Council of the Law Society of NSW v Curran

Grounds 1 and 2 - Misappropriation of Trust Monies/Misappropriation of Monies due to his then Employer

1. The relevant conduct occurred between April 2012 and August 2013, during which time the Solicitor was employed by the Law Firm of Makinson & d'Apice (the Firm).
2. The Application sets out 5 separate instances of misappropriation, which were summarised in the report of Mr Mitchell, the Law Society's Chief Trust Account Investigator, as follows: Date Details Amount 18 December 2012 Addison Road Centre $14,055.00 25 January 2013 Multi R It $2,051.50 4 March 2013 Addison Road Centre $2,101.00 11 March 2013 Dyball Mr Christopher D $5,000.00 27 March 2013 Chris Dyball Mr Christopher D $5,000.00 Total Deposits $28,207.50

1. The parties listed in the column headed Details were clients of the Firm for whom the Solicitor acted. The sums listed in the column headed Amount refer to monies that the Solicitor deposited into his personal bank account. We note that in his affidavit sworn on 26 August 2016, the Solicitor stated that in each matter he directed these clients to pay monies that were due to the Firm for professional fees or on account of disbursements "to an account I controlled".
2. The Solicitor received the amount of $14,055 from Addison Road Centre on 18 December 2012 in payment of a number of bills that were issued by the Firm. The Solicitor provided his own bank account details to that client, instead of the Firm's bank account details, and the client electronically transferred the funds to pay those bills believing that the payment was being made to the Firm's bank account. The Solicitor repeated this misrepresentation in relation to the payments made by Multi R It in January 2013 and the second payment that was made by Addison Road Community Centre in March 2013.
3. We are satisfied that these payments are evidence that the Solicitor misappropriated monies that were due to his employer (ground 2).
4. We further note that Mr Dyball made 2 payments of $5,000 each, on account of costs and disbursements, but he made each payment to the Solicitor's bank account in the mistaken belief that the monies were being paid into the Firm's trust account.
5. We are satisfied that these payments are evidence that the Solicitor misappropriated trust monies (ground 1).
6. When he was first interviewed by Mr Mitchell, the Solicitor was evasive about how these monies came to be paid into his bank account and he suggested that it was the result of a mistake. However, by the time the matter came before the Tribunal, the solicitor had filed his Affidavit in which he admitted that he was wholly responsible for diverting these payments into his own bank account.
7. The Solicitor also conceded that he had used the funds for his own personal expenditure, although he said it was always his intention to repay the monies as soon as he was in a position to do so. We note that all but $30.50 had been repaid to the Firm by 30 May 2013.
8. In his Affidavit, the Solicitor stated that a friend had loaned him $25,000 and he repaid the balance. He also set out his personal circumstances leading up to these events and his mental and physical state at the time and we will discuss these matters in relation to the issue of the final orders to be made.
9. The particulars in the Application also refer to steps taken by the Solicitor to falsify the books and records of the Firm in an effort to disguise the payments that he had received. In fact, the diverted payments were only discovered by the Firm some month later in July 2013, and even then, only after a "tip off" from the Solicitor's ex-partner. However, the Law Society did not rely on these matters as a separate ground of complaint of professional misconduct.
10. On behalf of the Solicitor, Mr Bourke properly submitted that the Solicitor's conduct in receiving these monies was dishonest and he is guilty of misappropriation (see: The Council of the Law Society of New South Wales v Coombes [2015] NSWCATOD 108).
11. For these reasons, we are satisfied that Grounds 1 and 2 have been established, and we find the Solicitor guilty of professional misconduct in relation to both grounds under s 497 (1) (b) of the LPA and at common law.

Grounds 3, 7 and 9 - Practised without a Practising Certificate; Practised as a Solicitor in breach of his Undertaking to the Society; and Practised Contrary to the Terms of his Practising Certificate

