Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v Connolly [2018] NSWCATOD 43 Hearing dates: 28 and 29 August 2017, 16 October 2017, 1 March 2018 Date of orders: 23 March 2018 Decision date: 23 March 2018 Jurisdiction: Occupational Division Before: The Hon F Marks Principal Member N S Isenberg RFD Senior Member (Legal) B G Thomson General Member Decision: (1) The name of Steven John Connolly is removed from the Roll of Local Lawyers (2) The Respondent is to pay the costs of the Applicant in an amount assessed in default of agreement. Catchwords: Legal practitioner – allegations of trust account irregularity including withdrawal of monies without authority – breach of clause 88 of Legal Profession Regulations 2005 – unethical conduct – inappropriate behaviour – held professional misconduct established – order removal from the Roll of Local Lawyers – costs order Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Legal Profession Act 2004 (NSW) Legal Profession Regulation 2005 (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Steven John Connolly (Respondent) Representation: Counsel: PA Maddigan (Applicant) Respondent (self-represented) Solicitors: A-M Foord (Applicant) File Number(s): 201500383880 Publication restriction: Non-publication order with respect to the name of any client or former client of the Respondent, or any material which may tend to identify such a person. reasons for decision Introduction and background 1. These proceedings are constituted by an Amended Application for Disciplinary Findings and Orders brought by the applicant, the Council of the Law Society of New South Wales against the respondent, Steven John Connolly. Until suspended from practice, the respondent practised as a solicitor. The applicant seeks orders that the respondent be found guilty of professional misconduct by reason of a number of matters contained in Grounds 1 to 9, the details of which we shall discuss shortly. The applicant also seeks orders consequent upon a finding of professional misconduct that the name of the respondent be removed from the Role of Local Lawyers and that he pay the applicant's costs. 2. The Amended Application which is reproduced below has been modified so as to remove any material which would tend to identify any client of the respondent. It also contains references to the evidence upon which the applicant relies in support of proof of each matter. It is in the following form; The Applicant seeks the following orders: 1. That the Respondent's name be removed from the Roll of Local Lawyers. 2. That the Respondent pay the costs of the Applicant as agreed or assessed. 3. Further or other orders as the Tribunal deems fit. GROUNDS FOR APPLICATION (INCLUDING PARTICULARS) Steven John Connolly is guilty of professional misconduct in that, in the following matters, he: COMPLAINTS BY THE LAW SOCIETY 1. Breached section 255 of the Legal Profession Act 2004 2. Breached section 261(1)(b) of the Legal Profession Act 2004 3. Breached section 263 of the Legal Profession Act 2004 4. Breached section 264 of the Legal Profession Act 2004 5. Caused a deficiency in the trust account and/or trust ledger accounts 6. Breached clause 88 of the Legal Profession Regulation 2005 COMPLAINT BY D T 7. Engaged in unethical conduct COMPLAINT BY K & A H 8. Failed to provide an itemised account 9. Behaved inappropriately towards A H PARTICULARS Definitions the Act means the Legal Profession Act 2004 the Law Practice means Boulevarde Lawyers the Regulations means the Legal Profession Regulation 2005 Ms S means Ms S, an employee of the Law Practice between 3 March 2011 and 18 January 2013 Mr Sofiak means Mr Jim Sofiak, trust account investigator the Society means the Law Society of New South Wales the Solicitor means Steven John Connolly, the Respondent to these proceedings Ground 1: The Solicitor breached section 255 of the Legal Profession Act 2004 1. The Solicitor was the sole principal of the Law Practice for the period 1 August 2009 to 1 October 2013 [Foord [3(c)] 2. No trust account records were kept by the Law Practice and no trust ledgers existed during the period 3 March 2011 and 18 January 2013. [Smith Annexure A [2] and [6]] 3. As at 12 March 2013 the Law Practice had failed to account for trust money as required by the Regulations. [Sofiak #1 Ex. JS-1 pp. 2-3] M matter 4. The Solicitor was retained by TM in relation to the matter of M v TR (the M matter). 5. On 2 October 2012 the amount of $20,000.00 was deposited into the law practice trust account by M via EFT and credited to the M matter trust ledger. [Sofiak #1 Ex. JS1 p. 8; Foord Ex. AMF-1 p. 165 (statement)] 6. The M matter trust ledger shows that on 15 October 2012 [Sofiak #1 Ex. JS1 p. 8]: (a) the amount of $2,000.00 was debited via EFT; and (b) a cheque for the amount of $2,539.25 was drawn. 7. The Law Practice trust account bank statement shows that: (a) on 15 October 2012 the amount is $2,500.00 was debited from the Law Practice trust account described as "FUNDS TFR T… M…" [Foord Ex. AMF-1 p. 166]; and (b) on 23 October 2012 cheque no. 200025 in the amount of $3,539.25 was debited from the Law Practice trust account [Foord Ex. AMF-1 p. 167]. 8. The M matter trust ledger does not show [Sofiak #1 Ex. JS1 p. 8]: (a) a deficiency of $263.25 from 22 October 2012 until 21 November 2012; and (b) a deficiency of $658.25 from 21 November 2012 until 31 January 2013. 9. As the Solicitor's conduct particularised in paragraphs 4 to 8 above occurred in the absence of a direction or other authority from the owner of the entrusted funds, the Solicitor breached s. 255 of the Act. H Local Court matter 10. The Solicitor was retained by Mr K H in relation to a Local Court matter (the H Local Court matter) [Hughes [1]]. 11. On 3 October 2012 the amount of $2,500.00 was deposited into the Law Practice trust account and credited to the H Local Court matter trust ledger [Foord Ex. AMF-1 p. 165; Sofiak #1 Ex. JS1 p. 9; H [6] and Annexure C]. 12. On 22 October 2012 and without rendering a tax invoice, the Solicitor [H [7]]: (a) debited the amount of $2,500.00 from the H Local Court matter trust ledger [Sofiak #1 Ex JS1 p. 9]; and (b) withdrew the amount of $2,500.00 from the Law Practice trust account by way of two withdrawals of $1,700.00 and $800.00 [Foord Ex. AMF-1 p. 166]. 13. On 2 November 2012 the Solicitor rendered a tax invoice in the H Local Court matter in the amount of $2,195.00 [Sofiak #1 Ex. JS1 pp. 12-13]. 14. The amount of $2,500.00 debited on 22 October 2012 was greater than the amount of the tax invoice dated 2 November 2012. 15. On 26 November 2012 the Solicitor debited $440.00 from the H Local Court matter ledger causing a deficiency of $440.00 [Sofiak #1 Ex. JS1 p. 11; Foord Ex. AMF-1 p. 162]. 16. The 26 November 2012 transaction was not recorded on the H Local Court matter trust ledger [Sofiak #1 Ex. JS1 p. 9]. 17. As the Solicitor's conduct particularised in paragraphs 10 to 16 above occurred in the absence of a direction or other authority from the owner of the entrusted funds, the Solicitor breached s. 255 of the Act. P Local Court matter 18. The Solicitor was retained by Mr P in relation to a defended apprehended violence order matter in the Local Court (the P Local Court matter). 19. On 17 October 2012 the Solicitor rendered a bill to Mr P in the amount of $165.00 [Sofiak #1 Ex. JS1 p. 15]. 20. As at 29 October 2012 the P Local Court matter trust ledger had a nil balance [Sofiak #1 Ex. JS1 p. 14]. 21. On 29 October 2012 the amount of $165.00 was debited from the P Local Court matter trust ledger by EFT [Sofiak #1 Ex. JS1 p. 14; Foord Ex. AMF-1 p. 167]. 22. On 31 October 2012 the amount of $165.00 was transferred via EFT back to the Law Practice trust account and credited to the P Local Court matter trust ledger [Sofiak #1 Ex. JS1 p. 14; Foord Ex. AMF-1 p. 167]. 23. On 1 November 2012 the amount of $2,000.00 was deposited into the Law Practice trust account and credited to the P Local Court matter trust ledger [Sofiak #1 Ex. JS1 p. 14]. 24. On 5 November 2012 the amount of $165.00 was transferred from the Law Practice trust account by EFT [Sofiak #1 Ex. JS1 p. 14; Foord Ex. AMF-1 p. 161]. 