Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Legal Services Commissioner v O'Donnell [2015] NSWCATOD 17 Hearing dates: 22 September 2014 Decision date: 20 March 2015 Jurisdiction: Occupational Division Before: D Patten, Principal member J Wakefield, Senior member M Bolt, General member Decision: Finding that the solicitor is guilty of professional misconduct. Order that the name of the solicitor be removed from the local roll of legal practitioners. Order that the solicitor pay costs of Legal Services Commissioner as agreed or assessed. Catchwords: Professional misconduct – numerous findings of disgraceful and dishonourable conduct Legislation Cited: Legal Profession Act 2004 Powers of Attorney Act 2003 Solicitors' Rules Cases Cited: Allinson v General Council for Medical Education and Registration [1894] 1 QB 750 Re Veron Ex Parte Law Society of NSW (1966) 84 WN (Pt 1) 136 Category: Principal judgment Parties: Legal Services Commission (Applicant) Bernard Kevin O'Donnell (Respondent) Representation: Counsel A Matalani (Applicant) Legal Services Commission (Applicant) B O'Donnell (Respondent) File Number(s): 1420058 reasons for decision 1. The Legal Services Commissioner (LSC) seeks a finding that Bernard Kevin O'Donnell (the Solicitor) be found guilty of professional misconduct and consequential orders. 2. There were 8 grounds of complaint. The first three related to withdrawals from the Solicitors trust account which were categorised by the LSC as improperly charged fees, misappropriations, and/or borrowing of a clients funds contrary to rule 12 of the Solicitors Rules. 3. Ground 4 alleged breach of rule 10 of the Solicitors Rules in relation to the preparation of a Will. Ground 5 alleged that the Solicitor misled or attempted to mislead Lloyd & Lloyd Solicitors and the Guardianship Tribunal of NSW. Ground 6 alleged that the Solicitor made a false declaration to the Law Society of NSW in relation to his trust account. Ground 7 alleged that the Solicitor misled or attempted to mislead a trust account investigator and, Ground 8 alleged that the Solicitor misled or attempted to mislead the office of the LSC. 4. At the hearing before us Mr A Matalani of Counsel appeared for the LSC and the Solicitor appeared in person. We pause to note that hitherto the Solicitor had taken a very limited part in the proceedings. He had filed an unverified Reply but neither an affidavit from himself nor anyone else. The observations made by the Court of Appeal (Herron CJ Sugerman and McLelland JJA) in Re Veron Ex parte Law Society of NSW (1966) 84 WN. (Pt1) 136 are relevant to such a situation (omitting citations): As we have said, no affidavit as to the facts was filed by the respondent or on his behalf despite the fact that we repeatedly drew counsel's attention to the omission. Eventually Mr. Gruzman stated that he had with his junior considered the matter carefully with his client and had decided not to file any affidavit of the respondent. He also stated that his client would not offer to give oral evidence in the witness box. This course, we think, was irregular. The respondent is an officer of the court. The Full Court of the Supreme Court held in November 1965 that on the material presented to it by the Law Society a prima facie case of misconduct was made out and called upon the respondent to show cause why he should not be dealt with. The matter arises within the disciplinary jurisdiction of the Court and if the respondent after consideration declines to give his account on oath of the matters charged he cannot complain if the Court holds against him that the facts as deposed to by Mr. Wilton and other witnesses are substantially true. From the earliest times, and as far back as the recollection of the individual judges of this Court goes, disciplinary proceedings in this jurisdiction in this State have always been conducted upon affidavit evidence and not otherwise. They are not conducted as if the Law Society (the successor to the Law Institute) was a prosecutor in a criminal cause or as if we were engaged upon a trial of civil issues at nisi prius. The jurisdiction is a special one and it is not open to the respondent when called upon to show cause, as an officer of the Court, to lie by and engage in a battle of tactics, as was the case here, and to endeavour to meet the charges by mere argument. We are well aware that if a solicitor is called upon to show cause he may do so in several ways. He may (a) argue that the material before the court discloses no evidence of misconduct; (b) argue that the facts adduced in evidence do not warrant a finding of misconduct; (c) meet the situation by a denial or explanation, in either case upon oath, of the truth or of the significance of the facts deposed to. It is the last alternative in the main with which the respondent was faced here. Yet, as we have said, no denial or explanation was forthcoming, the respondent having sought what refuge was available in argument from the Bar table. His counsel elected to cross-examine only nine of the twenty-five deponents. In civil litigation the election of the defendant to call no evidence may have special significance, depending on the circumstances. That it may have significance is well established : May v. O'Sullivan (I). The silence of a party cannot fill the place of actual evidence on an issue but it may serve to resolve a doubt or ambiguity, especially where the facts as here are peculiarly within the knowledge of the silent party: Tozer Kemsley & Millboum (A/Asia) Pty. Ltd. v. Collier's Interstate Transport Service Ltd. (2). 1. Mr Matalani read the affidavit of Mr Malcolm McFadden sworn 13 December 2013, Mr JH Milne, Acting Legal Services Commissioner, 20 December 2013, Mr Chandrasekaran Sivakumar 5 December 2013 and Mr A J Fairbairn 3 March 2014. The Solicitor did not seek to cross examine any of the deponents. 2. The material put before us, which broadly relates to the Solicitor's relationship with a Mr John M, amounts to many hundreds of pages. In summarising that material for the purposes of these reasons we gratefully acknowledge the assistance we have received from the summaries and chronology provided by counsel for the LSC. Shortly stated the relevant underlying facts up to Mr M's admission to hospital on 24 February 2011 are: 1. Mr M was born on 4 July 1932. As at 2001 he owned and was living in units 28 and 29/ 11-17 Selwyn Street Wollstonecraft. 2. Early in 2001 the Solicitor purchased unit 6 at 11-17 Selwyn St Wollstonecraft and in 2002 became a member of the executive of the Owners Corporation. Mr M became the Chairman of that executive in 2004. The Solicitor and Mr M became casual acquaintances in about 2002 and colleagues on the executive about 2004. 3. Up to October 2005 Mr M had for many years been a client of Mr Mc Fadden a Solicitor. In January 2000 Mr Mc Fadden prepared a will for Mr M which nominated his former wife Eileen C as executrix and sole beneficiary. 4. Mr McFadden retired from legal practice in October 2005 and notified his clients, including Mr M, of that fact. As requested Mr M took delivery of his will dated 18 January 2000 and the documents of title to his 2 Units on 27 October 2005 from Mr McFadden. 5. In late 2005 Mr M sought and obtained advice from the Solicitor in relation to an offer of redundancy made by his employer Channel Nine. 6. From, and after, February 2008 Mr M consulted medical practitioners about his cognitive state. Dr Alexandra Draney on March 9, 2009 diagnosed 'mild cognitive impairment'. That diagnosis was confirmed later in 2009 by Dr Kevin Chang. 7. On 12 June 2010 Mr M executed a will whereby he appointed, "my friend and Solicitor Bernard Kevin O' Donnell to be 'the executrix (sic) and trustee of this my will" and gave his entire estate (subject to payment of debts testamentary and funeral expenses) to "my friend and Solicitor Bernard Kevin O'Donnell". The witnesses to the will were Camron Robin Camlon and David Henry both of 3/8a Carlotta Rd, Double Bay. 8. About August 2010 apparently as a consequence of receiving a letter from Dr Draney, Mr M's driving licence was cancelled by the RTA. He told the solicitor of this and the solicitor offered to assist him in selling his car. The car was sold about October 2010 and the solicitor charged $800 for his part in the transaction. 9. On 2 February 2011 Mr M collapsed and was admitted to Royal North Shore hospital. 1. Between 14 February 2011 and 3 March 2011 the solicitor raised accounts to Mr M for legal and other work allegedly performed. The account dated 3 March 2011; invoice 1415 reads: Tax Invoice Memo Date 1415 Invoice: JM 3.3.2011 Matter Person Responsible Matter No 02046 JM Bernard O'Donnell Wills Single Person/Power of Attorney Professional fees payable in 14 days/ Conveyancing Fees payable on settlement Date Details Amount (Ex. GST) GST 14.2.2011 Meeting with Client at Royal North Shore Hospital about care arrangements $540.00 $54.00 Units Spent 15 14.2.2011 Drafting documents Power of Attorney and Enduring Guardian $720.00 $72.00 Units Spent 20 2.3.2011 Meeting with Client at Longueville Private Hospital for discussion and Power of Attorney and Enduring Guardian $540.00 $54.00 Units Spent 15 2.3.2011 Attending to making hard file $12.00 $1.20 Units Spent 1 2.3.2011 Prepare Deeds Index Particulars $12.00 $1.20 Units Spent 1 2.3.2011 Attend LPMA to lodge Power of Attorney for registration $90.00 $9.00 Units Spent 15 3.3.2011 Telephone discussions with David and Graham of LPMA in relation to the address on the Power of Attorney $36.00 $3.60 Units Spent 3 3.3.2011 Attending ACAT assessment with JM and Shirley Court at Longueville Provate Hospital $540.00 $54.00 Units Spent 15 3.3.2011 Attending Selwyn Street Wollonstone with locksmith to arrange of change of keys to unit $720.00 $72.00 Units Spent 20 Total Units 105 Total $3,210.00 $321.00 Tax Invoice 1415 3.3.2011 Page 1 Disbursements payable immediately 2.3.2011 Land and Property Management Authority registration fee for Power of Attorney $93.00 $0.00 Amount + GST Payments Received = Balance Due $3,303 $321.00 $0.00 $3,264.00 1. The Power of Attorney referred to in the account was made on 2 March 2011 in favour of the solicitor and expressly provided that it would continue notwithstanding the donor's lack of mental capacity. Mr M's signature was witnessed by the solicitor's daughter, Ms Lisa O'Donnell, a solicitor who provided a certificate under s19 of the Powers of Attorney Act 2003. 