The Legal Services Tribunal of New South Wales CITATION : Barry John Penfold [1997] NSWLST 23 PARTIES : Barry John Penfold FILE NUMBER(S) : of 1996 CORAM: Mr C. Vass (Presiding Member) - Mr R. Fox - Mr J. O'Neill CATCHWORDS: Professional Misconduct - breach of s. 61 of the Legal Profession Act - Professional Misconduct - misappropriate trust moneys/moneys :- LEGISLATION CITED: Legal Profession Act 1987 Law Society of New South Wales -v- Bannister (1993) 4LPDR 24 at 28; Macaulay (30 NSW WN at page 193); Lenehan (77 CLR 403); Law Society of New South Wales -v- Foreman) (1994 34 NSWLR 408) ; in Raden -v- The Law Society of New South Wales (unreported); CASES CITED: Law Society of New South Wales -v- Jones (Court of Appeal Unreported 27 July 1978 at P10) ; Dupal -v- The Law Society of New South Wales (Court of Appeal Unreported 26 April 1990); Jauncey -v- The Law Society of .New South Wales unreported NSW Court of Appeal 01/02/1989; Ziems -v- The Prothonotary (1957) 97 CLR 279; Dawson -v- The Law Society of New South Wales an unreported decision of the Court of Appeal on 21 December 1989; Law Society -v- Jones DATES OF HEARING: 24 June 1997 DATE OF JUDGMENT: 09/25/1997 LEGAL REPRESENTATIVES: Mr. L. Pierotti. Mr. J. Watts JUDGMENT: Solicitor banked client's cheque for the sum of $6,000 in his own Credit Union account and used approximately $1,000 of the money to meet firm's wages and also paid a sum of $1,500 into his firm's office account as a capital contribution. Solicitor repaid all moneys taken from the client, solicitor reported the taking of the cheque to the Law Society seven months after the event. Solicitor guilty of professional misconduct under the General Law and under section 61 of the Legal Profession Act. Solicitor suspended from practice for two years and then restricted practising certificate for further three years and solicitor to pay the Law Society's costs. Information By information dated 23 December 1996 filed in the Tribunal on 21 January 1997 the Council of the Law Society of New South Wales ("the Society") complained that Barry John Penfold ("the Solicitor") was guilty of professional misconduct. The grounds on which the complaint was made were: 1. The Solicitor misappropriated the sum of $6,000.00 of his client's funds. 2. The Solicitor wilfully breached Section 61(1)(b) and Section 61(2)(a) of the Legal Profession Act 1987. Particulars of the grounds of the complaint were set out in an annexure to the information and they are: In respect of the First Complaint: (a) In 1992 the wife of Mr. Imre Vass ("Mr. Vass") died leaving her half of their home and joint belongings to her sister Mrs. Mamula. Mrs. Mamula took furniture from the home and commenced action to sell the home. (b) In early 1993 Mr. Vass instructed the Solicitor to take over from Mr. Caristo, Solicitor, the conduct of proceedings involving him and his sister-in-law in relation to the Estate. (c) In April 1995 Mr. Vass borrowed $7,000.00 from the Commonwealth Bank at its Penrith Branch. He retained $1,000.00 and obtained a bank cheque for the balance of $6,000.00 payable to the Solicitor ("the cheque"). He took the cheque to the Office of the Solicitor's then firm, Cormack Partners ("the firm") and gave it to the receptionist. At that time he did not see the Solicitor. (d) The firm maintained a book entitled "Cheques Received on Behalf of Clients" ("the book"). The book indicates that a cheque was received on 18 April 1995 in the sum of $6,000.00 payable to the Solicitor. That a cheque was placed in a container maintained for the purpose of holding third party cheques. The book would then contain a notation when the cheque was otherwise dealt with. (e) Some time after 18 April 1996 the firm's bookkeeper brought to the Solicitor's attention the fact that the cheque was no longer in the container but had not been signed for in the book. The Solicitor then made various notations in the book. (f) The matter file contains an original receipt dated 21 April 1995 made out to the client however, the receipt is not of a type and number series which relates to the firm's trust account or office account. (g) Mr. Vass did not instruct the Solicitor that he could use the moneys for his own purposes. (h) The Solicitor, as at 24 April 1995, held an account with the Community First Credit Union ("the account"). On 24 April 1995 the Solicitor deposited the cheque into the account. Prior to the deposit the account was in overdraft as to $2,012.86. The account had a credit limit of $2,000.00. (i) The moneys from the cheque were, in part, used to make capital repayments and to meet the firm's wages. In respect of the Second Complaint: (a) The Solicitor as at 24 April 1995 held an account with the Community First Credit Union ("the account"). On 24 April 1995 