CITATION: La Fontaine & anor v Law Society of NSW [2006] NSWADT 244 DIVISION: Legal Services Division APPLICANTS PARTIES: Peter Alan La Fontaine & Kenneth Clive Peet RESPONDENT Council of the Law Society of New South Wales FILE NUMBER: 062002 HEARING DATES: 31/05/2006 SUBMISSIONS CLOSED: 05/31/2006 DATE OF DECISION: 08/15/2006 BEFORE: Karpin A - ADCJ (Deputy President); Clisdell RJ - Judicial Member; Bennett C - Non Judicial Member CATCHWORDS: Approval of employment of a person convicted of serious offence MATTER FOR DECISION: Principal matter LEGISLATION CITED : Legal Profession Act 2004 CASES CITED: Camille Eduoard Dezarnaulds and Stephen Wawn v. The Law Society of New South Wales. (Unreported Supreme Court 27 June 1995) APPLICANTS S J Sutherland, solicitor REPRESENTATION: RESPONDENT L Pierotti, solicitor ORDERS: A. Pursuant to the provisions of S. 17 Legal Profession Act 2004, the Tribunal approves the employment of the second applicant as a lay associate in the practice of the first applicant, upon the following conditions; 1.Mr. Peet's duties as an employee in the office of Mr. La Fontaine ("the Solicitor"), shall be restricted to that of administrative and legal clerical assistant, restricted to; (a) Setting up, maintaining and supervising work and quality control management systems; (b) Providing to the Solicitor advice and assistance about, and maintaining client matter records; (c) Drafting documents, letters and communications for the Solicitor; (d) Other duties related to the above provided they do not extend or enlarge the duties contemplated by (a) - (c) above; 2.Mr. Peet shall not have access to or be signatory to any account conducted with any financial institution, by the Solicitor in the course of his practice, inlcuding, but not limited to, general office account, trust account, controlled money account, or any other account which may be held and/or conducted by the Solicitor for any client or as a trustee; 3.No document, letter or other communuication prepared by Mr. Peet shall be despatched from the Solicitor's office without the prior approval of the Solicitor, and no such document, letter of other communication shall bear the name or signature of Mr. Peet; 4. Any attendance by Mr. Peet on clients of the Solicitor, shall only take place in the Solicitor's office, or, if outside the office, in company with the Solicitor. Any client with whom Mr. Peet has contact, shall be advised by the Solicitor prior to such contact, that Mr. Peet is a clerk in the employ of the Solicitor and not a Solicitor; 5. Mr. Peet shall not have a business card or other form of identification, identifying him in any capacity with the Solicitor's practice; 6. Mr. Peet is not to attend court on behalf of the Solicitor or his practice; 7. Mr. Peet is not to attend upon any settlement of conveyances or other matters on behalf of the Solicitor or his practice; 8. Mr. Peet shall not have access to mail received in the Solicitor's office other than as provided to him by the Solicitor; 9. Mr. Peet's remuneration to be by way of stipulated salary or hourly rate as agreed between Mr. Peet and the Solicitor; 10. Mr. Peet's employment shall at all times be under the direct supervision of the Solicitor. Should he be absent form the practice in excess of 3 days, that supervision is to be undertaken by another qualified solicitor, who, Mr. La Fontaine is satisfied, understands the conditions upon which Mr. Peet is permitted to work in the practice. In the absence of such an arrangement, Mr. Peet's employment shall be suspended until the Solicitor returns to the practice; 11. Mr. La Fontaine is to advise the Law Society of New South Wales in writing, within 7 days of Mr. Peet's employment being terminated by either party REASONS FOR DECISION 1 The is an application pursuant to s. 17 of the Legal Profession Act 2004 which relevantly provides: 17 Associates who are disqualified or convicted persons (1) A law practice must not have a lay associate whom any principal or legal practitioner associate of the law practice knows to be: (a) a disqualified person, or (b) a person who has been convicted of a serious offence, unless the associate is approved by the relevant authority under subsection (3). … (3) The relevant authority to approve a person for the purposes of subsection (1) is: … (c) in the case of a person who has been convicted of a serious offence—the Tribunal. … (5) An approval under this section may be subject to specified conditions. (6) A disqualified person, or a person convicted of a serious offence, must not seek to become a lay associate of a law practice unless the person first informs the law practice of the disqualification or conviction. 2 The first applicant, Peter Allan La Fontaine, was admitted to practise as a solicitor in 1968. He practises as a sole practitioner under the name of "La Fontaine Solicitors" from premises at Surry Hills and at Ramsgate. 