Council of the Law Society of NSW v Maloney [2012] NSWADT 259

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of NSW v Maloney [2012] NSWADT 259 Hearing dates: 24 August 2012 Decision date: 24 August 2012 Jurisdiction: Legal Services Division Before: Hon G Mullane, Judicial Member D Fairlie, Judicial Member S Hayes,- Non-Judicial Member Decision: 1 The name of the Respondent Shane Michael Maloney is to be removed from the Roll of Local Lawyers. 2 The Respondent must pay the costs of the Applicant as agreed, or assessed. Catchwords: Solicitor - Disciplinary Proceedings - Breach Of Provisions Regulating Trust Accounts - Appropriation Legislation Cited: Legal Profession Act 2004 Category: Principal judgment Parties: Council of the Law Society of NSW (Applicant) Shane Michael Maloney (Respondent) Representation: C Groenewegen (Applicant) No appearance (Respondent) File Number(s): 122014

reasons for decision

INTRODUCTION 1These were disciplinary proceedings against the Respondent commenced by the Application filed 28 June 2012. The Applicant seeks that the Respondent's name be removed from the Roll of Local Lawyers and that the Respondent pay the Applicant's costs 2The Application alleges the numerous grounds of professional misconduct in respect of each of the categories listed below: a) Breach of Section 254 of the Legal Profession Act 2004 (money to be deposited in general trust account); b) Breach of Section 255 of the Legal Profession Act 2004 (trust money in general trust account to be held exclusively for the person on whose behalf it is received and disbursed only in accordance with direction given by the person or Court Order or as authorised by law); c) Breach of Section 264 of the Legal Profession Act 2004 (keeping trust records in relation to trust money received); d) Breach of Clause 88 of the Legal Profession Regulations (requirements for transfer of trust money for payment of costs); e) Transferring costs without authority; f) Taking commission without authority; g) Causing a deficiency in the trust account; h) Misleading client; and i) Misappropriation. 3The Respondent did not file any Reply disputing any of the allegations made by the Applicant or answering the Application. The Respondent did not appear at the hearing. A letter ("Exhibit A1") from the Respondent's solicitors, Whitelaw McDonald, was sent to the Registrar of the Tribunal on 27 July 2012 advising that the Respondent: "Does not wish to oppose the Application. He will also not be represented at the Tribunal, nor will he be appearing." 4The Respondent was born on 21 August 1960 and is 52. He was admitted as a Solicitor on 6 July 1984 and he held a Practising Certificate until it was suspended by the Council of the Society on 27 September 2010. 5At all times in the relevant period, the Respondent was a Principal of the following law practices: * Stacks/Nambucca Pty Ltd (he was the Solicitor/Director) from 28 February 2005 until 8 September 2009 whereupon the company name was changed to North Coast Prime Law Pty Ltd; * North Coast Prime Law Pty Ltd ["NCPL"] from 9 September 2009 to 27 September 2010 (he was the Solicitor/Director of NCPL). * The practice throughout had 4 offices - at Nambucca Heads, Coffs Harbour, Urunga and Macksville. 6Mr James Sofiak was appointed a Trust Accounts Investigator of NCPL and prepared a report of 27 September 2007 to the Council. On that day the Council suspended the Respondent's Practising Certificate. 7By order of the Supreme Court on 28 September 2010, John Ernest Mitchell, Chief Trust Account Investigator for the Law Society, was appointed Receiver for NCPL. 8The Respondent has since been declared bankrupt.