The Legal Services Tribunal of New South Wales CITATION : Camille Edouard Dezarnaulds [1994] NSWLST 11 PARTIES : Camille Edouard Dezarnaulds FILE NUMBER(S) : of 1993 CORAM: Mr A. Martin (Presiding Member) - Mr C. Robison - Mr I. Ferguson CATCHWORDS: Professional Misconduct - breach of s. 61 of the Legal Profession Act - Professional Misconduct - misappropriate trust moneys/moneys :- LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: Bolton v Law Society 1994 2ALLVR 486, 492 DATES OF HEARING: 29 June 1994. DATE OF JUDGMENT: 08/17/1994 LEGAL REPRESENTATIVES: Mr Robinson instructed by Mr B. Murdoch for the Law Society. Mr R. Conti QC instructed by Michael Saunders for the Solicitor. JUDGMENT: Breaches of ss.61 and 62 Legal Profession Act 1987. Misappropriation of over $75,000 in period of four-and-a-half years from moneys invested for Noumea clients. Professional misconduct conceded. Medical evidence that misconduct due to thyroid problem. Tribunal concerned that solicitor might not recognise symptoms in future. Practice, sporting career and personal life relatively unaffected by medical condition. Tribunal concerned by potential for future problems and that public at risk if solicitor's name remained on Roll. Tribunal unwilling to accept undertaking that solicitor would not have access to trust money. Strike off order made. BY ITS COMPLAINT THE COUNCIL OF THE LAW SOCIETY OF New South Wales ("the Society") alleged that Camille Edouard Dezarnaulds ("the Solicitor") wilfully contravened sections 61 and 62 of the Legal Profession Act 1987 ("the Act") and misappropriated moneys received on behalf of his clients. The Complaint contained Further Particulars of the allegations which involved 12 clients of the Solicitor, the Particulars are annexed hereto and marked with the letter "A". The evidence of the Society was comprised of the following: A. statutory declaration of Frederick John Smith dated 14 March 1994 B. statutory declaration of Jean Sayer dated 18 May 1994 C. statutory declaration of Dr J. Ellard dated 15 June 1994 together with Dr Ellard's report D. letter dated 25 June 1990 from Dezarnaulds & Dezarnaulds to the Law Society of New South Wales E. copy Australia National Bank records. The statutory declaration of Frederick John Smith annexed reports dated 29 July 1993 and 26 August 1993 from Jean Sayer which included the details of the Complaints and indicated the total moneys "misused" by the Solicitor was $75,631.09. Jean Sayer was appointed Receiver of all property held by the Solicitor or by any person on his behalf by the Supreme Court of New South Wales on 25 September 1992. The Solicitor's practising certificate had been previously cancelled by resolution of the Council of the Society on 24 September 1992 pursuant to section 35(2)(b)(g) of the Act. On 17 February 1994 the Council of the Society resolved that the Solicitor may be guilty of professional misconduct and that a Complaint be made to the Legal Profession Disciplinary Tribunal ("the Tribunal"). The Council further resolved that an order be sought that the Solicitors name be removed from the Roll of Solicitors. The documentary evidence of the Solicitor was comprised of the following: 1. statutory declaration of the Solicitor filed 10 May 1994 2. statutory declaration of Dr George Lianos Consultant Psychiatrist and Psychotherapist dated 4 May 1994 and which annexed copies of his reports to the Solicitor's solicitor of 13 September 1993 and 20 April 1994 3. statutory declaration of Dr John Casey, Endocrinologist, dated 5 May 1994 annexing a copy report from him to the Solicitor's solicitor dated 22 April 1994 4. further statutory declaration of Dr John Casey dated 11 May 1994 annexing a copy letter from the Solicitor's solicitor of 3 May 1994 to Dr Casey and Dr Caseys' reply dated 5 May 1995 (sic) 5. further statutory declaration of Dr John Casey dated 28 June 1994 annexing a copy report from Dr J. Ellard to the Chairman, Professional Standards Committee Law Society of New South Wales and dated 20 May 1994 6. statutory declaration of Peter Douglas Dezarnaulds, solicitor and eldest brother of the Solicitor dated 4 May (1994) 7. statutory declaration of Camille August Henry Dezarnaulds, solicitor and father of the Solicitor dated 17 May 1994 8. statutory declaration of John Edward Ellis, Senior Judge, Family Court of Australia, dated 29 April 1994 9. statutory declaration of Linton Mearns Morris QC dated 20 April 1994 10. statutory declaration of Calvin Rochester Callaway QC dated 20 April 1994 11. statutory declaration of Malcolm Carmichael Ramage QC dated 5 May 1994 12. statutory declaration of Michael William Robinson, barrister, dated 22 April 1994 13. statutory declaration of Peter Godard Sheldon, barrister, dated 9 May 1994 14. statutory declaration of Paul John Anicich, solicitor, dated 5 May 1994 15. statutory declaration of Rupert George Rosenblum, solicitor, dated 4 May 1994 16. statutory declaration of David Manning Booth, solicitor, dated 11 May 1994 17. statutory declaration of Michael Anthony Phillip Saunders, solicitor, dated 29 June 1994 18. statutory declaration Paul Hoare Carew, non practising solicitor, dated 5 May 1994 19. copy extract from textbook on Organic Psychiatry entitled Endocrine Diseases and Metabolic Disorders by Leiseman. In his opening remarks, Mr Conti QC for the