the Solicitor deposited the cheque into the account. Prior to the deposit the account was in overdraft as to $2,012.86. The account had a credit limit of $2,000.00. (b) The Solicitor failed to bank the cheque into a trust account in New South Wales and as required by Section 61(2)(a) of the Legal Profession Act, 1987. Reply - admission of facts The Solicitor in his Reply to the Law Society's Information admitted grounds 1 and 2 of the complaint, and the better and further particulars, however the Solicitor sought leave to refer to the Statutory Declaration filed on his behalf in further clarification and explanation of those admissions. That Declaration was dated 7 April 1997 and was filed on 16 April 1997. In the Statutory Declaration the Solicitor states that while he was a partner in the firm known as Cormack Partners in April of 1993 he had received instructions to act for Mr. Vass in an action against the Administrator of his wife's Estate who it was alleged had stolen some furniture and other property belonging to Mr. Vass. He stated that on or about 18 April 1995 Mr. Vass dropped a cheque for $6,000.00 into the Partnership's office. The Solicitor was away at the time. His Declaration stated that he had no recollection of any prior advice from Mr Vass either in relation to or to the effect that the cheque was to be delivered. The Solicitor's office kept a book which recorded cheques which had been received, which were either payable to third parties or could not readily be identified. The cheque with the entry book was placed in a box and the Solicitor stated that on 21 April 1995 he removed the cheque from the box where it had been kept and deposited it into his personal bank account with the Community First Credit Union on 24 April 1995. In paragraph 13 of his Declaration the Solicitor said that he could remember Mr. Vass coming to the office soon after the cheque was received, telling the Solicitor that he had dropped a cheque into the office and saying that "the $6,000.00 is for the Mamula matter". Mr. Vass also at that time asked the Solicitor to make the loan repayments for him, and gave the Solicitor his loan repayment book for that purpose. The Solicitor says that Mr. Vass also indicated that he might want the Solicitor to give him some money for jobs around the house. In relation to the money the Solicitor stated that on 27 April 1995 he drew two cheques on his personal account, one for $619.89 and one for $301.55 which were used to pay off salaries. He acknowledged also that on 1 May 1995 he paid a cheque for $1,500.00 into the office account as a capital contribution because the practice was short of funds. The further evidence in relation to the disposal of the moneys is stated in paragraph 16 of the Solicitor's Statutory Declaration as follows: "After 24 April 1995 I paid several amounts either to Mr. Vass or for amounts owing by him. They were paid either from my Credit Union account or from an account with the Commonwealth Bank." There was then annexed a Schedule which set out the amounts the Solicitor had paid. In that paragraph he then went on to say: "After this matter came to light my solicitor, Mr. Watts corresponded with Mr. Vass' then solicitors, John Cram & Son and on 2 January 1996 I paid a further amount of $3,496.00 which meant that the full amount had been repaid to Mr. Vass." The Schedule details the following payments having been made: 1. 4 loan repayments @ $241.00 $964.00 2. Cash paid to Mr. Vass $100.00 3. Paid to Cormack & Partners on account of Mr. Vass' costs $150.00 4. Cash paid to Mr. Vass $100.00 5. Cash paid to Mr. Vass $20.00 6. Cash paid to Mr. Vass $170.00 7. Paid to Cormack & Partners in part payment of an outstanding account dated 22 June 1995 $700.00 8. Paid for Soil Delivered to Mr. Vass' home $500.00 9. Paid to John Cram & Sons $3,496.00 Total: $6,200.00 Solicitor's explanation In his Declaration the Solicitor said that during the period of time when he took the cheque for $6,000.00 he was under enormous emotional stress and felt significantly depressed. Prior to taking the cheque, the Solicitor and Mr Cormack had borrowed heavily to build a building and they had three mortgages totalling $355,000.00 and in addition the practice had a fully drawn advance from the Commonwealth Bank of $180,000.00 and an overdraft facility of $80,000.00. The Solicitor also had a mortgage on his home for the sum of $112,000.00. The development was completed in 1994 and he states that thereafter the practice experienced financial difficulty and he did not have sufficient cash flow in order to properly meet his commitments and to maintain his family. Subsequent to the taking of the cheque, the Solicitor (on 24 November 1995) attended the Law Society and informed the Law Society of the