Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Legal Services Commissioner v Potkonyak (No. 3) [2018] NSWCATOD 8 Hearing dates: 13 November 2017 Date of orders: 09 January 2018 Decision date: 09 January 2018 Jurisdiction: Occupational Division Before: F Marks ADCJ (Principal Member) C Ludlow (Senior Member) M Bolt (General Member) Decision: 1. The name of the respondent, George Potkonyak is removed from the roll of Lawyers of the Supreme Court of New South Wales with effect seven days from this date. 2. The respondent shall pay the costs of the applicant in these proceedings in an amount assessed in default of agreement. Catchwords: Legal practitioner –prior finding of professional misconduct – finding that not a fit and proper person to practice law – held removal from roll appropriate protective order. Legislation Cited: Civil and Administrative Tribunal Act Legal Profession Act 2004 Cases Cited: Law Society of New South Wales v Walsh [1997] NSWCA 185 Legal Services Commissioner v Potkonyak [2017] NSWCATOD 74 Legal Services Commissioner v Potkonyak (No. 2) [2017] NSWCATOD 134 (22 August 2017) New South Wales Bar Association v Cummins [2001] NSWCA 284 Re Melvey; ex parte Law Society of New South Wales (1966) 85 WN (Pt1) NSW 289 Category: Principal judgment Parties: Legal Services Commissioner (Applicant) George Potkonyak (Respondent) Representation: Counsel: CA Webster SC and PA Madigan (Applicant) In Person (Respondent) Solicitors: S Gulliver (Applicant) In Person (Respondent) File Number(s): 2015/00383950 Publication restriction: Non-publication order prohibiting the disclosure of the name of any client of the respondent, the name of any child of any client of the respondent and the names of all other parties to any proceedings in which the respondent represented a party, with respect to any proceedings which are the subject of or relate to allegations of misconduct against the respondent made in these proceedings reasons for decision on stage 2 hearing Introduction and background 1. The respondent, George Potkonyak was admitted as a Lawyer of the Supreme Court of New South Wales on 5 December 2008. 2. In Legal Services Commissioner v Potkonyak [2017] NSWCATOD 74, published on 17 May 2017 ("the stage 1 decision"), we found the respondent guilty of professional misconduct. The proceedings were stood over for the purpose of conducting a stage 2 hearing on 22 August 2017. The respondent subsequently applied to the Tribunal to have this hearing adjourned and for an order referring a question of law to the Supreme Court. In a decision, Legal Services Commissioner v Potkonyak (No 2) [2017] NSWCATOD 134 published on 11 September 2017 we refused the application to refer a question of law to the Supreme Court, but granted the application for adjournment of the stage 2 proceedings which we fixed for hearing on 13 November 2017. Furthermore, we imposed practice conditions limiting the circumstances in which the respondent could continue to practice as a legal practitioner. 3. On 13 October 2017 the respondent filed a "Summons (Judicial Review)" in the Supreme Court of NSW. That initiating process sought orders inter alia prohibiting this Tribunal from hearing the stage 2 proceedings and to the effect that this Tribunal had "failed to establish jurisdiction" to impose the practice conditions and to proceed to a stage 2 hearing. We note that one of the grounds upon which this Tribunal was said to have fallen into "jurisdictional error" was that in our stage 1 decision finding the respondent guilty of professional misconduct we had relied "on obiter dicta of the decisions of other courts in the matters involving the (respondent) rather than on (our) own evaluation of the (respondent's) conduct" and we had denied the respondent procedural fairness. We shall refer to this matter later in these reasons for decision. 4. On 23 October 2017, the respondent filed an application in this Tribunal seeking a stay of these proceedings including a stay of the practice conditions which we had imposed by way of interim order, until the finalisation of the proceedings before the Supreme Court. In support of that application the respondent filed an affidavit sworn on 23 October 2017. In that affidavit, the respondent asserted that the "administration of justice in this State would suffer further embarrassment" if we proceeded to deal with the stage 2 hearing without the matter having been reviewed by the Supreme Court. In his affidavit, the respondent canvassed the conduct of Judge Knox and his Honour's attack on the respondent in certain proceedings, the conduct of counsel involved in those proceedings, the conduct of the Legal Services Commissioner in dealing with certain complaints made by his clients against former legal practitioners, and the conduct of certain legal practitioners in the course of other proceedings. 