The Legal Services Tribunal of New South Wales CITATION : Bruce Edward McCann [1992] NSWLST 15 PARTIES : Bruce Edward McCann FILE NUMBER(S) : of CORAM: Ms A Plotke (Presiding Member) - Mrs D. Kok - Ms N Keesing CATCHWORDS: Professional Misconduct - mislead client - Professional Misconduct - gross negligence and delay/gross delay/delay - Professional Misconduct - fail to act honestly :- LEGISLATION CITED: CASES CITED: Allinson v General Council of Medical Education and Registration 1894 1 QB 750 DATES OF HEARING: 08/04/91 - 01/04/92 DATE OF JUDGMENT: 04/01/1992 Mr D. McGovern LEGAL REPRESENTATIVES: Mr F. Smith Mr M. Slattery Messrs Blessington Judd for the Solicitor. JUDGMENT: THE LEGAL PROFESSION DISCIPLINARY TRIBUNAL IN THE MATTER OF BRUCE EDWARD McCANN REASONS FOR DETERMINATION AND ORDERS BEFORE: Miss A. Plotke (Presiding Member), Mrs D. Kok and Ms N. Keesing APPEARANCES: Mr D. McGovern instructed by Mr F. Smith for the Law Society of New South Wales. Mr M. Slattery instructed by Messrs Blessington Judd for the Solicitor. HEARING: 8 April 1991, and 4 and 5 July 1991. This complaint relating to the conduct of Bruce Edward McCann (the Solicitor) was made to the Legal Profession Disciplinary Tribunal by the Council of the Law Society of New South Wales ("the Complainant") pursuant to resolutions of the Council of the Law Society made on 20 September 1990. On the completion of the hearing the Tribunal reserved its decision. The Complainant claims that the Solicitor's conduct amounted to professional misconduct, in that he: 1. Misled and failed to deal honestly and fairly with his clients; 2. Improperly delayed and neglected the conduct of his clients' affairs. The Orders sought by the Complainant are: 1. Such Orders as the Tribunal deems fit. 2. That the Solicitor be ordered to pay the costs of the Complainant in these proceedings. The evidence before the Tribunal consisted of: i. the complaint comprising the grounds of complaint and a statement of the particulars of the grounds. ii. the statutory declaration of Rosemary McDougall, then solicitor for the Complainant, dated 7 November 1990, annexing copies of correspondence between the Solicitor, his representatives and the Complainant. iii. the Solicitor's answer to the complaint dated 3 February 1991 containing admissions. iv. The statutory declarations of: (a) Bruce Edward McCann dated 3 April 1991 and 3 July 1991. (b) Graham Barry Hall QC dated 26 April 1991. (c) Susan Dale McCann dated 4 April 1991. (d) Patricia Maureen Wilkinson dated 5 April 1991. (e) Edwin Herman Fritchely dated 5 April 1991. (f) Alan Kilgore dated 4 April 1991. (g) Jeffrey Erie Faint dated 4 April 1991. (h) Robert Morton dated 4 April 1991. (i) Paul Davis dated 5 April 1991. (j) Colleen Luxford dated 5 April 1991. (k) Colin Heazlewood dated 5 April 1991. (l) Borys Pluznyk dated 5 April 1991. (m) Peter Linegar dated 5 April 1991. (n) Ian David Cullen dated 3 April 1991. (o) Gregory Harrison Healey dated 3 April 1991. (p) John Francis Morrissey dated 3 April 1991. (q) Sharon Bell dated 5 April 1991. (r) Rowley Stewart Cuddy dated 27 February 1991. (s) Kim Michele Cox dated 27 February 1989. (t) Malcolm McDonald dated 27 June 1991 and (u) Barbara Anne Watson dated 5 July 1991. v. A floor plan of the office of Malcolm McDonald & Co in which the Solicitor had worked. vi. Wage and other employment records relating to staff in the office of Malcolm McDonald & Co. vii. The report of Dr H. Phillip Greenberg dated 11 July 1990. viii. Drafts of correspondence between the Solicitor and the Complainant and his letter to the Complainant dated 28 May 1987. ix. Correspondence between Profile Management Consultants and Malcolm McDonald and x. a list of matters handled by the Solicitor in the office of Malcolm McDonald & Co. Oral evidence was given by the Solicitor, his wife Susan McCann, Dr H.P. Greenberg, Patricia Maureen Wilkinson and Sharon Bell both of whom had been secretaries in the employ of Malcolm McDonald & Co while the Solicitor was working there. Kim Michele Cox one of the clients whom the Solicitor misled and Malcolm McDonald, his employer. The acts upon which the Complaint is based occurred between February 1987 and December 1988, whilst the Solicitor was employed by Malcolm McDonald & Co. The grounds of complaint particularised various representations by the Solicitor to clients as to action alleged to have been taken in their respective matters when the Solicitor was well aware that such action had not taken place, and particulars of matters where the Solicitor had improperly delayed and neglected the conduct of his clients' affairs, by taking little or no action to advance their matters which were on the whole motor accident claims for personal injuries, but which also included some criminal injuries compensation claims. Before the complaint was filed the Solicitor admitted misleading the clients particularised in respect of Ground 1 and the delays relating to the clients particularised under Ground 2. These admissions were made in the letter written by his solicitors, Blessington Judd & Co, to the Complainant on 28 February 1989. On 12 July 1990, before the complaint was filed, his solicitors again wrote to the Complainant with further submissions for consideration of the Complaints Committee of the Law Society of NSW in amplification of the material submitted to the Law Society some 18 months earlier. They submitted that a large measure of the problem that arose in the Solicitor's handling of matters and in dealing with problems was a direct result of the pressure applied to him as a young employed solicitor who was not given adequate supervision or administrative support by his employer. These pressures had caused the Solicitor to suffer depression and seek professional medical treatment from Dr H. Phillip Greenberg, Consultant Emeritus in Psychiatry, Royal Prince Alfred Hospital, whose report dated 11 July 1990 was annexed. The letter also contained the Solicitor's explanation of the circumstances which led to his dereliction