Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McCowan V Council of the Law Society of NSW [2014] NSWCATOD 44 Hearing dates: 5 July 2013 and 27 August 2013 Decision date: 05 May 2014 Jurisdiction: Occupational Division Before: JS Currie, Senior Member. M Riordan, Senior Member. Prof R Fitzgerald, General Member Decision: The Tribunal approves Alan Richmond Brawn ("Mr Brawn") as a lay associate of the law practice conducted by the Applicant, Terence McCowan, known as Legal Wisdom ("the law practice"), upon the following conditions: 1.The employment of Mr Brawn shall be for a period of only up to two days in any one week period of Monday to Friday inclusive. 2.Terence McCowan ("Mr McCowan") must supervise Mr Brawn and be present at all times during which Mr Brawn attends the law practice. 3.Mr Brawn must not have any access to any key or other mode of access to the law practice. 4.Mr Brawn must not have any access to, or be a signatory to, any bank account conducted by Mr McCowan with any financial institution, either personally or in the course of the conduct of the law practice. 5 Except for the existing clients of Mr McCowan by whom Mr Brawn has previously been employed, Mr Brawn shall not be a signatory to any bank account conducted by any client of the law practice, with any financial institution. 6. No written material which is to any extent prepared, drafted, reviewed or completed by Mr Brawn shall by any means be communicated from or taken from the law practice before it has been approved by Mr McCowan. Each such item must be signed or otherwise appropriately authorised (for example by way of electronic acknowledgement) by Mr McCowan. 7. Mr Brawn must not collect or receive any money from any client of the law practice. 8 Before Mr Brawn attends upon any client of the law practice for the first time (to the intent that an attendance shall include an attendance in person, by telephone or by any form of correspondence), Mr McCowan (a)shall personally inform the client of Mr Brawn's status within the law practice as a lay associate and that Mr Brawn is not a Legal Practitioner or a solicitor; and (b) shall not inform the client that Mr Brawn is a former Legal Practitioner or a former solicitor. 9 .Mr Brawn must not provide or tender any legal advice in any form or by any means of communication to any client of the law practice. 10. The only remuneration payable by the law practice to Mr Brawn shall be by way of agreed salary or an hourly rate payment. 11. Prior to Mr Brawn commencing employment as a lay associate, each of Mr McCowan and Mr Brawn shall: (a) confirm in writing to the Manager of the Professional Standards Department of the Law Society of New South Wales that he understands these conditions; and (b) provide the Law Society of New South Wales with a signed undertaking that he will abide by these conditions in all respects insofar as they impose an obligation on either Mr McCowan or Mr Brawn. 12. Within 7 days of the termination of employment of Mr Brawn by the law practice Mr McCowan will notify the Manager of the Professional Standards Department of the Law Society of New South Wales of that termination. 13 The scope of Mr Brawn's duties as a lay associate are limited to carrying out the following tasks, each task to be referred to Mr Brawn individually by Mr McCowan and undertaken as directed by him: (a) maintaining and updating client database; (b) opening client files; (c) drafting legal documentation; (d) drafting correspondence; (e) drafting, perusing and commenting on contracts for sale, leases and other agreements for clients of the law practice; (f) conducting legal research on matters referred by Mr McCowan; and (g) preparation of conveyancing matters for completion, such work to include preparation of settlement adjustment statements, rate enquiries and ordering searches. Catchwords: Lay associate application. Fitness to resume involvement with a law practice. "Fit and proper person" tests. Character. Insight. Contrition. Rehabilitation. Application granted subject to appropriate conditions and restrictions on scope of authority in employment. Legislation Cited: Crimes Act 1900, s558. Legal Profession Act 1987, s 61. Legal Profession Act 2004, ss 7, 17. Cases Cited: Dawson v Law Society of NSW [1989] NSWCA 58. Dezarnaulds and Anor v Law Society of New South Wales (Unreported; Supreme Court of New South Wales, 27 June 1995). Double Bay Law Pty Ltd t/as & Legal v Council of the Law Society of New South Wales [2013] NSWADT 182 Hegney v Law Society of New South Wales [2008] NSWADT 150 La Fontaine and Anor v Law Society of New South Wales [2006] NSW ADT 244 Law Society of New South Wales v Foreman, No.2 (1994) 34 NSWLR 408. Category: Principal judgment Parties: Terence McCowan (Applicant). Council of the Law Society of New South Wales (Interested Party). Representation: Counsel D D'Souza (Applicant) B M Dodd (Applicant). L Pierotti (Council of the Law Society of New South Wales). File Number(s): 132002 reasons for decision The Application 1This was an application made by Mr Terence McCowan, Solicitor ("Mr McCowan"), who is the principal of a legal practice known as Legal Wisdom, which is located in suburban Sydney. It is an application made pursuant to s 17(3)(c) of the Legal Profession Act 2004, seeking approval for that law practice to have Mr Alan Richmond Brawn ("Mr Brawn") as a lay associate. 2Essentially, section 17 prohibits a law practice from having any lay associate who the principal of the legal practice knows to be disqualified person or a person who has been convicted of a serious offence, without the consent of a "relevant authority". Where a person has been convicted of a serious offence the relevant authority is the Tribunal. Mr Brawn has been convicted of a serious offence, within the meaning of this section. He is also a disqualified person, having had his name removed from the Roll by order of the Legal Services Tribunal on 15 December 1997. 