Briginshaw v Briginshaw 60 CLR 336

NCAT Occupational|2015-04-21|Before: Spender AJ, Latham J

Solicitors: NW Aussel (Applicants) LW Pierotti (Law Society) File Number(s): 1420327

Introduction

This is an application by Mr Aussel and Mr Murphy for approval of the appointment of Mr McCaffery as a lay associate. It follows an earlier decision of the Administrative Decisions Tribunal in Aussel re McCaffery [2013] NSWADT 102 (the first proceedings) which approved Mr McCaffery's employment by Mr Aussel on conditions. For the reasons which follow and subject to the conditions which are set out below the application is approved.

Background to the Application

A history of relevant events is set out in the first proceedings at [3] - [4] as follows: "3. Mr McCaffery was admitted as a Solicitor of the Supreme Court of New South Wales in 1986, and, in 1993, was admitted to the New South Wales Bar. Between 8 August 2002 and 11 December 2003 Mr McCaffery practised as a barrister but did not at that time hold a practising certificate. On 17 December 2004 the New South Wales Court of Appeal declared that Mr McCaffery was guilty of professional misconduct in so practising and ordered that his name be removed from the Roll of Legal Practitioners of the Supreme Court of New South Wales. 4. Further, on 16 June 2005, Latham J found Mr McCaffery guilty of 29 counts of contempt of court in that he acted as a barrister without holding a current practising certificate in contravention of s48B of the Legal Profession Act 1987. He was convicted on all counts. On 30 November 2005, Mr McCaffery received a custodial sentence in respect of each charge, each sentence being suspended, upon entering bonds under s.12 of the Crimes (Sentencing Procedure) Act 1999."

Preliminary matters

At the commencement of the hearing Mr Pierotti on behalf of the Law Society advised the Tribunal that he was instructed to appear to provide assistance to the Tribunal. The Law Society did not seek to be joined as a party. The Law Society did not oppose the application subject to the question of the conditions to be imposed.
It was noted that the Presiding Member had been a member of the panel of the Administrative Decisions Tribunal which determined the first proceedings. Mr Stewart for the Applicants and Mr Pierotti for the Law Society advised the Tribunal that their clients raised no issue with the matter proceeding before the current panel as constituted.

Interim Order

By Order on 4 March 2015 upon the oral application of Mr McCaffery an order was made that he be joined as a party to the proceedings.

The Application

The Application was filed on 22 October 2014. It sought the following orders: "1. Order approving the employment of Nicholas Luke McCaffery, being a person who has been convicted of a serious offence, as a lay associate within the meaning of section 7(2)(b) of the Act, by Nicholas William Aussel, Solicitor, and Thomas Arthur Murphy, Solicitor (jointly or severally) be approved pursuant to Section 17(3)(c) Legal Profession Act 2004, subject to the conditions set out in the attached Schedule "A". 2. Leave to seek variation of the Order (including conditions thereto) on 28 days' notice, to be provided to the Law Society of NSW."
Schedule "A" to the application set out the proposed conditions as follows: "SCHEDULE "A" CONDITIONS i. Mr McCaffery is to be supervised by either or both of the Applicants [sic] ("the Solicitor") holding a current Practising Certificate at all times; 1. ii. Mr McCaffery is not to have access to or be signatory to any account conducted by the Solicitor with any financial institution in the course of his practice; 2. iii. No document, letter or any other written material drafted by Mr McCaffery is to be dispatched from the Solicitor's office without prior approval of the Solicitor; 3. iv. No document or written communication of any nature is to leave the Solicitor's practice under the name or signature of Mr McCaffery without the prior approval of the Solicitor; 4. [There was no condition v.] 5. vi. Mr McCaffery is not to hold himself out to represent himself as being a qualified legal practitioner but rather is to inform those persons with whom he has contact in the course of his employment by the Solicitor that he is in fact a clerk of the Solicitor and is not authorised and cannot tender to any such person any legal advice; 6. vii. Mr McCaffery is not to tender to any person any legal advice; 7. viii. Mr McCaffery is not to have a business card or any other form of identification identifying him in any capacity with the Solicitor's practice without prior approval of the Law Society of NSW; 8. ix. Mr McCaffery is not to respond to any mail, email transmissions or other forms of written communication received in the Solicitor's office other than is approved by the Solicitor. 9. x. The remuneration of Mr McCaffery is to be by way of a stipulated salary or hourly rate, and is not to include or be calculated by reference to income received or success in any matter; 10. xi. For a period of 12 months immediately following the commencement of the Solicitor's employment of Mr McCaffery, Mr McCaffery is to attend, on at least a six monthly basis, on Dr Armstrong and request that Dr Armstrong inform the Manager, Professional Standards Department of the Law Society of NSW in writing that Mr McCaffery has so attended and as to Mr McCaffery's fitness to continue with his employment with the Solicitor; 11. xii. Prior to the commencement of any employment by Mr Murphy or by the Applicants acting jointly of Mr McCaffery, both Mr Murphy and Mr McCaffery are to inform the Tribunal and the Law Society of NSW, each in writing, that they individually understand these conditions and each individually gives an undertaking that each will, as far as the conditions relate to them, abide by those conditions; in each case such to be in writing, signed by Mr Murphy and Mr McCaffery; and 12. xiii. Upon Mr McCaffery ceasing to be employed by either or both Applicants, the Solicitor shall advise the Manager, Professional Standards Department of the Law Society of NSW, in writing of such cessation and provide a final report in accordance with the terms of condition (xii) above."
The grounds of the application are set out in the following terms: "Pursuant to orders made by the Administrative Decisions Tribunal and its Legal Services Division in the matter of Aussel re McCaffery [2013] NSWADT 102 on 17 April 2013, Nicholas Luke McCaffery has been continuously employed by the First Applicant as a lay associate subject to conditions specified in the Orders since 17 April 2013. The First Applicant is currently engaged in negotiations with the Second Applicant with a view to a merger or other association of the two practices. It is necessary, if Mr McCaffery's employment is to remain uninterrupted (as to practical considerations regarding income etc.), that the Second Applicant seeks approval to employ Mr McCaffery under Section 17(3)(c) of the Act. It is also timely to seek appropriate variation of the conditions constraining the Tribunal's Order of 17 April 2013, given satisfactory performance by Mr McCaffery of his duties as a lay associate and Mr McCaffery's progress evident in the Reports of Dr M S Armstrong dated 1.7.13, 24.9.13, 5.12,13, 14.3.14 and 15.6.14."