5. This Tribunal heard this application on 6 November 2017. Because of the urgency of the matter the Tribunal was constituted by the presiding member and Senior Member Ludlow only, General Member Bolt being absent overseas. In the course of submissions made that day the respondent referred to a number of the decisions in the District Court and the NSW Court of Appeal which were the subject of the complaints made against the respondent and which were discussed by us in our stage 1 decision. The respondent described these decisions of Judge Balla and of the Court of Appeal in terms of being "absurd" and "ridiculous" and of Judge Knox as "having ignored the real issues." He said that these decisions should be the subject of review in the Court of Appeal, that we should not have applied them, and that until that review has taken place, we should not proceed to deal with the matter. This was notwithstanding that no appeals had been initiated against these decisions. We refer to these submissions because they indicate that even as at 6 November 2017 the respondent lacked insight into the force and effect of decisions of the Court of Appeal and the District Court and the observations made in those courts concerning the erroneous approach of the respondent to the relevant principles of law applying to the proceedings in which he was involved on behalf of his clients. We shall return to these observations later in these reasons for decision. 6. In his submissions in support of the application for a stay and an adjournment, the respondent said that the Legal Services Commissioner should have engaged an external lawyer to assist this Tribunal in the conduct of the proceedings before us. Such a submission misunderstands the process by which this Tribunal determines complaints of professional and other misconduct brought before it. 7. On that day we dismissed the application for adjournment of the stage 2 hearing. We indicated to the respondent that he had had an ample opportunity to approach the Court of Appeal after delivery of our reasons for decision on 17 May 2017, that we had difficulty in understanding the basis for his application to that Court, and in the absence of any stay granted by that Court we could see no good reason to defer the further hearing. Indeed, the balance of convenience favoured such an approach. The course of the stage 2 hearing on 13 November 2017 Evidence adduced by the respondent 1. The respondent tendered into evidence, on a consent basis, 20 character references given principally by clients and former clients. Some of these consisted of unsworn statements, and some took the form of statutory declarations. In general terms, these persons spoke in a highly complimentary way of the professional legal services provided for them or for members of their family in matters concerning the care and custody of children dating back in some cases to 2009. It is clear from this documentation that the respondent provided his services either at minimal cost or on a pro bono basis. He was regarded by these persons as being a practitioner "of last resort" who was the only person prepared to take on their case, and in some cases with a successful outcome. 2. A statutory declaration was provided by Mary Louise Moore the convener of the Alliance for Family Preservation and Restoration which appears to provide support and assistance on a voluntary basis to persons involved in care and custody cases of children. Many of the persons assisted by it were referred to the respondent because firstly he was perceived to provide competent advice and secondly, he was prepared to take on matters on a pro bono basis. The deponent said, in part; "George Potkonyak is the type of solicitor that should be recognised with accolades for his dedication and hard work for fighting for justice and the Human and Legal Rights of vulnerable and poor clients he tirelessly represents to the best of his ability." 3. In addition to this documentary evidence, the respondent called nine persons to give oral evidence, most of whom had provided written statements which were in evidence. This oral evidence supported the general thrust of the documentary evidence which we have briefly summarised. These witnesses were, in general terms, impressed by the services provided for them by the respondent and his competency, were critical in some cases of the judicial officer hearing their matter, and were critical of other legal representatives participating in the proceedings. In particular, there was reference by a number of witnesses both in oral evidence and in the written statements to the fact that other legal representatives participating in child care and custody proceedings spoke of the respondent in derogatory terms. 4. We should add for completeness that one of the witnesses had completed a law degree, and was awaiting admission as a legal practitioner. None of the other witnesses was legally qualified. 5. Although most of the witnesses were aware that the respondent was in danger of being disciplined, there is no evidence that any of them had read or been appropriately informed about the nature and extent of the complaints brought by the applicant against the respondent, and the findings contained in our stage 1 decision. We shall refer to this aspect later in our reasons for decision. Prior complaints 1. In addition to this evidentiary material we had available to us an affidavit from the applicant affirmed 9 November 2016 concerning three previous complaints of misconduct made against the respondent. We shall deal with each of these complaints in turn. Complaint 38659. 1. This Complaint was initiated by letter dated 14 June 2012. It contained three complaints. The respondent made certain submissions in response, after receipt of which the then Acting Commissioner made a determination communicated to the respondent by letter dated 27 September,2013. The first complaint referred to proceedings instituted by a client of the respondent in the Children's Court seeking leave to rescind final orders previously made by that Court. The complaint was that this application "had no prospects of success." The proceedings were the same proceedings as referred to in Ground 1 of the Further Amended Application for Disciplinary Findings and Orders which were the subject of our stage 1 decision. In finding this first complaint proven the Acting Commissioner relied on comments concerning the deficiency in the application brought by the respondent on behalf of his client by a Judge of the District Court and Justices of the Supreme Court and Court of Appeal. 