The Legal Services Tribunal of New South Wales CITATION : Christopher Battye [1997] NSWLST 9 PARTIES : Christopher Battye FILE NUMBER(S) : of 1996 CORAM: Mr F Riley (President) - Ms S Carr-Gregg - Dr M. Costigan CATCHWORDS: Professional Misconduct - forgery :- LEGISLATION CITED: Legal Profession Act 1987 Legal Practitioners' Act 1898 Weare 1893 2 QB 439 per Lopes LJ at 448 ; Council of the Law Society of New South Wales v Foreman 1994 34 NSWLR 408 ; CASES CITED: Wales v Meagher (1909) 9 CLR 655 at 681; C A Parbury NSW Court of Appeal 11 May 1989; Law Society of New South Wales v McNamara (unreported CA 160/79); Jauncey v Law Society of New South Wales (unreported Court of Appeal 1 February 1989 DATES OF HEARING: 9 July 1997 DATE OF JUDGMENT: 08/01/1997 Mr D Hipsley LEGAL REPRESENTATIVES: Mr R Stitt QC JUDGMENT: A solicitor, after a marital dispute left the matrimonial home and, agreed to purchase a home unit. He was obliged to borrow most of the purchase money and the lender required a guarantee from the solicitor's wife. The solicitor forged his wife's signature to the deed of guarantee and on the mortgage and forged the signature of another solicitor on a certificate of independent advice. He asked his secretary to sign as the attesting witness to the signatures he had placed on the documents for himself and his wife. The solicitor made frank admissions of his misconduct and, without seeking to excuse it, claimed that it was the result of his distressed emotional state following the break up of his marriage. The Tribunal, while condemning the solicitor's professional misconduct, determined that in the circumstances, it should be regarded as a single episode of aberrant behaviour and was not, of necessity, indicative of an enduring defect of character which would justify a protective order. The Tribunal ordered that the solicitor's right to practise be limited until 1 July 1999; that he should pay a fine of $12,000.00 and the costs of the Law Society. The Complaint The Law Society on 22 May 1996 filed with the Tribunal an Information in which it was alleged that Christopher Battye a legal practitioner formerly practising as a solicitor was guilty of professional misconduct on the grounds that the practitioner: 1. forged the signature of Ms Janice Margaret McEwen to a mortgage dated 25 May 1994 given by the legal practitioner to Metway Bank Limited over land contained in Folio Identifier 14/SP46903. 2. forged the signature of Ms Janice Margaret McEwen to a deed of guarantee and indemnity dated 23 June 1994 in favour of Metway Bank Limited. 3. forged the signature of Mr Peter Axtens to a solicitors certificate of independent advice dated 25 May 1994." On 18 September 1996 the Law Society filed a document alleging the following additional grounds of complaint which it claimed constituted professional misconduct namely: 4. that the legal practitioner lied to and misled an employee, Jennifer Fisher as to the genuineness of the signatures appearing on two documents. 5. that the legal practitioner requested an employee, Jennifer Fisher, to sign her name, as a witness, on two documents, knowing the signatures to be witnessed were not genuine. 6. the legal practitioner requested an employee, Jennifer Fisher, to breach the fundamental duty of a witness to execution of a document, to make a false and misleading statement in two documents, knowing that the legal practitioner himself was under a duty not to do such things, or permit, request or encourage such actions." The legal practitioner's reply Christopher Battye on 21 June 1996 filed in response to the Law Society's Information a reply in the form of a statutory declaration made on 20 June 1996 in which he admitted the allegations set out in the Information and conceded (in paragraph 3) that his conduct "as particularised in the information and further particulars was disgraceful and dishonourable and amounts to professional misconduct". On 29 November 1996 the practitioner filed his reply to the further grounds of complaint filed by the Law Society and therein stated- "1. The further grounds of complaint and the further particulars thereof filed herein on 23 September 1996 are admitted." The events and circumstances to which the complaint relates In 1993, when the events relevant to the practitioner's conduct the subject of complaint began, Mr Battye was practising as a solicitor in the style of a sole practitioner at Northbridge. His declaration of 20 June 1996 stated that he was also conducting a branch office at Penrith and he had "a franchise office" at Rose Bay. The practitioner was born in Sydney on 25 October 1947. He completed his Leaving Certificate examination in 1964 and was thereafter employed in the advertising and radio industry. He commenced law studies in 1978 and in 1983 he graduated from Macquarie University with the degree of Bachelor of Legal Studies. On 3 May 1985 he was admitted as a solicitor of the Supreme Court of New South Wales and then practised as an employed solicitor until 1989 when he purchased the practice known as Warren and Warren at Northbridge. The practitioner had married Janice Margaret McEwen on 5 April 1986. They had co-habited since 1974. They experienced "difficulties" in their marriage "for some years prior to 1993" (paragraph 16 declaration of 20 June 1996) and on Christmas Day 1993 the practitioner decided to end the marriage relationship when his wife then informed him "you have given me twenty years of misery" (declaration paragraph 16). In his