of his professional duties. Thus even before the filing of the complaint in December 1990 virtually all relevant facts had been admitted by the Solicitor and while the Complainant had a duty to file the complaint and bring the proceedings before the Tribunal it is relevant for the purpose of assessing the preparation which was necessary to be done in the Complainant's case and the burden of costs relating to it to place on record the timing and extent of the admissions made by the Solicitor. Whilst the Solicitor admitted the facts alleged in the Grounds of Complaint it emerged during the hearing that there was disagreement between him and one of his former clients who appeared as a witness and was cross-examined, namely Kim Michele Cox, as to the precise conversations which had taken place between them and as to their respective understandings of those conversations. Whilst the Solicitor did not dispute the facts in most of the allegations, it is important to particularise those matters put before the Tribunal in support of each of the grounds of complaint. 1. Misleading and failing to deal honestly and fairly with his clients: a. Robert James Booth The Solicitor acted for this client in connection with two motor vehicle accident claims and informed the client's mother Janice Booth in about April 1988 by telephone that both matters were "proceeding satisfactorily" when this was in fact untrue, in that in one matter the Solicitor had written only once to the Government Insurance Office in December 1986 advising of the claim and enclosing a copy the accident report, and in the other matter had carried out no work at all. In a third matter for the same client the Solicitor in fact wrote to the client on 11 January 1988, informing the client that the claim was proceeding satisfactorily when no work is recorded as having been performed in the file since instructions had been obtained, other than a letter to the Government Insurance Office in August 1987, informing that Office that the accident had occurred and that the Solicitors were acting. b. Kim Michele Cox The Solicitor informed the client in August 1988 by telephone that her motor accident claim had been referred to a settlement conference at Penrith Court, when the Solicitor was aware that this was untrue as no settlement conference had been organised, and further the Solicitor informed the client on 31 August 1988, that the settlement conference took place on that day and that the matter was unresolved when the Solicitor knew that this was untrue and that no such conference had taken place. In cross examination Kim Michele Cox gave evidence that she had had many conversations with the Solicitor about her case and had expressed concern to him that her compensation should be settled and paid before she left work to have a baby. Whilst in the grounds of complaint the particulars indicated that she had been informed by the Solicitor that there would be a "settlement conference" at Penrith Court on 31 August 1988, in her evidence she stated that she believed that the matter was to be the subject of a Court hearing on that day. She insisted that she had been told that there would be a Court hearing. The Solicitor on the other hand stated that whilst he had possibly caused her to believe that a pre-trial conference had been arranged at the Court, when in fact he had not arranged any pre-trial conference, it was quite usual for him to have informal conferences with representatives of the Government Insurance Office at the Court, particularly when he was there on other matters, and that he could have been discussing a settlement conference to be held at the Court. Whilst however there was disagreement between the Solicitor and this former client as to the precise words which he used, there is no doubt that the Solicitor misled the client in relation to the fact that no action had been taken to proceed with her claim, notwithstanding that over many months he had repeatedly told her that the matter was in hand and that he was attending to her claim which would be settled well before the dates on which she intended to obtain finance for a motor vehicle, leave work and start a family. c. Lynette Simpson In relation to this client the Solicitor informed the client that her motor accident claim had been referred to a settlement conference on 16 August 1988 at Penrith Court when the Solicitor knew this to be untrue, and further the Solicitor informed the client on 16 August 1988, that the conference took place on that date, when in fact no such conference took place. d. Robert Munn In relation to this client the Solicitor wrote to the client on 11 January 1988, informing him that his motor accident claim was proceeding satisfactorily when this was to the knowledge of the Solicitor untrue, no work was recorded as having been performed on the file since instructions were obtained other than obtaining the certificates of registration and insurance from the Department of Motor Transport and receiving correspondence from the Government Insurance Office. In relation to the same client the Solicitor subsequent to sending the letter of 11 January 1988, informed the client by telephone that his case was proceeding satisfactorily when this was to his knowledge untrue, in that no work is recorded as being performed other than previously mentioned. In a second matter no work had been performed since obtaining instructions other than obtaining a police report, receiving correspondence from the Government Insurance Office, and writing to the client to advise of a medical appointment. 