Council of the Law Society of NSW v Greenstein

NCAT Occupational|2015-08-20

C Groenewegen (Applicant) D Greenstein (Respondent) File Number(s): 1420362

The Application

On 19 December 2014, the Council of the Law Society of New South Wales ('the Law Society') filed an Application in the Tribunal alleging that the Respondent solicitor, David Greenstein ('the Solicitor'), was guilty of professional misconduct on eleven Grounds, which were formulated as follows: David Greenstein is guilty of professional misconduct in that he: 1. Contravened a condition on his practising certificate in respect to the practising certificate years ending 30 June 2011 and 30 June 2012; 2. Failed to comply with his undertaking of 5 October 2011 to the law Society; 3. Failed to respond to correspondence from the Law Society Registry in respect to the practising certificate years ending 30 June 2011 and 30 June 2012; 4. Failed to pay counsel's fees; 5. Failed to respond to counsel's correspondence; 6. Breached Section 255 of the Legal Profession Act 2004; 7. Breached Section 256 of the Legal Profession Act 2004; 8. Breached Section 263 of the Legal Profession Act 2004; 9. Breached Section 264 of the Legal Profession Act 2004; 10. Without reasonable excuse caused a deficiency in trust monies; and 11. Misappropriated trust monies.
The Law Society sought orders as follows: 1. The name of the Solicitor be removed from the roll of local lawyers; 2. The Solicitor pay the costs of the Law Society as agreed or assessed; and 3. The Solicitor be subject to any other order as the Tribunal deems appropriate.

