Law Society of New South Wales -v- Boland [2000] NSWADT 189

CITATION: Law Society of New South Wales -v- Boland [2000] NSWADT 189 DIVISION: Legal Services Division APPLICANT Council of the Law Society of New South Wales PARTIES: RESPONDENT Brian James Boland FILE NUMBER: 002007 HEARING DATES: 08/11/2000 SUBMISSIONS CLOSED: 11/08/2000 DATE OF DECISION: 12/22/2000

BEFORE: Needham CA - (Deputy President); Clisdell RJ - Judicial Member; Costigan M - Member APPLICATION: Professional Misconduct - misappropriate trust moneys/moneys MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 1987 CASES CITED: APPLICANT REPRESENTATION: P R Boyd, solicitor No Appearance ORDERS: 1. That the name of Brian James Boland be removed from the Roll of Legal Practitioners; 2. That Brian James Boland pay the reasonable costs of Law Society of New South Wales.

1 The Council of the Law Society of New South Wales filed an information in the Tribunal seeking orders to remove the name of Brian James Boland from the Roll of Legal Practitioners. The ground relied on by the Law Society was that the Legal Practitioner misappropriated the sum of $48,759.08. 2 The particulars of that misconduct were that Mr Boland was charged with fraudulent misappropriation under Section 178A of the Crimes Act (1900) to which he pleaded guilty. On 8 May 1998, the Solicitor was convicted and sentenced by Judge Shillington to imprisonment for a period of two years with a minimum term of eighteen months. An appeal by Mr Boland to the Court of Criminal Appeal on severity was unsuccessful. 3 The circumstances in which the Solicitor misappropriated the moneys arose out of a transaction for the sale of a unit owned by Mrs Barbara Maclaine. At the time, the Solicitor was practising at Bankstown under the name of Boland & Company. After settlement of the sale of the unit, Mrs Maclaine instructed the Solicitor to deposit part of the sale proceeds for commercial factoring, pay a small amount to Mrs Maclaine and pay the balance to her daughter. Without the permission or knowledge of Mrs Maclaine, the Solicitor opened an account with the Advance Bank titled Boland & Company Trust for Commercial Factoring and deposited the moneys to those accounts. Withdrawals from the $50,000.00 deposited were then used by the Solicitor to pay off personal debts and those of a company, Langworth Pty Limited, of which the Solicitor was a Director. The company, Langworth Pty Limited, was controlled by a client of the Solicitor's, one Lindsey Thompson. There followed a failure to account to Mrs Maclaine. 4 After default was made in paying Mrs Maclaine, the Fidelity Fund of the Law Society made restitution to her. Some time late, Mr Thompson, on discovering that the Law Society Fidelity Fund had reimbursed Mrs Maclaine, approached the District Court Registry and restitution was ultimately made to the Fidelity Fund of the Law Society. 5 Shortly after the misappropriation, the Solicitor ceased to practice and has not sought to renew his Practicing Certificate since 1992. Prior to his appearance in the District Court in 1998, the Solicitor had been working for his wife in a Real Estate Agency business. 6 The Solicitor did not appear in the proceedings before the Tribunal, although he indicated to the Law Society he was not opposing the orders sought. 7 The Tribunal has before it a letter dated 25.11.1999 from the Solicitor which says: "I hereby request that the name of Brian James Boland be removed from the Roll of Solicitors. I have in fact, not practiced since 1992 and do not currently hold a Practicing Certificate. I have no intention of returning to practice and therefore it would seem appropriate that I am no longer on the Roll. I look forward to your confirmation of my request. Yours faithfully" 8 The Law Society submits that the conduct of the Solicitor in his dealings with Mrs Maclaine renders him unsuitable to remain on the Roll. The Tribunal agrees. 9 It is well established that the Tribunal has a protective role. It is not intended as further punishment of Mr Boland that his name is removed from the Roll of Solicitors. Rather it is for the protection of the public that a person who has been involved in a breach of trust, misappropriated client's moneys and been convicted of a criminal offence, is not then allowed to continue as a member of this profession. 10 Although the evidence tendered by the Law Society to the Tribunal rested on the Certificate of Conviction and the remarks of the sentencing Judge, the Tribunal is satisfied that in looking behind the conviction, the conduct which led to that conviction clearly rendered the Solicitor unfit to remain on the Roll of Legal Practitioners. 11 The Law Society seeks an order for costs. The Tribunal accepts that this is an appropriate matter for there to be an order for costs but would expect such costs to be modest, bearing in mind Mr Boland's consent to the orders sought. 12 The Tribunal makes the following orders: (1) That the name of Brian James Boland be removed from the Roll of Legal Practitioners. (2) That Brian James Boland pay the reasonable costs of the Law Society of New South Wales.