Council of the Law Society of New South Wales v Liepins

NCAT Occupational|2015-12-22

Solicitors: Council of the Law Society of New South Wales (Applicant in person) File Number(s): 122027

Introduction

In these proceedings, which were instituted by a disciplinary application ('the Application') filed on 16 October 2012, the Council of the Law Society of New South Wales ('the Law Society') seeks an order removing the name of the Respondent solicitor, Juris Liepins ('the Solicitor'), from the Roll and an order that he pay the Law Society's costs.
Two decisions have already been handed down in this case: Council of the Law Society of New South Wales v Liepins [2015] NSWCATOD 11 ('the liability decision') and Council of the Law Society of New South Wales v Liepins (No 2) [2015] NSWCATOD 133 ('the admissibility decision').
The present decision does not contain any outline of the content of these earlier decisions. It should be read in conjunction with them.
In the admissibility decision at [7] and [8], two preliminary matters were explained: (a) the legal basis on which these proceedings, having commenced in the Administrative Decisions Tribunal, are being brought to their conclusion in the Civil and Administrative Tribunal and (b) the reason why they are governed throughout by the Legal Profession Act 2004 ('the LP Act'), even though the Legal Profession Uniform Law (NSW) came into force on 1 July 2015.

The evidence on penalty

Except for a letter and accompanying report (both dated 7 May 2012) sent to the Law Society by Associate Professor Alex Gilandas, a psychologist whom the Solicitor had consulted, the Society did not tender any further evidence relating to penalty or costs. It did however tender a bundle of correspondence to be added to the volume of material exhibited to an affidavit of Ms Foord, dated 11 October 2012, which was admitted on the first day of the hearing on liability.
We admitted this additional material without objection from Mr Tudehope.
The Solicitor tendered the following evidence on penalty: two affidavits that he had sworn, dated 11 December 2014 and 13 May 2015 respectively; an affidavit sworn by his wife, Ms Baiba Liepins, on 14 May 2015; an affidavit sworn by Professor Gilandas; and affidavits sworn by 19 individuals ('the referees') expressing favourable opinions as to the Solicitor's integrity and capacity for legal practice.
During the hearing on penalty, the Solicitor answered a few questions in chief relating to his medical condition. He was not cross-examined on this or any other matter. Ms Liepins was not required for cross-examination. There was cross-examination, however, of Professor Gilandas and of 16 of the 19 referees.
Relevant parts of this evidence were to the following effect.
The Solicitor's affidavits: Exhibit 1. For reasons outlined at length in the admissibility decision, many passages of the Solicitor's affidavit of 11 December 2014 were ruled inadmissible following objections by the Law Society. The remaining passages were admitted as Exhibit 1.
In these passages, the Solicitor admitted the following Grounds set out in the Application: all four Grounds in Section A (Janowski); the sole Ground in Section B (Baltins); Grounds (iii), (iv), (v) - but not (i), (ii) or any of (vi) to (x) - in Section C (Kanks); all three Grounds in Section D (Buks); Grounds (i) and (iii) to (vi) (but not Ground (ii)) in Section E (Lok); Grounds (i) and (ii) (but not (iii), (iv) or (v)) in Section F (Kripens); and the sole Ground in Section G (Blaubergs). He did not admit either of the Grounds in Section H (Stegmanis).
Exhibit 1 also contained express admissions by the Solicitor of a number of the specific factual allegations made in the Particulars forming part of the Application. Some of these admissions were accompanied by statements put forward by way of mitigation. A number of them are outlined later in this decision.
In addition, Exhibit 1 contained two passages in which the Solicitor both acknowledged wrongdoing and put forward explanations for its occurrence deriving from the situation in which he found himself at the relevant time. These were as follows.
First, with reference to Ground (iii) of Section A of the Application (Janowski), the Solicitor addressed in the following terms a failure by him to respond to a letter dated 20 August 2008 that he received from his co-executor (Ms Tagalakis) of the relevant estate (this failure was alleged in Ms Tagalakis's affidavit, though not in the Particulars to the Application):- I acknowledge that I should have responded to the letter and that my conduct was not professional. I do not seek to excuse myself but say that at that time and for some time past I felt overwhelmed by the Law Society investigations and was very depressed. I sought to excuse myself now as in the past by convincing myself that the Law Society or someone else had the file. I was looking for an excuse for my inaction. I buried my head in other work in the hope that these matters would go away. I should have sought help but could not bring myself to ask for it. I was drowning.
Secondly, with reference to his admission of Ground (iv) in Section C (Kanks) (failure during late 2008 and early 2009 to assist the investigator in the investigation of a complaint), the Solicitor deposed as follows:- The failure largely arises out of my not responding to the Law Society. I also respectfully ask you to take into account: i. I was a sole practitioner. ii. I had a large practice. iii. I felt overwhelmed by the correspondence I was receiving from the Law Society and its appointees. I felt as though I was drowning. I am a proud man and very much a loner in the profession. I felt I could not ask for help and resorted, to my great regret, to inaction. This was not a conscious stop (scil. step) on my behalf but rather subconscious - I got into my work hoping, unreasonably and inexplicably, that the Law Society would leave me alone. When eventually I did respond, it would be out of desperation and little real consideration was given to my response. iv. I have been in practice of (sic) over 39 years and during that time have worked hard for little reward. My great satisfaction has been in my ability to be of assistance to the people who came to me. I settled into my way of doing things. When the Legal Profession Act was introduced, I found the new regime of rules and regulations very hard to adopt. I continued on, much to my regret, looking after my clients with but the barest of glances at the new rules that had been imposed. The quality of my legal work, I believe, remained good, although I cannot say that I did not fail. My eye on the Legal Profession Act and, as I saw it, all the new restrictions placed on my ability to service my clients, could only be described as casual. I much regret this. My problem was that after so many successful years in practice I found it extremely difficult to adjust. V The more I became swamped, as I saw it by demands from the Law Society, the more I also found that I was quite physically and emotionally unable to respond. I could immerse myself in my work rather than face the flood of demands from the Law Society in this and other matters. I became depressed. I gave up.
The Solicitor asked that this particular passage be taken into consideration in the context of his admission of six other Grounds of the Application. These were Section C, Ground (iii); Section E, Grounds (i), (iv), (v) and (vi); and Section F, Ground (ii).
At this point, we will quote two further passages from Exhibit 1. The first of them followed the Solicitor's admission of paragraphs 9 to 29 of the Particulars in Section D of the Application (Buks). He then stated as follows: 'I admit that the unprofessionalism I displayed would have delayed the finalisation of this Estate and that I should have been aware of this.' Secondly, in response to paragraph 19 of the Particulars in Section E (alleging that on 31 January 2011 a Notice under s 660 of the LP Act was served on him), he stated:- i. I accept that this Notice was served on me, however I have no recollection of receiving the Notice. I do not recall the Notice or any non-response to it being brought to my attention. ii. At this time I was overwhelmed with Law Society investigations. On 22nd June my Practicing Certificate was suspended. I was really struggling.
The Solicitor's affidavits: Exhibit 2. This affidavit commenced with an outline of the Solicitor's early life, education and career as a qualified lawyer. Relevantly, he came with his parents from Latvia to Australia in 1949 (when he was four years old); he was employed for about five years in the Supreme Court; he was admitted as a solicitor in 1970; after about seven years as an employed solicitor, he became one of two partners of a law firm called Liepins & Manass; two years later, he became the sole principal of this firm; and he remained in this position until his practising certificate was suspended on 22 June 2011.
The Solicitor also stated that on numerous occasions he had provided legal services pro bono to (a) the Lutheran Unity Church Congregation (since 1975), (b) a number of associations (since 1978 or 1979) that had been formed to promote the interests of the Latvian community in Sydney and (c) the Baltic Council (between 1983 and 2000). He devoted a great deal of time to this last organisation, which consisted of representatives of the Estonian, Latvian and Lithuanian communities. One of the tasks that he performed for it was to write its submission to the Australian Senate Inquiry into the War Crimes Act.
In addition, the Solicitor had provided legal services without remuneration to the Salvation Army, the Victor Chang Cardiac Research Institute and the Burwood Neighbourhood Childcare Centre. He had also assisted many individuals and community groups pro bono through working (a) at Macquarie Legal Centre, (b) as a duty solicitor at the Children's Court and (c) under the Law Society's pro bono scheme.
He had received the following acknowledgments of the scale and value of his unpaid work: (i) a plaque (dated August 1996) from the Victor Chang Cardiac Research Institute; (ii) a certificate of appreciation (dated December 2000) from the Latvian Relief Society; and (iii) nomination for the Law Society President's Award at the Law and Justice Foundation Justice Awards 2006.
The Solicitor placed significant emphasis on the scale of these pro bono activities. He stated that because he was fluent in Latvian and had some knowledge of Latvian law and its operation, his time and assistance had been sought by a number of Latvian community organisations and he had had, until 'the last couple of years', a 'significant workload of problems' arising within these organisations.
Towards the end of Exhibit 2 (at paragraphs 23 and 24), the Solicitor stated as follows:- 23. I have been a solicitor of the Supreme Court and have during that time applied myself to the care and welfare of those who came to me for assistance whatever their circumstances and at whatever time I was approached. On many occasions I have visited hospitals and nursing home and have made myself available on weekends and in the dead of night. I have worked tirelessly to advance the interests of the helpless, hopeless and unwanted during and in addition to the advancement of my regular legal practice. My position as a solicitor has been very satisfying in the sense of being able to help whomever approached me for assistance, but, financially, I have gained little success. I have practised law with what I consider the highest of motives - the advancement of the interest of my fellow human beings and I have done so, I believe, diligently and professionally. My workload has been extreme however, and I have suffered from the fact that I would not and cannot walk away from someone in need. My family and family life have suffered and my health has suffered. 24. I ask the Tribunal to accept my sincere regret that I did not comply with the provisions of the Legal Profession Act as I should have. My failures have arisen out of the pressure of work, depression and a difficulty, after many years of service in and for the profession, in adjusting to the requirements of the Legislation. I ask you to accept that I did not on any occasion consciously avoid my obligations in order to gain financially.