1. The Firm first brought the Solicitor's conduct to the Law Society's attention in August 2013. The Law Society immediately commenced an investigation and in December 2013, it resolved to initiate a complaint against the Solicitor.
2. On 20 November 2013, the Solicitor provided the following undertaking to the Law Society: I undertake not to engage in legal practice until this matter is resolved. I undertake to maintain frequent contact with Mr Greg Walsh as a senior Legal Practitioner and to accept his advice and directions until this matter is dealt with by the Law Society Council.
3. When he provided that undertaking the Solicitor was not employed as a Legal Practitioner, but he held a Practising Certificate that would not expire until 30 June 2014. He had retained Mr Walsh, Solicitor, to advise him in relation to the Law Society's investigation.
4. The Solicitor did not apply to renew his Practising Certificate for the 2015 practice year. However, Mr Walsh offered him employment as a Law Clerk. On 4 July 2014, Mr Walsh gave an undertaking to the Law Society regarding his employment of the Solicitor as a Clerk and this undertaking attached further undertakings that the Solicitor had given to Mr Walsh, which included (inter alia) that: (1) He would not have access to Mr Walsh's Trust Account or Office Account; and (2) He would not sign any correspondence.
5. However, on 28 August 2014, Mr Walsh terminated the Solicitor's employment. The following day, he informed the Law Society that he had become aware that the Solicitor had breached his undertakings as he had been carrying out legal work for persons who were not clients of his firm and had been using the firm's email system do to so.
6. The available evidence indicates that the Solicitor breached his undertakings to Mr Walsh on 3 occasions, namely: (1) he prepared a draft Statement of Claim for one client; (2) he prepared a draft Memorandum of Understanding for another client; and (3) he acted on a sale of business from More Home Loans Pty Limited (owned by Mr Mark Anderson) to Bhealthy Pty Limited (owned by Mr Fadi Roumieh). This last matter became the subject of Mr Roumieh's complaint to the OLSC.
7. The Solicitor purported to act for both Mr Anderson and Mr Roumieh and their companies, and he agreed to hold the purchase funds on behalf of Mr Roumieh until settlement, in what he described as his "trust account". In his Affidavit Mt Roumieh deposes that all times he believed the Solicitor was entitled to practice as a Solicitor and that he had a trust account. The Solicitor first became involved in this transaction in June 2014, which pre-dates his employment by Mr Walsh as a Law Clerk. He has admitted all relevant facts.
8. We are satisfied that the available evidence establishes that the Solicitor carried out legal work: (1) In the period after June 2014, when he did not hold a Practising Certificate (Ground 3); (2) In breach of his undertaking to the Law Society in November 2013 (Ground 7); and (3) In breach of the terms of his Practising Certificate (Ground 9).
9. Ground 9 of the Application refers to the legal work that he performed in the Anderson/Roumieh matter in June 2014, before he commenced employment with Mr Walsh. He held a current Practising Certificate at that time, but it did not entitle him to practice on his own account. In any event, this conduct was also in breach of the Solicitor's undertaking to Mr Walsh.
10. In its Submissions, the Law Society referred to and relied upon the decision of the Solicitors Statutory Committee in the matter of Ian Alexander McKnight (decision dated 3 December 1984). We consider that the following passage is relevant to the present circumstances: As was stated by Reynolds JA in Mee Ling v The Law Society of NSW at 498: "The legislative scheme makes it clear that protection of the public is involved". Section 67 prohibits a solicitor from practicing unless he/she has in force a practising certificate and he/she complies with any conditions subject to which the certificate has been issued. In the present case the solicitor practised on its own account, albeit in only three instances, contrary to the condition subject to which the certificate was issued, namely that solicitor not engage in practice on his own account. That was in defiance of a law designed to protect the public. In the words of Reynolds JA … "whenever the plain statutory words are applied to his conduct or whether it is asked if a solicitor of good repute would regard the conduct a dishonourable, the conclusion in this case is the same.
11. The Solicitor's conduct in this matter is further compounded by the fact that he breached his undertaking to the Law Society and he continued to engage in legal practice without a current Practising Certificate, when he had no professional indemnity insurance. In so doing, he exposed those persons for whom he acted and members of the public to a further risk.
12. For these reasons, we find that the Solicitor is guilty of professional misconduct in relation to these three grounds of the Application.

Grounds 4, 5, 6 and 8 - Attempted to mislead the complainant; Delayed in releasing trust monies in accordance with the complainant's direction; Improperly pressured the complainant; Received and dealt with trust money when he had no entitlement to do so

1. These grounds relate to the Anderson/Roumieh transaction. In June 2014, the Solicitor received $37,620 from Mr Roumieh, which he purported to hold in a trust account until settlement. However, he has admitted that he had no trust account and that the monies were deposited into his own bank account and became intermingled with his own funds.
2. On 1 August 2014, Mr Roumieh provided the Solicitor with a written authority to release the funds to Mr Anderson's company. However, the Solicitor was unable to do so because, as he stated in his Affidavit: I did not have this amount in my account at this time. I acted evasively towards Mark (Mr Anderson) and Fadi (Mr Roumieh) in order to delay the payment until I had the funds.
3. The Solicitor failed to respond to emails that he received from the parties until 8 August 2014, when he asserted that the funds had been transferred to an incorrect bank account number. That assertion was not true and no funds had been transferred at that date.
4. On 14 August 2014, Mr Roumieh made his complaint to the OLSC and he advised the Solicitor of this. On 15 August 2014, the Solicitor sent a text message to Mr Roumieh, which included the following sentence: I understand that you have made complaints to the OLSC and the Police. I put you on notice that I may sue you as a result of said complaints.
5. On 19 August 2014, the solicitor transferred the sum of $37,620 to Mr Anderson.
6. The Solicitor has admitted all of these matters and we are satisfied that each of these grounds of the Application has been established. We find that the Solicitor is guilty of professional misconduct in relation to each ground.
7. If it were to be considered in isolation, it is possible that a complaint of improperly pressuring someone to withdraw a complaint might be categorised as unsatisfactory professional conduct rather than professional misconduct. However, in the circumstances of this matter the Tribunal is not able to consider this conduct in isolation. There was no proper basis for the Solicitor withholding the transfer of the funds to Mr Anderson's company and Mr Roumieh's complaint to the OLSC was entirely justified.