Solicitor indicated that there was no issue in the matter and by any objective standard, the Solicitor was guilty of professional misconduct in relation to each of the matters. He further submitted however that the medical evidence and character references may have some bearing on the issues involved. During the course of the hearing, much reliance was placed upon the findings of Dr Lianos in respect of which we shall return. The breaches of sections 61 and 62 of the Act together with misappropriation of the clients' funds took place over a period of some 4.5 years. The misconduct commenced in about February 1988 and was undiscovered until September 1992 when a client of the Solicitor was unable to obtain his funds. In 9 of the cases, clients' funds were misappropriated from accounts held at the Government Insurance Office ("GIO") Building Society which was situated in the same building as the Solicitor's offices. In her report to the President and Members of the Council of the Society of 29 July 1993 Miss Sayer indicated that the Solicitor's firm had a large number of New Caledonean clientele who provided moneys which were invested on first mortgage and in interest bearing accounts. The Solicitor held powers of attorney for a number of New Caledonean clients and stated that the Solicitor claimed that the moneys invested in accounts in respect of which he was a signatory pursuant to a power of attorney were not controlled moneys which would fall within the provision of the Act. The Solicitor claimed that the moneys were held in his capacity of a personal friend to the person concerned rather than on a solicitor/client basis. The Receiver's report also disclosed that the Solicitor admitted that he had drawn moneys for his own purposes from these accounts without the clients' knowledge or consent. In her general comments, the Receiver stated that the provisions of the Act relating to Controlled Moneys were not complied with in relation to the accounts kept by the firm for clients who resided in Noumea. There were no statements of accounts issued in relation to conveyances in which the firm acted for clients or the investment of moneys in Australia. The Receiver also revealed that she had been informed by Mr Peter Dezarnaulds (the Solicitor's brother) that strict instructions were given by their clients to the effect that no statements were ever to be issued in relation to these matters as the clients were concerned that correspondence might be opened by the French authorities who apparently have considerable restrictions upon their citizens who wish to invest moneys offshore. The Solicitor elected to give evidence and stated that he ceased to practise as such in September 1992 and from that time he had been undertaking tennis coaching and the provision of French lessons. In his statutory declaration, he set out his personal background and expanded upon the "unique aspects of the legal practice" he conducted over many years. The Solicitor is fluent in the French language and gradually built up a large French clientele after he became a partner in his father's firm in 1962. He had acquired "a sound knowledge of French law and the French legal system generally". He referred to the Regulations instituted by the French Government after World War II which prohibited its citizens from investing money outside France and stated "very many clients open bank accounts in Australia and invested money in Sydney and New South Wales. Well before the Law Society Regulations in relation to Controlled Moneys came into force, many clients either instructed us to open bank accounts or deposit accounts in Sydney and also gave us instruction to invest moneys on their behalf with Building Society's and other financial institutions". He further stated that he was often specifically instructed that clients' funds were not to be placed in the firm's trust account but were to placed in separate accounts to ensure "that the French authorities were not able to trace the same". He also stated: "In all cases, clients requested that, if possible, no record be retained on their behalf of the funds being invested. Clients often stated to me that if I saw an opportunity for good investments in shares or the like I had their authority to invest the funds and such investments in my business. I did not take up any such opportunity except on rare occasions, as I have never had much involvement with shares." The statutory declaration reveals that "Some years ago" his firm wrote to the Law Society requesting "a ruling on the issue of the investment of clients funds outside the `Controlled Moneys situation', upon the basis that overseas clients had specifically instructed us to hold and invest their moneys upon the basis explained above". The Solicitor stated that as far as he was aware, no reply had been furnished by the Society in relation to that question and "that no ruling has yet been made in this regard". He stated that all moneys which were utilised by him had been replaced and restored in full and "that any interest that would have been earned on the moneys misapplied has been reimbursed to the accounts entitled thereto". The Tribunal notes that this statement is slightly ambiguous in that although the Solicitor did repay the considerable portion of the moneys misappropriated, as subsequently