The Legal Services Tribunal of New South Wales CITATION : Stanley Gerald Keefe [1995] NSWLST 9 PARTIES : Stanley Gerald Keefe FILE NUMBER(S) : of 1994 CORAM: Mr D E Hunt (Presiding Member) - Mr A Martin - Dr M. Costigan CATCHWORDS: Cancellation of practising certificate - Professional Misconduct - charge fees for services never performed - Professional Misconduct - fail to carry out instructions - Professional Misconduct - mislead client - Professional Misconduct - breach of s. 61 of the Legal Profession Act - Professional Misconduct - fail to act honestly :- Section 135 of the Legal Profession Act 1987 LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: Re Vickery (1931) 1Ch 572 ; Re the Law Society v Bannister (LPDR No. 4 1993) DATES OF HEARING: 14,15,16 and 17 November and 7 December 1994 DATE OF JUDGMENT: 03/23/1995 LEGAL REPRESENTATIVES: Mr Wales for the Law Society Mr Brewer for the Solicitor JUDGMENT: Allegations that the Solicitor wilfully breached Section 61 of the Legal Profession Act 1987, wilfully breached Section 62 of the Legal Profession Act 1987, wilfully failed to comply with his clients instructions, charged twice for the same work, breached an undertaking to the Court and breached an undertaking to another solicitor. The Tribunal found both professional misconduct and unsatisfactory professional conduct, and ordered that the solicitor's name be removed from the Roll of Solicitors in New South Wales. On 2 December 1993 the Council of the Law Society of New South Wales ("the Law Society") resolved that Stanley Gerald Keefe ("the Solicitor") may be guilty of professional misconduct and that a complaint be made to the Legal Profession Disciplinary Tribunal pursuant to Section 135 of the Legal Profession Act 1987 ("the Act"). The Legal Services Tribunal ("the Tribunal") heard and determined the Complaint under the Transitional Provisions of the Legal Profession Reform Act 1993 and its Regulations. The grounds of the Complaint are: 1. The Solicitor wilfully breached S.61 of the Act. 2. The Solicitor wilfully breached S.62 of the Act. 3. The Solicitor wilfully failed to comply with his client's instructions. 4. The Solicitor charged twice for the same work. 5. The Solicitor breached an undertaking to the Court. 6. The Solicitor breached an undertaking to another solicitor. The evidence in support of these grounds of complaint was given by Miss Jean Sayer orally and in her written Reports. Miss Sayer was appointed the Receiver of the property of the Solicitor pursuant to Section 92 of the Act on 18 December 1992. The Solicitor was made bankrupt in early 1993. The Solicitor in answer to these allegations gave oral evidence and tendered in evidence a number of Statutory Declarations. Wilful breaches of Section 61 Section 61 provides that if a solicitor, in the course of practising as a solicitor, receives money on behalf of another person, the solicitor shall hold the money exclusively for the other person, that the money so received shall be paid to the credit of a general trust account at a bank in New South Wales and be held in accordance with such regulations as may be in force in relation to trust money. This money shall be paid or disbursed as directed by the person on whose behalf the money is held. This Section does not operate to prevent a solicitor from withdrawing or receiving, from trust money or controlled money- (i) reimbursement for disbursements paid by the solicitor; or (ii) money for disbursements to be paid by the solicitor; or (iii) money due, or to accrue due, to the solicitor for costs, if the prescribed procedure is followed. Clause 8 of the Legal Profession (Trust Accounts and Controlled Money) Regulation 1988 provides that in respect of money which a solicitor withdraws or receives from trust money or controlled money for reimbursement for disbursements paid by the solicitor, or money for disbursements to be paid by the solicitor, or money due, or to accrue due to the solicitor for costs, the solicitor shall, on receipt, or as soon as practicable after receipt, of money from which the solicitor is authorised to receive costs and disbursements, deliver to the client an outline bill unless a bill or account of the costs of disbursements has been delivered to the client before receipt of the money by the solicitor. The Clause further provides that a solicitor shall not withdraw trust money or controlled money in satisfaction of any costs or disbursements unless - (a) the person for whom the money is held has authorised the withdrawal and the solicitor has delivered to the person an outline bill; (b) the solicitor has delivered to the person an outline bill together with written notice that, unless the person objects, the solicitor intends to withdraw the money and apply it towards payment of the bill at the expiration of one month, and the month has expired without any objection being made. The wilful contravention of these provisions of Section 61 is professional misconduct. In this context the following statement by Maugham J. (as he then was) in re Vickery (1931) 1Ch 572 at 583 when dealing with the concept of "wilful neglect or default", is relevant. "A person is not guilty of wilful neglect or default unless he is conscious that, in doing the act which is complained of or in omitting to do the act which it is said he ought to have done, he is committing a breach of his duty or is recklessly careless whether it is a breach of his duty or not." The Tribunal will now deal with each of the matters as follows: Grapsas On 18 December 1992 there was a shortfall in the Solicitor's trust account of $3,526.50. There was a credit in the account of this client in the trust account of $840.80 being part of $2,103.00 which the client had directed the Solicitor to pay from moneys which the Solicitor had received into his trust account as the result of the settlement of a third party claim. As a result of the shortfall in the trust account the amount of $840.80 was unavailable for payment to the client or to be paid in accordance with her instructions. In answer to this allegation the Solicitor stated that there had been a shortfall in the settlement moneys that he had received from the NRMA. He presumed that he was awaiting a reply from the NRMA concerning the balance of the money before paying expenses as instructed by his client. The Tribunal finds the Solicitor guilty of a breach of Section 61 and that this breach was wilful. Swain On 25 November 1992 the Solicitor received from this client $2,000.00 which he deposited in his trust account. On the same day the Solicitor transferred $2,000.00 from his trust account to his general account for costs and disbursements. On 30 November 1992 the client's cheque was dishonoured. The Solicitor did not reimburse his trust account upon learning of the dishonour of the cheque, for the reason he gave in evidence that it was not for him to put the money back in but was for the client to put the money back in. The Solicitor said that he acted in accordance with his professional ethical obligations in regard to this client's trust ledger account. The $2,000.00 formed part of the shortfall found in the Solicitor's trust account by the Receiver on 18 December 1992. The conduct of the Solicitor in this matter clearly demonstrates his failure to fulfil his obligations as a solicitor to his trust account. The Tribunal finds that the Solicitor was guilty of a breach of Section 61 and that this breach was wilful. Kabalan The Solicitor acted for this client on settlement of his Common Law and Workers Compensation claim. The Workers Compensation claim was settled for $18,727.60 plus costs and the Common Law claim was settled for $7,272.40 inclusive of costs. The client gave his written instructions for this settlement on the basis that from the total settlement of $26,000.00 inclusive of costs he would receive $16,000.00 clear after deduction of Social Security payments, out-of-pocket expenses including $2,473.000 to be paid to Villano Rehabilitation Centre Pty Limited and $4,000.00 to the Solicitor for his costs. On 6 December 1988 the Solicitor received into his trust account $11,478.40 being the amount of the Common Law settlement and his Workers Compensation costs and disbursements as agreed. On 7 December 1988 the Solicitor transferred from his trust account to his general account $6,387.00. On the same day he paid certain disbursements including the repayment of a litigation loan of $1,500.00 plus $368.77 interest on that loan. On 16 June 1989 after the payment of certain other disbursements, (but not the Rehabilitation account) the Solicitor transferred the remaining balance in the client's trust ledger account of $583.63 to his general account. The Rehabilitation account of $2,473.00 was not paid by the Solicitor. The Solicitor explains this failure by saying that he should not have repaid the litigation loan as by repaying this loan and interest there were insufficient funds left in his trust account to pay the Rehabilitation account. The litigation loan of $1,500.00 was received on 15 July 1987 by the Solicitor into his general account for costs. He failed to give credit for this amount to the client when he prepared his bill of costs in respect to the Common Law claim, this being stated to be for all work carried out by him including taking original instructions. The Solicitor's explanation for appropriating the $583.63 from the trust account into his general account on 16 June 1989 was that this transfer, "may have been on account of $750.00 my client owed me re personal loan". The Solicitor did lend the client $750.00 but this was repaid by the client on 21 December 1988. The Tribunal is of the opinion that the Solicitor was not entitled to transfer the sum of $583.63 and misappropriated this amount. The Tribunal finds the Solicitor guilty of breaches of Section 61 and that these breaches were wilful. Karavokiros On 20 November 1992 the Solicitor drew a cheque on his trust account in the sum of $8,007.00 in favour of the client. The cheque was presented on 20 November 1992 and as a result the trust account was overdrawn in the amount of $1,316.20. The cheque was dishonoured on 23 November 1992. The Solicitor stated that he wrote this trust account cheque in favour of the client, because the client had come into his office asking for money, at a time when the Solicitor was aware that he had already transferred $8,007.00 from his trust account to general account on account of his costs. He conceded in evidence that he wrote out the cheque to get the client off his back at a time when there was no money to the credit of the client in the trust account. His justification was, "terrible pressure at the time". On 17 December 1992 the Solicitor drew a cheque on his trust account in the sum of $2,457.00 in favour of the client representing the balance in the client's trust account ledger as at 3 November 1992. There were insufficient funds in the trust account to cover the cheque when it was presented and the cheque was dishonoured. It is alleged that the Solicitor withdrew from his trust account funds for the purpose of paying disbursements and did not pay the disbursements. The disbursement are - Counsel's fees - $ 4,540.00 Doctor's report fees - $ 220.00 Interpreter's fees - $ 600.00 The evidence clearly establishes that these funds were received into the trust account of the Solicitor for payment as disbursements and were not paid. The Tribunal finds the Solicitor guilty of breaches of Section 61 and that these breaches were wilful. Rachid As at 27 November 1992 there was a credit of $190.00 in favour of the client in the trust account ledger. By reason of the shortfall in the Solicitor's trust account no monies were held covering this credit. These are the facts and it is remarkable that the Solicitor through his counsel, has submitted as an explanation that "a credit clearly stood to the client from the trust account and had nothing to do with the shortfall as at 17 December 1992". Under Section 61 the Solicitor clearly had a duty to hold the $190.00 exclusively for the client. The Tribunal finds that the Solicitor was guilty of a breach of Section 61 and that this breach was wilful. The Law Society alleged that the Solicitor in a bill of costs to the GIO dated 24 December 1992 included certain disbursements totalling $4,225.00; of these disbursements amounts totalling $2,325.00 have been paid, and therefore there was a failure to account by the Solicitor for the balance of the disbursements of $1,820.00. However the evidence does not satisfy us that there was any such failure to account and we dismiss this allegation. Reda On 19 December 1990 the Solicitor received into his trust account $2,000.00 from the client for the purpose of commencing Common Law proceedings. On the same day the Solicitor drew the $2,000.00 from his trust account to his general account. No Common Law proceedings were commenced. On or about 1 October 1992 the Solicitor settled the client's Workers Compensation claim on written instructions from the client on the understanding that "I will receive refund of $2,000.00 from Mr Keefe paid on account of costs and disbursements re proposed Common Law claim". The sum of $2,000.00 has not been repaid by the Solicitor to the client. On or about 16 November 1992 the Solicitor received into his trust account $6,503.00 from the GIO being his agreed costs and disbursements in the Workers Compensation proceedings. On the same day he transferred this entire amount from his trust account to his general account. No outline bill was given to the client. Certain disbursements which form part of the agreed costs and disbursements have not been paid, namely:- (a) Counsel's fees - $1,186.00; (b) Interpreter's fees - $250.00; (c) Dr Maniam report fees - $350.00; (d) Dr Lindray report fees - $250.00. Counsel for the Solicitor has submitted that as Section 122 of the Workers Compensation Act states that a solicitor is not entitled to recover from a client "any costs in respect of any proceedings under this Act" it follows that there is no obligation on a client to pay solicitor's costs and disbursements. The costs payable by the respondent are solicitor's costs and not client's costs. The moneys received as costs by the Solicitor are not held on behalf of the client and therefore there is no obligation on the Solicitor to account to the client for these moneys; consequently there is no breach of Section 61 in relation to moneys received by a solicitor as Workers Compensation costs. Counsel for the Law Society has submitted that nothing in Section 122 of the Workers Compensation Act alters the usual situation that party/party costs are the client's moneys to be accounted to for him (see Veron's case (1986) 84 WN (pt 1) (NSW) 136). A contract of retainer exists between the solicitor and his Workers Compensation client who, when he engages the solicitor incurs, at least potentially, an obligation to pay that solicitor's professional costs. When an applicant in the Compensation Court is awarded compensation the usual form of order for costs is that, the respondent pay the applicant's costs. The Tribunal agrees with the submission of the Law Society that when the respondent sends the applicant's solicitor a cheque for the agreed party/party costs, the respondent is discharging an obligation which it owes to the applicant, not to the solicitor. Consequently, the monies that the solicitor receives are being held on behalf of his client, not on his own behalf. The solicitor must therefore account for those moneys as required by Section 61. In this matter the Solicitor not only failed to account to his client but failed to pay certain of the disbursements that he had included in his assessment of costs submitted to the respondent. The Solicitor has not given any satisfactory explanation for his failure to pay these disbursements. In answer to this allegation the