Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Aussel re McCaffery [2013] NSWADT 102 Hearing dates: 17 April 2013 Decision date: 17 April 2013 Jurisdiction: Legal Services Division Before: Naida Isenberg, Judicial Member J Wakefield, Judicial Member C Bennett , Non-Judicial Member Decision: Under s.17(3)(c) Legal Profession Act 2004 the Tribunal approves Nicholas Luke McCaffery, being a person who has been convicted of a serious offence, as a lay associate within the meaning of section 7(2)(b) of the Act of Nicholas William Aussel, Solicitor, subject to the conditions set out in this decision. Catchwords: Solicitor - employment of former barrister as a lay associate Legislation Cited: Legal Profession Act 1987 Legal Profession Act, 2004 Crimes (Sentencing Procedure) Act, 1999 Cases Cited: Ziems v. The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 Clyne v NSW Bar Association (1960) 104 CLR 186 Harvey v Law Society of NSW (1975) 49 AUR 362 Weaver v Law Society of NSW (1979) 142 CLR 201 NSW Bar Association v Evatt (1986) 117 CLR 177 Wentworth v NSW Bar Association (1992) 176 CLR 239 Law Society of NSW v Bannister NSWCA [1993] 4 LPDR 24 Connolly v Law Society of NSW [2000] NSWADT 82 Camille Edouard Dezarnaulds and Stephen Wawn v Law Society of New South Wales (unreported Spender AJ dated 27 June 1995) Category: Principal judgment Parties: N W Aussel (Applicant) Representation: Counsel C K Stewart (Applicant)) N W Aussel (Applicant) (Council of the Law Society of New South Wales assisting the Tribunal) File Number(s): 132003 reasons for decision 1At the conclusion of the evidence we were prepared to make the orders sought, with the suggested conditions. These are our detailed reasons. Background to the application 2The applicant, Nicholas William Aussel wishes to engage Nicholas Luke McCaffery as a lay associate. 3Mr McCaffery was admitted as a Solicitor of the Supreme Court of New South Wales in 1986, and, in 1993, was admitted to the New South Wales Bar. Between 8 August 2002 and 11 December 2003 Mr McCaffery practised as a barrister but did not at that time hold a practising certificate. On 17 December 2004 the New South Wales Court of Appeal declared that Mr McCaffery was guilty of professional misconduct in so practising and ordered that his name be removed from the Roll of Legal Practitioners of the Supreme Court of New South Wales. 4Further, on 16 June 2005, Latham J found Mr McCaffery guilty of 29 counts of contempt of court in that he acted as a barrister without holding a current practising certificate in contravention of s48B of the Legal Profession Act 1987. He was convicted on all counts. On 3 November 2005, Mr McCaffery received a custodial sentence in respect of each charge, each sentence being suspended, upon entering bonds under s.12 of the Crimes (Sentencing Procedure) Act 1999. Relevant legislation 5The Legal Profession Act, 2004 (the Act) provides: 7 Terms relating to associates and principals of law practices (1) For the purposes of this Act, an "associate" of a law practice is: (a) an Australian legal practitioner who is: ... (vi) an employee of, or consultant to, the law practice ... 17 Associates who are disqualified or convicted persons (1) A law practice must not have a lay associate whom any principal or legal practitioner associate of the law practice knows to be: (a) ... (b) a person who has been convicted of a serious offence, unless the associate is approved by the relevant authority under subsection (3). (2) A contravention by a law practice of subsection (1) is capable of being unsatisfactory professional conduct or professional misconduct on the part of a principal or legal practitioner associate of the law practice involved in the contravention. (3) The relevant authority to approve a person for the purposes of subsection (1) is: ... (c) in the case of a person who has been convicted of a serious offence-the Tribunal. ... (5) An approval under this section may be subject to specified conditions. ... (9) In this section: lay associate of a law practice has the same meaning as in section 7 (Terms relating to associates and principals of law practices), and includes a consultant to the law practice (however described) who: (a) is not an Australian legal practitioner, and (b) provides legal or related services to the law practice, other than services of a kind prescribed by the regulations. Hearing and evidence 6At the hearing, the Law Society, which was not a party to the application, appeared so as to assist the Tribunal. The Law Society did not oppose the application, and provided suggested conditions to Mr McCaffery's employment by Mr Aussel. 7Mr Aussel and Mr McCaffery tendered affidavits, which were formally read. Mr McCaffery 8Mr McCaffery gave evidence of his admission and how his practice at the bar deteriorated over time such that his work virtually dried up and he lost his chambers. As a result of his declining income his family had to downsize their home several times. His father became ill and subsequently died. 9He believes his personal, financial and professional circumstances were in large part the cause of a psychiatric condition, and in turn, his condition was a contributing factor to the decline of his practice. He became withdrawn from people, including his wife, from whom he separated. He had little insight, despite receiving psychiatric treatment. 