The Legal Services Tribunal of New South Wales CITATION : Shaw McNeil Sedgwick [1992] NSWLST 18 PARTIES : Shaw McNeil Sedgwick FILE NUMBER(S) : of CORAM: Mr D E Hunt (Presiding Member) - Mr G B Molloy - Mr D Mahon CATCHWORDS: Professional Misconduct - mislead client - Professional Misconduct - mislead Law Society/Bar Association/LSC - Professional Misconduct - gross overcharging of client - Professional Misconduct - breach of s. 61 of the Legal Profession Act - Professional Misconduct - misappropriate trust moneys/moneys :- LEGISLATION CITED: Legal Practitioners' Act 1898 Legal Profession Act 1987 CASES CITED: DATES OF HEARING: 11/12/91 - 22/02/92 DATE OF JUDGMENT: 02/22/1992 Mr G.C. Lindsay LEGAL REPRESENTATIVES: Mr F. Smith Mr P. Garling JUDGMENT: The Legal Profession Disciplinary Tribunal In the matter of Shaw McNeil Sedgwick Determination and orders Before: Mr D.E. Hunt (Chairman), Mr G, Molloy and Mr D. Mahon Appearances: Mr G.C. Lindsay instructed by Mr F. Smith for the Law Society. Mr P. Garling instructed by the Solicitor. Hearing: 11 and 12 December 1991. This matter was referred to the Legal Profession Disciplinary Tribunal (the Tribunal) pursuant to a resolution of the Council of the Law Society of New South Wales (the Law Society) dated 4 April 1991 that in its opinion Shaw McNeil Sedgwick (the Solicitor) may be guilty of professional misconduct and that a complaint be made to the Tribunal. The Complaint was filed on 18 June 1991. The Complaint alleges delay in the handling of certain matters, breaches of Sections 41 and 42 of the Legal Practitioners Act 1898 (as amended) (the former Act) wilful breaches of Sections 61 and 62 of the Legal Profession Act 1987 (the new Act) misappropriation of monies, improper conduct as solicitor and executor for an estate, misleading of client and the Law Society, a breach of clause 8 of the Legal Profession Act (Trust Accounts and Controlled Money) Regulation 1988 and overcharging. The Law Society's evidence before the Tribunal consisted of a large number of exhibits including the report of Miss Jean Sayer dated 17 January 1991 (Exhibit "A") and Miss Sayer was called to give oral evidence. The Law Society also called as a witness Sondra McNeil Griffith a sister of the Solicitor in the matter concerning the Estate of the late Norma Gwendoline Sedgwick their mother. The Solicitor filed a document (Exhibit "1") which consisted mainly of the Solicitor's responses to the allegations raised by the Law Society in its complaint and he called as a witness his brother Ross Leslie Sedgwick and filed certain character references. In his opening Mr Lindsay announced that the questions raised in the complaint documents fell into three (3) broad categories. The first category concerned Section 61 of the new Act and Section 41 of the former Act where monies where drawn by the Solicitor from his trust account and transferred to his general account without authority and in some circumstances where the monies related to a deceased estate where there had been no grant of representation. The second category dealt with matters relating to Section 62 of the new Act and the form of the accounts. The third category concerned the structure of the firm in which the Solicitor practised and the relationship between that firm, the Solicitor on the one hand and his mother who the Solicitor regarded as the principal of the firm. By way of background the Solicitor was admitted as a solicitor on 22 September 1969 and has spent his professional life with the firm of Messrs Cope Norton and Sedgwick, which was his father's firm, and became a partner sometime prior to the untimely death of his father on 27 October 1982. Shortly before his father's death he sold his interest in the partnership to his father who paid him a sum of $6,250 which he owed to the Commissioner of Taxation. Thereafter until his father died he worked as an employed solicitor and on his father's death the practice was by his father's will left to his mother. Although the records of the Law Society are not available it appears that the Solicitor showed himself as holding a full practising certificate, which he did, but that his mother owned the business and employed him as an employed solicitor. In a letter dated 9 December 1982 the Solicitor wrote to the Law Society informing it of these facts which letter included the following information: "On receipt of probate it is proposed by Mrs N.G. Sedgwick to appoint the writer, Shaw McNeil Sedgwick as solicitor in charge of the firm and the person authorised on the trust account and general accounts. "We feel that in a short time the assets of the practice will be assigned and transferred to the said Shaw McNeil Sedgwick. "Kindly advise us of any further requirements you have concerning the operation of the practice