In paragraph 25, the Solicitor asked the Tribunal to accept that his conduct in misleading the Court (Section F, Ground (iv) and Particulars, para 28) was not intentional, as he believed that he 'would have had a firm basis for the swearing of the Affidavit that is subject (sic) of this complaint'.
In paragraph 26, he asked the Tribunal to accept that his conduct found to constitute misappropriation (Section C, Ground (x) and Particulars, paras 18, 19, 33 and 34) was not engaged in 'consciously' for the reason set out in his affidavit of 8 December 2014.
In the last paragraph (27) of Exhibit 2, the Solicitor stated: I have been suspended from practice since 2011, that is 4 years. I have lost my legal practice and many friends and acquaintances. I am 70 years of age and have little hope of practice outside the law.
Ms Liepins' affidavit. The relevant content of this affidavit can be summarised as follows.
Like the Solicitor, Ms Liepins migrated at a young age with her parents from Latvia to Australia. She married him in 1975 and they have two children.
She stated that a significant proportion of the Solicitor's practice before his suspension involved Latvian clients. Indeed, his office had been adjacent to Latvian House, which was 'the principal centre of activity for people of Latvian heritage in Sydney'. It appeared to her that all his clients had both his mobile number and his home phone number, with the consequence that they frequently called him outside of work hours and at the weekend. Because she attempted to protect him from such calls by telling the client to ring his office on Monday morning, there was often a 'race' between the two of them to answer the phone at home. In her opinion, there was 'no separation for the respondent between his professional and personal life'. He was 'unable to say no to clients' and had 'little recognition of his need for time for himself and for our family'. He adopted the attitude of 'do the best for the client, whatever it takes', irrespective of the cost to himself or to the family. Accordingly, for instance, on the many occasions when at Latvian social events people approached him for legal advice, he would always give such advice freely, 'even at times running up to the office for documents'.
Ms Liepins testified further that the scale of the legal work that the Solicitor performed pro bono for the Baltic Council, for the Latvian organisations to which he referred in his testimony and for institutions such as Macquarie Legal Centre was very substantial.
She stated that 'at the same time as the Law Society was contacting him', the Solicitor was 'under great pressure in his personal life'. The reasons for this were that her elderly parents had come to live with her and the Solicitor and that after the death of her mother her father started to sleep badly, often disrupting everyone's sleep by calling out during the night.
She described the Solicitor as 'not an open person', who resisted talking about issues within his life or in relation to his health. He dealt with problems, she said, by dismissing their significance and 'asserting "She'll be right"'.
According to her, the suspension of the Solicitor's practising certificate had affected him deeply. He had lost his self-esteem and no longer attended any Latvian social functions, with the consequence that both of them were cut off from the Latvian community. She believed however that he was still highly respected within this community and that it had suffered a significant loss on account of his inability to practise. In fact, as she put it, 'people come to me and ask when the respondent will be available again for legal advice'.
Finally, Ms Liepins adverted to the 'substantial' financial detriment caused by the Solicitor's suspension from practice. She said that it meant that the wages that she received from her employment with the Latvian society constituted their sole income.
Evidence as to the Solicitor's psychological condition. This principally comprised two reports by Professor Gilandas, dated 7 May 2012 and 3 May 2014 respectively, and his oral evidence given before us on 22 December 2015.
At the commencement of his first report, Professor Gilandas noted that the 'focus' of his assessment of the Solicitor's condition was on 'the clinical effects' that the 'lengthy period' of the Solicitor's suspension (i.e. about eleven months) might be having on his 'personal, family and professional life, rather than the technical details of the reasons for his suspension'.
The Solicitor, in his opinion, had sustained 'severe disruption to his personal, social and professional life' on account of the 'lengthy legal proceedings' to which he was subjected. The factors imposing substantial stress on him included (a) his inability to function professionally and earn an income; (b) his isolation from the Latvian community; (c) his belief that he had been defamed by 'malicious gossip' amongst members of this community; (d) his concern that his former clients would never return to him if he were permitted to resume practice; and (e) his feeling that 'there seemed to be no time limit to processing his case'.
In consequence, the Solicitor at that time was suffering from 'Adjustment Disorder With Depressed Mood'. He had 'fallen into depression and demoralisation'. This was the case even though he denied feeling depressed. There was however, 'no previous history of psychiatric disorder, drug or alcohol abuse' and no evidence any perceptual or personality disorder. Both his 'sensorium and cognition' and his 'judgment and insight' were 'intact'.
In this first report, Professor Gilandas suggested that the Solicitor might benefit from a course of ten sessions of Cognitive Behaviour Therapy or from a short course of antidepressant medicine. But 'the most therapeutic resolution' would be the conclusion of the Law Society's proceedings against them. Once this occurred, it was likely, though by no means certain, that his clinical depression would cease. In this context, it was relevant that he had 'no previous history of psychiatric disorder and a proven history of adequate functioning throughout life prior to suspension of his practising certificate'.
In his oral evidence, Professor Gilandas elaborated as follows on his first report. The Solicitor, when assessed during May 2012, told Professor Gilandas that he had not engaged in any financial impropriety or criminal conduct but had been 'snowed under' and 'out of control'. Professor Gilandas considered that he was both competent and aware of how his work routine needed to change. But he had been incapable of taking the necessary steps because a 'knowing-doing gap' had emerged. A factor contributing to this was his denial of being depressed. As far as Professor Gilandas was aware, the Solicitor had not acted on the recommendation for a course of antidepressant medicine. This was not surprising, because about 40% of patients failed to follow recommendations for antidepressant medicine on account of their fear of possible side-effects. On the other hand, Professor Gilandas had expected that the Solicitor, although 'in denial', would engage in the recommended course of cognitive behaviour therapy, since it did not involve medication and could take place in confidence.
Near the commencement of his second report, Professor Gilandas stated that it focused on 'the clinical implications of his current state and recommendations for the future'. He arrived at the same diagnosis (moderate depression, which had not become severe and was 'highly reversible and treatable') as in the first report. His opinions with regard to the Solicitor's competence and capacities were also unchanged. He recommended regular monitoring by a GP, together with treatment by a psychiatrist or a clinical psychologist and 'a combination of antidepressant medication with Cognitive Behaviour Therapy'. He added that this Therapy 'should not only treat his depression but also focus on assertive behaviour with ability to say "no" to excessive demands'.
In this report, Professor Gilandas also commented on two additional matters. First, he had been told that the Solicitor had 'a previous history of heavy social drinking', but had now been 'totally alcohol free for the past three years'. A neuropsychological assessment had concluded that no brain damage had resulted from the drinking. Secondly, he understood that Ms Liepins was now available to assist the Solicitor in organising his professional activities and that the Solicitor was 'now willing to allow such intervention for the first time'. Professor Gilandas described this as 'an important step', because in large measure the Solicitor's problems had been attributable to his failure to prioritise his activities 'into a manageable schedule' and to his willingness to provide legal services pro bono to anyone who requested them.
In oral evidence, Professor Gilandas indicated that he had not seen the Solicitor since May 2014. He expressed the opinion that the 'paralysing' but generally under-estimated effects of depression such as the Solicitor suffered would have constituted the only reason why he could not have engaged in legal practice during the period between the two reports. This depression typically did not impair the capacity of sufferers to know right from wrong, but it would often prevent them from acting in the way that they knew to be right. It might also 'cloud' their 'consciousness' and accordingly their 'judgment', so as to cause them to engage in faulty conduct. It could not, however, be treated as an excuse or justification for committing a positive act of dishonesty. Professor Gilandas referred in this context to research showing that by virtue of the extreme stresses imposed by their work an untypically high proportion of practising lawyers suffer from depression, which often causes them to drink to excess.
At the hearing on 22 December 2015, we gave leave, over an objection by the Law Society, for the Solicitor to give evidence regarding any treatment that he had obtained pursuant to Professor Gilandas's recommendations. He testified that he had had five consultations, each lasting about an hour, with Ms Fabiola Beldon, a clinical psychologist. He believed that these took place during 2014, but could not be certain of this.
The evidence of the referees. All but three of the 19 referees were people to whom the Solicitor had provided legal services, with or without a retainer and with or without remuneration. In some instances, he had provided such services to an institution with which the referee was involved. None of the referees appears to have been a lawyer.
Five of the referees adverted to the Solicitor's prominent role in the Latvian community in Sydney, notably as the provider of a considerable quantity of legal advice and assistance on a pro bono basis.
The referees all indicated in their affidavit and/or in cross-examination at the penalty hearing that before swearing their affidavits they had read the liability decision.
In addition, all but three of them indicated that they had read an affidavit that the Solicitor had sworn on 8 December 2014. This affidavit was substantially the same as the affidavit, sworn by the Solicitor on 11 December 2014, that we had admitted as Exhibit 1, subject to the substantial deletions described in the admissibility decision. At the penalty hearing on 22 December 2015, we ruled, following argument, that the Solicitor's affidavit of 8 December 2014 should go into evidence without any deletion. But we admitted it for a strictly limited purpose only: namely, to enable its contents to be taken into account by us when assessing the testimony of the 16 referees who stated that they had read it.
Many of the referees treated the findings in the liability decision as 'charges' or 'allegations' only. While some expressed concern about the more serious of them - in particular, the finding of 'misappropriation' as described in Section C, Ground (x) - they all maintained that the findings did not undermine their firm belief that the Solicitor was a person of complete integrity and was wholly capable and trustworthy. All but a few of them referred to his willingness to provide legal advice and assistance without charge, adding in a few instances that for this reason he was held in high esteem by members of the Latvian community.

