Legal Services Division CITATION: Law Society of New South Wales -V- O'Reilly [1998] ADT COMPLAINANT: Law Society of New South Wales RESPONDENT: Patrick Bede O'Reilly Mr A Martin (Chairperson) ( Judicial Member ) TRIBUNAL: Ms S Hale Dr P Miller GROUNDS OF COMPLAINT: Professional misconduct DATE OF JUDGMENT: 10/07/1998 Complainant: Mr N A Nicholls LEGAL REPRESENTATIVES: Respondent: Mr R Colquhoun Determination and Orders The Council of the Law Society of New South Wales ("the Society") has informed the Legal Services Tribunal ("the Tribunal") of a complaint of professional misconduct against Patrick Bede O'Reilly ("the Solicitor"). Grounds on which the complaint was made are as follows: 1. Wilful contravention of section 61(1)(a) and (b) of the Legal Professional Act 1987 ("the Act"). (Fiona Young, Henk Holdings Pty Limited, Kenneth Cooper, Norman William Goodall, John Luke, James Robert Davis, Estate of Baker, Suzanne Gabrielle Blatch and Dennis Earl) 2. Wilful contravention of section 61(2)(a), (b) and (c) of the Act. (Fiona Young, Henk Holdings Pty Limited, Kenneth Cooper, Norman William Goodall, John Luke and Dennis Earl). 3. Wilful contravention of section 61(3)(b) of the Act. (James Robert Davis, Estate of Baker and Suzanne Gabrielle Blatch) 4. Wilful contravention of section 62 of the Act. (Kenneth Cooper, Norman William Goodall, John Luke and Dennis Earl). 5. Wilful contravention of part 2, 3 and 5 of the Legal Profession (Trust Accounts and Controlled Money) Regulation 1988 ("the Regulation"). 6. Fraudulently misrepresenting to clients the position of trust monies held on their behalf. (Fiona Young, Henk Holdings Pty Limited and Norman William Goodall). 7. Fraudulently procuring authorities from clients to transfer monies from trust. (Kenneth Cooper, John Luke and James Robert Davis). 8. Altering documents, and trust and other accounting records to conceal appropriations and with intent to mislead or attempt to mislead trust account inspectors. (Norman William Goodall and John Luke). Further particulars of the grounds of this complaint are: 1. At all material times referred to in this Information the Solicitor was the principal in a legal firm carrying on practice under the name O'Reilly and Booth. 2. At all material times referred to in this Information the Solicitor acted for and in relation to the affairs of the various corporations and persons hereinafter referred to. 3. In the conduct of his practice the Solicitor managed and controlled: (1) a trust account styled "O'REILLY and BOOTH TRUST ACCOUNT", account no. 702112 at the Westpac Banking Corporation, Campbelltown Branch ("the Trust Account"); (2) (a) a general account styled "O'REILLY and BOOTH TRUST ACCOUNT", account no 70 2120 at the Westpac Banking Corporation, Campbelltown Branch ("the General Account"); (b) a general account styled "Patrick B O'Reilly General Account", account No. 032/232998 at the National Mutual Royal Bank (now the ANZ Banking Corporation), Campbelltown Branch ("the NMRB General Account"); and (c) a service company name Orcorp Pty Ltd. A. Fiona Young – Loan (pages 41, 121, 420, 421 and 747 annexures to supporting Statutory Declaration of Garry James Still; hereafter "annexures") 4. The Solicitor acted for Fiona Young in relation to the lending by Fiona Young of $57,000 or in the alternative, $55,000 to be secured by first registered mortgage over land. 5. On 7 June 1988 the Solicitor received from the client a sum of $57,000 or in the alternative, $55,000 to be deposited with a bank or building society at call and then to be lent on security of a first registered mortgage over land. 6. In contravention of section 61(a) and (b) and 61(2)(a) of the Act and Parts 3 and 5 of the Regulations, the Solicitor without any lawful authority: (1) failed to hold the monies received exclusively for the use of the client; (2) failed to disburse the monies received as directed by the client; (3) appropriated the monies to his own use. Particulars The Solicitor deposited the said sum to the Solicitor's general account on 8 June 1988. 7. Further, the Solicitor represented to the client that the said sum of $57,000 was lent or would be lent to one James Avery secured by a first registered mortgage over a property at 75 Townsend Street, Jindabyne knowing such representation to be false. Particulars (1) The representations were made by letter dated 8 June 1988 from the Solicitor to the client and the enclosures referred to therein. (2) The said sum was never advanced as represented. B. Henk Holdings Pty Ltd (Pages 60, 374, 379, 383, 390, 392, 395, 401, 402 and 488 annexures) 8. The Solicitor acted for Henk Holdings Pty Ltd in relation to the lending of funds by the company to prospective borrowers to be secured by first registered mortgage over land. 9. On 10 November 1988 and 1 May 1992 Henk Holdings Pty Ltd paid to the Solicitor $75,000 and $10,000 respectively to be advanced to Maurice and Joan Mary Ward and secured by first registered mortgage over land. 10. In contravention of sections 61(1)(a) and (b), and 61(2)(a) of the Act the Solicitor without any lawful authority: (1) failed to hold the monies received exclusively for the use of the client; (2) failed to disburse the monies received as directed by the client; (3) appropriated the monies to his own use. Particulars (a) Solicitor failed to deposit the sums of $75,000 and $10,000 to the Trust Account. (b) The Solicitor failed to advance to Maurice and Joan Mary Ward the said monies. (c) The Solicitor failed to account to the client in respect of the said monies. 11. Further, the Solicitor represented to the client that the said monies would be used as a bridging loan for clients of the solicitor and further represented that the said moneys had been advanced to Maurice and Joan Mary Ward secured by first registered mortgage over property at Lot 42 Taber Street, Menangle Park when such representation was false to the knowledge of the Solicitor. Particulars The said monies were never so advanced. C. Kenneth Cooper (Pages 42 and 886 annexures) 12. The Solicitor acted for Kenneth Cooper in relation to workers compensation proceedings. 13. On 20 December 1990 the Solicitor received on behalf of the client the sum of $135,000 representing settlement monies in the workers compensation proceedings. 14. Of the said monies received, a sum of $85,000 was transferred to the Trust Account ledger of K Cooper, Family Law, pursuant to orders made by the Family Court of Australia. 15. On 6 September 1991 a sum of $60,000 was drawn from the monies held on behalf of the client and paid to Henk Holdings Pty Ltd. 16. The said payment of $60,000 was described in the trust records of the Solicitor as a loan to Henk Holdings Pty Ltd. 17. In contravention of sections 61(a) and (b), and 61(2)(a) of the Act the Solicitor without any lawful authority: (1) failed to hold the monies received exclusively for the use of the client; (2) failed to disburse the monies received as directed by the client; (3) appropriated the monies to his own use. Particulars The said payment of $60,000 was in fact used to repay a loan of Orcorp Pty Ltd from Henk Holdings Pty Ltd. 18. Further, in contravention of section 62(1) and (2) of the Act, the Solicitor in the conduct of his practice: (1) failed to maintain accounting records in relation to trust monies that disclosed at all times the true position in relation to monies received by the Solicitor on behalf of another person; and (2) failed to maintain books and records of his Trust Account in such a manner as to enable the accounting to be conveniently and properly audited and thereby breached section 62(2) of the Act. Particulars The trust ledger of the Solicitor wrongly recorded the payment of $60,000 as representing a loan by the client to Henk Holdings when that was not the case to the knowledge of the Solicitor. 19. The Solicitor presented Mr Cooper with blank documents on which the Solicitor procured Mr Cooper's signature, and without informing Mr Cooper, later completed those documents as authorities for the transfer of trust funds in payment of costs and disbursements. Particulars On or about 16 May and on or about 16 September 1991, the solicitor presented Mr Cooper with blank documents purporting to authorise the Solicitor to deduct from funds held in trust for Mr Cooper such sum of money as was necessary to satisfy the Solicitor's costs and disbursements without disclosing the nature and quantum of the costs and disbursements. Subsequently the solicitor placed those documents on the file and in so doing placed reliance upon the documents to justify his dealings with moneys held on behalf of the client. D. Norman William Goodall (Pages 42 and 947 annexures) 20. The Solicitor acted for Norman Goodall in relation to proceedings brought on his behalf. 21. On 12 March 1991 the Solicitor received on behalf of the client $410,000 representing settlement monies of which sum $345,216.72 was, after payment of disbursements, distributed as follows: N. Goodall-Settlement Monies $282,887.62 O'Reilly and Booth-Costs and disbursements $29,961.80 Dept. Social Security-repayments $9,754.90 Goodall-further settlement monies $7,901.04 22. Following the payments referred to in paragraph 20 hereof, there remained a balance standing to the credit of the client of $14,711.36 which represented further monies required to be repaid to the Department of Social Security. 