3The Application was heard by the Tribunal on 5 July 2013 and 27 August 2013. A second hearing day was necessary because during the first day Mr McCowan, who had been appearing on his own behalf as Applicant, indicated that he would need to give evidence personally as to Mr Brawn's good character and in support of the Application generally. He acknowledged that he would need to instruct a separate solicitor if he were to be a witness in the matter. By consent the matter was adjourned to enable him to do that. 4When the hearing resumed on 27 August 2013 Mr David D'Souza of Counsel appeared for Mr McCowan as Applicant, instructed by Mr Brian Dodd, Solicitor, of Rishworth Dodd Co. 5The Tribunal also joined the Council of the Law Society as a party to the proceedings. Mr Louis Pierotti, Solicitor appeared for the Council of the Law Society. Mr Brawn 6It was accepted by both parties that Mr Brawn had had a successful career as a solicitor until early 1995. He was for a time a member of the Council of the Law Society. He was for some years the managing partner of a major and successful practice in Western Sydney, and it appears to be accepted that he was well known and highly regarded in this period. 7However, on 20 February 1995 the Law Society cancelled his practising certificate. On 24 February 1995 the Supreme Court of New South Wales postponed the cancellation for approximately one month to enable Mr Brawn to sell his legal practice. He was subsequently able to sell his legal practice but did not receive sufficient to discharge his debts and on 8 July 1997, he was declared bankrupt. 8On 12 September 1996 Mr Brawn came before the District Court at Sydney charged with 4 counts of fraudulent misappropriation of client money during the period February 1993 to June 1994. The amount allegedly misappropriated was approximately $70,000. Mr Brawn pleaded guilty to all 4 counts. He was convicted on each count. He was given a suspended sentence under section 558 of the Crimes Act 1900 upon his entering into a personal recognisance in the sum of $1000 in each case to be of good behaviour for 3 years. 9By information filed on 23 April 1997 the Law Society informed the Legal Services Tribunal of a complaint of professional misconduct against Mr Brawn on the grounds that he had misappropriated his clients' monies, wilfully contravened section 61 of the Legal Profession Act 1987, wilfully misled the Law Society, forged his client's signature and failed properly to secure advances made on behalf of his clients. The matter was heard on 7 November 1997. By order made on 15 December 1997 the Legal Services Tribunal removed Mr Brawn's name from the Roll of Legal Practitioners. 10It is asserted by Mr Brawn in his affidavit sworn on 8 February 2013, and it appears to be accepted by both parties, that the following years were difficult for Mr Brawn and his family. In 1998 the family home which is owned by his wife had to be sold. Mr and Mrs Brawn have lived in rented accommodation since that time, paying a reduced rent because of the assistance provided to them by Mrs Brawn's family. In Mr Brawn's own words: "I have never recovered from the financial disaster that occurred because of the misappropriation...and the "fire sale" of my legal practice." 11Between 1996 and October 2011 Mr Brawn was employed as a business manager by a group of building and development companies owned and operated by Mr Raymond Younan and subsequently by a similar business owned by one of Mr Younan's brothers. Those companies specialised in the construction and development of medium density residential dwellings throughout suburban Sydney and to some extent in the purchase of real estate for development purposes and its sale following development approval or construction. 12In his affidavit of 8 February 2013 Mr Brawn described his duties as business manager of those businesses. The Tribunal accepts that in that role he appears to have had a broad range of responsibilities, including for example the preparation and lodgement of development applications and applications for construction certificates, arranging insurance, liaison with architects town planners and other professionals and liaison with his employers' solicitors, providing them with evidence and documentation for litigation and other legal matters. 13In a subsequent affidavit sworn on 16 April 2013 Mr Brawn asserted that his present employment with the Younan construction and development business is not secure and could end at any time, due to the downturn in the building and construction of medium density housing. He asserted that he has substantially reduced income and has withdrawn money from his superannuation fund to assist with living costs so that he has very little left in his superannuation fund. His wife is employed by a medical company as manager of a medical practice and works a three-day week. 14Mr Brawn has known Mr McCowan since 1977 when Mr McCowan had recently commenced practice working for a law firm in the same area of Sydney as Mr Brawn's firm. Subsequently Mr McCowan became a partner in a merged firm of which Mr Brawn was the managing partner. They have regular professional contact over the years and have maintained their association. Reasonably recently Mr McCowan, having become aware of Mr Brawn's reduced employment opportunities and financial circumstances, suggested to Mr Brawn that he might join Mr McCowan's practice as a lay associate, subject to appropriate approval by this Tribunal. 15We understand that the Law Society does not dispute this account background. The two-stage process involved in determination of the application. 