taking. Since November 1995 the Solicitor has been consulting Dr. Kenneth Henson, a Consultant Psychiatrist. The Solicitor became bankrupt on 14 January 1997 and did not renew his Legal Profession Practising Certificate which expired on 30 June 1996. The Solicitor indicated that he had never acted dishonestly. prior to the taking of the subject cheque and he said that when he took the cheque he had significant feelings of guilt. They are feelings that he would never want to have again. He says he still feels guilty about what he had done and about the people he had let down including Mr. Vass and his family. He states that since receiving treatment from Dr. Henson, he has feelings of greater personal strength and says that he has learnt an enormous amount about financial management and coping with stress. He says that he never again will allow problems to develop to the stage where he feels that he cannot cope and that if he had any significant problem in the future he would seek appropriate professional help immediately. The Tribunal notes that in the last paragraph of his Statutory Declaration he expresses sincere sorrow and contrition for what he had done. Taking into account the admissions made by the Solicitor in his Statutory Declaration and in the Reply and also taking into account that when Mr. Watts opened his submissions he said: "There is no issue and there never has been any issue that the conduct by Mr. Penfold was dishonest, was wilful and amounted to professional misconduct," the Tribunal has no difficulty in finding that the conduct of the Solicitor constitutes professional misconduct under the general law and under Sections 61(1)(b) and 61(2)(a) of the Legal Profession Act 1987 and further that those Sections have been wilfully breached. The consequence of this finding is that the Tribunal has to determine what penalty should be imposed and the other orders which should be made under Section 171C of the Legal Profession Act. The Tribunal notes that its jurisdiction is protective and not punitive. Shellar JA said in Law Society of New South Wales -v- Bannister (1993) 4LPDR 24 at 28: "When the jurisdiction of the Tribunal is invoked under Part 10 Division 7 of the Act to conduct a hearing into a complaint of professional misconduct by a legal practitioner, the primary consideration 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 the offender in the future and any other practitioner minded to behave in 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." Mr. Pierotti sought from the Tribunal an order that the Solicitor's name be removed from the rolls and in support: (a) Submitted that in the case of ex parte Macaulay (30 NSW WN at page 193) Street CJ was of the view that once a solicitor had been proved guilty of theft and his name had been struck off the rolls, the Court will not except in very exceptional circumstances restore it. His submission is that once found guilty of such conduct, there is an automatic presumption of unfitness, and (b) Referred to ex parte Lenehan (77 CLR 403). In that report, there is at page 422 in the joint Judgment of Latham CJ, Dixon J and Williams J a reference back to Macaulay's case. It is stated: "The two cases of ex parte Macaulay properly emphasise the great importance of financial integrity in a solicitor, but they should not be regarded as laying down a rule of law that a solicitor that has been struck off the roll for pecuniary dishonesty cannot be reinstated and that an applicant for admission who has been guilty of a similar act cannot be allowed to proceed unless it is shown that there were some exceptional circumstances in the original offence." Mr. Pierotti went on to submit that the evidence did not reveal any exceptional circumstances. On behalf of the Law Society, Mr. Pierotti then referred the Tribunal to authorities on what might be described as the "pressures of practise" and how those pressures should not affect the Tribunal. He referred to the Judgment of Mahony J. in the Foreman case (Law Society of New South Wales -v- Foreman) (1994 34 NSWLR 408) in which his Honour said at page 445: "It is relevant also to bear in mind that some of the pressure to which she referred was not different in kind - whatever be the position as to degree - from the pressure to which other solicitors are subjected when practising in large firms. It is proper to infer that other solicitors in large or medium sized firms are pressed to work hard, to procure the prompt and early payment of costs, to obtain special agreements as to costs and to produce costs to budgets fixed in advance. One may understand the effect of such pressures without accepting that they mitigate significantly the falsification of documents which took place in this case." It was conceded that the Foreman