23. In contravention of sections 61(1)(a) and (b) and 61(2)(a) of the Act the Solicitor without any lawful authority: (1) failed to hold the monies received exclusively for the use of the client; (2) failed to disburse the monies received as directed by the client; (3) appropriated the balance of $14,711.36 to his own use. Particulars (a) The client instructed the Solicitor to pay the Department of Social Security the sum of $14,711.36 in or about August 1991 however the Solicitor failed to do so. (b) On 4 October 1991 the Solicitor drew trust cheque no. 353532 totalling $25,000 which sum was deposited to the Solicitor's general account on 11 October 1991. (c) Of that sum, $10,798.56 comprising part of the $14,711.36 above referred to was recorded in the trust records of the Solicitor as a payment of fees due to the Solicitor when no such fees were due or payable. 24. Further, in contravention of section 62(1) and (2) of the Act, the Solicitor in the conduct of his practice: (1) failed to maintain accounting records in relation to trust monies that disclosed at all times the true position in relation to monies received by the Solicitor on behalf of another person; and (2) failed to maintain books and records of his Trust Account in such a manner as to enable the accounting to be conveniently and properly audited and thereby breached section 62(2) of the Act. Particulars (a) The office account cash book maintained by the Solicitor recorded a payment of $10,798.66 to the Department of Social Security on 30 November 1992 when no such payment was in fact made. (b) The Solicitor's office copy of the account forwarded to the client dated 12 March 1991 recorded total costs of $35,798.56 and noted $10,798.56 as outstanding when in fact there was no such sum outstanding. 25. Further, the Solicitor represented to the client that the Department of Social Security had been paid the sum of $14,711.36 and that fees of $35,338.55 had been incurred by the client and discounted by the Solicitor to $25,000 when such representation was false to the knowledge of the Solicitor. Particulars See particulars to paragraphs 23 and 24 above. 26. Further, the solicitor altered trust and other accounting records to conceal the appropriation referred to in paragraph 22 above. Particulars It will be alleged that some point in time well after January 1992, and probably in or about December 1992, the Solicitor altered accounting records, including the client's trust ledger, and reconstructed a bill ostensibly directed to the client, so as to suggest that the Solicitor was in fact entitled to the monies appropriated. The reconstructed bill has been tendered in the proceedings at page 979 of volume 3, exhibit A. 27. Further, in or about February 1993, during the course of an investigation into the Solicitor's practice by Trust Account Inspectors appointed by the Law Society of New South Wales, the Solicitor with intent misled or attempted to mislead the Trust Account Inspectors in relation to their enquiries by presenting them with the said bill of costs dated 12 March 1991 showing an amount outstanding by the client to the Solicitor of $10,798.56 when in fact no such amount was outstanding to the knowledge of the Solicitor. E. John Luke (Pages 43 and 1040 annexures) 28. The Solicitor acted for John Luke in relation to proceedings brought on his behalf. 29. In or about August 1990 the Solicitor received on behalf of the client settlement monies which were deposited to the Solicitor's Trust Account and from which certain disbursements were paid leaving a balance of $7,658.26 standing to the credit of the client. 30. The said sum of $7,658.26 represented monies required to be repaid to the Department of Social Security. 31. In contravention of sections 61(1)(a) and (b), and 61(2)(a) of the Act the Solicitor without any lawful authority: (1)failed to hold the monies received exclusively for the use of the client; (2) failed to disburse the monies received as directed by the client; (3) appropriated the balance of $7,658.26 to his own use. Particulars (a) The client instructed the Solicitor to pay the Department of Social Security the sum of $7,658.26 in or about September 1991 however the Solicitor failed to do so. (b) On 4 October 1991 the Solicitor drew trust cheque no. 353532 totalling $25,000 made up partly of the said $7,658.26 and deposited the said cheque tot he General Account on 11 October 1991. (c) Of that sum, $7,658.26 was recorded in the trust records of the Solicitor as a payment of fees due to the Solicitor when no such fees were in fact due or payable. 32. Further, in contravention of section 62(1) and (2) of the Act, the Solicitor in the conduct of his practice: (1) failed to maintain accounting records in relation to trust monies that disclosed at all times the true position in relation to monies received by the Solicitor on behalf of another person; and (2) failed to maintain books and records of his Trust Account in such a manner as to enable the account to be conveniently and properly audited and thereby breached section 62(2) of the Act. Particulars (a) The office account cash book maintained by the Solicitor recorded a payment of $7,658.26 to the Department of Social Security on 4 December 1992 when no such payment was in fact made. (b) The deposit of $25,000 to the Solicitor's General Account was recorded as being partly comprised of fees due by the client to the Solicitor of $7,658.26 when in fact no such fees were due to the Solicitor. 33. The Solicitor presented Mr Luke with blank documents on which the Solicitor procured Mr Luke's signature and, without informing Mr Luke, later completed those documents as authorities for the transfer of trust funds in payment of costs and disbursements. Particulars On or about September 1991 the solicitor presented Mr Luke with blank documents for signature and subsequently filled in the documents purporting to authorise the Solicitor to: (1) deduct from monies held in trust for Mr Luke such sum of money as was necessary to satisfy the Solicitor's costs and disbursements; and (2) transfer to the Solicitor's General Account monies held in trust for Mr Luke in anticipation of an obligation by Mr Luke to the Department of Social Security. 34. Having procured the client's signature to the said document, the Solicitor completed the document as an authority for the transfer of $7,658.26 to the Solicitor in payment of fees when the client in fact gave no such authority and no such fees were payable. 35. Further, the Solicitor altered trust and other account records to conceal the appropriation referred to in paragraph 31 above. Particulars It will be alleged that at some point in time well after January 1992, and probably in or about December 1992, the Solicitor altered accounting records, including the client's trust ledger, so as to suggest that the Solicitor was in fact entitled to the monies appropriated. F. James Robert Davis (Pages 501 annexures) 36. The Solicitor acted for the client in relation to certain matrimonial proceedings and held trust monies on behalf of the client. 37. The Solicitor misrepresented to Mr Davis the nature and effect of a handwritten document purporting to be an authority dated 20 November 1991 ("the Authority") and thereby misled and deceived Mr Davis and procured his signature to the Authority. Particulars At the conclusion of an Order 24 Conference convened on 20 November 1991, the Solicitor presented Mr Davis with a handwritten document purporting to authorise the Solicitor to deduct from funds held in trust for Mr Davis such sum of money as was necessary to satisfy the Solicitor's costs and disbursements. Upon seeking advice in relation to the nature and effect of the document, the Solicitor misrepresented to Mr Davis that the document had to be signed by him as part of a number of documents required to be signed to record or transcribe the Order 24 Conference and to properly conclude the proceedings. 38. In contravention of section 61(3)(b) of the Act and without complying with regulation 8(3)(a) of the Regulations, the Solicitor wilfully appropriated part of the said monies as costs and disbursements without: (1) having first obtained the authority of the client; and/or alteratively (2) having delivered an outlined bill. Particulars On 17 December 1991 the Solicitor transferred from trust monies held on behalf of the client $8,524.93 as fees and $1,303.58 as disbursements. G. Estate of Baker (Pages 43 and 1159 annexures) 39. The Solicitor acted for the estate of the late Stephen Henry Baker and was an executor of that estate. 40. The Solicitor received on behalf of the estate a sum of $43,704.72 on 24 June 1991 and a further sum of $15,530.71 which monies were deposited to the Solicitor's Trust Account. 41. In contravention of section 61(3)(b) of the Act and without complying with regulation 8(3)(a) of the Regulations, the Solicitor wilfully appropriated part of the said monies as costs and disbursements without: (1) having first obtained the authority of the client; and/or alternatively, (2) having delivered an outline bill. Particulars (a) On 28 June 1991 the Solicitor appropriated as costs and disbursements $4,800. (b) On 4 October 1991 the Solicitor appropriated as costs and disbursements a further sum of $6,543.18 forming part of the proceeds of cheque number 353532 referred to in paragraph 22 above. H. Suzanne Gabrielle Blatch 42. The Solicitor acted for Suzanne Blatch in relation to an application for a property settlement pursuant to the Family Law Act. 43. On 15 December 1992 the Solicitor received on behalf of his client the sum of $20,900.15 a settlement moneys and paid that sum into his trust account. 44. On 17 December 1992, 14 January 1993 and 11 February 1993 the Solicitor took the sums of $3,000.00, $2,000.00 and $648.95 respectively. 