2. We note that, according to the account reproduced above, the solicitor charged Mr M $594 for attending the ACAT assessment with him and $720 for attending Mr M's home with a locksmith. Neither related to the performance of professional legal services. 3. During March 2011 the solicitor carried out, or was privy to, a number of financial transactions which are impeached by the LSC in these proceedings. Some of them were purportedly pursuant to the power of attorney referred to. 4. On 9 March 2011, by cheque drawn on Mr M's bank account signed by the solicitor, $10,000 was paid to the credit of Mr M in the solicitor's trust account. On 10 March 2011 the solicitor transferred $1,000 online from Mr M's cheque account to the solicitor's personal bank account. Also on 10 March 2011 the solicitor withdrew $5993.45 on line from Mr M's account and paid it to the credit of his Mastercard account. 5. On 14 March 2011 the solicitor transferred online $9475.90 from the sum standing to Mr M's credit in his trust account to his office account in payment of his invoices – 1415, 1416, and 1419 – the earliest of those invoices being reproduced above. 6. On various dates between 14 March 2011 and 27 March 2011 the solicitor transferred funds available to Mr M totalling approx. $18,500 into either the solicitor's personal bank account or his credit card account. 7. On or about 28 March 2011 the respondent received a letter of that date from Lloyd and Lloyd Solicitors: John M - Power of Attorney We act on behalf of Mrs Eileen C who is the ex-wife of Mr John M. Our instructions from our client are as follows: Our client understands that she is the sole beneficiary of the current Will of Mr. John M. Our client has been informed on a number of prior occasions over a number of years by Mr. M that he made his Will leaving all of his Estate to her and that upon his death she would be in charge of all of his affairs. Mr. M has confirmed our client's status under the Will over past years to a number of independent witnesses. Mr. M has been suffering from dementia since at least 2009 and this fact has been known to many unit owners in the complex where both Mr. M you reside. Both you and Mr. M have sat on the committee of the body corporate of the unit complex during periods when issues of Mr. M's dementia have been discussed. Most recently Mr. M has been hospitalised at Royal Shore Hospital and Longueville Private Hospital and is now a resident in a hospital for the elderly at Mosman. This hospitalisation followed an apparent stroke suffered by Mr. M at his home on 2 February, 2011 Our client is in possession of evidence that after Mr M's most recent admission to hospital on 2 February his original Will was located in his home at Unit 29/11-17 Selwyn Street, Wollstonecraft. Our client is aware that on 4 March 2011 you made arrangements for the door locks to be changed on Mr. M's two units numbers 28 and 29 /11-17 Selwyn Street, Wollstonecraft and that at about that time you took possession of Mr M's papers and other items, including the original Will and the original Title Deeds to the two units. Our client has become aware that your firm is purporting to act as the lawyers for Mr. M and that you personally are taking actions on his behalf pursuant to a Power of Attorney, made on 2 March, 2011 and registered as Book 4607 Number 539 ("The Power of Attorney") We make the following comments and observations pursuant to our instructions: We hold a copy of the Power of Attorney in which Mr. M's signature as Donor in your favour (as Donee) has been witnessed by Lisa O'Donnell. Our client understands that Lisa O'Donnell is your daughter and is employed as a lawyer in your firm. Ms O'Donnell completed a certificate under Sec 19 of the Powers of Attorneys Act, 2003 by which she gave advice to Mr. M about the meaning of the Power of Attorney he was about to sign at that time. Our client is gravely concerned by the fact that as of the 2nd March you and your daughter could possibly have been satisfied that Mr. M had the mental capacity to have understood the nature and effect of the Power of Attorney. All the medical and lay evidence available to our client indicates that as of 2 March 2011, Mr. M was demented and very unwell, both mentally and physically. He had been admitted to Longueville Private Hospital on 21 February 2011 by transfer from Royal North Shore Hospital. It was at the Longueville Private Hospital that you had the Power of Attorney executed. Our client has clear independent witness evidence that on that day Mr. M was quite incapable of understanding what it would mean to authorise you to look after his affairs and the sort of things you as an Attorney could do without further reference to him: Randaud v Cabban (1988) ConvR ¶55-385 at p57, 548. The subject Power of Attorney is expressed to be enduring and our client does not accept that it is in any way possible at the time of execution that Mr. M understood the Power of Attorney document itself, so as to make a grant to you. Similarly our client does not accept that you or your daughter gave him the necessary advice or that he was capable of making a value judgement or that he could understand any advice of that type. Moreover our client has been told that in mid February this year a representative of Royal North Shore Hospital was so concerned by Mr. M's poor health and lack of capacity that, on 11 February, 2011 i.e. (some three weeks before you arranged for the Power of Attorney to be executed) that she applied to the Guardianship Tribunal for Orders to protect the affairs of Mr. M. Our client has subsequently ascertained that you instigated steps to have the Guardianship Tribunal Proceedings postponed or cancelled. On the basis of these circumstances, our client considers that the Power of Attorney is Invalid and liable to be set aside, either by the Guardianship Tribunal or by the Supreme Court of New South Wales. Further, the circumstances regarding the execution of the Power of Attorney indicate that your use of the Power of Attorney exposes you to civil liability for repayment of monies paid to you pursuant to it and for losses incurred by Mr. M as a consequence. This state of affairs may have implications for you and your daughter's standing as Legal Practitioners. In addition to the above our client has evidence that you are purporting to make health and lifestyle decisions for Mr. M concerning his accommodation, hospital care and other matters. Our client understands that you have arranged accommodation for Mr. M at Montana Nursing Home at Mosman and that you are paying for this from Mr. M's bank account. Obviously if the Power of Attorney is invalid then such actions are not authorised actions. Our client is further concerned that you have nominated and had recorded in the records at Montana Nursing Home that your daughter Lisa O'Donnell is Mr. M's next of kin. Our client understands that (claiming entitlement to do so pursuant to the Power of Attorney) you have recently made significant payments to yourself and your law firm and have taken steps in relation to Mr. M's two strata units in Selwyn Street, Wollstonecraft, including having the locks changed and removing papers, documents and other items from the units. We are therefore instructed to demand that by no later than 5pm tomorrow, Wednesday, 30 March 2011, you: 1. Provide us with a copy of the original Will of Mr. M which was situated within his unit, number 29 at the time you changed the locks on 4 March 2011. 2. Undertake in writing to us that you will forthwith cease to withdraw any monies whatsoever from any bank or other financial institution account owned by Mr. M 3. Undertake to immediately deliver to our office, the original Will and the Certificates of Title for Units 28 and 29, Strata Plan 2848. 4. Undertake to us that you will immediately cease taking any further action of any type whatsoever pursuant to the Power of Attorney. 5. Repay all monies paid to you, your firm or any associated person or entity by any means paid by you pursuant to the Power of Attorney from any account of Mr M, including but not limited to the following: Cheque account BSB 032 092 number XXXXXX Cheque account BSB 032 092 number XXXXXX Cheque account BSB 032 092 number XXXXXX Term Deposit Number 5193 2300 XXXXXXXXX Any credit card, cash card in any way associated with the above accounts 6. Cancel all financial arrangements made pursuant to the purported Power of Attorney. 7. Provide an inventory of all documents and all other items that you and your family members have removed from either of Mr. M's home units, 28 and 29 at 11-17 Selwyn Street, Wollstonecraft. 