Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Paul [2012] NSWADT 280 Hearing dates: 4 December 2012 Decision date: 04 December 2012 Jurisdiction: Legal Services Division Before: M Chesterman, Deputy President J Pheils, Judicial Member C Bennett, Non-judicial Member Decision: By consent:- 1. The Respondent is guilty of professional misconduct. 2. The name of the Respondent is to be removed from the Roll. 3. The Respondent is to pay the Applicant's costs. Catchwords: Disciplinary application - solicitor - misappropriation - concealing misappropriation from employers - forgery - misleading the Court - causing employers to act in breach of trust account requirements Legislation Cited: Legal Profession Act 2004 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Anthony Donald Evans Paul (Respondent) Representation: L Pierotti (Applicant) Bowen Legal (Respondent) L Muston (Intervenor) File Number(s): 122001, 122011 Publication restriction: The passage commencing 'File tba' at the foot of page 29 of the affidavit of James Sofiak (sworn on 17 January 2012), being Exhibit A, is not to be published. reasons for decision Introduction 1On 1 February 2012, the Council of the Law Society ('the Law Society') filed a Disciplinary Application (file 122001) alleging that the Respondent, Anthony Donald Evans Paul ('the Solicitor'), had been guilty of professional misconduct on five grounds. It sought orders that his name be removed from the Roll and that he pay the Law Society's costs. 2On the same day, the Law Society also filed an affidavit sworn by its solicitor, Anne-Marie Foord, on 21 January 2012. On 2 February 2012, it filed an affidavit sworn by James Sofiak, a Trust Account Investigator, on 17 January 2012. 3On 2 May 2012, the Law Society filed a second Disciplinary Application (file 122011) alleging that the Solicitor had been guilty of professional misconduct on a further ground. The orders sought were the same as in the Application in file 122001, together with an order for the two proceedings to be heard jointly. 4On 2 May 2012, the Law Society also filed an affidavit sworn by Ms Foord on 1 May 2012. 5In Replies filed on 1 May 2012 and 5 June 2012, the Solicitor admitted the matters alleged in the two Applications. 6On 4 October 2012, an Instrument of Consent, signed by each of the parties and by the Legal Services Commissioner, was filed. It related to the matters alleged and orders sought in both Applications and included a Statement of Agreed Facts. 7The hearing of the two Applications took place before us on 4 December 2012. Mr Pierotti appeared on behalf of the Law Society and Mr Mark Bowen, of Bowen Legal, on behalf of the Solicitor. Ms Muston appeared on behalf of the Legal Services Commissioner, who was an Intervenor in the proceedings pursuant to section 559 of the Legal Profession Act 2004. 8We ordered, as requested in the second Application, that the two proceedings be joined to each other and heard together and that the evidence in each of them be evidence in the other. 9The filed affidavits were then tendered unopposed and admitted. The Solicitor did not tender any evidence. 10It was stated in Ms Foord's affidavit that the Solicitor was admitted to practice on 6 November 1981 and that he has not held a practising certificate since 14 October 2009. Mr Bowen advised us that on or about that date the Solicitor voluntarily surrendered his certificate to Mr Sofiak. 11Mr Pierotti then requested, with support from Mr Bowen and Ms Muston, that we make the orders sought in the Instrument of Consent. He submitted that the matters stated in the Agreed Statement of Facts were substantiated in the admitted evidence and amounted to professional misconduct of a most serious nature. 12At the conclusion of the hearing, we stated that we would accede to this request. We made orders in the terms proposed in the Instrument of Consent, preceded by an order declaring the Solicitor to be guilty of professional misconduct. Those orders took effect from the date of the hearing. They were accompanied by an order suppressing publication of a passage that bore no relation to these proceedings, which had accidentally been included in material annexed to Mr Sofiak's affidavit. 