evidence given orally before the Tribunal the practitioner amplified the evidence given in his declaration and stated that his wife had been physically violent to him during their marriage. After he vacated the matrimonial home following Christmas 1993 she had physically attacked him, sometimes in public, and she had sprayed offensive graffiti on the windows of his legal office at Northbridge. When he first vacated the matrimonial home the practitioner was living in one room in a boarding house at Cammeray. He claimed in his evidence before the Tribunal that he determined to find other accommodation "because of my disturbed domestic situation, I was very concerned at the rising level of violence within the home" (transcript page 7; 46 - 48). The practitioner entered into a contract with Mirvac on 9 February 1994 for the purchase of a home unit in a building then under construction at Cammeray. The purchase price of the unit was $325,000.00. At paragraph 18 of his declaration the practitioner explained that, after making allowance for stamp duty and other expenses, he required a loan of $290,000.00 for which he made application to Metway Bank. He made that application on 4 February 1994 and was advised by Metway Bank in a letter dated 9 March 1994 that it had approved the loan. The practitioner received from the bank's solicitors Gray and Perkins, with a letter of 18 May 1994, a mortgage over the Cammeray unit, a deed of guarantee and indemnity and a draft solicitor's certificate of independent advice. They are the documents referred to in grounds one, two and three of the Law Society's Information. On 25 May 1994 the practitioner forged the signature of his wife Janice Margaret McEwen on page six of the mortgage document and on each of nine pages comprising the deed of guarantee and indemnity. At the same time the practitioner forged the signature of Peter Axtens solicitor on the solicitor's certificate of independent advice. The practitioner forged the signatures of his wife and Mr Axtens without their knowledge or consent. The practitioner explained that he had chosen to forge Mr Axtens' name as it came first to mind as he had a continuing association with Mr Axtens in the course of his practice and Mr Axtens wife was employed by the practitioner in his Northbridge practice. The practitioner also signed the mortgage and placed the documents before his secretary Jennifer Fisher and asked her to witness the signatures on the documents. The practitioner said that he placed the document before his secretary without explanation on the same day on which he had placed the signatures on the documents (transcript page 15). The documents were thereafter returned by the practitioner to Gray and Perkins and the purchase was completed and the loan funds made available on 23 June 1994. The practitioner thereafter resided in the unit. Towards the end of July 1994 the practitioner was contacted by Mr Landers, the solicitor for Ms McEwen who had made inquiry on her behalf in respect of the home unit transaction and he had informed Gray and Perkins that the signature on the deed of guarantee was not that of Ms McEwen. The practitioner then placed the Cammeray unit on the market for sale. Contracts were exchanged on 7 November 1994 and the sale was completed on 5 December 1994 when the Metway loan was discharged. The loan was repaid in full and neither Metway Bank nor Ms McEwen suffered any financial loss as a result of the transaction. The practitioner and his wife were reconciled for a time after completion of the sale of the Cammeray unit but they separated again in October 1995. He believes that the separation is now permanent although no proceedings for divorce have been taken for religious reasons but a property settlement between them was approved by the Family Court. The practitioner's conduct analysed The practitioner at paragraph 32 of his declaration of 20 June 1996 stated as follows:- "I am deeply ashamed of my misconduct which was disgraceful and dishonourable. There can be no excuse for it. However, by way of explanation only I say that at the relevant time I was experiencing a breakdown in my marriage and that I had foolishly, while under such pressure entered into the contract for the purchase of the Cammeray unit". He referred in his declaration, and also in his evidence before the Tribunal, to his "irrational" behaviour and when asked by his counsel - "Why did you persist with this transaction knowing that you had forged your wife's signature on both the mortgage document and the guarantee document?": the practitioner replied: "Once I had done that dreadful thing I felt committed to it" (transcript page 8). In reference to his forging of Mr Axtens' signature to the certificate of independent advice he claimed "in my own irrational way of thinking at that time it was part and parcel of the one act" (transcript page 9). An additional influence on his emotional state at the relevant time, the practitioner said, was the death of his father in March 1994 within one month of his being diagnosed as suffering from pancreatic cancer (transcript page 7). The practitioner received from the Law Society of New South Wales a letter dated 18 May 1995 inquiring in regard to the loan transaction affecting the Cammeray unit and he then instructed Lloyd and Lloyd Solicitors, who wrote to the Law Society a letter dated 14 June 1995 in which the firm admitted his misconduct in respect of the forged documents. That letter also referred to "the distress and