45. In contravention of section 61(3)(b) of the Act and without complying with Regulation 8(3)(a) of the Regulations, the Solicitor wilfully appropriated the said monies as costs and disbursements without: (1) having first obtained the authority of the client; and/or alternatively, (2) having delivered an outline bill. Particulars The Solicitor appropriated $5,648.95 without having rendered a bill to the client or otherwise having obtained the client's authority to do so. J. Dennis Earl (Pages 57 and 367 annexures) 46. The Solicitor acted for Dennis Earl in relation to certain committal proceedings. 47. On or about 18 November 1991 and 14 July 1992 the Solicitor received on behalf of the client sums of $1,500 and $4,500 respectively. 48. In contravention of sections 61(1)(a) and (b), and 61(2)(a) of the Act the Solicitor without any lawful authority: (1) failed to hold the monies received exclusively for the use of the client; (2) failed to disburse the monies received as directed by the client; (3) appropriated the monies to his own use. Particulars (a) On 23 July 1992 the Solicitor withdrew from the trust monies $2,900. (b) On 30 July 1992 the Solicitor withdrew from the trust monies $1,600. 49. Further and or in the alternative, in contravention of section 61(3)(b) of the Act and without complying with Regulation 8(3)(a) of the Regulations, the Solicitor wilfully appropriated part of the said monies as costs and disbursements without: (1) having first obtained the authority of the client; and/or alternatively; (2) having delivered an outline bill. Particulars The Solicitor never rendered a bill to the client or otherwise obtained the client's authority for the appropriation of trust monies for costs and disbursements. The evidence in support of these grounds of complaint were statutory declarations or affidavits by each of the clients referred to in the particulars (other than Dennis Earl), the reports of the receiver who was appointed to the Solicitor's property, the trust account inspector Mr Napper (who also swore an affidavit) and Dr Ellard, a Psychiatrist. Dr Ellard also gave oral evidence. With the exception of three matters to which we will refer later, the evidence supported with little contest from the Solicitor the allegations made and it is therefore without difficulty the Tribunal can find the Solicitor was guilty of the wrongful acts and omissions as alleged. However the Solicitor in his Reply and by evidence called upon his behalf, raised the defence, that at the times of his misconduct, his acts or omissions were attributable to acute manic depressive psychosis or bipolar disorder from which disorder the Solicitor suffered at the relevant times whereby he was not responsible for the misconduct alleged. The evidence for the Solicitor was the affidavit of the Solicitor and his oral evidence, the affidavit and the oral evidence of James William Lyons solicitor and the report and the oral evidence of Professor Mitchell, psychiatrist. Also tendered in the Solicitor's case was the affidavit of John Patrick Miskell solicitor as to the character of the Solicitor and the affidavit of Heather Joy Hedrick a legal secretary for the Solicitor from 1979 to 1982 inclusive and for a short period in January 1993 when the Solicitor asked her to return to work for him. The reports of Dr Neal H McLean psychiatrist and Dr Anthony E McCarron psychiatrist, were also tendered together with the Discharge Summary of North Side Clinic of 11 August 1993. The evidence presented by the Solicitor sought to substantiate his defence that he was suffering from a bipolar disorder at the time he committed his wrong doing and that this condition affected his judgment at those times so as to absolve him from any awareness of or responsibility for these wrongful acts. Before analysing the medical evidence on behalf of the Law Society and on behalf of the Solicitor it is desirable to put in proper perspective the question of the burden of proof. The Law Society bore the onus of establishing that the Solicitor's conduct amounted to "professional misconduct". The evidence to warrant such a conclusion by the Tribunal, on a provisional basis, at least, was overwhelming. Thus it became necessary for the Solicitor to misplace the inferences, which would ordinarily arise, that his apparent misconduct, as proved, was conscious, deliberate and wrongful. The Solicitor sought to do this by establishing an alternative explanation for the conduct proved. Whilst the onus remained on the Law Society to establish "professional misconduct" and to prove it to a very high level of satisfaction (Briginshaw v Briginshaw (1938) 60 CLR 336, 361), it was the obligation of the Solicitor to prove the existence of a bipolar condition and that that condition so affected him that his actions were not conscious or deliberate at the relevant times. It was not the obligation of the Law Society to disprove the existence of a bipolar condition as alleged nor was its obligation to disprove the precise extent of that condition or its effect on the Solicitor's behaviour. The matters were within the case of the Solicitor and the onus rested upon the Solicitor to disturb the conclusion that otherwise flows from the evidence. In three matters namely Henk Holdings Pty Limited, Dennis Earl and Estate of Baker, the evidence does not satisfy the Tribunal that the conduct of the Solicitor amounted to professional misconduct. Henk Holdings Pty Limited Mr Noel Winton a director of Henk Holdings Pty Limited stated in his statutory declarations (2) and his affidavit that he paid to the solicitor $75,000 to be advanced to Maurice and Joan Mary Ward together by first registered mortgage over land and that he had received an epitome of mortgage in those terms from the Solicitor. The Solicitor stated that the mortgage did not proceed and thereupon the Solicitor spoke to Mr Winton and said to him "that loan to my client is not proceeding, I can however use the money". Mr Winton replied in words to the effect "That's OK you can have it." This conversation was denied by Mr Winton. The Solicitor subsequently borrowed a further $10,000 from Henk Holdings and gave an acknowledgement dated 27/5/1992 acknowledging receipt of the loan of the $10,000 and also the loan of $75,000 both loans being repayable on demand with interest at the rate of 20% per annum. The Law Society applied to the Tribunal under section 64(2) of the Evidence Act 1995 for an order that the hearsay rule not apply to the representations made by Mr Winton in his statutory declarations and affidavit upon the ground that it was not reasonably practicable to call Mr Winton owing to his state of health and age. The Tribunal granted this application and ordered that Mr Winton's statutory declarations and affidavit be allowed in evidence. Consequently the evidence of Mr Winton was not tested on cross examination and the Tribunal accepted the evidence of the Solicitor that these loans were personal loans. It was significant that Henk Holdings had made five previous personal loans to the Solicitor as follows:- In 1979/1980 $100,000 at an interest rate of 20% per annum On or about 25 January 1980, $6,000 with interest at the rate of 25% per annum On or about 13 June 1991, $20,000 at an interest rate of 20% per annum On or about 3 December 1990, $35,000 at an interest rate of 20% per annum On or about 19 December 1990, $11,419 at an interest rate of 20% per annum Consequently the Tribunal dismisses this ground of complaint. Dennis Earl No evidence was given by Mr Earl. The case for the Law Society was based upon documents tendered in the proceedings. These documents however in the view of the Tribunal did not support the allegations to the level of satisfaction required, and in particular there was no evidence in the documents tendered or otherwise that the Solicitor had not been authorised to transfer the amounts that he did transfer on account of costs and disbursements from his trust account. Consequently the Tribunal dismisses this ground of complaint. The Estate of Baker The Solicitor was the sole executor of the will and trustee of the estate of Stephen Henry Baker and acted as the solicitor for the estate. The question to be determined was whether the Solicitor was required to submit an outline bill to Mrs Plunket a beneficiary of the will and obtain her authority for transferring from his account $4,800 for costs and disbursements to his general account. The Law Society argued that the Solicitor had assumed an obligation to Mrs Plunkett as the beneficiary and that the Solicitor received the monies in his trust account "on behalf of another person" (namely Mrs Plunkett) within the meaning of section 61 of the Act. The Solicitor had prepared a bill of costs addressed to Mrs Plunkett which bill was not forwarded to her. The Law Society relied upon the decisions in Adams v Bank of New South Wales (1994) 1NSWLR 285 p290, and in Walter Merideth O'Reilly and Ors ("Blackmore's case) (" decision of the Statutory Committee of No. 5 of 1986). However in the view of the Tribunal these authorities do not support the proposition that the Solicitor was under a duty to furnish Mrs Plunkett with an outline bill and obtain her authority before transferring costs from his trust account. Consequently the Tribunal dismisses this ground of complaint. The questions for the determination of the Tribunal are: Was the Solicitor suffering from a bipolar disorder at the time he committed his wrongful acts, and If he was suffering from such a disorder at the relevant times did that disorder or condition so affect him that his actions were not conscious or deliberate. The medical history of the Solicitor in respect of his bipolar disorder (manic-depressive illness) is as follows: Between March 1986 and November 1987 the Solicitor was seen by Dr Neal H McLean psychiatrist. He was referred to Dr McLean by his local doctor, Dr John Silverwight. The Solicitor told Dr McLean that at the time he was being investigated for "intermingling" his business affairs with his legal