The Council of the Law Society of NSW v Doherty [2010] NSWCA 177

New South Wales Court of Appeal

CITATION: The Council of the Law Society of NSW v Doherty [2010] NSWCA 177

HEARING DATE(S): 14 July 2010

JUDGMENT DATE: 27 July 2010

JUDGMENT OF: Tobias JA at [1]; Campbell JA at [2]; Young JA at [3]

DECISION: The appeal is dismissed with costs.

CATCHWORDS: Legal Practitioners- discipline- Legal Profession Act 2004- respondent solicitor found guilty of professional misconduct for breach of s 255, misappropriation, misleading statements and acting in conflict of interest- solicitor not struck off roll- additional breach of Rule 12 Legal Profession Conduct and Practice Rules and s 67(2)(a)- Administrative Decisions Tribunal failed to give effect to s 67(3) whereby breach of s 67(2)(a) is professional misconduct- whether Tribunal should have struck the respondent's name from the roll- whether solicitor is likely to be unfit to practice for the indefinite future- findings of Legal Services Division that not permanently unfit not to be lightly disturbed on appeal- whether "ordinary case" of misappropriation or less serious- borderline case- whether proper appreciation of conduct and solicitors' obligations- solicitor's conduct atypical, without evil intent and money repaid- honest belief in authority to utilize funds based on genuine file note- claim that he was indefinitely unfit to practice not made out. Words and Phrases- "misappropriation"- wide ambit of meanings- where honest belief in claim of right.

Legal Profession Act 2004, ss 67, 255, 729A LEGISLATION CITED: Legal Profession Conduct and Practice Rules Supreme Court Act 1970, s 75A

CATEGORY: Principal judgment

Dupal v Law Society (Court of Appeal of NSW, 26.4.1990, unreported, per Kirby P and Handley JA) Legal Practitioners Complaints Committee v Edward [2007] WASC 287 CASES CITED: R v Nundah (1916) 16 SR (NSW) 482 Smith v New South Wales Bar Association [1992] HCA 36; 176 CLR 256 Stanoevski v The Council of the Law Society of NSW [2008] NSWCA 93