CITATION: Council of Law Society of New South Wales v Stormer [2010] NSWADT 240 DIVISION: Legal Services Division Applicant: Council of the Law Society of New South Wales PARTIES: Respondent: Terence William Stormer FILE NUMBER: 082015 HEARING DATES: 25 & 26 February 2009 SUBMISSIONS CLOSED: 3 July 2009 DATE OF DECISION: 12 October 2010 BEFORE: Brennan J - Judicial Member; Riordan M - Judicial Member; Hayes E - Non-Judicial Member CATCHWORDS: Professional Misconduct - Fitness to Practice LEGISLATION CITED : Legal Profession Act 1987 Legal Profession Act 2004 Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Brusewitz v Brown (1923) NZLR 1106 Council of the NSW Bar Association v Sahade [2007] NSWCA 145 Goldsworthy v Brickell [1987] 1 All ER 853 Kennedy v Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJR 563 Law Society of NSW v Bannister [1990] NSW LST 7 Law Society of NSW v Bannister [1993] 4LPDR 6 Law Society of NSW v Berry [2005] NSWADT 46 Law Society of NSW v Ciampa [1997] NSWADT 13 Law Society of NSW v Cornwell No 2 [2006] NSWADT 308 Law Society of NSW v Foreman [1994] 34 NSWLR 408 CASES CITED: Law Society of NSW v Green [2001] NSWADT 142 Law Society of NSW v Harvey [1976] 2 NSWLR 154 Law Society of NSW v Kennedy 2007 NSWADT 59 Law Society of NSW v Ong [2008] NSWADT 266 Law Society of NSW v Pearson [2005] NSWADT 206 Law Society of NSW v Paton 2002 NSWADT 282 Nikolaidis v Legal Services Commissioner 2007 NSWCA130 NSW Bar Association v Cummins (2001) 52 NSWLR 279 NSW Bar Association v Evatt [1968] 117 CLR 177 NSW Bar Association v Hamman [1999] NSWCA 404 Re Hodgekiss [1962] SR (NSW) 340 Re Mayes and the Legal Practitioners Act 1974 1 NSWLR 19 Weiss v Barker Gosling (1993) 16 FAM LR 728 Applicant Representative: Mr Matalini, Solicitor REPRESENTATION: Respondent Representative: Mr Hadley, Barrister 1. That the Registrar advise the parties in writing that the Tribunal is considering making a protective order and invite the parties to submit final written submissions in relation to the issue of penalty within 28 days; and ORDERS: 2. That the Solicitor pays the Applicant's costs of this Application as agreed or assessed. The Tribunal reserves its final decision in relation to penalty pending receipt of these further submissions from the parties. REASONS FOR DECISION 1 On 21 July 2008 the Council of the Law Society of NSW ("the Society") filed an Application pursuant to Section 55(1) of the Legal Profession Act 2004 ("LPA") against Terence William Stormer ("the Solicitor"). The Society alleged that the Respondent was guilty of professional misconduct as set out in detail and particularised in the Application. 2 There were ten grounds of complaint and these allege the following: (a) Ground l - Wilful breach of section 61 Legal Profession Act 1987. (Schedule of Particulars 1A-1G; 2A-2O; 3A-3E; 4A-4J;6F-6I and 6Q-6V); (b) Ground 2 - Wilful breach of section 62 Legal Profession Act 1987. (Schedule of Particulars 6A-6C); (c) Ground 3 - The Solicitor misled and/or attempted to mislead his client with a view to obtaining monies from him. (Schedule of Particulars 2A-2I); (d) Ground 4 - The Solicitor failed to account to Commercial Union Workers Compensation Insurance for costs claimed and received in error. (Schedule of Particulars 4A-4; 5A-5E); (e) Ground 5 - The Solicitor intermingled his affairs with those of his client (Schedule of Particulars 6A-6W; 7A-7L); (f) Ground 6 - The Solicitor failed to protect his client's interests. (Schedule of Particulars 6A-6Z; 7A-7L); (g) Ground 7 - The Solicitor retained moneys borrowed from his client in contravention of Rule 12 despite disciplinary action against the Solicitor being concluded on the basis that the funds had been paid out at the direction of the client. (Schedule of Particulars 6F-6T; 6X and 6Z); (h) Ground 8 - The Solicitor, in his correspondence to the Law Society, attempted to mislead it (Schedule of Particulars 6F-6T and 6X and 6Z); (i) Ground 9 -The Solicitor maintained an improper lien over client Trust monies (Schedule of Particulars 6U-6Z); (j) Ground 10 - The Solicitor failed to account to his clients for funds received (Schedule of Particulars 2A-2O; 6A-6Z; 7A-7L) SCHEDULE OF PARTICULARS 1) Client: Mr Trevena A. The Solicitor acted for Mr Trevena in a workers compensation claim which was settled. Costs and disbursements were agreed and paid by the insurer in the sum of $5,426.20 on 2 August 2001. This amount included fees due to Mr David Maddox, Barrister of $1,466.20. B. On the same day as the receipt of the costs into the trust account (18 December 2001), $4,075.00 was transferred to the office account of the Solicitor and $1,265.00 pad to the client, Mr Trevena. C. Mr Trevena was overpaid $600.00, and the Solicitor had transferred, to his office account, amounts in excess of the total sum due to the firm, being $780.00. D. Mr Trevena reimbursed the amount overpaid to the extent of $578.80, leaving a balance of $21.20 owed. The amounts repaid ($578.80) plus the balance which remained in the Trust account ($86.20), in the total sum of $665.00 were transferred to the office account of the Solicitor; described as "on account of costs and disbursements". E. On 4 June 2005, Mr Maddox complained to the Office of the Legal Services Commissioner ("the OLSC"). F. Mr Maddox entered into an arrangement with the Solicitor for the repayment of fees due, by instalments of S300 per month from 15 February 2006. G. On receipt of the receiver's report dated 1 May 2006, the Solicitor obtained the file from storage and paid Mr Maddox the amount outstanding of $1.466.20. 2) Client: Mr Reeves A. The Solicitor acted for Mr James Reeves in respect of a civil arbitration and personal injury claim. The matter was settled in the sum of $70,000.00 plus costs. B. The sum of $7,000.00 was paid to the Health Insurance Commission ("HIC") and the balance of $63,000.00 forwarded to the Solicitor on 4 January 2000, when it was deposited into his trust account. C. Mr Maddox was briefed and indicated that an amount of $3,575.00 was outstanding to him; $720.00 of which related to the civil arbitration matter. D. On 17 January 2000, a payment of $500.00 was made to Mr Maddox, leaving a balance of $3,035.00 due. E. On 24 January 2000, the Solicitor submitted a party/party bill in the sum of $16,878.40 to the Solicitors for the defendant. The bill comprised profit costs of $7,420.46 and disbursements totalling $9,457.94 to make a total of $16,878.40. The costs were settled in the sum of $14,500.00. F. The disbursements totalling $9,457.94 included Mr. Maddox's fees in the (erroneous) amount of $1,765.00. G. On 4 April 2000, the Solicitor received $14,500.00 and deposited this amount into his trust account. On the same day, he wrote to Mr Reeves concerning amounts which remained unpaid and requested money to be received from the HIC. H. On 5 May 2000, the Solicitor wrote to the HIC, requesting that the refund due to Mr Reeves be forwarded to his office. The refund, which amounted to $1,545.50, was received on 10 July 2000 and deposited into his trust account. I. From the settlement moneys and party/party costs, amounts of $66,728.45 were paid to or on behalf of Mr Reeves. No form of accounting was issued to Mr Reeves, and there was no correspondence in respect of certain payments which appear to have been made on Mr Reeves' behalf. J. The Solicitor transferred the sum of $8,240.25 into his Office Account on 8 August 2000 made up of $1,492.00 (disbursements paid) and $6,748.25 (on account of profit costs). K. On 5 February 2001, the Solicitor paid a further $500.00 to Mr Maddox, leaving an amount of $2,575.00 owing as at that date. L. Repeat particular 1 E above. M. On 16 August 2005, the sum of $2,275.00 was brought to account in the debtors account in the office ledger in respect of Reeves: described as "fees outstanding - due to David Maddox". N. The amount of $2,275.00 was written off by the Solicitor on 14 December 2005. O. Repeat particular 1F above. 3) Client: Mr Watters A. The Solicitor acted for Mr Waters in a Workers' Compensation Claim. In a letter dated 14 October 2002, Mr David Maddox wrote to the Solicitor concerning the matter and his fees. B. The matter settled in about February 2003. C. A bill of costs was submitted to the Solicitors for the respondent in September 2003. The bill included fees due to Mr Maddox of $1,060.50 which were not allowed as the applicable schedule did not allow for counsel's fees. D. In a letter dated 27 November 2003 from Mr Maddox to the Solicitor. Mr Maddox agreed to accept the sum of $795.30 in full payment of outstanding fees. E. Costs were received by the Solicitor on 16 February 2004 in the sum of $4,569.00 and deposited directly into the Office Account. On the same day cheques were forwarded to David Maddox totalling $771.80. 4) Client: Ms Avramis A. The Solicitor acted for Ms Maria Avramis in a Workers Compensation Claim. The matter was settled in August 2003. B. A Bill of Costs was submitted to the Insurers on 6 August 2003 in the sum of $13,720.30. The Bill of Costs included as a disbursement the fees due to Astley Thompson Cox ("ATC"), the previous Solicitors for Ms Avramis, of $6,337.10 C. A cheque covering settlement moneys in the sum of $25,425.00 was received on 18 August 2003 and given to Ms Avramis. D. The sum of $13,720.30 was received by the Solicitor and deposited into the Trust Account on 4 September 2003. E. The Solicitor wrote to ATC on 3 and 25 September 2003 to negotiate the amount to be paid as costs. F. ATC replied on 30 September 2003 stating, "in an effort to finalise this matter we would be willing to accept $5,900.00 (incl. of GST)." G. The sum of $5,900.00 was paid on 13 October 2003. Despite negotiating with ATC, the Solicitor had in fact received the agreed party/party costs which included $6,337.10 due to ATC on 4 September 2003. The Solicitor had not informed ATC of the true position, when corresponding with them after 4 September 2003. H. The difference between the amount received on behalf of costs due to ATC of $6,337.10 and the amount paid of $5,900.00 left $437.10 remaining the Trust Account. This sum was transferred to the Office Account described as "payment of costs" on 14 October 2003. I. A Bill of Costs (Invoice No. 5029, dated 14 October 2003) is in the instruction file addressed to CGU Workers Compensation in the amount $437.10 with a note thereon "Dummy Bill - Not Sent". J. In a statement made by the Solicitor dated 23 March 2007, the Solicitor informed the Society as follows: 'The retention of the sum of $437.10 at the time. I concede should have been more adequately disclosed to Astley Thompson". 5) Client: Mr Gallo A. The Solicitor acted for Frances Gallo in a Workers Compensation Claim which settled on or about 20 May 2002. B. The Solicitor rendered a memorandum to the Insurers in the sum of $13,093.51 on or about 31 May 2002. That sum was received on December 2002. C. The disbursements, excluding Counsel's fees, as per the Bill of Costs totalled $4,046.71. The total amount incorrectly shown in the bill was $7,074.71 (an excess of $3,028.00). D. There was a surplus remaining in the trust ledger account of $3,625.83 after the transfer of costs, the payment of all disbursements and a refund to Mr Gallo for disbursements paid by him. This sum was transferred to the Office Account on 17 June 2004 after the original bill was reversed and replaced by a bill which increased the profit costs to absorb the surplus. E. In a statement made by the Solicitor dated 23 March 2007, the Solicitor informed the Society as follows: "I agree that the sum of $3,028.00 was overpaid by the insurance Company. When the second bill was done I made an assumption that there had been a mathematical error...and had assumed an insurance company would not pay us any more than we were strictly entitled to. I signed the Account but at that point I was relying upon my staff. I accept that it is my responsibility to independently check the Account and the accounting detail more carefully however". 