and any further rules which you feel should be made aware to us in these circumstances." There is no evidence that the Law Society responded formally to this letter and the practice was managed in this way without any apparent objection by the Law Society until in February of 1988 a firm of solicitors complained about the situation when the Solicitor in the name of Mrs Sedgwick attempted to sue a former client of the firm for outstanding legal costs. Furthermore the Solicitor told the Law Society that the way the practice was managed with his mother as proprietor and himself as holding an unrestricted practising certificate had been discussed with a former Law Society President who confirmed that the Society had given its consent and that the record (sic) of this consent was held by the Society. In any event this situation continued until Mrs Sedgwick died on 12 August 1988 when the Law Society was advised that the Solicitor was now the proprietor of the firm Messrs Cope Norton and Sedgwick. The Tribunal will make its findings in relation to the complaint arising out of these circumstances when it deals with the complaint into the estate of the late Norma Gwendoline Sedgwick the Solicitor's mother. It is now proposed to deal with the various matters in the schedule of particulars which set out the Grounds of Complaint against the Solicitor. 1. Estate of late George William Fletcher In this matter the Solicitor was instructed by Mr N.J. Fletcher to obtain letters of administration in respect of the estate of George William Fletcher. According to the Solicitor's evidence (Exhibit "1" p74) the deceased had ten brothers and sisters all illiterate, and the Solicitor had had considerable trouble in obtaining birth certificates for the issue of the deceased. Requisitions had been received from time to time from the Registrar of Probates and the Solicitor stated that he saw the Registrar during the hearing to answer further requisitions. It appears the deceased died on 2 September 1983 and that an application for letters of administration was filed in May of 1986 and that up to the time of the hearing administration had not been granted. The Solicitor concedes clerical delay and furthermore he has transferred various sums from the trust account to his general account without issuing any bills of costs. The Solicitor claims that he had the authority of Mr Norman Fletcher who would visit him each week from a place called Mosquito Creek. The Solicitor conceded in Exhibit "1" that he was not able to charge for legal work until the grant of letters of administration and the evidence indicates that deductions for costs were made as follows: 23 February 1984 $300.00 1 May 1986 $300.00 13 November 1987 $967.68 13 July 1988 $1,000.00 24 November 1988 $25.00 29 October 1990 $1,000.00 It is alleged by the Law Society that in the circumstances where there was no grant of letters of administration the Solicitor transferred costs and disbursements from the trust account to his general account in breach of Section 41 and 42 of the former Act. The Tribunal makes a finding that the Solicitor has delayed in the administration of the estate and, because of the transfer of costs before the grant of administration, finds that such transfers breached Sections 41 and 42 of the former Act but accepts that the Solicitor believed he had some verbal authority from Mr Norman Fletcher to make the transfers and accordingly does not find that the breaches of Sections 41 and 42 were wilful 2. Matter of Brett Douglas Houston The Solicitor acted for Mr Houston in respect of two conveyancing transactions and also received into his trust account certain monies following the settlement of a motor vehicle accident claim which had been handled by solicitors in Queensland. One of the conveyancing transactions involved the purchase of a property from a close friend of Mr Houston namely Gregory Charles Moulden for whom the Solicitor also acted in that transaction. It is alleged by the Law Society that the Solicitor, contrary to the provisions of clause 27 of the Legal Profession Regulation 1987, borrowed an amount of $5,000 from Mr Houston without requiring him to receive independent advice. Although the Solicitor in Exhibit "1" and in his evidence does not specifically say that he advised Mr Houston to obtain independent advice the client in response to a letter from the Law Society (Exhibit "K") confirms that Mr Sedgwick advised him to speak with another solicitor and seek independent advice in relation to the loan of $5,000 but that he told Mr Sedgwick that he did not want to go to another solicitor. Accordingly the Tribunal finds that there has been no breach of clause 27 of the Regulation. In relation to the purchase by Mr Houston from Mr Moulden it is alleged that the Solicitor failed