16There are two separate but related stages involved in determining an application such as this. (a) "Fit and proper person" and related tests 17The first stage involves an enquiry by the Tribunal as to whether the person the subject of the application, in this case Mr Brawn, is in the words of the Court of Appeal of New South Wales in Dawson v Law Society of NSW [1989] NSWCA 58, at 12: "...now a fit and proper person to join other members of an honourable profession in the responsible and trusted activities which are involved in the work of the legal profession." 18In using that formulation, we think that at least some allowance must be made for the fact distinguishing fact that Dawson involved an application by a struck off solicitor to be re-admitted to practice as a solicitor. It was not a lay associate application. 19In this regard it is also relevant that section 7 of the Legal Profession Act 2004 recognises and distinguishes between three levels of "associate" of a law practice. Firstly the definition recognises as an associate an Australian legal practitioner who is a sole practitioner, partner, legal partnership director, consultant or employee of practice. Secondly it includes an agent (not being an Australian legal practitioner), and thirdly "an employee, or person paid in connection with, the law practice, who is not an Australian legal practitioner". Is the third category only which covers a lay associate as that term is defined in section 7. 20Be that as it may, this initial threshold issue in the circumstances of this case involves the Tribunal determining whether Mr Brawn is a fit and proper person to participate in the responsible and trusted activities which are involved in conducting legal practice. 21That clearly must involve an enquiry as to whether Mr Brawn is a man of sufficient good character to be such a fit and proper person and in this regard the Tribunal is guided by the useful observations as to the nature of "character" made by His Honour Justice Mahoney in the leading Court of Appealed decision of Law Society of New South Wales v Foreman, No.2 (1994) 34 NSWLR 408 at 449B, when His Honour analysed character as involving, inter alia two things: the acceptance of high standards of conduct; and acting in accordance with those standards under pressure. In His Honour's words: "Character is tested not by what one does in good times but in bad." 22In this regard, we also accept what was put to us by Mr Pierotti on behalf of the Law Society to the effect that as part of this first enquiry, the onus is on Mr Brawn (or perhaps on both Mr Brawn and Mr McCowan as the applicant) to demonstrate that Mr Brawn has effectively rehabilitated himself. 23We also accept that a most important part of this enquiry is examining whether Mr Brawn has demonstrated an insight into and an understanding of the seriousness of the professional misconduct which led to his name being removed from the Roll and his conviction on the criminal charges, in terms of the deviation of his conduct from the standard expected from those involved in the profession. We must also gain an understanding as to whether Mr Brawn has expressed genuine contrition for what he had done. (b) The conditions to be imposed upon any employment of Mr Brawn in the law practice. 24Importantly, it is only if the Tribunal is satisfied that Mr Brawn is a fit and proper person to be a lay associate within the designated law practice that it must then turn its mind to the conditions under which he will be permitted to act. The Tribunal usually requires the imposition of appropriate restrictions on the scope of the lay associate's duties and responsibilities within the law practice. 25Clearly however, these 2 issues are separate. There will be no benefit in the Tribunal considering the appropriateness or otherwise of proposed conditions of employment of the proposed lay associate and unless and until it is satisfied that he or she is a fit and proper person to be engaged in the law practice. The Applicant's case and submissions Applicant's evidence 26The applicant, Mr McCowan, filed an affidavit by himself sworn on 13 February 2013 in which he outlined his association with Mr Brawn, his assessment of his good character, the background referred to in paragraphs 6 to 14 above and proposed conditions under which Mr Brawn would be engaged as a lay associate. 27Mr McCowan also gave evidence on the second day of the hearing and was cross-examined on his evidence. 28Mr Brawn made two affidavits which were admitted into evidence. The first of these was affirmed on 16 April 2013. It was a fairly brief affidavit which outlined his current financial situation and gave some account of his involvement in social and sporting activities. Mr Brawn second affidavit, sworn on 8 February 2013, provides a more detailed account of the circumstances surrounding his criminal conviction, the cancellation of his practising certificate, the proceedings in which his name was removed from the Roll, his financial position in the history of his employment with the Younan businesses. This included a detailed account of his duties as business manager of those businesses. In this affidavit Mr Brawn also describes his attempts to maintain current knowledge of developments and legal issues relating to the construction and real estate industries. 29Mr Brawn also gave evidence at the hearing and was cross-examined extensively. 30There were a number of character affidavits admitted into evidence on behalf of the applicant. 