revealed in the evidence of Mr Peter Dezarnaulds, his father contributed $37,373 and the Solicitor contributed the balance. The Solicitor's statutory declaration also included his response to each of the complaints of misappropriation as follows. Paulette Tappero The Solicitor held a power of attorney for one F. Goyetch, a resident of France. This person had no funds in Australia but the Solicitor opened an account with the GIO in this person's name in order to deposit some of the Solicitor's own funds into same rather than to put those funds into his bank account with the National Australia Bank which was overdrawn. Some moneys used by the Solicitor for various accounts were deposited into this account and the cheque payable to E. Hsu was for mortgage interest on the Solicitor's own house (subsequently sold). This property stood in the name of Balboa Pty Limited. The Solicitor asserted that all moneys withdrawn from this account had been restored together with interest. Andree Bardon The sole response from the Solicitor in relation to this account was that all moneys withdrawn had been restored together with interest. Maureen Smythe The Solicitor stated that he was informed by his brother, Peter Dezarnaulds that in September 1992 a Bill of Costs previously not rendered by the Solicitor was rendered to Mrs Smythe with the intention that the short-fall in the funds would be absorbed leaving a credit balance of $602.89 in her account. He said that all moneys "misused" have been repaid. Estate late Albert Gubbay The Solicitor's response was that the amount of $500 withdrawn on 13 March 1990 was for costs of his firm and not for his own purposes. The amount of the deficiency had been restored with interest. Coface (Sydney Blind Factory) His sole response was that he had repaid all moneys "utilised" by him in respect of this account. Mrs Maryse A.I. Capiez and Mrs Madeleine M.L. Capiez The Solicitor said that a Mrs Capiez agreed to lend Ms McGlasson the sum of $10,000. He stated that from this, $4,800 was repaid by Ms McGlasson on 6 July 1989 with the balance of the principal sum due of $5,200 being repaid. He stated that interest owing on the principal had also been reimbursed. A. & P. Lucien and Mrs Danielle Chaveyron The Solicitor's sole response to each of these complaints was that the deficiency had been repaid together with interest. Therese Olliver The Solicitor admitted that the balance of $23,638.29 was misapplied by him after the purchase of shares for $4,631. He then went on to calculate interest which would have been owing on the respective balances totalling $12,051 and stated that that amount of interest added to $23,638.29 totalling $35,689.29 had been repaid. Y. Carnicelli The Solicitor's response was that the principal amount "utilised" together with interest had been repaid. D.R. Raffin The Solicitor's response was that the money "utilised" together with interest had been repaid. J.N. Destours The Solicitor's response referred to "account M. Ledru" and refers to a cheque in the sum of $1,000 opened for cash paid to "Mr Ledru personally" who has verified this with a copy of his letter attached. The Solicitor states that no moneys were misused by him in this account. This response does not fit comfortably with the findings of Miss Sayer who on page 40 of her report dated 29 July 1993 stated that the Solicitor admitted that he used these moneys for his own purposes and reimbursed the amount of $500 which was credited to the trust account on 18 September 1992. Having regard to the admissions and subsequent concessions through his counsel that he is guilty of professional misconduct, the Tribunal finds that this ground of the Complaint has been established. In his statutory declaration, the Solicitor asked the Tribunal to take into account the following factors: "1. The relative shortness of time of the misused monies. 2. The relatively small amount of monies taken. 3. The fact that restitution in full has been made, with interest. 4. The fact that I am a person of previously unblemished record and of good character. 5. The reasons given by my psychiatrist Dr George Lianos in his report dated September 13th 1993 which is attached, that my state of mind and emotion giving rise to the conduct complained of is unlikely to recur. 6. The financial loss occasioned by the humiliating loss of my practice and punishment and shame that this has already imposed upon me, my brother and father." The Tribunal considers that despite the Solicitor's assertion that the time was relatively short, a period of some 4.5 years flies in the face of that assertion we also reject the assertion that the amount taken was "relatively small". This was an issue in respect of which the Solicitor's counsel submitted that it was relatively small in the overall context of matters previously considered by the Tribunal. Mr Conti further submitted that there was a matter of perception and judgment with which the Tribunal could be guided in the "basket of factors". He conceded that this submission was put forwarded on a guarded basis, however the Tribunal takes the firm view that the Solicitor's response is at least, misconceived and to a certain extent has a tendency to place a seed of concern in the mind of this Tribunal when considering the Solicitor's fitness to practise in the future. The