6) Client: Mr Peace A. The Solicitor acted for Mr Leigh Peace in respect of his entitlement in the Estate of the Late A W Peace. Another firm of Solicitors acted in obtaining a Grant of Probate and in administering and distributing the Estate. B. On 20 August 1998 the Solicitor received a cheque drawn payable to Mr Peace in the sum of $108,000.00 representing a distribution in the Estate to Mr Peace. In respect of this sum Trust Account Receipt No. 1869 was issued stating the amount to be on account of costs and disbursements. The receiver could not find evidence that the cheque was deposited to the Trust Account. C. In contradiction to the issuing of a Trust Account Receipt, there is a letter in the file dated 25 August 1998 written to Mr Peace by the Solicitor, apparently enclosing the cheque in his favour in the sum of $108,000.00. D. On 8 September 1998, the Solicitor had requested Mr Peace to forward the total sum of $4,000.00 to be applied as to $2,000.00 in relation to his fathers Estate and $2,000.00 in respect of work concerning efforts to contact his son. E. The sum of $4,000.00 was received from Mr Peace and deposited to the Trust Account on 11 September 1998. This amount was credited ($2,000.00) to the trust ledger account styled "Re. Family Law" and ($2.000.00) to the trust ledger account styled "Re. Estate". F. Mr Peace forwarded a cheque in the sum of $50,000.00 to the Solicitor in respect of which Office Account Receipt No. 944 was issued on November 1998: detailed as Account No 1100 "Loan from L Peace." The cheque was deposited to the Office Account on that day. G. A loan agreement concerning the $50,000.00 was prepared by the Solicitor, dated 16 November 1998, and signed by both Mr Peace and the Solicitor. H. The terms of the agreement included: 1) That the $50,000.00 was advanced by Mr Peace to the Solicitor on 6 November 1998; 2) That the loan is envisaged to be a long term loan but the Solicitor will repay to Mr Peace monies for special projects as he requires; and 3) That the Solicitor will pay interest on the money at the rate of 10 % per annum reducible. I. The agreement did not specify when the moneys were to be repaid, nor was there any indication that Mr Peace has sought/was advised to seek independent legal advice in respect of the loan. J. The Solicitor advised Mr Peace that he (the Solicitor) would pay 10% interest on the loan; however there is no evidence of a proper accounting of interest due to Mr Peace. K. In about February 1999 the Law Society made a complaint against the Solicitor in respect of his borrowing from Mr Peace in contravention of Professional Conduct and Practice Rule 12. In response to the Law Society's complaint the Solicitor forwarded a letter dated 18 March 1999 addressed to the Society signed by Mr Peace. L. The letter dated 18 March 1999 was prepared by the Solicitor who forwarded the letter by facsimile to Mr Peace on 17 March 1999 for 'approval and signature'. In a separate letter dated 18 March 1999 the Solicitor responded to the Society's complaint, enclosing a copy of Mr Peace's letter of the same date. M. By letter dated 6 April 1999, to the Society, the Solicitor confirmed that Mr Peace was a client of his at the time the money was advanced. N. On 17 September 1999 the Society informed the Solicitor that it had then resolved that he be reprimanded and that the reprimand required his consent. The Society further advised the Solicitor that he should repay the loan in full within 28 days of 16 September 1999 as the failure to repay the loan within the time frame would be viewed as a continuing breach of Rule 12, capable of being regarded as professional misconduct. O. On 28 September 1999 the Solicitor informed the Society that he consented to the reprimand and he requested a further 28 days beyond that specified to effect the repayment of the loan. P. The Solicitor wrote to Mr Peace on 29 November 1999 stating as follows: "We refer to our telephone conversation today and confirm that the Law Society has required me to disburse the funds and we note that you are happy for my friend Russell Ansil, Financial Advisor to manage the funds and disburse them as required. Please sign the enclosed authority as discussed and we will disburse the funds as indicated." Q. On 2 December 1999, the Solicitor wrote to the Law Society as follows: "Pursuant to the authority enclosed, signed by Mr Peace, we have sent cheques to Mr Peace, Jane Smith and Mr Ansil. We trust this now resolves the matter." [emphasis added] R. The authority signed by Mr. Peace authorised the $50,000.00 to be disbursed as follows: Leigh Peace $ 3,000.00 Jane Smith $ 500.00 To be retained in relation to Family Law Proceedings $ 3,000.00 To Mr Russell Ansil – Financial Advisor $43,500.00 $50,000.00 S. The Society then closed the complaint file believing that the matter had been resolved. T. At the time of writing the letter to the Society (2 December 1999), and despite Mr Peace's instructions to pay the balance of the loan to a financial adviser (Mr Russell Ansil), the Solicitor had not sent the cheque as indicated. U. Bills of Costs were forwarded to Mr Peace on or about 12 February 2003; one relating to the Estate which amounted to $2,055.00 up to 13 September 2000, and one in respect of the Family Law matter in the sum of $11,376.00. Neither of the accounts rendered gave credit for the amount of $4,000.00 paid by Mr Peace in September 1998. V. In response to two letters from the Solicitor dated 12 and 25 February 2003, Mr Peace wrote to the Solicitor on 4 March 2003: "My trust money is no longer available to you or anyone else. It was promised to be used at 10% and we were partners." W. Mr Peace complained to the OLSC on 31 October 2003. X. In a letter dated 16 June 2004, the Solicitor informed the Society that the money was not forwarded to Mr Russell Ansil. Y. In response to enquiries made by the Society, the Solicitor, in a letter dated 25 October 2005, stated: "I agree that I cannot maintain a lien over some of the moneys Leigh has advanced." Z. In a statement made by the Solicitor dated 23 March 2007, the Solicitor informed the Society as follows: "The letter to the Law Society set out very clearly how the funds were to be disbursed with the bulk of them going to Mr Ansil. The funds were not in fact sent to Mr Ansil'. In the same statement, the Solicitor stated as follows: ''l exercised a lien over all of the funds, as I thought that was the only way I could be sure that Mr Peace negotiated with me positively and to ensure that I was ultimately paid." 7) Client: Ms Winkler A. Ms Rita Winkler was a client of the Solicitor. She gave the Solicitor $50,000.00 to be invested on her behalf by cheque dated l July 2003. B. The cheque was deposited into the account of Leveraged Equities Limited, being an account of Leveq Nominees Pty. Limited (which subsequently changed its name to Pirie Street Nominees Pty. Limited) and which invested the funds with other funds forwarded by the Solicitor in OM-IP 130 Plus Limited, which is a company registered in the Cook Islands now in the name Pirie Street Nominees Pty. Limited; Account - Terence William Stormer, 869710. C. On the same date (1 July 2003) the Solicitor invested the sum of $87,000.00 which, with the $50,000.00 provided by Ms Winkler, covered an allotment of 137,000 fully paid redeemable shares In OM-IP 130 Plus Limited at a price of $1.00 per share. D. There is subsequent correspondence, in which the Solicitor refers to his own investment as $82,000.00 making a total shareholding of 132,000 shares. E. On 2 November 2004 the Solicitor wrote to Ms Winkler enclosing a Joint Venture Agreement. F. Ms Winkler was first made aware of the details of her investment when a copy of the documentation concerning OM-IP was forwarded to her in late 2004. This document clearly shows that the shares cannot be redeemed until 3 June 2006 and that no interest would be paid and no dividends paid until maturity on 30 November 2015. G. The Solicitor did not take any steps to give any security as to ownership of the shares to Rita Winkler until the Joint Venture Agreement was forwarded in November 2004. H. On 28 June 2005 Rita Winkler wrote to the Solicitor concerning the investment stating as follows: "RE: $50,000.00 investment (Joint Venture)… In relation to the abovementioned investment I demand documentation/Investment Certificate confirming in what name and where my $50,000.00 has been invested. If you are unable to provide the documentation as requested I demand the full amount of $50,000.00 be repaid to me within 7 days." I. On 1 July 2005, the Solicitor wrote to Ms Winkler, advising that $77,000.00 was forwarded to the broker by him, however the total shareholding of 137,000 shares of $1 each will require a further sum of $87,000.00 to be invested (in addition to the sum of $50,000.00 provided by Ms Winkler). J. By letter dated 9 December 2005, Mr McDonald, on behalf of Rita Winkler, complained to the Society. K. In a statement made by the Solicitor dated 23 March 2007, the Solicitor informed the Society as follows: "Accordingly I acknowledge that I did not do some of the things which one would have done had they been a Solicitor acting on behalf of a client who was investing money via the Solicitor. However this occurred because in my mind Rita Winkler was not a client of mine in regard to this transaction and was only a client of mine in a very limited sense in general". L. In a letter to the Society from Mr Coode, on behalf of the Solicitor, dated 3 September 2007, the following is noted: 'The actions of the practitioner may be categorised as being a lack of judgement or lack of vigilance on his behalf in separating the affairs of a client from his personal situation." 3 The Society sought the following Orders: a) That the Solicitor be fined; b) That the Solicitor be reprimanded; c) That for a period of three (3) years from the date of the Tribunal's Judgment, the Solicitor's right to practice be restricted to that of an employed Solicitor and that the Solicitor, after the expiration of the said period, not be issued with an unrestricted Practising Certificate until such time as he has attended and successfully completed, with a minimum pass mark of 75%, a course in Legal Ethics conducted by the College of Law and the contents of which course is acceptable to the Society. d) That the Solicitor pays the costs of the Applicant Society; e) Such other Order as the Tribunal deems fit. 4 The particulars of complaint alleged against the Solicitor are detailed in the Schedule in which the numbered paragraphs related to seven specific clients. The particulars are detailed above in paragraph 2. 5 On 2 October 2008 the Solicitor filed a reply in the proceedings. It is of course stressed that the 10 complaints lodged by the Society each alleged professional misconduct. The Solicitor replied "not admitted" to each of the 10 grounds. 6 In relation to the first ground, the first Solicitor did not dispute the facts alleged, but he disputed that they amounted to a wilful breach of section 61 LPA and stated that the conduct alleged was insufficient to ground findings of professional misconduct, but may be "sufficient" to ground a finding of unsatisfactory professional conduct if they were accepted. 7 In relation to the second ground the Solicitor admitted the facts alleged, but he did not admit that they constituted a "wilful breach" of the provisions of section 62 LPA. He submitted that at their highest "there is insufficient to ground a finding of professional misconduct", but he conceded that it may be open to the Tribunal to make a finding of unsatisfactory professional misconduct. 8 In relation to the remaining eight grounds the Solicitor: a) admitted or indicated that he was prepared to admit the facts alleged or the facts said to constitute a ground of complaint or terms to that effect; b) disputed that the conduct admitted was sufficient to constitute professional misconduct, but conceded that the facts were capable of constituting unsuccessful professional conduct. 