31The first of these was an affidavit by Chrystalla Georgiou, Solicitor, sworn on 12 April 2013. Ms Georgiou was at the time of making her affidavit a solicitor of approximately 18 years standing and she has known Mr Brawn since January 1992 when he employed her as a graduate solicitor with his firm. 32There are 2 significant parts of Ms Georgiou's affidavit. The first of these is the description of Mr Brawn's skills and competence both as a legal practitioner and as a managing partner of the firm. In Ms Georgiou's assertion Mr Brawn was organised and made substantial demands on staff particularly in relation to the manner in which they kept their files, but at the same time he was someone who was generous and treated his staff well. For example, he would regularly take the whole office out to lunch. 33The second significant point in Ms Georgiou's affidavit is that she was told by Mr Brawn sometime in 2000 of his removal from the Roll in the 1997 proceedings brought by the Law Society. Ms Georgiou asserts that she has read the Disciplinary Report relating to those proceedings (contained in what is commonly referred to as the "Blue Book", being a supplement to the Law Society Journal which contained reports of current disciplinary proceedings against solicitors) The Tribunal notes that the Blue Book report contains, in a fairly prominent position, an account of the criminal charges against Mr Brawn and his conviction. 34Significantly Ms Georgiou also asserts that when Mr Brawn told her of the disciplinary proceedings and his striking off he did not seek to justify his actions and, as she put it: 35Ms Georgiou also gave a reasonably detailed account of her dealings with Mr Brawn in her capacity as one of the external solicitors used by Younan businesses since 2000. Ms Georgiou asserts that Mr Brawn was always thorough with his instructions and the preparation of files and she asserts that from instructions she received from the businesses she was able to determine that Mr Brawn had continued to be informed about changes in legislation and in legal practice and was well acquainted with developments in relation to building contract disputes. She regards Mr Brawn is conscientious and his document preparation as" immaculate". 36Finally Ms Georgiou asserts the notwithstanding the actions and conduct of Mr Brawn which led to him being struck off the Roll she believes that he is a person of good character and a hard-working man with principles. 37Ms Georgiou was cross-examined extensively. The Tribunal did not think that Ms Georgiou was swayed from her observations as to the character of Mr Brawn in cross-examination. 38In his cross-examination of Ms Georgiou, Mr Pierotti, quite properly, made much of the fact that when Mr Brawn disclosed to her the Law Society's disciplinary proceedings against him, he did not go on to disclose the criminal proceedings or his conviction. However Ms Georgiou asserted (and the Tribunal accepts) that she thoroughly read the Blue Book report of the disciplinary proceedings. As noted above that report contains, in a fairly prominent position, an account of the criminal charges against Mr Brawn and his conviction. 39Mr Pierotti also asked Ms Georgiou consider that, if she were told by someone that they had been struck off but that person had not added that they had also been found guilty of criminal offences, she might well form an unfavourable view of that person, because of their lack of candour. Ms Georgiou replied that she found it difficult to answer the question on this anonymous basis. However she reasserted her high opinion of Mr Brawn's present character. The Tribunal accepts that answer and regards Ms Georgiou's evidence in total as reliable and persuasive. 40Character evidence was also given by Ms Roslyn McMullan, whose affidavit, sworn on 2 April 2013 was admitted into evidence. Ms McMullen also gave evidence on the first day of the hearing. Ms McMullen worked for Mr Brawn between 1991 and 1995 as his conveyancing clerk and was subsequently employed by one of the Younan the companies and worked with Mr Brawn in that capacity for about 18 months in 1996 and 1997. 41In her affidavit Ms McMullen described her knowledge of Mr Brawn's striking off and the matters which had led to it. She also asserted that she was aware that he had been convicted of criminal offences relating to his behaviour. Notwithstanding this she considers him presently to be "..a person of the utmost integrity." In cross-examination Ms McMullen conceded that although she had been informed of the disciplinary proceedings and the criminal convictions she had not discuss them in any detail with Mr Brawn. 42Ms McMullen also described Mr Brawn's generosity and ongoing support for former staff members. She outlined, by reference to an attachment, his practice of substantially writing-down or writing-off debts for fees owed by impecunious clients. She also said this: "I still regard Alan as a loyal honest and trusted person and he has continued to be concerned and interested in the lives of his former staff. I am aware he has helped former staff to obtain employment in that he has provided references and recommendations. He has also contact me on several occasions to say that he had recommended me to someone for a job he may have known about, whether or not I was actively looking for alternative employment or not." 43A third character affidavit admitted into evidence was that sworn by Mr Stephen Valtas, Solicitor, on 19 February 2013. Mr Valtas worked with Mr Brawn as a solicitor and then as his partner between 1982 and 1987. He has maintained some contact with Mr Brawn. Under cross-examination it emerged that Mr Valtas did not know of the criminal charges against Mr Brawn other than by reading the Blue Book and had not had any discussion with Mr Brawn as to the circumstances surrounding his professional misconduct or indeed his criminal conviction until they had renewed their friendship in 2010. 44Notwithstanding that, Mr Valtas deposed that sometime in 2010, he and Mr Brawn had discussed the circumstances surrounding the misappropriation of funds and that at that time Mr Brawn :" became emotional and expressed remorse for his actions." 