2. In relation to the second ground of having improperly delayed and neglected the conduct of his client's affairs: a. Phillip Anthony Battin This matter, a criminal injuries compensation claim, was commenced in late 1986 when the Solicitor wrote to the client to confirm the doctor's appointment whereafter no further action is evidenced in the file other than the obtaining of authorities for the Solicitor to obtain reports, (the authorities being dated in September 1987) and forwarding to the client a form letter dated 11 January 1988 advising that the matter was progressing. b. Mervin John Blinman In this matter, a personal injury matter, which commenced early in 1987, the Solicitor wrote to the client in July 1987, enclosing correspondence and asking for instructions but he appears to have taken no further action other than to send the form letter to the client early in 1988 advising that the matter was proceeding satisfactorily. c. Jennifer Mary Bourke In this matter, a motor accident claim, which commenced in late 1986, the Solicitor appears to have sent letters to medical practitioners late in 1986, and made application for Section 12 and 36 Certificates but by 1988 had taken no further action other than to write in January 1988 advising that the matter was progressing satisfactorily. d. Stephen Thomas Conrey This was a motor accident claim. Instructions were taken on 19 March 1986. The file discloses applications for doctors reports in May 1986 and for a police report, unsigned draft application form for litigation lending, receipt of medical reports in September and October 1986 and no further action until the standard form letter of 11 January 1988. Similar details were given for each of the 19 other motor vehicle accident files and the criminal compensation file listed in the complaint. The Solicitor's defence was essentially: 1. That he was a competent and conscientious practitioner who had been placed in an extraordinarily stressful and difficult employment situation which made it impossible to perform his work; 2. That as a result of the situation in which he was placed, (including specific problems of interaction with his employer who was subject to unpredictable mood changes and behaviour) he suffered a serious but temporary psychological reaction which so severely affected his normal emotional responses and insights that his reactions in falsely stating that work had been completed were not acts for which he could be held responsible, that he was a prisoner of circumstances, unable to take the necessary action to extricate himself from the situation, and 3. That when he misled clients as to the true position of their matters, he did so with the intention and belief that he would in fact carry out their instructions, (albeit out-of-time and inconsistently with his statements) and that he would be able to achieve the results which he had promised to them. The Solicitor was born on 19 July 1956 and at the time of the hearing was married living with his wife and three children. He joined the Attorney General's Department as a general clerical officer processing documents in May 1975, was employed between August 1976 and May 1978 at the Government Insurance Office as a clerk processing third party claims unlitigated and property claims arising out of motor vehicle accidents. In 1979 he commenced law studies. Between June 1980 and July 1981 he was employed as a clerk with Allen Allen & Hemsley assisting solicitors and clerks in a paralegal capacity. From July 1981 to February 1986 he was employed as a managing clerk at G.J. Sharah Henville & Co which he described as a well organised office where his work was closely supervised, he received a high level of support and was directly involved with between 200 and 250 files. He stated that towards the end of this period of employment he had a high work load and could not study effectively and for that reason left the practice and joined the firm of Nevin E. White & Halbert where he worked from March to December 1986, also as a managing clerk. During this year he completed his law degree and was admitted to practise as a solicitor on 19 December 1986. In early 1987 he sought employment closer to home, and joined the firm of Malcolm McDonald & Co at Penrith as he would then be able to drive to work in five minutes. He worked with Malcolm McDonald until 28 December 1988. At the time of the transfer there had been some complaint by Nevin E. White & Halbert to the Law Society about the transfer of files and the costing of files which were transferred, and the Complainant sought to discredit the Solicitor in relation to his conduct in this period notwithstanding that it was not directly related to the matters contained in the grounds of complaint. There was a clear difference between the evidence of the Solicitor and of Malcolm McDonald as to what had occurred in relation to the transfer of files, but the Tribunal is not satisfied that the evidence either discredited the Solicitor, or that if it had, that this would be relevant to the matters raised in the Complaint. From January to July 1989 the Solicitor was employed by G.H. Healey & Co and was a partner in that firm from July 1989 to May 1990. In early 1990 when he became aware that his matters with the Law Society were to be referred to the Tribunal he felt it proper for his partners' sake largely to remove himself from the partnership. In May 1990 he took on a corporate position with Meriton Apartments Pty Limited as their in-house solicitor and at the request of Mr Healey and with the consent of his employer he was retained as a consultant with the firm of G.H. Healey & Co. He was retrenched by Meriton due to the economic contraction in January 1991 and from February of that year practised solely as a consultant with G.H. Healey & Co. During the time when the Solicitor worked at Malcolm McDonald & Co he had a very heavy workload. In the first few months he was required to handle some 250 to 280 files. This number grew as time went on and his estimate of the maximum figure was about 350. He identified the peak to have been at late 1987 through to 1988. The McDonald office was situated a very short distance from the Penrith Court Complex and a significant number of new clients would come to the office on the day of a hearing requiring representation. The Solicitor was required to attend to these people which involved him in a great deal of appearance work for which no prior warning