Evidence

The Applicants tendered and there were admitted into evidence the following affidavits: 1. Nicholas Luke McCaffery 21 October 2014; 2. Nicholas Luke McCaffery 26 February 2015; 3. Nicholas Luke McCaffery 20 April 2015; 4. Nicholas William Aussel 21 October 2014; 5. Nicholas William Aussel 26 February 2015; 6. Nicholas William Aussel 20 April 2015; 7. Thomas Arthur Murphy 22 October 2014; 8. Thomas Arthur Murphy 25 February 2015;

Relevant legislation

The Legal Profession Uniform Law (NSW) No 16a (the Law) commenced on 1 July 2015. This was after the proceedings were heard on 21 April 2015 and we had reserved our decision.
By s 167 of the Legal Profession Uniform Law Application Act, 2014 (which section is now repealed), the Legal Profession Act, 2004 was repealed.
The Legal Profession Act, 2004 NSW had provided relevantly: "7 Terms relating to associates and principals of law practices (1) For the purposes of this Act, an "associate" of a law practice is: (a) an Australian legal practitioner who is: … (vi) an employee of, or consultant to, the law practice, or (b) an agent of the law practice who is not an Australian legal practitioner, …" "17 Associates who are disqualified or convicted persons (1) A law practice must not have a lay associate whom any principal or legal practitioner associate of the law practice knows to be: … (b) a person who has been convicted of a serious offence, unless the associate is approved by the relevant authority under subsection (3)." (2) A contravention by a law practice of subsection (1) is capable of being unsatisfactory professional conduct or professional misconduct on the part of a principal or legal practitioner associate of the law practice involved in the contravention. (3) The "relevant authority" to approve a person for the purposes of subsection (1) is: … (c) in the case of a person who has been convicted of a serious offence - the Tribunal. … (5) An approval under this section may be subject to specified conditions. … (9) In this section: "lay associate" of a law practice has the same meaning as in section 7 (Terms relating to associates and principals of law practices), and includes a consultant to the law practice (however described) who: (a) is not an Australian legal practitioner, and (b) provides legal or related services to the law practice, other than services of a kind prescribed by the regulations."
The savings and transitional provisions are contained in Schedule 4 to the Law. Clause 1 provides: "Old Legislation means the statutory provisions repealed by the Legal Profession Uniform Law Act of this jurisdiction."
Clause 2 of Schedule 4 to the Law relevantly provides: "2 General Savings and Transitional Provision … (2) If anything of a kind required or permitted to be done under a provision of this Law as applied in this jurisdiction was done under a corresponding provision of the old legislation and still had effect immediately before the commencement day, the thing continues in effect on or after that day as if - (a) this Law as applied in this jurisdiction had been enforced when it was done; and (b) it had been done under this Law as applied in this jurisdiction; … (4) Without limited subclauses (2) and (3), if a provision of the old legislation that corresponds to a provision of this Law as applied in this jurisdiction would, but for its repeal by the Legal Profession Uniform Law Act of this jurisdiction, have applied in relation to anything done or being done or in existence before the commencement day, the provision of this Law applies in relation to that thing, and so applies with any necessary adaptions."
Section 121 of the Law provides: "121 Contravention by law practice-disqualified or convicted person as lay associate (1) A law practice contravenes this subsection if the law practice has a lay associate whom any principal or other legal practitioner associate of the law practice knows to be- (a) a disqualified person; or (b) a person who has been convicted of a serious offence- unless the lay associate is approved by the designated local regulatory authority under subsection (2). Penalty: 100 penalty units. (2) The designated local regulatory authority may, on application, approve a person as a lay associate for the purposes of this section. An approval may be given generally, or for a particular position or category of positions with a particular law practice, or for a particular category of positions with any law practice. (3) In dealing with an application for approval of a person as a lay associate, the designated local regulatory authority may consider any relevant matters and must consider the following matters so far as they are relevant- (a) the nature and circumstances of the person's disqualification or conviction; (b) the requirements and responsibilities of the arrangement or kind of arrangement under which the person is seeking to be employed or otherwise involved; (c) the degree of connection between the person's disqualification or conviction and the requirements and responsibilities of the arrangement or kind of arrangement. (4) An approval may be granted unconditionally or subject to specified conditions. Note: The designated local regulatory authority could consider a person's application for approval as a lay associate at the same time as it decides not to grant or renew, or decides to suspend or cancel, the person's Australian practising certificate.
Section 122 provides: "122 Contravention by disqualified person (1) A person who- (a) is a disqualified person; or (b) has been convicted of a serious offence- must not seek to become a lay associate of a law practice unless the person first informs the law practice of the disqualification or conviction. Civil penalty: 100 penalty units. (2) Proceedings for a pecuniary penalty order for a contravention of subsection (1) may only be brought within 6 months after discovery of the contravention by the law practice. (3) Subsection (1) does not apply in circumstances specified in the Uniform Rules for the purposes of this section."
Section 6 of the Law defines Designated Local Regulatory Authority as: "A person or body specified or described in the Law of this jurisdiction for the purposes of a provision, or part of a provision, of this Law in which the term is used."
Section 11 of the Legal Profession Uniform Law Application Act, 2014 provides: "11 Designation of local authorities and tribunals (1) A person or body specified in Column 2 of Table 1 is the designated local regulatory authority for the purposes of a provision of the Legal Profession Uniform Law (NSW) specified in Column 1 of that Table opposite that person or body."
Column 2 of Table 1 provides that the designated local regulatory authority in respect of an application under s 121 in the case of a person who committed a serious offence is the Tribunal.
While s 121 of the Law also prohibits the employment of a lay associate whom any principal or other legal practitioner associate of the law practice knows to be a person who has been convicted of a serious offence without approval by a designated local regulatory authority it is not in identical terms to s 17(2) of the Legal Profession Act. Section 121 of the Law does not provide that a contravention of the prohibition is capable of being unsatisfactory professional conduct or professional misconduct on the part of the principal legal practitioner involved in the contravention.
Both sections provide that the relevant authority might give approval. In the case of a serious offence the relevant authority for both is the Tribunal. However, s 121(2) of the Law additionally provides that approval may be given generally or for a particular position or category of positions with a particular law practice, or for a particular category of positions with any law practice. There was no corresponding provision in s 17 of the Legal Profession Act.
Both sections provide that approval may be subject to specified conditions. Section 17(6) of the Legal Profession Act which prohibited a disqualified person or a person convicted of a serious offence from seeking to become a lay associate without informing the law practice of the disqualification or conviction is taken up in s 122 of the Law.
The Law does introduce s 121(3) which provides that certain matters so far as they are relevant must be considered in dealing with an application for approval. These are; the nature and circumstances of the person's disqualification or convictions; the requirements and responsibilities of the arrangement or kind of arrangement under which the person is seeking to be employed or otherwise involved and the degree of connection between the person's disqualification or conviction and the requirements and responsibilities of the arrangement or kind of arrangement. There was no similar provision in s 17 of the Legal Profession Act.
Notwithstanding these differences we have come to the view that s 17 of the old legislation regulating the approval of a lay associate who is disqualified or has been convicted of a serious offence generally corresponds to s 121 of the Law which now regulates the same matter. Accordingly, clause 2(4) of Schedule 4 to the Legal Profession Uniform Law Application Act operates with the effect that s 121 of the Law applies in relation to this application with any necessary adaptions, s 17 of the Legal Profession Act having applied in relation to the application before the commencement day.
Our view is supported by Cl 16 of Schedule 4 of the Law which provides: "16 Approval of lay associates (i) This clause applies to an approval of a lay associate for the purposes of a provision of the old legislation that prohibits illegal practitioner or law practice from having a lay associate who the practitioner or practice knows to be - (a) a disqualified person (within the meaning of the provision); or (b) a person who has been found guilty of a relevant offence (within the meaning of the provision). (2) An approval to which this clause applies and that was in force under the old legislation immediately before the commencement day is given, on and after that day, is taken, on and after that day, to be an approval of the person to whom the approval relates under section 121 of this Law."
This provision concerns an approval under s 17 of the Legal Profession Act. The approval with conditions given by the Administrative Decisions Tribunal in the first proceedings is from 1 July 2015 taken to be an approval under s 121 of the Law.
We have accordingly proceeded to consider the application as if it has been made under s 121 of the Law. In doing so, we have considered the matters identified in s 121(3). In our view this will cause the Applicants no injustice. With the exception of the requirement of s 121(3) of the Law, the relevant considerations and authorities remain unchanged. In line with those authorities to which we shall refer, the matters now detailed in s 121(3) would have formed part of our consideration had the application proceeded under the Legal Professional Act and the conclusions reached and our ultimate decision been no different.