inconvenience which (his misconduct) has caused to his wife, Metway Bank, the bank's solicitors, Messrs Gray and Perkins, his own secretary and particularly Mr Axtens." Mr Stitt submitted on behalf of the practitioner that the Tribunal would accept that the termination of the practitioner's co-habitation with his wife caused him "considerable personal distress" but he conceded that did not relieve the seriousness of the solicitor's conduct. It did, however, he argued, affect the practitioner and it "affected his judgment" (transcript page 31). Mr Stitt also conceded that the practitioner's conduct was not "a momentary aberration" but it related to a transaction with a number of components and in which the practitioner persisted (transcript pages 31 and 32). The practitioner did in fact persist with a course of conduct for the purpose of meeting the security requirements of Metway Bank's solicitors which was fraudulent and, as the practitioner's counsel conceded, "indefensible" (transcript page 33). The practitioner has conceded that the grounds of professional misconduct alleged in the Law Society's information and further grounds of complaint have been established. While the practitioner has sought to explain his misconduct by reference to the pressures placed on him by his difficult and distressing matrimonial breakup and separation he has not sought to excuse or diminish its seriousness. It has however been argued by his counsel that his misconduct should be assessed in the context of the practitioner's matrimonial circumstances at the relevant time and by reference to his conduct after his fraudulent behaviour was discovered. It was submitted, in effect, that the practitioner's misconduct should be viewed as aberrant behaviour prompted by peculiarly distressing personal circumstances which the practitioner claims can not re-occur. The Tribunal was asked to take account of the practitioner's readiness to "own up" to his misconduct and his expressions of shame and regret as factors relevant to his moral appreciation of his misconduct and his fitness for practice in the future. Those considerations in no way diminish the nature or seriousness of the practitioner's misconduct but they might reasonably affect the Tribunal's determination as to whether the practitioner should be entitled to future accreditation as a person who is fit "to be entrusted with the important duties and grave responsibilities which belong to a solicitor" (Re Weare 1893 2 QB 439 per Lopes LJ at 448 and see Council of the Law Society of New South Wales v Foreman 1994 34 NSWLR 408 per Mahoney JA at Page 441). The practitioner's fraudulent misconduct was the very antithesis of the conduct expected of a legal practitioner. Although no financial disadvantage was ultimately suffered by Metway Bank or Ms McEwen the interests of both parties were put at risk by the practitioner's dishonesty. Despite his claimed emotional distress at the relevant times his management of the loan transaction was a calculated and deliberate course of conduct. He did not act to repair his fraudulent conduct until it was discovered by his wife's solicitor. His confession of his misconduct to the Law Society did not occur until he received in May 1995 an inquiry from the Law Society. The practitioner's assertion that at the time of the relevant events he was acting irrationally must, in view of his admissions, be understood to mean that he did not, at the relevant times, engage in a rational analysis of the logical consequences of his actions. That was effectively the basis on which Mr Stitt sought to describe the practitioner's state of mind. It was not suggested that the practitioner was suffering any disorder of his mind which might have diminished his responsibility for his actions. It appears to the Tribunal that the practitioner, hurt and distressed by his wife's statement to him on Christmas Day 1993, sought to ensure his future domestic security through the purchase of the Cammeray home unit and to achieve that objective he was prepared to adopt a fraudulent expedient when that was necessary in order to obtain the Metway Bank loan. In that process not only did he abandon professional good judgment but he abandoned completely the principles of honesty, fair dealing and trustworthiness that are fundamental to a legal practitioner's professional fitness to practise. It was indeed conceded by his counsel that at the relevant time when he engaged in the loan transaction the practitioner was unfit to practise. The Law Society does not submit that the practitioner's name should be removed from the Roll of legal practitioners. In its Information the Society has submitted that the Tribunal should order a suspension of Mr Battye's practising certificate for a period which the Tribunal should determine. Counsel for the Society however, submitted that if the Tribunal should be satisfied that the practitioner understood the nature and quality of his conduct the Tribunal might determine that the practitioner was fit to resume practice as it was unlikely that he would re-offend. The practitioner does not currently hold a practising certificate and he has sold his Northbridge practice. There is no evidence before the Tribunal that, with the exception of his own home unit purchase, the practitioner's practice was not properly conducted. Peer evidence of the practitioner's character Sixteen declarations by other legal practitioners deposing to the practitioner's character were filed with the Tribunal. Mr