8. Advise forthwith in writing to the Montana Nursing that your daughter Lisa O'Donnel is not the next of kin of Mr. M and that the correct next of kin nominated by Mr M is our client, Eileen C. If you fail to take the above actions within the time specified our client will, if she is so advised, take action to notify the Guardianship Tribunal off these matters and to seek the necessary orders and in addition to commence proceedings in the Supreme Court of New South Wales for urgent orders against you (including costs) and to take such other steps she considers necessary including notification to The Law Society of the matters referred to in this letter. Any such action undertaken by our client may be done without any further notice should each of the above items 1-8 inclusive not be forthcoming within the time limited herein. Yours faithfully LLOYD & LLOYD SOLICITORS 1. The solicitor replied on 29 March 2011 : John M - Power of Attorney and Guardian We are in receipt of your letter received this afternoon by facsimile. I provide the following responses to your letter: I am unaware and have never seen any such Will of Mr M to which your client claims she is the sole beneficiary, to which you refer; I am well aware that John M was hospitalised at Royal North Shore Hospital following a fall and a possible minor stroke outside his apartment in the passageway. I visited Mr M on a number of occasions after I became aware of his accident and hospitalisation. I became aware he was in Royal North Shore Hospital because John made numerous requests for me to visit and assist him; Your client is well aware that a resident, Michaela Pecha who found John M after his fall took possession of the keys and entered Mr M's apartment removing many items including documents and money. Mrs Pecha retained possession of the keys to Mr M's apartment. Mrs Pecha spoke to me and a number of other residents of Clydon advising that she had discussed Johns circumstances with your client; and I attended Longueville Private Hospital a number of times and repeatedly John requested that I provide assistance to him in managing his affairs and to make decisions about any medical treatment for him. The Nursing Unit Manager, Chris Neilman ("NUM") expressed concern to me that Mr M could not return home and he could not continue to live at Longueville Private Hospital. The NUM suggested that he should move to a Nursing Home and to do this an ACAT Assessment would need to be done but since John had informed her that he had no next of kin that there was nobody to agree to the ACAT Assessment. After this, I asked my daughter Lisa O'Donnell who is also a Solicitor to visit Mr M and discuss with him his request to appoint me as Enduring Attorney and Guardian. I understand that Lisa O'Donnell visited Mr M on several occasions at Longueville Private Hospital and spoke with Mr M and his treating medical practitioners. After Lisa O'Donnell had received the instructions from Mr M and prepared the documents, I attended with Lisa to visit Mr M to further consider his request that I accept an appointment as Enduring Attorney and Guardian. I spoke to John together with Lisa O'Donnell and the resident Geriatrician, Doctor Youssef and the NUM, Chris Neilman. The four people present conducted an interview with John to explore whether he had capacity to make the appointments he proposed. It was only when Doctor Youssef and the NUM indicated they were of the same view as Lisa and I -that John did have capacity to appoint - that I agreed to accept the appointment and Lisa O'Donnell agreed to sign the certificate. Following the execution of the appointment of myself as enduring attorney and guardian I consented to arrangements being made by the hospital for an ACAT assessment of Mr M. The staff of the hospital were most concerned that suitable arrangements be made for Mr M. The outcome of the ACAT assessment was that Mr M is assessed to be in need of high level nursing home care. With the assistance of the nursing staff of Longueville I undertook interviewing potential nursing homes and the most suitable location was Montana Nursing Home at Mosman. Fortunately there was an immediately available room and I was able to make the arrangements for John to take up the room. The above arrangements were all undertaken with John's best interests in mind and responded to John's requests for my assistance having careful regard to his views. We note your views expressing doubts about John's capacity to make the appointment of myself as Enduring Attorney and Guardian. I intend to immediately prepare an application to the Guardianship Tribunal for a determination as to the most appropriate person to take necessary decisions in respect of John's financial affairs and proper medical treatment. As a friend to John M of over ten years I consider that I am the most suitable person to provide assistance to John and I am the person John requested provide that assistance to him. You are incorrect when you say that I instigated or took any steps to have any Guardianship Tribunal proceedings postponed or cancelled. This is incorrect and I expect that you have been misinformed. You are also incorrect where you say that I have nominated or recorded Lisa O'Donnell as Mr M's next of kin. Again you are incorrect and I expect misinformed. You are correct that I have made arrangements to have the locks changed for Mr M's apartment. This was done when Mrs Pecha claimed that she had placed the keys to the apartment into an envelope she provided to staff at Royal North Shore Hospital. There were no keys contained in the envelope left at the hospital and subsequently Mrs Pecha (apparently using the keys she claimed not to have) entered John M's apartment and removed further items and documents. I am only aware that documents were removed because Mrs Pecha told me this and this was also confirmed by a social worker at Royal North Shore Hospital. Mrs Pecha insisted she did not have the keys to the apartment and denied knowing where the keys were located. My concern for the security of John belongings prompted me to arrange for the locks to be changed to his apartment. In respect of your demands I respond as follows: 1. I am unaware of and have never seen any Will of Mr M to which you refer; 2. I believe I have only acted as John M requested and then consistently with the responsibilities as Attorney and Guardian in his best interest; 3. In relation to this item I repeat item 1 above and advise that the Certificates of Title to the apartments are retained securely by me and I do undertake to produce same at any time as required by law; 4. In respect of the validity of the Power of Attorney, this is a matter that should be properly be determined by the Guardianship Tribunal. I do undertake that only necessary actions which are demonstrably in Mr M's best interests will be taken until such time as these matters can be determined by the Guardianship Tribunal. For example I consider that John M at this time remaining at Montana Nursing Home is in his best interest; 5. In respect of your demand for repayment of funds from any account of John M, this is not reasonable. This is a matter that should await the determination of the Guardianship Tribunal; 6. This demand is not reasonable and would be against John M's best interests. As indicated at item 4 above this is a matter that should await determination by the Guardianship Tribunal; 7. I intend to detail the arrangements of which I am aware in respect of John M's property to the Guardianship Tribunal; and 8. As indicated, at no time have Montana Nursing Home been advised in respect of any next of kin for John M. We will ensure the Deputy Director of Nursing is aware of this. We do not agree or know that your client is Mr M's next of kin and do not intend to provide such advice to Montana Nursing Home. Yours faithfully 1. On 22 March 2011 the solicitor by cheque 200251 drawn upon Mr M's account, transferred $10,000 into the solicitor's credit card account. An equivalent sum a few days later was paid by the solicitor using his credit card into his trust account under Mr M's name. 2. On 3 May 2011 the solicitor transferred from Mr M's credit in his trust account the sum of $10,524.10 being the whole of the balance remaining. 3. On 5 May 2011 and 12 June 2011 the solicitor transferred sums totalling $20,539.71 from Mr M's account to his personal account. 4. In the meantime on 4 March 2011 proceedings had been commenced in the Guardianship Tribunal by Ms Megan Bell, a social worker at Royal North Shore Hospital and on 27 June 2011 the Tribunal appointed the Public Trustee and Guardian as Mr M's guardian for a period of 12 months to make decisions on his behalf about his medical and dental treatment, health care, and the services he should receive. The Tribunal appointed the NSW Trustee as Mr M's financial manager. 5. The above orders of the Guardianship Tribunal in effect suspended the enduring power of attorney given in the solicitor's favour. 6. It is appropriate to record the last section of the Tribunal's reasons: The Tribunal's decision The Tribunal heard and considered Mr M's view that he wants Mr O'Donnell to manage his financial affairs. However on the balance of evidence the Tribunal is satisfied that the NSW Trustee should be appointed as Mr M's financial manager as her requires an independent financial manager. The Tribunal is satisfied that the NSW Trustee has the expertise to manage Mr M's estate and will charge management fees, which are less than those charged by Mr O'Donnell. This would preserve Mr M's estate and ensure that his estate can be used for this best interests to meet his needs. The Tribunal notes that Mr O'Donnell has charged considerable fees since he was appointed as Mr M's attorney. This was of concern to Mr Muskens, Mr M's bank manager. Mr O'Donnell also charged Mr M fees in relation to the application before the Tribunal. While Mr O'Donnell said that Mr M could afford the fees he charged, the Tribunal did not consider that it was in Mr M's best interests for him to be charged fees to this extent and for services that he provided Mr M, such as social support. Mr O'Donnell said Mr M is his friend and he wants to act in his best interests and protect his health and well-being. The appointment of the NSW Trustee wuld allow Mr O'Donnell to provide Mr M with support and friendship without the continuing conflict that surrounds the management of Mr M's affairs at the present time. This is in Mr M's best interests. 