In these Particulars Solicitor means David Greenstein Office Account means the Business Cheque Account in the name Greenstein & Associates held at NAB Chatswood (details provided). Trust Account means the Trust Account NAB Chatswood (details provided). Controlled Money Account means the account in the name Greenstein & Associates ATF Katzy Pty Ltd & Karema Holdings Pty Ltd Bus Cash Maximiser held at NAB Chatswood (details provided). 1. The Solicitor was admitted to practice on 30 October 1992. Between then and 1 July 2013 he held a practising certificate. 2. At all material times the Solicitor was the principal of the law practice known as Greenstein & Associates ['the Law Practice']. Mandatory Continuing Legal Education ['MCLE'] Requirements 3. For the practising certificate year ending 30 June 2011 the Solicitor failed to complete his MCLE requirements. 4. By email sent on 30 September 2011 the Solicitor wrote to the Registry of the Law Society in the following terms: '... It appears that I did not accrue enough units by 31 March, 2011 and seek and extension of time to do so... I am due to attend a Property Law course to be held at the Grace Hotel on Tuesday, 22 November, 2011 under the auspices of UNSW, and undertake to attend such additional courses as may be relevant to my practice and as may be required to accrue sufficient units... 5. By letter dated 4 October 2011 the Licensing Committee of the Law Society granted the Solicitor an extension of the time to 31 December 2011 to complete his MCLE requirements, conditional upon the receipt by the Law Society within 7 days, an undertaking by the Solicitor to complete his MCLE units by the nominated date. 6. By email dated 4 October 2011 Ms Imelda Craglietto, Law Society Registry Compliance Officer ['the Compliance Officer'] notified the Solicitor of the extension to 31 December 2011. 7. On 5 October 2011 the Solicitor gave an undertaking to the Law Society in the following terms: 'I undertake to satisfy my Mandatory Continuing Legal Education requirements by the date specified by the Licensing Committee and to provide evidence of compliance on the form provided. I understand that failure to comply with this undertaking may result in the matter being referred to Professional Standards Division.' 8. By letter dated 30 January 2012 from the Compliance Officer, the Solicitor was: a. informed that no evidence had been received by the Registry to demonstrate the Solicitor's compliance with his undertaking; and b. requested to complete an enclosed Record of MCLE Activities and return it as soon as possible. 9. The Law Society received from the Solicitor no response to its 30 January 2012 letter. 10. By letter dated 12 March 2012 from the Registry Compliance Officer: a. the terms of her earlier letter were repeated; and b. the Solicitor was alerted to a process whereby if no reply was received by 16 April 2012, the matter would be referred to the Licensing Committee with a recommendation for referral to the Professional Standards Department. 11. The Law Society received from the Solicitor no response to its 12 March 2012 letter. 12. On 14 May 2012 the Solicitor submitted a 2012/13 Application for a Practising Certificate Renewal ['the 2012/13 Application for a PC']. 13. Question 6 on the 2012/13 Application for a PC was: 'Have you complied with the Mandatory Continuing Legal Education requirements in NSW? [If No] Attach a letter detailing the reason and requesting an extension of time or an exemption.' 14. The Solicitor answered Question 6 in the negative but failed to attach a letter of explanation and a request for either an extension of time or an exemption. 15. By letters dated 28 June 2012, 17 July 2012 and 1 August 2012 the Solicitor was advised by the Compliance Officer that his 2012/13 Application for a PC could not be processed because of his answer without explanation to Question 6. 16. In contravention of the conditions of his practising certificate, the Solicitor failed to complete his MCLE Requirements: a. for the 2010/11 practising certificate year; and b. during the period 1 July 2011 to 31 March 2012 or at all for the 2012/13 practising certificate year. 17. The Solicitor failed to comply with an undertaking to complete his MCLE units for the 2010/11 practising certificate year by the extension date of 31 December 2011. 18. After 5 October 2011, the Compliance Officer received from the Solicitor no response to her correspondence. 19. On 5 August 2013 a Manager was appointed to the Solicitor's practice. Fast Fix Loans Pty Limited v Samardzic & Anor ['the Fast Fix Matter'] 20. The Law Practice was retained by Fast Fix Loans Pty Limited ['Fast Fix'] in its matter against Mr and Mrs Samardzic. 21. The Law Practice briefed Marcus Young SC ['counsel'] in the matter and agreed to be bound by the terms of counsel's Standard Fee Agreement and Disclosure. 22. Between 18 March 2011 and 29 July 2011 counsel issued invoices numbered 2866, 2872, 2875, 2886, 2916, 2927, 3002 and 3007 totaling $14,256.00 for work done. 23. On 8 April 2011 counsel received a payment of $1,386.00 for invoices 2866 and 2872. 