Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Law Society of New South Wales v Stormer (No 2) [2011] NSWADT 9 Hearing dates: 25 and 26 February 2009 Decision date: 18 January 2011 Jurisdiction: Legal Services Division Before: J Brennan, Presiding Judicial Member M Riordan, Judicial Member E Hayes, Non-judicial Member Decision: 1.That the name of Solicitor, Terence William Stormer, be removed from the roll of practitioners 2.That the Solicitor pay the Costs of the Society including the costs of the final submissions of November 2010 Catchwords: Professional Misconduct - Fitness to practice Legislation Cited: Legal Profession Act 1987 Legal Profession Act 2004 Cases Cited: Allinson v General Counsel of Medical Education and Registration [1894] 1KB750; Council of the Law Society of New South Wales v Stormer 2010 NSWADT 240 Harvey v The Law Society of NSW [(1975) 49 ALJR 362] Kennedy v The Incorporated Law Institute of New South Wales 1940 ALJR 563 Harvey v The Law Society of NSW (1975) 49 ALJR 362 Law Society of New South Wales v Bannister (1993) 4 LPDR 24 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Texts Cited: "Why Lawyers Are Unhappy" by Martin E P Seligman & Ors Category: Sentence Parties: Council of the Law Society of New South Wales Terence William Stormer (Respondent) Representation: Mr Hadley (Applicant) Council of the Law Society of New South Wales (Applicant) File Number(s): 082015 Reasons for Decision 1On 12 th October 2010 the Tribunal published its findings on the complaints raised by the Applicant Society against the Respondent Solicitor. [Council of the Law Society of New South Wales v Stormer 2010 NSWADT 240] - ("the first decision"). In paragraphs 114 and 115 the Tribunal summarised its findings on those complaints as follows: " 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." 2On the issue of the appropriate orders to be made following the findings on the complaints the Tribunal stated in paragraph 116 as follows: " 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." 3Further in paragraph 123 the Tribunal asserted its initial view that the findings called for a protective order and determined that it should seek and consider further submissions before making final orders. That paragraph is in the following terms: "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." 4Pursuant to the Tribunal's direction the Registrar notified the Applicant and the Respondent of the request for final submissions and the Tribunal received Submissions respectively from the Applicant Society dated 8 November 2010 and from the Respondent Solicitor dated 5 November 2010. 5In the original complaint and throughout the hearing and the submissions made prior to October 2010 the Society sought orders as follows: "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." 6In Final Submissions the Society analysed the findings of the Tribunal and what it considered to be the applicable law and concluded that it is "appropriate [and necessary] for the Tribunal to conclude that the Solicitor is presently unfit to remain on the Roll ". 7The Society correctly submitted that the views of the Society are certainly not binding upon the Tribunal although requiring due consideration. The Society referred to a number of cases in relation to this issue including Law Society of New South Wales v Foreman [(1994) 34 NSWLR 408] and Law Society of New South Wales v Bannister [(1993) 4 LPDR 24] to which the Tribunal referred to in the first decision. Two English decisions were also referred to but the Tribunal did not find these helpful in dealing with this issue which has in the Tribunal's view been settled in local decisions such as Foreman (Supra) and Bannister ( Supra). 8On the issue of the proper order to be made the Society stressed that the Tribunal's function was both protective and educative and not confined to protection of the public against the practitioner the subject of complaint but also against similar defaults by other practitioners. Reliance was placed on a statement in the decision in Harvey v The Law Society of NSW [(1975) 49 ALJR 362] to stress the relevance of orders proposed upon the understanding of the profession and by the public of the standard of behaviour required. The Society quoted the decision from 364 in Harvey: "The function of a Court called upon to consider an application to remove the name of a practitioner from a roll of practitioners is to examine the material proffered to it in order to determine whether that material establishes that the solicitor has failed, by action or inaction, to maintain in his conduct the standards required of him as a member of the profession. The Court's duty is to ensure that those standards of the profession are fully maintained particularly in relation to the proper relationship of practitioner with practitioner, practitioner with the Court and practitioner with the members of the public who find need to use the services of the profession. It is no part of that function to punish the solicitor whose conduct the Court finds to be in breach of those professional standards. " 9In support of a protective order being made the Society relies not only on the "ultimate strength of the findings against the solicitor but, critically, the apparently continuing failure by the solicitor to comprehend the seriousness of his conduct". The society concludes on this issue that " it is appropriate [and necessary] for the Tribunal to conclude that the Solicitor is presently unfit to remain on the Roll". 