1. On 16 September 2011 complaint about the solicitor's conduct was made to the LSC by Ms C and an investigation commenced. 2. On 9 November 2011 the LSC wrote to the solicitor notifying him of this investigation and calling upon him for response to a number of allegations. The letter, after listing some 42 documents held by the LSC continued.: The allegations The following allegations have been identified from the complaint lodged by Paul Kennedy on behalf of Eileen C: Misappropriation 1. You misappropriated part or all of $50,000 from Mr. M's bank accounts during the period 1 February 2011 to 30 June 2011. Intermingling of funds 2. You received controlled money during the period 1 February 2011 to 30 June 2011 from or on behalf of Mr. M and in contravention of the Legal Profession Act 2004: 2.1 did not deposit some or all of those funds into a controlled money account; and/or 2.2 deposited some or all of those funds into a personal bank account operated by you; and/or 2.3 intermixed controlled money and/ or other trust money withpersonal funds held by you in a personal bank account operated byyou. Conflict of interest - power of attorney and enduring guardian 3. 3. You advised and/or encouraged John M to execute a General Power of Attorney on 2 March 2011 appointing you as his attorney and an appointment of enduring Guardian dated 2 March 2011 in circumstances where: 3.1 Mr. M did not have the capacity to understand the effect of granting a general power of attorney and the effect of appointing a guardian and the powers granted to you, and you knew or ought to have known of this lack of capacity. 3.2 You instructed your employed solicitor, Lisa O'Donnell, to: a) provide advice to Mr. M on 2 March 2011 in relation to the power of attorney and appointment of enduring guardian; b) witness the signature of Mr. M on both documents; and c) sign the certificate of advice under section 19 of the Powers of Attorney Act 2003 and the certificate of witness under the appointment of enduring guardian; and 3.3 You preferred your interests to the interests of Mr. M. 4. You charged John M fees or remuneration for acting as his attorney and/or guardian in circumstances where: 4.1 You were not entitled to charge fees or remuneration under the General Power of Attorney; and/or 4.2 You were not entitled to charge fees or remuneration under them appointment of enduring guardian; and/or 4.3 You preferred your interests to the interests of Mr. M. Conflict of interest - preparation of Will 5. You prepared, and/or advised on the preparation of, and/ or encouraged the preparation and execution of a will by John M on 12 June 2010 appointing you his executor and trustee and gifting the entirety of his estate to you in circumstances where: 5.1 Mr. M lacked the capacity to make and understand the will, and you knew or ought to have known that; and 5.2 You failed to advise Mr. M to take steps to obtain independent advice on the making of the will and failed to take reasonable steps to ensure that Mr. M sought independent advice; and 5.3 You preferred your interests to the interests of Mr M. 5.4 You breached Rule 10 of the Solicitors Rules (which concerns avoiding a conflict between a client's and a practitioner's own interest). Misleading communications 6. You made misleading communications in correspondence to Lloyd & Lloyd solicitors that: 6.1 You were unaware that Mr. M was suffering from Alzheimer's disease. 6.2 You did not know who prepared the will of Mr. M executed on 12 June 2010 and were unaware of its location. 6.3 You had never been instructed to arrange for the preparation of any will of Mr. M. 6.4 You had not advised Montana Nursing Home that your daughter Lisa O'Donnell was the next of kin for Mr. M and the person nominated by you to be contacted in connection with Mr. M whilst he was under their care. Documents and information requested from you Please provide me with the following information and documents by 5 December 2011: Allegation 1: Misappropriation 1. Have you, or any solicitor at your firm, carried out any legal work for Mr M during the period 1 January 2010 to 30 June 2011? 2. If the answer is "yes": 2.1 Please identify the work that you performed on behalf of Mr M; 2.2 When was this work performed?; 2.3 Please provide me with any written costs agreement entered into, or costs disclosure made, in relation to this work. 3. Further to questions 1 and 2, please provide me with any tax invoices or accounts issued by your firm to M during the period 1 January 2010 to 30 June 2011. 4. Have you transferred any funds belonging to John M to: 4.1 your firm's trust account; 4.2 your firm's controlled monies account; 4.3 your firm's office account. 5. If the answer is "yes": 5.1 Please identify the date, and amount, of each transfer; and 5.2. Please specify the basis upon which the transfer was made. 6. Please provide me with copies of any trust records within the meaning of section 243 of the Legal Profession Act 2004 which relate to, or evidence, any transfer or deposit to which questions 4 and 5 refer. 7. Further to questions 4 and 5, did you transfer any of Mr M's funds from your firm's trust account, controlled monies account and/or office account to any: 7.1 personal bank account operated by you; 7.2 credit card account or other financial institution account operated by you; 7.3 personal bank account, credit card account or other financial institution account operated by a member of your family or by an entity in which you are a shareholder, officer or beneficiary. 8. If the answer is "yes": 8.1 Please identify the date, and amount, of each transfer; and 8.2 Please specify the basis upon which the transfer was made. 9. Did you transfer any funds belonging to Mr M direct to: 9.1 any personal bank account, credit card account or other financial institution account operated by you; 9.2 any personal bank account, credit card account or other financial institution account operated by a member of your family or by an entity in which you are a shareholder or beneficiary. 10. If the answer to question 9 is "yes": 10.1 Please identify the date, and amount, of each transfer; and 10.2 Please specify the basis upon which the transfer was made. 11. Please provide details by reference to financial institution, type of account and account number for each: bank account; credit card account; and other financial institution account operated by you during the period 1 January 2010 to 30 June 2011. Allegations 3 and 4 - conflict of interest 12. Did you advise Mr M, and/or discuss with Mr M: 12.1 the execution of a power of attorney; and/or 12.2 the execution of a deed of enduring guardian during the period 1 January 2010 to 30 June 3011. 13. If the answer is "yes", and the communication and/or advice was provided wholly or partly in writing, please provide me with a copy of the written communication. 14. Further to question 12, if the answer is "yes" and the advice and/or communication was oral: 14.1 What was the date of the advice and/or communication to the best of your recollection? 14.2 Who else was present? 14.3 What did you say to Mr M? 14.4 What did Mr M say in reply? 14.5 Please provide me with copies of any notes you made of the conversations. 15. I refer to your letter dated 29 March 2011 to Lloyd & Lloyd solicitors. In this letter you say: "/ asked my daughter Lisa O'Donnell who is also a solicitor to visit Mr M and discuss with him his request to appoint me as enduring attorney and guardian" 16. In your letter dated 29 March 2011 to Lloyd & Lloyd Solicitors, you also say: "/ attended with Lisa to visit Mr M to further consider his request that I accept an appointment as enduring attorney and guardian. I spoke to John together with Lisa O'Donnell and the resident geriatrician, Dr Youssef and NUM Chris Neilman. The four people present conducted an interview with John to explore whether he had the capacity to make the appointments he proposed" Did you make any notes of this "interview" and your conversation with Mr M? If the answer is "yes", please provide me with a copy of your notes. 17. Further to question 16, and to the best of your recollection: 17.1 What did you say to Mr M? 17.2 What was Mr M's response? 17.3 What questions did Dr Youssef and Mr Neilman put to Mr M? 17.4 What was Mr M's response? 18. Were you present when Mr M executed the power of attorney and/or the deed of enduring guardian? 19. Did you Instruct, advise or suggest to Lisa O'Donnell to: 19.1 witness Mr M's signature on the power of attorney; 19.2 witness Mr M's signature on the deed of guardian; 19.3 complete the certificate of advice in relation to the power of attorney; and 19.4 certificate of witness in relation to the deed of guardian. 20. Have you, or your firm, charged or sought remuneration or reimbursement from Mr M for: 20.1 acting as his attorney; 20.2 acting as his guardian; and/or 20.3 carrying out work on Mr M's behalf and or in his interests during the period 1 January 2011 to 30 June 2011. 21. If the answer to question 20 is "yes": 21.1 Please specify the charge, remuneration or reimbursementsought from Mr M, and when it was sought or issued; and 21.2 The basis for the charge, remuneration or reimbursement. Allegation 5 22.1 enclose a copy of a will of Mr M dated 18 January 2000. Have you seen this document before? 23. enclose a copy of a will of Mr M dated 12 June 2010. 23.1 Did you prepare this will? 23.2 Provide any advice to Mr M in relation to this will? 23.3. Discuss the proposed terms of the will with Mr M? 24. 24. If the answer to question 23 is "yes": 24.1 Please provide me with a copy of any written communications with Mr M about the will. 24.2 Please provide me with any drafts of the will. 24.3 If you advised Mr M, or discussed the will with Mr M: a) When did you discuss the will with Mr M? b) What did you say to Mr M? c) What did Mr M say in reply? d) Was anyone else present? e) Please provide me with any notes you made of the conversations. 