10He had so little work that when the time came to renew his practising certificate, he did not have the means to pay it. It did not occur to him to seek help. He continued to practise as a barrister for approximately 18 months while not holding a current practising certificate. During that time he was briefed by Mr Aussel, who had been a personal friend since the 1980s. Mr Aussel was unaware that he did not hold a practising certificate. 11When it was discovered that Mr McCaffery did not hold a practising certificate he undertook to the Bar Association not practise as a barrister. 12He did not appear at the hearing of the proceedings in the Court of Appeal and on 17 December 2004 his name was removed from the Roll. He acknowledged that his conduct was a serious affront to the profession, and that he had wilfully ignored the gravity of his conduct. 13On 16 June 2005 Latham J found Mr McCaffery guilty of contempt of the court by appearing as a barrister in contravention of s. 48B of the Legal Profession Act 1987 without a current practising certificate on the 29 occasions. In sentencing, Latham J took into account her finding of real contrition and remorse and his previous good character. Her Honour noted also that the offences occurred over a significant period of time and constituted a breach of the trust reposed in Mr McCaffery by the Court, and could well have added a breach of his colleagues' and his clients' trust. Latham J suspended the sentences under s.12 of the Crimes (Sentencing Procedure) Act, subject to Mr McCaffery entering a bond and complying with relevant conditions. He was also ordered to pay the Prothonotary's costs of those proceedings. Mr McCaffery was unable to pay those costs and he was bankrupted. 14He acknowledges that his conduct was disgraceful and dishonourable, in that he circumvented the protective regime afforded by the Act, and failed in his duty of honesty, candour and respect to both the Court and his professional colleagues. 15Following the order for removal from the Roll, Mr Aussel made available his office internet to permit Mr McCaffery to carry out private research and study, as he continued to have an academic interest in law. He found the research and study to be very therapeutic. 16The acuteness of Mr McCaffery's psychiatric condition has diminished significantly since 2008, primarily, he believes, by reason of an increasing reconciliation with his wife and child. However, he lives with his 90 year old mother, having assumed the role of her carer. This role has also been of assistance in dealing with his condition. He believes work ill be therapeutic and will militate against a relapse. Mr Aussel 17Mr Aussel acknowledged that Mr McCaffery's conduct involved deceit in holding out to the public at large, his clients, his colleagues and the Court that he was qualified to practise as a barrister. Mr McCaffery demonstrated contempt for the Court in purporting to appear as of right when he was not entitled to do so and, contempt for fellow officers of the Court, and disregard for his clients, who may have been exposed on account of his lack of professional indemnity insurance and where communications with him might not have been the subject of legal professional privilege. Further, Mr Aussel accepted that Mr McCaffery had shown complete disregard for the proper regulation of the profession. He was aware Mr McCaffery had made full and frank admissions, cooperated with the prosecution and did not oppose the orders sought against him. 18It was Mr Aussel's observation that since that time Mr McCaffery has developed insight into his condition and the need to seek professional help should the same symptoms which formed part of the circumstances of his misconduct again arise. He also considered that Mr McCaffery is also more aware that he could seek help from him and others should he have any difficulties in discharging work obligations. 19Mr Aussel outlined steps he would take to avoid potential risk to the public should Mr McCaffery be permitted to work as a lay associate: 20Mr McCaffery would work under the supervision of a properly qualified legal practitioner who can be trusted to have proper regard to the client's interests, including maintaining adequate professional indemnity insurance. Although client monies were never an issue in the proceedings before the Court of Appeal, given the particular course of conduct called into question, the fact that Mr McCaffery has been found not to be a fit and proper person to remain on the Roll, and, more particularly, given the disregard he displayed for the law, Mr McCaffery would not be allowed nor given any opportunity to handle moneys or deal with accounts. 21Mr McCaffery would not have unsupervised access to clients. Any proofs of evidence drafted by Mr McCaffery would be prepared on the basis of conference with witnesses conducted by a solicitor at which Mr McCaffery would have largely passive role, limited to any comments by him to the solicitor, with the drafts reviewed by solicitor for settling or prior to forwarding to counsel for settling. 22He would review any correspondence prepared by Mr McCaffery before issuing. 23Mr McCaffery would not be permitted to have access to clients outside the office, other than when assisting in court. 24Mr McCaffery would not be permitted to seek leave to appear (as a clerk may), for the first six months of his employment. 25Mr McCaffery would not be permitted to instruct counsel, although he may be asked to assist in proceedings with research, drafting of statements (or affidavits) and/or pleadings, and assisting the instructing solicitor where counsel agrees. 