10The Solicitor's submissions commence with his acceptance of the findings of the Tribunal, acceptance of responsibility for his failings to the Society, to the barrister whose unpaid fees formed part of the complaints, to his clients and fellow practitioners and for delegated work which was not of a proper standard. 11He raised matters to explain the environment in which these matters which lead to complaints occurred and these were as he set them out in November 2010: (a) A number of matters arose in the difficult and challenging years when he was establishing a sole practice. (b) Some matters arose when his best friend died suddenly which was the first death of someone so close. He was unable to take time off to grieve and failed to deal with his grief and he feels his judgments "at many levels were impaired". (c) Other "incidents before the Tribunal" occurred in a short period of time when his father "suffered prostate cancer and a heart attack". (d) He found the many stresses of sole practice difficult and lonely and that the emotional distress involved impaired his judgment. 12It is convenient to pause at this stage to consider the impact of these "background" matters upon the issue before the Tribunal. The solicitor is entitled to sympathy for the death of his best friend and to the health problems of his father but these in no way explain his conduct in the matters where the Tribunal has found professional misconduct established. Those findings and the evidence which established the relevant conduct have been set out in detail in the initial decision and it is not appropriate for to now the Tribunal to repeat that material. However it is to be stressed that in the initial decision the Tribunal found many charges of misconduct established and that these involved acts of clear dishonesty which are simply inconsistent with the concept of fitness to practice which must be applied to the Solicitor. There is consistency in the Solicitor's lack of appreciation of his responsibility for his actions and his duty to his clients and his fellow practitioners as well as to the Society in its role as regulator of solicitors in this State. The death of a best friend, the ill-health of the Solicitor's father, the challenges of establishing a sole practice and the stresses and strains of being a sole practitioner are not factors which have any application to this matter where the issue is not a small number of technical and/or similar transgressions which might justify a less serious assessment of the Solicitor's situation than is appropriate in this case. The findings of dishonesty stand without explanation or any adequate appreciation by the Solicitor of what is properly expected of him as a member of an honourable profession and as late as November 2010 in his final submissions the Solicitor has not shown an understanding of his duties and responsibilities. 13In his final submissions the Solicitor raised further matters which while not helpful to the Tribunal in determining the order to be made do at least reflect the solicitor's lack of appreciation of his duties and responsibilities and his habit of looking at issues in so far as they affect him without any apparent appreciation of his professional duties and responsibilities. In fairness to the Solicitor the Tribunal finds that it is proper to refer to these matters. 14The Solicitor drew the attention of the Tribunal to two articles about the difficulties lawyers face in practice. 15The first of these was a paper presented by John Briton ("Briton") to the Bar Association of Queensland 2009 Annual Conference. The Solicitor refers to p10 of Briton and asserts that he feels "like one of those failed, humiliated, 'distressed practitioners' who must now 'explain themselves in a public hearing before a disciplinary body". The thrust of this section of the paper is Briton's view that steps by professional bodies short of disciplinary proceedings are kinder and by implication appropriate. The steps proposed involve lawyers having "an ethical or some lesser duty to report" or otherwise "bring their concerns about a colleague to attention". The Solicitor's comments here are consistent with the view of the Tribunal that the Solicitor sees himself as a victim in being brought before the Tribunal and the responsibility or at least the overriding responsibility for his actions and omissions does not lie with him. 16Obviously "kinder" steps were taken initially by the Society on the breach of Rule 12 where a reprimand and restitution were offered by the Society constitute as an acceptable resolution of the complaint. The Tribunal found (paragraph 95 of the initial decision) that "the Solicitor falsely represented to the Society in writing that he had paid the moneys stated in his letter dated 2 December 1999." A further finding was made in that same paragraph that 9 years after the date of that letter $30,000 plus interest remained owing to the client by him. His letter made a significant untrue statement to the Society and this has not been explained to the Tribunal's satisfaction nor can the Tribunal be satisfied that this dishonesty by the Solicitor was an isolated incident for other such incidents have been detailed at length in the initial decision. 