Solicitor relies on a Statutory Declaration of Dr Maniam (Exhibit "41") and a Statutory Declaration made by himself (Exhibit "43") annexing a copy of a letter dated 25 August 1994 from Mr Anthony G. Jamison, barrister. These Declarations do not provide any evidence of payment of the disbursements in question to either Dr Maniam or Mr Jamison. Dr Maniam declares that there has been no failure by the Solicitor to account to him in relation to fees for medical/legal reports and that in relation to unpaid bills he understood that many clients were unable to pay his fees before settlement, yet he agreed some five years ago to the Solicitor's request that he wait for payment until after settlement in such cases. He anticipated receipt of such payment in due course. Mr Jamison in his letter stated that he was most concerned that the Solicitor had been charged or accused of failing to meet fees owed to him. This letter further states that the Solicitor supported his practice and a friendship evolved. In the latter years the Solicitor sought his assistance and he had an arrangement with him in respect to a number of Workers Compensation matters. He assisted the Solicitor with advice on various matters a number of which were purely speculative. He knew the Solicitor had substantial difficulties with his practice but he was prepared to assist him to trade out of his difficulties. The letter further states, "In all conscience, I would not like it to be said that Mr Keefe did not meet his obligations to me and if it assists, I stress that I would not expect any claim by me on fees to constitute misconduct in any way". The Tribunal does not believe that either Dr Maniam or Mr Jamison were aware when making their Declaration and Statement that the Solicitor had received monies on account of disbursements actually due to them. The Tribunal finds the Solicitor guilty of a wilful breach of Section 61 in that he transferred from his trust account the Workers Compensation costs and disbursements to his general account and then failed to pay disbursements totalling $1,820.00. In this matter and in other matters the Solicitor relies in his defence on "arrangements" that he had with various service providers such as barristers, doctors and interpreters. He did not spell out precisely what these arrangements were, but, whatever the terms of the arrangements, it is clear the Solicitor would pay the fees at his discretion as to in whole or in part as and when it suited the Solicitor to make payment. The Solicitor once again demonstrates a failure on his part to fulfil his duty in dealing with trust moneys. Pappas The Solicitor acted for an infant, Joanna Pappas. The infant's claim was settled in March 1983 upon terms which included an undertaking to the Court by the Solicitor to pay $1,087.00 to Dr Segelov. The Court made orders for the payment to the Solicitor of $7,579.86 and in its orders specifically referred to the undertaking of the Solicitor to pay from that the sum of $1,087.00 to Dr Segelov. It is clear from an examination of the trust account records that this sum of $1,087.00 was transferred to the Solicitor's general account as part of his costs. In explanation the Solicitor says, (see Exhibit "27") "I have no idea why Dr Segelov was not paid. It is eleven years ago. It is obviously a mistake. I note other disbursements were paid". The Solicitor is guilty of a wilful breach of Section 61. Figueroa On or about 17 September 1987 the Solicitor from settlement moneys received into his trust account paid himself $1,892.00 on account of costs and disbursements. No bill or account was sent to the client. The Solicitor held funds for the purpose of paying money due to Dr West ($80.00), Dr Kohan ($180.00) and Dr Kelly ($45.00), a total of $305.00. The Solicitor did not pay these amounts and on or about 16 June 1989 transferred from his trust account to his general account the sum of $305.00. No bill or account was sent to the client. These facts are not in dispute. The explanation of the Solicitor is that he did not forward a bill as the client was overseas and that he paid the $305.00 in "cleaning up" small amounts of money in his trust account. The Tribunal finds the Solicitor guilty of wilful breaches of Section 61. Jerabek (Joan) The Solicitor acted for this client in a Third Party claim which was settled in the sum of $135,000.00 inclusive of costs. On 28 October 1991 the Solicitor wrote to the client enclosing a Settlement Statement showing the disbursement of the settlement moneys of $135,000.00 from which costs of $19,781.94 had been deducted. There was a bill of costs dated 5 September 1991 in the file in the same amount of $19,781.94. In addition to this amount the Solicitor was entitled to $1,105.00 being disbursements paid by him from his general account, making his total entitlement $20,886.94. In payment of these accounts the Solicitor transferred from his trust account to his general account the sum of $24,000.00 being $3,113.06 in excess of his costs and disbursements set out in his Settlement Statement to the client, which was a misappropriation of the client's funds. In this matter the Tribunal finds the Solicitor guilty of a wilful breach of Section 61. Giddins On 13 December 1990 the Solicitor drew from his trust account an amount of $5,000.00 on account of costs and disbursements. It is alleged that no bill had been sent to the client in respect of this amount but in the file there was a bill for this amount dated 12 December 1990 and the Solicitor maintains that he must have shown this to the client. The Tribunal does not believe that the Solicitor did show this bill to the client and finds the Solicitor guilty of a wilful breach of Section 61 by reason of his failure to send a bill to his clients before drawing from his Trust account the amount of $5,000.00. On 15 July 1987 the Solicitor drew $1,500.00 from his trust account as costs, resulting in a debit balance in the client's trust account ledger at that date of $1,455.00. On 17 July 1987 the client received a litigation loan from Westpac in the net sum of $1,390.00 which was deposited to the Solicitor's trust account. It is alleged that the Solicitor has failed to account for the loan and for the costs drawn and that no bill was given to the client but nevertheless it does appear that a bill was prepared for $1,500.00; the evidence is inconclusive as to whether this bill was given to the client. The Solicitor in drawing the $1,500.00 as costs thereby creating a debit balance in the trust account was guilty of a wilful breach of Section 61. Kane On or about 27 March 1992 the GIO sent to the Solicitor a cheque in the sum of $640.00 payable to Mr Kane who was a former client of the Solicitor. This sum was in reimbursement of travelling expenses incurred by Mr Kane. On 1 April 1992 the Solicitor deposited the cheque for $640.00 into his trust account, then drew a cheque out of the trust account for this amount which he deposited to his general account. The Solicitor noted in his trust account ledger that this amount was on account of costs in respect of a matter in which the Solicitor had ceased to act in February 1991 when the client removed his file from his office without his consent. The Solicitor had given no bill to the client in respect to these moneys and had no authority whatsoever to deal with these trust moneys as he did. The GIO later obtained judgment against the Solicitor for the $640.00 plus costs and interest. The Solicitor claims that he took the cheque "because of my anger". He claims that when the client took his file from the office of the Solicitor in February 1991 the client was rude to and upset the staff of the Solicitor and this had caused the Solicitor to be very angry. The Solicitor also claimed that the client owed him costs though it is apparent that at the time he dealt with the cheque for $640.00 no bill had been sent to the client. The conduct of the Solicitor in dealing with this