26Mr McCaffery would not be permitted to attend on counsel in any capacity unless disclosure has first been made to counsel of the findings generally of the Court of Appeal and the consequent order for removal, and counsel extending consent to Mr McCaffery's involvement in the particular case. 27Mr Aussel attached to his affidavit letters from members of the Bar to the effect that they would not be embarrassed by dealing directly with Mr McCaffery: Messrs D. Durston, J. Keesing, J. Davis, and C.K. Stewart. As Mr Stewart represents Mr Aussel in these proceedings, he agreed it was inappropriate for the Tribunal to take his letter into account. 28Mr Aussel also attached to his affidavit a report dated 4 March 2012 from Dr Armstrong, Mr McCaffery's treating psychiatrist. Dr Armstrong 29Dr Armstrong wrote that he found Mr McCaffery to be an open, sincere, cooperative, intelligent and appropriately emotionally responsive person. He took a history of his having been clinically depressed for around 4-5 years up to the beginning of 2009, during which time he suffered from depressed mood and was subject to much suicidal ideation. He was sleeping badly and losing weight, which are consistent with significant depression. In contrast, presently he sleeps 6-7 hours per night, his appetite is good and his weight has been constant over the past couple of years. 30Dr Armstrong considered that Mr McCaffery's severe depressive illness which was present for much of the period 2001 to 2008, was caused by a number of stressors. Those included: financial stresses caused by inadequate income, given his retiring temperament and consequent difficulties in networking for briefs; the added responsibilities of providing for his wife and child at a time when he was already struggling financially; being sued for negligence; his father's diagnosis with terminal cancer and two year decline; his loss of chambers; and his stress and guilt of working without a practising certificate, and not knowing how to resolve that situation. Later he suffered the loss of his career, associated public shame and humiliation; the shock of facing a possible custodial sentence; separation from his wife and child, and alienation from them and his family of origin; and continuing financial stress of being unable to pay the legal bills, followed by his bankruptcy. He considered it was likely that Mr McCaffery's procrastination and inability to make appropriate decisions about his situation as a barrister from June 2002 was very significantly influenced by his severe depressive illness. 31Although from 2004 onwards Mr McCaffery remained clinically depressed for much of the next five years, Dr Armstrong considered that he demonstrated great personal strengths during this period in persisting with a self-directed program of study-to keep up to date with law, to add new areas of competence and to research an idea for a book. Gradual emergence from the depression, without benefit of antidepressants, correlated with these efforts. It accelerated following reconciliation with his mother and siblings and later with his wife, and in particular with renewal of relationship with his child. Mr McCaffery has now been free of depression for more than three years. 32Dr Armstrong was aware that Mr McCaffery would be closely supervised in any employment, and would have limited contact with the public and with money. He considered it unlikely that Mr McCaffery would relapse into depression, but suggested as a safeguard, that he attend for three monthly reviews for at least the first year in working in any position. Consideration 33The Courts have repeatedly asserted that purpose of the jurisdiction is protection of the public and not punishment: see, for example, Ziems v. The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279; Clyne v. NSW Bar Association (1960) 104 CLR 186, Harvey v Law Society of NSW (1975) 49 AUR 362; Weaver v Law Society of NSW (1979) 142 CLR 201; NSW Bar Association v Evatt (1986) 117 CLR 177; and Wentworth v NSW Bar Association (1992) 176 CLR 239. 34Protection of the public and of clients of legal practitioners are explicitly acknowledged in s.3(a) as a purpose of the Act, together with the administration of justice. 35We accept that Mr McCaffery's conduct which led to his removal from the Roll and his convictions for contempt was likely, in a large degree, the result of lack of personal insight, his depressive illness, family breakdown, and inability to deal appropriately with a diminishing income. It appears that Mr McCaffery has never sought to deny his conduct, and we accept that the disciplinary and the contempt proceedings, the latter with the possibility of a custodial sentence, were themselves traumatic for him. It is now some time since the conduct which led to his removal from the Roll and convictions. 36From the available evidence, especially that of Mr McCaffery's treating psychiatrist, we are prepared to accept that Mr McCaffery's present circumstances differ significantly from his circumstances at the time of the offending conduct, and that the likelihood of further transgressions is significantly diminished. 37We also accept that the proposed employment will, in itself, be therapeutic to Mr McCaffery's further rehabilitation. We place less weight on the claimed rehabilitative effect of the return to work in a legal environment, but acknowledge that the benefits of being able to work in his chosen field, albeit in a reduced capacity, may be likely to reduce the possibility of further wrongdoing. 