case was obviously different to that of this Solicitor, but proposed that financial pressures are not unknown to practitioners, especially smaller practitioners and smaller firms. As he developed his submission Mr. Pierotti referred to the decision of the Court of Appeal in Raden -v- The Law Society of New South Wales (unreported) which was delivered on 14 May 1997. At page 17 of the Judgment the Judges refer to the decision of Street CJ in Law Society of New South Wales -v- Jones (Court of Appeal Unreported 27 July 1978 at P10) where His Honour said that: "Reliability and integrity in the handling of trust funds are fundamental pre-requisites in determining whether an individual is a fit and proper person to be entrusted with the responsibilities belonging to a solicitor." Their Honours agreed with that statement and then went on to refer to Dupal -v- The Law Society of New South Wales (Court of Appeal Unreported 26 April 1990) in which Kirby P at P3-4 said: "The researchers of neither Counsel before the Court could produce a single case in which following a finding of misappropriation of trust funds or wilful contravention of Section 41 (1) of the (Legal Practitioners Act 1898) Act, the Court had not proceeded to remove the name of the practitioner concerned from the roll of practitioners ... (the) normal consequence of the misuse of entrusted funds by a solicitor, and a finding of wilful breaches of the statutory prohibition in that regard, is removal of the name of the solicitor from the roll." It transpires that there was in fact a precedent, as Mr. Pierotti pointed out, and that was the decision of the Solicitor's Statutory Committee in the matter of Colin Walter Peck (1980). In that case the Solicitor was suspended for two years from the date of judgment. In the later decision of Dupal -v- The Law Society of New South Wales Kirby P referred to Peck's case at page 3 where his Honour says: "That was a case where a solicitor, who inherited his father's practice on his retirement, experienced severe financial difficulties when, for want of new instructions the outgoings came to exceed the income. To "keep functioning" he withdrew various amounts from his trust account which he was unable to make good from his own resources. There was a deficiency in his trust account of almost $2,750.00. He himself drew this to the notice of the Law Society. He disclosed a number of health problems and had numerous character witnesses." His Honour went on to say: "I regard the decision in Peck, which is not a decision of this Court as wholly exceptional. True, each case must depend upon its unique facts. But for the reasons which I have stated, the normal consequence of the misuse of entrusted funds by a solicitor, and a finding of wilful breaches of the statutory prohibition in that regard, is removal of the name of the solicitor from the roll." In concluding, Mr. Pierotti's submission was that the Tribunal's duties are as set out in Raden's case and that the Solicitor's conduct must attract the ultimate sanction from the Tribunal. In relation to the evidence, Mr. Pierotti made the point that when the Solicitor disclosed the taking of the cheque to the Law Society, it was seven months after the event. He also made the point that there is no evidence of the Solicitor's state of mind at the time that the conduct occurred. Mr. Watts on behalf of the Solicitor submitted that when "one considers the evidence in this case and considers the cases to which Mr. Pierotti has referred, this would be one of those unusual cases where a suspension would be appropriate". He referred to the decision of Jauncey -v- The Law Society of .New South Wales which is an unreported decision of the New South Wales Court of Appeal of I February 1989. In that matter the solicitor's name had been removed from the Roll of Solicitors by the Solicitor's Statutory Committee and the solicitor appealed on the grounds that fresh evidence demonstrated that the order was inappropriate. The fresh evidence concerned his psychological condition at the time he misconducted himself and his work with the Aboriginal Legal Service following the order of the Statutory Committee (which was stayed by consent). The Court dismissed the appeal but Mr. Watts referred to the minority decision of McHugh JA, who said: "I have not overlooked the great importance to the administration of justice that a legal practitioner must be a person who can command the respect and confidence of Judges and Magistrates, members of the profession and the public generally. I think that a reasonable person knowing the circumstances of the Appellant's depressive illness and the opinion of Dr. Maguire would not think him unworthy of respect and confidence. In Ziems -v- The Prothonotary (1957) 97 CLR 279 a