Stitt made particular reference to the declarations of Peter Mackay Axtens, John Beresford Dorter, Ross Carl Koffel, Maxwell Bradley Menzies and Jill Rosemary Russell. Mr Axtens in his declaration made on 8 May 1997 said that he was willing to forgive Mr Battye's fraudulent use of his name and he remarked that "the misconduct complained of is inconsistent with the attitudes and behaviour I had observed and I believe inconsistent with my assessment of him as a person and a professional". The declaration of Maxwell Bradley Menzies contains the following statements in paragraph ten - " ... Chris Battye ... is a good all-round lawyer and relates very well to clients. ... I would be prepared to offer Chris Battye employment and to supervise him for a period". A letter from Mr Menzies dated 3 July was tendered in evidence on behalf of the practitioner (Exhibit 'D') and it contains a confirmation to Mr Battye that Mr Menzies' offer of employment "as a solicitor still remains open". While the declarants of the character testimonials expressed their opinions that Mr Battye was a fit and proper person to practise as a solicitor that question is one that must be determined by the Tribunal. It was argued on behalf of the practitioner that the Tribunal should take account of statements of the kind contained in Mr Koffel's declaration that, despite his knowledge of Mr Battye's misconduct, he would accept, and allow professional staff in his practice to accept, an undertaking from Mr Battye in the future. The determination The evidence before the Tribunal as to the grounds of professional misconduct alleged by the Law Society, including the express admissions made by the practitioner, enables the Tribunal to determine that the grounds one to six contained in the Information and the document headed "Further Ground of Complaint" have been established. It might be noted in respect of ground four that the evidence does not indicate that the practitioner made any express false statement to his employee Jennifer Fisher when he requested her to witness the signatures on the relevant security documents although it is apparent that the practitioner by his conduct misled Ms Fisher as to the genuineness of the signatures which appeared on the documents. The Tribunal determines that the practitioner's conduct as particularised in the Information and the Further Ground of Complaint would reasonably be regarded by solicitors of good repute and competency as disgraceful and dishonourable and constitutes professional misconduct. The question which then follows is whether the Tribunal should determine that the practitioner's professional misconduct demonstrates that the practitioner is no longer worthy of trust and continuing accreditation as a legal practitioner or whether the Tribunal could reasonably exercise its statutory powers in a way which does not require the removal of the practitioner's name from the Roll of Legal Practitioners. The jurisdiction exercised by the Tribunal is primarily protective of the integrity of the legal profession and the public interest in the maintenance of a trustworthy legal profession. Giles JA in Foreman's case (1994, 34 NSWLR 408 at 471) when referring to the protective jurisdiction exercised by the court stated that the "public, and professional colleagues who practise in the public interest, must be able to repose confidence in legal practitioners so an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside but will be appropriately dealt with." Mahoney JA in Foreman's case (at 442) having referred to the question of determining fitness to practice framed by Lopes LJ in Re Weare (cited above) continued as follows:- "This question involves more than the mere protection of the public who will deal with this solicitor against the possibility of a repetition of a particular kind of misconduct. In Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 at 681, Isaacs J, after referring generally to the nature of the disciplinary jurisdiction, saw the question to be answered to be whether the person is a fit and proper person to remain on the Roll of Solicitors and practice as such. His Honour then referred to what this involved and to the considerations to be taken into account in deciding it. His Honour said (at 681): "It may be that the error, though flagrant, has proved to be a solitary lapse. It may be that after sufficient time has passed the applicant can satisfy the tribunal that his purgation is complete, his repentance real, his determination to act uprightly and honourably so secure that he may be fairly re-entrusted with the high duties and grave responsibilities of a minister of justice. But that obligation lies upon him, and it is no light one. The errors to which human tribunals are inevitably exposed, even when aided by all the ability, all the candour, and all of the loyalty of those who assist them, whether as advocates, solicitors, or witnesses, are proverbially great. But, if added to the imperfections inherent in our nature, there be deliberate misleading, or reckless laxity of attention to necessary principles of honesty on the part of those the Courts trust to prepare the essential materials for doing justice, these tribunals are likely to become mere instruments of oppression, and the creator of greater evils than those they are appointed to cure. There is therefore a serious responsibility on the Court - a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential. It is not a question of what he has suffered