25. On 9 November 2012 the Solicitor rendered an invoice to Mr P in the amount of $330.00 [Sofiak #1 Ex. JS1 p. 16]. 26. On 12 November 2012 the amounts of $165.00 and $495.00 were debited from the P Local Court matter trust ledger on account of costs and disbursements and transferred from the Law Practice trust account by EFT. No corresponding tax invoice was rendered by the Solicitor [Sofiak #1 Ex. JS1 p. 14; Foord Ex. AMF-1 p. 162]. 27. On 16 November 2012 the amount of $1,100.00 was debited from the P Local Court matter trust ledger on account of costs and disbursements and transferred from the Law Practice trust account by EFT. No corresponding tax invoice was rendered by the Solicitor [Sofiak #1 Ex. JS1 p. 14; Foord Ex. AMF-1 p. 162]. 28. On 26 November 2012 the amount of $240.00 was debited from the P Local Court matter trust ledger on account of costs and disbursements and transferred from the Law Practice trust account by EFT. No corresponding tax invoice was rendered by the Solicitor [Sofiak #1 Ex. JS1 p. 14; Foord Ex. AMF-1 p. 162]. 29. The transaction referred to in paragraph 28 above caused a deficiency in the P Local Court matter trust ledger of $165.00 [Sofiak #1 Ex. JS1 p. 14]. 30. On 29 November 2012 the Solicitor rendered an invoice to Mr P in the amount of $1575.20 reduced to $1,505.00 [Sofiak #1 Ex. JS1 p. 17]. 31. The 29 November 2012 invoice falsely represented that the amount of $1505.00 was held in the Law Practice trust account on that date [Sofiak #1 Ex. JS1 p. 17]. 32. Between 26 November 2012 and 14 March 2013 the P Local Court matter trust ledger was in debit by $165.00 [Sofiak #1 Ex. JS1 p. 14]. 33. The P Local Court matter trust ledger did not record the deficiency referred to in paragraph 32 above [Sofiak #1 Ex. JS1 p. 14]. 34. On 14 March 2013 the amount of $165.00 was transferred from the Law Practice office account to the Law Practice trust account by EFT [Sofiak #1 Ex. JS1 p. 18; Foord Ex. AMF-1 p. 149]. 35. As the Solicitor's conduct particularised in paragraphs 18 to 34 above occurred in the absence of a direction or other authority from the owner of the entrusted funds, the Solicitor breached s. 255 of the Act. Estate matter 36. The Solicitor was retained by C and C H in relation to the matter of the Estate of the late I M H (Estate matter). 37. From 7 January 2013 until 14 March 2013 the Estate matter trust ledger was in debit by $42.00 [Sofiak #1 Ex. JS1 p. 19; Foord Ex. AMF-1 p. 155]. 38. The Estate matter trust ledger did not record the deficiency referred to in paragraph 37 above [Sofiak #1 Ex. JS1 p. 19]. 39. On 14 March 2013 the amount of $42.00 was withdrawn from the Law Practice office account, deposited into the Law Practice trust account and credited to the Estate matter trust ledger [Sofiak #1 Ex. JS1 p. 20; Foord Ex. AMF-1 p. 149]. 40. As the Solicitor's conduct particularised in paragraphs 36 to 39 above occurred in the absence of a direction or other authority from the owner of the entrusted funds, the Solicitor breached s. 255 of the Act. Ground 2: The Solicitor breached section 261(1)(b) of the Legal Profession Act 2004 H Local Court matter 41. The Applicant repeats paragraphs 10 to 16 of this Application. 42. The withdrawals made by the Solicitor from the trust account were in breach of s. 261(1)(b) of the Act as they failed to comply with the relevant procedures or requirements prescribed by the Act and the Regulations. P Local Court matter 43. The Applicant repeats paragraphs 18 to 34 of this Application. 44. The withdrawals made by the Solicitor from the trust account were in breach of s. 261(1)(b) of the Act as they failed to comply with the relevant procedures or requirements prescribed by the Act and the Regulations. W Family Law matter 45. The Solicitor was retained by J W in respect of a family law matter (W Family Law matter). 46. On 15 November 2012 the Solicitor withdrew $2,200.00 on account of costs and disbursements in the W Family Law matter [Sofiak #1 Ex. JS1 p. 21; Foord Ex. AMF-1 p. 162]. 47. The Solicitor had not rendered a tax invoice for the amount of $2,200.00 prior to the withdrawal made on 15 November 2012 [Sofiak #1 Ex. JS1 p. 5]. 48. As a result of the Solicitor's withdrawal on 15 November 2012, the W Family Law matter trust ledger was in debit by $2,232.75 [Sofiak #1 Ex. JS1 p. 21]. 49. The W Family Law matter trust ledger did not record the deficiency referred to in paragraph 1 above [Sofiak #1 Ex. JS1 p. 21]. 50. On 26 November 2012 the Solicitor withdrew $42.25 on account of costs and disbursements in the W Family Law matter [Sofiak #1 Ex. JS1 p. 21; Foord Ex. AMF-1 p. 162]. 51. The Solicitor had not rendered a tax invoice prior to the withdrawal of $42.25 made on 26 November 2012 [Sofiak #1 Ex. JS1 p. 5]. 52. As a result of the Solicitor's withdrawal on 26 November 2012, the W Family Law matter trust ledger was in debit by $2,375.00 [Sofiak #1 Ex. JS1 p. 21]. 53. The W Family Law matter trust ledger did not record the deficiency referred to in paragraph 52 above [Sofiak #1 Ex. JS1 p. 21]. 54. The withdrawals made by the Solicitor from the trust account were in breach of s. 261(1)(b) of the Act as they failed to comply with the relevant procedures or requirements prescribed by the Act and the Regulations. Ground 3: The Solicitor breached section 263 of the Legal Profession Act 2004 55. The Applicant repeats paragraph 2 of the Application. 56. The failure to keep trust records and trust ledgers constituted an irregularity in the Law Practice's trust accounts or trust ledger accounts. 57. The Solicitor was aware of the irregularities in the Law Practice's trust accounts or trust ledger accounts [Sofiak #1 Ex. JS1 pp. 3-4]. 58. The Solicitor did not give written notice of the irregularities to the Law Society Council. [Sofiak #2 [3(c)]] 59. The Solicitor's conduct is particularised in paragraphs 55 to 58 above breached s. 263 of the Act. Ground 4: The Solicitor breached section 264 of the Legal Profession Act 2004 60. The Applicant repeats paragraphs 2 and 3 of the Application. 61. By reason of the matters particularised in paragraphs 2 and 3 of the Application and the Solicitor's conduct as particularised: (a) in relation to the M matter in paragraphs 4 to 8 above; (b) in relation to the H Local Court matter in paragraphs 10 to 16 above; (c) in relation to the P Local Court matter in paragraphs 18 to 34 above; (d) in relation to the H Estate matter in paragraphs 36 to 39 above; and (e) in relation to the W Family Law matter in paragraphs 1 to 1 above; the Solicitor breached section 264 of the Act. Ground 5: The Solicitor caused a deficiency in the trust account and/or trust account ledgers. 62. By reason of the Solicitor's conduct as particularised: (a) in relation to the M matter in paragraphs 4 to 8 above; (b) in relation to the H Local Court matter in paragraphs 10 to 16 above; (c) in relation to the P Local Court matter in paragraphs 18 to 34 above; (d) in relation to the H Estate matter in paragraphs 36 to 39 above; and the Solicitor caused a deficiency in the trust account and/or trust account ledgers of the Law Practice. Ground 6: The Solicitor breached clause 88 of the Legal Profession Regulations 2005. 63. On 12 October 2011 the Law Practice entered into a costs agreement with Mr P (P Costs Agreement) [Foord #2 Annexure A]. 64. On 25 July 2012 the Law Practice entered into a costs agreement with Mr W (W Costs Agreement) [Foord #2 Annexure B]. 65. Clause I of both the P Costs Agreement and the W Costs Agreement provided [Foord #2 Annexure A p. 5 and Annexure B p. 12]: You authorise us to receive money directly into our trust account, any judgment or settlement money, or money received from any source in furtherance of your work, and to pay ourselves our costs, disbursements and expenses upon sending you our bill of costs requesting payment. 66. By reasons of the Solicitor's conduct as particularised: (a) in relation to the P Local Court matter in paragraphs 18 to 34, 63 and 65 above; and (b) in relation to the W Family Law matter in paragraphs 45 to 53 above; the Solicitor breached clause 88 of the Regulations. Ground 7: The Solicitor engaged in unethical conduct. 