practice. That investigation had been proceeding since May 1985. About three months before he saw him he had started to become depressed. He noted lowered mood, loss of self-esteem and reduced drive and enthusiasm. As a result of this he had not been coping very well. His weight was considerably below normal associated with reduced appetite. He also felt that his memory and concentration were affected. He had quite intense guilt feelings and morbid thoughts about suicide. There was some sleep disturbance with early morning wakening. To complicate the presentation around January 1986 he had been prescribed a course of Duromine tablets by his local doctor. According to Dr McLean the reason for this prescription was unknown as Duromine is usually prescribed as an appetite suppressant but it also has a stimulant affect on the nervous system. It appeared that it did produce considerable mental stimulation and from the history it sounded like he had a classic hypomanic episode. He described reduced sleep and enormous activity and lost about a stone in weight. Because of his feelings of depression he had been placed back on another course of Duromine tablets during the week or so before of what he expected to be the finalisation of his case in March 1986. Again this produced that same mental stimulation and made his mood very brittle. He said that he took the last tablet about an hour before he appeared on the witness stand on 18 March 1986. On this occasion he said he "froze" and broke into tears and was unable to give his evidence. The matter was then adjourned and the referral to Dr McLean was precipitated by this episode. There was no history of any previous psychiatric disorder and pre-morbidly the solicitor described himself to Dr McLean as "very happy and contented". He was a very independent individual who was industrious and altruistic. He appeared to have a stable personality and superior intelligence. At that stage he denied any history of drug or alcohol abuse. When Dr McLean first saw the Solicitor mental state examination revealed him to be orientated in time, place and person. However he was extremely distressed and depressed. He was quite labile in his affect and broke into tears frequently when describing the course of events leading up to his presentation. Dr McLean found some evidence of mild psychomotor retardation although his higher cognitive function was intact. There was no evidence of psychosis. He found it very difficult to explain why he felt as he did because he had previously been able to cope. Insight and judgment appeared intact. At the time of the initial consultation Dr McLean had no doubt that the Solicitor was suffering from a major affective disorder-depressed phrase. This had been going on for at least three months or even longer. Diagnosis explained his morbid lowering of mood, his psychomotor retardation, his sleep disturbance and weight loss. However superimposed on this condition had been the adverse effects of the Duromine he was prescribed by his local doctor which complicated interpretation of the sleep disturbance and weight loss. Clear periods of overactivity with elated mood that the Solicitor had in January 1986 could have been interpreted as directly drug related or evidence of hypomanic phase of major affected disorder. Dr McLean commenced him on anti-depressant mediation in the form of Amitriptyline. The Amitriptyline was not tolerated because of excessive sedation and on 26 March 1986 Dr McLean commenced him on Phenelzine 15mgs in the morning and at lunchtime. By 4 April 1986 Dr McLean noted that he was less depressed but his mood was fluctuating quite markedly and the question as to whether he indeed suffered from bipolar affective disorder was documented in his notes. By 11 April 1986 the Solicitor rated himself at generally at 60-70% of normal but at times almost back to his normal self. He was not hypomanic and was copings reasonably well with his work and at home. His confidence was improving but he felt "fragile" within himself. If anything he was sleeping to excess. Dr McLean next saw the Solicitor on 23 April 1986. He was significantly better in himself but still under a lot of pressure. Dr McLean increased the Phenelzine to 45mgs a day and when he saw him again on 9 May 1986 he was generally well despite various catastrophes occurring about him. He found that the increased dose of anti-depressive medication had caused him headaches so he had reverted to the previous dose. His mood was much more stable and he was not tearful. His sleep appeared to be returning to normal. Dr McLean next saw him on 12 September 1986. The Solicitor stated that he was generally well on Phenelzine in a dose of 45mgs to 60mgs daily. Dr McLean then did not see him again for approximately 12 months and saw him again on 21 August 1987. Again with mood disturbance and because of the instability in his mood Dr McLean felt that bipolar affective disorder was the likely diagnosis. He commenced the Solicitor on Lithium Carbonate on 9 September 1987 in a dosage of 400mgs twice a day and continued on Phenelzine 45mgs daily. About around this time, Dr McLean became aware that the Solicitor was taking stimulant drugs and probably had been taking these drugs for some time. This complicated his presentation. On 24 September 1987 Dr McLean stopped the Phenelzine but continued the Lithium Carbonate. Dr McLean final consultation was on 13 November 1987. The Solicitor was extremely upset because of domestic problems about which Dr McLean counselled him. Dr McLean has not seen the Solicitor since 13 November 1987. In his report Dr McLean stated that in summary the Solicitor presented a very difficult clinical picture. He felt that there was strong evidence for a diagnosis of a major affective disorder of bipolar type-although during his involvement with him the therapeutic relationship was complicated by his difficulties in compliance with medication and keeping appointments and the use of stimulants which Dr McLean had been unaware until his final couple of consultations with him. However the possibility of bipolar affective disorder was in the forefront of Dr McLean's mind during the time that he saw the Solicitor which amounted to some eighteen months. Dr McLean stated that it was quite likely that there was in fact a co-existing diagnosis of bipolar affective disorder in combination with substance abuse disorder (stimulants) which would have explained a lot of the mood fluctuations which the Solicitor experienced during that time. Dr McLean commented that unfortunately it was never able to be clarified in order for a consistent treatment regime to be implemented and adhered to over a long period of time. Dr McLean saw the Solicitor between the period of March 1986 and November 1987 and during this period none of the matters of which are the subject of the grounds of the complaint brought against the Solicitor in these proceedings occurred. Nevertheless this medical history is a relevant record of the background to the Solicitor's subsequent conduct from 1991 to 1993. A matter which is relevant to the behaviour of the Solicitor in 1986 was that in that year proceedings were brought against him by the Law Society alleging professional misconduct for intermingling his clients moneys with his own, for touting and for making false statements to the Law Society ("nd subsequently to the Statutory Committee). In those proceedings the Statutory Committee ordered that the name of the Solicitor be removed from the roll of solicitors. On appeal the Court of Appeal in December 1986 held that the evidence did not support the grounds of complaint of intermingling moneys and/or touting but the Court of Appeal did hold that the Solicitor had made false statements to the Law Society and to the Statutory Committee. His conduct in that regard was professional misconduct. The Court of Appeal ordered that the order removing the name of the Solicitor from the roll of solicitors be set aside and in lieu that a fine of $5,000 be imposed together with an order that the Solicitor pay the costs of the proceedings and of the appeal. The Solicitor in his affidavit of 10 February 1998 says that in addition to the matters referred to in the medical history given to Dr McLean, that in the year of 1987 during that year he had stayed away from home for protracted periods of time, working through the nights at the office and sleeping in motels or at the office. He spent large amounts of money and lost control of his libido leading to countless indiscriminate, immoral and potentially dangerous female liaisons that he said was totally out of character with his previous morals and standards of behaviour. In 1988 the Solicitor purchased two pressurised twin engine Beechcraft aeroplanes at a total price of $380,000. He purchased one of these planes in New Zealand in January 1988 and flew it to Australia and at the same time he purchased another plane in Sydney. He had no need for these aircraft but at the time he thought it would form the basis of a new Australian airline. He registered the business name "Koala Bear Airlines" and made an unsolicited offer to Hawke Pacific Limited to buy out their daily "Bank Run" aviation routes, including their fleet of about six aircraft, the consideration to be shares in his new venture which was to be the first step in building his airline. The offer was rejected out of hand. During the year he exchanged contracts to purchase a large cattle station in Western Australia in the expectation that he would be granted 100% finance by the Government to assist him in establishing a new industry involving the breeding of kangaroos and export of their meat to Europe. The deposit that he paid was lost when the moneys which he expected to be