The parties' submissions on penalty and costs

We have received and have given consideration to the following written submissions on these topics: three sets of submissions in chief by the Law Society, filed on 18 March 2015, 11 December 2015 and 9 February 2016 respectively; two sets of submissions in chief by the Solicitor, filed on 21 December 2015 and 11 March 2016 respectively; and submissions in reply by the Law Society, filed on 16 March 2016. We have also taken account of oral submissions made by Mr Tudehope, counsel for the Solicitor, near the conclusion of the hearing on 22 December 2015.
In discussing these submissions, we will focus first on the following specific topics: (a) particular aspects of the evidence on liability; (b) the explanations and acknowledgments of his misconduct offered by the Solicitor and by his wife; (c) the evidence relating to the Solicitor's psychological condition; and (d) the testimony of the referees. We will then address the principal question remaining for determination: namely, whether we order removal of the Solicitor's name from the Roll (as sought by the Law Society) or should make some other order(s) by way of penalty. Finally, we will deal with the question of costs.

Particular aspects of the evidence on liability

In dealing with this topic, we will follow the order in which the various Grounds and Particulars appear in the Application.
Section A (Janowski). In relation to Grounds (ii) (failure to provide a statement of assets and liabilities) and (iii) (failure to communicate with the complainant), Mr Tudehope argued that according to the evidence of the co-executor, Ms Tagalakis, she was aware of the assets of the estate and she knew that the principal asset, a property at North Strathfield, was sold at auction for $780,000.
Mr Pierotti's response was that Ms Tagalakis was nonetheless not fully informed about the assets of the estate, since she had not (for example) been given details of certain bank deposits. Accordingly, the matters raised by Mr Tudehope did not operate to 'ameliorate the admitted conduct'.
While we will take into account the particular points made by Mr Tudehope, we do not consider them as detracting significantly from the failures that the Solicitor admitted.
In relation to Ground (iv) (attempting to charge professional fees when not entitled to do this), Mr Tudehope drew our attention to a notation on a statement of account dated 11 November 2003 (see P13) to the effect that costs and disbursements on the sale of the North Strathfield property had not been taken out of the proceeds of sale.
In response, Mr Pierotti pointed out that, as Mr J Mann, a solicitor, indicated to the Solicitor in a letter dated 27 May 2005 (see P22), the will did not contain any charging clause. Notwithstanding this, the account of 11 November 2003 included an entry indicating that professional costs amounting to $2,375 would be charged, and a later account dated 6 April 2004 that was found in the Solicitor's file but not received by Ms Tagalakis (see P19) provided for further costs exceeding $6,000 to be charged to the estate. It followed, Mr Pierotti submitted, that Ground (iv) - that of 'attempting' to charge professional fees when not entitled to do so - was established.
While we agree with this submission, we consider it relevant to take account of Mr Tudehope's observation that unauthorised professional costs were not in fact charged.
Section B (Baltins). With reference to the sole Ground in this Section (failure without reasonable excuse to comply with the requirements of a Notice under s 152 of the Legal Profession Act 1987 (the predecessor to s 660 of the Act of 2004), the Solicitor testified in Exhibit 1 that while he admitted non-compliance he did reply to the Notice 'imperfectly' by means of the letter of 6 April 2009 referred to in P5.
A submission by Mr Tudehope that the Tribunal should view favourably both the Solicitor's admission of non-compliance and his 'imperfect' compliance was opposed by Mr Pierotti.
In our opinion, the important consideration is that full compliance by the Solicitor never occurred (see P6). For this reason, the matters raised by Mr Tudehope do not carry significant weight in our determination on penalty.
Section C (Kanks). In his oral and written submissions, Mr Tudehope argued that in considering the evidence adduced by the Law Society in support of one of the most important Grounds set out in the Application - namely, misappropriation, as pleaded in Section C, Ground (x) - we should treat certain parts of this evidence as operating to mitigate, to a significant degree, the apparent gravity of this Ground.
He also argued that the same should apply to Grounds (i), (ii), (vi) and (ix) in Section C. The first of these alleges failure to carry out instructions to provide settlement details. The remaining three contain allegations of failures to account.
The matter to which Section C related was the administration of the will of the late Veronika Kanks. Ms Tereze Zundans retained the Solicitor to act for her in her capacity as executrix of this will. After litigation in which the validity of the will was disputed had been settled, the principal asset of the estate, being a property at Strathfield, was sold and the proceeds distributed.
The instances of misappropriation alleged in this Section were twofold. The first of them, as outlined in P13 to P19, was as follows. On or before 14 September 2007 the Solicitor, without authority from Ms Zundans, endorsed to 'A Liepins' a cheque dated 6 June 2007 that had been made out to Liepins & Manass by the selling agent for the Strathfield property. The amount of this cheque, $45,245.47, was the sum that the Kanks estate was entitled to receive out of the deposit of $72,600 that had been paid by the purchaser of the Strathfied property. On 24 September 2007, the cheque was paid into the account of Andrejs Liepins (the Solicitor's son). Secondly, the Solicitor, again without authority from Ms Zundans and without rendering a bill of costs, charged a further sum of $9,800.95 to the estate on or before 23 December 2008 (see P32 to P34).
In P5, the Law Society alleged that Ms Zundans had not been advised by the Solicitor 'of his intended charges for his professional costs'. An allegation to this effect appears in paragraph 9 of Ms Zundans' affidavit, sworn on 2 October 2012. In addition, Ms Zundans stated in paragraph 10 that during her dealings with the Solicitor 'the only mention which he made about costs was some comment about' the engagement of a barrister by the opposing party in the litigation.
Mr Tudehope pointed out, however, that on 20 August 2008, in her written Complaint about the Solicitor's conduct of her affairs to the Legal Services Commissioner, Ms Zundans stated as follows: 'On 20/6/07 Mr Liepins advised that he had withheld part of the settlement funds for disbursements and his costs.'
Mr Tudehope observed also that 'coincidentally' this date, 20 June 2007, was also the date of a statement of account headed 'Account With: Ms Tereze Zudans (sic)', that had been found in the Solicitor's file (see P15). In this statement, which related to the distribution of the total amount owing from the proceeds of the Strathfield property to Ms Zundans in her capacity as executrix, charges amounting to $55,046.42 for costs, disbursements and GST were itemised and stated to be payable to Liepins & Manass.
It was alleged in P16 and by Ms Zundans in paragraph 13 of her affidavit that she had never seen the original of this statement dated 20 June 2007 and that she did not see a copy of it until a representative of the Law Society showed her the Solicitor's file copy on 20 January 2009.
A further argument made by Mr Tudehope, however, was as follows: (a) Ms Zundans acknowledged receiving a brief statement of account dated 23 December 2008 from the Solicitor, which included a debit of the amount of $9,800.95 to the estate (see P32) as 'balance costs, disbursements & GST' (without any itemisation of these); (b) the word 'balance' implicitly refers to the preparation and sending of an earlier account; (c) when this amount of $9,800.95 is added to the amount ($45,245.47) of the cheque that the Solicitor endorsed to 'A Liepins', the total ($55,046.42) is the exact sum quoted in the statement of 20 June 2007 which Ms Zundans claimed not to have seen until January 2009; (d) we should therefore infer that this statement of 20 June 2007, of which a copy was found in the Solicitor's file, was prepared at about that time in the Solicitor's office and was indeed sent, even though (as Ms Zundans maintained) it never reached her.
In putting forward these arguments, Mr Tudehope emphasised that for the reasons stated in the admissibility decision he was bound to accept our finding of misappropriation as alleged in Ground (x) of Section C. But he submitted that 'it is most difficult to see that that misappropriation falls into anything but the very most minor category'. His submission on Ground (i) was that it should be inferred that the Solicitor did after all provide 'settlement details', even if more should have been done in this regard. As to Grounds (ii), (vi) and (ix), he submitted that the foregoing considerations should 'ameliorate any order of the Tribunal'.