majority of the High Court saw no difficulty in permitting a barrister to resume practise immediately after he was released from prison after serving a jail sentence for manslaughter." Mr. Watts also referred to the Judgment of Clarke JA in the Jauncey matter where at page 7 his Honour says: "The jurisdiction exercised by both the Statutory Committee and the Court in relation to discipline of solicitors is protective in nature. It is not punitive. The critical question is whether the evidence demonstrates that the appellant is unfit to practise as a solicitor. If unfitness is demonstrated then, in my opinion, it will be a rare case in which the Court does not order a striking off, or at least a suspension of the solicitor. This is simply because it would be inconsistent with the need to protect the public against the dangers of unfit persons being held out as solicitors to allow a person who has been proven unfit to continue in practise." Later in that Judgment his Honour went on to say: "... that an order for suspension may be appropriate in limited circumstances. This is more likely to arise in cases where an order is made long after the misconduct which demonstrated unfitness occurred and a meritorious degree of rehabilitation extending over the interval between misconduct and the hearing of the case has been shown." The point was made that Mr. Penfold's dishonesty was not compounded, in that there had been complete candour in his disclosure to the Law Society and that he had been genuine and honest and straight forward in the manner in which he gave evidence to this Tribunal. Next, Mr. Watts referred the Tribunal to the decision of Dawson -v- The Law Society of New South Wales an unreported decision of the Court of Appeal on 21 December 1989. That case involved an application by the solicitor to be reinstated, having been struck off the roll some years before, and Kirby P was prepared to allow the solicitor to be re-admitted. The majority however found that the Solicitor had not affirmatively established on solid and substantial grounds that his name should be restored. It was Mr. Watts' submission that the fact that the client has not lost money is a matter to take into account when considering at the fitness of the solicitor to keep his practising certificate and stay on the roll, and relied upon the statement by Kirby P when his Honour said: "One specific consideration which Courts have taken into account is the endeavour of the claimant to restore confidence in himself and the legal profession by taking appropriate steps to reinstate the clients, if any, whom have lost as a result of the found misconduct." The Tribunal accepts that the Solicitor's restitution is one of the matters which cannot be ignored in its deliberations. The Tribunal also remains mindful of those matters, which although raised in the Solicitor's favour, in fact remain equivocal: (a) There was an immediate course taken by the Solicitor to effect repayments and by the time seven months had passed, a substantial amount (slightly less than half) of the funds had been repaid to either the client or at the client's direction. Of course had these payments not been made the theft would have been promptly discovered. (b) The Solicitor voluntarily disclosed the theft to the Law Society, but, the day of discovery was not far away and that was clearly known to the Solicitor. What then is to be said in favour of the Solicitor to place him in that rare class of those who have demonstrated dishonesty in their financial dealings with their client and yet are to remain on the roll? Taking into account the following facts: 1. The theft was a theft of a relatively small amount, although $6,000.00 was misappropriated, less than $2,500.00 had been paid by the Solicitor to his own purposes, 2. There was no compounding of that theft by other thefts from other clients to make good the theft from the first client, 3. By the day of confession almost half of the amount had been repaid and the remainder of the debt to the client was paid within a further eight months, 4. The Solicitor has satisfied the Tribunal of his genuine remorse, 5. The Solicitor is bankrupt and virtually unemployed; he had previously been-able to make no reserve provisions for his family; the family home has been sold and his personal life and that of his family is deeply affected, the Tribunal is inclined to ask the question, as did James QC in the matter of Jauncey, "should the Solicitor be given a sentence of 'professional death'"? It is clear that, if our task be merely punitive, then there would be no question of what the Tribunal would wish to do. The Solicitor has already been severely punished in a financial, personal and professional sense, and further punishment would seem to serve little