24. On 23 May 2011 the Solicitor receipted to Fast Fix a credit note in the sum of $4,158.00 created from Receipt #001192. 25. On 6 September 2011 the Solicitor issued to Fast Fix tax invoice No 01472 for $14,573.15 which included as disbursements sums the subject of counsel's invoices numbered 2875, 2886, 2927, 3002 and 3007 totaling $8,712.00. 26. On 9 September 2011 counsel received a further payment of $3,619.00 towards his fees, being $539.00 less than the sum of $4,158.00 sought in invoice 2916. 27. In late August and late September 2011 counsel issued invoices numbered 3424 and 3460 respectively totaling $646.86 in late fees. 28. On 28 September 2011 the Solicitor deposited or caused to be deposited into the Office Account a sum of $14,573.15 received from Fast Fix. 29. The Solicitor failed to forward to counsel immediately or at all and failed to deposit into the Trust Account for later payment to counsel, those monies that had been collected for counsel's fees from Fast Fix. 30. The Solicitor applied to his own expenses the sums paid to him by Fast Fix for the purposes of settlement of counsel's bills in the sum of $8,712.00 plus $539.00 being $9,251.00. 31. On 27 February 2012 the Fast Fix Ledger had a credit balance of $700.35 comprising an excess of monies paid by Fast Fix over billings by the Solicitor, and a credit balance of $159.50 in respect of anticipated disbursements, totaling $859.85. 32. The Solicitor neither transferred the credit balance of $859.85 to the Trust Account nor refunded the client, but instead applied the sum to his own expenses. 33. In the circumstances described in paragraphs 29 and 32 above, the Solicitor breached s 255 of the Act. 34. The Solicitor without reasonable excuse caused a deficiency in trust monies of $10,110.85. 35. The Solicitor misappropriated $10,110.85 comprising $9,251.00 properly belonging to counsel and $859.85 properly belonging to Fast Fix. 36. Counsel caused Mr Richard Heagren-Gibbs, Accounts Manager, to write to the Solicitor monthly from February 2012 to February 2013, excluding December 2012. 37. The Solicitor failed to respond to Mr Heagren-Gibbs' letters. The Karmea Holdings Matter 38. The Law Practice was retained by Karmea Holdings Pty Limited as vendor of a business to Katzy Pty Limited as purchaser for a price of $500,000.00. 39. Pursuant to the Contract for Sale of Business dated 31 August 2011, the deposit of $100,000.00 was invested by the Law Practice as the deposit holder into a term deposit. 40. On 6 December 2011, upon maturity of the term deposit and by agreement between the parties, the deposit together with interest earned in the sum of $726.17 ['the Entrusted Monies'] was transferred to the Controlled Money Account. 41. Without authority, the Solicitor on 13 December 2011 transferred the sum of $20,615.00 from the Entrusted Monies in the Controlled Money Account to a Commonwealth Bank loan account in the name of himself and his former wife. 42. In breach of s 255(1) and s 256(2) of the Act, the Solicitor failed to hold the Entrusted Monies exclusively for the person on whose behalf they were received and to disburse them only in accordance with a direction given by the person. 43. To complete the sale of business the Solicitor, on 23 January 2012, relevantly paid the sum of $100,957.17 to the vendor as settlement of the deposit plus interest earned. This sum comprised the monies in the Controlled Money Account plus the sum of $20,623.00 paid from the Trust Account. 44. The withdrawal by the Solicitor of $20,623.00 was not recorded in any trust ledger. 45. The Solicitor misappropriated entrusted funds twice: a. in the sum of $20,615.00 on 13 December 2011; and b. in the sum of $20,623.00 on or about 25 January 2012. 46. On 6 August 2012 the Solicitor deposited $15,675.87 in the Trust Account to partially reduce the deficiency caused by his withdrawal on or about 25 January 2012. 47. On 7 August 2013 the Solicitor deposited $5,000.00 in the Trust Account to partially reduce the deficiency caused by his withdrawal on or about 25 January 2012. 48. On 9 August 2013 the Solicitor deposited $2,678.10 in the Trust Account to expunge the deficiency caused by his withdrawal on 25 January 2012. 49. Without reasonable excuse the Solicitor caused a deficiency in trust monies of: a. $20,615.00 between 13 December 2011 and 25 January 2012; b. $20,623.00 between 25 January 2012 and 6 August 2012; c. $4,947.13 between 6 August 2012 and 7 August 2013. 50. In breach of s 264 of the Act the Solicitor failed to keep trust records in relation to trust money received by the practice in the Karmea Holdings Matter in accordance with the regulations and in a way that at all times disclosed the true position in relation to trust money. 51. In both the Fast Fix Matter and the Karmea Holdings Matter the Solicitor breached s 263(1) of the Act in that he failed to report the irregularities caused by him in the trust accounts or trust ledger accounts.