advanced by the Western Australian Government was not forthcoming. In 1989 the Solicitor was admitted to St Vincents Hospital, Caritas Unit for three days for observation after leaving casualty section and going to the "Gap" at South Head. In 1990 the Solicitor was at Hurstville Police Station after being found during the night half naked and undressing as he was walking down the main street. No charges were laid and he was released into his wife's custody later in the morning after she drove up from their home in Bowral to collect him. In 1991 as a result of threats from the Solicitor, the Solicitor's wife and his two younger children went to Tamworth to stay with his wife's sister. The Police had issued an urgent bulletin for the arrest of the Solicitor with a warning that he was armed and dangerous. The Solicitor chartered an aeroplane and flew from Mittagong to Tamworth and arrived at his sister-in-law's farm at dinner time. Soon after that he was arrested by the Police. Apparently he stayed overnight in Police custody and he was released on bail the following day at the request of his wife as she did not wish to proceed with her complaints against him. Prior to the Solicitor going to Tamworth he signed a blank trust account cheque and left it with his book keeper with instructions to fill in the cheque for the staff's weekly wages and told her to debit against an account or accounts from which he was authorised to draw from. The Solicitor stated in his affidavit that, "Apparently later in the day the staff became scared after receiving warnings from the Police and my sister-in-law about me. As a result the book keeper filled the cheque in for $25,000, paid out the staff for the full amount of their leave and pay entitlements and told them that their jobs were finished because I will be going to jail for a long time. Later on in 1992 I paid these moneys back, before the matter came under the notice of the Law Society. On returning to my office some days later I became aware of what the book keeper had done and immediately attempted to have the cheque cancelled at the Bank enlisting the help of my friend Ian Wilson who had retired recently from the Commonwealth Bank. On or around; this time I believe I had a credit in my general account in excess of $100,000. Due to my illness I soon forgot about the matter until months had gone by and I then attempted to hide what had happened by wrongfully falsifying account records in the matters of Goodall and Luke to appear as if part of the $25,000 was made up of costs and disbursements owing to me by them and which I was specifically authorised in writing to transfer from trust account. In fact I was neither entitled to the moneys held on their behalf at the time nor authorised in writing to do so." Prior to his admission in the Northside Clinic in May 1993 the Solicitor demolished his office with a sledge hammer. He was subsequently arrested at gunpoint by Police and taken to Campbelltown Hospital. He says that he admitted himself to Northside Clinic. According to the history records of the Northside Clinic the Solicitor had sought admission after having been in a highly aroused and impulsive state for some days in the context of major financial problems. He also acknowledged suicidal ideation although he denied intent. He had been attempting to negotiate the sale of his legal business but when this fell through on the Tuesday prior to admission he described going on a "rampage" where he destroyed much of the property in his own office with a sledge hammer. According to the history given by the Solicitor's wife to the Clinic, in the weeks prior to his admissions he spent much of the day asleep and consistently in a depressed mood. He seemed exhausted much of the time. Two weeks prior to admission he had been evicted from his office and subsequently threw a rock through her car window. For about six weeks prior to admission he threatened to send the children to foster homes and had been physically abusive to her. She described several periods since October 1991 when the Solicitor had become violent and threatening. The Solicitor acknowledged to the Clinic that he had been using illicit amphetamines since 1986-usually one to two times per day during the week. He claimed this helped him to "concentrate at work". He acknowledged spending $2,000 per month on this habit. He used cannabis on occasions when he "couldn't sleep because of the speed". He claimed that this was one to two times per month. He also claimed that his alcohol use was only occasional and that he was a non-smoker. The Solicitor discharged himself from the Northside Clinic against medical advice and the Clinic expected that he would see Dr A McCarron which he had previously done. It appears from Dr McCarron's report of 4 November 1993 that he monitored the progress of the solicitor since his discharge from the Northside Clinic in July 1993 and that the Solicitor remained quite stable and had continued on his medication. In the opinion of Dr McCarron it was more than probable that a large amount of the erratic behaviour of the Solicitor in the past had been attributable to the bipolar disorder. At that time in November 1993 in the judgment of Dr McCarron, taking into account his current stability and the probability that he would continue to take medication he would see him as fit to practice as a solicitor in a group situation rather than as a sole practitioner. A Dr Rob McMurdo (" partner of Dr John Ellard) psychiatrist saw the Solicitor on three occasions namely 11 May 1994, 4 August 1994 and 14 August 1996. According to Dr McCarron's report of 28 August 1996 to the Solicitor's solicitors the Solicitor had given a history which was consistent with bipolar affective disorder or manic-depressive psychosis. From his own examination and confirmed by the medical reports of Dr William Lyndon of 11 August 1993, the report of Dr A McCarron of 4 November 1993 and the report of a Dr Anthony Dinnen of 23 June 1992, it was the opinion of Dr McCarron that the Solicitor suffered from bipolar affective disorder and in his opinion the Solicitor would need to continue with constant medication. In Dr McCarron's opinion, if the Solicitor was to resume his legal practice, it was essential that he maintained regular contact with a treating psychiatrist and to also be on mood stabilising medication such as Lithium, Tegretol or Epilim. If the Solicitor had no serious mood swings either depressive or hypomanic, it was probable that he will be quite able to function in his professional obligations as a solicitor and also to manage his client's funds. The Solicitor assured Dr McCarron that he had no problems with the latter unless he was hypomanic but as Dr McCarron comments he had no way of proving this. It is certainly the experience of Dr McCarron that patients with hypomanic behaviour, behave in a grossly disorganised way which is out of keeping with their normal moral and ethic code. The Solicitor saw Professor Phillip Mitchell, an Associate Professor of Psychiatry at the University of New South Wales, on 12 June 1997, 31 July 1997, 28 August 1997, 25 September 1997, 23 October 1997 and 26 November 1997. In his report of 23 January 1998 Professor Mitchell states that there is no doubt that the Solicitor suffers from bipolar disorder (manic-depressive illness). Professor Mitchell in his report stated that in summary the Solicitor had been experiencing poorly controlled bipolar disorder since at least 1986 and perhaps even earlier. It appeared at that the time of his initial assessment the Solicitor was still having both hypomanic and depressed episodes. He was depressed when he first saw him. The bipolar disorder had been markedly exacerbated by drug use with amphetamines and marijuana. Professor Mitchell commenced the solicitor on the mood stabiliser Tegretol (carbamazepine) and continued him on his Prozac 20mg. Professor Mitchell adds that the acts and behaviours complained of in the allegations against the Solicitor could well have been caused by his manic depressive illness. He comments that "while manic, patients have no awareness or insight into the appropriate nature of the behaviour in which they are engaged". In his opinion the treatment under which the Solicitor is currently managed (Tegratol and Prozac) is likely to be successful in controlling his behaviour and indeed his condition has been stable whilst he has been caring for him. Professor Mitchell, stated in his report "If this is to continue, and he has to show evidence of ongoing compliance, there is no reason why he should not be capable of performing the duty of a solicitor. I think it would be wise for him initially to work as an employee rather than in his own practice". Dr John Ellard (who was retained by the Law Society) stated in his report of 3 March 1998 that his report was made on the basis of the medical reports that had been submitted to him and a schedule of assumptions which related to the allegations ("nd particulars) in respect of the matters of Fiona Young, Henk Holdings Pty Limited, Kenneth Cooper and Goodall and Luke. In his report Dr Ellard stated: "On the material I have been given it would seem that Mr O'Reilly has suffered from a number of disorders. Some have little or nothing to do with the matter in hand but should be mentioned." Firstly, while he was in the Northside Clinic there was time in which he suffered from a confusional state for which no obvious case has been found. The electroencephalographic evidence at the time suggested that it might have been a drug induced condition and I would think that this is the most probable diagnosis. It was a temporary state and I do not think that it is relevant to the main issues". Secondly: "There is at least a suggestion