2. The second complaint was that the respondent had made contact with the Children's Court seeking that a matter be heard by a particular judge. This was held to be inappropriate conduct in circumstances where the respondent had made no prior contact with other legal practitioners involved in the proceedings. 3. The third complaint referred to the filing of "incompetent submissions" in a particular matter in the Children's Court. At a hearing of that court on 2 April 2012 the presiding Magistrate asked the respondent whether he wished to withdraw written submissions which he had made on behalf of his client, but he declined to do so. In those submissions, the respondent had made reference to "doctrines" within the Children's Court that are "not according to law, don't make sense, absurd and an abuse of process by all those involved (apart from children and their parents)". There is a further reference to orders made by that Court as constituting "a mockery of the law." 4. The Acting Commissioner informed the respondent by letter dated 27 September 2013 that having considered each of the complaints together with supporting documentation that in all the circumstances each of the complaints made created "a reasonable likelihood that the Tribunal would find that you had engaged in unsatisfactory professional conduct" and determined to impose a reprimand. Complaint 37981 1. By letter dated 4 May 2012 the respondent was provided with details of three complaints initiated by the Commissioner. They arose out of appeal proceedings in the District Court in which the respondent requested that an Authorised Clinician of the Children's Court Clinic attend for the purpose of giving evidence. A Practice Note No 6 of the Children's Court required that any additional material relevant to the proceedings be provided to the Clinician called to give evidence no later than three weeks before the date of the court attendance. The first complaint alleged a failure to provide that material. The second complaint alleged that in a communication with the Clinician the respondent said that there was no relevant additional material, and that this was incorrect. The third complaint alleged that the respondent did not act in the best interests of his client, the mother of the child the subject of the proceedings because the Clinician "was obliged to disclose explicit personal details relating to the mother's substance abuse and involvement in violent relationships" in the course of giving evidence on 20 January 2012 as a result of the respondent having failed to provide the additional material. The respondent provided a detailed response by letter dated 16 August 2012. 2. In a letter dated 21 August 2012 the Commissioner stated that he had reviewed the documentary material before him, including a transcript of the proceedings, as well as the information provided by the respondent and he rejected the explanations proffered by him. We note that with respect to the third matter, the respondent had said that the only reason why his client was upset in court was because of the "nonsense" provided by the evidence of the Clinician. The Commissioner commented that the respondent had apparently missed the point of the complaint because the only reason why the Clinician had given evidence which had disturbed the respondent's client was that the respondent had elected to cross-examine the Clinician "on very sensitive issues." In his letter the Commissioner said, in part, "I am concerned that your response to the third complaint demonstrates a lack of insight into the vulnerable position to which you exposed your client by conducting the cross-examination of (the Clinician) in the way that you did." 3. Having concluded that there was a reasonable likelihood that the respondent would be found by the Tribunal to have engaged in unsatisfactory professional conduct, the Commissioner imposed a reprimand on the respondent. Complaint 35871. 1. This complaint arose out of a referral of the conduct of the respondent to the Commissioner by a Judge of the Family Court of Australia concerning proceedings conducted by him on behalf of a party. In the course of those proceedings the respondent had made written submissions about the financial support after separation provided by a father to his client mother. In the course of those submissions the respondent stated that the father was "either lying, cheating on child support and cheating on his tax or all of the above." In her reasons for judgement delivered on 13 May 2011 the Judge noted that the respondent had raised no question during the course of the hearing of the evidence given by the father about his financial support of the mother and the child, no suggestion was put to the father in cross-examination that he was lying or cheating as alleged in the written submissions and there was no other evidence given in the proceedings which would substantiate in any way the allegations made. 2. After considering written submissions made by the respondent in answer to the Complaint made by the Commissioner, the Commissioner concluded that he was satisfied that there was a reasonable likelihood of the Tribunal finding that he had engaged in unsatisfactory professional conduct as alleged, that he had contravened Rule 23A.37 of the then Solicitors' Rules and issued a caution "to exercise more care in future and to ensure any allegations made in submissions to the court are properly supported by the available evidence." 