3 The second applicant is Kenneth Clive Peet, who was struck off the roll of solicitors in 1986. The material furnished to the Tribunal does not disclose the date upon which Mr. Peet was admitted to practise. He is 69 years old. 4 Mr. La Fontaine wishes to employ Mr. Peet in his practice upon conditions set out in paragraph 8 of Mr. La Fontaine's affidavit sworn and filed on 25 January 2006. Mr. Peet wishes to be so employed. 5 The application is supported by affidavits of Anthony George Jamieson, Barrister; Mr. La Fontaine, and Mr. Peet, all filed 25 January 2006, and Barton Antoni Smith, Solicitor; filed 3 May 2006. 6 The Council of the Law Society of New South Wales has filed an affidavit of Raymond John Collins, solicitor filed 28 April 2006 to which is annexed a Statement of Findings & Orders of the Solicitors' Statutory Committee dated 3 April 1986; the Certificate of Sentence imposed upon Mr. Peet on 1 March 1989; and a copy of an affidavit of Raymond John Collins setting out the Resolution of the Council of the Law Society passed on 16 March 2006. Pursuant to that resolution the Law Society appears today to assist the Tribunal on the substantive application; It was further resolved, however, that the Society opposes the application. 7 The history of this matter is that until September 1983, Mr. Peet practised as a solicitor in partnership. Thereafter he commenced practise as a sole practitioner. During 1984/1985, Mr. Peet misappropriated monies that were entrusted to him by various clients. In November 1985 a Receiver was appointed to the practice. On 5 March 1986, the Supreme Court dismissed Mr. Peet's appeal against the cancellation of his practising certificate. 8 When the matter came before the Statutory Committee, Mr. Peet did not personally appear, nor did he seek to participate in the proceedings other than having present a solicitor holding what might be described as a "watching brief". 9 Whilst the Statutory Committee experienced some difficulty in determining the precise amount involved in Mr. Peet's defalcations, the criminal charges to which he subsequently pleaded guilty, involved 6 counts with a total of $216,860.00, a not inconsiderable sum at that time. 10 Not surprisingly, the Statutory Committee ordered that Mr. Peet's name be removed from the Roll of solicitors. On 1 March 1989 Mr. Peet was sentenced to 5 years imprisonment with a non-parole period of 12 months. 11 In December 1999, Mr. Peet, and Mr. Herat, a solicitor, sought approval from the Administrative Decisions Tribunal, for Mr. Peet to be employed in Mr. Herat's legal practice. That application was made pursuant to the provisions of S. 48K Legal Profession Act 1987, the equivalent of S.17 of the 2004 Act. 12 Whilst appearing to assist the Tribunal, the Council of the Law Society opposed approval of the application. Nonetheless, on 3 December 1999, the Tribunal granted the application upon the following conditions: a. The duties undertaken are confined to an administrative position in the practice, including but not limited to: I) the setting up of work flow and quality control systems; ii) drafting legal documents for consideration by Mr. Heart; iii) providing consultative advice in respect of marketing and maintaining client bases; iv) perusing and reporting on draft contracts for sale; b. He is not to be signatory of any office bank account or trust account; c. Any access to the clients of Heart Solicitors is to be either supervised or with the knowledge of Mr. Heart. 13 The Tribunal provided written reasons for that decision on 6 January 2000. 14 Mr. Peet was released from custody in September 1990. He obtained employment with an insurance investigator, Roger Edward Gersbach, by whom he was employed until November 1993. Mr. Gersbach gave favourable evidence to the Tribunal in December 1999, including the satisfactory nature of work performed by Mr. Peet, and his candour concerning the offences he had committed. 15 In November 1993 Mr Peet commenced employment with Home Corp Australia Pty. Limited. He remained in that employment until February 1999 when serious ill health forced him to terminate his employment. Mr. Leishman of Home Corp Australia Pty Limited gave similarly favourable evidence to the Tribunal in 1999, both as to the satisfactory manner in which Mr. Peet performed his work, and the candid manner in which he disclosed his criminal offences and the fact that he had been in custody. 16 The application was also supported by evidence from Maurice Neil Edwards, a partner in Baldock Stacy & Niven, solicitors, who had very regular professional contact with Mr. Peet and held him in high regard despite having been made aware of his offences and incarceration. 17 Character evidence was given by Anthony George Jamieson, barrister who had then known Mr. Peet for many years. Mr. Jamieson also provided a supporting affidavit and gave evidence to this Tribunal. 