9 Despite the Solicitor's concessions, the Tribunal must be comfortably satisfied that the facts relied upon are established. If it is so satisfied, it must then determine whether the facts in each ground separately constitute professional misconduct or unsatisfactory professional conduct and whether or not the conduct alleged in the first 2 grounds was "wilful". 10 The Legal Profession Act 2004 contains non exclusive definitions of both "professional misconduct" and "unsatisfactory professional conduct". These are as follows: Section 496 Unsatisfactory professional conduct For the purposes of this Act: unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. Section 497 Professional misconduct (1) For the purposes of this Act: professional misconduct includes: (a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and (b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice. (2) For a finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under sections 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local Practising Certificate and any other relevant matters. 11 It is well established that the Tribunal is not limited to the orders sought by the Society or other complainant in applications of this nature. This includes making a protective order where the Application may have only sought a lesser penalty or penalties. The Tribunal drew this to the parties' attention during submissions on the second day of the hearing (see transcript page 60 L23-28). 12 In Law Society of New South Wales v Pearson [2005] NSWADT 206, this Tribunal considered the issue of making more onerous orders than are sought by the Complainant in the following terms: "45 In the Information the Society sought that the Practitioner be publicly reprimanded and that he pay the Society's costs. S171C lists a wide range of orders that the Tribunal may make. That list is prefaced by the following: (1) If, after it has completed a hearing relating to a complaint against a legal practitioner, the Tribunal is satisfied that the legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct, the Tribunal may do any one or more of the following: … 46 The Tribunal is of the view that this provision of the Act imposes a responsibility on the Tribunal to make such one or more orders from the list contained in the section as it regards as being appropriate in all the circumstances of the conduct which gave rise to the complaint or complaints in question. The section does not make reference to the orders sought at the time the complaint was filed nor indeed the orders proposed in the investigative process nor the orders sought in addresses by Counsel for the complainant. The Tribunal takes the view that its duty is to make an order within the range of orders prescribed under s 171C, but that it is not inhibited in making those orders by the terms of orders detailed in the information and sought by the complainant. 47 In Law Society of NSW v Bannister [1990] NSW LST 7, in which the complainant Law Society sought (at 8) "such orders pursuant to s163 of the Legal Practitioners Act 1987 and such further or other orders as the Tribunal shall consider appropriate and an order for costs", the Tribunal in its reasons said at 9: "Where misconduct is established the task for the professional Tribunal is to determine whether it indicates unfitness or is more properly to be treated as an isolated or passing departure from proper professional standards amounting to something less than proved unfitness". 48 The Tribunal members in Bannister were initially divided in their opinion and ultimately they made no order for a strike-off or suspension, but instead a fine of $10,000.00 was imposed and costs were ordered against the Practitioner. 49 On appeal in Law Society of NSW v Bannister in the Court of Appeal [1993] 4LPDR 6 the Judgment in the Court of Appeal was delivered by Sheller JA who at 12 said: "In its grounds of appeal the Law Society claimed amongst other things, that the Tribunal had erred in finding that the Solicitor was fit to continue to practise as a Solicitor of the Supreme Court of New South Wales and sought an order that his name be removed from the Roll of the Solicitors of the Court. This approach is different from that taken by Counsel for the Law Society at the hearing before the Tribunal ..." 50 At 17, Sheller JA said: "In my opinion the Court should now make the order that the Tribunal should have made … On more than one occasion during submissions to the Tribunal its (i.e. the Law Society's) Counsel indicated that the Law Society left it to the Tribunal to decide whether the Solicitor was unfit and whether or not her name should be removed from the Roll. At no stage did Counsel urge or even suggest that on the evidence the Tribunal was bound to order that the Solicitor's name be removed from the roll. Accordingly, it seems surprising that the Law Society should now argue that the Tribunal erred in adopting a choice that the Law Society left open to it at the hearing. However since, in my opinion protection of the public in the manner I have described required that the Solicitor's name be removed from the Roll I accept that, whatever attitude was taken by the Law Society at the hearing before the Tribunal, it acted correctly in prosecuting this appeal." The outcome was that Bannister was struck off. 52 The Tribunal accepts that the orders sought by the complainant in Bannister before the Tribunal were in general terms. This certainly did not incorporate the strike-off order that the Court of Appeal ultimately found was appropriate. The Court of Appeal's decision is not on the precise issue of the orders sought in the Information but it extends in the view of this Tribunal to cover orders found appropriate by the Tribunal at least beyond the seriousness of the orders argued in submissions by the complainant. 53 The Tribunal itself has taken the matter further in subsequent decisions. In Law Society of NSW v Ciampa [1997] NSW ADT 13 the Law Society sought that the Solicitor be reprimanded and that a substantial monetary penalty be imposed. The Society also sought an order for costs. In its reasons the Tribunal said at 60: "The Tribunal is of the opinion that the orders sought by the Society that the Solicitor be reprimanded and a substantial monetary penalty be imposed fall short of orders that adequately protect the public. An order is needed to deter the Solicitor from repeating the misconduct and also deter others who might be tempted to fall short of the high standards required of them by acting as Solicitors without the appropriate practising certificates. Whilst it is not known whether the Solicitor intends to resume his career as a Solicitor, nevertheless the Tribunal is of the opinion that there should be a period of time during which the Solicitor is suspended from holding a practising certificate." 54 In Ciampa the Tribunal ordered: i. Reprimand; ii. A fine of $10,000.00; iii. That no practising certificate be issued to the practitioner until three years from the date of order; and iv. Costs. 55 The Tribunal places reliance in coming to its decision as to its jurisdiction on the decision in Ciampa and also in the recent decision of Law Society of NSW v Berry [2005] NSW ADT 46 . In Berry the complainant Society sought a reprimand, a fine and costs order. At 6 the Tribunal stated in its reasons: "At the end of the Solicitor's oral evidence, the Society pressed its application for reprimand, fine and costs. However, we, in the execution of our clearly established protective function, indicated our preliminary view that the Solicitor's right to practise was in issue. Further, we raised, we trust sufficiently clearly, the prospect of a supervision regime or mentoring order pursuant to s171C(2)(b) and adjourned the matter …." 57 At 10 the Tribunal concluded: "All of the evidence considered, we are not satisfied to the requisite standard that the Solicitor is, at this time, a person who is fit to practise." 58 The Tribunal ordered that the practitioner Berry be struck off. 59 Taking into account the provisions of s171C and the decisions in Bannister , Ciampa and Berry (supra) the Tribunal holds that it is empowered under s171C and indeed has a duty under that section to consider the appropriate disciplinary orders to be made without being limited to the range of orders sought by the complainant in the Information. The first ground - Breach of section 61 LPA 13 The Society relied in relation to this ground on matters put into evidence in relation to Trevena, Reeves, Watters, Avramis, and Peace. Client: Mr Trevena 14 The essential facts in relation to section 61 LPA are that the Solicitor received trust moneys on 2 August 2001 after the settlement of a worker's compensation claim, which included counsel's fees of $1466.20. He did not pay counsel's fees from his trust account and the trust moneys were reduced by various transfers and refunds, so that by 10 February 2002 there was a balance of $86.70. That sum was transferred to office as costs on 28 July 2003, which cleared the ledger, although counsel's fees remained unpaid. He clearly transferred monies that he received for counsel's fees to his office account. More than four years later, after he received Ms Sayers' report of 1 May 2006, that he paid Mr Maddox – not from his trust account, but from some other source. 15 In his affidavit the Solicitor deposed: "I accept that he was rightly disconcerted about that non-payment of some fees. That followed a period where we had done a lot of work together harmoniously. He was a barrister who received most of the briefs from this firm. I have always accepted the duty of Solicitors to pay barristers, even when they have not been paid by their clients". 16 The Tribunal is satisfied that the Solicitor received money for counsel's fees, but applied it for other purposes and when the complaint was made there was no money in the trust account to them. He then sought to satisfy counsel by paying him on an instalment plan. It is disingenuous for the Solicitor to argue his case in the terms quoted in paragraph 14 above. The volumes of briefs sent to the barrister can in no way create any suggestion that money deposited into the trust account to pay counsel's fees can be used for any other purpose. The Solicitor was a sole practitioner and was solely responsible for dealings on his trust account. 17 The Solicitor's affidavit detailed his career history, the commencement of his own practice in 1996 and a number of community projects in which he had been involved, including the Law Society Speakers Panel, West Care, the Law Society's Pro Bono Scheme, Elevate (the social work welfare group of those in crisis and need), Blue Mountains City Church, Regeneration (the help and support group for those with addictive behaviours), Review of Recidivism and Prison Sentence Reform and Financial Support of the Vocaid (a relief organisation active in Sri Lanka). These contributions reflect credit on the Solicitor and they have been considered carefully by the Tribunal in determining the final orders to be made. 18 However, performing social and community work does not relieve a Solicitor from basic obligations in relation to his Trust Account. This Solicitor is a sole practitioner. The trust account was his responsibility and he could not delegate to employees without personally checking the manner in which trust moneys were dealt with. 19 Further, the Solicitor deposed to the files of employees that he took over when he established his sole practice. He acknowledged that his most serious failure was the absence of a strict practice to record disbursements, including counsel's fees. This was his responsibility, although he gave evidence of instructions that he gave to staff such as "make sure you include all the disbursements", although evidence that he knew his obligations does not excuse him from his duty to personally ensure that those obligations are met. 20 Relying upon his staff is not an answer to the section 61 LPA complaint with respect to counsel's fees. Further, the law is clear that "reckless indifference" also satisfies "wilful" in relation to a section 61 LPA complaint. In this regard the oft-quoted text of Hardie J in Law Society v Hodgekiss [1962] SR (NSW) 340 at 352 is significant. See also Law Society of NSW v Cornwell No 2 [2006] NSW ADT 308 at 53-54 and Law Society of NSW v Ong [2008] NSWADT 266 at 66 to 70. 