Legal Profession Act 2004 ("the LP Act") 58 Compliance with conditions (1) The holder of a current local practising certificate must not contravene (in this jurisdiction or elsewhere) a condition to which the certificate is subject. Maximum penalty: 100 penalty units. 243 Definitions (1) In this Part: controlled money means money received or held by a law practice in respect of which the practice has a written direction to deposit the money in an account (other than a general trust account) over which the practice has or will have exclusive control. controlled money account means an account maintained by a law practice with an ADI for the holding of controlled money received by the practice. trust money means money entrusted to a law practice in the course of or in connection with the provision of legal services by the practice, and includes: (a) money received by the practice on account of legal costs in advance of providing the services, and (b) controlled money received by the practice, and (c) transit money received by the practice, and (d) money received by the practice, that is the subject of a power, exercisable by the practice or an associate of the practice, to deal with the money for or on behalf of another person. 255 Holding, disbursing and accounting for trust money (1) A law practice must: (a) hold trust money deposited in a general trust account of the practice exclusively for the person on whose behalf it is received, and (b) disburse the trust money only in accordance with a direction given by the person. Maximum penalty: 50 penalty units. (2) Subsection (1) applies subject to an order of a court of competent jurisdiction or as authorised by law. (3) The law practice must account for the trust money as required by the regulations. Maximum penalty: 50 penalty units. 256 Controlled money (1) As soon as practicable after receiving controlled money, a law practice must deposit the money in the account specified in the written direction relating to the money. Maximum penalty: 50 penalty units. (2) The law practice must hold controlled money deposited in a controlled money account in accordance with subsection (1) exclusively for the person on whose behalf it was received. Maximum penalty: 50 penalty units. (3) The law practice that holds controlled money deposited in a controlled money account in accordance with subsection (1) must not disburse the money except in accordance with: (a) the written direction mentioned in that subsection, or (b) a later written direction given by or on behalf of the person on whose behalf the money was received. Maximum penalty: 50 penalty units. (4) The law practice must maintain the controlled money account, and account for the controlled money, as required by the regulations. Maximum penalty: 50 penalty units. (5) The law practice must keep a written direction mentioned in this section for the period prescribed by the regulations. Maximum penalty: 50 penalty units. (6) The law practice must ensure that the controlled money account is used for the deposit of controlled money received on behalf of the person referred to in subsection (2), and not for the deposit of controlled money received on behalf of any other person, except to the extent that the regulations otherwise permit. Maximum penalty: 50 penalty units. (7) Subsection (3) applies subject to an order of a court of competent jurisdiction or as authorised by law. 263 Reporting certain irregularities and suspected irregularities (1) As soon as practicable after a legal practitioner associate of a law practice becomes aware that there is an irregularity in any of the practice's trust accounts or trust ledger accounts, the associate must give written notice of the irregularity to: (a) the Law Society Council, and (b) if a corresponding authority is responsible for the regulation of the accounts concerned - the corresponding authority. Maximum penalty: 50 penalty units. (2) If an Australian legal practitioner believes on reasonable grounds that there is an irregularity in connection with the receipt, recording or disbursement of any trust money received by a law practice of which the practitioner is not a legal practitioner associate, the practitioner must, as soon as practicable after forming the belief, give written notice of it to: (a) the Law Society Council, and (b) if a corresponding authority is responsible for the regulation of the accounts relating to the trust money concerned - the corresponding authority. Maximum penalty: 50 penalty units. (3) An Australian legal practitioner is not liable for any loss or damage suffered by another person as a result of the practitioner's compliance with subsection (1) or (2). 264 Keeping trust records (1) A law practice must keep in permanent form trust records in relation to trust money received by the practice. Maximum penalty: 100 penalty units. (2) The law practice must keep the trust records: (a) in accordance with the regulations, and (b) in a way that at all times discloses the true position in relation to trust money received for or on behalf of any person, and (c) in a way that enables the trust records to be conveniently and properly investigated or externally examined, and (d) for a period determined in accordance with the regulations.Maximum penalty: 100 penalty units. 497 Professional misconduct (1) For the purposes of this Act: professional misconduct includes: (a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and (b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice. (2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters. 498 Conduct capable of being unsatisfactory professional conduct or professional misconduct (1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct: (a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules, … (2) Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention. 562 Determinations of Tribunal (1) Orders generally If, after it has completed a hearing under this Part in relation to a complaint against an Australian legal practitioner, the Tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the Tribunal may make such orders as it thinks fit, including any one or more of the orders specified in this section.

