The Legal Practitioner is to be commended for the fact that he did not pursue this course, and conceded, at an appropriate time, that he had forfeited the right to be on the Roll. 6 The Legal Practitioner, after a finding of delay in litigation, had supervision conditions placed on his practising certificate in 1997. It was this certificate which was cancelled in May of 1999. 7 The Legal Practitioner closed his Riverwood practice in 1997 or 1998. He found employment as a solicitor with T.R Brown and Associates in December of 1998 and after the cancellation, from 22 July 1999 continues to work in that firm as law clerk, with the approval of the Council of the Law Society. 8 On the Legal Practitioner's behalf, the Tribunal had before it in evidence a full report of Doctor Strum Psychiatrist, dated 16 June 1999, Doctor Ian M Chung dated July 2002, a short chronology and Statutory Declaration by Legal Practitioner, which annexed letter from his employer, Terry Brown Solicitor dated 28 June 2002, a reference from O Harrison Barrister and a reference from Kevin Green, State Member of Parliament for the seat of Georges River, and a full statement of the conditions of supervision of employment, dated 23 July 1999 imposed on the Legal Practitioner and Mr Brown. 9 The following arises from those documents. 10 The Legal Practitioner was employed by the Federal Attorney General's Department and subsequently the Commonwealth Crown Solicitor after he was admitted in 1975. He became District Registrar of the Federal Court of Australia in 1978, but left that position in 1981 to commence private practice, and he has been in private practice ever since. 11 The Legal Practitioner, since his teenage years, has suffered from depression, alcoholism and a gambling addiction. It is clear that these disorders contributed to the matters which the Tribunal now has before it. The Legal Practitioner has taken these afflictions in hand, joined AA and Gamblers Anonymous, has not indulged in either since 16 February 1999, and continues to attend AA meetings. 12 The Legal Practitioner has a lasting marriage and has seven children, four of whom are still at school. He and his wife have a strong commitment to their local church and community. The frank reference by the Practitioner's friend, Kevin Green, Member for Georges River, and the medical evidence satisfies us that the Legal Practitioner has taken, and continues to take, steps to order his personal and emotional life. 13 The Legal Practitioner having conceded that he should not hold the restricted certificate which he held since 1997, the Tribunal, in exercising its protective jurisdiction, was obliged (perhaps of its own initiative) to consider the circumstances of the Practitioner's employment as a law clerk. 14 Upon the making of our order, Mr Martin will no longer be a Legal Practitioner and will be a disqualified person as defined in Section 48K 7(c). To continue to work as a law clerk, the Council of the Law Society will have to give its approval pursuant to the power given by Section 48K. We were not offered the legislative basis for the approval given and conditions imposed by the Council in July 1999 for the Legal Practitioner, then not being the holder of a Practising Certificate, but not being a disqualified person, to be employed by Mr Brown. We think it appropriate therefore, in order to remove any doubt for the Legal Practitioner's future, to indicate that we are satisfied that the tenor of the conditions imposed by the Council in 1999 was appropriate and proper. 15 We think it relevant to record that we called Mr Brown to give evidence, and note his indication on the one hand, of his complete satisfaction with the Legal Practitioner's professional and personal behaviour and competence, and, on the other hand, that there is strict compliance with the conditions. 16 Because, to all intents and purposes, it may appear to members of the public that, despite being a disqualified person, Mr Martin simply continues to do the same work as a solicitor, and may well appear to be one, it is appropriate that we give a summary of the undertakings given by Mr Brown, and by Mr Martin to the Council of the Law Society in 1999. 17 (1) by Mr Brown:- 1. No mail authored by Mr Martin is to emanate from Mr Brown's office without being personally signed by Mr Brown. 2. Any client for whom Mr Martin is doing work must be immediately informed by Mr Brown, in writing, that Mr Martin is a clerk under the supervision of Mr Brown. 3. All files dealt with by Mr Martin to be reviewed by Mr Brown at the conclusion of the matter, or every quarter, whichever is the earlier, and a report provided to the manager of the Professional Standards Department of the Law Society of New South Wales within three weeks to confirm that the review has been conducted and indicating whether there are any matters giving rise to adverse comment by Mr Brown. 4. Mr Martin only to receive wage/salary. 5. If at any time Mr Martin's work comes to adverse attention, Mr Brown immediately to inform the Law Society. 6. Mr Martin only to work from offices of T.R Brown and Associates. 18 (2) by Mr Martin:- 1. All correspondence to be approved by Mr Brown and signed by Mr Brown. 2. All persons with whom Mr Martin deals are to immediately notified in writing that his position is that of clerk 3. Mr Martin to have all files properly supervised by Mr Brown. 4. Mr Martin to only receive wage/salary. 5. Mr Martin to notify the Society within ten days of ceasing to be employed by Mr Brown. 6. Mr Martin to continue to attend regular meetings of AA and GA, to supply written evidence of attendance to the Law Society monthly. 7. As directed by the Law Society, to be treated by Doctor Strum, and Strum regularly to report. 19 We note that these undertakings mandate supervision, disclosure, and treatment. In particular they require Mr Martin, whenever meeting with a new client, or taking instructions in a new matter, (so to speak) to again don his hairshirt. We are not without some sympathy for Mr Martin's situation, however, we think such disclosure a proper requirement, as is a requirement for supervision and reporting to the Law Society (although such reporting may as well be annually). We also approve of the requirement for continual medical assessment (although perhaps not by Doctor Strum) and continuing attendance at AA. 20 We therefore order:- 1. That the name Timothy Vincent Martin be struck from the Roll of Legal Practitioners. 2. That he pay the costs of the Law Society of New South Wales, within 21 days of the date of this order, liberty to apply if payment not made. 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.