was made and an associated interference with the attention to planned and other work in the office (paragraph 8 exhibit "1"). During the time when the Solicitor worked in McDonald's office he had no secretary except for 2 weeks in April/May 1987, two or three months from November/December 1987 to early 1988 and three months from October to December 1988. This meant that during most of his time with the firm he did not have the benefit of an assistant who was familiar with his files, able to deal with telephone messages for him, arrange appointments with witnesses and others and attend to routine matters. It also meant that he had to spend an excessive amount of time repeatedly dictating the same letter or the same document. There was a word processing system in operation but the precedents on it were lacking and a number of them were out-dated. He repeatedly brought the matter to the attention of his employer without succeeding in obtaining secretarial assistance. This was confirmed by McDonald in his evidence. The Solicitor found it frustrating and impossible to run a practice properly like that. About mid-1987 when the workload and lack of resource assistance was first creating delay he became extremely concerned about the delay and increasingly disappointed with himself that he was not able to get matters moving. By mid 1988 when there had been delay in some cases for 12 months he described his mental approach to his files and clients as follows: "I have to say honestly that I was a mess at that time, mentally and also the way in which the files were handled on a day to day basis. It is a very dark period in my life and I look back at it with a great deal of remorse and shame. Quite apart from my feelings about the professional way to deal with matters, I knew that these were people I was dealing with and that made me feel particularly bad, because they had followed me from the other place and I really felt I had been letting them down badly." There were repeated occasions throughout the evidence when the Solicitor voiced his shame and distress regarding the conduct outlined in the complaint. It is clear that the burden of what he was doing weighed heavily on him. He developed a number of physical symptoms for which he, after enduring them for some time, sought medical advice from his general practitioner in Penrith and which were later diagnosed as symptoms of clinical depression. The evidence of his wife, Susan McCann, confirmed these symptoms and also described changes in his behaviour, including withdrawal from normal conversation and from family and church activities. The efforts which he made to catch up on his work and the failure to achieve results had a compounding effect on his ability to cope. In January 1989 after he left McDonald & Co he sought professional assistance from Dr H. Phillip Greenberg, consulting psychiatrist, without his wife's knowledge. At that point matters had come to head with the involvement of the Complainant. The Solicitor was a witness who gave his evidence in a frank, honest and straightforward manner. He accepted responsibility for his conduct and recognised its seriousness. He made no attempt to evade any question and his answers were consistent during lengthy and rigorous cross-examination. Mrs McCann was equally a sincere and honest witness. The evidence of Dr Greenberg, who was cross-examined extensively by Mr McGovern, was that the symptoms described by Mrs McCann and by the Solicitor were consistent with a depressive clinical illness in which his mood would have been consistently depressed, tending to colour all thought and activity he undertook. He confirmed the physical consequences such as disturbance of sleep, disturbance of libidinal drive, and general lack or lessening of interest in normal activities, and that the Solicitor fell within a category of persons particularly prone to the development of such depressive illnesses having marked obsessional personality traits. He stated that normally such a person would try to control and deal with any situations confronting him, and that if circumstances prevent such control, he may become depressed and self reproachful, that as he becomes depressed he becomes less efficient in dealing with the situation and that the whole situation compounds, exacerbating the depressive illness. When asked whether the person reaching that stage of depressive illness normally has sufficient insight into what is occurring under the effect of the illness to be able to order his life or the immediate depression-causing circumstances so as to extricate himself from the problem, he stated that initially such an individual is likely to make frantic efforts to try and control the situation by whatever means seem reasonable, but given that the situation is not controllable, he then tends to lose insight as to how matters are proceeding and then deteriorates into a clinical illness which requires appropriate psychological and medicinal measures for its relief. He further stated that as the patient became more depressed he would find increasing difficulty in choosing one course of action rather than another, would vacillate and find great difficulty in making decisions in the way that he would normally do, and that matters which in other circumstances would be quite small obstacles to overcome could assume larger proportions to the depressed patient. As to the state of mind of the Solicitor, he indicated that any departure from his normal standards would be something about which the party, even though feeling out of control, would experience guilt and self-reproach, although gradually the whole situation would be so out of hand that his judgment on such issues would be severely distorted. The very guilt and self reproach would have a further compounding effect on the depression. In answer to cross-examination by the Complainant's Counsel as to how the psychiatrist could distinguish the truthfulness or otherwise of the patient in giving the history of the depressive illness, he stated