25. Do you know Camron Carlon (witness to the will)? 26. Do you know David Henry (witness to the will)? 27. Does Mr M know either Mr Henry or Camron Carlon? Allegation 6 28. When did you first become aware that Mr M was suffering dementia? 29. Did you ever advise Montana Nursing Home that Lisa O'Donnell was next to kin of Mr M? Please also provide me with any general comments you wish to make in response to the complaint by 5 December 2011. 1. The solicitor replied to the LSC on 27 January 2012: I am responding to your letter dated 9 November 2011, 21 November 2011 and 5 December 2011 using the headings used in your letter. Documents and information requested Allegation 1: Misappropriation 1. Carried out legal work for John M between 1 January 2010 and 30 June 2011-Yes. 2. If yes; 2.1 Legal Work carried out was not performed by me. 2.2 Lisa O'Donnell, a solicitor employed by me took instructions from John M and prepared a Power of Attorney and an Enduring Guardian for John M. Lisa O'Donnell also interviewed John M to ascertain his capacity to make an appointment of a Power of Attorney and Enduring Guardian. 2.3 There were no written costs agreement or costs disclosures in relation to this work. 3. The work referred to in 2 above was not invoiced by this firm. Some tax invoices were generated as record keeping but, other than in respect of my personal assistance to John M to sell his vehicle in around October 2010 to December 2010, tax invoices were not issued to John M and he did not make payment of fees for any legal work carried out by this firm. 4. Transfer of funds belonging to John M: 4.1 To Trust Account - Yes I deposited two amounts, both being cheques signed by John M for amounts of $10,000 into the Trust Account. I transferred these two amounts into the Trust Account as I thought this was appropriate so the amounts were transparently recorded; 4.2 Transfer of funds to controlled monies account - No; 4.3 Transfer of funds to office account - Yes. The amounts of each transaction have been identified to the Law Society Trust Account Investigator Chandra Sivakumar who was requested to investigate these transactions on behalf of the Legal Services Commissioner, and copies of each document evidencing the dates, amount and details of the transactions have been provided to the Investigator. At this time I am still waiting to receive a copy of the Investigators Report to you which Mr Sivakumar indicated he would be providing me. Should you seek that I separately extract the same documents and information could you advise me. In respect of the Trust Records I have provided all trust records within the meaning of section 243 of the Legal Profession Act 2004 to the Trust Account Investigator, Chandra Sivakumar and I expect he has provided these documents and records to you. If you seek that I extract and copy each of these records again could you please advise me. 7 Transfer of John M's funds from Trust Account. 7.1 Yes funds being the two $10,000 cheques John gave me were transferred to my personal bank account; 7.2 No funds were transferred to credit accounts operated by me; and 7.3 No funds were transferred to any other entity of which I am a shareholder, officer or beneficiary. 8. A copy of each transfer showing the date, and amount of each transfer has been provided to the Trust Account Investigator Chandra Sivakumar and I expect he has provided copies of each of these documents to you. If you seek that I extract and copy each of these records again could you please advise me. 9. Transfer of funds belonging to John M directly to accounts operated by me. Yes funds were transferred from John M's accounts directly to: My personal bank accounts and my credit card accounts; I do not believe I transferred any funds directly from an account of John M other than as set out in 9.1 above. 10 The answer to question 9 is yes: 10.1 A copy of each transaction identifying the date, and amount of each transfer has been provided to Chandra Sivakumar and I expect he has provided copies of each of these documents to you. If you seek that I extract and copy each of these records again could you please advise me. 10.2 The basis upon which I made such transfers was to reimburse me for the time and expenses I incurred personally assisting my friend John M as he requested. 11 Set out below are full details of the financial institution, type of account and account number operated by me during the period 1 January 2010 to 30 June 2011: 11. 1 Bank Accounts: Housing Loan with Redraw, Westpac BSB 037128 Account XXXXXX; K P O'Donnell Cheque Westpac BSB 032016 Account XXXXXX; Cheque Trust Account - Solicitors Westpac BSB 032016 Account XXXXXX; Classic Plus Account Savings Westpac BSB 732090 Account XXXXXX; HSBC Savings Account BSB 342083 Account XXXXXX; Blue Olive Cheque Account Westpac BSB 032727 Account XXXXXX; Rocket Investment Loan Westpac BSB 037145 Account XXXXXX. 11.2 Credit Card Accounts: Blue Olive Westpac Visa account XXXXXX; Westpac Visa Card XXXXXX; Citibank Credit Card BSB 242200 Account XXXXXXX American Express Credit Card Account XXXXXX and HSBC Credit Card Account XXXXXX. 11.3 Other Financial Institution: Nil. Allegations 3 and 4 - conflict of interest 12 Advise about execution of a Power of Attorney and Enduring Guardian from 1 January 2010 and 30 June 2011: 12.1 I had some discussions with John M about him putting in place a Power of Attorney. In this respect see paragraphs 18, 19, 31, 37, 41, 42, 43, 44, 45, 46, 47 and 55 of the General Comments attached; 12.2 I had some discussions with John M about him putting in place an Enduring Guardian, see the same paragraphs referred to in 12.1 above. 13. The discussions with John M about the matters set out in 12 above were verbal. There was no writing. 14. The answer is no. There were no notes made of these discussions. 15. In respect of the reference to the letter of 29 March 2011 to Lloyd & Lloyd please refer to the same paragraphs referred to at 12.1. 16. In respect of this reference to my letter of 29 March 2011 to Lloyd & Lloyd please refer to the same paragraphs referred to at 12.1. I did not make any notes and further I do not know what was being said as I was sitting about 10-20 metres away near the door and did not participate in the discussion between John M, Lisa O'Donnell, Doctor Youssef and Chris Neilman. Further, I intentionally did not pay any attention to the discussion. 17. In respect of my conversations with John M in respect of the matters raised in question 16 above please again refer to the paragraphs referred to in 12.1. 18. I was present sitting near the door to the Hospital Ward and not participating in the discussion with John. When the documents were executed by John and Lisa O'Donnell I then executed the acceptance of the appointments. 19. I requested Lisa O'Donnell go and see John and form her own view about whether John had capacity to appoint me as he was requesting. I did not instruct, advise or suggest Lisa O'Donnell witness John's signature on the POA or Enduring Guardian. I did not instruct, advise or suggest Lisa O'Donnell complete the certificate in relation to the POA or the Enduring Guardian. 20. I have personally charged and been reimbursed by John M for assisting him as his POA and Enduring Guardian during the period 1 January 2011 and 30 June 2011. I was generally guided by the Private Management Fact Sheet 4 issued by the NSW Trustee and Guardian as to what would be reasonable to charge John having regard to his needs and the size of his estate. 21. The details of all amounts for which I have charged John and been reimbursed for assisting John have been provided to Chandra Sivakumar and I expect he has provided copies of each of these documents to you. If you seek that I extract and copy each of these records again could you please advise me. Allegation 5 22. In relation to the Will of John M dated 18 January 2000 which you provided me, I had not seen this document prior to you providing it to me. 23. In relation to the copy of the Will of John M dated 12 June 2010,1 respond as follows: 23.1 No; 23.2 I responded to questions John put to me about his wishing to make a new Will. See paragraphs 18, 19, 20, 21, 22 and 23 of the General Comments attached; 23.3 I responded to John as set out in the paragraphs referred to in 23.2 above. 24. There was no written communication with John about his Will and I have never seen or am I aware of any drafts of John's Will. The only discussions I recall are set out in the paragraphs referred to in 23.2 above. 25. I have known Camron Carlon for about 7 years. 26. I have known David Henry for about 7 years. 27. John M did not know Camron and David prior to them meeting him and witnessing John's Will. It is my understanding that Camron and David met John as set out in paragraphs 22, 23 and 24 of the General Comments attached. Allegation 6 28. I first became aware that John had some cognitive impairment around August 2010. See paragraph 25 of the General Comments attached 29. No. This allegation does not make any sense. The matter was raised in the letter from Lloyd & Lloyd in their letter of 29 March 2011 and was answered by me in by reply letter of 29 March 2011. See paragraph 59 of the General Comments attached. Please also find attached General Comments and comments in respect of the statements provided from the complainant and other persons together with attachments referred to in the General Comments. 