Legal Profession Uniform Law Application Act 2014 No. 16 (NSW) ("the Application Act") Sch 9, Pt 2, cl 3 - General savings and transitional provisions (3) Any act, matter or thing subsisting immediately before the commencement of relevant provisions of the Legal Profession Uniform Law (NSW) that: (a) was done or omitted under the repealed Act, and (b) could have been done or omitted under that Law (with any necessary modifications) if that Law had been in force when it was done or omitted, is taken to have been done or omitted under that Law… 11 - Designation of local authorities and tribunals (1) A person or body specified in Column 2 of Table 1 is the designated local regulatory authority for the purposes of a provision of the Legal Profession Uniform Law (NSW) specified in Column 1 of that Table opposite that person or body. Note. See section 6 of the Uniform Law (NSW) for the definition of designated local regulatory authority. Table 1 Designated local regulatory authorities Column 1 Column 2 Provision of the Uniform Law (NSW) Designated local regulatory authority NSW Commissioner Chapter 5 Note. Section 405(2) of the Uniform Law (NSW) contemplates that the local regulatory authority (the NSW Commissioner) may delegate Chapter 5 functions to a professional association (the Bar Association or Law Society). See also sections 29 (c) and 31 (1) (c) of this Act.

… (3) A body specified in Column 2 of Table 2 is the designated tribunal for the purposes of a provision of the Legal Profession Uniform Law (NSW) specified in Column 1 of that Table opposite that body. Note. See section 6 of the Uniform Law (NSW) for the definition of designated tribunal. Table 2 Designated tribunals Column 1 Column 2 Provision of Uniform Law (NSW) Chapter 5, Part 5.4, Division 3 NCAT Chapter 5, Part 5.5 NCAT Chapter 5, section 314 NCAT

Legal Profession Uniform Law (NSW) No. 16a ("the Uniform Law") 302 Determination by designated tribunal - disciplinary matters (1) If, after it has completed a hearing under this Part into the conduct of a respondent lawyer, the designated tribunal finds that the lawyer is guilty of unsatisfactory professional conduct or professional misconduct, the designated tribunal may make any orders that it thinks fit, including any of the orders that a local regulatory authority can make under section 299 in relation to a lawyer and any one or more of the following - … (f) an order recommending that the name of the lawyer be removed from a roll kept by a Supreme Court, a register of lawyers kept under jurisdictional legislation or the Australian Legal Profession Register; … (2) Subject to section 303, the designated tribunal may make ancillary or other orders, including - (a) an order for payment by the lawyer of expenses associated with orders under this section, as assessed or reviewed in or in accordance with the order or as agreed; and (b) an interlocutory or interim order, including an order of the kind referred to in subsection (1). (3) The designated tribunal may find a person guilty of unsatisfactory professional conduct even though the complaint or charge alleged professional misconduct. (4) If the designated tribunal makes an order that a lawyer pay a fine, a copy of the order may be filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount of the fine and the order may be enforced as if it were an order of the court. (5) To avoid doubt, the power of the designated tribunal under subsection (1) to make any of the orders that the designated local regulatory authority can make under section 299 extends to making orders of that kind in relation to a lawyer whom the tribunal finds is guilty of professional misconduct. (6) It is intended that jurisdictional legislation may provide a right of appeal against or a right of review of the designated tribunal's decision. Sch 4, Pt 1, cl 2 - General savings and transitional provisions: …(2) If anything of a kind required or permitted to be done under a provision of this Law as applied in this jurisdiction was done under a corresponding provision of the old legislation and still had effect immediately before the commencement day, the thing continues in effect on and after that day as if - (a) this Law as applied in this jurisdiction had been in force when it was done; and (b) it had been done under this Law as applied in this jurisdiction.

Civil and Administrative Tribunal Act 2013 (No. 2) ("the CAT Act") 28(1) - Jurisdiction of Tribunal generally (1) The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.

The Law Society's evidence

On 19 December 2014, the Law Society filed an affidavit sworn on 12 December 2014 by its solicitor, Ms Anne-Marie Foord; an affidavit sworn on 12 December 2014 by Mr Ronald Dunlop, a Trust Account Investigator employed by the Law Society; and an affidavit sworn on 28 November 2014 by Mr John Mitchell, Chief Trust Account Investigator and Supervisor employed by the Law Society. These three affidavits constituted the Law Society's evidence.

The Solicitor's Evidence

During directions hearings held on 4 February 2015 and 1 April 2015, the Solicitor was ordered to file and serve his Reply and any evidence upon which he intended to rely. However, during a directions hearing on 6 May 2015, the Solicitor informed the Tribunal that he admitted the whole of the Application and that he would not be filing a Reply or Affidavit evidence in response to the Application.