21 In Hodgekiss Hardy J said: " I am of the opinion that the section deals with personal breaches of statutory provisions in question on occasions when the Solicitor knew or believed that he was committing such breaches or was recklessly careless in that regard. It is thus essential in an enquiry as to whether there had been wilful breaches by a Solicitor of the provisions of ss 41 and 42 to examine the facts and circumstances relevant to his state of mind, knowledge and intention at the material dates." 22 The Solicitor's amended memorandum of costs and disbursements to Allianz Australia Workers Compensation dated 8 August 2001 clearly includes counsel's fees of $1,466.20 and professional costs of $3,215.00. The amended memorandum and counsel's tax invoice are annexed to Ms Sayers' report. The costs component is substantially less than the amount that he actually transferred to his office account. On the invoice it is clear that costs of $3,215.00 plus photocopying and incidental expenses of $80.00 were the only fees to which he was entitled, but Ms Sayers' report indicate that he made the following transfers: 18 December 2001 $4,075.00 22 July 2003 $665.00 23 It is trite to state that the Solicitor was obliged to ensure that these amounts were correct and that he signed the cheque(s) as the sole signatory on his trust account to in order to transfer the moneys to himself. In his evidence in chief on the first day of the hearing, the Solicitor said in relation to the barrister concerned (in this and the matters of Reeves and Watters) "... he often attributes me to his earlier success at the Bar because I was able to keep them fed with a number of briefs from his old matters. So I was, we became friends because of our close association and so his reporting me was, needless to say, a great disappointment although there had been some number of reminders to, to the practice about outstanding fees." 24 The evidence continued: "Q. So you say he had sent reminders before going as far as to complain? A. Yes. Q. What had happened to those reminders? A. The accounts were, those reminders were given to the bookkeeper and I understood that payments were being made, or instalments, that they weren't, wasn't happening." [See first day of hearing TP32 lines 29-42]". 25 It is apparent from his oral evidence that the Solicitor still felt indignation that the barrister could make a complaint despite his admitted failure to comply with section 61 LPA. He received reminders, but clearly thought they were a matter for "accounts" to pay or make instalment arrangements. His subsequent evidence at page 33 [L29-32] in relation to Trevena was: " Well, I, I think without looking at my notes, the, that particular matter was where the, his account had not been put on the system so it was missed and the moneys that were received went in to pay out our account that he was overlooked. It was poor and sloppy bookkeeping. It was certainly not deliberate on my part to avoid paying David. Certainly one way to become an enemy is not to pay the people you own money to. So it was not something I did intentionally." It was clear to us that the Solicitor was seeking to explain his conduct and establish that it was not professional misconduct. He displayed an ongoing lack of appreciation of his obligations. 26 In cross-examination the Solicitor agreed that he received a series of reminders and/or requests for payment from the Counsel concerned on 1 July 2004, 7 July 2004, 6 January 2005, while exhibit C at page 91 contains a further letter to the Solicitor concerning unpaid fees including Trevena, then outstanding for over four years. The Tribunal adopts and applies the words of Hardie J in terms that make them very applicable to this matter. We are comfortably satisfied that the Solicitor's behaviour was at the very least of the "recklessly careless variety" and that it satisfies the requirements of section 61 LPA and that this constitutes professional misconduct. We find accordingly. Client: Mr Reeves 27 This matter was settled for $70,000.00 plus costs. The Solicitor did not dispute the facts and while he did not specifically refer to this matter in his Affidavit it is apparent that he relied on the same issues regarding "wilfulness" and "staff responsibility" are concerned as he did in relation to "Trevena". 28 The trust account records are found at page 262 of the annexure to Mr Collins' Affidavit and verify the payments as particularised in the Application. The bill of costs (at page 266) indicates that fees of $1,765.00) were due to the Counsel who complained while Counsel charged a total of $3,575.00, including $720.00 for the civil arbitration matter. The Solicitor compromised on the party/party bill of costs by accepting $14,500.00 rather than a total of $16,878.40 (comprising $7,420.46 for professional costs and $9,457.64 for disbursements), but this does not of itself affect in any way the amount owing to counsel. The evidence does not suggest that the barrister was to bear any reduction in his due to the compromise. The costs, as assessed, were paid in full on 4 April 2000. The trust ledger (page 262) indicates that $500.00 was paid from the settlement moneys to the barrister on 17 January 2000. The Tribunal accepts that a further sum of $500.00 was paid on 5 February 2006 to the barrister to the barrister. On 16 August 2005 the outstanding balance of fees was brought into account in the office ledger and it was written off on 14 December 2005. 29 The Solicitor did not give oral evidence specifically in relation to this ground of complaint. However, he was cross-examined (see Transcript at page 71) in relation to the sum of $63,000.00 that he received on 4 January 2000, as follows: "Q. And he received that money on the basis that Mr Maddox was owed $3,575.00? A. Yes. … Q. Why did you only pay him $500.00 and not the full amount owing? A. I'm not sure why. Q. You then received another $1,545.50 on 10 July 2000 which is another few entries down. Do you see that? A. Yes Q. Why didn't you pay Mr Maddox the outstanding amount of $3,075.00 before transferring the amount into your Office Account? A. I should have done that and I don't know why. Q. You have no explanation? A. No." 30 The Tribunal is comfortably satisfied that the Solicitor wilfully breached section 61 LPA and that is conduct amounts to professional misconduct. Client: Mr Watters 31 Once more the facts were admitted. The sums of money involved were small. The Solicitor's assessment of costs included counsel's fees of $1,060.50, which were not recoverable under the Scale that applied to workers compensation claims. On 27 November 2003 counsel reduced his fees to $796.30. On 16 February 2004 the Solicitor received costs and disbursements totalling $4,569.00, which he deposited directly into his office account. That same day he forwarded a payment of $771.80 to Counsel. 32 Clearly the payment that the Solicitor received included the additional sum of $23.50 and this is the breach that is the subject of this complaint. It is rather extraordinary that such a small amount should be left out of the payment and there is a strong argument for implying that this was wilful. In any event, we are comfortably satisfied that its omission was at the very least reckless and satisfied the test in Re Hodgkiss [supra]. The amount involved is irrelevant. If it stood alone, then we might have been persuaded that this was a trivial issue. However, this is one of a series of complaints and we have given it appropriate weight regarding all of the complaints. We are comfortably satisfied that this conduct amounts to professional misconduct and we find accordingly. Client: Ms Avramis 33 This was also a workers compensation claim. The evidence indicates that on 6 August 2003 the Solicitor submitted a bill to the workers compensation insurer totalling $13,720.30, including $6,337.10 for costs claimed by his client's former Solicitors ("ATC"). On 3 September 2003 and again on 25 September 2003 he wrote to ATC seeking to reduce the amount payable to them. By the latter date he had been paid in full (he received a cheque from the insurers on 4 September 2003 for $13,720.30). After the second letter ATC agreed to accept $5,900.00, which the Solicitor paid to them on 13 October 2003, leaving a trust account balance of $437.10 (being moneys that should have been payable to ATC), which he transferred to the office account. The received found in the file a Bill totalling $437.10 that was addressed to the insurer, but it was marked - "dummy bill - not sent" 34 The Solicitor did not specifically address this matter in his affidavit. In his Reply, he did not dispute the facts but asserted that his conduct did not amount to professional misconduct. The Tribunal is of the view that the facts call into question the Solicitor's honesty. In relation to section 61 LPA, the evidence indicates that the Solicitor's conduct was wilful in the full sense of that term. There is no explanation for the Solicitor's conduct other than he sought and managed to improperly receive a further sum of $437.10 that he was not entitled to by what is hard to describe as other than fraudulent behaviour. The Section 61 LPA complaint is very clearly established. Client: Mr Peace 35 The Solicitor did not dispute the facts, as alleged. He received $50,000.00 from the client, which he paid into his office account on or about 6 November 1998. The money should have been held exclusively for the client and on or about 29 November 1998 it should have been dispersed in accordance with Mr Peace's directions. He had no right to deposit any of those moneys into his office and this is clearly a clear breach of section 61 LPA (1)(a). 36 Although the Solicitor received a direction to pay the money in a certain manner, he failed to do this, which was further breach of section 61 LPA(1)(b). He subsequently stated that the moneys had been dispersed in accordance with Mr Peace's directions, which forms another ground of Complaint as he told the Law Society that he had in followed those directions. 37 The Tribunal is comfortably satisfied that Solicitor's actions and failings were deliberate and therefore wilful in the ordinary sense of the word and that the test of "recklessly careless" enunciated by Hardie J in Re Hodgekiss (supra) has also been satisfied by his deposit to the office account on or about 6 November 1998 and also by preparing a Loan Agreement in relation to those moneys after the event. 38 The Tribunal is also comfortably satisfied that the Solicitor's casual and careless approach to the Loan documentation, which was completed after he received the moneys, was wilful and/or "recklessly careless". Further, the deposit of trust moneys into his office account wilful and thus a breach of section 61 LPA and we and we find that this constitutes professional misconduct. The second section 61 LPA – client: Mr Peace 39 In early 1999 the Society made a complaint against the Solicitor in relation to his borrowing from Mr Peace in breach of the Professional Conduct and Practice Rule 12. 