67. In or around early 2012, D T retained the Law Practice to act on her behalf in relation to a family law matter and sale of her home (the Property) [Taylor [1]]. 68. In or around December 2012, D T's family law matter was settled [Taylor [3]]. 69. Ms S had the day to day conduct of D T's matters until 18 January 2013 [Taylor [2]]. 70. Ms S resigned from the Law Practice on 18 January 2013 and the Solicitor took over conduct of the matter. 71. In late April 2013, D T was advised by the Solicitor that contracts had been exchanged on the Property and that settlement was due to occur on 5 June 2013 [Taylor [9]; Foord Ex. AMF-1 p. 37]. 72. D T moved out of the Property on 5 June 2013 [Taylor [10]]. 73. Settlement of the sale of the Property was delayed [Taylor [10]]. 74. The Solicitor told D T that settlement was delayed because [Taylor [11]]: (a) he was negotiating with the Commonwealth Bank regarding the release of the mortgage, as the Property was sold for less than the amount owing to the bank; and (b) D T's ex-husband was trying to get some of his superannuation released early to cover the arrears to the bank. 75. On 14 August 2013 D T sent a text message to the Solicitor regarding the settlement of the Property [Taylor [17] and Annexure A]. 76. The Solicitor replied to D T's text message stating [Taylor [17] and Annexure A]: I am waiting on the Commonwealth Bank to advise me when settlement can be booked in on the basis of the partial discharge. They will only settle if all arrears are paid in full. I have been trying and awaiting their consent. 77. The lawyers acting for D T's ex-husband were informed of the situation, contacted the Commonwealth Bank and arranged for settlement of the sale of the Property to occur on 20 August 2013 [T [18]]. 78. During the negotiations between the Solicitor and the Commonwealth Bank regarding the discharge of the mortgage and subsequent arrears, the Solicitor asked D T to fill out a form from the bank to ascertain her capacity to pay the arrears [Taylor [12]]. 79. D T completed the form indicating that her ex-husband's refusal to pay child support prevented her from being able to service the arrears [T [13]]. 80. The Solicitor told D T that she had to fill out another form and represent that she could afford $50.00 per week to service the arrears, otherwise settlement of the Property would not proceed [T [14]]. 81. D T resubmitted the form stating [T [15]]: (a) she was receiving weekly child support payments; (b) omitting liabilities; and (c) re-calculating her liabilities and expenses to represent that she could afford to pay $50.00 per week to service the arrears. 82. The Solicitor was aware that the information contained in the resubmitted form referred to in paragraph 81 was false. 83. The information included in the resubmitted form by D T was included: (a) in accordance with the Solicitor's advice; and (b) as a result of the Solicitor pressuring and/or unduly influencing D T to include such information [T [15]]. 84. The Solicitor arranged for D T and her ex-husband to sign a document allowing the purchasers of the Property to move in prior to settlement rent-free [T [20]]. 85. At the time the document referred to in paragraph 84 was presented to D T, the Solicitor represented that the document was required to have been signed the previous day [T [21]]. 86. The document was backdated by the Solicitor, and the Solicitor asked D T to "stay quiet about that" [T [22]]. Ground 8: The Solicitor failed to provide an itemised account. 87. Mr and Mrs H retained the Law Practice to prepare contract documents and find a legal representative to act on their behalf in Vanuatu in relation to the sale of drilling machines [H [1]]. 88. Mr H also retained the Law Practice in relation to the H Local Court matter as set out in paragraph 10 above [H [1]]. 89. The daughter of Mr and Mrs H (Ms K) also retained the Law Practice in relation to a family law matter [H [4]]. 90. Mr and Mrs H were asked to deposit $2,500.00 into a nominated bank account by the Solicitor [H [6] and Annexure C]. 91. The Applicant repeats paragraph 11 of this Application [H [6] and Annexure C]. 92. Between December 2012 and January 2013 Mrs H tried to contact the Law Practice several times by telephone and visited the offices of the Law Practice in person and found it closed [H [8] and [9]]. 93. In or around January 2013, Mrs H and the Solicitor had a telephone conversation during which Mrs H asked Solicitor to hand over their files and to release the money from the trust account [H [11]; Foord Ex. AMF-1 p. 53]. 94. On about 23 March 2013 Mrs H accompanied Ms K to the Solicitor's offices. Mrs H again asked the Solicitor to release their files and to return the amount of $2,500.00. The Solicitor told Mrs H that he would drop her files off at her house on his way from work the following evening [H [16]]. 95. The files were not delivered [H [19]]. 96. On or around 26 March 2013, Mrs H went to the Solicitor's offices to collect the files, obtain the amount of $2,500.00 paid into the Law Practice trust account, and obtain an itemised account [H [20]]. 97. The Solicitor told Mrs H that out of the amount of $2,500.00 they owed "all but $477.50" [H [21]]. 98. Mr and Mrs H have repeatedly asked the Solicitor for an itemised account [Foord Ex. AMF-1 pp. 54, 57 and 58]. 99. On 10 April 2013 Mrs H sent an email to the Solicitor requesting an itemised account [H [23] and Annexure D]. 100. On 29 April 2013 Mrs H sent an email to the Solicitor seeking an itemised account [H [24] and Annexure D]. 101. The Solicitor has failed to provide Mr and Mrs H with an itemised account [H [25]. Ground 9: The Solicitor behaved inappropriately towards A H. 102. The Applicant repeats paragraph 94 of this Application [H [16]]. 103. During the meeting with Mrs H on about 23 March 2013, the Solicitor [H [17] and [18]]: (a) informed Mrs H that he had testicular cancer; and (b) showed Mrs H a number of photographs on his mobile phone, specifically of his genitals. 1. These proceedings have had a lengthy period of gestation. The application in its original form was filed on 9 October 2015. The case management was considerably delayed by the fact that the Respondent said he had been kidnapped on 31 May 2015 and threatened with his life. He developed anxiety and depressive symptoms and was diagnosed by his treating general practitioner as suffering from post-traumatic stress syndrome. On a number of occasions he produced supporting medical opinion to the effect that he was not capable, by reason of his condition, of preparing to deal with the proceedings. The proceedings were adjourned on 6 April, 2016 for a period of four months to allow the Respondent to recover his health and to be in a position to comply with directions for the filing and serving of a Reply and any evidential material in support of his defence. On 3 August, 2016 he consented to orders that he file and serve this documentation by 26 October, 2016. He had not done so by 2 November, 2016 when further orders were made requiring him to file a Reply by 6 January, 2017 and affidavit material by 3 February 2017. He failed to do so and at a further directions hearing on 22 March, 2017 the directions were vacated and the matter listed for further directions on 3 May, 2017. Orders were again made giving the Respondent until 30 June 2017 to file the documentation which he sought to rely upon. 2. When the proceedings came on for hearing before us on 28 August 2017 the Respondent did not appear. We commenced to hear the proceedings in his absence, he having provided no indication about whether or not he would be attending and whether he would continue to resist the application. After receipt of an email communication, we permitted him to appear by telephone on 29 August 2017. The matter was again adjourned to allow the Respondent to file any documents in his possession that would tend to demonstrate that he was authorised by his clients to withdraw monies from his trust account, as he asserted. We made arrangements that the Respondent be provided with a CD of the proceedings which had occurred on 28 and 29 August. We indicated to him that even if he was unable to provide affidavit material, or a Reply document we would nevertheless permit him to produce to the Applicant documents which he said were in his possession and which would demonstrate that he was authorised to remove certain monies from his trust account. The Respondent did not do so, and yet further orders were made at a directions hearing on 16 October, 2017. The matter was fixed for hearing on 1 and 2 March 2018. 