45Mr Valtas asserted his strong belief that Mr Brawn is currently a person of good character. He concluded his affidavit by saying that if he were given the opportunity he would employ Mr Brawn as a lay associate. 46Mr Valtas is accepted by the Tribunal as reliable and persuasive witness 47Mr Raymond Younan, who employed Mr Brawn in his building and construction business from 1996 until recently, swore and affidavit dated 12 April 2013 which was admitted into evidence. Mr Younan gave evidence on the first day of the hearing and was cross-examined extensively. 48Mr Younan expressed his belief in the good character of Mr Brawn. Under cross-examination, Mr Younan conceded that prior to its initial employment of Mr Brawn he had learnt of the professional misconduct proceedings from persons other than Mr Brawn. In cross-examination Mr Younan was also somewhat unclear as to whether he became aware of the disciplinary proceedings and criminal convictions before or after he employed Mr Brawn, but in his affidavit he makes it clear that notwithstanding those matters he was prepared to have him as an employee and trust him with the financial affairs of his business. Mr Brawn performed to Mr Younan's satisfaction and was trusted by him. In his affidavit Mr Younan concludes that Mr Brawn: ".has been a trusted and loyal friend and employee." 49The Tribunal accepts Mr Younan as a reliable and persuasive witness. Applicant's submissions 50Mr D'Souza made extensive oral submissions to the Tribunal on behalf of the applicant Mr McCowan and he supplemented these with written submissions. 51Mr D'Souza invited the Tribunal to find that Mr Brawn is a fit and proper person to participate in the practice of the law on the basis that he had continued to demonstrate these core qualities since the conclusion of the disciplinary proceedings. Mr D'Souza also invited the Tribunal to find that Mr Brawn is a man of good character. In this regard Mr D'Souza asked the Tribunal to regard favourably Mr Brawn's care and consideration for former staff members over the years and his willingness to assist disadvantaged or impecunious clients, often for no fee, thereby demonstrating his compassion. 52In particular Mr D'Souza urged the Tribunal to accept this conclusion as to Mr Brawn's character on the basis of the evidence given by the character referees. He asked the Tribunal to note that each of the referees was fully informed of the offences for which Mr Brawn was removed from the Roll. Mr D'Souza asks us to accept the events leading to Mr Brawn's striking off and criminal conviction as "an aberration and a moment of ill-discipline... completely at odds with the way Mr Brawn had conducted himself prior to the events and has conducted himself since." 53Mr D'Souza also contended that Mr Brawn has demonstrated insight recognition and effective rehabilitation. In this regard Mr D'Souza asked us to note the similarities in the factual background between this case and the cases of Hegney v Law Society of New South Wales [2008] NSWADT 150 and Double Bay Law Pty Ltd t/as & Legal v Council of the Law Society of New South Wales [2013] NSWADT 182. 54Mr D'Souza also contended that, as the Blue Book report of the disciplinary proceedings against Mr Brawn confirms, he expressed instant remorse for his offences and, apart from fully repaying the relevant client, with interest, he stated at the time of those proceedings that he was: "totally ashamed and embarrassed" for what he had done, and regarded his actions as: "disgraceful and totally unbecoming of a solicitor." He did not seek to attribute blame to the serious medical problems which he had at the time or the sudden deaths of both of his parents. He expressly ruled those factors out as a defence or excuse for his misconduct. Mr D'Souza also contended that Mr Brawn's remorse has been clearly expressed on various occasions since that time and in this regard he relied particularly on Ms Georgiou's evidence. Mr D'Souza contended that Mr Brawn demonstrates ongoing remorse and that he has been consistently frank and transparent about the events which led to his professional demise. 55In relation to rehabilitation of Mr Brawn, Mr D'Souza contended that the Tribunal should give substantial weight to the unshaken evidence of Mr Younan and Mr Brawn's professional and work colleagues. Importantly, in Mr D'Souza's contention Mr Brawn has also demonstrated a significant degree of tangible rehabilitation through his work with Mr Younan. Since 1996 he has been entrusted with dealings with Mr Younan's clients and his finances. 56Finally on this aspect, Mr D'Souza submitted that there are cases before this Tribunal and the Supreme Court which are sufficiently similar to the present one to provide authority for the granting of the application. These cases are Double Bay Law Pty Ltd t/as & Legal v Council of the Law Society of New South Wales [2013] NSWADT 182; Hegney v Law Society of New South Wales [2008] NSWADT 150; (both of which are mentioned briefly above); La Fontaine and Anor v Law Society of New South Wales [2006] NSW ADT 244 and Dezarnaulds and Anor v Law Society of New South Wales (Unreported; Supreme Court of New South Wales, 27 June 1995. The Tribunal gave consideration to each of those cases. 57Mr D'Souza made written submissions as to appropriate conditions which might be applied to Mr Brawn's employment. We will deal with a separately below. The Law Society's case 58Although the Law Society filed only short formal affidavits, Mr Pierotti made detailed oral submissions to us. He confirmed the Law Society's opposition to the granting of the application. 