to protect the interests of Mr Houston because at the date of settlement on 22 March 1990 the vendor Mr Moulden was unable to give a good title to the purchaser Mr Houston because a caveat had been registered on the title on 17 May 1989 and this was not withdrawn until 8 October 1990. The position is that the Solicitor acted for Mr Moulden in matrimonial proceedings and Mr Moulden's wife had lodged a caveat on the title to the matrimonial home pending the settlement of these proceedings. The Solicitor says Mr Houston and Mr Moulden were very close friends and it appears that when Mr Houston received some of his settlement monies from Queensland which were paid into the Solicitor's trust account, payments therefrom were made on his authority to Mr Moulden arising out of this close friendship. Furthermore the Solicitor states that Mr Houston was aware of the caveat and was aware the transfer of his property could not be registered until the caveat was removed. (Exhibit "1" p81) The Solicitor was not cross-examined on this statement. Accordingly in relation to the allegation that the Solicitor was negligent in allowing a conflict of interest to arise in acting for his client Houston and his client Moulden and in failing to give title to the property that Mr Houston purchased from Mr Moulden until after settlement, the Tribunal does not believe that this allegation has been made out and finds accordingly. 3. Matter of Gregory Charles Moulden The Solicitor acted for Mr Moulden in respect of the sale of his property to Mr Houston and also in respect of a family law matter. The Law Society alleges that the Solicitor was in breach of Section 61 of the new Act and Regulation 8 in that between 19 April 1990 and 29 June 1990 the Solicitor transferred from his trust account to his general account costs and disbursements in the sum of $7,060.37 without having rendered a bill of costs to the client. In Exhibit "1" p1OO appears a copy of a document signed by the client dated 3 April 1990 authorising certain funds including both the costs in the conveyancing matter and the family law matter to be paid in accordance with the client's direction. Although Miss Sayer in her report and in her evidence stated that she had not been able to find a bill of costs relative to the family law matter, the transfer of costs was clearly made with the client's authority and the Solicitor has now issued to Mr Moulden a statement and memorandum of costs dated 20 February 1991 which the client has acknowledged as follows: "I note all the dealings with my monies as set out in his statement now supplied to me and am very satisfied with this accurate reflection with the oral instructions and am pleased with the statement of professional costs as rendered and believe this to be most reasonable in the circumstances." Accordingly the Tribunal finds that the Solicitor has not been in breach of Section 61 of the Act and that all deductions for costs were made with the client's authority. 4. Estate of the late Thomas Pratt This estate was handled by the Solicitor's father and there remained in trust an amount of $5,362.86 which had been there since 1980. The Solicitor states that the three (3) executors were senior citizens and the money had been left in trust apparently for the purpose of providing for the future needs of one of the beneficiaries David Edwin Pratt who resided in Taree and was said to be dyslectic. On 24 April 1986 the Solicitor transferred the sum of $1,000 to his general account and admits that this was a misappropriation as he had no authority from anybody to transfer these funds nor any entitlement to them. Again on 23 February 1988 the Solicitor made a further transfer of $4,362.86 being the balance in the trust account to his office account and admits that this was a misappropriation and that he had no entitlement to this sum. By way of explanation he says that in relation to the second transfer two girls in his office left in the month of February 1988 and long service leave monies had to be paid to them and that "I had no reserves having just paid out a huge holiday bill and I panicked and did the wrong thing" (Exhibit "1" p122). It is alleged by the Law Society that there was a delay in accounting to the beneficiaries between 14 February 1983 and February 1991 and that there were wilful breaches of Section 41 of the former Act and Section 61 of the Act arising from the two misappropriations. In addition because of the way the Solicitor had identified the transfers, which were quite misleading, the first being "costs re social security re D.E. Pratt and R. Pratt" and the second "on account - reinvestment" the Solicitor was also in breach of Section 42 of the former Act and Section 62 of the Act and the Tribunal so finds. It goes without saying that the Tribunal