40 The Solicitor consented to a reprimand for misconduct and was required to repay the loan in full. He wrote to the Society on 2 December 1999 advising that he had sent cheques in accordance with an authority signed by Mr Peace (See page 343 of the Exhibit to Mr Collins' affidavit) and he provided a copy to the Society. The authority provided inter alia for $43,500.00 to be paid to a specified financial adviser (Mr Ansil) but this was not done. However, in his letter to the Society dated 2 December 1999, he stated: "We have sent cheques to Mr Peace, Jane Smith and Mr Ansil." However, 87% of the money was to be paid to Mr Ansil and it had not been paid at the time the letter was written and was not subsequently paid. 41 The Solicitor prepared the Direction, which Mr Peace signed on 29 November 1999. It required $43,500.00 to be paid to Mr Ansil and the Tribunal finds that as and from that date the Solicitor acknowledged that he held those moneys for payment pursuant to Mr Peace's direction. His failure to pay moneys as directed was in breach of section 61 LPA(1)(b). His correspondence was deceptive and his actions were totally inconsistent with what he wrote in relation to sum of $43,500.00. 42 The Tribunal allowed considerable latitude to counsel for the Solicitor conducting his examination in chief of the Solicitor and the Society did not object to this. The following evidence ensued (see Transcript day one at page 49): "A. Not to Mr Ansil, you mean? Q. I'm sorry, Mr Ansil. A. That's right that I had to Mrs Smith. Brennan Q. And to Mr Peace? A. No." 43 The direction was quite explicit as was the representation to the Law Society that the direction had been complied with. That direction required the payment of $500.00 from the $50,000 to Jane Smith and the Solicitor admitted not paying $3,000.00 to Mr Peace or $43,500.00 to Mr Ansil, although he told the Society that he had done so. It is no answer to suggest that acts alleged to have been performed in the past have the same status as acts that one intends at a particular time to carry out future. In his evidence in chief the Solicitor said (see Transcript day one from page 50 et, starting at L36): "Q. …… and it actually says that you have sent cheques to Mr Peace, Jane Smith and Mr Ansil. A. Yes, yes. I had sent the cheque to Mr Peace and, but I haven't sent the cheque to Mr Ansil. Q. So why did you write a letter saying that you had sent a cheque to Mr Ansil when you hadn't? A. Well in hindsight I shouldn't, I, I'd arranged for cheques to be prepared and to be dispatched but then I, I held them back because of the rumours I was hearing about Mr Ansil. Q. So at the time that you wrote these words, what was your intention at the exact time that you wrote this letter, what was your intention in relation to the money going to Mr Ansil? A. Well it was that the money would be sent to Mr Ansil to invest on behalf of Mr Peace. Brennan Q. Will be sent? A. Yes. Q. Not…. A. Would be sent, yes. Q. Not past tense? A. No. Q. So you wrote in the past detailing what you plan to do in the future perhaps? A. Yes, well, at the same time, that's right. Counsel. Q. So you say when you wrote that you had not sent the cheque to Mr Ansil but envisaged that you would? A. Yes that's right Q. And when did you expect to send a cheque to Mr Ansil? A. Well I remember arranging to get the funds to send to him at the same time so it was within days." 44 To compound matters further the Solicitor was asked by Member Riordan (see Transcript day one at page 53, line 28): "Q. Ok. You wrote to the Society and you said, I paid these, I've paid some cheques as follows. On 9 December, and this is at page 39, the Society writes back to you and says, "Thank you for your letter, I note that this matter has now been resolved with the repayment of the moneys." Then my question is, is it your understanding that the Society relied upon your statements that certain things had been done and closed their file on that basis when in fact you hadn't done the things that you told the Law Society that you had done? A. That's right. I realised I should have told them what happened." 45 The tense of "realised" in the transcript would itself be damning as to the Solicitor's state of mind at the time of the hearing when the Tribunal comes to assessing what orders it should make. In fairness, the Tribunal accepts that the last letter of that word may be a typographical error and the realisation may have only come to the Solicitor in giving his evidence. That, in turn, is an unlikely scenario as if the Solicitor were thought to have learned from his errors the Tribunal would have expected this matter to be ventilated long before he gave oral evidence at the hearing. 46 The Tribunal finds that this conduct was wilful and in breach of section 61 LPA. We regard the Solicitor's suggestion that this might be treated as unsatisfactory professional conduct as indicating his failure, even at the conclusion of the hearing, to appreciate the gravity of his misconduct and it calls into question whether he learned anything from the complaints process, Ms Sayers' report, the Society's actions and the hearing of the complaints against him. We find that his conduct amounts to professional misconduct. Ground 2 - Wilful breach of section 62 LPA – client: Mr Peace 47 This ground relates to the Solicitor's receipt of a cheque drawn in favour of his client for $108,000.00 on 20 August 1998. Ms Sayers' report on this matter is at page 221 of the exhibit to Mr Collins's affidavit. The evidence was that trust account receipt 1869 was issued for the amount and indicates that it was received on account of costs and disbursements. Ms Sayers found no evidence that the cheque was deposited into the trust account. Rather, there was a letter in the Solicitor's file from the Solicitor to Mr Peace dated 28 August 1998 enclosing a cheque in his favour for the sum of $108,000.00. 48 The Solicitor listed Mr Peace amongst the persons whom he frequently encountered outside his office, asserting that Mr Peace and he shared the same Christian beliefs. The Solicitor was cross-examined (see Transcript day 2 at page 14 Day 2) over his receipt of this sum and the following relevant evidence was given: "Q. On 20 August 1998 you received $108,000.00 on behalf of Mr Peace in relation to his estate matter? A. Yes. Q. And you issued a Trust Account receipt in relation to that $108,000.00? A. Yes. Q. Did you put the $108,000.00 into a Trust Account? A. Yes. Q. There was no record in the Trust Account of $108,000.00 being deposited and I refer you there to Ms Sayer's report at page 221. How do you explain that there was no record of it? A. I can't explain it, I gave the cheque to my bookkeeper and said "put that in the Trust Account". Q. And as there was no record it couldn't be properly audited could it? A. If there was no record I assume it couldn't be but I can't explain why it wouldn't have been showing up in the Trust Account. Q. And in fact you sent the cheque of $108,000.00 to Mr Peace didn't you? A. With the whole, with the cheque, that was supposed to go into my Trust Account. Q. A cheque in the sum of $108,000.00 made out to Mr Peace? A. Yes. Q. You sent that directly to Mr Peace? A. From memory, yes, so maybe that's why it didn't show up in the Trust Account, it never went into the Trust Account. Q. Then why did you issue a Trust Account receipt? A. I don't know. Maybe that was done in error because it never went in there." 49 The Solicitor's evidence must be considered in context of time. It does not relate to a new complaint, but rather to a matter upon which Ms Sayers reported on 1 May 2006, which was the subject of correspondence before the complaint was lodged and was particularised in a complaint that was filed on 21 July 2008. It is not necessary for the Tribunal to consider some of the more obvious interpretations which might otherwise be placed upon this evidence. We find that it is appropriate merely to note the state of mind of the Solicitor at the time that he gave this evidence, which is very relevant to the final outcome of the complaint. An investigation by a Trust Account after 20 August 1998 would have disclosed the issue of a trust account receipt for $108,000.00 with no record of the moneys having been banked, credited or paid out. 50 The Tribunal's view, based on the Solicitor's evidence at the hearing, indicates that he did not pursue or investigate the matter and that he did not regard this as being a matter of concern. In our view, his conduct calls into question his sense of responsibility and suitability to be a practising member of the legal profession. 51 There is no suggestion that the $108,000.00 was misappropriated or that it ended up anywhere other than in the hands of the client The fact remains that a trust account receipt was issued for money that was never banked and no attempt was made to clarify or rectify the Solicitor's books. It is open to the inference that the Solicitor was incapable of checking the receipts against the entries in the cash book and the ledger for that matter or looking for and finding the ledger or the lack of the ledger. However, the more probable inference is that he seemed to ignore his responsibility to check on the work of his employees in maintaining his statutory trust account records. There is no question that he knew or ought to have known that the cheque had not been deposited into his trust account, but had been sent to his client. 52 The Tribunal is comfortably satisfied that his recklessness satisfies the test in Hodgekiss and amounts to a wilful breach of Section 62 LPA, which constitutes professional misconduct. This reflects on the Solicitor's competence and suitability to undertake the responsibilities of a Solicitor. Ground 3 - Mislead and/or attempt to mislead client with a view to obtaining money from him – client: Mr Reeves 53 The particulars relied upon in relation to this ground were those numbered 2A –2I. The Solicitor admitted the conduct complained of but disputed that it was sufficient to constitute professional misconduct. He submitted that the conduct could be unsatisfactory professional conduct. 54 The facts are fairly straightforward. Mr Reeves' personal injury claims (involving a civil arbitration) were settled for $70,000.00 plus costs. $7,000.00 of the agreed sum was paid to the Health Insurance Commission and the balance of $63,000.00 forwarded to the Solicitor on 4 January 2000 and paid into his Trust Account. Ms Sayers' report, which was not challenged, indicates that the Solicitor wrote to Mr Reeves on 4 April 2000 concerning amounts that remained unpaid. He stated as follows: " We advise that Jamieson Hospital is pressing our office for the payment of $2,645.95. It is therefore crucial that we obtain the money that you receive back from the Health Insurance Commission to ensure that it is paid and it would be embarrassing if we had to advise the hospital that we had insufficient funds to pay them and your other creditors." 55 Ms Sayers' evidence is that the amount due to Jamieson Hospital was paid from settlement moneys on 19 May 2000. The Society's submission is that when the Solicitor wrote to Mr Reeves on 4 April 2000, he knew or should have known that there were ample funds from which he could pay Jamieson Hospital and he therefore misled or attempted to mislead his client Mr Reeves with a view to obtaining moneys. The ledger page annexed to Ms Sayers' report (and verified by affidavit at page 262 of the exhibit to Mr Collins' affidavit) confirms that the moneys were held in the trust account as at 4 April 2000 and were paid by the Solicitor from the trust account on 19 May 2000. 56 The letter was sent the same day as the Solicitor deposited into his trust account the sum of $14,500.00 for costs and disbursements that he received from Telstra. The statement made by the Solicitor is clearly false and that Tribunal so finds. The Tribunal does not accept any suggestion that the Solicitor was not conscious of developments in the matter as his costs had been paid that very day or that his lack of consciousness or indeed concern about the matter is an answer to his having written a letter to his client. 