The Council of the Law Society of NSW v Doherty [2009] NSWADT 155

CITATION: The Council of the Law Society of NSW v Doherty [2009] NSWADT 155

DIVISION: Legal Services Division

APPLICANT The Council of the Law Society of New South Wales PARTIES: RESPONDENT Peter John Doherty

FILE NUMBER: 082029

HEARING DATES: 17-18 March, 15 April, 11 May 2009

SUBMISSIONS CLOSED: 11 May 2009

DATE OF DECISION: 23 June 2009

BEFORE: Molloy G - Judicial Member; Riordan M - Judicial Member; Bennett C - Non-Judicial Member

CATCHWORDS: Misappropriation

LEGISLATION CITED : Legal Profession Act 2005

Briginshaw v. Briginshaw [1938] 66 CLR 336 CASES CITED: Doherty v. The Law Society of New South Wales [2008] NSWCA 269 Law Society v. Jayawardena [2008] NSWADT 187

APPLICANT G. C. Lindsay SC with S G Barnes instructed by L W Pierotti REPRESENTATION: RESPONDENT J. M. Ireland QC with A. Campbell instructed by P. McGirr

1.The Respondent is guilty of professional misconduct in terms of paragraph B of the Second Amended Application for Original Decision, in that in relation to his client Geoffrey Rafter ("Rafter") the solicitor: a.Breached Section 255 of the Legal Profession Act 2004; b.Misappropriated the sum of $35,000.00 belonging to Rafter ("Rafter's funds"); c.Knowingly misled Rafter in that:c.1having applied Rafter's funds to discharge obligations imposed upon the solicitor's company, Lloyd Lancaster Pty Limited, he failed to promptly inform Rafter that he had done so; and d.Unreasonably delayed in advising Rafter that he had applied Rafter's funds to discharge obligations imposed upon the solicitor's company Lloyd Lancaster Pty Limited. ORDERS: e.Failed to account to Rafter in respect of Rafter's funds. f.Acted in conflict of interest and preferred his own interest to those of his client Rafter". 2.That the Respondent breached Rule 12 Legal Profession Conduct and Practice Rules in the matter of Estate Flower, but in the circumstances the breach was minimal and not with intent and no dispositive order should be made in relation thereto. 3.That the Respondent was in breach of S.67(2)(a) but that in the circumstances the breach was minimal and not with intent and no dispositive order should be made in relation thereto. 4.The Respondent did not, in all the circumstances, breach Sections 14(1) and/or 15(1) Legal Profession Act 2004. 5.The proceedings be listed before Judicial Member Riordan at a convenient time for directions as to what steps should be taken to determine the dispositive orders having regard to the findings of the Tribunal; alternatively, should the parties agree as to such directions leave is granted to file proposed consent orders for determination by Riordan J M in chambers.