3. When the proceedings came on for hearing on 1 March 2018 the Respondent appeared personally for the first time, accompanied by his father. He said that he was still suffering badly from his post traumatic stress syndrome condition and was unable to apply himself to the task of assembling evidentiary material on his behalf. He asked that the matter be further adjourned to enable him to recover sufficiently so that he could defend the proceedings. He asserted that he was not guilty of the misconduct alleged against him, and that in some way the Applicant's trust account inspector and the solicitor formerly employed by him had individually conspired with another person with whom he had had some form of relationship, to concoct the allegations against him. 4. We indicated to the Respondent that we would be reluctant to grant any further adjournments, because he had not provided any definitive evidence concerning his current medical state and certainly was unable to provide any assistance about when he might be capable of participating in the proceedings. We note that it is almost 3 years since the original incident which has apparently caused his current condition. We gave the Respondent an opportunity to produce to the Applicant any emails which he said that he had stored in his mobile telephone which would indicate that he was authorised to withdraw monies from the trust account. During the course of an adjournment he produced some emails which he shared with the Applicant, but conceded that they were not really relevant to this aspect of the proceedings. 5. Importantly, the Respondent indicated to us that one of the primary reasons why, in his opinion, he was unable to overcome and deal with his post-traumatic stress syndrome was the fact that these proceedings were hanging over his head. Eventually, we gave the Respondent an opportunity to give sworn evidence about these proceedings, at the conclusion of which he indicated that without in any way wishing to be discourteous to the Tribunal, he would wish to withdraw from the hearing so that he would not be traumatised by traversing all of the allegations against him. We permitted this course to occur. 6. It is convenient at this stage to set out the substance of the Respondent's sworn evidence. He fervently believed that he was not guilty of the conduct alleged against him in the Amended Application. He said that some of the evidentiary material had been contrived as a result of collusion between certain persons, and he confirmed that by reason of his condition of post-traumatic stress syndrome he was unable to defend himself. 7. The hearing of the proceedings continued ex parte. The applicant's evidentiary material 1. The Applicant tendered into evidence the following documentation; 1. Two affidavits of Anne-Marie Foord, the Applicant's solicitor. The first affidavit included background information concerning the Respondent, the history of the several complaints made to the Applicant about the Respondent, the appointment of a Trust Accounts Inspector to investigate the Respondent's trust account records, and deliberations by the Professional Conduct Committee of the Applicant concerning the several complaints. Exhibited to this affidavit was a bundle of documents, to which reference will be made as necessary during the course of dealing with the several grounds of complaint contained in the Amended Application. The second affidavit annexed a copy of two costs agreements which are relevant to the proceedings, in a manner which we shall discuss. 2. An affidavit of James Sofiak who was a trust account investigator employed by the applicant. He was retained to investigate the trust account and other records of the Respondent and produced a number of reports which are exhibited to his affidavit, the contents of which will be referred to where relevant when dealing with the various grounds contained in the Amended Application. 3. An affidavit of Natasha Smith, a solicitor who was employed by the Respondent between 2 March, 2011 and 18 January, 2013. Ms Smith complained to the Applicant that the Respondent had been transferring costs from his trust account to his office account prior to work being completed on matters and had been overcharging. Annexed to this affidavit is a statement made by Ms Smith on 7 May, 2013. Included within that statement is an assertion that "To my knowledge no trust accounting records were ever kept. When Janelle Pryor commenced in about January or February 2012 I recall she gave a list of stationary that she needed to prepare trust account records but he never bought the stationary." (A letter from Ms Pryor contained in the Exhibit to the affidavit of Ms Foord indicates that she was employed as office manager in the Respondent's practice during the period February 2012 to March 2013). She also asserted that even though she had been shown copies of trust ledgers purporting to be those of the Respondent's practice she said that they did not exist whilst she worked there. She said; "I recognise the writing on the trust ledger as being Mr Connolly's writing. We never actually knew how much was held for whom in trust." She went on to say that rough records were kept by her on the inside cover of files to record the amounts received and tax invoices raised, and that the Respondent was constantly being told by his bookkeeper that he needed to keep trust account records. Ms Smith also specifically denied that she had ever told the Respondent that he was personally authorised to withdraw monies from the trust account. She was adamant that; "He would telephone me and tell me that he had taken money out of the trust account and that I had to raise a tax invoice on a particular matter and predate it. I would not do it. That is the reason I left. He would get my tax invoices and bump them up." Also included within her statement were details relating to a number of specified clients which, however, we need not deal with because we are able to consider each of the grounds of complaint by reference to documentary evidence in the nature of bank trust account records and trust account ledgers made available by the Respondent to Mr Sofiak, as well as certain tax invoices for costs. In that Ms Smith provided to the applicant a USB which contained copies of text messages between herself and the Respondent and was able to provide detailed information about matters handled for individual clients, the account given by her concerning the factual circumstances pertaining to these proceedings appears to be prima facie authentic, and there is no evidence which would cast doubt on the truthfulness of the information contained in her affidavit. 4. An affidavit of Mrs H (in relation to the H matter) stated that she and her husband had instructed the Respondent in a number of matters. She said that payments for the account for each visit to the Respondent's office were made in full, sometimes in cash. The following payments were made; 1. 4 May, 2012 $1320 2. 22 August, 2012 $1210 3. 19 September, 2012 $151.25 4. 