13We also indicated that we would publish written reasons. The present decision constitutes those reasons. The Statement of Agreed Facts 14The Statement of Agreed Facts was in the following terms:- In respect of the following grounds of complaint Anthony Donald Evans Paul ["the Solicitor"] engaged in professional misconduct: 1. Appropriated to his own use the proceeds of cheques drawn on the accounts of Creaghe Lisle payable to John Hart, Barrister. 2. Concealed from the partners of Creaghe Lisle that the Solicitor had appropriated to his own use the proceeds of cheques drawn on the accounts of Creaghe Lisle payable to John Hart, Barrister. 3. Misled the Court. 4. Forged the signature of a Barrister, Mr Hart, on a trust cheque made out to Mr Hart for $2,200, in order to open that cheque to cash and retained the proceeds. 5. Misappropriation. 6. Having received trust funds in cash from clients of his then firm, failed to deal with those funds in such a manner as permitted the principals of the firm to comply with the requirements of the Legal Profession Act, 2004. PARTICULARS In these Particulars: "the Solicitor" means Anthony Donald Evans Paul. "the Society" means The Law Society of New South Wales. "the firm" means Creaghe Lisle, Solicitors. At all relevant times the Solicitor was employed by the firm as a consultant. The Solicitor was a duly authorised signatory on both the office and the trust accounts of the firm. 1&5. Misappropriating the proceeds of cheques drawn on the accounts of Creaghe Lisle payable to John Hart, Barrister. Cheque 1 - Wayne Andrew Garrett 1. On or about 24 March 2006, the Solicitor was retained by Wayne Andrew Garrett in a criminal matter. 2. The firm's tax invoices to the client dated 1June 2006 and 24 August 2006 do not include disbursements for Counsel. 3. On 28 November 2006 an office cheque numbered 030212 was drawn in favour of John Hart for $880 and signed by the Solicitor. It was recorded in the accounts ledger as 'costs' for the client, Garrett. On the same day the sum of $80.00 was credited in the ledger as 'Reduction in GST'. 4. On the cheque the typed payee name of 'John Hart' has been crossed out and in handwriting the words 'CASH' and 'Please Pay Cash Creaghe Lisle' and a signature have been inserted. 5. The Solicitor admitted to Mr Sofiak, Trust Account Investigator, "That's my writing and signature . . . I retained the proceeds. I cashed it at the Commonwealth Bank". 6. On 1 August 2007 the sum of $800 was written off. The entry in the ledger reads "write off as per ADP". Cheque 2 - Cameron Grentell 7. The Solicitor was retained by Cameron Grentell in a criminal matter. 8. On 22 December 2005 an office cheque numbered 028182 was drawn in favour of 'JP Hart' for $1,210 and signed by the Solicitor. It was recorded in the account ledger as 'J P Hart fees' for the client Grentell. On the same day the sum of $110.00 was credited to the ledger as 'Reduction in GST'. 9. On the cheque the typed payee name 'J P Hart' has been crossed out and the hand written words 'CASH' and 'Please Pay Cash Creaghe Lisle' and a signature have been inserted. The Solicitor admitted to Mr Sofiak "That's my writing and signature and I have retained the proceeds. Again it was cashed at the Commonwealth Bank". 10. On 1 August 2007 the sum of $1,100.08 was written off. The entry in the ledger reads 'write off as per ADP'. Cheque 3 - JK Montgomery 11. The Solicitor was instructed to act for Mr JK Montgomery in an industrial relations matter ["the Montgomery matter"]. 12. On 24 October 2005 office cheque number 027754 was drawn in favour of 'John Hart' for $2,000, signed by the Solicitor and recorded in the ledger as 'John Hart fees 24.10.05 & 15.8.05'. 13. On the cheque the typed payee name 'John Hart' has been crossed out and the hand written words 'CASH' and 'Please Pay Cash' have been inserted. The Solicitor admitted to Mr Sofiak "That's my writing and signature and I have retained the proceeds. I cashed it in at the Commonwealth Bank". Cheque 4 14. In the Montgomery matter, on 15 November 2005 an office cheque numbered 027905 was drawn in favour of 'John Hart' for $1,650 and recorded in the account ledger as 'John Hart Counsel Fees'. 