Relevant evidence

Mr Aussel did not give direct evidence concerning Mr McCaffery's conduct since the imposition of the conditions in April 2013. He did annex to his affidavit of 26 February 2015 a copy of a letter to the Law Society dated December 19, 2014 in which he wrote: "Mr McCaffery has been employed since April 2013 with no difficulties from a professional or staff point of view as is covered in my earlier letters. We believe that in all the circumstances Mr McCaffery is worthy of a degree of trust and it is reasonable to have NCAT review the supervisory requirements expeditiously."
By letter of 18 December 2014 to the Law Society annexed to his affidavit Mr Aussel had previously written: "I refer to previous communications and write to provide an update. There is nothing of substance that needs particular comment to the Society. Mr McCaffery is preforming satisfactorily as a clerk and is still working under my supervision. I note he is receiving treatment from Dr Armstrong."
In response to an inquiry from the Law Society Mr Aussel wrote on 22 January 2015: "The variation of employment conditions is required to permit the continued employment of Mr Nicholas McCaffery in a different practice structure. As to the more permissive provisions in the proposal we note: 1. Medical evidence provided to the Society points to significant progress in respect of his condition relevant to his conduct, the subject of disciplinary action. 2. I have submitted regular reports to the Society as to the rehabilitation and work habits of Mr McCaffery. Such indicates that his employment conditions can be relaxed appropriately without any danger to the public. 3. Less onerous conditions are desirous and are a necessary step to permit Mr McCaffery to gradually transition eventually to full rehabilitation …"
As to compliance with the existing conditions, Mr Aussel also gave evidence that to the best of his knowledge Mr McCaffery had used the card key for entrance to and exit from his premises on a limited basis and that these are recorded in the security system.
Certain other correspondence was in evidence from Mr Aussel to the Law Society confirming Mr McCaffery's attention to detail, there being no problems in office procedure and punctuality and that Mr McCaffery had performed as a positive asset to Mr Aussel's practice with nothing negative to report.
Mr Aussel did note by letter dated 11 July 2013 that Mr McCaffery required assistance in prioritising duties and the efficient allocation of time. In his letter of 17 October 2013, Mr Aussel said that Mr McCaffery's behaviour was appropriate, that he continued to make progress and his work standards were high although he still needed direction on priorities and self-motivation.
In his letter of 17 January 2014, Mr Aussel said that Mr McCaffery continued to improve although he still needed some assistance in relation to organisation of work, priorities and timetabling. There was no behavioural issue.
In his letter of 16 April 2014, Mr Aussel said that Mr McCaffery is consistently improving in office practices and still requires some direction in relation to priorities and timetabling. He said that he has no substantive negative issues of concern to raise or report.
In his letter dated 19 March 2015, Mr Aussel said: "The situation remains essentially the same with Mr McCaffery gradually becoming a more productive member of the team."
There was also in evidence correspondence to the Law Society from Dr Michael Armstrong dated 1 July 2013, 24 September 2013, 5 December 2013, 14 March 2014, 15 June 2014 and 12 September 2014 in compliance with the condition which had been imposed in the first proceedings. Dr Armstrong's letterhead discloses that he is a Fellow of the Royal College of Psychiatrists. In each of these letters Dr Armstrong expresses an opinion that Mr McCaffery showed no signs of clinical depression and that there had been no history of such depression since he had last seen Mr McCaffery. He considered that Mr McCaffery was in every respect fit to continue his employment as a legal clerk with Mr Aussel. In some of the reports Dr Armstrong speaks of Mr McCaffery's good relationships and regular contact with his wife and daughter and his living in as a carer with his elderly mother. He also says that Mr McCaffery continues to maintain a well- balanced and productive way of life including by conducting his own private research.
In his letter dated 15 December 2014, Dr Armstrong noted that although the condition requiring Mr McCaffery to consult him had expired Mr McCaffery continued to attend his rooms for regular review and had asked Dr Armstrong to forward regular reports to the Law Society. Dr Armstrong wrote that Mr McCaffery was last seen by him on 5 December 2014. He had remained completely free of clinical depression. He maintained regular contact with his wife, and daughter, who had just sat for her HSC and the three were taking an American and European holiday in December 2014/January 2015. Mr McCaffery continued to live in as carer for his elderly mother, carried out his paralegal duties, and remained intensely interested in his own in depth legal historical research. Dr Armstrong again considered that he was in every respect fit to continue his employment as a legal clerk with Mr N Aussel.
The final report of Dr Armstrong dated 26 February 2015 was annexed to Mr McCaffery's affidavit of 20 April 2015. He confirmed that Mr McCaffery remains free of clinical depression. He noted that Mr McCaffery had faced recent challenges including the serious illness and hospitalisation of his elderly mother and the possibility that his wife may need to undergo major surgery. In Dr Armstrong's opinion Mr McCaffery has continued to cope well emotionally with everyday professional responsibilities while also visiting his mother in hospital and providing emotional support to his wife. He considered that Mr McCaffery was in every respect fit to continue his employment as a legal clerk with Mr Aussel.
Mr Murphy's evidence was that he was in negotiations with Mr Aussel to merge their existing practices with the likely result that he remain as a principal and sole practitioner with Mr Aussel being his employee. Mr Murphy's present practice is that of a suburban sole practitioner in general practice with an emphasis on conveyancing, estate and commercial law work. The merger would provide him with support as a general practitioner in those fields and would increase the capacity of the firm to handle litigation and particularly personal injury matters. Mr Murphy said that he was confident that he would be able to provide adequate supervision of Mr McCaffery and that in his absence that would be the task of Mr Aussel who was a solicitor with an unrestricted practising certificate. Mr Murphy had read and considered the letter from Mr Aussel to the Law Society dated 22 January 2015 to which we have referred and concurred with its contents.
Mr Murphy gave evidence that if he were to employ Mr McCaffery as a lay associate he would do so on the basis that he undertake the following duties. 1. Perform legal research for solicitors and paralegals. 2. Provide initial advice in relation to client matters based upon perusal of the files with such initial advice to be settled by Counsel or a solicitor. 3. Prepare preliminary drafts of correspondence, proofs of evidence, pleadings and other documentation to be settled by Counsel or a solicitor. 4. Attend in conference with Counsel with the consent of Counsel. 5. Attend in conference with clients under the supervision and/or direction of Mr Murphy, Mr Aussel or any other solicitor who may be employed in the future.
He said that Mr McCaffery will not have authority to withdraw, deal with or transact on any business or trust account. He will only be introduced to clients as a clerk. Mr McCaffery will be remunerated in accord with the terms of the applicable Award.
Mr Murphy said that Mr McCaffery would not have the authority to initiate or respond to emails or other correspondence from the public or other professionals unless specifically directed by Mr Murphy, Mr Aussel or any other solicitor who may be employed in the future. He gave evidence that he had been informed by Mr Aussel and believed that there were no problems in the compliance by Mr McCaffery with the earlier orders of the Tribunal and that Mr McCaffery's health had improved.
Mr Murphy noted that upon the merger the firm would adopt a cloud based software system (LEAP) being approved by the Law Society for its trust account functions for the purpose of conducting its day to day business and that that system would allow Mr Murphy to control access to files and to allocate particular files to staff members with the ability at all times to monitor and review those files by phone, tablet or computer. Mr McCaffery would be noted as "a person assisting" only on those matters allocated by Mr Murphy or Mr Aussel.
It was proposed that Mr Murphy and Mr Aussel would have full and unfettered access to each staff member's email account to ensure that they could supervise incoming and outgoing mail from all staff members including Mr McCaffery. Mr McCaffery was not to have full administrator access to the software system.
Mr Murphy annexed to his affidavit a copy of his letter dated 3 February 2015 to the Law Society. In that letter his noted that once merged with Mr Aussel's practice the new firm would conduct its practice from Chester Hill, Surry Hills and East Hills. The firm would continue to remain essentially a suburban practice. Mr McCaffery currently attends the Surry Hills office. He noted that Mr McCaffery would be working primarily from home under the supervision of Mr Aussel in the firm's Surry Hills office. It is not intended that Mr McCaffery would be authorised to respond to emails and correspondence or generate emails or correspondence unless specifically directed by Mr Murphy or Mr Aussel. Mr Murphy sought a relaxing of the reporting and supervisory conditions as identified in the application.
Mr Murphy also gave evidence that he had read the affidavit evidence in the proceedings before the Administrative Decisions Tribunal and all annexures together with the Reasons for Decision and the conditions imposed. He has read the affidavits of Mr Aussel and Mr McCaffery sworn 21 October 2014 in these proceedings. He confirmed that he agrees to be bound by the conditions as varied pursuant to the Tribunal's orders in these proceedings.
Mr McCaffery gave evidence that he continued to consult Dr Armstrong to monitor his wellbeing and authorised him to continue to provide reports to the Law Society as if condition (xi) of the imposed conditions was still in force. He said that he has complied strictly with the letter and the spirit of the conditions and in particular: "a) I am paid solely pursuant to the currently applicable Award; attend the office between 9.00 a.m. and 5.00 p.m. each working day. b) I willingly submit myself to Mr. Aussel's supervision and approval i. in all matters of administration; ii. as to all correspondence and documents I draw; iii. as to any step to be taken in any current matter. c) I am not identified by name or status otherwise than as Mr. Aussel's Clerk: i. in any meetings with clients, government, the profession and the practice generally; ii. in any electronic attendance I am directed to make; iii. in any external correspondence. d) I have no access whatsoever to any financial institution account Mr Aussel holds or conducts for the practice or otherwise; e) I interact by telephone, in person and electronically with other professionals, Government Agencies, clients and the public generally solely: i. at Mr. Aussel's direction; ii. for the purpose of obtaining information to be utilised for Mr. Aussel providing legal advice; f) I have attended client conferences with Counsel or experts solely in Mr. Aussel's presence: i. at Mr. Aussel's direction; ii. for general clerical assistance; iii. for the purpose of giving or obtaining information to be utilised for Mr. Aussel and other professionals providing legal or other advice to a client. g) I have at no time held myself out or represented myself as a qualified Legal Practitioner or tendered legal advice of any kind whatsoever to any person. h) I have on Mr. Aussel's express instruction: i. attended upon conveyancing settlements on Mr Aussel's behalf; and thereafter ii. made necessary deposits; and iii. attended to registration of dealings i) No communication drawn by me at any time is: i. in or under my name or designation, and/or; ii. signed by me j) I have because Mr. Aussel's office and facilities are situate within secured areas: i. the limited use for the hours of my attendance of a key card for ordinary ingress and egress: ie attending the toilet, taking a periodic break or obtaining refreshment; ii. such limited keycard is left by me at the office on my departure each working day; and iii in cases where it is likely that I will not return to the office by 5.00 pm., I leave the keycard behind on departing. iv. at all times I have use of the limited key card it is in the presence and under the supervision of Mr. Aussel and others in order to obviate undue disruption in the ordinary office work routines. k) I have attended upon Court Registries, but have not to date attended any Court hearing. l) I do not have and have not sought access to any communication received by Mr Aussel without Mr Aussel expressly providing such items upon which he requires me to perform specific tasks as allocated from time to time by him. m) I attend Mr. Aussel's office at all times solely under his supervision."