cheque was a wilful breach of Section 61. Jerabek (Emanuel) On or about 13 October 1991 the Solicitor received into his general account $3,200.00 from the Work Cover Authority for medical expenses of the client. This amount represented an amount due to Dr B. Ireland for treatment expenses. The Solicitor did not pay the $3,200.00 to Dr Ireland until 29 September 1992 - the Solicitor thus receiving a benefit of $3,200.00 for his own purposes from 13 October 1991 until 29 September 1992. The Solicitor's explanation was Dr Ireland's account had already been paid by the client, that the client owed him a considerable amount of money, in excess of $3,200.00, that he had been unable to speak to the client who now resides in Czechoslovakia. He conceded, however, that he had not included as an asset in his Statement of Assets and Liabilities for his bankruptcy the money which he claimed the client owed him. He was unable to explain why if Dr Ireland was not owed the $3,200.00 he paid him that amount in September 1992. The Solicitor wilfully breached Section 61 in depositing to his general account money that he should have paid into his trust account and paid to Dr Ireland in payment of the client's medical expenses. Kandris On 9 November 1992 the Solicitor received into his trust account $13,958.00 from the GIO being settlement moneys in respect of a Common Law claim of the client. The same day the Solicitor transferred the same amount to his general account. It is alleged that no bill was sent to justify this transfer and the Solicitor maintains that such a bill had been "sent" in the sense that his usual practice was to show the bill to the client. A draft bill of costs was located by the Receiver which discloses that disbursements totalling $3,310.00 were due in the matter and were unpaid by the Solicitor. The only explanation that the Solicitor could put forward was that he had a dispute with the GIO, he alleging there was a shortfall of $1,042.00. The correct amount of the settlement moneys should have been $15,000.00. The Solicitor however does not explain the reason for the non-payment of the disbursements. The Solicitor failed in his duty to submit an outline bill to the client before transferring these moneys from his trust account and also failed in his duty to pay the disbursements when he received funds from his trust account into his general account for that purpose. The Tribunal finds that these breaches of Section 61 to be wilful. Vearing On 1 June 1992 the Solicitor received into his trust account on behalf of the client $31,888.89 being the amount of an award made in favour of the client on 28 April 1992. On the same day he transferred $12,000.00 to his general account for costs and paid outstanding counsel's fees of $2,800.00. He transferred the further sum of $2,075.00 to his general account on 11 June 1992. The Solicitor accounted to the client with his Statement of Costs on 8 May 1992 which had been submitted to the solicitors for the GIO. In that statement the Solicitor's costs were $12,000.00 and disbursements $4,875.00 including counsel's fees of $2,800.00. The only disbursements paid by the Solicitor totalled $311.00. The Solicitor claimed that he was entitled to transfer the amount of $2,075.00 to his trust account upon the basis of arrangements and moneys that he had already paid. He was asked by his counsel when he referred to "arrangements" what specifically was he referring to, and he answered, "I'm talking about arrangements with the various doctors in relation to payment to them of disbursements". The Tribunal finds that the Solicitor wilfully breached Section 61 of the Act in this matter. Hadchiti On 25 June 1992 the Solicitor received into his trust account $88,031.88 from the GIO being settlement moneys paid to him on behalf of his client. On the same day he paid from his trust account counsel's fees of $1,400.00 and to his general account costs and disbursements, $18,000.00. On 30 July 1992 he paid the client from his trust account $69,000.00. The Solicitor in his bill of costs of 26 June 1992 addressed to the client charged $13,187.00 for costs and the balance of the total bill of $19,531.88 for disbursements including counsel's fees of $1,400.00 which the Solicitor had paid from his trust account. Included as a disbursement in this bill of costs was also counsel's fees for a Mr Sandy Wetmore for $1,590.00. The Solicitor did not pay this disbursement. In the letter enclosing this Statement of Costs the Solicitor stated, "We confirm that any outstanding medical and out-of-pockets are your responsibility". The client's instructions to the Solicitor for settlement were in writing as follows:- "I hereby authorise my instructing solicitor to take $69,000.00 in settlement of my claim. All of this money is clear to me." In a facsimile to the Solicitor on 9 June 1992, Mrs L. Wong, counsel briefed in the matter, stated as follows:- "This matter was settled in the sum of $90.000.00 inclusive of costs. Mr Keefe had instructed that $20,000.00 would be required to be deducted for costs and out-of-pocket expenses." Hospital and medical accounts which had not been paid totalled $4,208.90. Only an amount of $810.00 had in fact been paid. On 26 June 1992 the Solicitor sent an amended bill of costs to the client for $6,657.58 costs and $6,344.00 disbursements, a total of $13,001.58. This amended bill of costs was forwarded to the client under cover of a letter from the Solicitor of 28 October 1992; the letter also enclosed a Settlement Statement which showed the deduction of the hospital and medical out-of-pocket expenses including the hospital expenses for Hydebrae Private Hospital in the amount of $2,035.00. Although he did not pay this hospital account, the Solicitor corresponded with the accountants for the hospital stating that the account would be paid. The Solicitor has used trust moneys of the client for his own purpose, a breach of Section 61 of the Act. This breach was wilful. Defteros On 31 October 1990 $40,000.00 was received by the Solicitor into his trust account from the client. The purpose of the payment was to provide funds for a Family Law settlement in which the client had agreed to pay her husband the sum of $40,000.00 and to receive in return the Transfer of the matrimonial property. On 24 December 1990 the Solicitor drew a cheque on his trust account for $9,500.00 and paid that cheque into his general account. No bill of costs in this amount was rendered and no authority was given to the Solicitor to withdraw this sum from his client's funds. On 10 May 1991 the Family Law settlement took place and it therefore became necessary for the client to pay $40,000.00 to her husband. The balance in the trust ledger account was $30,500.00 and on the same day the Solicitor drew a cheque for $31,000.00 on his trust account resulting in a debit balance in the trust account of $500.00. This debit balance remained until the Solicitor deposited a cheque for $500.00 into his trust account on 25 June 1991. To make up the balance the Solicitor drew a cheque for $9,000.00 on his general account so the payment of the settlement sum of $40,000.00 was achieved. In May 1989 the Solicitor received a letter from the Legal Aid Commission advising him of a grant of Legal Aid to the client. Notes made by the Solicitor in respect of a conference with the client of 21 December 1990 with an interpreter present indicate that he informed the client that as she was working she may not be entitled to Legal Aid. The actual file note stated as follows:- "Confirming that it was not a Legal Aid matter - she is responsible for our fees - doesn't want Legal Aid - she confirms she has been working for some time - no longer Legal Aid". Notwithstanding this advice the Solicitor in May 1991 prepared a bill of costs which he submitted to the Legal Aid Office in the sum of $9,235.00 for profit costs and disbursements. The Legal Aid Office eventually assessed the bill in the