Solicitor's assertion that restitution had been made with interest is misleading. As previously observed, a considerable portion of restitution was made by the Solicitor's father and brother. He did not reveal this in his statutory declaration. Considerable reliance was placed by the Solicitor on the findings of the Psychiatrist, Dr George Lianos. In his evidence before the Tribunal, the Solicitor elaborated upon his thyroid problems and their effect upon him. The evidence was that the Solicitor was first diagnosed with a thyroid problem in 1978 and was initially treated by prescribed drugs. The symptoms the Solicitor detected in 1978 consisted of "irritability, impulsiveness, a very greatly increased appetite, hyper-activity, loss of memory" and "excitability". The Solicitor was asked about his symptoms in 1987 (the year preceding the misappropriations) and he replied by saying that they were "pretty much the same" from what he could remember. He returned to his treating doctor and was again prescribed drugs. He said that those drugs brought his thyroid condition under some control. The Solicitor was asked if he had any symptoms similar to the symptoms he had in 1978 and 1987 during the period of 1988 to September 1992 and his reply was in the affirmative. He said that he was conscious that he was irritable and possibly excitable and assumed that having regard to the course of tablets he was prescribed in 1987 his condition "was stable". He said that he later discovered, after having spoken to Dr Lianos, that that was not the case. The Solicitor first sought medical treatment from Dr Casey at some time in 1992 which was after the misappropriations had been discovered. He first saw Dr Lianos in September 1992 again, after the discovery of misappropriations. In 1987 he opened the account in the name of "F. Goyetche" although the Solicitor conceded that it may have been earlier. He agreed that the purpose of opening that account was to by-pass putting money in his own account with his own bankers. He denied that he was under financial stress in 1987 and was asked why he did not want to put the money into his own account. The Solicitor's reply was "From memory I think I had an overdraft and I just felt that I would like to have another kind of bank account that I could put money into without having to overdraw my own account any further than it was." He said that he was not pressed financially and wanted to try and keep his overdraft "at a reasonable level". The Solicitor denied that he was in any financial difficulties by early 1988. Inspection of the copy records produced by the National Australia bank reveal that from at least August 1989 the Solicitor's overdraft facility did, initially, exceed the approved limit by a relatively small amount and thereafter gradually increased with requests from the Bank's Senior Manager to attend to the lodgement of funds to regularise the position. By 30 January 1992 the Solicitor's current account balance stood at $74,794.86 against an approved limit of $70,000. In order to illustrate the Solicitor's purported state of mind at the time it is useful to consider the following exchange in cross-examination: Mr Robinson: "In early 1988 when you misappropriated your clients' funds, were you conscious of what you were doing? I was conscious of it, but I was - yes, I was conscious of it, but I didn't think of the gravity of it, at the time it was a very impulsive act to have become involved in. I... You knew it was wrong? Yes, I knew it was wrong. And the funds were paid to your benefit, were they not? Yes. So you knew you were taking other people's money to pay your expenses? Yes, at the time - I suppose I did. I suppose I did. Every time you did that during those 4.5 years, you were also conscious of taking someone else's money to pay your expenses? Yes, in many of the accounts the clients had given me a sort of carte blanche authority to invest funds and to move funds about. I was aware of that. You were aware during that entire period that you were taking someone else's funds to pay your expenses? Yes I was. I was aware but on reflection I wasn't thinking with any clarity whatever." The Solicitor denied that he attempted to conceal the misappropriations and, following an objection from his Counsel, Mr Robinson, for the Society asked some specific questions concerning some of the matters in issue. The Solicitor was cross-examined as to a number of the steps he took in relation to some of the accounts and seemed to be reluctant to concede that he caused any false entry to be made in the trust account records. He referred to his bad memory but was prepared to agree that he must have undertaken these steps. In fact, the evidence of the Receiver shows a pattern of behaviour on the part of the Solicitor which leaves the Tribunal with the conclusion that he embarked on a carefully planned, well thought out course of events in order to conceal his behaviour as much as possible. This is illustrated by the Solicitor's cross-examination in respect to Paulette Tappero. In that matter, the Solicitor apparently prepared a withdrawal slip on the GIO account for the sum of $2,000 payable to "F. Goyetche". The Solicitor did not think it was his hand-writing in the account but agreed that the signature was his. He agreed that the effect of the