Relevant principles

Mr McCaffery has been approved by the Administrative Decisions Tribunal to be employed by Mr Aussel on conditions. The question for the Tribunal is whether on the evidence now before it, his employment by both Mr Aussel and Mr Murphy and thereafter alone by Mr Murphy if Mr Aussel becomes his employee should be approved and, if so, on what conditions.
The relevant principles were considered by the Tribunal in McGirr & Anor v The Council of the Law Society of NSW [2014] NSWCATOD at [54] - [65].
The nature of the inquiry to be undertaken by the Tribunal in an application such as this was considered in Michael John Charles Caiger [1993] NSWLST 14 at pp 12 - 13 by reference to an application in Re Clayton [1962] SR (NSW) 132. The application then under consideration was the old Rule 19 of the Solicitor's Practice Rules which had a similar effect to s 17 of the Legal Profession Act and s 121 of the Law. The Tribunal in Caiger held: "As stated by the Court [in Re Clayton], the restriction was very broad and it involved an enquiry into the fitness of the person who has been convicted of such offence … This Tribunal has a responsibility to thoroughly investigate an application such as this and has therefore proceeded on the basis of the principles expressed in that case by Herron J at 134 as follows: 'Rule 19 of the Special Rules relating to solicitors was passed in order to safeguard both the legal profession and the public … The whole picture of the ethical fitness of Mr Cowley-Cooper generally has to be considered in the light of all the evidence. The Court is interposed by the Rule between the solicitor employer and the proposed employee in order to allay the fears that must arise in the minds of the public and the profession alike of the destruction of public confidence in the law and the lowering of its high standard usually associated with solicitors' offices."
The primary principle which must be considered is the protection of the public: Hegney v Law Society of New South Wales [2008] NSWADT 150 at [19]; re Clayton [1962] (SRNSW) at [133]. The Tribunal is to make a calculated assessment as to the probability of such a risk and is to be satisfied to the standard in Briginshaw v Briginshaw 60 CLR 366; Michael John Charles Caiger at p 15 and Hegney at [28]. The burden of proving comfortable satisfaction lies with the applicant and the prospective employer.
The integrity of the legal profession is also a consideration; Miedzinski v Council of the Law Society of NSW [2007] NSWADT 268 at [45]. Persons employed in a solicitor's office must be of appropriate standing so that the status of the profession is not lowered. The Tribunal should be satisfied that the person seeking employment has demonstrated that they are aware of their conduct and proceeding to rehabilitation. The Tribunal should not stand in the way of rehabilitation as long as approval "does not negatively affect the good standing of the solicitor in whose office the applicant seeks employment and provided that the proposed employment does not on the evidence appear to interfere with the course of justice or the proper discharge of the professional duties of the solicitor in whose office the applicant seeks to be employed"; In the matter of Iverson (unreported 26 July 1996, No 30 of 1995).
A summary of relevant principles is set out in La Fontaine v Law Society [2006] NSWADT 244 by reference to the decision of Acting Justice Spender in Camille Eduoard Dezarnaulds and Stephen Wawn v The Law Society of New South Wales (unreported Supreme Court 27 June 1995) as follows: "46.1 The discretion is entirely general. No attempt has been made to circumscribe it by reference to particular matters, or to impose any particular threshold test which must be satisfied; 46.2 There are no time limits. Theoretically, the practitioner who was struck off could apply the next day to become an associate of a legal firm; 46.3 Those guilty of indictable offences, or have been guilty of the most extreme offences against the proper conduct of their profession and have been disqualified for such reasons, are equally able to make an application to become an associate; 46.4 There are three levels of associateship. This is important, as it is apparent that the legislature had clearly in mind that a person who might be appropriate for one level of associateship, might not be appropriately permitted to occupy another level of associateship; 46.5 There are obvious public interests which are to be served, and which must be taken account of. These interests include: (i) the protection of the public. (ii) the standing of the legal profession and the standards that are required of it. 46.6 Affording those who were disqualified, or who have been found guilty of indictable offences, the chance of rehabilitation and getting paid work in the profession. 46.7 Whilst the standing of the profession in the public eye is of great importance, and the need to maintain the integrity of the profession is of equal importance, as has been emphasised time and again by the courts (and recently by the Court of Appeal in Law Society of New South Wales v Bannister (1993) 4 LPDR 24) and must be taken account of, it is necessary to bear in mind that an associate is not a legal practitioner, and depending on the particular level of associateship, may be in a position which is really no more than that of a clerk to or employee of a legal firm. One does not, as it were, translate the requirements demanded of practising members of the profession, to those who are applying to become associates. This is of course perfectly plain as the statute is dealing with situations where, a person has been disqualified from legal practice, or may never have been qualified but would otherwise be debarred from acting as an associate because of conviction for an indictable offence."
This summary of principles was included in the lengthy analysis of relevant decisions in Hegney at [20] - [34] accepted by the Administrative Decisions Tribunal in Double Bay Law Pty Ltd. t/a & Legal v Council of the Law Society of New South Wales [2013] NSWADT 182 at [45] - [47]
Each application must be determined on its own merits; Caiger at pp 38 - 39; see also Double Bay Law at [47] referring to the decision of the New South Wales Court of Appeal in Dawson v Law Society (No 590 of 1988) 21/12/89.
Also relevant are the circumstances of the conviction; see Hegney at [24], the present circumstances of the Applicant; see Hegney at [60] and the evidence given in support of the Applicant; see Hegney at [64] - [69] and McGowan v Council of the Law Society of NSW [2014] NSWCATOD 44 at [72].
In McGowan at [16] - [25] the Tribunal considered that "16.There are two separate but related stages involved in determining an application such as this. (i) 'Fit and proper person' and related tests 17. The first stage involves an enquiry by the Tribunal as to whether the person the subject of the application, in this case Mr Brawn, is in the words of the Court of Appeal of New South Wales in Dawson v Law Society of NSW [1989] NSWCA 58, at 12: '...now a fit and proper person to join other members of an honourable profession in the responsible and trusted activities which are involved in the work of the legal profession.' 18.In using that formulation, we think that at least some allowance must be made for the fact distinguishing fact that Dawson involved an application by a struck off solicitor to be re-admitted to practice as a solicitor. It was not a lay associate application. 19. In this regard it is also relevant that section 7 of the Legal Profession Act 2004 recognises and distinguishes between three levels of "associate" of a law practice. Firstly the definition recognises as an associate an Australian legal practitioner who is a sole practitioner, partner, legal partnership director, consultant or employee of practice. Secondly it includes an agent (not being an Australian legal practitioner), and thirdly 'an employee, or person paid in connection with, the law practice, who is not an Australian legal practitioner'. Is the third category only which covers a lay associate as that term is defined in section 7. 20. Be that as it may, this initial threshold issue in the circumstances of this case involves the Tribunal determining whether Mr Brawn is a fit and proper person to participate in the responsible and trusted activities which are involved in conducting legal practice. 21.That clearly must involve an enquiry as to whether Mr Brawn is a man of sufficient good character to be such a fit and proper person and in this regard the Tribunal is guided by the useful observations as to the nature of 'character' made by His Honour Justice Mahoney in the leading Court of Appealed [sic] decision of Law Society of New South Wales v Foreman, No.2 (1994) 34 NSWLR 408 at 449B, when His Honour analysed character as involving, inter alia two things: the acceptance of high standards of conduct; and acting in accordance with those standards under pressure. In His Honour's words: 'Character is tested not by what one does in good times but in bad.' 22. In this regard, we also accept what was put to us by Mr Pierotti on behalf of the Law Society to the effect that as part of this first enquiry, the onus is on Mr Brawn (or perhaps on both Mr Brawn and Mr McCowan as the applicant) to demonstrate that Mr Brawn has effectively rehabilitated himself. 23. We also accept that a most important part of this enquiry is examining whether Mr Brawn has demonstrated an insight into and an understanding of the seriousness of the professional misconduct which led to his name being removed from the Roll and his conviction on the criminal charges, in terms of the deviation of his conduct from the standard expected from those involved in the profession. We must also gain an understanding as to whether Mr Brawn has expressed genuine contrition for what he had done. (i) The conditions to be imposed upon any employment of Mr Brawn in the law practice. 24. Importantly, it is only if the Tribunal is satisfied that Mr Brawn is a fit and proper person to be a lay associate within the designated law practice that it must then turn its mind to the conditions under which he will be permitted to act. The Tribunal usually requires the imposition of appropriate restrictions on the scope of the lay associate's duties and responsibilities within the law practice. 25.Clearly however, these 2 issues are separate. There will be no benefit in the Tribunal considering the appropriateness or otherwise of proposed conditions of employment of the proposed lay associate and unless and until it is satisfied that he or she is a fit and proper person to be engaged in the law practice."
The Tribunal in McGowan at [69] considered that in such an application the Applicant must establish that he: "... is at the day of hearing a fit and proper person to have further association with the profession as a lay associate, that he is of sufficient character for this purpose, that he has demonstrated insight and understanding of his wrongful actions and of how his misconduct fell below the standards of behaviour expected; that he has expressed remorse for his actions and that he has rehabilitated himself."