3. The respondent did not exercise any right to challenge any of these determinations. The proven professional misconduct of the respondent 1. In our stage 1 decision, we discussed in detail each of the Grounds and particulars of each of the complaints which we found proven against the respondent. The determination which we make concerning the protective orders which should appropriately be made following these findings is based on the totality of the proven professional misconduct. Accordingly, the discussion which follows, and which is in summary form is not intended to be read in substitution for our detailed findings, but merely to assist in understanding our reasoning process in formulating the protective orders. 2. In the course of submissions during the stage 2 hearing the respondent sought to describe the proven misconduct as matters arising out of two sets of proceedings only which, presumably, represented a small part of his overall practice. This submission misrepresents the nature and extent of his professional misconduct. It is true that Grounds 1 and 2, and Grounds 3, 4, 5 and 6 respectively arose out of two sets of proceedings. 3. However, the proceedings the subject of Grounds 1 and 2 covered misconduct which occurred in April 2013 before the Children's Court, and in the District Court in November 2013. The inappropriate conduct of the respondent included disparaging and offensive comments made by the respondent concerning the presiding judicial officer, the Director-General, and legal representatives. In addition to this inherent misconduct, the respondent breached certain Advocacy and Professional Conduct Rules by which he was bound. 4. The proceedings the subject of Grounds 3, 4, 5 and 6 covered misconduct which occurred in March 2015 in proceedings in the District Court. The inappropriate conduct of the respondent included disparaging and offensive comments made by the respondent concerning the practice of the Children's Court. In addition, the respondent misled the Court in connection with certain evidence prepared by him. Furthermore, he pursued an incorrect ideologically based interpretation of the provisions of certain legislation without regard to appropriate decisions to the contrary of the Supreme Court and the NSW Court of Appeal to the disadvantage of his client, thereby demonstrating a loss of objectivity coupled with a failure to adduce relevant evidence by reason of his misunderstanding of the relevant principles. In doing so, the respondent had prosecuted proceedings on behalf of a client without appropriate regard to the ultimate prospects of success, the personal and idiosyncratic interests and circumstances of the client, without regard to the prospect of an adverse costs order, and without any evidence of the nature and extent of any advice tendered by him concerning the proceedings in which she was involved. 5. We emphasise that the matters set out in the preceding paragraphs are discussed in detail in our stage 1 decision. However, this summary demonstrates for present purposes that the misconduct of the respondent was not symptomatic of any isolated occurrence, and did not represent an aberration in an otherwise proper and appropriate course of conduct. The nature and extent of this misconduct enabled us to find Ground 6 proven namely that by reason of the participation of the respondent in the proceedings referred to, he had "consistently engaged in conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner." 6. The definition of professional misconduct contained in section 497 of the Legal Profession Act 2004 is in the following terms; 497 PROFESSIONAL MISCONDUCT (1) For the purposes of this Act: "professional misconduct" includes: (a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and (b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice. (2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters. 1. In our stage 1 decision we found that both subparagraphs (a) and (b) of section 497 (1) applied to the misconduct of the respondent. By way of summary only, we set out the following extract from our stage 1 decision; 98 Whether and to what extent the conduct of the respondent which we have found to have been proven to the requisite standard constitutes either unsatisfactory professional conduct or professional misconduct involves the exercise of a value judgement. It should be noted that the definition in section 496 includes a reference to the reasonable expectation of a member of the public. There is a fundamental public interest in the appropriate administration and management of the work of the courts as part of the legal system. We apprehend that it is the reasonable expectation of a member of the public that a professional legal practitioner will do nothing to attack inappropriately the reputation and integrity of the legal system including especially the courts. The scurrilous and ill-considered comments of the respondent in zealously pursuing his ideological approach to the detriment of the application of appropriate legal principles constitutes an attack on the reputation and integrity of the courts with which he was involved. His unfounded criticism of judicial officers and of fellow practitioners also constitutes an attack on the integrity of the legal system. In our opinion