15. On the cheque the typed payee name 'John Hart' has been crossed out and the hand written words 'CASH' and 'Please Pay Cash Creaghe Lisle' and a signature have been inserted. The Solicitor admitted to Mr Sofiak "That's my writing and signature and I have retained the proceeds. Again I cashed the cheque at the Commonwealth Bank". Cheque 5 - Christopher Thomas Plant 16. On or about 30 January 2008, the Solicitor was instructed to act for Christopher Thomas Plant in a criminal matter. On 26 June 2008 office account cheque no. 33360 was drawn in favour of 'J Hart' for $990.00 and signed by Anita Kemp, the firm's Accounts Manager, and recorded in the account ledger as 'J Hart fees' for the client, Mr Plant. 17. On the cheque, the typed payee name 'J Hart' has been crossed out and the handwritten words 'Please pay Cash Creaghe Lisle' have been inserted. The Solicitor admitted to Mr Sofiak that the handwritten words were his and he cashed the cheque at the Commonwealth Bank and retained the money. 18. On the file is a letter dated 26 June 2008 to Mr Hart "We enclose cheque for the sum of $900 in payment of your fees". The Solicitor admitted to Mr Sofiak this letter was not sent. Cheque 6 -Tyson Geale 19. On or about 29 November 2006 the Solicitor was instructed to act for Tyson Geale in a criminal matter. 20. The account ledger demonstrates that on 12 January 2007 office account cheque no. 30430 for $1,320.00 was drawn in favour of "J Hart" for "Payment of fees'' for the client, Mr Geale. 21. The Solicitor admitted to Mr Sofiak that he opened the cheque and cashed it at the Commonwealth Bank and retained the money. Cheque 7 - The Kelly matter 22. The Solicitor was instructed by Mr Jason Kelly to defend certain criminal charges and for that purpose retained Counsel, Mr John Hart ["the Kelly matter"]. 23. On 18 February 2008 [which was the first day of the trial] an office cheque number 032672 was drawn in favour of John Hart for $1,500 and signed by Anita Kemp, the firm's Accounts Manager, and recorded in the ledger as "costs" for the client, Mr Kelly. 24. On the cheque the typed payee name of 'John Hart' has been crossed out and the hand written words 'CASH' and 'Please Pay Cash' and a signature have been inserted. The Solicitor admitted to Mr Sofiak that "That's my writing and signature and I received the benefit". Cheque 8 25. In the Kelly matter, on 22 February 2008 an office cheque number 032699 was drawn in favour of 'J Hart' for $1,430 signed by the Solicitor and recorded in the account ledger as "Barrister Fee" for the client, Mr Kelly. 26. On the cheque the typed payee name of 'J Hart' which has been crossed out and the hand written words 'CASH' and 'Please pay cash' and a signature have been inserted. The Solicitor admitted to Mr Sofiak that he initially signed the cheque and it is also his writing and signature opening the cheque to cash. He also admitted to obtaining the benefit of the cheque. Cheque 9 27. In the Kelly matter, on 7 March 2008 an office cheque number 032777 was drawn in favour of 'J Hart' for $2,200 signed by the Solicitor and recorded in the account ledger as "Barrister Fee" for the client, Mr Kelly. 28. On the cheque the typed payee name of 'J Hart' has been crossed out and the hand written words 'CASH' and 'Please pay cash Creaghe Lisle per (signature)" and a signature have been inserted. The Solicitor admitted to Mr Sofiak that he initially signed the cheque and it is also his writing and signature opening the cheque to cash. He also admitted to obtaining the benefit of the cheque. 2. Concealing from the partners of Creaghe Lisle that the Solicitor had appropriated to his own use the proceeds of cheques drawn on the accounts of Creaghe Lisle payable to John Hart, Barrister. 29. Paragraphs 1 to 28 above are repeated. 