We turn now to the Law Society's arguments in response. In his submissions dated 9 February and 16 March 2016, Mr Pierotti emphasised the following statements made in the uncontradicted evidence of Ms Zundans: (a) she did not give permission for funds to be appropriated by the Solicitor for the payment of his costs; (b) she never received the statement of account dated 20 June 2007; (c) during numerous telephone calls to the Solicitor between June 2007 and 23 December 2008, she asked for a report on the administration of the estate (see P20); and (d) she was not however furnished with any such report, either orally or in writing, until the brief statement of account dated 23 December 2008 came into her possession.
Mr Pierotti also relied on the answers given by the Solicitor (in a statutory declaration) to two questions about the Kanks estate that were put to him in the Notice dated 13 November 2008 under s 660 of the LP Act (see P23 to P30). First, when asked when the statement of 20 June 2007 was prepared and whether it was sent to the Ms Zundans, he answered 'Not Known. It is my firm's invariable practice to send out accounts as they are prepared.' Secondly, when asked how in the statement of 23 December 2008 the amount of $9,800.95 for 'balance costs and disbursements' was made up, and also how this amount related to the statement of 20 June 2007, all that he could say was: 'It relates to the account of 20 June 2007.'
Additionally, Mr Pierotti submitted that there was no affirmative evidence to show that the statement of 20 June 2007 had ever been sent to Ms Zundans, that in the light of the findings already recorded in the liability decision it was not open to the Solicitor to argue that we should now infer that it had been sent, and that the content of the statements of 20 June 2007 and 23 December 2008 was insufficient to constitute an accounting of the affairs of the Kanks estate.
Our views on these matters are as follows.
At [58], the admissibility decision stated that the Solicitor, in his submissions on penalty, was entitled (a) to draw the Tribunal's attention to any allegation, favourable to himself, which he made in the parts of Exhibit 1 that were excluded but which also appeared in the Law Society's evidence and (b) to argue that this allegation should be taken into account by the Tribunal.
On this basis, we accept Mr Tudehope's argument that we should take account, when considering the question of penalty, of the statement by Ms Zundans, appearing in her Complaint to the Legal Services Commissioner, that 'On 20/6/07 Mr Liepins advised that he had withheld part of the settlement funds for disbursements and his costs.'
The implications of so doing, however, are not as significant as Mr Tudehope claimed. The principal reason for this is that this statement by her does not contradict two important allegations forming part of the Law Society's case.
The first of these allegations, appearing at P5 and paragraph 9 of her affidavit, was that 'the Solicitor did not advise her of his intended charges for his professional costs'. The second, appearing in P16, P34 and paragraph 14 of this affidavit, was that she 'did not authorise the Solicitor to take from Estate funds received by him any costs and disbursements'.
Later in this decision, we will explore further the implications of these two allegations within the Particulars to Section C.
Contrary to Mr Tudehope's contention, the evidence, in our opinion, does not support the inference that the statement of account dated 20 June 2007, of which a copy was found in the Solicitor's file, was sent to Ms Zundans at about that time, even though (as she maintained) it never reached her.
We have arrived at this view for two reasons. First, as Mr Pierotti submitted, there was no affirmative evidence tending to show that the statement was sent. Secondly, as was alleged in P16, the Solicitor's file did not contain any record of a covering letter to Ms Zundans enclosing the statement.
As to Mr Tudehope's claim that the evidence relating to the statements of 20 June 2007 and 23 December 2008 should operate to 'ameliorate' any order made by the Tribunal in relation to Grounds (i), (ii), (vi) and (ix) in Section C, we endorse Mr Pierotti's response that the content of the statements of 20 June 2007 and 23 December 2008 fell well short of constituting a full and proper accounting of the affairs of the Kanks estate.
Finally in relation to Section C, Mr Tudehope made the same arguments with respect to Ground (iii) (failure without reasonable excuse to comply with a requirement under s 660 of the LP Act) as he made in relation to a similar Ground in Section B. For the reasons given above at [65 - 67], we do not accept these arguments.
Section E (Lok). These same arguments were put by Mr Tudehope in relation to Ground (iv) in Section E (failure without reasonable excuse to comply with a requirement under s 660 of the LP Act). For the same reasons, we do not accept them.
Ground (vi) in Section E was that the Solicitor committed a breach of an undertaking that he had given on 23 June 2008 to the Legal Services Commissioner. As stated in P1 and P2, he gave this undertaking in response to the following passage in a letter sent to him by the Commissioner on 23 June 2008:- Nevertheless, I think it appropriate to seek your written undertaking that you will comply with your obligation to disclose costs in accordance with the Act in all future matters in which you are retained.
The undertaking, given on the letterhead of Liepins & Manass and with specific reference to the Commissioner's letter, was in these terms: 'Mr Liepins undertakes to comply with the Legal Profession Act 2004.'
The relevant breach by the Solicitor (see P4, P6 and P8) was that he did not disclose his costs in acting for the purchasers (Lok and Liu) of a property at Gladesville, but nonetheless rendered a bill for his services and required and received payment of his costs. In a passage within Exhibit 1, he stated that this breach was 'unintentional'.
Mr Tudehope argued that since the Solicitor was not cross-examined on this statement (even though Mr Pierotti did briefly cross-examine him during the hearing on penalty), we were bound to accept it as undisputed evidence. Mr Pierotti's submissions did not address this specific issue.
We observe that the relevant Ground (Section C, Ground (vi)) is formulated simply as 'Breach of undertaking'. Neither in this formulation nor in the associated Particulars was it alleged that the Solicitor breached the undertaking 'intentionally'. For this reason, we agree with Mr Tudehope that we should not treat the finding that we have already made with respect to this Ground as being one of 'intentional' breach, in the sense of a breach committed by the Solicitor while knowing that his conduct was in breach of the LP Act. But the fact remains that he did not comply with the requirements of the Act with regard to the disclosure of costs. If this was because he was unaware of those requirements, he was still culpable to a significant degree. Having given the undertaking, he bore a heavy responsibility to ensure that he committed no breach of the Act.
Section F (Kripens). Ground (iv) in this Section stated as follows: 'The Solicitor swore an Affidavit of Delay dated 4 May 2009 paragraph 2 of which was false and misleading.' The Particulars relating to this Ground were P26 and P28.
In Exhibit 2, the Solicitor testified as follows with reference to Ground (iv):- As to the allegation that I misled the Court, I ask the Tribunal to accept that I did not consciously do this. Whilst I can only reconstruct the situation, I believe that I would have had firm basis for the swearing of the affidavit that is the subject of this complaint. I do not seek to cavil with the Tribunal's decision. I simply ask the Tribunal to accept that I misled the Court unintentionally.
Mr Tudehope argued that since the Solicitor was not cross-examined on this evidence, we should accept it and take it into account when reaching our decision on penalty. Mr Pierotti's submissions did not address this specific issue.
Our view on this matter is similar to our view in relation to the Ground that we have just discussed (Section C, Ground (vi)). In the Ground that we are now discussing (Ground (iv) of Section F), the allegation is that the Solicitor 'swore an Affidavit of Delay' in which one paragraph 'was false and misleading'. Neither in this formulation nor in the associated Particulars was it alleged that the Solicitor knew or intended the paragraph to be false or misleading. For this reason, we agree with Mr Tudehope that we should not treat the finding already made with respect to this Ground as being one of 'intentional' falsity. But the fact remains that although he was swearing an affidavit to be filed in Supreme Court proceedings, he did not take steps to ensure that its contents were correct. For obvious reasons, he bore a heavy responsibility in this regard, which he did not discharge. For these reasons, he was still culpable to a significant degree.