59In summary, Mr Pierotti asked the Tribunal to conclude that Mr Brawn had not demonstrated that he was fit and proper person to be permitted to participate in the profession as a lay associate, that there were doubts about whether he could satisfy the very high tests of good character and standing which were required and that he had not rehabilitated himself. 60Mr Pierotti contended that it could not be said that Mr Brawn had made a full and complete disclosure of both his criminal convictions and his striking off to each of the character witnesses. In relation to rehabilitation Mr Pierotti contended that work experience is not of itself evidence of rehabilitation and that there was little other evidence that Mr Brawn has sufficiently rehabilitated himself. 61Mr Pierotti also reminded the Tribunal that a critical question in terms of Mr Brawn's insight into his offences with was whether he understood what he had done. He asserted that there was substantial authority to the effect that rehabilitation can only really be demonstrated by evidence of social commitments and the ability to give of oneself. 62In Mr Pierotti's contention, assertions that Mr Brawn has been a "good employee" of the Younan businesses are not sufficient evidence of rehabilitation and that there is insufficient in the character affidavits to support a conclusion that he has been sufficiently rehabilitated. 63Mr Pierotti also submitted that Mr Brawn's current difficult financial circumstances should not be taken into account. The question for the Tribunal is whether Mr Brawn is a fit and proper person of good character and whether he has been rehabilitated. It is not whether he needs to be employed as a lay associate for financial reasons t. Proposed conditions of employment of Mr Brawn as a lay associate 64In his affidavit, sworn on 13 February 2013 the applicant Mr McCowan included a list of conditions and restrictions to which Mr Brawn would be subject as a lay associate. This list was subsequently broadened and revised is conditions were set out in the written submissions made by Mr D'Souza. 65At the conclusion of the hearing on 27 August 2013, following its initial consideration of the proposed list of conditions, the Tribunal indicated that it wished to reserve its decision. It reminded the parties that the Tribunal would have to be satisfied that Mr Brawn was a fit and proper person to be permitted to be a lay associate of the relevant law practice before it could consider the conditions which should apply to him in that capacity. However, the Tribunal wished to give the parties the opportunity to agree a set of conditions of employment, if possible. This would indicate to the Tribunal the sort of conditions which, from Mr McCowan's point of view, could realistically be imposed and would also indicate the conditions which the Law Society would find acceptable as a minimum. 66On that basis the Tribunal issued directions as follows: (1)The Law Society is to respond to the propose conditions of employment set out in paragraph 4.8 of the Applicant's written submissions within 7 days (by 3 September 2013). (2)The parties are to discuss their respective positions as to conditions of employment with a view to agreeing a set of such conditions. (3)The parties are to submit to the Tribunal on or before 24 September 2013 either: (a) an agreed set of proposed conditions of employment; or (b) their respective proposed conditions, together with any brief written submissions thereon. 67Subsequently, by letter dated and received on 13 September 2013 from Mr Dodd, the solicitor for the applicant, the applicant set out a further revised list of conditions which he said were agreed between the parties. 68By letter dated 16 September 2013 and received by the Tribunal on 18 September 2013 the Law Society informed the Tribunal of its position which was that if the Tribunal concluded contrary to the Society's stated position of opposition to the application, the Law Society would have no objection to the imposition of the conditions proposed in Mr Dodd's letter of 13 September 2013. The Tribunal's analysis and determination. (a)Should Mr Brawn be permitted to be a lay associate of the law practice? 69The Tribunal accepts that the applicant Mr McCowan bears the onus of establishing that the proposed lay associate, Mr Brawn, is as at the day of the hearing a fit and proper person to have further association with the profession as a lay associate, that he is of sufficient character for this purpose, that he has demonstrated insight and understanding of his wrongful actions and of how his misconduct fell below the standards of behaviour expected; that he has expressed remorse for his actions and that he has rehabilitated himself. 70On a careful consideration and weighing of the evidence the Tribunal is satisfied that the applicant has satisfied the onus of establishing each of these matters. 71In relation to the fitness and character of Mr Brawn, bearing in mind the twofold test imposed by Justice Mahoney in the Foreman Case as cited above at paragraph 21, the Tribunal finds that Mr Brawn has established his fitness for limited and carefully controlled engagement as a lay associate, that he understands the high standards required of members of the legal profession and others engaged in a law practice and that he is now capable of meeting those standards. That implies that we have also found that Mr Brawn has sufficiently rehabilitate himself to become involved with the profession as a lay associate, and we confirm that that is our finding. 72In reaching this conclusion the Tribunal has given substantial weight to most of the character evidence which has been introduced in support of Mr Brawn's position. The evidence of the character witnesses is for the most part, and for the purposes of the current issues, accepted by the Tribunal as credible and reliable. 