in the past, it is a question of his worthiness and reliability for the future." Kirby P, when considering the alleged professional misconduct of a solicitor affected by tragic domestic circumstances (in the matter of the Legal Practitioners Act and in the matter of C A Parbury NSW Court of Appeal 11 May 1989) said that "engaging in dishonourable and deceitful conduct is impermissible for a solicitor at any time". The purpose of the jurisdiction exercised by the Court was not to "burden (the solicitor) further, with another of life's punishments, but to protect the community from practitioners who have shown themselves unfit to enjoy the high privilege of legal practice". He added that "personal misfortune is not an excuse for misconduct by a legal practitioner". Mr Stitt argued that the solicitor's admitted misconduct should not be excused on the basis of his troubled personal circumstances but those circumstances did have a bearing on the lack of moral judgment which was exhibited in the practitioner's misconduct. The Tribunal must determine whether in all the circumstances the practitioner's misconduct disqualifies him from continuing accreditation as a legal practitioner because he could not be relied upon to fulfil his duties and responsibilities in a trustworthy manner in the future. The Law Society's submission, as previously noted, suggested that the Tribunal might consider appropriate a period of suspension from practice. In considering a suspension from practice the Tribunal must be mindful of the view expressed by Reynolds JA in Law Society of New South Wales v McNamara (unreported CA 160/79), referred to with approval by Clarke JA in Jauncey v Law Society of New South Wales (unreported Court of Appeal 1 February 1989), expressed as follows: "An order for suspension must be based upon a view that at the termination of the period of suspension the practitioner will no longer be unfit to practise because, subject to any limitation imposed on the issue of a practising certificate, his name will then be on the Roll of Solicitors and he may resume his practice." Accordingly if the Tribunal was to order the suspension from practice of the practitioner for a period of time on the basis that he was presently unfit to engage in practice it should have a reasonable expectation that the cause of the unfitness would be at an end and the practitioner would be fit to resume practice at the end of the period of suspension. There is no evidence before the Tribunal which would enable it to form that view if it should make a primary finding of present unfitness. It might be argued in the alternative that, in order to mark publicly the seriousness of the practitioner's misconduct and provide a deterrent, an order could be made for his suspension from practice. The suspension might then be justified as a punitive or deterrent measure rather than a protective measure taken because of an adjudged lack of fitness. The Tribunal was referred by Counsel for the Informant and the practitioner to a number of cases of professional misconduct involving solicitors dealing with documents in a fraudulent manner. They included cases where solicitors had fraudulently altered contracts to avoid stamp duty penalties; some in which solicitors had falsely purported to attest signatures to documents, and some instances of forgery. In almost all cases the determinations resulted in the imposition of monetary penalties rather than protective orders. In matters of professional misconduct the particular circumstances of each case must be assessed on their merits in order to determine justly the orders which may be required for the protection of the vital interests of the public and the profession. It might reasonably be observed that the determinations of this Tribunal in cases where solicitors have falsely attested signatures to documents have reflected the reasoning expressed by Kirby P in the New South Wales Court of Appeal in respect of the appeal of Paul Fraser from the order of the Legal Profession Disciplinary Tribunal that his name be removed from the Roll of solicitors (7 August 1992 unreported). The Tribunal had found that Fraser had falsely certified that he had explained mortgage documents to the mortgagors. All three judges of appeal agreed to set aside the Tribunal's order and impose instead a fine of $7,000.00. Kirby P found that what the solicitor had done was the "result of a momentary lapse" and it was an isolated, but serious, error of judgment. He also said: "I do not believe that fraud as such, admitted or proved, requires in every case, without more, the removal of the name of the solicitor from the Roll. It is necessary to examine in each case the nature of the fraud involved." Kirby P also took account of the solicitor's admission that his conduct was fraudulent and Cripps JA noted that the solicitor had recognised the extent and the gravity of his conduct. Mr Battye's misconduct, while it comprised several fraudulent actions, was contained within the transaction by which he acquired his Cammeray home unit. There is no evidence to indicate that his dishonesty exhibited in that transaction was habitual or repeated in any other manner in his legal practice. If he had repented of his misconduct and sought to take correcting action before Mr Landers' discovery of his fraud prompted him to do so, the Tribunal could take more assurance from the practitioner's explanation of his conduct and his expressions of contrition. Once his fraud was discovered