18 In arriving at a decision favourable to the applicants, the Tribunal in 1999 took into account the following matters: a. Mr. Peet's age (he then being 63); the fact that he was at the end of his career and seeking less stressful employment. b. His stable and satisfactory employment record since being released from custody; and that his wealth of experience would assist Mr. Herat in his practice. c. The passage of 10 years over which there had been no evidence of any other acts of dishonesty, together with the fact that the offences had occurred 15 years earlier. d. The contrition evidenced by Mr. Peet in his plea of guilty to the various offences, together with the view that having served his prison term he had in effect paid his debt to society and was entitled to move on. e. The nature of the employment proposed by Mr. Herat together with the fact that there would not be access to client funds. 19 The Law Society objected to the application upon the following grounds: i. That Mr. Peet, without explanation had failed to attend before the Statutory Committee or before the Tribunal; ii. That the character witnesses were not fully informed about the facts of Mr. Pee's defalcations. And, iii. That there was insufficient evidence before the Tribunal. 20 Those objections were overruled by the Tribunal which found that it was: … completely satisfied by the evidence that Mr. Peet has demonstrated over the past 10 years, that he is a man held in esteem by his colleagues, and that he has rehabilitated himself. 21 The Tribunal was satisfied that the character witnesses were sufficiently informed of the facts surrounding Mr. Peet's convictions, to have an informed view on the matter. 22 The Tribunal, accordingly, granted the orders sought on 3 December 1999. 23 At the hearing before this Tribunal, Mr. Peet's affidavit disclosed that he worked for Mr. Herat between January and April 2000. Annexed to his affidavit was a letter from Mr Herat indicating that Mr. Peet was a satisfactory and diligent employee who left Mr. Herat's employ to pursue other interests. 24 After leaving his employment with Mr. Herat, Mr. Peet returned to employment with Home Corp Australia, where he remained employed until May 2001. 25 He left that employment as a consequence of his ill health. 26 Over the ensuing 2 years he was not employed but engaged in full time TAFE courses acquiring qualifications as a bookkeeper and in advanced computer skills. 27 In late 2003 he commenced some part time clerical and accounting work for an Engineer friend, Mr. Smith, the father of Barton Smith, a solicitor in the employ of Mr. La Fontaine who gave evidence for the applicant. 28 Mr. Peet is in receipt of the age pension. However, he has limited savings, and desires to take up employment in a solicitor's practice to augment his pension, and to be employed in familiar work in order to assist in that desire. 29 The matters to be taken into consideration on such an application are set out in the decision of Acting Justice Spender in Camille Eduoard Dezarnaulds and Stephen Wawn v. The Law Society of New South Wales. (Unreported Supreme Court 27 June 1995): 19. The general considerations (with some stating of the obvious) seem to me to be these: (a) The discretion is entirely general. No attempt has been made to circumscribe it by reference to particular matters, or to impose any particular threshold test which must be satisfied. (b) There are no time limits. Theoretically, the practitioner who was struck-off could apply the next day to become an associate of a legal firm. (c) Those guilty of indictable offences, or who have been guilty of the most extreme offences against the proper conduct of their profession and have been disqualified for such reasons, are equally able to make an application to become an associate. (d) There are three levels of associateship. This is important, as it is apparent that the legislature had clearly in mind that a person who might be appropriate for one level of associateship, might not be appropriately permitted to occupy another level of associateship. (e) There are obvious public interests which are to be served, and which must be taken account of. These interests include: (i) The protection of the public. (ii) The standing of the legal profession and the standards that are required of it. (iii) Affording those who are disqualified, or have been found guilty of indictable offences, the chance of rehabilitation and getting paid work in the profession. (f) While the standing of the profession in the public eye is of great importance, and the need to maintain the integrity of the profession is of equal importance, as has been emphasised time and time again by the courts (and recently by the Court of Appeal in Law Society of New South Wales v Bannister (1993) 4 LPDR 24) and must be taken account of, it is necessary to bear in mind that an associate is not a legal practitioner, and depending on the particular level of associateship, may be in a position which is really no more than that of a clerk to or employee of a legal firm. One does not, as it were, translate the requirements demanded of practising members of the profession, or of those who are applying for admission to the profession, to those who are applying to become associates. This is of course perfectly plain as the statute is dealing with situations where, a person has been disqualified from legal practice, or may never have been qualified but would otherwise be debarred from acting as an associate because of conviction for an indictable offence. 