73This is certainly not a matter where character witnesses have provided merely "formulaic" affidavits, under which the deponent states that he or she is now aware of the offence which the relevant practitioner committed, that they are surprised at that conduct and that they do not believe it will happen again. 74By contrast, each of the character affidavits in this case was detailed as to the deponent's knowledge and experience of Mr Brawn. Most of the referees gave a detailed account of Mr Brawn's past competence in the practice of the law. Some of them, including particularly Ms Georgiou, Ms McMullen and Mr Younan, gave examples of Mr Brawn's generosity, for example his kind treatment of staff and former staff, his treatment of impecunious clients and his support for Mr Younan during times of financial difficulty and family tragedy. 75We accept Mr Pierotti's submission that a person's rehabilitation to a degree sufficient to justify his or her renewed involvement in the work of the profession as a lay associate supposed cannot be established simply by referring to their work record. However, in this case the character evidence goes further than that. That evidence, particularly the affidavit and direct evidence by Mr Younan, establishes to the satisfaction of the Tribunal that over a considerable period Mr Brawn has been placed in a position of employment which involves substantial responsibilities and, significantly, requires his employer to repose a great deal of trust in him. It is apparent that Mr Brawn was dealing during that period with the negotiation, documentation, arrangement and performance of complex building and construction projects. He must have been trusted to deal with matters involving large amounts of money: Mr Younan's David confirms that the annual turnover of his business averaged $10.5 million during the period 2001 to 2009. 76Mr Brawn must also have been in a position where his word had to be trusted. We think it is a reasonable supposition that this would have arisen particularly in relation to negotiation of contractual matters and disputes. If he had betrayed that trust, then, given the complexity of the transactions he was involved in and the strict and often difficult "turnaround times" of projects in that industry, that would have become readily apparent and trust in Mr Brawn would have been lost. There is no evidence that that occurred. To the contrary, Mr Younan expressly confirmed that Mr Brawn has been a trusted and loyal friend and employee and indeed "a tower of strength during the good times and the bad times". 77We do not accept that the character witnesses were not aware of the criminal charges laid against Mr Brawn's criminal proceedings and conviction. The one possible rider to this is that it is not completely clear as to whether Mr Younan knew of the criminal proceedings and conviction before or after the employed Mr Brawn. Be that as it may, it is apparent from the affidavits of each of Ms Georgiou, Ms McMullen and Ms Valtas that they had read the "Blue Book report of the disciplinary action against Mr Brawn some time before making their affidavit. The Blue Book report in its opening paragraphs contains specific details of the criminal charges and convictions. 78Mr Pierotti undertook a very proper course in cross-examination of the character witnesses, with a view to establishing that there was doubt as to when some of those witnesses first heard of Mr Brawn's criminal conviction. Mr Pierotti succeeded in establishing some doubt on this point in relation to the evidence of Mr Valtas and Mr Younan. 79However, we do not accept that this result throws sufficient doubt on the frankness and honesty of Mr Brawn for us to conclude that he lacks the necessary character and fitness for this application to succeed. It is clear to us that most of the character witnesses were informed directly by Mr Brawn of the fact that he had been struck off as a solicitor. If they first became aware of this from a source other than Mr Brawn himself (which may have the case for example with Ms McMullen and Mr Younan), Mr Brawn subsequently confirmed the fact to them directly. Mr Brawn has not in any sense avoided the unfortunate fact of his striking off or concealed the reasons for it. All the character witnesses ascertained (at various stages) that he had also been convicted of criminal offences. Those who were lawyers or paralegals read the report in the Blue Book. That included an account of the criminal proceedings. They all realised the seriousness of what Mr Brawn had done and the penalties imposed on him. Yet those who needed to do so continued to deal with Mr Brawn. Mr Younan reposed considerable trust in him in his extensive business dealings. Possessed of this information about Mr Brawn, each of those witnesses now deposes as to his current good character and some of them depose specifically as to his trustworthiness. The Tribunal accepts their evidence and places considerable weight on it. 80We are also satisfied that Mr Brawn accepted and understood the importance and significance of the nature of his professional misconduct, its impact on others, and the way in which his conduct fell below the expected standard at the time of the initial disciplinary proceedings and criminal proceedings. We also accept the contention of Mr D'Souza that this insight has continued. 81We further accept that Mr Brawn expressed immediate and genuine contrition for his misconduct and that this contrition has continued. We do not accept the suggestion that the genuineness of the contrition is thrown into doubt by the fact that Mr Brawn may not have provided a full disclosure of the criminal proceedings against him to some of the character witnesses. The weight of the character evidence strongly supports the opposite conclusion. 82For these reasons the Tribunal is satisfied that the necessary tests of fitness and propriety, character, inside, remorse and rehabilitation have been satisfied by Mr Brawn. 