purpose. But the law is that the public must be protected and the various decisions quoted to the Tribunal in argument are replete with those observations. The closing words of the Judgment of Starke J. in ex parte Lenehan at page 431 are as clearly in point as any. His Honour, having resolved that Lenehan (contrary to the majority decision) should not be re-admitted, observed that the New South Wales Supreme Court was right in concluding that: "it would be guilty of a dereliction of duty if it were to admit the appellant, tainted as he is, as a fit and proper person to be enrolled as a solicitor of the Court and to stand in the ranks of an honourable profession to whom the public might resort or assist in the conduct and management of their affairs with confidence and security". The cases generally relate to applications to restore to the roll the names of solicitors who have been struck off for a number of dishonest acts (often compounding) and are distinguishable from those few where there has been an instance of a simple theft of a relatively small amount being (mostly) self confessed. The previously referred to case of ex parte Macaulay is in point where the Chief Justice, in refusing Macaulay's application, he having been struck off for "gross dishonesty", said at page 194: "it has not been suggested that he took this money without premeditation, and to meet some emergency. There are no elements of excuse that I can see; he simply proved that he was dishonest in dealing with his client's money". Admitted that being dishonest with his client's money is a charge which lies at Mr. Penfold's feet, and admitted that his continuing for seven months to retain that part of the funds which he had not spent to his own purposes does him no credit, it can properly be said in his defence that he took the money without premeditation and. to meet an emergency. In the matter of the Law Society -v- Jones, also previously referred to, a predecessor of this Tribunal resolved in 1978 to only suspend a solicitor who had been found guilty of several thefts of substantial sums which trailed through a series of transactions, and involved the taking of monies from three different clients over a period of six months, and further involved a lying to trust account inspectors. In reversing the decision of the Tribunal, the Chief Justice said at page 11: "members of the public, many of them highly inexperienced and unskilled in matters of business or of law, inevitably must put great faith and trust in the honesty of solicitors in the handling of money on their behalf. The Court must ensure that this trust is not misplaced. It is in the recognition of this duty upon the Court that I have reached a conclusion that the finding of the Statutory Committee in this case fell short of what was required in the light of the repeated and long standing fraud and the subsequent conduct of the present respondent". Mr. Penfold cannot be said to have committed either repeated or long standing defalcations, nor did his subsequent conduct compound the wrong in a manner which would allow it to be so criticised. The true test to be applied was highlighted in the matter of Peck, when, in its decision, the Tribunal at page 5 relied on words attributed to Reynolds J. and Marney J. in the matter of McNamara: "once one arrives at a finding that the Solicitor is not a fit and proper person, then the only orders which the Committee can choose between properly speaking are orders striking the Solicitor off the roll or suspending him, but even a suspension order must be on the basis that after a period of suspension the Solicitor will be a fit and proper person" and the Committee went on to find that "after a period of suspension, (the Solicitor) will be a fit and proper person to practice as an employed solicitor". Mr. Peck's theft was of an order of less than $2,750.00 and resulted from financial necessity in a failing practice. Further guidance is found in the words of Clarke JA in the Jauncey matter when his Honour adopted the words above quoted of the New South Wales Court of Appeal in the matter of Jones and went on to say at page 8: "that statement is wholly appropriate to this case, in addition it should not be overlooked, that he (Jauncey) compounded his dishonesty in two ways. Firstly by his lack of candour when the matter came on for hearing before the Statutory Committee ... secondly, by the grossly negligent manner which he kept his trust account when understood in the light of his tendency to prefer his own interest when there was a conflict between those interests and those of his client". This Solicitor has been candid, and his preference of his own interest over that of Mr Vass, (albeit continued) in one instance, cannot be said to amount to a "tendency", the