that it is not only a question of believing the history given by the individual, but also the consistency of the history as compared with what is known of such depressive states, and confirmed that the clinical picture as described in the symptoms and his own independent observation of the patient tended to support his diagnosis of clinical illness. That the Solicitor was out of control of his surroundings became a major part of the Solicitor's case, and a good deal of evidence was presented in relation to the way in which Malcolm McDonald conducted his practice at Penrith. Evidence was given by Patricia Maureen Wilkinson that she had worked at Malcolm McDonald & Co. from the end of September 1987 until mid January 1988 as an employee of Centacom Temporary Staff, and that in that period she had quite a lot of contact with the Solicitor, as she typed and prepared documents for him. She gave evidence that Malcolm McDonald when in the office would not accept telephone calls which were frequently put through to the Solicitor to take, that McDonald refused to return telephone calls, that clients when calling to see McDonald were often referred instead to the Solicitor. She also gave evidence that the Solicitor had difficulty in having his work attended to by the staff as McDonald had a tendency to upset staff on a daily basis having girls in tears and making it difficult to work under the conditions created. She further stated that on one occasion when the Solicitor was allowed to employ his own secretary, she stayed for only one week because McDonald made it so difficult for her. She herself on a number of occasions wanted to leave but was persuaded by Centacom to stay. In oral evidence she stated that McDonald regularly was heard "yelling and screaming and carrying on" in the office, but that his attitude would change totally in a very short period. He would have girls in tears and then act as though nothing had happened. This made her reluctant to approach McDonald even with a list of telephone callers, as she was uncertain what attitude he would take to her. she stated that because she could not anticipate how he would behave if he approached her, her "mind would just go blank nine times out of ten because it was just very hard to understand or handle". She said that the aggressive and offensive stages of McDonald's mood swings involved him in swearing and using foul language to his staff. She also indicated that when secretarial work was being done and tapes were being typed back, frequently urgent work for McDonald would be required to take precedence over work for the Solicitor and that the Solicitor appeared to have difficulty in having his work turned around on a reasonable basis. She further stated that the Solicitor appeared to be under stress in the office, and that she herself had difficulty at home when she returned from the office as her own behaviour was affected by the stress in the office. Evidence was also given by Sharon Bell a former secretary in the McDonald office, who was likewise cross-examined. When she commenced work with Malcolm McDonald in August 1988, she was an experienced conveyancing paralegal/secretary. When asked about the atmosphere in the office, the way which staff morale existed, she stated that "there was no staff morale", and indicated that McDonald was rude and aggressive to the staff, that she herself did not seek contact with him if she could avoid it, his language to the staff was unpleasant and from time to time she saw other members of staff break down in tears following confrontation with him. Work performed in the office even in the typing of tapes was in her view inefficient and not typed very well. McDonald's tapes took priority over those of other professional staff. She confirmed that the Solicitor worked long hours in the office, mostly on the phone or with clients with him, except when she sometimes saw him attempting to type his own letters, or assisting other people in the office to carry out their work. She further stated that she had observed McDonald acting aggressively and rudely to the Solicitor on several occasions. The rough floor plan of the office was produced as exhibit "G" and Counsel for the Complainant sought to show that Ms Bell would not have had the opportunity of observing matters of which she gave evidence. However the Tribunal is satisfied that she was a truthful and reliable witness and in a position to have a reasonably good idea of what was going on in the office as a whole, and there is no reason to doubt the substance of her evidence. Malcolm McDonald was called as a witness by the Complainant, having first brought to the Complainant's attention the evidence of the Solicitor's inattention to his files and the misleading of his clients. The evidence given by McDonald however largely confirmed the views of other witnesses as to his own mood swings, unpleasant and aggressive behaviour, and inability to manage his own office, other than in relation to his very special interest in introducing computer systems. He acknowledged in cross examination that his office was poorly managed, that he had no proper control of his files, that the office had grown without a proper system in place, and that during the time that the Solicitor was there he did not even know how many files were currently opened. He had commissioned consultants to recommend the introduction of systems and had attempted to have all members of staff create lists of files to be placed on the new information system which he then introduced as a result of the consultants' report. He said he had enjoyed having the Solicitor as an employee, as he found he liked him and could work with him, and acknowledged that he himself had difficulty working with a lot of people, especially difficult clients, and that the Solicitor was able to handle clients whom he himself could not, had particular skills in dealing with witnesses, especially medical witnesses, and was able to liaise with barristers, prepare matters for trial, get