also finds a wilful breach of Section 41 of the former Act and Section 61 of the Act in connection with the two misappropriations. Following Miss Sayer's investigation (her report is dated 17 January 1991) the Solicitor wrote to Mrs E.M. Pratt of Casino by letter dated 25 February 1991 advising of the circumstances of the two transfers and in this letter stated: "in error and incorrectly we have transferred these funds to our own office account by two transfers on the following dates: 28/4/86 $1,000.00 23/2/88 $4,362.86 "These funds have now been restored to the trust account together with interest for the period during which we had use of these funds calculated as followed: 28/4/86 to 23/2/88 - Interest on $1,000 @ 13% $238 . 36 23/2/88 to 23/2/91 - Interest on $5,362.86 @ I3%$2,091.51 Total interest 2,329.87 Plus debt 5,362.86 Total amount place in Trust 7,692.73 "We apologise sincerely for this oversight and for not accounting to you earlier for these funds and communicating to you from time to time in relation to these funds. We would be grateful if you would kindly call at our office to give us written instructions in relation to payment of these funds to an account controlled by you or such person as you may elect with the consensus of your fellow executors. "We look forward to your attendance." The Solicitor claims that he personally attended with this letter upon Mrs Pratt and explained the circumstances of the transfers but it is clear that the letter on its face incorrectly described the circumstances under which the transfers were made and in relation to the allegation that the letter amounted to a misleading of the client the Tribunal finds this allegation proved. 5. Estate of the late Norma Gwendoline Sedgwick It is proposed to deal with this matter under three main headings as follows: a. Contravention of the former Act and the Act It is alleged that in the way the Solicitor organised the practice of Messrs Cope, Norton and Sedgwick after his father's death permitting his mother to remain as proprietor of the business, receiving the costs of the business and employing the Solicitor to run the business, was in contravention of the former Act which permitted only the holder of an unrestricted practising certificate to own and run a legal practice. The Solicitor clearly misunderstood the requirements of the former Act in this regard although in his letter to the Law Society previously quoted he did indicate that after the grant of probate in which the assets of the legal partnership were vested in his mother's name, these would then be transferred into his name. Nothing was done in this regard until after his mother's death and the Solicitor denies that he deliberately breached the Act or Regulations and claims that the firm did not operate at a profit from the date of his father's death until his mother's death. The solicitor gives the following explanation (Exhibit "1" p125): "In 1981, prior to his trip to a conference in England, he drew Wills for himself and my mother and he drew the two Wills and then without advising me of the contents said these words: `I have given you as much protection as I can.' "My father's Will was proven following his death on 27.10.82 and he gave everything including the Legal Practice to my mother. This immediately brought me into difficulties with the Law Society. My mother's Will as drawn by him remained the same until 1983 when there was only a small variation made to the distribution of the residuary Estate at the request of my brother for whom I have acted in a very long and difficult divorce and property matter without charging over a period of three years. "In my mother's Will as drawn and designed by my father, there were specific bequests. The Legal Practice was left to me and the residuary net Estate was divided one half to myself and one quarter to each of my sisters, Mrs Johnson and Mrs Griffiths, more of this later. "Although my situation during my mother's life brought me in direct conflict with the Law Society I had to be loyal to my father's plan. He was an extremely wise man and in my own personal opinion one of the most astute lawyers I have ever met having 50 years of practise in New South Wales. I knew he had planned this for a reason but I could not see it nor could my mother for a time and this reason did not manifest itself until after my mother's death when it transpired and obviously he knew his own family much better than I did. Accordingly I had to try to work out with my mother how to prevent a breach of the Legal Practitioners Act and the only way was for the Practice not to run at a profit and thus for six years I had to endure extreme financial difficulties in the running of the Practice because of consistent undercharging and in many cases not charging at all." There