The evidence given by the Solicitor and by Ms Liepins

Although Mr Pierotti had an opportunity to cross-examine the Solicitor during the hearing on penalty, he chose not to do this. He did not require Ms Liepins for cross-examination. Accordingly, as he implicitly acknowledged, the testimony of these two witnesses went unchallenged on the following matters: (a) the Solicitor's account of the nature and scale of the legal advice and assistance that he gave free of charge over many years, notably to individuals and institutions associated with the Latvian community; (b) the very heavy demands and stresses that these activities imposed; (c) the significant extent to which they had been the subject of public or private acknowledgment and approbation.
In addition to emphasising this point, Mr Tudehope also argued that we should pay careful attention to the passages in the Solicitor's affidavit of 11 December 2014 (Exhibit 1) that we have quoted above at [20], [21], [23] and [29]. According to Mr Tudehope, these passages demonstrated that the Solicitor had gained substantial insight as to the nature and seriousness of his misconduct and was deeply remorseful.
Mr Pierotti opposed this last submission, arguing that no evidence was cited in support of it and indeed that it 'flies in the face of the evidence'.
Since the Solicitor was not cross-examined on the passages in Exhibit 1 to which we have just referred, it cannot be said that there is no evidence tending to support Mr Tudehope's submission.
In our opinion, however, these passages indicate that both the Solicitor's understanding of his misconduct and his regrets with regard to it are limited in very significant ways. We say this on account of the Solicitor's apparent readiness to attribute his breaches of professional responsibilities to (a) a failure to 'adjust to' the requirements of 'the Legal Profession Act' or (b) the impact on him of correspondence that he was receiving from the Law Society.
With regard to the first of these claims made by the Solicitor, it is noteworthy that he did not even identify the 'Legal Profession Act' to which he was referring (was it the Act of 2004, or of 1987, or some earlier Act?), let alone the relevant provisions of this Act. There is more than a suggestion that he regarded the degree of regulation to which practising solicitors are subject, notably in the context of their management of trust funds, as responsible to an unnecessary extent for his failures of professional duty.
As to the second claim, we would agree that his claim to have been 'overwhelmed' by Law Society investigations early in 2011 (see [23] above) would be justifiable in the light of the evidence. But the Solicitor advanced this same claim as a reason for (i) not answering a letter that he received in August 2008 (see [20]) and (ii) failing during late 2008 and 2009 to assist an investigator in the investigation of a complaint (see [21]). Nothing in the evidence suggests that at either of these times the correspondence being sent to him by the Law Society was such as might 'overwhelm' or 'swamp' him.
In arguing that the Solicitor now had insight into, and remorse for his misconduct, Mr Tudehope gave considerable prominence to these passages in Exhibit 1. For the foregoing reasons, we cannot view them in the same light as he would wish us to.