amount of $2,786.10 which was received by the Solicitor on 12 February 1992 into his trust account. On the same day that amount was transferred to the Solicitor's general account. The Solicitor claims that he had the authority of the client to deduct the $9,500.00. However, he was unable to produce this authority. He was unable to explain the reason why he repaid $9,500.00. The Solicitor in withdrawing $9,500.00 from his trust account without having rendered any bill of costs or having any authority, clearly contravened Section 61 of the Act and this contravention was wilful. Chaumar On 1 May 1992 the Solicitor received into his trust account $25,000.00 being the settlement moneys in respect of a Third Party claim by the client. The client had signed an authority dated 11 April 1992 stating:- "I instruct you to settle my case for $25,000.00 which will clear me the sum of $15,632.00 after deduction of legal costs and disbursements and payment by Mr Keefe of the following amounts:- Dr Maniam - $80.00 Dr Borenstein - $428.00 Dr Koller - $150.00" The Solicitor's statement of costs and disbursement totalled $8.710.00. On 1 May 1992 the Solicitor transferred from his trust account to his general account $7,000.00 for costs and on 11 May 1992 he transferred the further sum of $2,000.00 from his trust account to his general account for costs. A further bill of costs dated 11 May 1992 for $2,000.00 was prepared by the Solicitor and found in his file. The following amounts that were to be paid by the Solicitor were not in fact paid. Dr Maniam - $80.00 Dr Borenstein - $428.00 The following disbursements included in the Statement of Costs in the sum of $8,710.00 were not paid by the Solicitor:- Interpreter - $240.00 Dr Maniam - $220.00 Dr Koller - $300.00 Dr Higginbotham - $300.00 As a consequence the Solicitor drew from his trust account $1,802.00 in excess of moneys due to him. This was a breach of Section 61 of the Act. The Tribunal finds this breach wilful. Lazos The Solicitor acted for the client in respect of a Personal Injury claim arising out of a motor vehicle accident on 20 October 1984. The matter was settled for $26,500.00 inclusive of costs. On 9 October 1987 the Solicitor issued a statement to the client accounting for the $26,500.00 and this statement showed payment to a Dr Ceramidis of treatment fees of $1,092.00. The Solicitor did not pay this amount to Dr Ceramidis until 11 May 1988 by which time Dr Ceramidis had obtained judgment against the client and was arranging for the Sheriff to levy execution. The Solicitor in cross-examination conceded that his conduct was "pretty shabby". The Solicitor also acted for the client in respect of a Workers Compensation and Common Law claim in respect of an injury which occurred on 22 October 1982. On 23 April 1990 the claims were settled and on 21 June 1990 the Solicitor transferred $17,000.00 from his trust account on account of his costs and disbursements. Complaints were made to the Law Society in respect of the non-payment of treatment expenses. The client also complained that he had not received any accounting. On 10 March 1992 the Solicitor issued a statement to the client showing profit costs as $11,750.00 whereas the amount that the Solicitor had transferred as his profit costs was $17,000.00 - an excess of $4,715.00 of the amount to which the Solicitor was entitled as profit costs. As a result the Solicitor failed to pay medical expenses (including treatment expenses) and counsel's fees although having funds for that purpose. In both these matters the Solicitor was in breach of Section 61 of the Act. In both cases the breaches were wilful. Vatikiotis (Dimitrios) On 5 September 1990 the Solicitor received into his trust account $24,000.00 settlement moneys for the client in respect of a Third Party claim. On the same day the Solicitor transferred to his general account $8,000.00 and on 27 November 1990 he transferred to his general account a further sum of $301.41. On 17 October 1990 the Solicitor wrote to the client stating that in relation to unpaid out-of-pocket expenses totalling $7,041.62 payment of these expenses was the responsibility of the Solicitor. The Solicitor failed to pay all of these out-of-pocket expenses and as late as November 1992 had entered into arrangements with certain of these creditors to pay these expenses by instalments. The Solicitor was guilty of breach of Section 61 of the Act and this breach was wilful. Sklibiosis The Solicitor acted for the client in respect of two third party claims, one in respect of an accident occurring on 6 August 1986 and the other in respect of an accident occurring on 21 January 1987. In respect of the first accident the Solicitor received into his trust account $12,500.00 being the award of $7,500.00 and agreed party/party costs of $5,000.00. From these moneys the Solicitor paid the amount of $5,453.20 for the purpose of paying disbursements and out-of-pocket expenses on behalf of the client. The Solicitor failed to pay disbursements totalling $3,665.20. In respect of the second accident the Solicitor received into his trust account $44,781.00 being the award of $37,381.00 and agreed party/party costs of $7,400. The Solicitor retained, on account of his profit costs $4,465.00 in excess of the profit costs set out in his settlement sheet of 21 October 1992. Furthermore in this settlement sheet he duplicated disbursements totalling $2,553.00. The Solicitor also failed to account for $1,000.00 which he received as costs on 31 July 1987 from the client being a Litigation Loan and no credit was given by the Solicitor to the client for this amount. In his Statutory Declaration the Solicitor conceded that his statement of 21 October 1992 was inaccurate. The Solicitor's accounting to the client in this matter is confusing and wholly unsatisfactory. In respect to the Litigation Loan the Solicitor stated that his normal practice would be to dictate a Bill of Costs of $1,000.00. He did this on all his Litigation Loan matters but on perusal of the file at the Receiver's Office he could not find such a bill. He could only say it was an office error. Despite the confusion and unsatisfactory state of the Solicitor's accounting it is clear that the Solicitor received money into his trust account for disbursements to be paid by him on behalf of the client and he failed to do so in breach of Section 61 of the Act. This breach was wilful. Amer The allegation is that the Solicitor failed to account for a Litigation Loan in the sum of $1,390.00 received into his trust account on 31 July 1987 and has withdrawn on account of costs $1,000.00 on 31 July 1987 and $390.00 on 31 January 1988. The Solicitor denies this allegation and says that it is incorrect that he failed to account for the $1,390.00 as there were bills on the file for $1,500.00 and $390.00 which he admitted should have been for $1,000.00 and $1,390.00. He says these costs of $1,390.00 were not to be credited against the subsequent Common Law costs of $3,500.00. In other words, his total Common Law costs were $4,890.00. The matter is further confused as there is an authority on the file signed by the client saying, "I acknowledge that I authorise you to pay $1,500.00 to your general account in relation to Common Law costs and I have received a bill for $1,500.00". Whilst the accounting by the Solicitor for the Litigation Loan is not entirely satisfactory, nevertheless the Tribunal is not satisfied that there was a breach of Section 61 of the Act and the Tribunal dismisses this allegation. The Law Society further alleges that in this matter the Solicitor although put in funds for the purpose, failed to pay counsel's fees and medical report fees totalling $1,617.00. The Law Society conceded that this sum should have been $1,557.00 and the evidence is clear that the Solicitor failed to pay these disbursements on behalf of the client. The Solicitor breached Section 61 of the Act and this breach was wilful. Koutsoukis