1. Enclosed with the solicitor's letter was a document headed "General Comments". It contains the solicitor's version of his meeting Mr M and establishing both a personal and professional relationship with him. That this occurred is beyond dispute and it is unnecessary to reproduce all of the 'general comments' in these reasons. However, we do reproduce those that relate to the Will signed by Mr M in June 2010: (17) I recall around early June 2009 when my wife and I returned from a trip to Italy I talked to John about our trip and I invited John to come up to our apartment and look at pictures and some short videos of our trip on my computer. John was quite amazed by the way pictures could be stored on computers and displayed as a slideshow so easily. We talked about John's other great passion for photography. John told me about him having won some awards for his photography, including many years earlier for a photo of his ex-wife Eileen. John told me he kept his other unit, number 28 just for his photography. John was also very private about his business, for example he used an acronym "M J Train" as the name on the resident notice board for unit 28 which when rearranged is J M. John told me he had on a number of occasions had arguments with Michaela Pecha about his lifestyle and how he would invite young women to his apartment(s). Michaela disapproved of this. (18) I recall at this time talking to John about how my business was going. I told John how difficult it was to keep the balance of work flowing and also getting client's to pay fees when they were due. From about this time John took a great interest in how my business was going. Whenever we met he would ask: "How is the business going?" John also about this time said to me: "Bernie I would like to help you when I am gone. I think the business you are doing is such a good thing. I don't have anyone that needs my help, except for Rosie and we just can't seem to talk at all these days. She and I are totally finished." John also told me a number of times around the middle to end of 2009 that he was not doing so well health wise. John said to me about the middle of 2009: "Bernie, I want to make sure my ex-wife is looked after, but she and I don't have any interest in each others lives and haven't had for a long time. I would like to leave everything to you when I go. I am telling you this because I know when the time comes you will help me if I can't manage for myself. I can't rely on anyone else, but I trust you can help me if I need it. Also I don't know any other way to resolve looking after Rosie and also helping my ex-wife. I can't rely on either of them to assist the other." John further said to me: "If I leave it all to you then you can help them if they really need it I want it to be left up to you. I do want to make sure that Rosie is looked after and that my ex-wife is ok." I recall saying to John: "Why do you want to do that John? We haven't known each other that long. Don't you have anyone else you want to leave it to?" John said: "I think helping you with your business would be a good thing and I would like to know that I am doing something useful when I am gone. I also am thinking about what happens to me if I can't take care of things for myself. I am hoping you will help me if I need it" I said: "You can always count on me to help you. I can give you that commitment as a friend. The Will is up to you John. I appreciate what you are saying. Whatever you want to do with your estate you can deal with anything like that in your Will. You should know that you cannot get me to assist with preparing it if you are serious about including me as a beneficiary." (19) About 6 to 9 months later, around early June 2010 John talked to me about his Will again. John told me again he wanted to make a new Will and make me his beneficiary. I told John again: "I can't assist you with this if you want me to be a beneficiary." I told John: "You need to get someone else to assist you prepare your Will." John said to me: "I think I can arrange for that." (20) I recall around Tuesday 8 June or Wednesday 9 June 2010 I saw John in the driveway area of our unit block. John said to me: "I have got that will prepared. Can you and Wendy assist me to get it signed?" I said: "No that would invalidate it if I or Wendy witnessed it or I expect, if I was present when you signed it You need to have two witnesses to sign the Will when you sign it They must watch you sign it" John said to me: "Bernie I don't want my business being known by anyone around here. I need some witnesses who don't live around here or know me." I said: "OK, I think I can find someone who can meet you who do not know you to witness your Will." (21) I neglected to do any more about what John and I discussed, until Thursday morning before we were getting ready to leave to the Airport to fly to NZ. I saw John downstairs before we left and he asked me if I had managed to arrange for anyone to witness his Will. I apologised and said I hadn't done anything about it. John seemed a bit anxious and disappointed. I said: "I will see what I can do. When did you want to get the Will signed?" John said: "Anytime you can find someone. Saturday would be fine?" I said: "OK I am sorry I didn't do anything about it. Friends of ours, Camron and David should be able to help. I will call them. How about Saturday afternoon between 2 and 4 pm?" John said; "OK." I said: "If there are any problems I will get Camron to call you." (22) When I got to the Airport I called my friends David and Camron. I asked Camron, who I spoke to, if they would do my friend John a favour. "He needs someone to witness his Will and doesn't want anyone who knows him to know about it. Wendy and I can't do it because I am a beneficiary." Camron said: "Sure, Bernie, we could do that." I said something like: "Could you go over to John's place and witness his new Will on Saturday?" I told Camron John's unit number and said John would be home on Saturday afternoon between 2 and 4 pm. (23) Some days after my wife and I returned from NZ the next week, I saw John and he told me that Camron and David had come to his unit on the previous Saturday and he had executed his new Will. John asked me if I would hold the Will for him and I said I should not do that and he should make sure he kept it in a safe place. John said he would keep it where he had always kept his Will in his desk. I suggested he should make sure it was not somewhere that any one such as his ex-girlfriend Rosie would come across it if she was around in the future. 1. In his affidavit Mr McFadden, apart from deposing to facts summarised above, said that after retiring from practice he did not see Mr M until he visited him in the nursing home in March 2011. He said that Mr M did not appear to recognise him. 2. Mr Fairbairn, a trust account investigator employed by the Law Society of NSW, deposed to his interview with the solicitor in a routine investigation on 25 July 2011 which encompassed the operation of the solicitor's trust account during the period 1 May 2010 to 30 June 2011. The solicitor answered 'no' to each of the questions "[h]as your law practice held controlled money during the past 12 months?" and "[h]as your law practice held trust money subject to specific power of authority?". 3. Mr Sivakumar, an accountant by profession, was appointed by the Law Society of NSW to investigate the trust account of the solicitor. On 6 October 2011 he attended the solicitor's office and, among other things, questioned him about the Will made for Mr M in June 2010: I said: "In the section 659(2) Notice I provided in my last visit one of the documents mentioned in the Schedule is John M's will. I did not find this will in either of the files you gave me. Can you please locate that for me." Mr O'Donnell said: "Around the time when I was assisting John to sell his car sometime in the middle of 2010 John showed me a copy of his will with my name as the executor and the beneficiary. He did not provide me with a copy and I have never received one." I said: "Did you prepare the will?" Mr O'Donnell said: "No. I did not Pointless if he wanted to make me a beneficiary." I said: "Did you ask him who prepared the will?" Mr O'Donnell said: "I did not ask him. No. I only advised him, you should think John, you may not be able to look after your affairs if things go downhill. Think of an Enduring Power of Attorney and Enduring Guardianship" I said: "So where is the will now?" Mr O'Donnell said: "James Munroe the valuer carried out an inventory of John's unit and I believe that amongst the documents hefound there was John's will. He took it with him to his office and now I believe this has been sent to the Public Trustee." I said: "Did the valuer give you a copy of the will he found in the unit?" Mr O'Donnell said: I'm not sure. I will look though and get back to you." I said: "Thank you. I will wait to hear from you regarding the copy of the will." 1. There was a further meeting with the solicitor in his office on 18 November 2011 after Mr Sivakumar had received a copy of the June 2010 Will: I said: "Thanks for emailing a copy of John's will. You told me earlier that you did not prepare the will and also don't know who prepared it either What about the witnesses to the will? Do you know who arranged these witnesses?" Mr O'Donnell said: "On the long weekend in June 2010 sometime on a Thursday I got a call from John and he told me that he has got a will done and need to witness it. I told him "Don't talk to me about it." John insisted, "give me some names for witnesses." "I knew John did not have many friends. I then rang my friends, David and Camron, property investors. They were happy to do it. I then flew to New Zealand and got back on a Tuesday or so. My friend called and told me that they went and met John at his place and witnessed the will." I said: "Was your daughter Lisa present at the time of witnessing the will?" Mr O'Donnell said: "Certainly no." I said: "How long have you known these witnesses?" Mr O'Donnell said: "For about eight or nine years." I said: "Can you tell me more about your friendship." Mr O'Donnell said: "We undertook scuba diving together and