evidence is that this was one isolated instance of a course of dishonest conduct which cannot be properly described as "prolonged". The Tribunal respectfully agrees with the comment made at page 7 by the President of the Court of Appeal in the matter of Dawson: "In the case of some offences, committed over an extended period with deliberate intent and resulting in severe losses by clients, it would be very difficult to contemplate any circumstances in which the name of the offender will be restored to the roll. But where the offences are isolated, where there is no evidence of prolonged deliberate conduct, and where, to the full extent possible in the circumstances, the funds of clients are being restored so that there is no eventual pecuniary loss, the public interest which this Court protects includes the public interest, certain matters being affirmatively approved, in the restoration of the name of the practitioner to the roll". In addition to the obvious benefit to the community which flows from early confession and full restitution, there is public benefit in a clear demonstration to the profession that a single slip from the right path (even if that slip is an act of theft), if made good, not compounded, and expeditiously admitted, does not inevitably mean professional death, because that may mean that those who have given in to temptation may be encouraged to confess and make restitution, rather than start on the more deeply dishonest and devious course of "robbing Peter to pay Paul". The moral courage demonstrated by timely confession is one of the pointers to a character which is not so flawed that it cannot be redeemed. In an appropriate case, where the choice may be between suspension and striking off, the Tribunal is of the view that the inevitable difficulties placed in the path of restoration of a solicitor who has been struck off, are matters relevant for consideration. As Kirby P. remarked at page 6 in the matter of Dupal (a solicitor who was not fit to practice because his theft ((from his sister)) was compounded by a taking from another client to make good the theft from the sister, and involved various other deceptions, and, although restitution was effected, it took more than 3 years) "if a Court is of the opinion that a practitioner is not probably permanently unfit to practice again, it should pause before ordering removal of the practitioner's name from the roll. It should consider the appropriateness of suspension" . Suspension was not appropriate for Dupal but it is appropriate for this Solicitor; the difference in the gravity of their offences and the established contrition points to the fact that Mr. Penfold is "not probably permanently unfit to practice again". There are further proper indications in that regard in the Statutory Declarations of various solicitors and barristers filed in evidence for the Solicitor, attesting to their very high regard for the Solicitor's integrity, despite the disclosure to them of the failing which has brought the Solicitor before this Tribunal. Of course the Tribunal does not condone the Solicitor's act of dishonesty and he is properly held up to his peers for castigation, and that is part of his punishment. The protection of the public does not require striking off for this Solicitor; having taken particular notice of the frank evidence of the Solicitor himself, and that of Dr Henson, the Solicitor's treating psychiatrist, we are satisfied that the Solicitor is a person who, faced with the same financial and professional difficulty today, would take a very different course. In other words, his character is not so flawed that he cannot be trusted again, and indeed is unlikely to ever again fail to adhere to the high standards of integrity and honesty which the community rightly expects of its legal profession. The protection of the public is achieved by a substantial period of suspension and the placement of conditions thereafter. The Tribunal notes that the Solicitor does not currently hold a practising certificate. The Tribunal makes the following orders: Orders 1. A Practising Certificate shall not be issued to the Solicitor until the end of a period of two years from the date of this Order. 2. Any Practising Certificate issued as provided for in Order I hereof shall be restricted to provide that the Solicitor cannot practice as a principal (either alone or as a partner in a firm) for a period of three years from the date of the issue of the Practising Certificate. 3. The Solicitor to pay the costs of the Society and if agreement cannot be reached as to the amount of the costs either party has leave to apply to the Tribunal for determination of costs pursuant to Section 171E Legal Profession Act 1987. 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.