On 19 December 1986 the Solicitor received into his trust account $9,205.00 being the verdict moneys awarded to the client in the District Court on 21 November 1986. On the same day the Solicitor transferred from his trust account $4,500.00 to his general account on account of costs. Also on the same day he submitted a Bill of Costs on a party/party basis to the GIO in the sum of $5,993.50 but no outline bill was sent to the client. However the Solicitor maintained that, as was his standard practice, he would have given a copy of the bill to the GIO to the client and would have said to him, "I have rendered a bill, here's a copy of the bill to the GIO." The Solicitor further stated, "On receipt of the initial cheque, as I have done in all these matters, I would take my costs as outlined in this particular bill here. I will pay the balance of it. On receipt of the next cheque from the GIO for costs there will be a final accounting to the client." The Solicitor claimed that this was a sufficient authority and a sufficient outline bill which justified him in transferring the $4,500.00. There was a further $205.00 that the Solicitor transferred from his trust account to his general account on account of costs on 31 January 1988. No bill was sent to the client to justify this transfer. On 6 April 1989 the Solicitor received into his trust account $4,024.57 from the GIO being party-and-party costs. On the following day the Solicitor withdrew this amount from his trust account by way of cheque payable to his firm. No outline bill had been given to the client. On 3 September 1990 the client complained to the Law Society that the Solicitor had not accounted to him in full for the verdict moneys received. It was not until September 1992 that the Solicitor issued a statement dated 22 September 1992 - this accounting included an amount of $2,736.07 which the Solicitor had transferred from the trust account to his general account as costs in excess of the costs and disbursements that he claimed. Nevertheless this statement disclosed that this was correctly used as a credit in another action in which the Solicitor acted for the client; consequently whilst there was a serious delay in the Solicitor accounting to his client for these moneys, they were finally properly accounted for. This matter is another example of the lack of understanding on the part of the Solicitor of his statutory and ethical duties in relation to trust moneys. In cross-examination (page 259): "Q: If that is the position, how do you justify the withdrawal of moneys for costs and disbursements from trust on the basis of a bill sent to the GIO on 19 December 1986? A: Well, that's the bill that is the justification for it, that's the bill. Q: The bill to whom? A: Well, it's the bill to the Government Insurance Office. Q: Don't you understand that, before you take money from trust, you have to render a bill to the client? A: No, I don't agree with that. Q: You don't agree with the proposition that to take money from trust for costs and disbursements you need to bill the client? A: No. The authorisation for the transfer of the moneys is contained in this bill here to the Government Insurance Office, in the initial aspect, in the initial stages, subject to a final accounting to the client." In this matter the Solicitor breached Section 61 of the Act by reason of his failure to send the client a bill before drawing his costs and disbursements from his trust account. This breach was wilful. Andonenas The Solicitor acted for the client in respect of Workers Compensation and Common Law proceedings which were settled on or about 3 September 1991 - the Workers Compensation claim being settled by redemption in the sum of $79,258.00 plus costs to be agreed and the Common Law claim for $20,000.00 inclusive of costs. A cheque for the Workers Compensation redemption, namely $79,258.00 was forwarded to the client when received on 16 October 1991. On 21 October 1991 the Solicitor received into his trust account $20,000.00 being the settlement moneys for the Common Law claim. On the same day he transferred $16,000.00 from the trust account to his general account for costs and on 29 October 1991 he transferred the further sum of $4,000.00 to his general account for costs and disbursements. On 10 December 1991 the Solicitor received into his trust account $1,429.00 being the agreed party-and-party costs of the Workers Compensation proceedings. On the same day he transferred this sum to his general account on account of costs and disbursements. In neither case did the Solicitor render any Bill of Costs to the client. In respect of the Workers Compensation costs and disbursements the Solicitor maintained that he was under no obligation to provide the client with a Bill of Costs. The Tribunal has already determined that such costs and disbursements are the costs of the client and the Solicitor has a duty to provide his client with at least an outline bill before dealing with these costs in his trust account. In respect of the Common Law costs and disbursements the Solicitor claimed the $20,000.00 was not the client's money. The attitude of the Solicitor in this matter demonstrates a lack of understanding of the duties of a solicitor both statutory and ethical when dealing with trust moneys. Miss Sayer, the Receiver, investigated the file and the accounting records of the Solicitor and found that the only disbursement paid by the Solicitor was a fee of $525.00 paid to a Dr Greenberg. A number of disbursements were outstanding and unpaid including a fee to a Mr Peter Neil of counsel for $450.00. Mr Neil had provided two letters which were put into evidence including his fee of $450.00. In the first letter dated 6 May 1994 he stated, "I wish to advise that arrangements acceptable to me have been made in respect of my account of 18 January 1993 in the sum of $450.00 submitted to Messrs Keefe & Co." In the second letter dated 14 November 1994 he stated, "At one stage there was an outstanding account in one matter but this was settled by waiver on my part a year or so ago. The amount was quite small. I do not regard Mr Keefe as being in breach of any obligation to me in respect to fees". The Solicitor when cross-examined could not remember the date when he first discussed with Mr Neil about waiving his fees but he did remember having such a discussion on 6 May 1994. This was at a date of course well after his bankruptcy and the appointment of the Receiver. The answers that the Solicitor gave to counsel for the Law Society in cross-examination regarding the fees of Mr Neil were unsatisfactory and in certain respects evasive. "Q: The money which came to you in the Common Law proceedings was your money, not the client's money? A: That's correct, the client was paid separately. Q: It was money from which you were to pay disbursements? A: Well, if payable. Q: Mr Neil was owed $450.00 wasn't he? A: No, he wasn't. Q: Why was he not? A: Because he says he wasn't. He's waived it. Q: When did Mr Neil waive the $450.00? A: I didn't know. He says he waived it. Q: Mr Keefe, he didn't waive it at the time the money came in, did he? A: I don't know that. Q: At the time when you received the $20,000.00 do you suggest to the Tribunal that you said to Mr Neil, in effect, `I've got the money in for costs now. Will you forget about your costs?', to which he said, `Yes'? A: I don't say that. I don't know. I can't remember that". The Tribunal finds the Solicitor guilty of breaches of Section 61 of the Act and that these breaches were wilful. In respect to the vast majority of these matters the Tribunal finds that the Solicitor contravened the provisions of Section 61 of the Act and that in each case the breach was wilful. It follows that The Tribunal finds the Solicitor guilty of professional misconduct. The Solicitor wilfully breached s.62 of the Act Section 62 requires (inter alia) a solicitor to keep in the case of trust money (within the meaning of