is no doubt, and the Tribunal so finds, that the Solicitor was in breach of Regulation 25 of the Solicitors General Regulations of the former Act (now Section 119 of the Act) because the legal practice was owned by his mother and it is not in point to say that he attempted to run the business without making a profit. In fact on his own figures (Exhibit "1" p126) there was a profit made from the practice in the years ending 30 June 1983, 1985 and up until 12 August 1988. Accordingly the Tribunal finds that the Solicitor was in breach of the Regulation and Act and totally misconceived the scheme of the Act which is designed to preclude an unqualified person from sharing in the receipts of a legal practice except in special circumstances and for a limited period. b. Improper conduct as a solicitor and executor for the Estate Under his mother's will he was left the legal practice and a half share in the residuary Estate, which included her home at 27 Walker Street Casino and in addition given an option to purchase the home at Valuer General's valuation. The overdraft on the legal practice was secured on the home, which the Solicitor says was the case when his father owned it. It appears that at the date of his mother's death there was an amount of some $116,000 owing to the State Bank secured by overdraft on his mother's home. Following his mother's death a dispute arose with the Solicitor's sister Sondra Griffiths as to the administration of the Estate, the Solicitor was one of three executors the others being his brother Ross and his sister Sondra. The main dispute was in relation to the fact that the debts of the practice secured on the family home was shown as a liability in the Estate it being asserted by Sondra that this should have been a personal liability of the Solicitor and outside the Estate. In regard to this matter agreement was finally reached with Sondra and his sister Dianna and an amount of $15,000 each net was paid to them and the Solicitor was to receive the property subject to the mortgage. A further dispute arose with his sister Sondra, who alleged that the Solicitor wrongly occupied his mother's home before it was transferred to him without paying rent outside the terms of the Will. Sondra was called as a witness before the Tribunal and it is clear that she still showed considerable ill will towards the Solicitor and admitted under cross-examination that she had not spoken to him since 1989 and that they were now "absolute enemies". In a letter dated 3 September 1988 from Sondra Griffiths to the Solicitor she made the following statement: "Incidentally, I would point out that if you and Helen move in to 27 Walker Street, until the house is in your name, as you know, mum's estate is entitled to rental. I am not asking for it, but you know that is the situation." Despite the fact that the witness would not agree that it was her brother's intention to move into the house prior to exercising the option by way of purchase, the Tribunal is of the opinion that the witness's Statutory Declaration (Exhibit "D") and evidence before it was motivated by vindictiveness and does not accept the witness's suggestion that she always expected the Solicitor to pay rent before he acquired legal possession of the house. In the circumstances the Tribunal does not believe that the Solicitor engaged in improper conduct either as a solicitor or an executor in relation to the Estate and finds in favour of the Solicitor on this aspect. c. Breach of Section 61 of the Act and Clause 8 of the Legal Profession (Trust Accounts and Controlled Money) Regulation 1988 It is alleged that on 17 November 1989 the Solicitor transferred the sum of $4,000 from the Estate trust account to his office account for costs and again on 29 October 1990 transferred a further $470.08. The trust ledger account of the Estate held by the Solicitor shows the transfer on 17 November 1989 "on a/c costs re Administration of Estate" and on 29 October 1990 as "costs re estate". In his Statutory Declaration (Exhibit "1" p128) the Solicitor claims that he has received only the sum of $4,000 from the Estate whereas according to the Affidavit of assets and liabilities (complaint 172) he is shown as entitled to the legal practice plus a quarter share of the residue being $4,000.00 plus a further amount of $17,169.72. The Tribunal accepts that the Solicitor made the transfers from the Estate account to his office account on account of costs without rendering a bill and accordingly finds that there has been a breach of Section 61 of the Act and Clause 8 of the Regulation. 