that's how I got to know them." I said: "Have you acted for them as a solicitor in any legal matter?" Mr O'Donnell said: I cannot recall acting for them in any legal matter. They are property investors. There was an occasion when they approached me while selling a property in Queensland. I rang up and checked with the Queensland law society if I could as a NSW solicitor act for them in this matter I spoke to the Secretary of the council who was also a Bernard O'Donnell and he informed me I could not act being an out of state practitioner." I said: "What about any other matter?" Mr O'Donnell said: "His younger son, Samuel, was involved in a criminal matter about two years ago. I filed an appeal to the Supreme Court of NSW. Later he was represented by Legal Aid." 1. We have already reproduced the solicitor's written response to the letter from Lloyd and Lloyd dated 29 March 2011, to the LSC's letter to him and his oral replies to Mr Sivakumar's questions about the June 2010 Will. It is also appropriate that we reproduce part of the exchanges between the solicitor and members of the Guardianship Tribunal at the hearing in June 2011: J WOODFORD: Could I ask a couple of questions for clarification. On the 10th of April you attended Montana to visit John M. B O'DONNELL: Yes J WOODFORD: And took him out for a drive in the car, and there's a charge for $600 for that. And a visit to meeting with John, took drive to Manly, $750 to do that. Is that what you see as a reasonable charge Mr M . Mr O'Donnell? B O'DONNELL: Yes I don't see that... for the amount of time that is being spent there and having regard to you know, John's circumstances, he's certainly quite capable of you know, affording those sorts of fees that... in the circumstances I don't see that as extravagant J WOODFORD: Thank you. S STAMATELLIS: Would you do it for no payment? B O'DONNELL: I had no idea what John's capacity was and my commitment initially was that I would ... I was assisting him and I had little or no idea whether he had any you know, ready, available capacity to afford more. But some of what I have to do would have to be curtailed, because I only run a fairly small law practice and the commitment in hours to a great extent means that I sacrifice being able to undertake work for clients of the law practice which would be being charged at a substantially higher rate than would be the fees that would be payable as John's attorney. So I in fact lose ... you know I go and see John at least several times a week, sometimes on weekends and sometimes when I can during the week, but I would say that you know, if I sacrifice too many of those hours I'd probably have to ... if there weren't reasonable reimbursement of fees, I'm not financially in a position to be able to afford to take that much time out of my practice. I would want to, but my wife insists that I'm still generating sufficient money to pay the bills. So I'm not in a position to sacrifice the amount of hours needed if I wouldn't be able to have a reasonable reimbursement for that. S STAMATELLIS: So that's important to you. B O'DONNELL: Somewhat important. The first priority is that I would want to do what I could and that would be a matter of working around that, and I'd still certainly want to make a substantial degree of sacrifice in time for the relationship with John, yes. S STAMATELLIS: Do you charge him every time you visit him? B O'DONNELL: No not really, and I record all of those slips there and then record those amounts, that's as much to make sure that I ... that I've got a record of the times and various things that I do with John at different times, and the amounts there, I record that amount but in terms of it being a reasonable reimbursement of the cost of the time and other expenses, it could certainly be at... at some other amount. I've just looked at that $300 an hour which is somewhat lower than the rate that I would normally charge for my services as a solicitor, but... S STAMATELLIS: Yes, okay. So that's clear, so you've also made an application to be his guardian as well. B O'DONNELL: Yes. S STAMATELLIS: Appointed his guardian, we'll get to that. Would you also be ... can you distinguish between what issues are matters related to financial management and your role as attorney and what issues would be related in your role as enduring guardian or are you charging for both? B O'DONNELL: To some extent ... well predominantly the role that I've exercised has been as attorney and the enduring guardian role I wouldn't see as involving substantial time and costs, it's a matter of making decisions when necessary such as finding and arranging for John to move to Montana out of the hospital, and other decisions like you know, when John had had a fall and had a fairly nasty looking haematoma making sure that I'd got you know, Dr Solomons to come and see him and having discussions with the sisters and things like that about medication and making sure that he's getting you know, a regular dose of aspirin because of the ... for example the mini strokes that John is likely to continue to have. 1. In the light of the above matters we come to consider the grounds of complaint against the solicitor, the first being that the solicitor improperly charged fees for acting as attorney and enduring guardian for Mr John M. 2. The financial transactions in the period from 9 March 2011 to 22 March 2011 are set out above. It was submitted that some of those transactions were made in an attempt to avoid detection including the use of Mr M's credit card. It was also submitted that the solicitor attempted to justify some of the transactions by raising invoices 1415, 1416, 1419, 1422, 1423, 1424, and 1425. 3. Counsel for the LSC pointed to significant discrepancies in various explanations given by the solicitor, some of which are reproduced above, including at the Guardianship Tribunal hearing, in his letter to the LSC of 27 January 2012, in his letter to the LSC of 22 February 2012, in his letter to the LSC of 16 April 2012, in his letter to the LSC of 28 November 2012, in his explanations given to Mr Sivakumar on 18 November 2011, in his letter to the LSC of 30 November 2011, in his own Statutory Declarations (two) of 30 November 2012, in his letter to the LSC of 4 March 2013, in his letter to the LSC of 21 March 2013 in his letter to the LSC of 22 April 2013, and in his letter to the LSC dated 21 December 2012. 4. We have found it impossible to resolve the inconsistencies, let alone derive a coherent explanation, consistent with the solicitor's innocence of any wrong doing. As indicated earlier by our reference to Re Veron, if the solicitor intended to maintain that the financial transactions impugned by the LSC did not involve wrongdoing, as on the face of it they did, we were entitled to expect an affidavit from him. 5. We agree with the submission made to us that of the total amount of $50,391.60 transferred to the solicitor from Mr M's accounts only $1,551 represented legal fees and $6,666.91 represented reimbursement for purchases made on Mr M's behalf. 6. The balance, viz $42,173.69, as it appears to us could only have related to fees charged by the solicitor for non-legal matters, that is, for acting under the power of attorney, providing personal services etc. This was prohibited by section 12 of the Powers of Attorney Act 2003, as an act conferring a benefit upon himself. 7. Accordingly, excepting for the sum of $18,926.30 which we deal with below, we find the first ground proved. 8. Ground 2 is expressed as "further, and/or in the alternative to Ground 1". It alleges misappropriation of $18,926.30 from Mr M's accounts on the basis that there is no invoice issued by the solicitor which forms a basis for the transfer to the solicitor of $18,926.30. 9. Although Counsel for the LSC submitted that both grounds 1 and 2 are made out, he pointed out that if, as has occurred, we find against the solicitor in respect of ground 1 we should take account of the fact that the sum of $18,926.30 (the subject of this ground) formed part of the sum of $42,173.69 referred to in respect of ground 1. 10. The ground, on that basis, is in our opinion proved. 11. Ground 3 is pleaded again as "further or in the alternative to Ground 1". It relates to two of the March 2011 financial transactions outlined above, namely the solicitor's withdrawal of $10,000 on 22 March 2011 from Mr M's funds, his payment of those funds into his personal credit card account and the subsequent transfer of $10,000 from his credit card account to Mr M's name in his trust account some 5 days later. For those 5 days, so it was submitted to us, the solicitor was in receipt of a loan from Mr M of $10,000 and, as Mr M was a client, this constituted a breach of rule 12 of the Solicitor's Rules. 12. In our opinion this ground was proved. 13. Ground 5 relates to the execution by Mr M of a Will on 12 June 2010 whereby the solicitor was appointed executor and the whole of the estate was bequeathed to the solicitor. 14. Rule 10 of the Solicitor's Rules as at June 2010 relevantly provided: 1. A solicitor and law practice must avoid conflicts between the duties owed to current and former clients, except as permitted by Rule 10.2. 