The evidence relating to the Solicitor's psychological condition

The Solicitor's submissions. The gist of Mr Tudehope's argument on this topic was as follows: (a) Professor Gilandas identified a 'disability' - namely, clinical depression - from which the Solicitor was suffering during the period when he engaged in professional misconduct; (b) on account of this condition, which was very common among legal practitioners, and of the excessive amount of work which he had undertaken, the Solicitor had become incapable of making correct decisions; (c) if the Solicitor adopted the course of action recommended by Professor Gilandas (regular monitoring by his GP, a course of treatment by a psychiatrist or a clinical psychologist, antidepressant medication and cognitive behaviour therapy), he would, in Professor Gilandas's opinion, become better able to maintain at a manageable level the professional demands placed upon him and would be able to 'function more efficiently and effectively in his profession'; and (d) the Solicitor had shown that he wished to be rehabilitated, and had taken an important step in this regard, through engaging the services of Ms Beldon.
The Law Society's submissions. Mr Pierotti emphasised that, according to Professor Gilandas, nothing had caused the Solicitor to suffer any significant brain damage or indeed to lack insight on ethical issues. There was therefore nothing in the medical evidence to show that any condition affecting the Solicitor was such as to 'override' his 'capacity'. Even if he was depressed, he retained the capacity to know right from wrong. His problem was instead a 'knowing-doing gap'. According to Professor Gilandas, depression might cause an individual to fail to take positive steps which he/she knew to constitute the correct and proper course of action, but generally it could not be said that depression could be an explanation, let alone an excuse, for engaging in wrongful acts of a positive nature.
Mr Pierotti also submitted that since the only rehabilitative measures that the Solicitor had adopted were to attend five consultations with Ms Beldon, he evidently remained in denial as to the adjustment disorder that Professor Gilandas had diagnosed.
Discussion. An important feature of Professor Gilandas's conclusion in May 2012 that the Solicitor suffered from 'Adjustment Disorder With Depressed Mood' was not adverted to in the parties' submissions. This is that it was a conclusion reached specifically in relation to 'the clinical effects' that the period between the date of suspension of the Solicitor's practising certificate (22 June 2011) and the date when Professor Gilandas examined him (7 May 2012) might be having on his 'personal, family and professional life'. The fact that Professor Gilandas regarded this as the relevant timeframe is confirmed by the fact that he provided the following introduction to his summary of the Solicitor's 'current symptoms':- Mr Liepins and his wife described the following problems which they attributed to the stress of having his practice certificate suspended.
When in May 2014 Professor Gilandas repeated his diagnosis, he did so in the context of a report that (to use his own words) 'focuses on the clinical implications of [the Solicitor's] current state (our emphasis) and recommendations for the future'.
It follows that, subject to one qualification, Professor Gilandas's descriptions in these two reports of the Solicitor's psychological condition did not purport to apply to any part of the earlier, and distinctly lengthy, period of time during which the Solicitor engaged in the misconduct with which this case is concerned. That period can be said to have commenced as early as October 2001 (see Section F, P8). The only acts of misconduct occurring after 22 June 2011, the date of suspension of his practising certificate, were those described in the final Section of the Application, Section H.
It follows that, despite a submission to the contrary by Mr Tudehope, there is insufficient evidence to support a finding that during the period in which the Solicitor committed the numerous acts of misconduct described in Sections A to G of the Application he was suffering from depression, or indeed from any other psychological condition of relevance. Professor Gilandas simply did not address this question. He expressed the opinion, based on what the Solicitor and Ms Liepins told him, that before suspension of the practising certificate the Solicitor must have been suffering from overload of work. In his second report, he also recorded a statement by Ms Liepins (contradicting an observation in his first report) that for an unspecified period ceasing in or about May 2011 the Solicitor had engaged, to some degree at least, in alcohol abuse. But neither of these constitutes an explanation, total or partial, for misconduct that is based on an expert diagnosis of a relevant psychological condition.
According to Professor Gilandas's further opinions, given in cross-examination and re-examination, his diagnosis of depression during the period after the suspension of the Solicitor's practising certificate equally cannot be treated as any kind of explanation for the misconduct during this period that is described in Section H. The two Grounds pleaded in this Section were that 'The Solicitor charged and appropriated to his own use professional fees when he was not entitled to or authorised to do so' and 'Practising without a practising certificate'. The conduct particularised cannot be explained by reference to a 'knowing-doing gap'. In each instance there were positive acts of misconduct.
With reference to Mr Tudehope's submission that the Solicitor had displayed a desire to be rehabilitated, we are bound to say that the only steps that he appears to have taken in this regard - attending a clinical psychologist on five occasions during 2014 - could not be said to amount to an energetic pursuit of this objective.

The testimony of the referees

The Solicitor's submissions. Mr Tudehope argued that the opinions of the referees should be given 'great weight', for the following three reasons. First, the referees were 'well educated and professional people'. Secondly, they had read both the liability decision and the Solicitor's affidavit dated 8 December 2014. They were therefore aware of the Tribunal's findings and the facts alleged by the Solicitor. Thirdly, they still stated that in their opinion he was a person whom they could trust. They had 'known the man, the lawyer, the friend, intimately and for a long period of time' and were therefore well placed to 'assess' him 'for his worth'.
The Law Society's submissions. Mr Pierotti's argument on this topic also comprised three propositions.
The first was that most of the referees had not given due weight to the Tribunal's findings of professional misconduct set out in the liability decision. The principal reasons for this were that except in a few instances they had received from the Solicitor a copy of his affidavit of 8 December 2014 at the same time as they received a copy of the liability decision and that he had made no attempt to explain the status of these documents to them. In consequence, they did not treat the Tribunal's findings as conclusive on the matters to which they related, but instead as no more than assertions which might be open to doubt in the light of the Solicitor's own assertions or 'explanations' contained in his affidavit. A number of them stated in fact that they did not accept the Tribunal's findings at all and/or that they considered them to be 'allegations' only.
It followed, according to Mr Pierotti, that the referees manifestly lacked the 'full understanding' of the Solicitor's misconduct that they should have had. They simply relied on their own past association or dealings with him. As indicated in a number of authorities - for example, Re Melvey (1966) 85 WN (Pt 1) (NSW) 289 at 299, this meant that their opinions were of little weight in the present context.
Mr Pierotti acknowledged, however, that three of the referees gave 'more considered evidence', in that they described the Solicitor's misconduct as unacceptable or said that they would be concerned about having further professional contact with him.
A second reason, Mr Pierotti submitted, why a number of the testimonials were of little or no assistance to the Solicitor was that they were framed solely as character references. In these instances, the referees clearly did not understand that their task was to express an opinion on the specific question whether the Solicitor was fit to practise, in the light of their knowledge of him and of the Tribunal's findings of misconduct.
Thirdly, Mr Pierotti pointed out that the Solicitor did not put forward any testimonials from members of the legal profession. The reasons, he maintained, why the opinions of legal practitioners were important in this context were that the relevant enquiry concerned his fitness to practise and 'only those with the relevant knowledge can properly make such an assessment'. He cited the following dictum from Re Melvey at 298:- … it is one thing to speak well of a man whom the deponent has met in social or business circles; it is another to speak of him as to his professional dealings.
Discussion. On this topic, our views accord generally with the submissions put forward by Mr Pierotti. In particular, we take account of the fact (which he emphasised) that the referees were asked by the Solicitor to consider, in conjunction with each other, both the liability decision and his affidavit of 8 December 2014. It was appropriate, indeed important, that before swearing their affidavits they should read and take account of the first of these documents. It was entirely inappropriate that, without being given any explanation as to the status of the two documents, they should be invited to read and take account of the second of them. The consequence was that most of them treated the Solicitor's affidavit - which, it must be stressed, has not been admitted in these proceedings save as evidence of the material that was put before the referees - as having broadly the same weight and significance as the liability decision. Some of these referees apparently gained the impression - understandably in the circumstances - that they were expected to choose between the two competing accounts of relevant events before deciding what they should say about the Solicitor in their affidavit. Because they approached their task on this incorrect assumption, and in some instances made it clear that their preference was for the account given by the Solicitor, their opinions cannot be given significant weight.
We agree also with Mr Pierotti's submission that the absence of any testimonial from a legal practitioner constitutes a weakness in the Solicitor's defence to the Law Society's claim that he is not fit to practise and should therefore be struck off.