The course of the proceedings

The matter was listed for hearing before us on 20 August 2015. Ms C Groenewegen appeared for the Law Society and the Solicitor appeared in person. The Law Society lodged an Outline of Submissions with the Tribunal on 17 July 2015 and Ms Groenewegen made oral submissions in relation to that document.
We have summarised the Law Society's submissions as follows:

Legislative Scheme and Jurisdiction of the Tribunal

Under s 28(1) of the CAT Act, the Tribunal has such jurisdiction and functions as may be conferred or imposed upon it by other legislation. The Application sought orders under s 562 of the LP Act, but on 1 July 2015, the LP Act was repealed and the Application Act and the Uniform Law came into force.
The Application is subject to the Sch 9 Pt 1 cl 3 of the Application Act (General savings and transitional provisions) and as the current proceedings could have been commenced under s 302 of the Uniform Law (if that had been in effect when the Application was lodged), sch 9 cl 3(3) of the Application Act provides that the proceedings are taken to have been commenced under the Uniform Law.
As the Application for orders required or permitted under s 302 of the Uniform Law was made under a corresponding provision (s 562 of the LP Act) and that Application still had effect immediately prior to 1 July 2015, sch 4 cl 2(2) of the Uniform Law provides that the Application remains in effect on and after 1 July 2015 - as if the Uniform Law had been in force on 19 December 2014 and the Application had been made under the Uniform Law.
Under Table 1 of s 11 of the Application Act, the NSW Commissioner is the designated local regulatory authority for the purposes of the Uniform Law, and s 405(2) of the Uniform Law contemplates that the NSW Commissioner may delegate the Chapter 5 functions to the Law Society. Under Table 2 of s 11 of the Application Act, NCAT is the designated tribunal for the purposes of the Uniform Law.
Therefore, pursuant to s 302(1)(f) of the Uniform Law, the Tribunal has jurisdiction to determine an application made by the Law Society for an order recommending that the solicitor's name be removed from a roll kept by the Supreme Court, a register of lawyers kept under jurisdictional legislation or the Australian Legal Profession Register.
The Tribunal is therefore satisfied that it has jurisdiction to determine the current Application.