30. The Solicitor's dealings with the cheques in question was done without the knowledge and consent of the partners of the firm. 3. Misleading the Court. 31. The Solicitor acted for Mr David Kirkwood following his driver licence being suspended. 32. By letter dated 30 April 2009 from the Solicitor to the Presiding Magistrate of the Downing Centre Local Court, the Solicitor informed the Court that: 33. Mr Kirkwood as a result of this offence, had his licence (sic) suspended. He is now working on a contract in the Wagga area and asks that a plea of guilty be entered when this matter is before your Honour on 12 May and the matter be adjourned to the Wagga Wagga Local Court for sentence on Monday, 8 June..." ["the letter"] 34. In fact, Mr Kirkwood was "not...on a contract in the Wagga area". 35. As a result of the letter Mr Kirkwood's matter was transferred to the Local Court at Wagga Wagga. 36. The Solicitor's letter was false and thereby misleading 4. Forging the signature of a barrister, John Hart, on a trust cheque made out to John Hart for $2,200, in order to open that cheque to cash and retained the proceeds. 37. In the Kelly matter, on 14 July 2008 a trust cheque number 016470 was drawn in favour of "Mr John Hart -Barrister" for $2,200 and signed by the Solicitor and recorded in the trust account ledger as 'Professional Costs'. 38. In handwriting on the reverse of the cheque are the words "Please Pay William Farrer Hotel Creaghe Lisle per (signature) John Hart per J Hart". 39. The Solicitor admitted to Mr Sofiak that the writing on the reverse of the cheque is his including John Hart's signature. He also admitted to obtaining the benefit of the cheque. 6. Having received trust funds in cash from clients of his then firm, failed to deal with those funds in such a manner as permitted the principals of the firm to comply with the requirements of the Legal Profession Act, 2004. 40. At all relevant times the Solicitor was employed by the firm as a consultant. 41. In the course of his practice with the firm, the Solicitor received the following amounts, in cash, on the date stated ["the funds"]. Interim Receipt No Date Received Amount Client 1 4031 16 Mar 2009 $880 Macklan 2 3777 15 Jan 2009 $770 Vogt 3 3159 23 May 2008 $770 Scott 4 2821 4 Mar 2008 $770 Turner 5 2705 29 Jan 2008 $660 Hunt 6 2371 13 Aug 2007 $770 Vandelt 7 2343 2 Aug 2007 $730 Woodland 8 1389 3 Jul 2006 $1,320 Dowdle 9 1291 29 May 2006 $550 Hall 10 1267 22 May 2006 $495 Bray 11 1223 5 May 2006 $495 Suckling 12 0570 9 Aug 2005 $1,000 Wallace 13 0489 18 Apr 2005 $400 Holder 42. The funds were received from the respective client prior to his or her matter being heard by the Court. 43. The funds were paid by the respective client in response to the Solicitor's correspondence requesting the payment of same prior to the hearing date. 44. The receipt of the funds were acknowledged by [interim] receipt. 45. The funds were not recorded in the trust ledger of the respective client nor were they banked to the firm's trust account. 46. The funds were retained by the Solicitor until they were divided and distributed between the Solicitor and the partners of the firm. 47. Prior to the distribution of the funds no accounting had been rendered to the respective client. Our conclusions 15It is beyond doubt that the Solicitor's conduct relating to each of these Grounds amounted to professional misconduct. It was 'disgraceful and dishonourable' within the common law criterion for misconduct and/or it involved the contravention of regulatory provisions of the LP Act (for example, section 258A) so as to amount to misconduct under section 498(1)(a) of that Act. 16It is equally beyond doubt that this conduct showed the Solicitor to be unfit to practise law at the time when it occurred. There being no evidence to suggest otherwise, he must be presumed to have remained unfit for practice. It follows that his name must be removed from the Roll. 17Since no 'exceptional circumstances' within section 566(1) of the LP Act have been alleged, the Solicitor must pay the Law Society's costs. ********** 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: 13 February 2013