The appropriate penalty

We have already outlined the arguments put by Mr Pierotti and Mr Tudehope on four topics that are of direct relevance to the question of penalty: (a) certain aspects of the evidence on liability; (b) the explanations and acknowledgments of his misconduct offered by the Solicitor and by his wife; (c) the evidence relating to the Solicitor's psychological condition; and (d) the testimony of the referees. We will not repeat these arguments in the ensuing sections summarising the balance of their submissions.
The Law Society's submissions. The Law Society maintained its claim, initially advanced in the Application, that the proper order by way of penalty was an order removing the name of the Solicitor from the Roll.
In his submissions filed on 18 March and 11 December 2015, Mr Pierotti referred to a number of well-established principles governing the framing of orders by way of penalty. These included the following: (a) the jurisdiction of the Tribunal is protective, not punitive; (b) it is also educative, in so far as any penalty imposed should have the effect of 'publicly marking the seriousness of what the instant solicitor has done' (see Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 441); (c) it should aim not only to deter the respondent practitioner from reoffending but also to protect the public from similar defaults by other practitioners (as held, for instance, in Law Society of New South Wales v Walsh [1997] NSWCA 185); and (d) unless the Tribunal 'insists on a high standard of conduct on the part of solicitors… the public will never be properly guarded and the profession will never retain the respect which it ought to have in the community' (see Ex parte Macaulay (1930) 30 SR (NSW) 193 at 193-194).
In his submissions relating to the particular instances of misconduct that the Solicitor had committed, Mr Pierotti placed special emphasis on the findings of misappropriation and failure to account made under Grounds (ii), (vi), (ix) and (x) in Section C of the Application. He quoted the following dicta from the decision of the Court of Appeal in Dupal v Law Society of New South Wales [1990] NSWCA 56:- … [the] normal consequence of the misuse of entrusted funds by a solicitor, and a finding of wilful breaches of the statutory prohibition in that regard, is the removal of the name of the solicitor for the roll (Kirby P at p 60) This court would be departing from a long course of authority if it were to allow the appeal and substitute a period of suspension for the order of the Tribunal removing the appellant from the roll. Counsel were not able to refer me to any case where a solicitor found guilty of misappropriation or wilful contraventions of s.41(1) has not been struck off the roll. Any decision to the contrary would signal to the profession and the community that this Court was no longer insisting on solicitors maintaining the highest standards of personal honesty and integrity in their dealings with clients and the public and the handling of moneys entrusted to their charge. (Handley JA at p 64)
Mr Pierotti described the behaviour of the Solicitor constituting misappropriation as 'a deliberate course of conduct… to appropriate the bulk of the deposit moneys ($45,245.47) retrieved from the Real Estate Agent by paying same to an account operated by his son and, again without more, having no entitlement to any such payment from the proceeds of the sale in question'. He went on to argue that '[o]n any view this conduct, on its own speaks of unfitness to remain on the Roll'.
A further instance of misconduct highlighted in Mr Pierotti's submissions was the Solicitor's swearing of a false affidavit (Section F, Ground (iv)). He quoted the following dicta of the Court of Appeal in Coe v NSW Bar Association [2000] NSWCA 13:- 10 If (which I doubt) there are exceptional cases where a practitioner who knowingly swears a false affidavit that is filed in court could be regarded as fit to practice, this is not one of them. The underlying purpose of the disciplinary jurisdiction over practitioners is discussed in this Court's recent decision in New South Wales Bar Association v Hamman [1999] NSWCA 404 11 In Re B [1981] 2 NSWLR 372 at 382 Moffitt P said: "It is of the utmost importance that this Court can order its procedures and give its decisions in the confidence that the barristers appearing before it, will not mislead it, will conduct themselves in accordance with the law and discharge their duty even when not subject to scrutiny".
With reference to the finding of practising without a practising certificate (Section H, Ground (ii)), Mr Pierotti referred to dicta of the Court of Appeal in Mee Ling v Law Society of New South Wales [1974] 1 NSWLR 490 at 497, 498 and 499, to the effect that the issue of an annual practising certificate was not a mere formality or a device for raising revenue, but involved the protection of the public.
The following passage in Mr Pierotti's submissions dated 11 December 2015 dealt with the other findings of misconduct made against the Solicitor:- The many other allegations, which have been found to amount to professional misconduct, might not, to the mind of the casual observer (legally qualified or not) amount to such conduct as might of themselves warrant removal from the Roll. However, the multiplicity of the Respondent's misconduct must, it is submitted, raise a very serious doubt in the mind of the Tribunal that the Respondent is one in whom it can repose the trust that the profession, the public and, critically, the judiciary are entitled to expect of a legal practitioner. The Society respectfully submits that this Tribunal would answer this question in the negative.
Mr Pierotti made the further argument that there was no evidence that the Solicitor had made any restitution of the funds that he had misappropriated.
The Solicitor's submissions. Mr Tudehope argued that the appropriate penalty in this case was an order permitting the Solicitor to practise 'under very strict conditions such as being allowed to practise only as an employed solicitor under strict supervision'.
The primary reason why, in Mr Tudehope's submission, the Tribunal should 'step back from strike off' in this case (which he described as 'an exception') was that the Solicitor was 'what might be called, a legal warrior, one who has worked hard, very hard, to assist people in the very best traditions of the law'. But because 'this legal work and other charitable work took their toll', he 'stumbled significantly in offering and performing the services required of members of the legal profession'. The reasons for this were 'age, workload and depression'. He became a 'wounded warrior' who was 'desperately in need of assistance' and who 'despite his failings, should be recognised for the outstanding work he has done'. He had become aware of his shortcomings as a practitioner and had shown remorse. It was the opinion of Professor Gilandas that, in common with many other legal practitioners, he had suffered from depression and burnout. But Professor Gilandas also believed that with appropriate medical treatment (which he was willing to undertake) and with assistance in practice management from his wife, he would be able to function effectively and efficiently as a legal practitioner.
On account of all these considerations, Mr Tudehope argued, the Solicitor, who had 'already suffered' through losing both 'the respect of the large part of the community (sic)' and his right to practise over a period of nearly five years, should not have to suffer 'the final devastating indignity' of being struck off the Roll.
Discussion and conclusions. We have given very careful consideration to these arguments put to us by Mr Tudehope. But for the reasons that follow, we have decided that we may not properly make any order other than an order removing the name of the Solicitor from the Roll.
At the outset, we will quote a succinct formulation of the test to be applied if we are to make this order. In Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 at [17(2)], Young CJ in Eq said: 'An order striking off the Roll should only be made when the probability is that the solicitor is permanently unfit to practice'.
In concluding that this criterion has been satisfied, we take account first of the scale and nature of the professional misconduct that has been established against the Solicitor. It principally comprises five instances of failure to comply with provisions regulating the charging of professional fees (one of which constituted misappropriation); one instance of failure to pay trust money into a trust account; four instances of failure to account; four instances of failure to comply with a statutory notice requiring information to be provided to an investigator; three instances of delay in carrying out the instructions of a client or in responding to correspondence from a public authority; swearing a false affidavit; breaching an undertaking given to the Legal Services Commissioner; and practising without a practising certificate.
Most of these instances of professional misconduct occurred within a period of about four years (from 2007 to 2011). There was, during this period, a course of conduct involving, but not limited to, a number of failures - as the Solicitor himself acknowledged - to 'adjust to' and accordingly comply with the requirements of the LP Act. On most of these occasions, the requirements that he infringed had been enacted for the protection of the clients of legal practitioners.