this conduct by the respondent set out in the several Grounds and Particulars which we have found to be proven is inconsistent with the reasonable expectation of a member of the public. Members of the public would and do expect that legal practitioners retained by them will furnish them with competent objective advice concerning the state of the law and, if appropriate, any areas of the law which may not be then currently settled, will advise them in pragmatic terms having regard to all of the circumstances of the litigation and their own personal circumstances, and will not incur the displeasure of judicial officers and fellow legal practitioners by making scurrilous and unjustified criticism. A member of the public engaged in costly and protracted litigation would expect that a legal practitioner representing another party in the proceedings would conduct himself or herself in a manner which would ensure the just quick and cost effective disposition of the proceedings. The respondent has breached all of these expectations. It follows that we regard the misconduct of the respondent as proven to constitute unsatisfactory professional conduct. 99 Furthermore, the unsatisfactory professional conduct involves a substantial and consistent failure to reach or maintain a reasonable standard of competence, and justifies a finding, that we make, that the respondent is not a fit and proper person to engage in legal practice. The conduct of the respondent which we have found proven demonstrates that he has engaged in a continued pattern of misconduct over a period of time which excludes any consideration that the respondent was guilty of any momentary lapse of professional judgment, or that there was an isolated instance of professional negligence. The mere recitation of the conduct of the respondent is, without more, sufficient to justify this conclusion. 1. It follows that we have found that the respondent has engaged in conduct which involves a substantial and consistent failure to reach and maintain a reasonable standard of competence and diligence and that his conduct justifies a finding that he is not a fit and proper person to engage in legal practice. Appropriate protective orders 1. The orders which may be made by this Tribunal consequent upon a finding of professional misconduct are set out in section 562 of the Legal Profession Act 2004 the relevant portion of which is in the following terms; 562 DETERMINATIONS OF TRIBUNAL (1) Orders generally If, after it has completed a hearing under this Part in relation to a complaint against an Australian legal practitioner, the Tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the Tribunal may make such orders as it thinks fit, including any one or more of the orders specified in this section. (2) Orders requiring official implementation in this jurisdiction The Tribunal may make the following orders under this subsection: (a) an order that the name of the practitioner be removed from the local roll, (b) an order that the practitioner's local practising certificate be suspended for a specified period or cancelled, (c) an order that a local practising certificate not be issued to the practitioner before the end of a specified period, (d) an order that: (i) specified conditions be imposed on the practitioner's practising certificate issued or to be issued under this Act, and (ii) the conditions be imposed for a specified period, and (iii) specifies the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed, (e) an order reprimanding the practitioner, (f) an order that the name of the practitioner be removed from the roll of public notaries maintained under the Public Notaries Act 1997. 1. The applicant sought an order that the respondent's name be removed from the local roll. As we have determined that this is the appropriate order to make in all the circumstances, we now proceed to consider the appropriate principles applying to such a determination and our reasons for so holding. 2. Prima facie, our findings that the respondent is not a fit and proper person to engage in legal practice and that he has engaged in conduct involving a substantial and consistent failure to reach and maintain a reasonable standard of competence and diligence create a significant basis for removal from the roll of practitioners because they are incompatible with the qualities expected of a legal practitioner by the courts, the public and fellow practitioners. 3. The relevant principles which apply in considering whether to remove a practitioner from the roll are well-established. Significantly, such a step is protective in nature, in the sense that it protects the public from the conduct of the practitioner, it creates a deterrent to the practitioner in the event that he or she is entitled to practice at some future stage, it creates a deterrent to other practitioners with respect to conduct of this kind and it enhances the reputation and integrity of the profession in the eyes of the public. (See, for example, the judgement of Beazley JA (as her Honour then was) in Law Society of New South Wales v Walsh [1997] NSWCA 185 at [40]). 4. However, the removal of the name of a practitioner from the roll should only occur if we are persuaded that the respondent is probably permanently unfit to practise law. (See, for example the judgement of Spigelman CJ in New South Wales Bar Association v Cummins [2001] NSWCA 284 at [26]). This leads to a consideration of the insight, comprehension and understanding possessed by the respondent concerning the misconduct which we have found proven. 