withdrawal slip was to cause the money to go from that account to the account of F. Goyetche. The Receiver's report also reveals the GIO's cheque drawn in accordance with the withdrawal in favour of F. Goyetche which was later converted to a bank cheque drawn on the State Bank of New South Wales payable to the same payee and in the same amount. The back of the bank cheque is endorsed with the words "pay yourself". The Solicitor agreed that he so endorsed the back of the cheque in his own writing and that he deposited that cheque into his own account with the National Bank which was, according to the Solicitor, "probably" overdrawn at the time. The Solicitor was asked why it was necessary for him to go through this documentation in order to achieve the result. His reply: "There wasn't any particular reason. Sometimes I think I paid it just direct into my bank account." The Solicitor stated that he was acting irrationally and it was put to him in cross-examination that he was in fact acting quite rationally for somebody that wished to conceal that part of the transaction. The Solicitor's reply to this assertion was: "I was acting totally without thought." Throughout his cross-examination, he did not wish to concede that he was endeavouring to conceal the steps taken in each transaction. The detailed steps that the Solicitor took in each transaction shows that he did in fact actively endeavour to conceal the misappropriations and any suggestion to the contrary is completely without foundation and rejected accordingly. As to the Solicitor's medical condition, the Tribunal has given careful consideration to the evidence of Dr Lianos who was called on his behalf. The Tribunal has also considered his written reports together with those of Dr Casey and Dr Ellard. Dr Lianos is a Consultant Psychiatrist and Psychotherapist who has been practising for seven years. He is a Consultant Medical Officer at Westmead Hospital and a Clinical Supervisor of the Department of Psychiatry at Sydney University. In his report of 13 September 1993, he expressed an opinion that the Solicitor "has been suffering from the psychological complications associated with an over active thyroid and at times has only been partially treated". He also referred to the Solicitor's "significant past medical history involving the thyroid gland". During the 12 months in which the Solicitor had consulted him, he found the Solicitor to be "a very anxious, restless, agitated man who presented as a benign, absent minded professor". He also stated that the Solicitor "has a warm, comfortable, caring manner that attempts to manage a very deeply distressed and depressed mental state". The report refers to a quote in a book on Organic Psychiatry being exhibit "19" which states that: "Psychological disturbance is universal with thyroid over activity. The patient becomes restless, over active and irritable...Heightened tension leads to impatience, intolerance and frustration and there may be emotional liability with unreasonable hysterical behaviour. Fluctuating depression is occasionally a prominent feature though unaccompanied by retardation. The over arousal leads to distractibility so that concentration is impaired and effort cannot be sustained. In addition, careful examination may reveal definite cognitive impairments of which the patient is unaware, and in the form of difficulty with simple arithmetic or difficulty with recent memory." Dr Lianos also expressed his further opinion that adequate treatment of the problem brings about a return to "normal mental functioning". In his report dated 20 April 1994 he referred to a report of Dr John Ellard (to which we shall return) and stated that he continued to see the Solicitor on a weekly basis and noticed "a significant improvement clinically". He referred to the improvement of the Solicitor's mental state as well as his attention and concentration. He further stated that the Solicitor's attention and concentration were now within the normal range. The improvement of the Solicitor's mental state is, according to Dr Lianos, attributed to his treatment by Dr Casey of his thyroid disorder with neo-mercazole. Dr Lianos stated "I anticipate that with ongoing appropriate treatment with Dr Casey and myself that there will be stable control of his disorder and the likelihood of a relapse is unlikely". He concluded "under these circumstances we could anticipate that should Mr Dezarnaulds be able to return to his profession he would be able to maintain his previous of excellent functioning and there would be no threats to this from his thyroid condition". In his cross-examination, Dr Lianos stated that the Solicitor's treatment would be required for the rest of his life in order to prevent his previous problems recurring. Further, during the course of cross-examination, it seems that Dr Lianos had not fully appreciated the extent of the misappropriations in that the Solicitor applied the moneys for his own benefit. The following appears in the relevant portion of the transcript: Mr Robinson: "The misuse of those moneys, what did you understand by the misuse of the moneys? That he had used the moneys in a way which was not authorised by the professional code. But you didn't understand that to mean that he had in effect taken someone else's money and used it for his own purposes? I