With this consideration in mind, we approach the contest between the parties, outlined above at [68] to [80], regarding our finding of 'misappropriation' (Section C (Kanks), Ground (x)).
We are aware of a debate within the case-law on professional discipline as to whether the term 'misappropriation' necessarily connotes a conscious intention to act dishonestly (for a very recent discussion of this question, see Law Society of New South Wales v Shehadie [2016] NSWCATOD 46 at [32 - 39]). At the hearing on liability in these proceedings, the Solicitor failed both to tender evidence and to put forward any argument on this important question. For this reason, and also on account of the evidence (derived from Ms Zundans' Complaint), that the Solicitor told her that he would withhold an amount from the proceeds of sale of the principal asset of the Kanks estate to pay his costs and disbursements, we do not treat our finding of misappropriation as including a finding that the Solicitor had a conscious intention to act dishonestly.
His conduct in this connection was however culpable to a substantial degree. As we pointed out above at [85], he did not advise her of his intended charges for his professional costs and she did not authorise him to withdraw his costs and disbursements from the funds of the estate.
It is plain that solicitors do not discharge their obligations to notify their clients of the basis on which the fees owed to them will be calculated, or of any specific amount that they claim to be owing on account of fees, merely by advising a client that they have appropriated an unspecified amount from funds held by them on the client's behalf. Equally, furnishing such advice ex post facto is no substitute for obtaining client authorisation for an appropriation of this nature.
Furthermore, the two provisions of the LP Act that are quoted in Grounds (v) and (viii) of Section C respectively - s 309 and s 255 - deal specifically with these matters of disclosure by a law practice of costs liabilities in advance and authorisation by a client to a law practice to make withdrawals from trust funds. In the particular situation of withdrawals in order to pay costs and disbursements, s 261 of the Act and cl 88 of the Legal Practice Regulation 2005 impose a number of requirements to be observed. Significantly, Mr Tudehope made no claim that Ms Zundans' statement in her Complaint cast any doubt on the Tribunal's conclusion that because ss 309 and 255 had been contravened Grounds (v) and (viii) were made out.
In Council of the Law Society of New South Wales v Clapin [2011] NSWADT 83, the Administrative Decisions Tribunal dealt with a comparable situation. The following observations of the Tribunal at [206 - 209] are pertinent here:- 206 During a period of about eight years (from 1999 to 2007), the Solicitor extracted funds to pay his own costs and (in some instances) disbursements from no less than fifteen trust accounts without at any time observing the requirements of the relevant legislation… For withdrawals occurring after the commencement of the LP Act 2004, they are referred to in section 261(1)(b) of that Act and set out in clause 88 of the LP Regulation 2005. 207 In some instances… the Solicitor obtained authorisation from the client to withdraw funds on account of costs. But this was not enough to relieve him of the statutory obligation to notify the client - for example, by sending an invoice - of his intention to take this step. He consistently failed to comply with this obligation. 208 All these withdrawals accordingly amounted to breaches… of section 255(1) of the LP Act. Under section 498(1)(a) of the latter Act, they were capable of amounting to professional misconduct. In the circumstances of the present case we hold that they in fact did so. 209 Their significant effect was in each case to deprive the client of the opportunity to give consideration to, and possibly raise questions about, the scale of the costs being charged at the time when they were charged (our emphasis).
For these reasons, the Solicitor's appropriations of trust funds amounting to $45,245.47 (during June 2007) and to $9,800.95 (in December 2008) in order to pay his costs and disbursements were not authorised by law. If he was not aware of this, he should have been. In this sense, they were acts of misappropriation and his conduct in behaving in this way was seriously improper.
Following the Complaint by Ms Zundans relating (inter alia) to this matter, the Law Society issued two Notices under s 660 of the LP Act, each of which required the Solicitor to answer certain questions and provide specified documents. These Notices were served on him on 14 November 2008 and 22 January 2009 respectively (see Section C, P24 and P38). His failure to comply with them formed the basis of Grounds (iii) and (iv) in Section C.
The service of these two Notices had the further consequence of drawing to the Solicitor's attention the fact that the LP Act imposed requirements as to the charging of professional costs and that the Law Society was concerned, following Ms Zundans' Complaint, that he might not have been complying with them.
Despite this, we found, in the liability decision, that on no less than three subsequent occasions he also failed to comply with these requirements. These were our findings on Section E (Lok), Ground (i); Section G (Blaubergs), Ground (i); and Section H (Stegmanis), Ground (i). It is clear that he failed to appreciate what should have been evident to him from the questions contained in the two Notices.
The last of these findings is of particular significance in the present context. The relevant conduct by the Solicitor occurred after his practising certificate had been suspended and Mr Mednis had been appointed as Manager of his law practice (see Section H, P5). Despite these events and although he must be taken to have been aware since November 2008 (if not earlier) that compliance with regulatory requirements regarding costs was a matter of considerable importance, he proceeded, in breach of these requirements, to appropriate to his own use an amount of $15,163.98 purportedly on account of costs (see P7, P8 and P14).
In the liability decision at [42], we expressed the opinion that this Ground within Section H and also the second Ground - engaging in legal practice without holding a practising certificate - were 'instances of particularly serious misconduct'. We now add the observation that if he had had any doubt about the legality of what he was doing, it would have been simple for him to seek the advice of the Manager. But in fact, he acted without the Manager's knowledge (see P7, P8).
These features of the evidence relating to Section H lend support to our use of the term 'course of conduct' (at [142]) to describe the various instances of misconduct on the part of the Solicitor. They also undermine Mr Tudehope's contention that he has gained 'insight' into this misconduct. There is in fact little or no evidence to suggest that he is capable of learning from his past mistakes.
It will be recalled that at [104 - 108] above, we made observations of a similar nature about Mr Tudehope's submission that in certain passages in Exhibit 1 the Solicitor demonstrated that he had gained insight into the nature and seriousness of his misconduct and was deeply remorseful.
At [112 - 117], we held that the evidence relating to the Solicitor's psychological condition did not establish either (a) that he suffered from depression (or some other relevant condition) during the period, between 2007 and 2011, when his acts of misconduct occurred (though we noted one exception in this regard), or (b) that he had displayed a desire to be rehabilitated. Our reasons, in brief, were that Professor Gilandas's reports expressly related to the period following the suspension of the Solicitor's practising certificate on 22 June 2011 and that the only steps towards rehabilitation that the Solicitor had taken were to attend a clinical psychologist on five occasions during 2014.
At [125 -126], we held that the opinions of the referees could not be given significant weight because they approached their task on an incorrect assumption as to the significance of the findings in the liability decision.
We take account, in the Solicitor's favour, of our earlier rulings (at [96] and [100]) that neither the breach of an undertaking by him (Section E, Ground (vi)) nor his swearing of a false affidavit (Section F, Ground (iv)) should be treated as 'intentional'. In both these contexts, however, we indicated that he bore a 'heavy responsibility', which he failed to discharge.
Having regard to all the matters that we have outlined in this section of our decision, we are satisfied that the criterion stated by Young CJ in Eq in Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 at [17(2)] is satisfied. The probability is that the Solicitor is permanently unfit to practise. We accordingly order under s 562(2)(a) of the LP Act that his name be removed from the local roll.

Costs

Under cl 23(1) of Schedule 5 to the Civil and Administrative Tribunal Act 2013, the Tribunal is required to order the costs of the Law Society to be paid in proceedings such as these, where the Tribunal has found that the Solicitor, an Australian legal practitioner, was guilty of unsatisfactory professional conduct and there are no 'exceptional circumstances'.
No exceptional circumstances have been established. We accordingly accede to Mr Pierotti's application (on which Mr Tudehope made no submission) that the Solicitor should pay the Law Society's costs.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 May 2016

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