Solicitors:
Council of the Law Society of NSW (Applicant)
File Number(s): 1420117
[2]
REASONS FOR DECISION
In a decision published on 21 September 2015, we found Bruce Vernon Dennis (the Solicitor) guilty of professional misconduct. The finding was based upon an agreed Statement of Facts which we reproduced in our reasons.
The matter was adjourned for a hearing on 3 February this year as to the orders which should follow our finding. The Council of the Law Society of NSW (the Council) was represented by Ms C Webster SC with Mr P Maddigan and the Solicitor by Mr J Johnson.
At the hearing on 3 February Ms Webster read the affidavit of the Solicitor for the Council Ms Anne-Marie Foord, sworn 26 October 2015 which annexed a schedule of a number, approaching 200, of complaints against the Solicitor. Of these eleven resulted in adverse findings and consequential orders which stopped short of suspension or removal from the roll.
In the present case Ms Webster submitted that the Solicitor's name should be removed from the roll. She referred to the principles stated by Beazley JA in Law Society v Walsh [1997] NSWCA 185.
Ms Webster also referred to the fact that the conduct supporting our finding of professional misconduct involved breaches of sections 254 and 255 of the Legal Profession Act 2004 namely failures to account for trust money and misappropriation as well as failures to communicate with clients, acting without instructions, overcharging, breaching an order of the Supreme Court, obtaining a personal benefit by the deposit of trust funds, attempting to mislead the Law Society, failure to adequately disclose costs and delay.
Some observations make by Kirby P in Dupal v Law Society [1990] NSWCA 56 are appropriate to this case:
In Ex parte Macaulay (1930) 30 SR (NSW) 193 it was said that where a solicitor has been proved guilty of misappropriation of client funds he should not unless in very exceptional circumstances ever be allowed again to be held out to the public as a solicitor in whom confidence might be reposed. In this regard, the Full Court was reflecting a long line of English authority. See eg Willes J in Re Poole (1869) 4 CP 350, 353. See also Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655.
Those decisions must now be read in the light of the remarks of the majority of the High Court of Australia in Ex parte Lenehan (1948) 77 CLR 403, 422: "[They]... properly emphasise the great importance of financial integrity in a solicitor, but they should not be regarded as laying down a rule of law that a solicitor who has been struck off the roll for pecuniary dishonesty cannot be reinstated and that an applicant for admission who has been guilty of a similar act cannot be allowed to proceed unless it is shown that there were some exceptional circumstances in the original offence."
Restoration is difficult but not impossible. In a number of recent cases this Court has demonstrated the difficulty facing a practitioner whose name is removed from the roll for pecuniary dishonesty in thereafter having his name restored. See eg Kotowicz v Law Society of New South Wales, Court of Appeal, unreported, 7 August 1987; (1987) NSWJB 146 and Dawson v Law Society of New South Wales, Court of Appeal, unreported, 21 December 1989; (1989) NSWJB 232. Ex parte Lenehan continues to stand for the proposition that: "When such a person applies for reinstatement he is in a more disadvantageous position than an original applicant because he must displace the decision as to probable permanent unfitness which was the basis of his removal." (emphasis added).
If a court is of the opinion that a practitioner is not probably permanently unfit to practise again, it should pause before ordering removal of that practitioner's name from the roll. It should consider the appropriateness of suspension. But for the reasons which I have stated, suspension in this case is not appropriate. Removal must follow.
By the same token, like the other members of the Court, I can contemplate circumstances in which, in the future, this appellant's name might be restored to the roll upon proof of satisfactory conduct in the meantime and the good opinion of his professional colleagues to whom full details of the facts as found by this Court have been made known. As Handley JA has demonstrated, there are a number of matters which stand to the appellant's credit. But that is not uncommon in this melancholy class of case. And those facts do not justify a different result in the circumstances proved.
For the Solicitor Mr Johnson relied on the affidavits of the Solicitor sworn on 12 March 2015 and 21 May 2015. In doing so he accepted that he could not rely on statements contrary to the Statement of Agreed Facts nor statements contrary to our previous findings. Because of those caveats the affidavits are of very limited use as they predate not only our findings but the Statement of Agreed Facts. The affidavit of 21 May 2015 does however record the Solicitor's decision to not renew his practising certificate for the year commencing 1 July 2015.