understood that to be the standard. Sorry, I should make myself clearer. I think as I understood your answer to the question before last you said that you understood him to be in breach of the professional standards applicable to solicitors and the manner in which they must keep the funds? I understood that to be the allegation, yes. Did you understand there to be an allegation that in effect that the Solicitor had misappropriated his clients funds to his own benefit? I didn't see myself as competent to make that assessment"; and later: Mr Robinson: "Do you mean by that that he had in effect, misappropriated or stolen his clients money and used it for his own benefit? I understood that to be the allegation. Right. And that the moneys that had misappropriated had been used for his own benefit? That was not clear to me. I was aware that was the allegation. Yes. Did the Solicitor tell you that he had misappropriated these moneys for his own benefit? No he hadn't." The Doctor expressed the firm view that the thyroid problem was totally responsible for the misappropriations which developed in a rather chaotic manner as there did not seem any particular method to the use of the moneys as described in the Receiver's report. This Doctor took the view that the Solicitor was acting impulsively and did not have a proper appreciation of what he was doing at the time. Another important aspect of the Doctor's evidence is revealed in the following extract from the transcript: Mr Robinson: "He paid his own tax with clients' funds? In a sense what he did with the money was irrelevant. When you have got a chaotic pattern of thinking, it becomes quite irrelevant. If he was conscious of wrongdoing he would be conscious of these symptoms, I take it? No, that's part of the problem. When you are suffering with a deficit in your attention and concentration, you may not be aware that you have got this problem with attention and concentration. You might be aware that you are ineffective but you can't put you finger on why you are being ineffective. You might be aware that sort of something is going wrong, but not able to describe it adequately, you might find yourself doing things you don't ordinarily do but sort of struggling to make any sense of them and sort of quite - you can be quite puzzled as to why things aren't holding up, but without being able to sort of characterise it any better than that. How long could these episodes last for where the patient was unable to appreciate things around him? I wouldn't describe it as an episode. It is a fluctuating state. They are not sort of discrete episodes. It is sort of one long process and it just goes up and down and it is hard to understand why it goes up and down. Does the need for money have any bearing upon this, supposing it was proved that the Solicitor was in need of funds? No, I don't think that has any bearing on the mental state whatsoever. You are suggesting then that on the previous episodes this could have resulting (sic) in stealing as well? I'm not suggesting that at all. I am saying that that's a theoretical possibility." The evidence of Dr Lianos certainly suggests that the Solicitor has a serious thyroid condition which quite clearly requires frequent ongoing treatment in order that it be brought under control. The Solicitor did not consult a doctor during the years 1988 to 1992. Dr Lianos was asked: Mr Robinson: "Would that not suggest to you that the symptoms were not so strong that he felt no need to do so? No, once you are caught up in this process your faculties of reasoning and thinking are compromised. You cannot be aware of your deficits in attention and concentration when you are in the grips of that process. You can't attend and concentrate to form sort of like coherent sort of thought patterns. You can't be aware of it and that's unfortunately one of the tragedies that it often requires somebody else to point out, `Hey, you are not functioning at the level that you ordinarily function'." This answer suggests to the Tribunal that there is a considerable likelihood of the Solicitor not recognising the symptoms for which he would need treatment in the future. If the Solicitor's condition is as put forth by the medical evidence then the Tribunal has some concerns about the protection of the public if the Solicitor were allowed to continue to practise even on a limited basis. The medical condition may lead to other factors not necessarily resulting in trust account defalcations but factors which might otherwise put clients interests at risk in respect to matters with which he may be instructed. In the report of Dr John Casey dated 22 April 1994 he expressed a prognosis that while the anti-thyroid tablets would continue to keep the Solicitor under control, he would be liable "to relapse after suspension of the course of anti-thyroid tablets". In his report of 5 May 1995 (sic) the doctor stated that the Solicitor is quite adequately controlled with the tablets but would be quite likely to develop thyrotoxicosis again upon suspension of the treatment although he would enjoy "a lengthy remission". In his report to the Professional Standards Department of the Society dated 26 October 1993, Dr Ellard also attributed the Solicitor's problems to the thyrotoxicosis condition and reinforced this view in a further report of 20 