57 On the balance of probabilities that Tribunal finds that the action was done with the Solicitor's knowledge of the situation and if that is wrong, it certainly was an extremely recklessly false statement. The Tribunal finds that the request made to the client was clearly intended to obtain moneys from the client and this is not open to any other logical interpretation. The ground is established to the Tribunal's satisfaction and we find that this conduct amounts to professional misconduct, as the Solicitor's obligation was not to make false statements and this particular statement is at the high end of the scale for such conduct. For this reason, it cannot be treated as unsatisfactory professional conduct. Ground 4 - 1st Count - Failure to account 58 The Society relied upon particulars 4A to 4J inclusive and 5A to 5E inclusive. The Solicitor admitted the facts, but disputed that they were sufficient to constitute professional misconduct and although they were sufficient to constitute a finding of unsatisfactory professional conduct. 59 The evidence in relation to the client Avramis was simply that the Solicitor sought payment of his client's costs and disbursements in the sum of $13,720.30 from the insurers involved on 6 August 2003 including as a disbursement $6,337.10 for costs payable to the client's former Solicitors. The assessment of costs was accepted by the insurer and paid into the Solicitor's trust account on 4 September 2003. On 3 September 2003 and 25 September 2003 the Solicitor sought to negotiate the amount payable to the former Solicitors and on 30 September 2003 that agreed to accept $5,900.00 in payment of their costs. The Solicitor paid this to them on 13 October 2003. 60 As a result, the Solicitor received a benefit of $437.10, which he transferred to his office account on 14 October 2003 and he described it as "payment of costs" and an invoice was issued that day, but was marked "dummy bill - not sent". 61 In his statement of 23 March 2007 the Solicitor informed the Society "the retention of the sum of $437.10 at the time, I concede, should have been more adequately disclosed to Astley Thompson [ie. the former Solicitors]." The Tribunal does not regard a more adequate disclosure as something that could conceivably resolve the issue. The Solicitor represented that the previous Solicitors' costs were a particular sum and after being paid that sum, he then sought to reduce those costs by negotiation and then transferred the moneys to his own account using a "dummy bill" as supporting documentation. 62 In our view, the difficulties faced by the Solicitor were made worse by his comments on the submissions that he submitted to the Tribunal on 25 June 2009. These were the general submissions that prepared and were the subject of a response from the Society and our decision was then reserved. In his final submissions the Solicitor's asserted: i. he should have negotiated with the former Solicitors before negotiating with the insurance company; ii. the insurance company should have been told what the reduce fees of the former Solicitors were; iii. that it is common practice when a client changes Solicitors that there is a "reduction" by the various Solicitors on their submitted bills; and iv. That the Solicitor's actions were inappropriate but not deliberately wilful or disgraceful such as to amount to "professional misconduct". 63 The Tribunal's view is that while this was not the fraud of the century, as the amount is small, it was a fraud upon the insurer and the prior Solicitors and his client (whose costs were involved), although it did not affect his client's own pocket. In our view, the sum involved is irrelevant in determining the nature of the act, which is appalling misconduct. It fits fairly and squarely within the oft-repeated description by Lopez LJ in Allinson v General Counsel of Medical Education and Registration [1894] 1KB750: " If it is shewn that a medical man, in the pursuit of his profession has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency then it is open to be General Medical Counsel to say that he has been guilty of 'infamous conduct' in a professional respect'. 64 During examination in chief, Counsel for the Solicitor sought to obtain an explanation regarding his receipt of this financial benefit. The Solicitor did not recall that he had not told the prior Solicitor that the insurers had paid their bill, which he originally undertook to pay. The Tribunal regards this as incredible. It amounts to saying to the prior Solicitors "I've recovered the amount you wanted. Now I want you to reduce it". There is an element of make-believe and fantasy about this evidence and this was not the only instance of this type of evidence being given by the Solicitor. In his oral evidence he asserted that he claimed a lesser amount in costs than he otherwise would have claimed to take into account his predecessors' fees so that the ambit figure "was likely to be paid by the insurance company but I knew that I couldn't claim what I would normally charge because of Ashley Thompson's significant bill". 65 It is therefore clear that the Solicitor made no effort to reduce the prior Solicitors' account before the insurer agreed to the assessment of costs and that he negotiated with the prior Solicitors without informing them that their fees – as claimed – had been paid by the insurer. He also stated in his evidence that it was open to him to negotiate the prior Solicitors' fees when he took over the file, but said that this would not have been appropriate in a workers compensation matter. The Solicitor's counsel did not further pursue this issue, and properly so in our opinion, because we do not consider there to be an acceptable explanation for this conduct. 66 The Tribunal has for reasons given already found that the Solicitor's conduct was deliberate and deceptive and dishonest. We find it of particular concern that when the Solicitor filed his submissions on 26 June 2009, after the hearing, he had not yet come to understand the gross impropriety of his conduct and we note that the evidence before us clearly indicates that this episode was not an isolated incident. The Tribunal finds it appropriate to stress its disgust which we believe that responsible and respectable legal practitioners would feel at the disclosure of this gross misconduct by the Solicitor. Ground 4 – 2nd count - client Mr Gallo 67 The particulars detail an overpayment to the Solicitor of $3,028.00. The Solicitor's memorandum to the insurer erroneously claimed disbursements totalling $7,074.71 (the correct total was $4,046.71). The excess remained in his trust account until 17 June 2004, when he transferred the sum of $3,625.83 (including the excess) to his office account. He reversed the original bill and replaced it with one that increased the "costs" component to absorb the excess. 68 We feel it is appropriate to recite the Solicitor's statement to the Society dated 23 March 2007 in relation to this issue: " I agree that the sum of $3,028.00 was overpaid by the insurance company. When the second bill was done I made an assumption that there had been a mathematical error ... and had assumed an insurance company would not pay us any more than we were strictly entitled to ... I signed the account but at that point I was relying upon my staff. I accept that it is my responsibility to independently check the account and the accounting detail more carefully however." 69 The Tribunal cannot accept that there is any sound basis for that assumption and that his statement is consistent with the Solicitor's unwillingness or inability to grasp the significance of his own dishonesty. This was another case of a "dummy bill" designed to cover up his retaining funds that were clearly paid to him in error and on his own evidence, it was an intentional act on his part. His attempted explanations are naive to the point of causing us grave concerns regarding the Solicitor's understanding of his responsibilities and duties both as a Solicitor and as a person of honesty and integrity. We regard his conduct as being professional misconduct based on the Allinson test. Ground 5 - Intermingling his affairs with those of his client 70 The intermingling alleged related separately to the clients Peace and Winkler. 71 The Society relies upon the Solicitor entering into a loan agreement with Mr Peace and borrowing $50,000.00 from him at a time when Mr Peace was his client and it alleges that this constitutes an intermingling of his affairs with those of his client. In its submissions, it described this transaction as involving a clear conflict of interest. 72 The Tribunal notes that the sum of $50,000.00 has already been the subject of a finding of professional misconduct in relation to section 61 LPA(1) in that the Solicitor deposited Mr Peace's cheque into his office account on 6 November 1998. This action established a significant professional misconduct by the Solicitor and the Tribunal is not disposed and does not find it appropriate in fairness to the Solicitor to use the same facts that constituted the section 61 LPA breach to constitute a separate complaint of intermingling. Accordingly, ground five (in so far as it relates to Mr Peace) is dismissed. 73 The Solicitor admitted the facts alleged in relation to Ms Winkler but asserted that they were insufficient to ground a finding of professional misconduct, but that they were sufficient for a finding of unsatisfactory professional conduct. 74 The Solicitor sought to enter into a joint venture arrangement to invest moneys with Ms Winkler, who was his client at the time, and in so doing he intermingled his affairs with those of his client. 75 The Society relied upon various authorities including Street CJ in Law Society of NSW v Harvey [1976] 2NSWLR 154 at 171 where His Honour said: " A conflict of interest which is avoidable and ought to be avoided, is that which arises from a deliberate proposal of a Solicitor that his client deal with him with ... In the absence of very special circumstances, the Solicitor who promotes himself as a dealer with his client misuses his position. A Solicitor who constantly promotes dealings with various clients clearly misuses his position and puts it beyond his capacity to observe his primary duty to his client ...[ a Solicitor] should take all reasonable steps positively to avoid dealing directly or indirectly with his client". 76 In relation to the issue of the rebuttable presumption of undue influence, the Society quoted Nourse LJ in Goldsworthy v Brickell [1987] 1All ER 853 at 868, where His Lordship said: "The reason why the presumption applies ... is that ... Solicitors are trusted and confided in by their ... clients to give them conscientious and disinterested advice on matters which profoundly affect ... the material well-being. It is natural to presume that out of that trust and confidence grows influence." 77 The Society submitted that the Solicitor had not provided any satisfactory evidence to rebut that presumption, which is a burden that the Solicitor bears in these proceedings. It relied upon the decision in Bousewitz v Brown (1923) NZLR 1106 at 1109 per Salmond J and Weiss v Barker Gosling (1993) 16 FAMLR 728 at 761 per Fogarty J and argued that this presumption, together with what it described as "the inevitable conflict of interest and the misuse of position", renders the intermingling of the Solicitor's affairs with those of his client professional misconduct under the Allinson (supra) test. 78 While the Solicitor sought to explain this matter in his affidavit, his explanations only compounded his problems, as they indicate his consistent his lack of appreciation of his obligations as a Solicitor. For example, it is clear that Ms Winkler had consulted the Solicitor in relation to family law matters, the proposed purchase of property and the preparation of a Will. The Solicitor had known her for some years and was aware that she had made different types of investments. 