3 October, 2012 $2500 She said that after the payment on 3 October 2012 she did not hear anything from anyone at the Respondent's office. It was submitted that this included non receipt of a receipt for the payment of $2500. During December 2012 she tried to contact the Respondent's office on several occasions, but her telephone calls were not answered and when she visited the office after Christmas 2012 she found it closed. She then made a number of attempts to contact the Respondent personally by mobile phone and he finally returned one of her calls in the week commencing 18 March 2013. Mrs H said that her daughter attended on the Respondent at his office on the afternoon of Sunday, 24 March 2013 to sign some documents. She was told by her daughter that the Respondent came out of his office with his fly undone, and then zipped it up in front of her. Later that afternoon Mrs H returned to the office and asked the Respondent to return the files and the $2500 which had been paid. She said that the Respondent commenced telling her of his current personal problems and mentioned that he was suffering from testicular cancer. He showed her three or four photographs of his testicles, one of which showed a scar from an operation. When Mrs H finally went to the Respondent's office on 26 March 2013 to collect the files, the refund of $2500 and to obtain an itemised account he wrote out a cheque in her favour for $477.50 and said that the balance was for his costs. She subsequently wrote seeking an itemised account which she has never received. 1. An affidavit of Ms T (in relation to the T matter) said that the Respondent's firm was engaged to represent her in a family law matter. She had originally dealt with Ms Smith but ascertained that she had left the firm and was told that the Respondent would be acting for her. She endeavoured to make a number of appointments with the Respondent but he did not return or answer her calls and messages and when she went to his offices she found that there was no one there and it was locked. She heard from him eventually, and he finalised the divorce proceedings. The Respondent was then retained to act in her interests on the sale of the family home. It appears that the mortgage on the property exceeded the sale price and it was necessary for the Respondent to negotiate with the bank to demonstrate that she had a capacity to pay off any residual monies owing to the bank. She was required by the Respondent to complete a form demonstrating her capacity to pay but the Respondent was not satisfied with the information which she provided in it. She said that she was told by the Respondent that she had to complete the form so that it showed that she had a capacity to pay $50 per week to service the residual debt even if this were untrue. She said that she felt that she was under duress from the Respondent in completing the form which contained false information. 2. In addition, Ms T said that the Respondent asked her to backdate a form which he said should have been signed the previous day. She lodged a complaint concerning the conduct of the Respondent with the Legal Services Commissioner. 1. There are a number of matters of a general nature which are established by the evidentiary material described above. These are; 1. The Respondent was born on 20 February 1980 and was admitted to practice as a solicitor on 16 February 2007. He was the sole principal of the law practice the subject of these proceedings for the period from 1 August 2009 to 1 October 2013. 2. Following a complaint, the Applicant retained Mr Sofiak to conduct an investigation of the Respondent's practice. When he attended on the Respondent on 12 March 2013 he asked him to produce all of his documentation with respect to his trust account. In his initial report, Mr Sofiak said that the only trust records that were produced were "bank statements; receipts (that did not fully comply with the legislation); deposit book (that did not fully comply with the legislation); and ledgers (that did not fully comply with the legislation). Although there have been many transactions since 2 April, 2012, when the first deposit was made, no cash book had been written up, nor bank reconciliations and trial balances prepared." 3. During the course of his initial investigations Mr Sofiak attempted to take out a trial balance of the ledgers to try to reconcile them with the bank statement balance as at 31 January, 2013. He said it was necessary for him to amend some of the ledgers and that he noted a deficiency in a number of them. He also noted that certain entries that had been made were incorrect when he attempted to match them to the trust bank statements. Those matters will be referred to when discussing the several grounds of complaint which are the subject of these proceedings. 4. Mr Sofiak gave the Respondent several opportunities to write up the trust records. Despite promising to do so, the Respondent never produced satisfactory trust account records to him. 5. After considering a number of reports from Mr Sofiak which included a great deal of corroborative documentation, the Applicant suspended the Respondent's practising certificate on 1 October, 2013 and appointed a Manager to his law practice. The standard of proof 1. In determining these proceedings we shall apply the rules of evidence, and the Briginshaw standard. We acknowledge that we need to be "comfortably satisfied" on the balance of probabilities that each of the grounds has been established. The grounds contained within the Amended Complaint Ground 1 1. This is based upon a breach of section 255 of the Legal Profession Act 2004 (NSW) ("the Act"). Before considering that provision, we set out for completeness the provisions of section 253, because this establishes the requirement to maintain a general trust account; 253 Maintenance of general trust account (1) A law practice that receives trust money to which this Part applies must maintain a general trust account in this jurisdiction. Maximum penalty: 100 penalty units. (2) A law practice that is required to maintain a general trust account in this jurisdiction must establish and maintain the account in accordance with the regulations. Maximum penalty: 100 penalty units. (3) Subsection (1) does not apply to a law practice in respect of any period during which the practice receives or holds only either or both of the following: (a) controlled money, (b) transit money received in a form other than cash. (4) Subject to any requirements of the regulations, a requirement of this section for a law practice to maintain, or establish and maintain, a general trust account in this jurisdiction does not prevent the practice from maintaining, or establishing and maintaining, more than one general trust account in this jurisdiction, whether during the same period or during different periods. (5) Without limiting the other provisions of this section, the regulations may provide that a law practice must not close a general trust account except as permitted by the regulations, either generally or in any prescribed circumstances. 1. Section 255 is as follows; 255 Holding, disbursing and accounting for trust money (1) A law practice must: (a) hold trust money deposited in a general trust account of the practice exclusively for the person on whose behalf it is received, and (b) disburse the trust money only in accordance with a direction given by the person. Maximum penalty: 50 penalty units. (2) Subsection (1) applies subject to an order of a court of competent jurisdiction or as authorised by law. (3) The law practice must account for the trust money as required by the regulations. Maximum penalty: 50 penalty units. 1. Paragraphs 2 and 3 are based on the combined evidence of Ms Smith and Mr Sofiak. It was the evidence of Ms Smith that, in fact, no trust account records were kept during the period 3 March 2011 to 18 January, 2013. We find paragraphs 2 and 3 proven. However, the assertion in paragraph 3 in that it refers to a failure "to account for trust money" is intended to mean a failure to keep trust account records as confirmed by counsel for the Applicant during the course of submissions. 