Submissions and Findings

It was principally submitted by Mr Stewart that two years had passed since the conditions were initially imposed upon Mr McCaffery's employment by Mr Aussel and that he had demonstrated his trustworthiness. Mr Stewart noted that Mr McCaffery had satisfied all conditions which had been imposed on him and that his psychiatrist, Dr Armstrong, had confirmed that he had overcome his previous condition. He confirmed Mr Murphy's undertaking to supervise Mr McCaffery at all times, particularly once Mr Aussel became an employed solicitor in the merged practice.
As we have indicated, Mr Pierotti advised the Tribunal that the Law Society did not object to the approval subject to the making of appropriate conditions.
Although in submissions it was expressed at times in terms of an application to vary the earlier conditions the application seeks an order approving the employment of Mr McCaffery by Mr Murphy as well as Mr Aussel and we consider it appropriate that the application be considered in full. The authorities to which we have referred require a thorough investigation of the application. The whole picture of the ethical fitness of the Applicant has to be considered in light of all the evidence; Re Clayton at p 134. The relevant date is the date of hearing; see McGowan at [69].
There was no direct evidence before the Tribunal as to Mr McCaffery's fitness to have a continuing association with the profession or as to his character or that he has demonstrated insight and understanding of his wrongful actions or how his conduct fell below the standards of behaviour expected or that he had expressed remorse for his actions. Nevertheless, these matters were the subject of enquiry in the first proceedings in which evidence about the deterioration and ultimate loss of Mr McCaffery's practice at the bar, loss of his chambers, the illness and loss of his father and the development of a psychiatric condition was accepted. This resulted in him withdrawing from people including his wife from whom he separated; see Aussel at [8] - [9]. Mr McCaffery acknowledged that his conduct was disgraceful and dishonourable and that he had failed in his duty of honesty, candour and respect to both the court and his professional colleagues; Aussel at [14].
The Tribunal accepted that the conduct which lead to Mr McCaffery's removal from the roll and convictions for contempt was likely in a large degree the result of lack of personal insight, his depressive illness, family breakdown and the inability to deal appropriately with a diminishing income. Mr McCaffery never sought to deny his conduct and the Tribunal accepted that the disciplinary and contempt proceedings were traumatic; Aussel at [35]. The Tribunal also accepted that the proposed employment would be therapeutic to Mr McCaffery's further rehabilitation; Aussel at [37].
The Tribunal accepted that Mr McCaffery's insight on rehabilitation especially concerning his medical condition went a considerable way towards ensuring protection of the public and that the proposed limitations at that time were adequate to protect the public; Aussel at [38]. The Tribunal was ultimately satisfied that Mr McCaffery at that time was a fit and proper person for the purposes of entering into employment as an associate of Mr Aussel.
We have had close regard to the findings of the Tribunal in the earlier decision. There has been no evidence in these proceedings sufficient to give rise to any question of Mr McCaffery's fitness to continue as an employed associate. To the contrary, there is evidence that he has complied with the conditions which have been operating since April 2013 and that he has continued to consult with Dr Armstrong notwithstanding the expiry of that particular condition. Dr Armstrong in successive reports has found Mr McCaffery free from clinical depression and referred to Mr McCaffery's renewed and regular contact with his family, his living in as a carer for his elderly mother and interest in legal historical research. We place some weight on Dr Armstrong's opinion that Mr McCaffery is fit to continue his employment as a legal clerk. Successful maintenance of the conditions and Mr McCaffery's undertaking of his mother's care also speaks of his character.
The issue of rehabilitation is also relevant. As the Tribunal said in Dawson at [10]: "there is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance, under whatever conditions and after whatever time, the court considers appropriate."
There is evidence from Mr Aussel of Mr McCaffery's continuing but not yet complete assimilation into employment. We have had regard to the chance of continuing redemption and rehabilitation which the proposed employment will offer Mr McCaffery. In particular, we have considered the nature and scope of his proposed duties outlined in the evidence of Mr Murphy which will promote continuing rehabilitation.
The views of the Law Society must be given appropriate weight and consideration; see Hegney at [19]; Re Clayton at [134]. As we have indicated the Law Society does not oppose the application subject to the question of conditions to be imposed.
We have also considered the matters set out in s 121(3) of the Law and in particular the nature and circumstances of Mr McCaffery's conviction as identified in the first proceedings, including his removal from the roll and conviction on 29 counts of contempt of court for acting as a barrister without holding a current practising certificate. We have considered the requirements and responsibilities of the proposed arrangement by which Mr McCaffery is to be employed as disclosed in the evidence of Mr Murphy. We have also considered the degree of connection between Mr McCaffery's conviction and the requirements and responsibilities of the proposed arrangement. In our view that connection is limited and any question of associated risk is satisfied by the evidence of compliance with the previous conditions, the medical reports confirming Mr McCaffery's health and rehabilitation and the proposed implementation of further conditions in similar form.
The evidence to which we have referred including the findings of the Tribunal in the first proceedings as to Mr McCaffery's character and contrition and the evidence before us as to his compliance with the earlier orders and continuing rehabilitation and the willingness of the Applicants and Mr McCaffery to specify conditions satisfies us that the public will be put to no risk by his employment as a lay associate on conditions. On the basis of the evidence to which we have referred, we are also satisfied that the standing of the profession and public confidence in it will not be detrimentally affected by Mr McCaffery's continuing employment. Having regard to these matters we are satisfied that Mr McCaffery remains a fit and proper person to undertake employment as an associate in the employ of Mr Aussel and Mr Murphy. We approve Mr McCaffery to be a lay associate of Mr Aussel and Mr Murphy subject to the question of conditions.