79 In his statement dated 23 March 2007, he the Solicitor said that Ms Winkler was "in one sense a client" but that he thought " the distinction could possibly be drawn in relation to this transaction". It is apparent that he felt that Ms Winkler was a sophisticated client who was capable of making investment decisions with your own business, and that for some reason that he did not provide to the Tribunal, he felt that his responsibilities to Ms Winkler were different from those owed to other members of the community. The Tribunal must stress that all clients are entitled to the same protections and the same quality of advice. The fact that the Ms Winkler did not lose any money, and indeed the fact that the Solicitor lost interest that he might otherwise have earned because the investment was redeemed early, does not affect the issue as to whether misconduct occurred. 80 The investment was made in a fund described as the "OM-IP Fund" in which allotment of 137,000 fully paid redeemable shares in OM-IP 130 Plus Limited (a company registered in the Cook Islands) an investment which ultimately came to be in the name of Tine Street Nominees Pty Limited: Account Terence William Stormer 8697-10. $87,000.00 of the money invested was provided by the Solicitor and the remaining $50,000.00 was the money provided by Ms Winkler. There appears to be nothing to indicate that the moneys were held in part on behalf of Ms Winkler and her funds were clearly intermingled with his in the single investment. 81 The Solicitor was examined in chief at length and then more briefly cross-examined on the first day of hearing in relation to Ms Winkler (see Transcript pages 53 to 65). This indicates that he did not regard Ms Winkler as a client in this instance and that he did not suggest that she obtain independent advice and that the joint venture agreement was prepared after he received the funds from her. This was a capital guarantee fund with the guarantee being from Westpac and he had not previously invested in such a form of investment. In our view, these matters do not greatly advance the matter. 82 In his final submissions the Solicitor refers to the client as a "successful businesswoman who owned two photo studios and several properties". He acknowledged that: i) she should have been offered independent advice; ii) that the agreement signed should have been made before the investment; and iii) the investment should have been in their joint names. 83 In his "defence" the Solicitor stressed the short time frame in which the investment had to be made, if it was to be made at all, and that the client (he described as "the client" in his submissions) had been given information about the investment before she handed over her cheque. She also received her investment back while he incurred a loss as a consequence of the early withdrawal. He sought to downgrade his conduct to that of unsatisfactory professional conduct based on these alleged mitigating factors. 84 The Tribunal finds that the Solicitor's conduct in relation to this matter was at its best slipshod. He did not meet proper standards of conduct and there is a degree of naiveté in both his conduct and his explanations. However, on balance, the Tribunal is not satisfied that this conduct despite all its shortcomings satisfies either the Allinson test or the subsequent exposition of the test to be applied at common law, which has so often been adopted in disciplinary matters, which was expressed by Rich J in Kennedy v The Incorporated Law Institute of New South Wales 1940 ALJR 563. His Honour said: "A charge of misconduct as relating to a Solicitor need not fall within any legal definition of wrong doing. It need not amount to an offence under the law. It was enough that it amounted to grave impropriety affecting his professional character and was indicative of a failure either to understand or to practice the precepts of honest and fair dealing in relation to the courts, his client or the public. The particular transaction the subject of the charge must be judged as a whole and the conclusion whether it betokened unfitness to be held out by the court as a member of a profession in whom confidence could be placed, or on the other hand, although a lapse from proprietary, was not inconsistent with general professional fitness and habitual adherents to moral standards, was to be reached by general survey of the whole transaction. 85 However, the Tribunal is satisfied that the Solicitor's conduct in relation to the investment of Ms Winkler's moneys constituted unsatisfactory professional conduct within the nonexclusive definition of that term. Ground 6 - Failure to protect his client's interests – client Mr Peace 86 The facts Society relies upon the same facts as those regarding Ground 5 (above). In our view the ground relating to Mr Peace is different from the conduct with which we have already dealt. 87 In his statement dated 23 March 2007 (already referred to at Transcript page 163 and paragraph 5(f) above), the Solicitor stated: "By the time this occurred (the cancellation of Mr Ansil's licence) the disputation between myself and Mr Peace over how much of the funds I should retain with regard to legal work was in train. I exercised a lien over all funds as I thought that was the only way I could be sure that Mr Peace negotiated with me positively and to ensure that I was ultimately paid." 88 Particular Y alleged, and the admitted in his letter to the Society dated 25 October 2005: " I agree that I cannot maintain a lien over some of the moneys that Leigh (thereby meaning Mr Peace) has advanced." 89 In his final submissions, the Solicitor stated that he expected that the Tribunal would be concerned at his non-payment of moneys to Mr Peace, and he submitted: (a) " there was considerable negotiation with Mr Peace as to the correct amount to be retained." (b) " he had embarked on monthly payments to the applicant because of the perceived threat of bankruptcy for non-payment." (c) " he was committed to repaying the debt which he would do in the short term." 90 In relation to the "failure to protect" allegation regarding Mr Peace, the Society's submissions focused on the loan agreement and the Solicitor's borrowing of moneys from his client as proving a clear conflict of interest. It also raised shortcomings in the loan agreement itself and particularly and its failure to provide for the payment of interest, as well as the lack of independent advice and the fact that it had taken the Solicitor 8.5 years to repay 40% of the loan principal. We note that there is no evidence before us regarding the Solicitor's financial circumstances during the relevant years as that is not the essence of the complaint before us. 91 The particulars for this complaint overlap with those for complaints one, two and five. However, in our view, reliance upon specific conduct can only ground one finding of professional misconduct and as we have found professional misconduct in relation to the other complaints, we regard it as appropriate that this ground should be dismissed in so far as it concerns Mr Peace. Ground 6 – Failure to protect his client's interests - client Ms Winkler 92 The Society relied upon the particulars as those relied upon in relation to Ground five (Particulars 7A to 7L). However, the Tribunal repeats its previous views and has determined that this ground of should be dismissed. Ground 7 - The retention of moneys in contravention of rule 12 of the Professional Conduct and Practice Rules 93 After the Solicitor's borrowing of $50,000.00 from Mr Peace came to light, the Society made a complaint against him, which resulted in him Solicitor being reprimanded by the Professional Conduct Committee. The Society informed him of this decision by letter dated 1 October 1999 and it granted the Solicitor a 28 day extension of time (which he had requested) for repayment of the loan and requested documentary evidence of repayment. The Solicitor then obtained an authority from Mr Peace directing disbursements of the $50,000.00 as follows: Leigh Peace $3,000.00 Jane Smith $500.00 Retained in relation to family law proceedings $3,000.00 Russell Ansil - financial adviser $45,500.00 94 On 2 December 1999 the Solicitor forwarded the authority from Mr Peace to the Society. His covering letter included the following statement: " Pursuant to the authority enclosed, signed by Mr Peace, we have sent cheques to Mr Peace, Jane Smith and Mr Ansil. We trust this now resolves this matter." 95 The complaint was resolved on the basis of the reprimand, after the Solicitor falsely represented to the Society in writing that he had paid the moneys as stated in his letter dated 2 December 1999. The Solicitor had earlier been warned that failing to return the loan money would be viewed as a continuing breach of Rule 12, but his own evidence is that he did not repay the sum of $43,000.00 and that 9 ½ years later he still owed Mr Peace $30,000.00 plus interest. The Tribunal finds that the breach of Rule 12 was continuing as at the time of the hearing and that this constitutes professional misconduct. Ground 8 - Attempting to mislead the Law Society 96 The Solicitor's letter dated 2 December 1999 was misleading and deceptive. The resolution of the 1999 Complaint for breaching Rule 12 depended upon the loan moneys being repaid. In our view, the Solicitor's use of "have sent" and his comment, "we trust this now resolves the matter", in his letter when he had not repaid the loan and was actually retaining it under an asserted lien, proves the complaint. We regard this as another instance of professional misconduct. 97 The Tribunal finds that the complaints in grounds 7 and 8 constitute separate forms of misconduct. While Ground 7 relies upon the contravention of Rule 12, which was a continuing one despite the Society's 1999 disciplinary action, the continuing breach of Rule 12 and the misrepresentation in the Solicitor's letter dated 2 December 1999 forms the basis for the complaint and finding in Ground 8. 98 Further, the Solicitor's evidence that he proposed to repay the moneys to Mr Peace by instalments supports the view that he simply did not have the money to pay Mr Peace when he misled the Society by stating that payment has been made. For a time his deception or efforts to mislead the Society were successful, but in the fullness of time the complaint was made and his misconduct was exposed. 99 The Tribunal has a strong view in relation to this misconduct and it has decided that this satisfies the tests in Allinson (supra) and Kennedy (supra). It is conduct of a deplorable nature. Ground 9 - Improper lien over trust moneys 100 After the Solicitor failed to pay Mr Peace the balance of the $50,000.00 loan (after the reprimand for Breach of Rule 12 was issued), there is no evidence that he set aside those moneys for the benefit of Mr Peace. While we accept that the Solicitor did make some instalment payments to reduce the debt, his letter dated 25 October 2005 he agreed that he could not maintain a lien over some of Mr Peace's advance, yet on 23 March 2007 he stated that he had exercised "A lien over all the funds (of Mr Peace)." 101 It is hard to regard the Solicitor's conduct as being anything other than desperate when trying to explain his actions. On 23 March 2007 he asserted: "I exercised a lien over all the funds, as I thought that was the only way I could be sure that Mr Peace negotiated with me and to ensure that I was ultimately paid". The Solicitor clearly knew, or ought to have known, that it was is improper for him to seek to misuse the right of lien as a bargaining tool or form of duress in seeking to negotiate fees payable by a client. He was aware of this as far back as 25 October 2005, when he conceded that he could not maintain a lien over the advance from Mr Peace, yet the money remained unpaid. 