83The Tribunal notes that in the cases cited to us by Mr D'Souza that in the cases of Double Bay Law Pty Ltd, La Fontaine and Dezarnaulds as cited at paragraph 56 above, the persons who successfully applied for readmission or participation to the profession were respectively 70, 69 and 60 years of age. Mr Brawn was 67 years of age at the time of the hearing. In Dezarnaulds ,Acting Justice Spender in the Supreme Court made observations about Mr Dezarnaulds, which we feel are pertinent in the present case. His Honour said : "He is a talented man and it is a pity if those talents cannot be put to some use. He has reached the stage of life were work opportunities outside of his profession are sparse or non-existent. It is not socially useful to confine a human being to a state of virtual unemployability, when he would then have a course only to the social welfare system. It is not good for society, nor for the individual." 84For these reasons the Tribunal will grant approval for Alan Richmond Brawn to be a lay associate in the law practice known as Legal Wisdom of which the applicant Mr Terence McCowan is the principal, subject to the conditions set out below. The conditions upon which Mr Brawn will be permitted to be a lay associate at the law practice 85The Tribunal is of the view that notwithstanding its findings as to the fitness of Mr Brawn to be permitted to participate in the profession as a lay associate it is important, most particularly for the protection of the public and of the profession that his employment be subject to stringent conditions. 86As noted above at paragraphs 65 to 69, it appears that the parties have agreed that the conditions set out in the letter from Mr McCowan's solicitor Mr Dodd dated 13 September 2013 should apply. 87For the most part the Tribunal accepts this. However the Tribunal has slightly re-drafted some of the conditions contained in that letter so as to provide greater clarity or greater certainty as to the limitations to be imposed upon Mr Brawn's authority. Substantive Orders 88It follows that the Tribunal will order as follows: The Tribunal approves Alan Richmond Brawn ("Mr Brawn") as a lay associate of the law practice conducted by the Applicant, Terence McCowan, known as Legal Wisdom ("the law practice"), upon the following conditions: (4)The employment of Alan Richmond Brawn ("Mr Brawn") shall be for a period of only up to two days in any one week period of Monday to Friday inclusive. (5)Terence McCowan ("Mr McCowan") must supervise Mr Brawn and be present at all times during which Mr Brawn attends the law practice. (6)Mr Brawn must not have any access to any key or other mode of access to the law practice. (7)Mr Brawn must not have any access to, or be a signatory to, any bank account conducted by Mr McCowan with any financial institution, either personally or in the course of the conduct of the law practice. (8)Except for the existing clients of Mr McCowan by whom Mr Brawn has previously been employed, Mr Brawn shall not be a signatory to any bank account conducted by any client of the law practice, with any financial institution. (9)No written material which is to any extent prepared, drafted, reviewed or completed by Mr Brawn shall by any means be communicated from or taken from the law practice before it has been approved by Mr McCowan. Each such item must be signed or otherwise appropriately authorised (for example by way of electronic acknowledgement) by Mr McCowan. (10)Mr Brawn must not collect or receive any money from any client of the law practice. (11)Before Mr Brawn attends upon any client of the law practice for the first time (to the intent that an attendance shall include an attendance in person, by telephone or by any form of correspondence), Mr McCowan (a)shall personally inform the client of Mr Brawn's status within the law practice as a lay associate and that Mr Brawn is not a Legal Practitioner or a solicitor; and (b) shall not inform the client that Mr Brawn is a former Legal Practitioner or a former solicitor. (12)Mr Brawn must not provide or tender any legal advice in any form or by any means of communication to any client of the law practice. (13)The only remuneration payable by the law practice to Mr Brawn shall be by way of agreed salary or an hourly rate payment. (14)Prior to Mr Brawn commencing employment as a lay associate, each of Mr McCowan and Mr Brawn shall: (a) confirm in writing to the Manager of the Professional Standards Department of the Law Society of New South Wales that he understands these conditions; and (b) provide the Law Society of New South Wales with a signed undertaking that he will abide by these conditions in all respects insofar as they impose an obligation on either Mr McCowan or Mr Brawn. (15)Within 7 days of the termination of employment of Mr Brawn by the law practice Mr McCowan will notify the Manager of the Professional Standards Department of the Law Society of New South Wales of that termination. (16)The scope of Mr Brawn's duties as a lay associate are limited to carrying out the following tasks, each task to be referred to Mr Brawn individually by Mr McCowan and undertaken as directed by him: (a) maintaining and updating client database; (b) opening client files; (c) drafting legal documentation; (d) drafting correspondence; (e) drafting, perusing and commenting on contracts for sale, leases and other agreements for clients of the law practice; (f) conducting legal research on matters referred by Mr McCowan; and (g) preparation of conveyancing matters for completion, such work to include preparation of settlement adjustment statements, rate enquiries and ordering searches. Costs 89The Tribunal makes no order as to costs. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 05 May 2014