the practitioner had little choice but to rectify the position he had created. Discovery came, however, within about a month of the completion of his fraudulent transaction and it might reasonably be inferred that Mr Battye, having taken such a disastrous course of action could not face up to its consequences until he was confronted by Mr Landers. The practitioner's failure to "own up" voluntarily to his fraudulent conduct raises some doubt as to the candour of his explanation to the Tribunal, but it is not inconsistent with his explanation as to his state of mind. The practitioner's fraud, involving as it did, forgery and deceit of a high order to secure a personal advantage for the practitioner, is different, in its nature and degree, from the circumstances considered by the Court of Appeal in Fraser's case. The practitioner's misconduct is of such a serious degree that if it should be accepted as a true and enduring indication of his character and moral judgment a protective order for the removal of his name from the Roll of Legal Practitioners should be made. If the misconduct can be properly found to be an isolated episode which occurred when the practitioner's moral judgment was affected by unusual and distressing circumstances and was foreign to his normal character and professional practice, it can be argued that the practitioner's fitness to be accredited in the future as a legal practitioner can be justified. Mahoney JA in Foreman's case (at p448) found the case made out against that practitioner was that, in the future, the practitioner was likely to act in ways "unacceptable in a solicitor". He did so, having assessed her evidence and its credibility and having found her evidence on important issues "unconvincing". Mahoney JA observed: "On such matters, the Court must form a judgment, based upon what has been put before it in the particular proceeding." At an earlier point in his judgment (p444) Mahoney JA said: " It is also ... relevant for the Court to take into account the effect which its order will have upon the understanding, in the profession and amongst the public, of the standard of behaviour required of solicitors ... the Court must ... also take into account the effect upon what it has said of, for example, a decision to allow a solicitor guilty of a serious infringement of those standards, to continue to practice." The integrity of the legal profession and its entitlement to public confidence requires the maintenance of high professional standards. Professional misconduct must be dealt with in a manner that is just and which serves to maintain the good order of the profession and public confidence. The interests of a legal practitioner found guilty of professional misconduct must be weighed against the interests of the public and the profession. A protective order for the removal of a practitioner's name from the Roll of Legal Practitioners should be made if it is necessary to serve justly the wider interests of the public and the profession. The Tribunal, having regard to: (a) the fact that the professional misconduct of the practitioner has some explanation, although no justification, in his personal pursuit of domestic security in the context of a troubled marital breakdown and in a disturbed emotional state; (b) the absence of any evidence of any other professional delinquency on the part of the practitioner; (c) the practitioner's apparently genuine expressions of shame and remorse in respect of his misconduct; and (d) the character evidence of professional colleagues as to his general good standing with other practitioners; is of the opinion that, despite the seriousness of the professional misconduct, it might be reasonably regarded as a single episode of aberrant behaviour and is not necessarily indicative of an enduring defect of character which would justify a protective order based on a perceived continuing untrustworthiness. In reaching its judgment on the facts of this matter the Tribunal believes that it should, in the interests of justice, give the practitioner the benefit of any residual doubt which it may entertain in respect of his worthiness for future accreditation to practise. The professional misconduct the subject of the complaint is of such a serious degree that the Tribunal must mark that fact in its orders. While the Tribunal has not determined a present unfitness on the part of the practitioner to resume practice, it is of the view that a restraint on the solicitor's right to practise is an appropriate measure as a deterrent and to mark the Tribunal's disapproval, on behalf of the public and the practising profession, of such a gross breach of proper professional standards. A monetary penalty in a substantial amount is also warranted for the same reasons. Orders The Tribunal therefore orders: 1. That any practising certificate which may be issued to the practitioner entitling the practitioner to practise as a solicitor or as a solicitor and barrister should, until 1 July 1999, be endorsed with a condition restricting the practitioner from acting otherwise than in the course of employment by a solicitor or a solicitor and barrister holding an unrestricted practising certificate. 2. The practitioner is fined the sum of $12,000.00. 3. The practitioner must pay the costs of the Law Society assessed by consent at $9,500.00 by instalments as follows: on 9 August 1997 $3,350.00; on 9 October 1997 $3,150.00 and on 9 November 1997 $3,000.00. 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.