Consideration of the proposed conditions

Mr Pierotti on behalf of the Law Society referred to the range of possible conditions before the Tribunal being those the subject of the orders made in the first proceedings, those the subject of the application and those raised in correspondence between the Applicants and the Law Society. He tendered some draft conditions to which the Law Society had no objection. With the exception of the wording of condition (i) and the introduction of the first condition (vii), the conditions are those to which Mr Aussel and Mr McCaffery are presently subject. These draft conditions were as follows: "(i) Mr McCaffery to be supervised by Mr Aussel and/or Mr Murphy ("the Solicitor") at all times. (ii) Mr McCaffery is not to have access to or be signatory to any account conducted by the Solicitor with any financial institution in the course of his practice. (iii) No document, letter or any other written material drafted by Mr McCaffery is to be dispatched from the Solicitor's office without prior approval of the Solicitor. (iv) No document or written communication of any nature is to leave the Solicitor's practice under the name or signature of Mr McCaffery. (v) Mr McCaffery is not to receive any money from any client or potential client of the Solicitor. (vi) Mr McCaffery is not to hold himself out or represent himself as being a qualified legal practitioner but rather is to inform those persons with whom he has contact in the course of his employment of the Solicitor that he is in fact a clerk of the Solicitor and is not authorised and cannot tender to any such person any legal advice. (vii) Mr McCaffery is not to attend Court or any conference without the attendance of the Solicitor. (vii) [sic]Mr McCaffery not to tender to any person any legal advice. (viii) Mr McCaffery not to have a business card or any other form of identification identifying him in any capacity with the Solicitor's practice without prior approval of the Law Society of NSW. (ix) Mr McCaffery not to have any key or other means of entry to any office from which the Solicitor carries out his legal practice; not to attend any such office without, at the same time, the attendance of the Solicitor or of another solicitor in the Solicitor's employ; not to have access to mail, e-mail transmissions or other forms of written communication received in the Solicitor's office other than as provided to him by the Solicitor. (x) The remuneration of Mr McCaffery to be by way of a stipulated salary or hourly rate, not to include or be calculated by reference to income received or success in any matter. (xi) For a period of 12 months immediately following the commencement of the Solicitor's employment of Mr McCaffery, Mr McCaffery attend, at least a three monthly basis, on Dr Armstrong and request that Dr Armstrong inform the Manager, Professional Standards Department, of the Law Society of NSW in writing that Mr McCaffery has so attended and as to Mr McCaffery's fitness to continue with his employment with the Solicitor. (xii) The Solicitor to report on a three monthly basis commencing three calendar months from the date of permission being given to him to employ Mr McCaffery, to the Manager, Professional Standards Department of the Law Society of NSW, in writing, on Mr McCaffery's standard of work, behaviour and application to his duties. (xiii) Prior to the commencement of any employment by the Solicitor of Mr McCaffery, both the Solicitor and Mr McCaffery are to inform the Tribunal and the Law Society of NSW, each in writing, that they individually understand these conditions and each individually give an undertaking that each will, as far as the conditions relate to them, abide by those conditions; in each case such to be in writing, signed by the Solicitor and Mr McCaffery. (xiv) Upon Mr McCaffery ceasing to be employed by the Solicitor, the Solicitor shall advise the Manager, Professional Standards Department of the Law Society of NSW in writing of such cessation and provide a final report in accordance with the terms of condition (xii) above."
After a short adjournment Mr Pierotti advised the Tribunal that the draft conditions were agreed with the exception of the first condition numbered (vii) and the condition numbered (ix).
Mr Stewart submitted that it would be onerous in terms of the proposed arrangements between Mr Aussel and Mr Murphy where the merged firm will operate from three sites for these conditions to remain. As to condition (vii), Mr Stewart said that the condition was not present in the current conditions, that Mr McCaffery had been attending conferences in the interim and that if his supervising solicitor was to be present attending court or any conference, Mr McCaffery's presence would be unnecessary.
Mr Pierotti submitted that although condition (vii) was a new condition and even though Mr McCaffery was currently to be supervised at all times by Mr Aussel including at court or in conference it was appropriate to provide for those circumstances expressly. Mr Pierotti also submitted that it was inappropriate for a struck off practitioner to appear in court even with leave. He said that conferences with a client were an occasion both in which instructions might need to be sought or legal advice given on matters including settlement and it was inappropriate that such matters be left in the hands of Mr McCaffery.
Mr Stewart in reply said that it was envisaged that Mr McCaffery would take witness statements and that if it was necessary to give legal advice Mr Murphy or Mr Aussel might be available at the end of a telephone. He said that the proposed arrangement was one of practicality.
As we have indicated the primary principle in an application such as this is the protection of the public. The avoidance of risk is paramount. As it was put in Caiger at p 15. "Anything which places or is indeed likely to place any member of the public in a situation of risk must be avoided. The need to protect the public falls squarely on the shoulders of all practitioners and through them this includes their employees. This is a heavy and onerous responsibility cast upon each practitioner and any proposed employer supporting an application of this nature is charged with responsibility to ensure actively that if such an application is granted the public is put to no risk whatsoever." See also Connolly v Law Society of New South Wales [2000] NSWADT 82 at [27].
In our view balancing the practicalities referred to by Mr Stewart with the principles to which we have referred and giving appropriate weight to the submissions of Mr Pierotti expressing the view of the Law Society, it is not presently appropriate for McCaffery to attend in court unsupervised. The purpose of the proposed conditions is to allow for adequate supervision which is both protective of the public and to maintain the public interest in and confidence in the law and the profession. Those conditions which have been agreed require supervision. Unsupervised attendance in court in light of the offences for which Mr Aussel was convicted in our view would present at least some risk however small. As to Mr McCaffery attending conferences, the obligation of supervision will remain upon the solicitor at all times. We see no reason why Mr McCaffery might not continue to attend in a conference with the knowledge, direction or consent of the solicitor. We have come to this view having regard to the satisfactory compliance with the existing condition by which Mr McCaffery has been bound not to tender any legal advice. Mr McCaffery is also subject to the continuing obligation to inform all persons with whom he has contact in his employment that he is a clerk and not authorised and cannot tender any legal advice. In light of these matters in our view the risk to the public will be minimal.
There were two aspects to condition (ix). The first is whether Mr McCaffery should hold any key or other means of entry to the office. The second is whether he should have access to letters, email transmissions or other forms of written communication other than as provided to him by his supervising solicitor.
Mr Stewart submitted that it would make it difficult for Mr McCaffery if he were not to have a key to the premises at Surry Hills should he not otherwise be able to gain access if Mr Aussel or Mr Murphy were at other premises or for staff meetings and the like. On the question of access to email, Mr Stewart urged that the condition provide that Mr McCaffery have access to but not respond to mail or email communications other than as directed by the solicitor. He said it was a practical consideration. Mr Stewart noted that there was evidence that Mr McCaffery sought to have access to his emails at home. He said that Mr McCaffery would not be working from at home or dealing with emails of correspondence from home, merely drafting documents.