S.61) - accounting records that disclose at all times the true position in relating to money received by the solicitor on behalf of another person and that these records be kept in a manner that enables them to be conveniently and properly audited and in such way as the Regulations require and prescribe. A wilful contravention of this Section is professional misconduct. Swain The facts in this matter are those which have already been stated above. The breach of Section 62 alleged was that the dishonoured cheque was not written back in the trust account records and the trust ledger account therefore did not disclose the debit balance existing in the trust account. Karavokiros The facts in this matter have already been stated above. The allegations of the breach of Section 62 are that the Solicitor did not transact through his trust account moneys received and paid to this client. The records therefore were not kept in a manner so as to disclose the true position in relation to money received by the Solicitor on that client's behalf. Furthermore the dishonoured cheque for $8,007.00 was not written back in the trust account records. Kavaris The allegation is that a trust account cheque for $1,500.00 payable to the Supreme Court of New South Wales was not entered in any account in the trust ledger. In each of these matters the Tribunal finds the Solicitor guilty of a contravention of Section 62 of the Act and the Tribunal is satisfied that these breaches were wilful. Consequently, the Tribunal finds the Solicitor guilty of professional misconduct in each of these matters. The Solicitor wilfully failed to comply with his clients' instructions Grapsas The client gave instructions to the Solicitor in writing to settle her case in the sum of $32,000.00. The Solicitor settled the case with the NRMA on the basis that the NRMA would deduct $1,262.20 on account of expenses already paid by the NRMA from the sum of $32,000.00. This agreement was set out quite clearly in the letter from NRMA to the Solicitor dated 23 June 1992. Whilst the Solicitor did query this deduction with the NRMA, the terms of the letter of 23 June 1992 are quite clear. By reason of the shortfall there were insufficient moneys to pay out-of-pocket expenses totalling $1,703.00. As at 9 July 1992 the Solicitor held in his trust account $840.80 which would have permitted him to pay part of those out-of-pocket expenses. At the date of the appointment of the Receiver by reason of the shortfall in the trust account no money was available to pay these out-of-pocket expenses. The Tribunal finds that the conduct of the Solicitor was disgraceful and dishonourable and amounted to professional misconduct. Karageorgios The client authorised the Solicitor in writing to settle a claim for party-and-party costs against the GIO on terms that she would not be liable for any outstanding medical expenses. This authority was dated 15 July 1992. The Solicitor failed to pay these out-of-pocket expenses including an amount of $1,276.00 owing to a Dr Anthony. The Solicitor denies that he had an obligation to pay these out-of-pocket expenses notwithstanding the terms of the client's authority. He says he would have honoured his obligations if the events of 18 December 1992 (that is the appointment of the Receiver) had not taken place. The Tribunal finds that the conduct of the Solicitor was disgraceful and dishonourable and amounted to professional misconduct. Kabalan The Solicitor settled Workers Compensation and Common Law proceedings in accordance with the client's written instructions of 26 September 1988. The Solicitor was instructed to pay outstanding medical account including an account of $2,473.00 to Villano Rehabilitation Centre Pty Limited. This amount has not been paid. The Solicitor said that he did not pay this account because he had paid a Litigation Loan of $1,868.77 which was the client's responsibility. Furthermore he says that the client owed him $750.00 for a personal loan. The subsequent failure to pay this account was an oversight. The Tribunal finds that the conduct of the Solicitor in this matter was disgraceful and dishonourable and amounted to professional misconduct. Rachid The client instructed the Solicitor to pay his costs and disbursements of $1,640.00 including counsel's fees of $600.00 from the proceeds of a Common Law verdict. A letter from the Solicitor to the client dated 11 April 1991 confirmed those instructions. The Solicitor did not pay the counsel's fees - $600.00 to Mr Mayell of counsel. The Solicitor relies on the statement of Mr Mayell of counsel which was annexed to a Statutory Declaration of the Solicitor tendered in evidence. This statement stated (inter alia): "Discussions between us, in relation to barrister's fees, have always been open and frank and any arrangements we have made, have been honoured by him." It is significant that Mr Mayell does not state that he was paid in whole or in part any of his fees in the matter of Rachid. The Tribunal finds that the conduct of the Solicitor in this matter was disgraceful and dishonourable and amounted to professional misconduct. Jerabek (Joan) The allegation of the Law Society in this matter is that by a document dated 5 November 1992 (correct date believed to be 5 November 1991) the Solicitor received written confirmation of oral instructions to settle certain proceedings upon terms which included; "Mr Keefe to pay all outstanding medical expenses". Notwithstanding those instructions the Solicitor failed to pay medical accounts totalling $1,235.00 including an account of a Dr Kellerman of $705.00. Whilst the evidence is clear that these medical accounts were not paid by the Solicitor, the Tribunal is not satisfied that these accounts necessarily formed part of the outstanding medical expenses referred to in the document of 5 November 1991. The Tribunal therefore dismisses this complaint. Hadchiti The facts have already been set out in this matter under the Section 61 allegations. The Tribunal finds that the Solicitor failed to comply with the client's instructions to pay out-of-pocket expenses totalling $4,208.90. The Solicitor's conduct in this matter was disgraceful and dishonourable and amounted to professional misconduct. Giddins The allegation of the Law Society is that the Solicitor settled certain Common Law proceedings upon instructions from the client that she was to receive clear to herself the sum of $9,000.00 after deduction of costs and disbursements. The Solicitor paid the client $9,000.00. There was an outstanding account to a Dr M Giblin in the sum of $642.00. The account was found by the Receiver in the file. The Solicitor disputes that he was to pay this out-of-pocket expense. It is not clear from the evidence that the instructions were in fact to pay this account. The Tribunal is not satisfied this complaint has been made out and therefore this complaint is dismissed. Chaumar On 11 April 1992 the client instructed the Solicitor in writing to settle her case for $25,000.00 from which sum the Solicitor was to pay certain out-of-pocket expenses including Dr Maniam - $80.00 and Dr Borenstein - $428.00. The Solicitor received the $25,000.00 into his trust account and failed to comply with the client's instructions to pay Dr Maniam and Dr Borenstein. It is remarkable that counsel for the Solicitor made the following submission in this matter: "The fact that service providers were not paid at all is a direct consequence of the Solicitor's practice being placed in Receivership and the fact that he was no longer in a position to honour the arrangements with service providers". This submission is baseless. The Receiver was appointed some seven months after the Solicitor was in funds to pay these out-of-pocket expenses. It is a matter of record that the Solicitor in this matter transferred the $7,000.00 on account of his costs and disbursements on the same day that he received the $25,000.00 into his trust account. The Tribunal