38Mr Aussel submitted, and we accept, that Mr McCaffery's insight and rehabilitation, especially concerning his medical condition, goes a considerable way towards ensuring protection of the public. It was further submitted that the self-imposed limitations which were proposed for Mr McCaffery's employment are adequate to protect the public. We accept this submission. 39Deterrence also plays a part in the protection of the public: Law Society of NSW v Bannister NSWCA [1993] 4 LPDR 24. Mr McCaffery's conviction and sentences appear to have been an effective deterrent to Mr McCaffery himself. They also serve as a deterrent to any practitioner who may contemplate similar conduct. In the same way, while each matter is to be determined on its own merits, practitioners who engage in such conduct should be aware that their return to the profession, in any capacity, is a matter the Tribunal will view with over-arching emphasis on the protection of the public: Connolly v Law Society of NSW [2000] NSWADT 82 ('Connolly') at [27]. 40We consider, by way of safeguard, that it is appropriate that Mr McCaffery's employment be subject to a number of conditions. These conditions were approved by the Law Society, and we understand, also by the New South Wales Bar Council, although the latter, it seems to us, was not necessary for the purposes of the present application. We consider the restrictions proposed upon Mr McCaffery in circumstances of the present state of his psychiatric condition and his insight into his condition, will provide adequate protection of the public. Those restrictions necessarily limit Mr McCaffery's utility to Mr Aussel, and Mr Aussel must bear ongoing and somewhat onerous responsibilities in the supervision of Mr McCaffery so as to maintain the high standards the community expects of the legal profession: see Connolly at [49] and [51] and Camille Edouard Dezarnaulds and Stephen Wawn v Law Society of New South Wales (unreported Spender AJ dated 27 June 1995) DECISION 41Under s.17(3)(c) of the Act the Tribunal approves Nicholas Luke McCaffery, being a person who has been convicted of a serious offence, as a lay associate within the meaning of s.7(2)(b) of the Act of Nicholas William Aussel, Solicitor, subject to the conditions below. CONDITIONS i.Mr McCaffery to be supervised by Mr Aussel ("the Solicitor") at all times. ii.Mr McCaffery is not to have access to or be signatory to any account conducted by the Solicitor with any financial institution in the course of his practice; iii.No document, letter or any other written material drafted by Mr McCaffery is to be dispatched from the Solicitor's office without prior approval of the Solicitor; iv.No document or written communication of any nature is to leave the Solicitor's practice under the name or signature of Mr McCaffery; v.Mr McCaffery is not to receive any money from any client or potential client of the Solicitor vi.Mr McCaffery is not to hold himself out or represent himself as being a qualified legal practitioner but rather is to inform those persons with whom he has contact in the course of his employment by the Solicitor that he is in fact a clerk of the Solicitor and is not authorised and cannot tender to any such person any legal advice; vii.Mr McCaffery is not to tender to any person any legal advice; viii.Mr McCaffery is not to have a business card or any other form of identification identifying him in any capacity with the Solicitor's practice without prior approval of the Law Society of NSW; ix.Mr McCaffery is not to have any key or other means of entry to any office from which the Solicitor carries on his legal practice; is not to attend any such office without, at the same time, the attendance of the Solicitor or of another solicitor in the Solicitor's employ; is not to have access to mail, e-mail transmissions or other forms of written communication received in the Solicitor's office other than as provided to him by the Solicitor; x.The remuneration of Mr McCaffery to be by way of a stipulated salary or hourly rate, and is not to include or be calculated by reference to income received or success in any matter; xi.For a period of 12 months immediately following the commencement of the Solicitor's employment of Mr McCaffery, Mr McCaffery is to attend, on at least a three monthly basis, on Dr Armstrong and request that Dr Armstrong inform the Manager, Professional Standards Department of the Law Society of NSW in writing that Mr McCaffery has so attended and as to Mr McCaffery's fitness to continue with his employment with the Solicitor; xii.The Solicitor is to report on a three monthly basis commencing three calendar months from the date of permission being given to him to employ Mr McCaffery, to the Manager, Professional Standards Department of the Law Society of NSW, in writing, on Mr McCaffery's standard of work, behaviour and application to his duties; xiii.Prior to the commencement of any employment by the Solicitor of Mr McCaffery, both the Solicitor and Mr McCaffery are to inform the Tribunal and the Law Society of NSW, each in writing, that they individually understand these conditions and each individually gives an undertaking that each will, as far as the conditions relate to them, abide by those conditions; in each case such to be in writing, signed by the Solicitor and Mr McCaffery; and xiv.Upon Mr McCaffery ceasing to be employed by the Solicitor the Solicitor shall advise the Manager, Professional Standards Department of the Law Society of NSW, in writing of such cessation and provide a final report in accordance with the terms of condition (xii) above. ********** 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: 10 May 2013