102 The Solicitor did not provide any reason why he did not belatedly honour his obligations to pay the moneys due to Mr Peace. That would not have absolved him from professional misconduct involving Mr Peace, but in our view it would have at least shown some contrition and understanding of his obligations towards his client. There is a simple falsity to the asserted lien when the situation is viewed as a whole. In our view, the Solicitor was simply holding onto the moneys in order to pressure his client. He did not have a lien then and he has not established one since. His motivation was to further his own interests at the expense of his client and we regard his conduct as being totally unacceptable within the Allinson and Kennedy principles. The facts are more than sufficient to sustain a finding of professional misconduct and we so find. Ground 10 - Failure to account to clients for funds received by him 103 This ground is particularised in relation to the clients Reeves, Peace and Winkler. 104 There was no accounting issued to Mr Reeves and we find that this is separate conduct to that upon which we have already made adverse findings against the Solicitor. In his final submissions the Solicitor did not address to our satisfaction any issues regarding this complaint. He failed to account to his client and the failure was ongoing. He knew or ought to have known of his obligation to account for monies received. The Tribunal regards this conduct as reprehensible and totally unacceptable to practitioners of good standing and finds that it constitutes professional misconduct. 105 In relation to Mr Peace, the Solicitor admitted the facts alleged but disputed that they supported a finding of professional misconduct, while he conceded that they maintained a finding of unsatisfactory professional conduct. 106 The Society relied upon a letter from Mr Peace to the Solicitor dated 6 May 2004, in which he asserted: "... despite many years of requests, I have not received financial statements from you concerning my loan, requested by you for your practice." The Society submitted that the Solicitor had failed to account to Mr Peace not only for the interest on the loan, but also for the initial principal of $50,000.00 since November 1998. The Solicitor did not make any specific comment about this matter in his Submissions dated 22 June 2009. 107 In our view, the Solicitor's error was in borrowing from his client. Thereafter, the relationship between them was primarily that of debtor and creditor and for this reason, the Tribunal declines to pursue this ground of the complaint, which is dismissed. 108 In relation to Ms Winkler, the Solicitor again admitted the facts alleged but disputed that they supported a finding of professional misconduct, while he conceded that they maintained a finding of unsatisfactory professional conduct. 109 The Society alleges that the Solicitor's failure to provide any documentation to Ms Winkler concerning her $50,000.00 investment was a failure to account for those funds and the fact that Ms Winkler had to demand such documentation is sufficient to prove this ground of the complaint. In this regard, we repeat that the Solicitor's Submissions dated 22 June 2009 clearly indicate that he does not appreciate his responsibilities and the nature of his misconduct. He clearly failed to account to Ms Winkler and that constitutes professional misconduct. Character evidence 110 The Solicitor tendered a series of testimonials as to his character and informed the Registrar by letter that he had advised each of the writers of the nature of the complaint against him and the fact that he was attending the Tribunal in relation to disciplinary proceedings. They were provided by a pawnbroker who was a client, who spoke of the Solicitor's integrity and good character; another came from a business adviser who wrote of his efforts to assist the conduct of business and of the Solicitor's great integrity and professionalism and his high esteem within the community; another was from a restaurant proprietor (also a client), who described the Solicitor as honest, hard-working and a striver for excellence; another was from John De Mattia, Solicitor, of Penrith who wrote of having read the Ms Sayers' report and that he found her findings "unsettling". He wrote favourably of the Solicitor's professional work and of his honesty and competence and said that he felt that the conduct which gave rise to the complaints would not be repeated; another reference was provided by a client of four years' standing, who cited the Solicitor's strong work ethic and that he appeared to be a very kind and caring individual of good character. Yet another testimonial was from a barrister who accepted briefs from the Solicitor in personal injury matters, who said that he found the Solicitor to be "most professional and ethical and one who gave paramount consideration to the interests of his clients". The remaining testimonials each followed the same vein; some were from clients; others were from service providers; one was from a former employee. All referred to his integrity and good character. 111 However, other than the single referee who had seen Ms Sayers' report, the testimonials were more in the nature of general character references and do not disclose any knowledge of the precise complaints against the Solicitor. They do not assist the Tribunal in determining either the proper description of the Solicitor's misconduct or his state of mind. 112 In submissions, the Solicitor argued that the nature of his acts constituted unsatisfactory professional conduct and he placed considerable reliance on the majority opinion of the Court of Appeal in Leon Nikolaidis v Legal Services Commissioner 2007 NSWCA 130. The main issue of the appeal in Nikolaidis was whether it the Solicitor, a sole practitioner, was responsible on a misconduct basis for overcharging in a bill of costs prepared by an employed Solicitor. McColl JA (with whom Hogson JA agreed) said at 164: "It is apparent from this review of authorities dealing with overcharging that in each case in which the complaint was made good, the Solicitor had either knowingly engaged in systematic overcharging or ... had been reckless as to whether or not excessive fees had been charged through failure to exercise adequate supervision." 115. In our view, Nikolaidis is clearly distinguishable on its facts from the current matter and it does not assist us in determining this matter. However, in our view, our findings in this matter are consistent with Court's reasoning in Nikolaidis. 113 During submissions, the Tribunal alerted both parties of the range of orders that it Tribunal might make after consideration of the evidence and that these included a protective order. The Society did not seek orders other than those sought in the Application and the Solicitor was provided with an opportunity to consider the issue of penalty and make submissions as to his fitness to remain on the Roll. Summary of findings 114 The Tribunal has made findings against the Solicitor of professional misconduct in respect of: i) five counts of breaching section 61 LPA; ii) one count of breaching of section 62 LPA; iii) one count of attempting to mislead his client with a view to obtaining money from him; iv) two count of failing to account to his clients; v) one count of retaining moneys in contravention of Rule 12; vi) one count of maintaining an improper lien over client trust moneys; vii) two counts of failure to account to clients for funds received by him; and viii) one count of attempting to mislead the Law Society. 115 In addition the Tribunal has found the Solicitor guilty of unsatisfactory professional conduct in respect of one count of intermingling and has dismissed: a) One count of alleged intermingling; b) Two counts of alleged failure to protect clients' interests; and c) One count of failing to account. Penalty 116 The Tribunal has considered the Solicitor's conduct at the times that the incidents occurred and his attitude towards his conduct during the hearing of the matter. In our view, the Solicitor has consistently and continuously failed to appreciate the nature of his professional responsibilities. His failure is significant and while he has attempted to excuse his conduct as not constituting professional misconduct, these do not support any suggestion of change on his part, but rather indicate his failure to act honestly and with propriety in dealing with his clients, fellow practitioners, a barrister and an insurer and his failure to appreciate his obligations regarding the conduct of his trust account. His conduct calls into question his honesty and integrity and accordingly his fitness to practise law. 117 The Tribunal is not constrained by the orders sought in the Application (see: the Tribunal's interpretation of section 171C of the 1987 Act in Law Society of NSW v Pearson (supra).) Therefore, if after completing a hearing under 2004 Act, we are satisfied that a practitioner has engaged in unsatisfactory professional conduct or professional misconduct, we are empowered under section 562(1) (2004 Act) to make one or more of the orders specified in section 562(2) (2004 Act), as we regards appropriate. 118 In Ciampa (supra) the Tribunal stated: " The Tribunal is of the opinion that the orders sought by the Society that the Solicitor is to be reprimanded and a substantial monetary penalty be imposed falls short of orders that adequately protect the public nor was it needed to deter the Solicitor from repeating the misconduct and also to deter others who might be tempted to fall short of the high standards required by them ... the Tribunal is of the opinion that there should be a period of time during which the Solicitor is suspended from holding a practising certificate" 119 Further, in Law Society of NSW v Berry [2005] NSWADT 46 the Society sought a reprimand, a fine and costs order. Ultimately the Tribunal having considered the evidence found that it was not satisfied that the Solicitor was at the time a person fit to practice and made a strike off order. 120 In the current matter, the Solicitor's misconduct (and dishonesty) has been established and we are not comfortably satisfied that he has learnt from his errors or that he now appreciates that such conduct is not acceptable from a Solicitor. 121 The Tribunal notes that on 2 July 2009 the Solicitor wrote to the Tribunal in relation to his Submissions dated 22 June 2009. He stated, inter alia, that it was his wish: "… to withdraw the implication in paragraphs 5 and 7-10 on pages 9 and 10 as well as paragraphs 1-3, 5-7 and 13-15 on pages 11 and 12 that I am still practising. I did not seek to mislead the Tribunal and thought this matter would have been dealt with without knowledge of any subsequent matter." 122 There is no evidence before us as to the reason or reasons for the Solicitor not practising as at 2 July 2009, or hat he ceased to practice at that time, and those matters are not relevant to our decision and indeed any events subsequent to the hearing are irrelevant to our determination of this Application. 123 In view of the evidence as a whole, the Tribunal is minded to make a protective order. However, we feel that it is appropriate in the interests of justice to afford the parties the opportunity to make final Submissions in relation to the issue of penalty before final orders are made. 124 Accordingly the Tribunal orders: 1. That the Registrar advise the parties in writing that the Tribunal is considering making a protective order and invite the parties to submit final written submissions in relation to the issue of penalty within 28 days; and 2. That the Solicitor pays the Applicant's costs of this Application as agreed or assessed. 125 The Tribunal reserves its final decision in relation to penalty pending receipt of these further submissions from the parties. 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.