that he was diagnosed as suffering from a tension deficit disorder by Dr Serfontein. Dr Serfontein was an expert in this condition and if in fact he made that diagnosis then in all probability it was correct." Dr Ellard adds in report that: "The significance of the diagnosis (that is, of Dr Serfontein) is that the treatment is with stimulant medication. Whereas such medications cause excitement in those who do not have this condition, in those with it the response is calming and quietening. The particular relevance is that even though this is the case, if sufferers take excessive doses of the medication then the usual consequences of misuse of stimulants emerge. They can amount to hallucinations, persecutory delusions and a major behavioural disorder which can be mistaken for hypomania or schizophrenia. The Northside Clinic notes leave no doubt that Mr O'Reilly's primary disorder was complicated in this way: it is difficult to know how much this would have been the case at any particular time." Dr Ellard explains that: "The sufferer may present in profound depression with psychomotor retardation and delusions of guilt. He also may present on other occasions in mania. There is hyperactivity, emotional excitement and there may be delusions and hallucinations consistent with this expansive state. A person may believe he is Jesus Christ or have some other grandiose delusion. In this state of mania the judgment is much overthrown, people do things which are quite uncharacteristic of them with no concern for the consequences. It will be understood that there are extremes of the illness and that a particular sufferer at any given time may present in a state of complete normality or with mild depression and mild elation. This latter stage is called hypomania. The elevations of mood can be quite minor. With particular patients it may be difficult on a given day to decide whether they are very mildly hypomanic or merely have an unusually good day, such as any one of us might experience. Even in the extreme stages of mania or depression the person would have some awareness of what they are doing but their judgment would be so overthrown that one could not consider them responsible for their actions." Dr Ellard adds that: "Since the illness is cyclical in time and variable in degree the diagnosis does not establish the degree of responsibility for any particular act. To do that one would need to have knowledge of the person's behaviour at the material time." In summary Dr Ellard says in his report that: "With regard to Professor Mitchell's report of 23 January 1998 I have no criticisms of it. As he states on the last page: "The acts and behaviours complained of in the allegations against Mr O'Reilly could very well have been caused by his manic depressive illness.' I have no doubt that some of his behaviour is entirely understandable in this way. However, if one looks at particular elements of his behaviour then one must balance the effects of the illness against the judgment required to do the things which it is alleged Mr O'Reilly has done." Dr Ellard and Professor Mitchell gave evidence. Dr Ellard in evidence stated that having regard to the written material supplied to him that there was probably little doubt that the solicitor was suffering from bipolar disorder between 1986 and 1993 and making this statement he said that without doubt that was one of the diagnoses. He said that there was an overall correlation in the literature between being bipolar and being creative, but when people are right up there, there is a lot of talk and noise but not much creation. He agreed that when such people are right up they do things that they would not normally do when they were in a normal state. When asked questions as to how they just cannot control themselves he answered: "It does not occur to them to control themselves. They have no insight into the silliness of what they are doing." And further: "and some of the things that people do when they're on this up can be regarded by others at times as being quite magnificent?" To which he gave the answer: "Not by the judicious." To the further question: "So that what happens is that people can do things, so, when they are affected by the bipolar disorder which are not necessarily inept or regarded objectively as stupid. They can do things that appear to be intelligent?" To which Dr Ellard answered: "Again we come to the dimension. We could be a very bright person with a wee, little bit of hypomania. You must just work a bit harder, but you are walking across a razor's edge between that and doing something absurd, and, as you go up, absurdity becomes more inevitable." Dr Ellard had taken into account as a matter of some significance the letter written on 8 June 1988 from the Solicitor to Fiona Young and the enclosures. He said: "It seemed to me that this was, I would think, a document of some complexity requiring a certain amount of professional judgment, that and the attendant behaviour, and if that is true, then that would be not consistent with certainly mania and certainly not consistent with much hypomania at the time, if that is true." When Dr Ellard was cross examined on the basis that the letter in question and the enclosures such as the epitome of mortgage were routine documents, and it was put to Dr Ellard that it was a fairly simple task of putting in someone's name and address and the amount payable into the documents he replied: "Simple to those used to it, not for me." Following further questions as to the statements in the letter "payment out to my creditors" and "for unpaid flow bills" Dr Ellard conceded that upon the assumption that the secretarial staff of the Solicitor filled in the accompanying documents, prepared them, answered that the assumption required professional judgment, which only the Tribunal could determine. In answer to the question: "The truth is that you would like to have more before making a pronounced judgment?" Answer: "The more the better, but I've seen a lot of hypomanic people and this reads like a professional letter." Dr Ellard agreed that the conduct of the Solicitor could demonstrate a personality in his office where he is alternatively either cheerful and depressed or agitated and talkative. On some days he would do no work and close and lock the office doors. When clients were to come in, he would often say to the effect: "Just ring the clients and tell them we don't want to act for them anymore." "And at other times he would produce large amounts of work, although the work was unbalanced in the sense that he would go into some matter in great detail and often do nothing at all, and his speech was often fast and difficult to follow and at other times he would seem to be disinterested and very sad and be on the floor in a foetal position, just crying and refusing to talk and this goes on for many weeks. Was that a state where a person would be likely to be suffering from bipolar disorder?" Dr Ellard answered in the affirmative. Dr Ellard also agreed that the conduct of the Solicitor including cruelty to his wife, threatening to shoot his family, giving his children dynamite to play with, or the equivalent, putting it altogether was that if these things were occurring regularly it would be a lot of the time that the solicitor was suffering from bipolar disorder. In re-examination in answering the question as to what he would expect a solicitor suffering from mania to relate to his clients, his answer was: "Well, he would, if manic, be obviously abnormal. He would be excessively talkative, his mind would be going from this to that, he would be jumping up and down and running around the office. It would be obvious that there was something wrong." The evidence of Dr Ellard and the opinions he expressed were based on the documents that were submitted to him and not from any examination by himself of the Solicitor. He was unable to discount the possibility that the condition of bipolar disorder could have caused the Solicitor to commit the acts and commissions of misconduct complained of. Professor Mitchell who is currently treating the Solicitor-the treatment being Tegretol-explained in evidence that Tegretol is a mood stabiliser for manic-depressive illness. The Solicitor is also on an anti-depressant medication called Prozac because he has been suffering from periods of depression in recent times. When asked by counsel for the Solicitor: "Does this have the effect, if someone takes their medication and sees a psychiatrist regularly enough as required, that the bipolar disorder is under control?" Professor Mitchell replied: "It does not necessarily mean that they will not get any episodes but it makes it much less likely for this to happen; if they happen they are usually less severe. Full control of the illness is not always possible but at least reduces the frequency and the severity of the episodes." In cross examination Professor Mitchell was referred to the paragraph in his report, "The acts and behaviours complained of in the allegations against Mr O'Reilly could very well have been caused by his manic-depressive illness." Professor Mitchell agreed with that statement and said that the acts and behaviours that he had in mind when he wrote that paragraph were the behaviours consistent with the disorganisation and impaired judgment that is seen in bipolar disorder. Professor Mitchell explained that mania is one extreme of the bipolar disorder and that he with many of his colleagues often used the word "mania" as a generic term to incorporate hypomania as well. The disorder is cyclical in the sense that a person suffering the disorder may experience periods of complete normality and then enter a cycle or abnormality. When the illness manifests itself it goes