Penalty

1. On behalf of the Solicitor, Mr Bourke referred the Tribunal to the Solicitor's Affidavit, in which he stated (relevantly): 32 I am deeply ashamed and remorseful of my conduct which are the subject of these proceedings and which I have described above. 33 I agree that my conduct is both disgraceful and dishonourable and that my name should justifiably be removed from the roll. It is very regrettable that I will not be entitled to practice law as this was something I enjoyed and it was the only thing I was qualified for. 34 I agree that I misappropriated moneys because I was unable to control my spending. I always intended to repay these funds. 35 I also acknowledge that I practised contrary to my undertaking and the terms of my practising certificate. This was a very stupid thing to do but intentions at the time were simply to help others and I did not do it for financial gain. 36 The conduct is a direct result of my personal circumstances which were out of control at the time in addition to mental health and depressive issues which resulted in reckless behaviour without proper care for my duties and undertakings. 37 I am mortified by my actions as described above and I could not be more sorry or ashamed of them. I have brought shame and embarrassment upon my family, those that I care for, those that I have worked with and trusted me and also the wider legal profession generally.
2. Mr Bourke submitted that the Solicitor accepts that his conduct was disgraceful and dishonourable and that he now accepts that his name should properly be removed from the Roll. He also referred to the Solicitor's letters of apology to the Firm, Mr Walsh and Mr Roumieh, copies of which were annexed to his Affidavit, and noted that a cheque for $300 was also sent to Mr Roumieh.
3. We note that in his Affidavit the Solicitor sought to explain his circumstances at the time of the misappropriations from the Firm as follows: 9 My personal life and living circumstances became chaotic and I was unable to control my spending. I was drinking heavily and also regularly gambling on poker machines and horses in an attempt to escape reality. As a result I was regularly broke. We note that he gave oral evidence to the Tribunal that was in similar terms.
4. The Solicitor's evidence concerning his state of mind during 2012 and 2013 is supported by medical reports from Dr Nielssen, psychiatrist, issued in January 2014 and from Dr Miller, psychiatrist, issued in March 2014. We note that Mr Walsh had arranged for the Solicitor to be examined by these doctors.
5. Dr Nielssen diagnosed significant depression and concluded, relevantly: Mr Curran appears to have made a partial recovery from his depressive illness and was assessed to be fit to resume work as a solicitor. Mr Curran reported that he has remained under psychiatric care (with Dr Miller) and was taking medication prescribed for depression and for alcohol abuse. Ongoing treatment and supervision of his fitness to practice by a psychiatrist is recommended until he has made a full recovery. We note that this opinion was expressed after the misappropriations from the Firm had occurred, but before the Solicitor had commenced employment with Mr Walsh. We also note that the Solicitor did not continue with the treatment recommended by Dr Nielssen.
6. We note also that the Solicitor was first admitted to practice in 2003 and that he is 39 years of age. He indicated that he is now engaged in full-time employment in an industry that is unrelated to the Law and that he has a stable personal life with a new partner. Mr Bourke also submitted, and we accept, that except in the early stages the investigation, the Solicitor has co-operated with the Law Society and that he complied with Tribunal's directions.
7. We accept that the Solicitor's expressed contrition and remorse is genuine and that he is now aware that his conduct at the relevant times is properly described as disgraceful and dishonourable.
8. We also accept that the Tribunal's role is protective and not punitive in nature - Law Society of New South Wales v Bannister (1993) 4 LPDR and Harvey v The Law Society of New South Wales (1995) 49 ALJR. Nevertheless, the case law generally makes it clear the Solicitor's conduct in this matter requires us to make an order that the Solicitor's name be removed from the Roll.

Costs

1. As we have found the Solicitor guilty of professional misconduct, Sch 5 cl 23 (1) of the Civil and Administrative Tribunal Act 2013 (No. 2) requires us make an order that he pay the costs of the proceedings unless there are exceptional circumstances. There is no evidence of any exceptional circumstances in this matter.

Orders

1. We make the following orders: 1. The name of Christopher Francis Curran be removed from the Roll; and 2. The Solicitor is to pay the Law Society's costs, as agreed or assessed.

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: 21 March 2017