5. It is clear from submissions made to this Tribunal by the respondent in connection with his applications for a stay of these proceedings and for referral to the Supreme Court, in the course of submissions before us in these proceedings and as the basis for his application for Review by the Court of Appeal that the respondent does not accept that his approach to the construction and application of the relevant provisions of the Children and Young Persons (Care and Protection) Act is incorrect. And because he holds such a view he does not appreciate and accept that his criticisms and complaints about the judicial officers and courts, the Director-General and legal practitioners involved in those proceedings are unjustified and inappropriate. Such an approach demonstrates that the respondent has no insight, comprehension and understanding of the misconduct found proven against him. There can be no confidence that the respondent would conduct himself in any other fashion if permitted to continue to practice. 6. These observations are supported by the findings made by the Commissioner with respect to the 3 Complaints to which we have earlier referred. We should add for completeness that there is no evidence that the respondent sought any review of any of these findings. As is obvious from the recitation of the factual material upon which those findings are based, the misconduct of the respondent there exhibited is relevantly similar to that in which he engaged, and which is the subject of these proceedings. It demonstrates a lack of competence as a legal practitioner. 7. The burden of demonstrating that he possesses relevant insight, comprehension and understanding and that he would henceforth conduct himself in a changed fashion falls upon the respondent. The respondent has not sought to argue that he does possess such insight, comprehension and understanding and, as we have previously pointed out, his submissions are to the contrary effect. 8. This is illustrated by the following extract from the transcript of the respondent's oral submissions made during the course of the hearing on 13 November 2017: Now, the matter of public interest has been raised. My question to the tribunal is or my suggestion to the tribunal is to look at the public interest. Why the public interest? Would the public in this State be better served if I be penalised in this tribunal or would the public in this State be better served if I continue defending these helpless parents whose children are being used as they tell me, "George, this is a child trafficking sponsored by the government of New South Wales." Now, I do not share that language with them. Nevertheless, it is not far from it. When we look at the children rights, United Nation children's right covenant, which Australia is signatory to that one, one of the articles says that the children should not be exposed to any sort of exploitation. They are being exposed to the exploitation of this Court to the tune of, in my estimate, one billion dollars a year, half of which is totally utterly unnecessary. Now, would the public be better served if they have someone like me who does his job as these witnesses say that I do, or would the public be better served if I be swept under the carpet and told to shut up and say not a single word again? Maybe it would be. Only in one instance it would give me more time to prepare my submission to the Independent Commission Against Corruption. That will be probably public would be better served if Independent Commission Against Corruption would listen to somebody like me. But there's no guarantee for that one. In this State, there's no guarantee for anything. Now, I implore the tribunal to look at the way these two public interest in making decision. Again, I was accused of having consistent view. My view is based on a solid and firm interpretation of the law. I can't change my view unless I have persuaded that I am wrong and/or if a higher court makes decision contrary to my interpretation of the law I will follow it. I have no choice but to follow it. Neither any other lower court has choice but to follow it. But I cannot-- … Now, I have no choice but accept now re Campbell but I cannot accept that the Court was right. I might be stupid or I might be ignorant of the law, but I cannot. I cannot accept it. This is my duty to the law, your Honour, my first duty to the law. This is what I was learnt in the law school. They said, "Your first duty is your duty to the law. Client comes afterwards." It is my duty to the law. Now, if tribunal force me to abandon my first duty to the law, then I don't have to be struck off. I will retire quietly myself. 1. We do not have available to us any medical or psychological evidence concerning the respondent which might assist in our understanding of his conduct. We can only proceed on the basis of his own explanations. We deduce that the respondent is driven by a passion to assist persons whom he perceives to be in need of his professional services. He has an underlying concern that the administration of the State system for the care and protection of children in need has been corrupted by the manner in which the relevant government agencies are conducted, aided and abetted by the court system which operates in tandem with these government services. He fervently believes that injustice has been visited upon his clients, who have wrongly been denied access to or the custody of their children and that the court system has contributed to this by incorrectly interpreting and applying the relevant legislation. Such a person is unlikely to change his beliefs without encountering something in the nature of an epiphany. Thus far, pronouncements by the Court of Appeal, Supreme Court, District Court, the Children's Court and this Tribunal have failed to convince the respondent that he is wrong. We are comfortably satisfied that the respondent's unfitness to practice law which we have identified is probably permanent. It follows that the appropriate protective order is removal from the roll. There is no other available order which would achieve this purpose. 