matters on for hearing and make sure that everyone was available and turned up. He stated: "I don't have people skills at all, I can knot people up by looking at them." He acknowledged that this related to both clients and staff, and that having recognised his own problems he was no longer attempting to manage such a practice any more. When the Solicitor was employed in his office he was undergoing a particular period of stress himself, he did not handle stress well, and up to that time had never taken any action to deal with the effects of stress on himself. He has subsequently done various stress management courses. He did not undertake any course relating to managing people as he does not believe he is suited to people-management at all. The following evidence given by McDonald is particularly relevant to the difficulties the Solicitor faced in carrying out his work: 1. The third party and personal injury work was the domain of the Solicitor. Regarding his own involvement McDonald said: "I was aware of a number of litigation matters, I had some of my own. I didn't take any notice of what went on in the third party section of the office." 2. McDonald did not go into the Solicitor's office and look at his files except occasionally to answer telephone queries in his absence relating to any matter of McDonald's which he had passed on to the Solicitor. Then he would go to his office and get the file. 3. In 1987/1988 McDonald was absorbed in his own work to the exclusion of anything else. He said (181T): "Q. Would it be true to say that particularly during the 1987/1988 period that dealing with employees often caused you personal stress? A. In 1987/1988 I would say that I never gave any thought to anything else other than my work. I was totally oblivious to other people, totally oblivious. Q. And imperceptive of the stress that you might be placing them under by reason of the work demands that were being imposed on them? A. Yes, I wouldn't have had a clue." The Solicitor complained to him in 1987 and 1988 that he didn't have a secretary. At 183T the following evidence appeared: "Q . Why didn't you give him a full time secretary? A. At that time I didn't have one and I didn't see the need for them. I didn't think they were the sort of things you had around the office. Q. What do you mean by that? A. At that time I had a view that the secretaries were an anachronism...at that time I took the view that because you could do far more work on a word processor that a secretary was unnecessary. Q. And that is a view you maintained through 1987 and 1988? A. I still maintain that, but my perspective was wrong. I tried to look at litigation in the same way that I was addressing my own work, and that is not the correct way to do it." He was totally unaware of how other firms did their work. He said in relation to this: "I never investigated it. As I said, I had blinkers on." He said that unless the Solicitor had exhibited some specific and dramatic signs of stress in the office he would not have had any intuition to recognise the problem. A good deal of time was spent in evidence on the question of whether certain files in the McDonald Office had been marked by the Solicitor with a blue dot to identify them as files handled by him. Such files did exist and the Solicitor's evidence was that he placed the blue dots on them to indicate that he introduced the matters to McDonald & Co. No conclusions about their purpose relevant to the question of the integrity of the Solicitor or of his bona fides could be drawn from this evidence. Thirteen statutory declarations were filed on behalf on the Solicitor regarding his integrity, professional competence and character. Five of these were made by barristers whom he had briefed including Mr G.B. Hall QC, three were made by solicitors who had worked with him including Messrs G.H. Healey and J.F. Morrissey, partners of the firm of G.H. Healey & Co. during the time when the Solicitor worked there, and the remaining five came from clients whose matters the Solicitor had handled over the years. Four of the barristers had known the Solicitor for periods between 9 and 15 years. Mr Healey had known him since 1981 when he had been a partner at Sharah Henville & Healey while the Solicitor was there as a clerk and then again had contact with him from January 1989 until May 1990 while the Solicitor was first an employee and later a partner at G.H. Healey & Co. Mr E.H. Fritchely, solicitor, had worked with him when they were both employed in the Supreme Court of New South Wales not only as a fellow clerk but also in the capacity of his supervisor. The professional referees were all people with whom the Solicitor had worked in close contact in some cases for up to 5 years either in the same workplace or in the context of solicitor or clerk instructing the barrister. They had the opportunity of observing the Solicitor in his day to day working capacity, his competence, his attitude to his work and his demeanour in relation to his clients, members of the legal profession and the public. They and the clients spoke highly of the Solicitor's personal integrity, his conscientious attitude to his work and of his general level of competence. Mr Hall QC, whom the Solicitor instructed while a clerk at Sharah Henville between 1981 and 1986, testified that in each of the matters in which he was instructed the case was properly and adequately prepared for trial, the Solicitor displayed a thorough knowledge of the relevant issues and all the attributes he would expect in a competent instructing solicitor. He always found the Solicitor to be scrupulous and truthful in his dealings with him and the clients. He stated that the incidents set out in the Statement of Particulars relating to the Grounds of Complaint were entirely out of character with his experience of the Solicitor and he regarded "the incidents detailed in the complaint as an aberration which is unlikely ever to be repeated in his professional career". Notwithstanding the gravity of the complaints