2. With respect to the M matter which is the subject of paragraphs 4 to 9, we note that the particulars contain a narration of what occurred. In effect, according to the trust ledger, $2000 was taken from the account by EFT and $2539.25 was debited by cheque, both on the same day namely 15 October 2012. The bank statements for the trust account show that $2500 was debited by EFT on that date and the amount taken out by cheque was in fact $3539.25. These amounts exceeded the amount recorded on the trust ledger. Furthermore, there was no evidence that the client directed or authorised the disbursement of these monies. We have had regard to the corroborative evidence which has been inserted in the reproduction of the Amended Complaint earlier set out, and we find that all of these grounds have been established. The basis for paragraph 9 is the failure of the Respondent to have produced any form of authority for the amounts debited from the funds, and the inability of Mr Sofiak to locate any such authority in the Respondent's records. 3. Paragraphs 10 to 17 deal with the H Local Court matter. Our perusal of the corroborative material indicates that paragraph 12 should be read so that the reference in (a) to the debit of $2500 in the trust ledger is the same amount of the withdrawal referred to in (b), albeit that that withdrawal occurred in two transactions. Furthermore, the reference in paragraph 15 to the ledger should be a reference to the trust bank account. The narrative being self-explanatory, we find these matters proven. 4. Paragraphs 18 to 35 deal with the P Local Court matter. Again, the narrative is self-explanatory, and all of the corroborative material referred to establishes that narrative. In connection with paragraph 26, we note that Mr Sofiak asked that the Respondent produce all tax invoices to him. His failure to do so must constitute the basis for the presumption that no invoice was rendered. 5. Paragraphs 36 to 40 deal with the Estate matter. Again, the narrative which is corroborated by the evidentiary material is self-explanatory. We find these matters proven. Ground 2 1. This is based upon the provisions of section 261 (1) (b) of the Act, which is in the following terms; 261 Dealing with trust money: legal costs and unclaimed money (1) A law practice may do any of the following, in relation to trust money held in a general trust account or controlled money account of the practice for a person: (a) exercise a lien, including a general retaining lien, for the amount of legal costs reasonably due and owing by the person to the practice, (b) withdraw money for payment to the practice's account for legal costs owing to the practice if the relevant procedures or requirements prescribed by this Act and the regulations are complied with, (c) after deducting any legal costs properly owing to the practice, deal with the balance as unclaimed money under section 266 (Unclaimed money). (2) Subsection (1) applies despite any other provision of this Part but has effect subject to Part 3.2 (Costs disclosure and assessment). 1. The relevant Regulation which applies to section 261 (1) (b) is clause 88 of the Legal Profession Regulation 2005 (NSW) ('the Regulation') which is in the following terms; 88 Withdrawing trust money for legal costs—section 261 (1) (b) of the Act (1) This clause prescribes, for the purposes of section 261 (1) (b) of the Act, the procedure for the withdrawal of trust money held in a general trust account or controlled money account of a law practice for payment of legal costs owing to the practice by the person for whom the trust money was paid into the account. (2) The trust money may be withdrawn in accordance with the procedure set out in either subclause (3) or (4). (3) The law practice may withdraw the trust money: (a) if: (i) the money is withdrawn in accordance with a costs agreement that complies with the legislation under which it is made and that authorises the withdrawal, or (ii) the money is withdrawn in accordance with instructions that have been received by the practice and that authorise the withdrawal, or (iii) the money is owed to the practice by way of reimbursement of money already paid by the practice on behalf of the person, and (b) if, before effecting the withdrawal, the practice gives or sends to the person a request for payment, referring to the proposed withdrawal. (4) The law practice may withdraw the trust money: (a) if the practice has given the person a bill relating to the money, and (b) if: (i) the person has not objected to withdrawal of the money within 7 days after being given the bill, or (ii) the person has objected within 7 days after being given the bill but has not applied for a review of the legal costs under the Act within 60 days after being given the bill, or (iii) the money otherwise becomes legally payable. (5) Instructions mentioned in subclause (3) (a) (ii): (a) if given in writing, must be kept as a permanent record, or (b) if not given in writing, must be confirmed in writing either before, or not later than 5 working days after, the law practice effects the withdrawal and a copy must be kept as a permanent record. (6) For the purposes of subclause (3) (a) (iii), money is taken to have been paid by the law practice on behalf of the person when the relevant account of the practice has been debited. 1. With respect to the H Local Court matter, referred to in paragraphs 41 and 42, on the evidence no tax invoice had been rendered prior to the withdrawal of the sum of $2500. The only tax invoice is dated 11 days later, namely 2 November 2012 and was for the sum of $2195. There was no costs agreement in the file. There is no other evidence which would demonstrate that the Respondent was authorised in some manner to disburse these monies from the trust account. Accordingly, we find that paragraph 42 has been made out. 2. With respect to the P Local Court matter, the costs agreement entered into by the client on 12 October 2011 provided that payment of costs, disbursements and expenses could only be made by the Respondent "upon sending you our bill of costs requesting payment." There is no evidence that any tax invoice was issued for the three amounts withdrawn, nor is there any evidence of any instructions being received authorising the withdrawal in any other manner contemplated by clause 88. Accordingly, we find that paragraph 44 has been made out. 3. With respect to W the Respondent issued a costs agreement dated 25 July 2012 which is in evidence. This provided that the Respondent was not entitled to deduct costs, disbursements and expenses without sending a bill of costs requesting payment. On the evidence, withdrawals were made from the trust account on 15 and 26 November 2012. There is no evidence of the issue of any tax invoice, nor of any direction or authority to deduct those monies from the trust account. Accordingly, we find that paragraph 54 has been made out. Ground 3 1. This ground relies on a breach of section 263 of the Act which is in the following terms; 263 Reporting certain irregularities and suspected irregularities (1) As soon as practicable after a legal practitioner associate of a law practice becomes aware that there is an irregularity in any of the practice's trust accounts or trust ledger accounts, the associate must give written notice of the irregularity to: (a) the Law Society Council, and (b) if a corresponding authority is responsible for the regulation of the accounts concerned—the corresponding authority. Maximum penalty: 50 penalty units. (2) If an Australian legal practitioner believes on reasonable grounds that there is an irregularity in connection with the receipt, recording or disbursement of any trust money received by a law practice of which the practitioner is not a legal practitioner associate, the practitioner must, as soon as practicable after forming the belief, give written notice of it to: (a) the Law Society Council, and (b) if a corresponding authority is responsible for the regulation of the accounts relating to the trust money concerned—the corresponding authority. Maximum penalty: 50 penalty units. (3) An Australian legal practitioner is not liable for any loss or damage suffered by another person as a result of the practitioner's compliance with subsection (1) or (2). 