through dimensions and stages; one extreme is mania and a person suffering a disorder while in a manic state will experience extreme levels of elation. Hypomania can be subtle and that is the difficulty. Mania is dramatically obvious to everybody. In answering a question as to whether when a person is in a manic state, was that person's judgment most impaired? Professor Mitchell answered: "Judgment is impaired at both levels, that is what makes the illness difficult, particularly in the subtle phase. Judgment and insight go very quickly even with hypomania. You are correct in saying that it is often not as extreme, but it is definitely impaired in a hypomanic state. In the very mild forms of the illness there is impairment of judgment and that is what makes it very difficult." In further questioning of Professor Mitchell he was asked to make certain assumptions. First that the Solicitor had become aware of an obligation to repay a sum of money which had been borrowed. Secondly on two separate occasions he drew a cheque on one of his personal accounts to repay that loan but the cheques bounced. Thirdly, after that occurred the Solicitor then drew a cheque on his trust account and using trust funds improperly and without authority, and paid that money across to the lender. Professor Mitchell agreed that there would be a degree of awareness on the part of the Solicitor of his liability to repay the loan, that he had to pay the money from his own funds but on the question of when he drew funds from his trust account to repay the loan, what awareness of that act would the Solicitor have had in knowing that the Solicitor was not entitled to draw on those funds because they were clients' moneys? Professor Mitchell replied that he would expect to some extent that there would be an awareness of the legality of the situation but whether there was a full awareness was, he thought was the difficulty. If the patient was in a hypomanic state one could speculate that if there was grandiose feelings the greater the legal problem, whatever, may be. Professor Mitchell was further cross examined on the basis of certain assumptions as follows: Question: "I would like you to assume that a solicitor became aware that one of his employees had improperly drawn a cheque on the solicitor's trust account, firstly. Secondly, that when the solicitor became aware of it the solicitor reprimanded the employee about it and indeed tried to recover that money. The third assumption I would like you to make is that approximately twelve months later, after the solicitor's attempts to recover the money failed, the solicitor altered various trust ledgers relating to clients in order to conceal the improper drawing which had occurred. Making these assumptions, I would like to ask you some questions about each stage of that conduct. At the time the solicitor became aware that the cheque had been drawn improperly by the employee, the solicitor must have been conscious of the fact that these moneys had belonged to the client and what the employee had done was very wrong?" Answer: "Yes, that is a scenario that would suggest that." Question: "At the time the solicitor tried to recover the money, that would suggest, would it not, that the solicitor was then aware that he had to do everything possible to try to get the money back?" Answer: "Yes, that would suggest that." Question: "If we go to the third stage, that is the stage of concealment, you understand that solicitors are required to maintain trust ledgers and those ledgers record the passage of money through the solicitor's trust account for each individual client. I would like to take you to that stage of concealment where the solicitor alters trust ledgers in order to conceal that improper drawing. Assuming the solicitor in fact did that, what does that suggest to you about the solicitor's awareness or his mental state?" Answer: "That would suggest that there was an awareness that there was a need to correct that for whatever purpose." Question: "I am not talking about the need to correct, I am talking about altering the trust ledgers in order to conceal from the Law Society's trust account inspectors, for example, that money had been taken improperly?" Answer: "Yes, that would suggest a concealment." Question: "A deliberate concealment?" Answer: "Yes." Question: "And that would also suggest that the solicitor, in undertaking that concealment, exercised some degree of judgment?" Answer: "Yes, it would." In re-examination Professor Mitchell was asked "At the time he falsified the accounts could it have been that there was some lack of insight that you would expect from a normal person whether he did that at that stage?" Professor Mitchell answered "It is possible, it can't be discounted, yes." There is no doubt that the Solicitor was suffering from a bipolar disorder at the time he committed the wrongful acts the subject of the complaint brought by the Law Society. It is also evident that the Solicitor continues to suffer from a bipolar disorder and that disorder appears to be under control with medication prescribed and treatment by Professor Mitchell. The further question for the determination of the tribunal is whether at the relevant times this disorder or condition so affected the Solicitor that his actions were not conscious or deliberate or in other words that he was not aware that at the time he committed these wrongful acts that they were wrong. The evidence in support of an affirmative answer to this question is that of the Solicitor himself and the psychiatric evidence particularly the evidence of Professor Mitchell. This evidence of the Solicitor was that he was suffering from a bipolar disorder at the time of committing these wrongful acts and that that condition so affected him that he was not responsible for the misconduct alleged. The psychiatric evidence is summarised in the report of Professor Mitchell when he states "the acts and behaviours complained of in the allegations against Mr O'Reilly could very well have been caused by his manic depressive illness". The Tribunal is satisfied on that evidence that in the matters of Fiona Young, Kenneth Cooper, Norman William Goodall and John Luke (other than for the matters referred to in paragraphs 26, 27 and 35 of the Particulars) James Robert Davis and Suzanne Gabrielle Blatch the bipolar disorder suffered by the Solicitor so affected him that his actions were not conscious or deliberate at the relevant time. However the Tribunal is not satisfied that when the Solicitor altered trust and other accounting records to conceal the misappropriations of $14,011.36 in the matter of Norman William Goodall and $7,658.26 in the matter of John Luke and during the course of investigation into the Solicitor's practice by trust account inspectors the Solicitor misled or attempted to misled those inspectors by presenting them with a bill of costs dated 12 March 1991 showing an amount outstanding by Norman William Goodall to the Solicitor of $10,798.56 when in fact no such amount was outstanding, to the knowledge of the Solicitor that his bipolar disorder so affected him that his actions were not conscious or deliberate. The Solicitor in his affidavit of 10 February 1998 in referring to $25,000 being the amount which the bookkeeper's Solicitor had filled in a blank trust account cheque which the Solicitor had left with her before going to Tamworth in 1991, states: "Due to my illness I soon forgot about the matter until months had gone by and I then attempted to hide what had happened by wrongfully falsifying account records in the matter of Goodall and Luke to appear as if part of the $25,000 was made up of costs and disbursements owing to me by them and which I was specifically authorised in writing to transfer from trust account. In fact I was neither entitled to the moneys held on their behalf at that time nor authorised in writing to do so. In evidence the solicitor was cross examined on that part of his affidavit as follows: Question: "Three quarters of the way down the page you will see a paragraph commencing "Due to my illness I soon forgot about the matter'"? Answer: "Yes." Question: "Two months had gone by and I then attempted to hide what had happened?" Answer: "Yes." Question: "By wrongfully falsifying account records?" Answer: "Yes." Question: "You asserted previously that one of the records that you falsified was the trust ledger annexed to Mr Goodall's statutory declaration?" Answer: "Yes, that is what I did, yes." Question: "Do you recall what other documents you falsified?" Answer: "No, I don't." Question: "And at the time you falsified those account records you did so in an attempt to hide what happened?" Answer: "It appears to me that is what was done, yes." Question: "Do you recall when that was done?" Answer: "No, I don't but it was months and months later, I think. I'm not sure." Later when he was cross examined about presenting the bill of Mr Goodall for $10,798.56 to Mr Napper and Mr House (Law Society trust account inspectors) the Solicitor was asked: Question: "And you presented this bill, that is the bill at page 979, to Mr Napper and Mr House in the hope that they would not detect the improper transfer?" Answer: "I don't recall giving it to them but the whole purpose presumably would have been to make sure it was hidden. It was totally wrong." Professor Mitchell in cross examination was asked to make the assumption (which relates to the Goodall and Luke matters) that the solicitor altered various trust ledgers and concealed improper drawings which had occurred approximately twelve months earlier. He agreed that these alterations of the trust ledgers were done in order to conceal from the Law Society trust account inspectors that money had been taken improperly