17The second article is "Why Lawyers Are Unhappy" by Martin E P Seligman & Ors which first appeared in Volume 23 of the Cardozo Law review in November 2001. No specific parts of the article are referred to in the submission which basically deals with the stress of practicing as a lawyer and the impact this has on the lives of lawyers. No doubt much of what is said has some bearings on the lives of practitioners but the article in no way impacts upon the Tribunal's initial view that the Solicitor is presently unfit to practice. 18The solicitor also refers to the Tribunal's decision being either punitive or rehabilitative. In the tribunal's view this is again reflective of the Solicitor's focus on how the outcome affects him and not on the impact his misconduct has had on others and how he appreciates the nature of his misconduct and how the Tribunal could feel comfortable that his misconduct will not be repeated. The Tribunal's role is protective. The misconduct of the Solicitor detailed in the initial decision establishes to the tribunal's satisfaction that the Solicitor was unfit to practice at the time the misconduct occurred and the submissions of the Solicitor do not satisfy the Tribunal that this unfitness has remained unchanged. 19The Solicitor sought to have taken into account his 26 years of practice, his contributions on the Cobham Children's Court roster, his obtaining specialist accreditation, his work with the Society's Speakers Panel and Pro Bono scheme. These matters have all been considered by the Tribunal along with other relevant matters including the character evidence (see paragraphs 110-111 of the initial decision) the Solicitor provided but the Tribunal finds that the Solicitor was and remains unfit to practice. 20In addition the Solicitor referred to: a) The matters before the Tribunal reflected a small percentage of the 500 to 600 files he opened every year in 13 years of sole practice; b) His thousands of thankful clients and the gratitude of a particular widow; c) His overwhelming sense of sadness; d) The sale of his practice in April 2009, his estrangement from his wife of 26 years, the death of his brother-in-law and the help he has sought and obtained from a counsellor and a psychologist who helped him "identify issues in my life that have been addressed"; (e) His having obtained a Certificate in Training and his current employment; (f) His view that the course originally sought to be undertaken by him by the Society was now unnecessary; (g) The $30,000 costs of investigation he has been asked to pay by the Society; (h) The pain, embarrassment and humiliation these proceedings have caused him and the salutary impact on him personally; (i) The fact that he has not worked as a Solicitor since April 2009; and (j) His statement that he had "no intention of returning to sole practice so a period of 2 years with a restricted practicing certificate would be in order." 21A finding of professional misconduct against a Solicitor is tragic in terms of its impact on the lives of many people from the Solicitor himself, to his family and friends, his clients and professional associates, the public, his profession and the state itself which inevitably in almost all cases has spent large sums of money in the education of the Solicitor and in and about the training and qualification of the Solicitor. The tragedy is multiplied many times when the professional misconduct leads to an order striking the name of the Solicitor from the Roll. 22The adverse findings of professional misconduct made by the Tribunal against the Solicitor are by their nature and number clearly within the most serious class of "disgraceful or dishonourable" and "infamous" in terms of 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". 23A further expression of the test to be applied at common law to determine if conduct amounts to professional misconduct 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." 24The professional misconduct of the Solicitor is the subject of findings by this Tribunal. The misconduct falls within the very serious level of gravity of the terms referred to in Allinson (supra) and Kennedy (supra). The Tribunal finds that the cumulative effect of those findings is so serious as to satisfy the Tribunal that the Solicitor was not fit to practice at the time of the hearing. The submissions of the Solicitor provided on the penalty issue do not reflect in the Tribunal's finding any change and the Solicitor remains unfit to practice. The Tribunal finds that as late as November 2010 (when final submissions were made by both parties) the Solicitor had not realised the seriousness of his misconduct in his professional situation apart from the impact of the findings on him personally. He has not satisfied the Tribunal that he has learnt from his errors or appreciates that his misconduct is not acceptable for a Solicitor. The Tribunal is not satisfied that the Solicitor has a proper understanding of the obligations of a Solicitor to his clients, his fellow practitioners, the public or the Society as the regulating authority. The Solicitor remains unfit to practice and must be struck off. 25Accordingly it is the order of the Tribunal that the name of Solicitor, Terence William Stormer, be removed from the roll of practitioners and that the Solicitor pay the Costs of the Society including the costs of the final submissions of November 2010 . ********** Amendments 30 March 2011 - Counsel for Respondent Mr Hadley Amended paragraphs: Coversheet 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. Decision last updated: 04 February 2011