1. If the solicitor prepared the will or gave Mr M advice regarding its preparation there would undoubtedly be a clear breach of the rule. However, as the LSC concedes there is no direct evidence that he did so. 2. The LSC relies on circumstantial evidence as follows: * Inconsistencies in statements made by the solicitor regarding the Will namely: 1. In his letter to Lloyd & Lloyd solicitors dated 5 April 2011 the solicitor said at p3: "Mr M provided to me some time ago a Will in which I am his executor and beneficiary. I cannot recall the exact date. I do not hold the original of this Will nor do I know who prepared this Will for Mr M" and "I have never prepared or been instructed to arrange for the preparation of any Will for Mr M"; 2. The statements made by the solicitor to Mr Sivakumar on 6 October 2011 reproduced above; 3. On 7 October 2011 at 12.52 pm the solicitor sent an email to Mr Sivakumar: Dear Chandra Please find attached a copy of the Will which was provided to me by John Wunbe; 1. In the "general comments" which accompanied his letter dated 27 January 2012 to the LSC the solicitor at para 35 said: "On Tuesday morning 2 November 2010 I received a telephone call from the transport company at about 11.30 am and they advised the truck would arrive at John's place within an hour. I rang John and told him the truck was on its way. I went to John's place met John and then the truck arrived. We watched the driver load the car and I saw John sign the receipt for the driver taking the car. It was about 12.30 pm. After the truck left John and I went upstairs to my place and we talked for a while. John had a bundle of papers with him including the insurance and registration papers for the car. I offered to arrange for cancellation of the insurance with NRMA. I told John I thought there might be a small refund as the expiry for the insurance was, I think, about February 2011. John also at this time handed me a copy of his Will. He said: "I know you said you don't want me to give you the original, but it's ok for you to have a copy?" I said: "Yes that is not a problem. I hope you have put the original away safely?" To which John nodded. * The two witnesses to the Will were friends of the solicitor but unknown to Mr M. * Mr M's previous Will prepared by a solicitor in January 2000 left everything to his former wife. * No other solicitor has been identified as having prepared the Will and Mr M did not have the means to type it himself. * It was inherently unlikely that Mr M would leave his whole, quite substantial, estate to his solicitor and neighbour. * The Will uses the solicitor's full name including his second name 'Kevin' which Mr M was unlikely to know. 1. The circumstances recited certainly give rise to a suspicion that the solicitor was involved in making Mr M's Will. However, as pointed out in the quoted passage from Re Veron the silence of a party cannot fill the place of actual evidence on an issue. While it is true that circumstances may lead to the drawing of inferences we find ourselves unable to draw the relevant inference on the evidence before us. Reaching this conclusion we bear in mind that the issue is very significant and that the solicitor, while declining to go into the witness box has at various times freely made admissions contrary to his interests but has always denied having anything to do with Mr M's Will. 2. We find that the ground has not been proved. 3. Ground 5 related to the solicitor's letter to Lloyd & Lloyd. It is alleged that he wilfully misled them, in particular by stating that he did not know who prepared the Will of Mr M or its location. As the evidence has failed to satisfy us that the solicitor was involved in the preparation of Mr M's Will it follows that we could not be satisfied that his comments to Lloyd & Lloyd were deliberately misleading. Nor could we be satisfied on the evidence that, as at 29 March 2011, the solicitor believed that Eileen C was Mr M's next of kin, although it does appear from the solicitor's letter to the LSC of 27 January 2012 that he had been aware for some years that the solicitor was once married to and had been divorced from Eileen C. 4. As to the allegation of misleading the Guardianship Tribunal we think the financial transactions in March 2011, detailed above, make it clear that the solicitor charged Mr M for services he performed both legal and otherwise. In our view his attempt to persuade the Tribunal otherwise in the transcript earlier reproduced was an attempt to mislead the Tribunal. 5. Ground 5 is established to the extent indicated. 6. Grounds 6 and 7 assert that the solicitor falsely told both the Law Society of NSW and the trust account investigator, Mr Fairbairn, that his law practice had not held trust money subject to a special power or authority. 7. There was evidence that on 25 July 2011 Mr Fairbairn asked the solicitor "has your law practice held trust money subject to a specific power or authority?" and received the answer "no". There was also evidence that the solicitor completed electronically a "Law Practice Declaration" required by the Law Society in respect of the period 1 April 2010 to 31 March 2011. To the question on the Declaration "[d]uring the period 01/04/10 to 31/03/2011 has the Law Practice received or held trust money subject to a specific power?" The question was answered "No". 8. The Declaration itself explained 'Power Money' by reference to s243 of the Legal Profession Act – "money entrusted to the law practice in the course of or in the provision of, legal services which is subject to a power exercisable by the practice or an associate of the practice to deal with the money for or on behalf of another person…". 9. Mr Matalani submitted that the cheque numbered 20007 for $10,000 transferred from Mr M's Westpac account on 9 March 2011 and credited to the solicitor's trust account constituted money subject to a specific power. This submission seems to us to be clearly correct. 10. As a consequence the solicitor's negative answers to both Mr Fairbairn and the question in the Practice Declaration were false. In the absence of evidence from the solicitor we can only conclude that they were deliberately false. We note that only a short period elapsed between the trust account deposit and the two occasions when the solicitor falsely denied that he held money subject to a power. 11. Grounds 6 and 7 are, in our view, established. 12. The final ground, ground 8, asserts that the solicitor attempted to mislead the LSC in the course of his investigation of the complaint by Ms C. 13. In essence the LSC relies on a paragraph in the solicitor's letter to the LSC dated 27 January 2012: The work referred to in 2 above was not invoiced by this firm. Some tax invoices were generated as record keeping but, other than in respect to my personal assistance to John M to sell his vehicle in around October 2010 to December 2010, tax invoice were not issued to John M and he did not make payment of fees for any legal work carried out by this firm." 1. As we have already found, the solicitor did indeed charge Mr M for work allegedly performed. On 14 March 2011 the solicitor transferred from monies held on trust for Mr M the sum of $9,475.90 in payment of invoices 1415, 1416, and 1419. 2. The solicitor's statement to the LSC quoted above was false and, in our opinion, willfully false as the solicitor must have been aware that it was untrue. 3. Ground 8 was, in our view, proved. 4. Mr Matalani submitted that the evidence establishes professional misconduct within s497(1)(b) of the Legal Profession Act namely that the solicitor should be found to be not a fit and proper person to practice law. He contended that over a period of about 3 months the solicitor improperly charged, or misappropriated the funds of, Mr M, a vulnerable person and that he thereafter deliberately and dishonestly attempted to conceal what he had done. 5. He submitted that the solicitor's overall conduct satisfies the common law test propounded in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750, namely conduct which would reasonably be regarded as disgraceful or dishonourable by professional brethren of good repute and competency. 6. The solicitor's submissions from the bar table in reply to Mr Matalani were largely based on factual assertions unsupported by evidence on affidavit provided to the Tribunal. On that basis we can give the submissions little weight. 7. Having regard to the findings made above, we are satisfied that the solicitor's conduct was disgraceful and dishonourable and would be regarded as such by his brethren of good repute and competency. We find him guilty of professional misconduct. 8. As to the consequences of such a finding, Mr Matalani submits that removal from the roll is the appropriate order. He points to the absence of any indication of remorse, contrition or insight into the conduct. He submitted in effect that the degree of dishonesty exhibited by the solicitor in his dealings with the Law Society's trust account investigator and with the LSC demonstrates a continuing unfitness to practice law. 9. In our opinion those submissions should be accepted and the name of the solicitor removed from the roll. In accordance with the statute, the solicitor should pay the costs of the LSC. Finding and Orders 1. That Bernard Kevin O'Donnell is guilty of professional misconduct; 2. That the name of Bernard Kevin O'Donnell be removed from the roll of local Legal Practitioners; 3. That the solicitor pay the costs of the LSC as agreed upon or assessed. Decision amended on 31 March 2015 pursuant to section 63 Civil and Administrative Tribunal Act 2013: Wherever occurring in the published decision the respondent's deceased client's full surname is replaced with the letter "M", the client's ex wife's full surname is replaced with the letter "C" and bank account numbers are replaced with the letter "X". The image of the invoice at para 7 is replaced with a text table. 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 Amendments 31 March 2015 - Decision amended on 31 March 2015 pursuant to section 63 Civil and Administrative Tribunal Act 2013: Wherever occurring in the published decision the respondent's deceased client's full surname is replaced with the letter "M", the client's ex wife's full surname is replaced with the letter "C" and bank account numbers are replaced with the letter "X". The image of the invoice at para 7 is replaced with a text table. 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: 31 March 2015