1. There is evidence that the Respondent failed to keep trust records and accounts as required by the Act, and in the course of conversation with Mr Sofiak he acknowledged this. There is evidence that this failure had extended for some time. There is no evidence of any notification having been made by the Respondent to the Applicant as required by section 263 of the Act, and we find paragraph 59 established Ground 4 1. This ground relies on a breach of section 264 of the Act which is in the following terms; 264 Keeping trust records (1) A law practice must keep in permanent form trust records in relation to trust money received by the practice. Maximum penalty: 100 penalty units. (2) The law practice must keep the trust records: (a) in accordance with the regulations, and (b) in a way that at all times discloses the true position in relation to trust money received for or on behalf of any person, and (c) in a way that enables the trust records to be conveniently and properly investigated or externally examined, and (d) for a period determined in accordance with the regulations. Maximum penalty: 100 penalty units. 1. It is abundantly clear from the evidentiary matters which we have earlier set out and the findings which we have made with respect to the state, or lack thereof, of the Respondent's trust records that he is in breach of section 264 in the manner particularised in the paragraphs which comprise this ground. Accordingly, we find paragraph 61 proven. Ground 5 1. There is evidence provided by Mr Sofiak by reference to such trust account records as were produced by the Respondent and by reference to the trust account Bank statements that the following deficiencies in the trust account occurred namely; 1. Re the M matter $263.25 from 22 October to 21 November 2012 and $658.25 from 21 November, 2012 to 31 January, 2013. 2. Re the H matter $440 from 26 November,2012 3. Re the P matter $165.29 October 2012 4. Re the H matter $42 from 7 January to 14 March 2013 1. It follows that this ground has been made out, and we so find. Ground 6 1. This ground relies on a breach of Regulation 88. We have previously discussed the provisions of that regulation and have made findings that it has been breached as alleged in this ground. For reasons already advanced in discussing the relevant evidence concerning these matters, we find paragraph 66 proven. Ground 7 1. Each of the matters set out as constituting the basis for this ground are proven by the contents of the affidavits of H and T which we have earlier summarised. There is no reason why their evidence should not be accepted at face value. We find that all of the factual matters referred to in each of the paragraphs constituting this ground have been proven. 2. There can be no controversy in stating that solicitors are required to act ethically. Such a requirement is one of the integral pillars upon which the due administration of the law is based. We trust that it is unnecessary to demonstrate why the conduct complained of breaches this requirement, and why such conduct impacts adversely on the standing and integrity of the profession in the eyes of the public. We find that by reason of the matters referred to in the several paragraphs in this ground that the Respondent has engaged in unethical conduct. Ground 8 1. It is uncontroversial that by reason of the provisions of section 255(3) of the Act which we have previously set out that the Respondent was required to provide an itemised account to H, and, as attested to in her affidavit, he failed to do so. 2. In the absence of any evidence of any kind which would suggest that an itemised account was provided to H, we find this ground proven. Ground 9 1. This ground is based on the evidence provided in the affidavit of H which we have earlier set out. We are of the opinion that showing her photographs of his testicles constituted behaviour which was inappropriate for a solicitor to engage in during the course of a meeting with a client. The position may have been different if there was some concurrent personal or social relationship between the Respondent and this client, but it is obvious from her affidavit that there was no such relationship. 2. Whilst telling the client that he had testicular cancer was something which one would not ordinarily expect a solicitor to share with a client, perhaps this fact was mentioned by the Respondent in order to gain some sympathy from an obviously upset client. We do not characterise the sharing of this particular information as being so "inappropriate" as to constitute any form of misconduct under the Act either alone or in combination with any other misconduct. 3. Accordingly, we find paragraph 103 (b) proven and that it constitutes inappropriate behaviour. Professional misconduct 1. It is now necessary to consider whether the matters which we have found proven constitute either severally or, in the aggregate, professional misconduct. 2. Professional misconduct is defined in the Act as follows; 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. It is also necessary to take into account the provisions of section 498 of the Act which are in the following terms; 498 Conduct capable of being unsatisfactory professional conduct or professional misconduct (1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct: (a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules, (b) charging of excessive legal costs in connection with the practice of law, (c) conduct in respect of which there is a conviction for: (i) a serious offence, or (ii) a tax offence, or (iii) an offence involving dishonesty, (d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration, (e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth, (f) conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice), (g) conduct of an Australian legal practitioner in failing to comply with an order of the Disciplinary Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law), (h) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law. (2) Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention. 1. As is obvious from the recitation of the factual circumstances upon which these proceedings are based, the Respondent has clearly been in breach of a number of the provisions of the Act in the manner which we have described. Importantly, these matters relate to trust account obligations. It is an inherent and integral part of the practice of law as a solicitor that monies received from or on behalf of a client must be held in trust until the solicitor is entitled to disburse them in accordance with the provisions of the Act and the Regulations. If trust account obligations are breached, this destroys the trust which is inherent in any client-solicitor relationship, and detracts from the integrity and professionalism which the public is entitled to expect from those who are privileged by admission to practice law. We regard the conduct of the Respondent in having failed to meet his trust account obligations in a fundamental and continuing manner as being of a most serious kind. 2. Whether or not misconduct of a solicitor is to be characterised as unsatisfactory professional conduct or professional misconduct is a question of evaluation having regard to all of the relevant circumstances. It necessarily involves a value judgement, to be made objectively, eschewing all unnecessarily intrusive emotion into a consideration of its relative failure to comply with the expected standards pertaining to a solicitor. 3. It seems to us that the mere recitation of the factual matters which are set out in some detail in the narrative found in the several grounds of complaint accompanied by our findings that these grounds have, save for one minor exception, been established is sufficient to justify a conclusion that the misconduct of the Respondent in the aggregate is of a most serious kind and must be characterised as professional misconduct for the purposes of the Act and thus for the purposes of these proceedings. We have preferred to have regard to all of the conduct of the Respondent in the aggregate because there are a number of instances of the same type of conduct. 