6. Vera Gladys Bromwich In this matter the Law Society alleges that it has been misled by the Solicitor and that also there has been a breach of Section 62 of the Act. In this matter the Solicitor acted for Miss Bromwich who had sold her house and was to go into a retirement village. On 24 October 1986 he attended with an investment adviser at Goonellabah at the home of Mrs Judy Hogarty, the niece of Miss Bromwich, when the question of investment was discussed. After certain funds were invested through the adviser to his client there was a balance of $963.90 which the Solicitor transferred from his trust account to his general account which he says was to cover initial expenses associated with entering the retirement home. The Solicitor said he believed it would be more convenient to have the money in his office account rather than trust so that it could be disbursed immediately without delay and without receiving written instructions. Although the Solicitor claims to have had these instructions on 24 October 1986 the money was not transferred from the trust account into his general account until 16 February 1988 when it was then identified as being "on account of administration costs". The Solicitor agrees that there was no bill of costs rendered to cover this amount but confirms that the transfer was made on the instructions of the client and it remained in his general account until after Miss Sayer's investigation until 21 February 1991 when the Solicitor forwarded a cheque for this amount to Mrs Hogarty. The Tribunal accepts that the Solicitor did have his client's authority to transfer these monies to his office account for the purpose which he has indicated and does not believe that there has been a misleading of the Law Society on the one hand or a breach of Section 62 of the Act on the other hand. However the Tribunal cannot understand the delay in transferring the money from the trust account to the office account nor the necessity to make the transfer at all. 7. Estate of the late Robert Arthur Edward Palmer In this Estate it is alleged by the Law Society that the Solicitor has been derelict in his duty as a solicitor and an executor of the Estate, that he has been in breach of Section 41 of the former Act and Section 61 of the Act, that he has overcharged the Estate and that he has misled the Law Society. In this matter the Solicitor was appointed as executor of the Estate of the late Robert Arthur Edward Palmer who died on the 18 September 1982. There has been a running battle between the Solicitor and the beneficiaries represented by Mr Trisley, Solicitor, who prepared a lengthy Statutory Declaration which was filed in the proceedings and became Exhibit "E". According to the Solicitor's evidence the beneficiaries sought to prevent the grant of administration to the Solicitor by way of caveat and the matter went to court when Mr Justice Waddell made an order in favour of the Solicitor on the 23 July 1985. Other proceedings were brought in the District Court at Casino arising out of monies which the beneficiaries had taken from the sale of stock which the Solicitor claimed belonged to the Estate. There was further litigation on 3 December 1986 when the Solicitor's position as executor and trustee was challenged but this was also settled in favour of the Solicitor. The Solicitor has transferred monies on account of costs from the Estate prior to the grant of administration without the rendering of any bill of costs. The Solicitor claims that bills of costs were prepared on the dates that they were posted in the ledger but Miss Sayer in her report and in evidence says that she saw no bills of costs except an account for commission amounting to $6,352.20 which is now in dispute. It is alleged by the Law Society that as there was no charging clause in the Will, and no bills of costs rendered and the beneficiaries in the Estate had given no authority that the Solicitor was not entitled to deduct costs. Furthermore no order for commission had been obtained from the Court and accordingly the Solicitor was not entitled to make any charge for commission. The Solicitor says that he was in a difficult position in this Estate that he was requested specifically by the deceased to act as trustee as he could not trust his two brothers and two sisters and he accepted the position against his own wishes and that before he died the deceased said to him "my brother Gordon will give you trouble like you never believed possible". It is clear that the Solicitor has done an enormous amount of work in this Estate involving litigation by the beneficiaries to attempt to prevent him from taking out administration and it seems that the only question now outstanding is that of costs and the claim for executor's commission. The Solicitor says that he made the transfers for costs on Counsel's advice which was to the effect that where he was a solicitor executor he was entitled to draw from the Estate funds to carry on the litigation and defend himself from the beneficiaries. Incidentally