30 The Tribunal is satisfied that each of the persons who supported Mr. Peet's application, were fully informed about the matters that lead to his incarceration and removal from the roll of legal practitioners. Each of them believed that his legal expertise should be employed in the limited fashion contemplated by this application. 31 Each of the witnesses satisfied the Tribunal that Mr. Peet had expressed remorse for his actions, and the effect his dishonesty had on a number of people. 32 Mr. Peet, whilst presenting as a rather gruff and not particularly articulate witness, particularly when questioned about his defalcations and the effect of those crimes on others, nonetheless managed to persuade the Tribunal that his plea of guilty, together with his good conduct and blameless record since his release from custody, bespeak genuine remorse and rehabilitation justifying his limited participation in a law practice. 33 The offences were committed more than 20 years ago. The applicant has been appropriately punished for his criminality by serving a term of imprisonment. Since his release from custody, he has been engaged in various forms of employment. There is no suggestion other than that he has been diligent and honest in his conduct in each place of employment. 34 The parties endeavoured to agree a set of conditions. They were unable to reach agreement although not far apart. Each of them submitted their preferred set of conditions to the Tribunal. 35 The Tribunal is satisfied that the obligation to protect the public will be discharged by permitting the second applicant to be employed as a lay associate in the practice of the first applicant upon the following conditions: CONDITIONS: 1.Mr. Peet's duties as an employee in the office of Mr. La Fontaine ("the Solicitor"), shall be restricted to that of administrative and legal clerical assistant, restricted to: (a) Setting up, maintaining and supervising work and quality control management systems; (b) Providing to the Solicitor advice and assistance about, and maintaining client matter records; (c) Drafting documents, letters and communications for the Solicitor; (d) Other duties related to the above provided they do not extend or enlarge the duties contemplated by (a) - (c) above. 2.Mr. Peet shall not have access to or be signatory to any account conducted with any financial institution, by the Solicitor in the course of his practice, including, but not limited to, general office account, trust account, controlled money account, or any other account which may be held and/or conducted by the Solicitor for any client or as a trustee. 3.No document, letter or other communication prepared by Mr. Peet shall be dispatched from the Solicitor's office without the prior approval of the Solicitor, and no such document, letter of other communication shall bear the name or signature of Mr. Peet. 4. Any attendance by Mr. Peet on clients of the Solicitor, shall only take place in the Solicitor's office, or, if outside the office, in company with the Solicitor. Any client with whom Mr. Peet has contact, shall be advised by the Solicitor prior to such contact, that Mr. Peet is a clerk in the employ of the Solicitor and not a Solicitor. 5. Mr. Peet shall not have a business card or other form of identification, identifying him in any capacity with the Solicitor's practice. 6. Mr. Peet is not to attend court on behalf of the Solicitor or his practice. 7. Mr. Peet is not to attend upon any settlement of conveyances or other matters on behalf of the Solicitor or his practice. 8. Mr. Peet shall not have access to mail received in the Solicitor's office other than as provided to him by the Solicitor. 9. Mr. Peet's remuneration to be by way of stipulated salary or hourly rate as agreed between Mr. Peet and the Solicitor. 10. Mr. Peet's employment shall at all times be under the direct supervision of the Solicitor. Should he be absent form the practice in excess of 3 days, that supervision is to be undertaken by another qualified solicitor, who, Mr. La Fontaine is satisfied, understands the conditions upon which Mr. Peet is permitted to work in the practice. In the absence of such an arrangement, Mr. Peet's employment shall be suspended until the Solicitor returns to the practice. 11. Mr. La Fontaine is to advise the Law Society of New South Wales in writing, within 7 days of Mr. Peet's employment being terminated by either party. ORDERS: The Tribunal orders that the second applicant may be employed in the practice of the first applicant, pursuant to s.17(3)(c) subject to the conditions 1-11 set out in paragraph 34 of this decision. 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.