Mr Pierotti submitted that it was only if the Tribunal could be satisfied that Mr McCaffery should have unrestricted access to an office in light of all of the other conditions that he should have a key. He said that if the Tribunal was concerned with the protection of the public in the case of a disqualified person who lacks fitness then such persons should not be afforded unsupervised access to the office. He submitted that the Tribunal should only accede to the removal of the condition if it has formed a totally different view of Mr McCaffery. He said that no evidence had been lead from any of the Applicants about the amount of work, the nature of work and the security in place. He also said that the Tribunal is entitled to start from the position that Mr McCaffery is disqualified from being in the office and then look at the grounds upon which he might be allowed. As to the second part of condition (ix) concerning access to mail, Mr Pierotti submitted that the general principle was that all mail should be reviewed by a principal. He said there was no evidence about reviewing email accounts by the supervising solicitor only that they would have access to them.
Mr Stewart submitted in reply that the Applicants' position in relation to condition (ix) was a matter of practicality. He said that Mr McCaffery was in the office during the day in any event. He suggested that Mr McCaffery could still have a key but be required to obtain express approval and permission by one of the solicitors present in the office to access it. In this way it was suggested Mr McCaffery would be afforded the opportunity to access the office if others were away. He noted that there was no prohibition on access in the Tribunal's decision in Connolly despite the offences which had been committed and even though the clerk involved was on parole. As to access to mail, Mr McCaffery said that 95% of correspondence is dealt with by Mr Murphy by email. He said that all correspondence goes to the firm email address not Mr Murphy's and that it goes to all staff members.
The present condition requires Mr McCaffery not have a means of entry into the office and not attend the office without at the same time the attendance of his employer or another solicitor in the solicitor's employ. Notwithstanding the way in which the application was dealt in Connolly, each case must be considered on its own merits. There has been insufficient material before us to allow us to make a calculated assessment as to the risk arising should Mr McCaffery have 24 hour access which might lead him to find himself in the office unsupervised. This is not intended to be a reflection on Mr McCaffery merely that there is not such sufficient evidence for us to make a calculated assessment of risk. In that event it is appropriate that that part of condition (ix) concerning access remain unchanged.
Similarly, in line with the view expressed in Caiger to which we have referred, supervision should in our view entail the provision of access to mail, email transmissions or other forms of written communication received in the office directly by the supervising solicitor to Mr McCaffery. In this way the supervising solicitor will be aware of exactly what correspondence has been provided to Mr McCaffery and the instructions given to him with regard to it. Accordingly, the risk to the public of any misdealing with correspondence will be mitigated and public confidence maintained. In those circumstances, in our view, condition (ix) should remain as it is presently operative.
There was some discussion as to how the draft condition (i) might operate in circumstances in which Mr Aussel is the current supervising solicitor and it is anticipated that he will become an employee of Mr Murphy upon the practice merger. Mr Pierotti submitted that the Tribunal should be concerned as to the level of supervision which might be afforded by Mr Murphy acting as a sole principal after the proposed merger and in particular with Mr McCaffery working from home. He said that the Tribunal would be concerned to understand the nature of the supervision which was proposed and might be able to be afforded by Mr Murphy ultimately as a sole employer. As to Mr McCaffery being supervised by Mr Aussel who would become an employed solicitor and by other employed staff, Mr Pierotti submitted that obligations of supervision imposed by the conditions were not delegable.
The conditions as they currently operate contemplate Mr McCaffery being in the office at the same time as the attendance of another solicitor in the solicitor's employ. Mr Murphy has given evidence of the scope of the proposed employment and supervision and has agreed to be bound by appropriate conditions. We are satisfied that he is aware of the nature and extent of the obligations of supervision which he has agreed to undertake if the application is approved. Mr Aussel is currently a principal and has been undertaking the obligations of supervision pursuant to the conditions imposed by the Tribunal in April 2013. It is apparent on the evidence before us that the conditions requiring supervision have been complied with. There is no reason to anticipate that Mr Aussel would be unable to adequately supervise Mr McCaffery should Mr Aussel become an employed solicitor. In our view such supervision does not raise an appreciable risk to the public. We propose that condition (i) remain as drafted providing for the supervision by Mr Aussel and/or Mr Murphy at all times.
Mr Stewart submitted in respect of condition (xi) in the draft conditions that the original condition requiring Mr McCaffery to attend on Dr Armstrong had expired and did not require reinstatement. As we have said, the reports as whole indicate that Mr McCaffery continues to show no sign of clinical depression. Dr Armstrong has considered Mr McCaffery in every respect fit to continue his employment as a legal clerk with Mr Aussel since at least his report dated 1 July 2013. In light of that material, the other evidence of Mr McCaffery's rehabilitation to which we have referred and the conditions which we propose to be ongoing, in our view the protection of the public does not require reinstatement of a condition that Mr McCaffery attend upon Dr Armstrong.
Draft condition (xii) provides that the solicitor continue to report on a three monthly basis to the Manager, Professional Standards Department of the Law Society in writing on Mr McCaffery's standard of work, behaviour and application of his duties.
Mr Pierotti drew our attention to correspondence from Mr Aussel noting variously that Mr McCaffery still needed direction on priorities and self-motivation as at 16 April 2014, that he still required some direction in relation to priorities and timetabling and as late as 19 March 2015 that Mr McCaffery was "gradually" becoming a more productive member of the firm. He said there was no direct evidence of Mr McCaffery's progress and that the three months' reporting would appear to be appropriate in the circumstances.
Mr Stewart referred the Tribunal to the facsimile from Mr Aussel dated 16 April 2014 where he noted that he had no substantive negative issues of concern to raise or report about Mr McCaffery.
In our view it is appropriate in the context of Mr McCaffery's continuing but not yet complete rehabilitation and in light of the direction which is still required in his employment as evidenced by the correspondence from Mr Aussel, that the reporting requirement remain on a three monthly basis. The requirement is not in our view onerous and will not only act as a further protection but will maintain the public interest in and confidence in the law and the profession.
During submissions the question arose whether a reporting requirement to be imposed by condition (xii) might be limited in time. Mr Pierotti submitted that this would be inappropriate, that the Tribunal would need to be satisfied at the end of the period as to Mr McCaffery's fitness and that a prospective assessment could not be made. We agree with this submission.
The application also sought an order for leave to seek a variation of such order as is made in these proceedings including conditions on 28 days' notice to be provided to the Law Society. No submissions were made about this proposed order and we were left with some uncertainty as to whether it was being pressed. In those circumstances we make no order for leave.