2. The respondent relied upon the written and oral character references adduced as evidence by him. We have previously commented that none of them has indicated awareness of the nature and extent of the professional misconduct of the respondent which we have found, and this must cast considerable doubt upon the usefulness of this evidentiary material in mitigation of the protective order which we intend making. 3. The Court of Appeal in Re Melvey; ex parte Law Society of New South Wales (1966) 85 WN (Pt1) NSW 289 had occasion to refer to the worth and weight to be attributed to evidentiary material which attests to the character and antecedents of a legal practitioner. At 298, the Court (Herron CJ, Sugerman and McLelland JJA) said; A matter which we ought to weigh up on the question of penalty is the character and antecedents of the respondent. He has filed over 100 affidavits which bear on this issue. Thirty of these deponents were barristers or solicitors. The rest were from clients, citizens of repute, professional men and police officers. The trend of these affidavits, speaking generally, is that the respondent was a hard-working man, full of human sympathy and goodwill, and one who did not spare himself in his clients' interests and who was respected and liked by all. This body of evidence is weighty and has caused us to pause and consider at length its effect. One of our chief difficulties is to determine how far each of the deponents knew the significance of the methods which the respondent was employing. We feel that few of the deponents other than those legally qualified were aware of the standards of honour and honourable conduct expected from a solicitor. It is one thing to speak well of a man whom a deponent has met in social or business circles; it is another to speak of him as to his professional dealings with trust funds. We do not think that the lay deponents knew or understood the significance of the dealings by the respondent with his clients' monies, and less still that they understand the real nature of the charges of his professional misconduct." 1. We find these observations of assistance in considering the character evidence adduced by the respondent. No doubt each of his clients was appreciative of the work performed by the respondent for them, particularly as it seems much of that work was carried out at no or little cost. Some of the clients detected a degree of hostility towards the respondent from the court and from legal practitioners participating in the proceedings. However, none of these persons with the possible exception of the one person who had completed a law degree but who was not yet admitted as a solicitor, has demonstrated a knowledge and understanding of the professional responsibilities imposed upon the respondent as a legal practitioner in his dealings and interaction with judicial officers and legal practitioners, in his application of relevant legal principles, especially established at appellate court level and in the consequent advice that he was compelled to give to his clients. To this extent, we do not take into account these character references in determining these proceedings. 2. Whilst the motives of the respondent in attempting to assist persons who were clearly in need were admirable, the means by which he attempted to assist his clients in the context of the professional misconduct which we have found may well have been counter-productive to the overall interests of these clients in the manner which we have described more particularly in the stage 1 decision. 3. We are unable to discern that there are any mitigating factors which would detract from the making of a protective order as sought by the applicant in these proceedings. It follows that the appropriate order in all the circumstances is that the name of the respondent be removed from the roll of legal practitioners. Given that by reason of existing interim practice conditions the respondent is precluded from representing new clients, we propose to allow a seven day period of grace prior to the removal coming into effect to permit arrangements to be made for alternative representation of the respondent's existing clients. Costs 1. The applicant sought a costs order in his favour. Once a finding of professional misconduct has been made, a costs order must follow unless exceptional circumstances exist. (Cl 23(1) Schedule 5 of the Civil and Administrative Tribunal Act). 2. The respondent did not contend that any such circumstances applied, nor could he have done so. We shall make a costs order accordingly. Orders 1. We make the following orders; 1. The name of the respondent, George Potkonyak is removed from the roll of Lawyers of the Supreme Court of New South Wales with effect seven days from this date. 2. The respondent shall pay the costs of the applicant in these proceedings in an amount assessed in default of agreement. ******** 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: 09 January 2018