he on balance still regarded the Solicitor as a man of integrity with an awareness of his obligations to the Court and his clients. Similar assessments were made by Mr Fritchely who described the Solicitor's work as thorough and well organised, his attitude to the profession and the public as exemplary and the subject matter of the complaint as out of character. Mr Linegar, barrister, who had known the Solicitor for 15 years, first while they both worked at the Supreme Court and later in a solicitor/barrister relationship said that the offences were out of character with the man he had known and also uncharacteristic of the care and attention that he had observed the Solicitor showed to clients for whom he was responsible. Notwithstanding the seriousness of the offences alleged and admitted he regarded the Solicitor as a fit and proper person to be a solicitor and a person in whom confidence can repose that such offences or behaviour are unlikely to be repeated. Messrs Healey and Morrisey who had had the opportunity of observing the Solicitor and his work during the time which followed immediately upon the period when the offending behaviour occurred were impressed by his performance and work and his attitude to his clients and considered him, notwithstanding the matters complained of, to be a fit and proper person to be a solicitor. Both were willing to hold open his position with the firm as a consultant subject to any order the Tribunal may make. Both found the matters complained of not consistent with his professional behaviour, attitude or performance whilst associated with their firm. Mr Healey was able to say that the offending behaviour was also not consistent with the Solicitor's performance in 1981/1982 whilst he was a clerk at Sharah Henville and Healey and during which time Mr Healey was impressed by his application and enthusiasm and his approach to clients. Several of the witnesses spoke of the heavy workload which the Solicitor had during his employment with Messrs Sharah Henville and Healey and of his competent and efficient handling of it (Cullen exhibit "17" G.B. Hall QC exhibit "3"). The clients who supported the Solicitor all expressed satisfaction with the manner in which he attended to their matters and considered him honest and diligent. They expressed their continuing confidence in him and considered the subject matter of the complaint as being out of character. The Tribunal accepts the evidence of Dr Greenberg that to a very large extent the Solicitor has now come to terms with the problems that he faced at the time, that he has a far better insight into his personality and is unlikely to offend again, especially as the circumstances faced by the Solicitor were particularly unusual. The Tribunal has carefully considered all the evidence before it. It finds that the misleading by the Solicitor of clients as referred to in ground 1 is professional misconduct. It is without doubt conduct "which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency", considered the standard by reference to which professional misconduct is identified Allinson v General Council of Medical Education and Registration 1894 1 QB 750. The conduct was conceded as being professional misconduct by the Solicitor's Counsel. Were it not for the special circumstances of this matter which are detailed hereafter the conduct would have resulted in the finding that the Solicitor is unfit to practise. The delay and neglect specified in ground 2 extended to 24 matters. In almost all cases there was delay of more than a year during which the Solicitor did nothing or very little in each matter. In all but 4 cases the clients were sent the form letter in January 1988 that their matter was proceeding satisfactorily when this was not so. However this ground was limited to improper delay and neglect and the Tribunal had dealt with it on this basis alone. Whilst in itself each matter standing alone might so far as the allegation of delay and neglect is concerned, fall into the category of unsatisfactory professional misconduct, the repetition of the same conduct in more than 20 matters takes it out of that category and brings it within the category of professional misconduct. Accordingly the Tribunal finds that the Solicitor's conduct amounts to professional misconduct as regards both grounds 1 and 2. The evidence shows that there were special circumstances associated with the Solicitor's misconduct and these are relevant to the order which the Tribunal will make. These special circumstances may be summarised as follows: 1. As a newly qualified solicitor in the employment of McDonald & Co the Solicitor faced a work load which was very heavy coupled with working conditions which made it impossible for him to attend adequately to that work load.The Tribunal accepts the Solicitor's evidence, and it is supported by some of the referees, that while at Sharah Henville, where he also had a substantial work load, he coped well and competently as happened when he was at G.H. Healey & Co. In both these firms he had adequate support staff. All the evidence points to the conclusion that if such support staff had been available to him in the office of McDonald & Co then the neglect and delay, the stress and the misleading of clients would not have occurred. 2. McDonald, on his own evidence, did not take any steps to supervise the newly-qualified Solicitor nor to ensure that his work was being carried out satisfactorily and that if he needed help it was available to him. The employer was a person with unpredictable mood swings and was unapproachable. In addition the working conditions were unpleasant and difficult. Evidence of this was given by the two secretaries, Patricia Wilkinson and Sharon Bell as well as by the Solicitor. 3. Although the Solicitor repeatedly asked for secretarial staff, even demanded it, his employer refused to provide it. McDonald, on his own evidence, considered a secretary an anachronism and admitted he had "blinkers on". 