Decision

Under s 121(3) of the Legal Profession Uniform Law (NSW) No 16a 2014, the Tribunal approves the employment of Nicholas Luke McCaffery being a person who has been convicted of a serious offence as a lay associate within the meaning of s 6 of the Law by Nicholas William Aussel, solicitor, and Thomas Arthur Murphy, solicitor subject to the conditions below: Conditions 1. Mr McCaffery is to be supervised by Mr Aussel and/or Mr Murphy ("the Solicitor") at all times. 2. Mr McCaffery is not to have access to or be signatory to any account conducted by the Solicitor with any financial institution in the course of his practice. 3. No document, letter or any other written material drafted by Mr McCaffery is to be dispatched from the Solicitor's office without prior approval of the Solicitor. 4. No document or written communication of any nature is to leave the Solicitor's practice under the name or signature of Mr McCaffery. 5. Mr McCaffery is not to receive any money from any client or potential client of the Solicitor. 6. Mr McCaffery is not to hold himself out or represent himself as being a qualified legal practitioner but rather is to inform those persons with whom he has contact in the course of his employment of the Solicitor that he is in fact a clerk of the Solicitor and is not authorised and cannot tender to any such person any legal advice. 7. Mr McCaffery is not to attend Court without the attendance of the Solicitor or any conference without the knowledge, direction or consent of the Solicitor. 8. Mr McCaffery is not to tender to any person any legal advice. 9. Mr McCaffery is not to have a business card or any other form of identification identifying him in any capacity with the Solicitor's practice without prior approval of the Law Society of NSW. 10. Mr McCaffery is not to have any key or other means of entry to any office from which the Solicitor carries out his legal practice; not to attend any such office without, at the same time, the attendance of the Solicitor or of another solicitor in the Solicitor's employ; not to have access to mail, e-mail transmissions or other forms of written communication received in the Solicitor's office other than as provided to him by the Solicitor. 11. The remuneration of Mr McCaffery to be by way of a stipulated salary or hourly rate, not to include or be calculated by reference to income received or success in any matter. 12. The Solicitor to report on a three monthly basis commencing three calendar months from the date of permission being given to him to employ Mr McCaffery, to the Manager, Professional Standards Department of the Law Society of NSW, in writing, on Mr McCaffery's standard of work, behaviour and application to his duties. 13. Prior to the commencement of any employment by the Solicitor of Mr McCaffery, both the Solicitor and Mr McCaffery are to inform the Tribunal and the Law Society of NSW, each in writing, that they individually understand these conditions and each individually gives an undertaking that each will, as far as the conditions relate to them, abide by those conditions; in each case such to be in writing, signed by the Solicitor and Mr McCaffery. 14. Upon Mr McCaffery ceasing to be employed by the Solicitor, the Solicitor shall advise the Manager, Professional Standards Department of the Law Society of NSW in writing of such cessation and provide a final report in accordance with the terms of condition (xii) above.

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: 26 October 2015

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Judgment (14 paragraphs)

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Cases Cited (4)