and that it would be a deliberate concealment. The Solicitor in undertaking that concealment exercised some degree of judgment. The Law Society's trust account inspector Garry Napper, swore an affidavit of 16 March 1998 in which he stated that a copy of the bill dated 12 March 1991 to Normal William Goodall in the sum of $10,798.56 was requested from the Solicitor and his assistant Debbie Dengate on a number of occasions verbally and later in writing. Following those requests, they were informed by the Solicitor that the matter file had been destroyed. Either he or Mr House (the other trust account inspector) said words to the effect: "What about the accounts' copy of the bill. Have you got that?" The Solicitor said words to the effect: "I'll see what I can do for you." A written request for a number of files including the Goodall file was given to Debbie Dengate on 25 February 1993 and a copy of that request handed to the Solicitor on 26 February 1993. The request indicated that the production was required by 4 March 1993 although a copy of the bill was not handed until some time at the latter part of April 1993. Mr Napper was not called by the Solicitor for cross examination on that affidavit or on his earlier statutory declaration of 29 April 1997. Counsel for the Solicitor submitted that if the Tribunal was of the view that there may have been somewhat more of an awareness when the books were altered with the Goodall and the other matter there was some degree still presumably of full insight but it was open and the Solicitor admitted it was a cover up: it was not the original thing the money was paid back before it was discovered. It appears that the trust accounting records were altered and the bill in the Goodall matter was reconstructed some months after the money was paid back. It is of course the "awareness" of the Solicitor at the time of the alteration of the accounting records and the reconstruction of the bill which is relevant. The Tribunal finds in the matter of Goodall the Solicitor altered accounting records, including the client's trust ledger, reconstructed a bill ostensibly directed to the client showing an amount outstanding by the client to the Solicitor of $10,798.56 so as to suggest that he was in fact entitled to that amount, when in fact he was entitled to no part of that sum. Furthermore the Tribunal finds that in or about February 1993 during the course of an investigation into the Solicitor's practice by trust account inspectors appointed by the Law Society, the Solicitor with intent to mislead or attempted to mislead these inspectors, presenting them with a bill of cost for $10,798.56 dated 12 March 1981 showing that amount outstanding by the client when in fact no such amount was outstanding to the knowledge of the Solicitor. The Tribunal also finds in the matter of Luke that the Solicitor altered accounting records including the client's trust ledger so as to suggest that the Solicitor was entitled to the sum of $7,658.26 whereas in fact no such amount was payable by the client. The Tribunal finds that this conduct of the Solicitor constitutes professional misconduct-the Solicitor having failed to satisfy the Tribunal that at the time these wrongdoings were committed, that his bipolar disorder so affected his judgment so as to absolve him from any awareness of or responsibility for those wrongful acts. The Solicitor is 50 years of age and was admitted as a Solicitor on 28 July 1972 having graduated from the Sydney University with degrees of BA.LLB. He is a married man with four children. He opened a practice on his own account at Campbelltown in 1974 and according to the Solicitor this practice was successful. This practice ceased in May 1993. In November 1993 he applied for the renewal of his practising certificate but this application was refused. Over the last 5 years the Solicitor has been employed as a law clerk earning between $400 and $500 per week. For the last 21 months he has worked as a casual telemarketer at nights and on weekends to support his family. He worked as a law clerk from December 1993 to April 1996 with Lyons and Lyons, Solicitors at Bondi Junction and from August 1997 with DJ Fischer and Associates, Solicitors of Sydney. James William Lyons swore an affidavit of 10 February 1998 and he also gave evidence before the Tribunal. Mr Lyons spoke highly of the Solicitor. He had been a close friend of the Solicitor since meeting him as a fellow pupil at St Joseph's College Hunters Hill. He stated in his affidavit that he was confident that the Solicitor was now a fit and proper person to once again be issued with a practising certificate provided that he maintains his medication and remains under medical supervision. Since his hospitalisation during the subsequent period that Mr Lyons employed the Solicitor, he had never given Mr Lyons any reason or occasion to be concerned about his mental and physical capacities to undertake the work of a legal practitioner. Patrick Miskell a Solicitor and the principal of DJ Fischer and Associates sworn an affidavit on 11 February 1998. In this affidavit he stated that he had employed the Solicitor since early August 1997. He said, that at all time he had found the Solicitor to be honest and responsible with considerable skills. He was well liked by clients and staff alike. His enthusiasm for the law and legal practise was infectious. In the event that the Solicitor is permitted to remain working in a legal office either as a solicitor or as a clerk Mr Miskell will be very happy to continues his employment indefinitely. From his observations of the Solicitor over the last 5 years and particularly since August 1997 he is confident the Solicitor will continue to take his medication and remain under medical supervision. Since 1993 the Solicitor has regularly attended CLE courses. Since 1993 the Solicitor has assisted in the setting up of computer systems in two legal offices. He attended TAFE at nights and learnt to type and completed a 6 month computer evening course at TAFE. He lectured in TAFE at Hornsby for approximately 6 months part-time in small business and industrial law and on a standby basis in other legal subjects. In 1995 he received certification that he had successfully completed the "Quality in Law Program" Level IV from the Australian Quality Council. The Solicitor is now a bankrupt and he and his wife have few assets. They are renting a house living with their children all of whom are students and who earn very little or no income. The Tribunal has found the Solicitor guilty of professional misconduct. The Tribunal in exercising its jurisdiction does so in accordance with the well settled principles as stated by Giles AJA in Law Society v Foreman LPDR4: " The jurisdiction of the Tribunal and of this Court in disciplinary matters is exercised to protect the public, not to punish the solicitor. The object of protection of the public may require that the legal practitioner be removed from the roll, be suspended from practice or only be permitted to practise under particular circumstances, where the practitioner is not fit to be held out to be trusted at all, for a time, or without qualification with the heavy responsibilities attendant on the office. The public is protected by ensuring that those unfit to practise do not hold themselves out as fit to practise. The objection of protecting the public also includes deterring the legal practitioner in question from repeating the misconduct and deterring the others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues, who practise in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with, . . . " The professional misconduct of the Solicitor was very serious. The Solicitor falsified trust account records, concealed wrongful appropriation of trust money with the intent of misleading the Law Society, and produced to the trust account inspectors a copy of a bill of fees falsely reconstructed by him in an attempt to deceive those inspectors into believing in the matter of Goodall that the sum of $10,798.56 was still outstanding and owing by the client. Counsel for the Solicitor submitted that if his client was permitted to continue to work in the legal profession he would undertake to continue to be treated by Professor Mitchell (or some other suitable psychiatrist if Professor Mitchell retires) and to take such medication as Professor Mitchell prescribed. Counsel for the Solicitor further submitted that whilst the Solicitor should not at the present time and may not in the future practise as a sole practitioner nevertheless he had practised as a law clerk from December 1993, had not come under any adverse notice in relation to any of those activities and his employers had spoken well of him in that period. It is was submitted that the appropriate order would be that any practising certificate issued to the Solicitor be restricted so as to allow him to practise his practice as an employed solicitor only with the condition that he continue the medication and treatment prescribed by Professor Mitchell or some other suitable psychiatrist. The Tribunal is of the opinion that such an order would not protect the public and finds that the Solicitor is not a fit and proper person to remain a legal practitioner. Accordingly the Tribunal has no other alternative other than to order that the name of the Solicitor be removed from the Roll of Legal Practitioners. The Tribunal orders: That the name of Patrick Bede O'Reilly be removed from the Roll of Legal Practitioners in New South Wales. That the costs of the Law Society be paid by the said Patrick Bede O'Reilly and 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. Dated the 7th day of October 1998. 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.