May 1994. However, in his report of 26 October 1993 he states that if what the Solicitor did amounted to "studied criminality" then the issues the doctor raised in his report "are irrelevant". The Tribunal is unsure as to what Dr Ellard meant by "studied criminality" but as far as the issue of misappropriations is concerned the Solicitor has in any event conceded professional misconduct and therefore whether the Solicitor's conduct amounted to criminality or not is not really an issue for determination in deciding his guilt or otherwise in the commission of the acts which have brought him before us. As to the future management of the Solicitor's condition, Dr Lianos expressed the view although qualified by whatever Dr Casey may say that in his general experience, 3-6 monthly reviews are usually adequate. The evidence of the Solicitor's elder brother, Peter Douglas Dezarnaulds who now practices on his own account, related to the calculation of the interest earned on the clients' moneys which were repaid following discovery of the misappropriations. An amount of $105,455 or thereabouts inclusive of interest was repaid and Mr Dezarnaulds stated that his father put in $37,373 with the Solicitor repaying the balance. He described the Solicitor's practice over the years which basically consisted with dealing with the French community. It seems that the Solicitor's practice covered a broad field including conveyancing, landlord and tenant work, family law, and third party matters. In his statutory declaration, Mr P. Dezarnaulds stated that towards the end of 1991 he noticed the Solicitor's behaviour becoming erratic, edgy and irritable. He discovered the misappropriations in September 1992 and immediately discussed them with the Solicitor who made admissions to him. As a result of further discussions, it was decided to immediately inform the Society of the situation. Mr Dezarnaulds expressed his grief over the realisation that during the course of time preceding the discovery of the misappropriated funds, the Solicitor "obviously lost control of his senses". He referred to the Solicitor's two previous breakdowns of marriage and that during the period of 12 months prior to making the admissions, he was "obviously under severe emotional stress". He also stated that the Solicitor "is extremely ashamed of what he has done". Mr Dezarnaulds added that the Solicitor was "particularly ashamed of having let down his father" and was "absolutely devastated" by his actions. His final paragraph in his statutory declaration stated: "If any undertakings are given by my brother to the Tribunal as to his future conduct and behaviour, provided he remains on his medication, I trust that they can be relied upon by the Tribunal." The Tribunal has taken careful note of this final statement in formulating its decision as to the orders it proposes to make. His brother would, no doubt, be in an excellent position to assess the Solicitor's behaviour and the Tribunal notes the proviso in respect to the Solicitor's medication. Rather than guaranteeing the performance of any undertaking which may be given by the Solicitor he, it appears to the Tribunal, simply trusts or hopes that they can be relied upon. This rather equivocal statement has also been taken into account in arriving at our decision. The Solicitor's history of practice commenced in 1955 when, whilst he was studying law at Sydney University he became articled to his father's firm and completed his articles of clerkship with that firm. He joined his father's firm in 1960 as a solicitor and has had a distinguished tennis career having played tennis on the international tennis circuit in Europe and later, having played some veterans tournaments in Europe. In 1990 (during the period of the misappropriations) he was selected in the Australian Over 55 team in the Austria Cup. He has also represented New South Wales in the Number One 60s Team in the Australasian Veterans Championships and has won veterans tournaments in New South Wales and other states. He holds an all time club record at the Royal Sydney Golf Club having won 34 singles and doubles championship titles. He became a partner in his father's firm in 1962 and remained with him in that firm until 1992. The Solicitor was a member of the Young Lawyers Committee (as it then was) with the Law Society and served as its President. He is fluent in the French language and this, together with the fact that he had lived in Europe led him to become involved with French clientele after he had become a partner in his father's firm in 1962. He has had an extensive association with residents of France and New Caledonia and the Solicitor has stated that he has a sound knowledge of French law and the French legal system generally. After taking into account all of the evidence and the Solicitor's own admission as to professional misconduct the Tribunal accordingly finds that the Solicitor wilfully contravened sections 61 and 62 of the Act and misappropriated those moneys received on behalf of his clients. Whilst the Solicitor submits that his actions were brought about by the thyroid problem the Tribunal does not consider that the thyroid problem manipulated his mind to the extent that he did not know that what he was doing was wrong. It seems strange that the Solicitor's practice and his personal