finds that the conduct of the Solicitor in this matter was disgraceful and dishonourable and amounted to professional misconduct. Hejna In this matter the Law Society alleges the Solicitor settled proceedings for the client whose authority in writing stated (inter alia), "I understand that I will receive $13,000.00 clear after deduction of costs and disbursements." The Solicitor retained $7,000.00 from the proceeds of the settlement but did not pay all outstanding costs and disbursements. Treatment expenses of $2,505.92 (Campbelltown Private Hospital - $730.00 and Dr P.E. Giblin - $1,775.92) were not paid by the Solicitor out of the settlement moneys and the Law Society claims that these out-of-pocket expenses should have been paid as part of the costs and disbursements to be deducted by the Solicitor. The Tribunal is not satisfied on the evidence that the client authorised the deduction of these out-of-pocket expenses from the settlement moneys and consequently dismisses this complaint. Vatikiotis (Helen) In this matter the Law Society alleges that the Solicitor settled proceeding upon terms which provided that the client would receive $15,000.00 clear to her but that the Solicitor, although retaining funds for the purpose, failed to pay disbursements and out-of-pocket expenses. The authority from the client to the Solicitor to settle her case did not spell out that she was to receive $15,000.00 after deduction of all payments of costs and disbursements and out-of-pocket expenses. The Tribunal is therefore not satisfied that the Solicitor failed to comply with his client's instructions. It is to be noted, however, that the Solicitor did assume responsibility for the payment of out-of-pocket expenses totalling $4,372.89 in a letter to the client of 17 October 1990 - settlement moneys having been received into the trust account of the Solicitor and disbursed on 20 August 1990. The Tribunal dismisses this complaint. Sklibiosis The facts in this matter are set out in the Section 61 allegations above. The Law Society has not been specific in this allegation that the Solicitor failed to comply with his client's instructions. The Tribunal dismisses this complaint. The Solicitor charged twice for the same work Kabalan The Solicitor rendered the client an interim statement of costs dated 15 July 1987 in respect of certain Common Law proceedings in the District Court. The costs were stated to be for work done in the matter including taking original instructions, filing the Statement of Claim and all other work up to 15 July 1987 - the costs charged being $1,500.00. In his Statement of Costs dated 28 September 1988 rendered to the client the Solicitor charged $4,000.00 (without any previous reference to the previous $1,500.00 charged on 15 July 1988) for work that he described as being "acting in this matter, including taking original instructions, attending to preparing, drawing and engrossing Statement of Claim in the District Court, attending to filing and service of same...". The Solicitor in explanation says that the Bill of Costs for $4,000.00 was supposed to be for work done since the bill for $1,500.00. In this matter the Tribunal finds that the conduct of the Solicitor amounted to unsatisfactory professional conduct. The Solicitor breached an undertaking to the court Pappas The facts have already been stated. One of the terms of the settlement for the infant Joanna Pappas was an undertaking by the Solicitor to the Court to pay $1,087.00 to Dr Segelov. Although put in funds for that purpose, the Solicitor did not pay the $1,087.00 or any part thereof to Dr Segelov. The only explanation given by the Solicitor was that it was "obviously a mistake". The Tribunal finds that the conduct of the Solicitor in breaching this undertaking to the Court was disgraceful and dishonourable and amounted to professional misconduct. The Solicitor breached an undertaking to another solicitor Jerabek (Joan) In about April 1987 the Solicitor took over the conduct of proceedings on behalf of the client from Doran Roberts & Co, Solicitors. Doran Roberts & Co rendered a Bill of Costs in the sum of $992.00 for their costs and disbursements to date. In a letter dated 28 April 1987 the Solicitor informed Doran Roberts & Co that the client had agreed with the costs and disbursements. In a further letter dated 21 May 1987 the Solicitor stated as follows:- "We undertake to pay your costs and disbursements as agreed on settlement. We look forward to receiving your file in this matter". Upon settlement the Solicitor received sufficient funds to honour his undertaking to Doran Roberts & Co but failed to do so. In a Statutory Declaration the client stated, "I always objected to the account from Doran Roberts for their work done for me prior to my instructing Stanley Gerald Keefe. I at no time instructed him to pay $992.00 to Doran Roberts as I considered this amount excessive." The Solicitor in evidence stated that he quite definitely had instructions to dispute the Doran Roberts assessment of costs. When he wrote the letter of 28 April 1987 those were his instructions. The Solicitor either gave his undertaking with or without instructions to do so by the client. The fact remains that he gave that undertaking in writing and failed to honour it. The Tribunal finds that the conduct of the Solicitor was unsatisfactory professional conduct. Conclusion Although it was not directly put into evidence it is a matter of record that the Solicitor was admitted in 1969 and had for many years up until December 1992 practised as a sole practitioner. In the late 1980's until December 1992 the Solicitor had an extensive litigation practice in respect of Workers Compensation and Personal Injury claims. At the time of the matters the subject of the Complaint the Solicitor was therefore an experienced litigation solicitor. The Law Society led evidence to suggest that in the latter half of 1992 the Solicitor was experiencing financial difficulties including difficulties with his bank and his landlord. The Solicitor on the other hand complained that had it not been for the appointment of the Receiver, he would have been able to pay many of the unpaid disbursements as at about that time he was planning to sell his practice for an amount well in excess of his outstanding liabilities. In its deliberations the Tribunal has not considered this evidence of either the Law Society or the Solicitor to be relevant to any significant degree. The Tribunal has found the Solicitor guilty of professional misconduct in a large number of matters and guilty of unsatisfactory professional conduct in other matters. The primary consideration of the Tribunal in a case such as this, is to protect the public by preventing a person unfit to practise from holding himself or herself out to the public as a legal practitioner in whom members of the public might repose confidence. The Tribunal must also act so as to deter in the future any other practitioner minded to behave in a like manner. In the case of a solicitor these elements together or separately may call for the removal of the solicitor's name from the Roll or the imposition of a substantial fine. (See Sheller, JA in re the Law Society v Bannister (LPDR No. 4 1993 at 28)). In the present case, the evidence clearly discloses that the Solicitor is unfit to practise and that he should be prevented from so doing. The appropriate order is therefore that his name be removed from the Roll. Orders The Tribunal orders that:- 1. The name of Stanley Gerald Keefe be and the same is removed from the Roll of Solicitors in New South Wales. 2. The costs of the Law Society be paid by the Solicitor, such costs to be assessed as if assessed by a Supreme Court Cost Assessor on a solicitor/client basis. 3. If the parties cannot agree on the quantum of those costs either party to have liberty to apply to the Tribunal to determine the amount of those costs. 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.