4. The evidence of Dr Greenberg which the Tribunal accepts is that under the pressure with which the Solicitor was required to cope in this office he became progressively more distraught with the situation beyond his control. He developed a clinical illness, a depressive state, which required medical treatment. The evidence of the Doctor, the Solicitor and of his wife showed that he has recovered from that episode. This is reinforced by the evidence of Messrs Healey and Morrisey regarding his professional performance since early 1989. 5. The Solicitor said he knew at the time that he was doing wrong in misleading his clients. He described it as "an unforgivable way of alleviating the pressure on me" and "my mental state at that time was one of extreme depression" (30T). The evidence of Dr Greenberg relative to the effect of the Solicitor's depression on such misleading of clients was given on 102/103T as follows: "I would think that initially any departure from his normal standards he would feel would be something that he could easily repair within a short run, that as the situation became more and more, from his point of view, out of control, he would find himself more and more doing things which normally he would not do, that he would feel extremely guilty and self reproachful about this but gradually the whole situation from his point of view would be so out of hand that his judgment of such issues would be severely distorted." 6. The Solicitor is acutely aware of the seriousness of his misconduct and sincerely contrite and ashamed. The character witnesses strongly emphasised his integrity and good character and identified the conduct in the complaint as being uncharacteristic, even an aberration. 7. The Tribunal believes that the Solicitor will not offend again in the way he did in the matters in the complaint. His own evidence (37T) was that he would not in a panic situation lie to clients. He would say to them "I am sorry I have not done it" and would attend to the matter immediately rather than in a state of desperation say "Yes it has been done". The evidence of Dr Greenberg which the Tribunal accepts was that the Solicitor now had a far better insight into his own personality and is unlikely to offend again especially as the circumstances faced by the Solicitor were particularly unusual. 8. The Solicitor has provided the Complainant with information relating to the matters in the complaint going back to February 1989, long before the complaint crystallised. 9. By undertaking the Management Course at the University of New England and an Ethics Course with the University of Technology the Solicitor has sought to improve his performance. As his employer McDonald had an obligation to the Solicitor to provide working conditions adequate to enable him to deal with his work load. There was no suggestion that the Solicitor failed to cope through incompetence or deliberate neglect. McDonald's evidence was that the Solicitor did his work well and he had no dissatisfaction with it (178T). The evidence of clients and fellow employees, which the Tribunal accepts, was that the Solicitor was hard working and worked long hours. The Tribunal finds that the delay and neglect particularised in ground 2 was the result of the working conditions and not of any wilful dereliction on the part of the Solicitor in his duties. It must also be seen in the context of the volume of work that was passing through his hands. This reached a figure of 300 to 350 matters and the total number of matters particularised in grounds 1 & 2 is 28. So far as ground 1 is concerned, while the misleading of clients is very serious and cannot be excused it occurred at a time when on medical evidence the Solicitor's judgment was distorted by depression. This again was the direct result of the stress caused by the working conditions. For the above reasons the Tribunal is of the view that it is not appropriate that the Solicitor be considered unfit to practise and that the appropriate order is a fine. The question arises why the Solicitor did not resign from the employment at McDonald & Co when he became aware of his difficulties. Evidence was given by him that he stayed on for a number of reasons. He wanted to see out his first professional year in the one firm. He wanted to try and get on top of things. Then there was the prospect of partnership which McDonald discussed with him about December 1987. There was also his wish to work at Penrith and be close to his home for family reasons. He thought that if he became a partner he would have a say in the choice of employees and would be able to resolve the secretarial problem and could run his side of the practice as he knew it ought to be run. For these reasons he stayed on. This was a mistake for which he paid dearly. His health, family life and professional life were seriously disrupted and he was brought before the Tribunal. He carries the burden of his guilt and shame. The Tribunal is of the view that the conduct will not recur and that the Solicitor has learned a bitter lesson. In these circumstances it considers a monetary penalty in the sum of $2,000.00 appropriate. In addition the Solicitor will bear the costs in relation to the proceedings. Orders The Tribunal therefore orders that: 1. Pursuant to Section 163(1)(d) the Solicitor pay a fine in the sum of $2,000.00. 2. The said sum be paid within one month from the date of this order and thereafter that the Solicitor be suspended from practice until the said fine be paid. 3. (a) Pursuant to Section 163(6)(b) that the costs of the Law Society of and incidental to this application be paid by the Solicitor, as if taxed in the Supreme Court on a solicitor/client basis, to the Law Society or its solicitor Mr Frederick Smith within fourteen (14) days of the service upon the Solicitor of the relevant account. (b) If agreement cannot be reached regarding the amount of the costs leave be granted to either party to apply to the Tribunal. Dated this 1st day of April 1992 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.