4. We agree with the submission by counsel for the Applicant that the conduct of the Respondent "constitutes a substantial and consistent failure to reach or maintain a reasonable standard of competence and diligence." We agree that the trust account failures should be characterised as disgraceful and dishonourable. 5. We can see no further point in elaborating on this matter. The Respondent is clearly guilty of professional misconduct for the purpose of the Act, and we so find. Protective orders 1. There is a range of protective orders available to the Tribunal consequent upon a finding of professional misconduct. They are set out in section 562, the relevant portion of which for our purposes is as follows; 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, 1. As is obvious, and well-established, the purpose of orders made consequent upon a finding of professional and other misconduct is to protect the public. There are essentially four matters to be considered when formulating an appropriate protective order. These are the protection of the public from the misconduct of the practitioner, the deterrent effect that any order will have on other legal practitioners, the deterrent effect that any order will have on the practitioner if he or she is permitted to practice in the future, and the importance of upholding the dignity, respect and integrity of the legal profession in the eyes of the public so as to enhance public confidence in the work of the profession. 2. The Applicant sought an order that consequent upon our finding of professional misconduct the Respondent should be removed from the Roll of Local Lawyers. There is authority that even where there has been a finding of professional misconduct, the cancellation of registration of a legal practitioner should only be effected if the practitioner is probably permanently unfit to practise, and in all other cases suspension would be warranted as the next most serious protective order. 3. We observe that the misconduct of the Respondent with which we are dealing occurred prior to the incident which he says caused his post-traumatic stress syndrome. We have no scientific evidence of any kind about the Respondent's pre-incident personality, and what might have led him to engage in a course of misconduct of a similar kind over a period of time. The only medical evidence available to us, which is sparse, is that the Respondent now suffers from post-traumatic stress syndrome consequent upon the 2015 incident, and that he has clearly not recovered from it. 4. We do have available to us, some material which predates the 2015 incident and which consists of interchanges between the Respondent and Mr Sofiak, other representatives of the Applicant, Ms Smith, clients H and T, and others who have given statements to the Applicant. 5. An oral statement provided by the office manager, Janelle Pryor to Mr Sofiak which is reproduced in his report indicates that the Respondent was habitually anxious to transfer monies out of the trust account and was reluctant to wait for the three days for cheques to clear. She corroborated the concern which Ms Smith said in her statement that she had expressed to the Respondent about taking monies out of the trust account without an account having been rendered to the client. Indeed, Ms Smith forwarded to the Applicant copies of text messages between herself and the Respondent. These have been reproduced as part of the Exhibit to the first affidavit of Ms Foord. One text from the Respondent said "can you make sure that cheque you received is deposited into" and then gave details of the trust account, "Tomorrow without fail (otherwise I won't have clear funds for wages next week)." There are other texts exhorting Ms Smith to ensure that cheques received are banked straightaway, asking whether money can be transferred and that invoices be created for "time reading file, consultation, letter etc" and another "Let me know the invoice total so I can transfer from trust to office account. Balance is 3 dollars in office account so urgently required." Ms Smith said that the reference to the invoice for "time reading file……" was to enable him to claim for having read a file which was being handled by her. 6. As best as we can summarise the circumstances pertaining to the Respondent at the time that the misconduct which we have found occurred, he seems to have been continually scrambling for funds and was prepared to "bend the rules" to enable him to acquire monies to pay overheads. Furthermore, he was operating in an inefficient and ineffective manner, and he was certainly not servicing the clients about whom we have details in an appropriate manner. This must, at the least, reflect a certain incapacity to conduct a law practice, especially as a principal. And of course, whatever deficiencies or inadequacies caused or contributed to this misconduct, the circumstances of the Respondent have been exacerbated by his post-traumatic stress syndrome. 7. Whilst it is quite clear without recourse to medical or behavioural science that the Respondent is presently incapable of practising law and is unfit to practise for that reason, it is almost impossible to say that his incapacity is probably permanent. Perhaps those qualified in medical or behavioural science might encounter the same difficulty. We are, however, comfortable in concluding that the present unfitness to practice as a solicitor from which the Respondent currently suffers is likely to continue for an indefinite period, being a period of longer rather than shorter duration. This conclusion is reinforced by the fact that the Respondent still shows no insight into his misconduct because he has persisted, even during the course of his evidence on the last day of the hearing on 1 March 2018, in asserting that his problems arose because others with mal intent towards him had connived to create false accusations. The nature of the evidence before us, even allowing for the protestations of the Respondent as to his innocence does not support in any way his allegation of a conspiracy. The assertions of Ms Smith are corroborated by text messages between her and the Respondent, Ms Pryor freely volunteered information to Mr Sofiak, there is no reason to suggest that Mr Sofiak acted unprofessionally in any manner, nor is there any reason to doubt the material provided in the statements by T and H. This unjustified persistence in blaming others for his troubles not only indicates that the Respondent is in denial, but is indicative that there is no reason to believe that he might change his behaviour in the future even if and when he overcomes his unfortunate condition of post-traumatic stress syndrome. 8. In all the circumstances we conclude that given the nature and extent of his misconduct, and the likelihood that his obvious present unfitness to practice law will continue indefinitely, that the appropriate protective order is that his name be removed from the Roll of Local Lawyers. Costs 1. This is a costs jurisdiction. The Applicant sought a costs order in its favour. Clause 23(1) of Schedule 5 of the Civil and Administrative Tribunal Act is in the following terms; 23 Costs consequent of adverse conduct findings (1) Despite section 60 of this Act, the Tribunal must make orders requiring a respondent lawyer whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist. 1. There are no exceptional circumstances requiring that the Applicant pay its own costs. Accordingly, there is no valid reason why such an order should not be made, and we shall do so accordingly. We would add that the principal concern of the Respondent when considering the prospect of an adverse costs order was his ability to pay costs because his current income appears to consist of a disability pension. We note that the Applicant habitually makes arrangements for the payment of costs commensurate with the financial circumstances of the practitioner. Orders 1. We make the following orders; 1. The name of Steven John Connolly is removed from the Roll of Local Lawyers 2. The Respondent is to pay the costs of the Applicant 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: 23 March 2018