Mr Johnson also read the affidavits of Maria Papanicolaou sworn 27 January 2016, Paul Riik sworn 28 January 2016, John Nixon sworn 21 January 2016, Mark Cleary sworn 1 February 2016, Craig Stewart sworn 1 February 2016, J. B. Renshaw sworn 3 February 2016, R.A. Watson sworn 28 January 2016, P Finch 29 January 2016 and Keith Rewell sworn 2 February 2016. The affidavits were read on the basis that they were not to be taken as evidence of underlying facts stated. On that basis none of the deponents was required for cross examination. Mr Johnson also tendered (exhibit 1) the report of Dr David Kaye dated 29 January 2016, three statements of respectively Frank Tully, Hanif Arislav and Robert White (exhibits 2, 3 and 4). Some of this evidence was derived from personal acquaintance with the Solicitor and some from a professional relationship. It was all much to the Solicitor's credit, a common thread being the Solicitor's inclination to help people in need without regard for his own interests. Perhaps this inclination provides some explanation for the Solicitor's neglect of his professional obligations. As an example we quote from the affidavit of Mr Cleary, a lawyer of more than 30 years standing:
7. From my perspective, the legal practice of Mr Dennis was always a busy and very varied practice, perhaps unusually (for a small firm) spanning a wide variety of jurisdictions).
8. As noted, my observations of Mr Dennis in legal practice have been in the context of motor vehicle injury cases. I can state that in these matters he has to my knowledge always acted in the best interest of his clients.
9. Mr Dennis has been perhaps too compassionate at times, taking on very difficult cases for clients whom on occasions I have had to advise should not proceed with their claims.
Mr Rewell a barrister who took silk in 2001 deposed:
11. Much, if not all, of my professional relationship with Mr Dennis took place before the firm of Dennis & Co was reconstituted as DC Legal Pty Ltd in June/July 2009.
12. Dennis & Co was a very busy legal practice, particularity in the 1980s and 1990s. Mr Dennis had control of many personal injury files. He also turned his attention to other areas of legal practice.
13. My experience with Mr Dennis in the workers compensation, motor accident and common law claims in which I was briefed by him, was that he was diligent and conscientious solicitor, who did his best to advance the interests of his clients.
14. Over the years during which I was briefed by Mr Dennis or his firm, I had contact with many of Mr Dennis' clients. I have no recollection of any specific complaint to me by a client about Mr Dennis' professional conduct.
15. I do recall Mr Dennis obtaining very satisfactory results for several clients whose claims were, to say the least, speculative or whose legal entitlements were strongly disputed.
Dr Kaye a Consultant Psychologist interviewed the Solicitor three times in December 2015 and January 2016. He concluded his report dated 29 January 2016:
Mr. Dennis was admitted as a solicitor in 1978. He has suffered protracted and prolonged acute stress due to occupational stressors and conflicting demands which he coped with by relying on his colleagues and staff, especially at times when he was required to travel interstate to work on cases which he had carriage of.
Mr. Dennis appears to have committed the material offences as a result of a combination of factors when combined made him vulnerable not with any intention of committing the offenses but as a result of his reliance on his staff who acted incompetently. Mr. Dennis is highly remorseful. Mr. Dennis is essentially an honest man and the main problem was incompetent staff. He requires professional supervision and should continue in law as a legal clerk or some other suitable capacity.
There is no doubt that the Solicitor was to many people personable, diligent, competent, unselfish and compassionate. But on the other hand the findings we have made against him are extremely serious particularly in relation to financial matters which go the heart of the trust which the community is entitled to expect from and repose in those who engage in the honourable practice of the law. Nor is the Solicitor assisted by the many occasions on which he has previously come adversely to the notice of the Law Society.
Although we accept Mr Johnson's submission that an order striking the name of a legal practitioner from the roll should be reserved for very serious, if not extreme cases, we regard this as such a case. Our duty is to protect the community and having regard to the gravity of the findings we have made and the Solicitor's previous record we could have no confidence in a conclusion that he is presently a fit and proper person to remain on the roll of legal practitioners.
Accordingly we make these orders:
1. That the name of Bruce Vernon Dennis be removed from the roll of legal practitioners.
2. That the Solicitor pay the costs of the Council of the Law Society of NSW as agreed upon or as assessed on a party and party basis.
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
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Decision last updated: 06 May 2016