life was otherwise relatively unaffected by this condition. He was able to engage in sporting activities with distinction and the balance of his practice and personal life seems to be unaffected. It has been submitted on his behalf that a conditional determination may be made in circumstances in which the Tribunal concludes that striking off or suspension would not be appropriate in the light of the evidence. It has been further submitted that the Tribunal recommend to the Society that the Solicitor be issued with a limited Practising Certificate pursuant to section 33(1) of the Act in exchange for an undertaking from the Solicitor not to maintain or operate a trust account or controlled moneys account and not accept or to hold payment of trust moneys or controlled moneys unless and until the Society otherwise determines together with an undertaking to submit to other such restrictions and conditions as the Tribunal may decide. Our attention has been drawn to the matter of David Edward Quinn 1991 LPDR 35 in which the Tribunal made orders cancelling that solicitor's practising certificate for 12 months on the basis that the solicitor undertook not to practise on his own account or seek to obtain an unlimited practising certificate for a certain period. In that case, the Tribunal recommended to the Society that certain conditions be imposed before the solicitor is issued with any unlimited practising certificate. In that case, the Tribunal also took the view that the solicitor, if allowed to practise in the future would not offend again and was therefore not to prepared to make an order removing his name from the Roll. The Tribunal found that there was no evidence of any psychological condition affecting the solicitor and, had "no fears as to the solicitor's future conduct." We take a different view in this case. We indeed have a real fear that the public would be put at risk if the Tribunal were to allow the Solicitor to remain on the Roll. In any event, as the Society submits, the Tribunal has no jurisdiction to interfere with or restrict the power and discretion vested in the Council of the Law Society to issue practising certificates. Although we accept that submission, it is our respectful view that the Tribunal's decision in Quinn's case was simply a recommendation to the Society and nothing more. There seems to be no reason why the Tribunal cannot in any event accept undertakings but in this case we do not propose to do so having regard to the findings and observations we have made above. Through his Counsel, the Solicitor was prepared to proffer undertakings to the effect that the Solicitor would not hold any trust account moneys nor have any access to same. The Tribunal has difficulty in accepting any such undertaking. The medical condition of the Solicitor reveals that there is a real possibility that whilst the Solicitor may not have access to any trust account, this does not of itself, prevent misappropriation of clients' funds. Indeed, there have been solicitors in the past who have misappropriated clients' funds from sources well outside the mainstream field of practice. Furthermore, the Solicitor's medical condition overall indicates potential for a variety of problems which may cause his conduct to come under adverse notice in the future. This, together with the size of the misappropriation means that the Solicitor's name must be removed from the Roll in order to protect the public. In Bolton v Law Society 1994 2ALLVR 486, 492 it was held that "If a member of the public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor, pending reinvestment in another house, he is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise the whole profession and the public as a whole is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires." It was further held that there is a need "to maintain among members of the public a well founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness." The behaviour of the Solicitor over a period of 4 1/2 years leading to a misappropriation of an amount in excess of $75,000 obviously has considerable impact on the Solicitor's "integrity probity and trustworthiness". Although the character evidence tendered on behalf of the Solicitor is as is often the case, impressive, the Tribunal, feels that in these particular tragic circumstances, it has no alternative than to make the orders sought by the Society. As was said in Boltons case, "It often happens that a solicitor appearing before the Tribunal can educe a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learnt his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation all these matters are relevant and should be considered." If in fact the Solicitor, at a later stage, seeks readmission then these things can be taken into account, provided a track record of appropriate behaviour is established by that time. Orders The Tribunal makes the following orders that: 1. The name of Camille Edouard Dezarnaulds be removed from the Roll of Solicitors of New South Wales. 2. The Solicitor pay the costs of the Law Society of New South Wales as if taxed in the Supreme Court of New South Wales on a solicitor and client basis. 3. If agreement cannot be reached as to the amount of such costs either party to have liberty to apply. 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.