his Counsel in his character letter states that the Solicitor now says that he misunderstood this advice. Bills of cost have now been prepared in addition to the claim for commission and there is now no current litigation, although such is threatened, between the Solicitor and the beneficiaries in the Estate. So far as the various allegations are concerned the Tribunal accepts that the Solicitor was entitled to charge for the costs of litigation and in this regard does not find that he was derelict in his duty as a solicitor or executor in the Estate. The Tribunal finds however that there was a breach of Section 41 of the former Act and Section 61 of the Act in relation to the costs which he transferred without rendering an account at the time that he transferred these costs but does not find that these breaches were wilful in view of the fact that the Solicitor claims that the costs were charged on Counsel's advice even if this advice was misunderstood. The Law Society tendered (Exhibit "E") a lengthy Statutory Declaration from Mr Lawrence Paul Trisley, Solicitor who was acting for the beneficiaries in the Estate. He has asserted that the Solicitor was not entitled to deduct costs from the Estate because: 1. There was no charging clause in the Will, and 2. The Solicitor witnessed the Will. In addition he asserts that the costs were deducted before bills of costs were prepared and that these bills were not taxed. Furthermore Mr Trisley alleges that the Solicitor is not entitled to commission because there has been no order from the Court and no approval from the beneficiaries. The Tribunal believes that the Solicitor was entitled to render costs to the Estate for the contested litigation, which came before Mr Justice Waddell on 19 August 1985, when he obtained an order for costs. The judgment of Mr Justice Waddell included the following: "I give no decision in relation to the defendant's submissions that the Plaintiff should not be entitled to his costs of making the probate application as he is a Solicitor and there is no charging clause in the Will and because he was a witness to the Will." The Tribunal draws a distinction between the costs of the litigation in the Estate and the costs of administering the Estate and questions whether the Solicitor is entitled to the latter without a Court Order or consent of the beneficiaries. However in view of the fact that there is still a dispute outstanding between the beneficiaries and the Solicitor, the Tribunal does believe it appropriate to make any determination in this regard as the issue has not been fully litigated. The Tribunal adopts the same position in relation to the claim for commission and does not propose to make any determination which might conceivably bind any of the parties. As to the allegation of overcharging, there is insufficient evidence for the Tribunal to make any determination in this regard and accordingly no finding adverse to the Solicitor is made. Whilst the letters of the Solicitor of 30 January 1989, & May 1990 and 10 November 1989 to the Law Society contained some inaccurate information the Tribunal does not believe that there was a deliberate misleading of the Law Society by the Solicitor. 8. Estate of the late Eva Mary Josephine Courte The Solicitor acted in the Estate having made the Will appointing two of her children Mr Frank Courte and Mrs Carrol Christensen together with the Solicitor as executors. In his Statutory Declaration (Exhibit "1" p67) the Solicitor states that the Will inadvertently did not contain a provision for payment of costs whereas in evidence before the Tribunal the Solicitor stated that the charging clause in the Will had been deliberately deleted. In any event on 29 October 1990 he transferred the sum of $1,000 from the trust account to his general account describing these as "on account of costs on interim distribution and administration". There had been a balance of $1,508.12 held in the Estate from 12 July 1985 and this remained there until 29 October 1990 when the Solicitor withdrew the sum of $1,000. Although the Solicitor maintained that he had some verbal authority from Mr Frank Courte to make this transfer in a letter to Miss Sayer dated 20 December 1990 Mr Courte denied that he had given any such authority and it is common ground that no bill of costs was ever rendered. The Solicitor finally conceded in cross-examination that he had no authority although he denied that he had attempted to cover his tracks by preparing a purported form of authority for signature by his co-executors. The Tribunal finds in this matter that the Solicitor was not entitled to make the transfer and that there was a wilful breach of Section 61 of the Act. Generally The Tribunal has made findings of misappropriation on the part of the Solicitor in the Estate of Pratt and a wilful breach of Section 61 of the Act in the Estate of Courte. In the Palmer Estate it has found that the Solicitor transferred costs without rendering a bill at the time and without the authority of the beneficiaries. Furthermore the Solicitor carried on his late father's practice for a period of almost six years purporting to do so in the name of his mother but showing himself as the solicitor running the practice with an unrestricted practising certificate. This demonstrates an inability on the part of the Solicitor to appreciate the basis of the Legal Profession Act and its predecessor which is to regulate the practise of the law to qualified solicitors. In evidence before the Tribunal the Solicitor was asked: Mr Lindsay: "What do you say to the proposition that having been guilty of acts of gross dishonesty, you simply couldn't be trusted to be a solicitor? A. I believe I can, but that may appear to be immodest. I believe I can be trusted. I would certainly try." In his address to the Tribunal Mr Garling submitted that for the protection of the public it is not necessary for the Solicitor to be struck off the roll but that the Tribunal should make one of two orders: "One, is either that he retain his certificate only as an employee until the Law Society grants its approval otherwise or alternative, you would permit him to remain in practice on condition that he does not maintain a trust account." On the other hand Mr Lindsay submitted the only order that can properly be made is that the name of the Solicitor be removed from the roll because the Solicitor has demonstrated an unfitness and that given the nature of his conduct he could not properly be held out to the public as a fit and proper person to be a solicitor. Mr Lindsay further submitted: "There have been acts of dishonesty which have persisted over a substantial amount of time, misappropriations, false entries in critical trusts and general records, concealment of dishonesty and, in our submission, misleading responses to the Law Society and there have been questions raised about the competency of the Solicitor a clear example of which is the $963 in the matter of Bromwich." The Tribunal has had regard to the character references filed on behalf of the Solicitor and notes in general the persons giving these references have been made aware of the complaints against the Solicitor and in one instance of the Solicitor's responses thereto. They all speak highly of his good qualities and say that the allegations made are out of character with the person they know. Nevertheless the Tribunal cannot overlook the Solicitor's admitted acts of dishonesty. The Tribunal is of the opinion that the Solicitor has been guilty of professional misconduct involving misappropriation of client's monies' on two occasions and a wilful breach of Section 61 of the Act and is accordingly not a fit and proper person to be held out as a solicitor. In addition the Tribunal is of the opinion that the Solicitor has demonstrated a naivety and incompetence in some of the matters examined before it which even without the dishonesty raises a serious question as to the Solicitor's ability to continue in practice and properly represent his clients' interests. In the circumstances the Tribunal makes the following orders: 1. That the name of Shaw McNeil Sedgwick be removed from the Roll of Solicitors of New South Wales. 2. That the costs of the Law Society be paid by the Solicitor to the Law Society or its solicitor Mr Frederick Smith as if taxed on a solicitor/client basis by the Supreme Court. 3. If the Law Society and the Solicitor cannot agree on the quantum of these costs then either party have liberty to apply to the Tribunal under Section 163(6)(b) of the Legal Profession Act 1987. Dated this 21st day of February 1992. Mr Waugh, instructed by Messrs Cope Norton & Sedgwick appearing for the Solicitor, made an application that Order number 1 not take effect for a period of 90 days in order to permit the Solicitor to wind up his legal practice. Ms Wawn stated the that the Law Society neither consented to nor opposed the application. On considering the matter the Tribunal made the following Orders: 1. That the name of Shaw McNeil Sedgwick be removed from the Roll of Solicitors of New South Wales. Order 2 and 3 are consequential, that is that costs are payable by the Solicitor to the Law Society of New South Wales. The Tribunal further orders that on the Solicitor's written undertaking that he will not operate on his trust account other than to facilitate the winding up of the legal practice of Cope Norton and Sedgwick, the Tribunal's orders will not take effect for a period of 90 days from today's date. These Orders are dated 21 February 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.