Facts

Ms Groenewegen referred to the Solicitor's letter to the Law Society dated 23 October 2013, which was in the following terms: The Fast Fix Matter I concede having received payment amounting to $9,251 from my client, Fast Fix Loans Pty Ltd, in relation to tax invoices rendered to it from Marcus Young. Those funds were directly deposited by the client into my firm's general/office account. Those funds were not subsequently paid to Mr Young, nor were the funds transferred to my firm's trust account for subsequent payment to him. In the light of the foregoing, I admit having breached s 262 of the Legal Profession Act. Complaint by the Law Society of New South Wales I admit to not having completed the MCLE requirements for the practicing certificate for the years 2010/2011 and 2011/2012, despite having provided an undertaking to the Law Society on 5 October 2011 in respect of the practicing certificate for the years 2010/2011. I admit to having failed to respond to correspondence from the Law Society in this regard. Complaint by the Law Society of New South Wales My response to this complaint, as set out in your letter of 23 October 2013 received via email, will follow in due course. In mitigation I state as follows: 1. It is evident that I have not managed and operated my practice entirely professionally and ethically. I concede that in handling the various complaints, in particular in failing to respond to the various correspondence from Marcus Young… and the Law Society, I have acted unprofessionally. For some reason, I have adopted a "head in the sand" approach, apparently motivated by an erroneous assumption that if I do not respond then the problem does not exist! 2. I am currently undergoing counselling with Dr George Jacobs, a psychiatrist located in Bondi Junction. Dr Jacobs is counselling me in relation to my apparent psychological and emotional problems in relation to the management and operation of my practice, and my inability to properly and professionally deal with matters of conflict arising within the practice. I have requested Dr Jacobs to prepare a report once he has had sufficient opportunity to evaluate my condition, and to indicate in that report how my condition may have contributed to my conduct giving rise to the various complaints and the manner in which I have dealt with the complaints. 3. I have lost the practice which I have built up over the past 25 years. I have no assets, and am currently unemployed. I have substantial debts, and am in the process of finalising the paperwork necessary for personal bankruptcy. I have therefore not sought any legal advice from any panel member pursuant to the Senior Solicitors' Scheme as I cannot afford to incur any costs. 4. I am currently living off the charity of friends, who are accommodating and feeding me until I can gain some employment and a regular source of income. 5. I am deeply ashamed by my conduct, which has not only destroyed my business, but has also damaged, and in some cases destroyed, my relationships with family and friends, and know that it will take the rest of my life to rebuild those damaged and destroyed relationships, if the people concerned allow me the chance to do so. 6. I deeply regret any harm my conduct may have caused to any client or fellow practitioner. It is my intention to pay whatever monies I owe to Marcus Young as and from the time I gain employment, and subject to any restrictions imposed as a result of my impending bankruptcy. I appreciate that the foregoing may represent a departure from what you would normally receive from practitioners in my position. I do not intend wasting time and resources of the Law Society in offering an elaborate defence to the complaints and accusations made against me. I acknowledge that my conduct represents a departure from the reasonable standards of a professional legal practitioner in New South Wales, and to that extent that conduct is indefensible. I am aware that the Law Society may seek, as a result of the foregoing, orders to remove my name from the roll of solicitors. I would not oppose the Law Society if it were in fact to seek those orders. What I would ask for, in the light of the regret and remorse for my conduct, and the cooperation I have given to the manager and receiver in these unfortunate circumstances, is the hope that once rehabilitated, both psychologically and financially, the door is left open to me seeking readmission as a solicitor. I would agree to any reasonable terms and conditions that the Law Society may seek to impose for any such readmission at some stage in the future. All I really ask for is the possibility of gaining that readmission…
On 5 February 2014, the Solicitor emailed a further response dated 3 February 2014 to the Law Society, in relation to the Karmea Holdings Matter, in which he stated: In terms of the complaints made against me as contained and alleged in your letter of 22 October 2013, I wish to respond as follows: 1) I admit to breaching Section 255 of the Legal Profession Act; 2) I admit to breaching Section 256 of the Legal Profession Act; 3) I admit to breaching Section 263 of the Legal Profession Act; 4) I admit to breaching Section 264 of the Legal Profession Act; 5) I admit to having caused a deficiency in my firm's trust account, and having failed to report that deficiency to the Law Society; 6) I admit to having misappropriated monies from my trust account as alleged. As indicated to you in previous correspondence, and in particular my letter of 23 October 2013 addressed to the Law Society, I have no excuses for my actions, only reasons which, at the relevant times, obviously clouded my moral and ethical judgment and resulted in my conduct. At the time I misappropriated funds from my trust account I was under significant financial pressure in order to satisfy obligations incurred pursuant to Family Court orders, in particular an obligation to service the monthly interest of a mortgage over the property of my ex-wife. At the time I was in arrears in the sum of $20,000.00. My choices were to seek to vary the orders or to obtain the necessary funds from whatever source. I knew that if I sought to vary the orders as a means of possibly relieving me of the obligation to service my ex-wife's mortgage, I would need to expose my financial situation to the court and my children. At that time I was probably in a situation which would have revealed that I was bankrupt, and rather than being exposed as such, I decided to "borrow" the necessary funds from my trust account, with the intention of repaying those "borrowed" funds as soon as I could. In my mind I arrogantly thought that I could repay the funds from the cash flow of my practice without the misappropriation being detected. Indeed, the majority of those funds, approximately $15,000, was repaid into my trust account in August 2012 to cover part of the funds misappropriated from the trust account. The balance of the shortfall of $5,000 was repaid to the trust account in August 2013. I now realise that whether or not my misconduct was detected, it was and remains misconduct and a breach of my ethical and moral obligations, not just as a legal practitioner but as a member of society in general. I realise that my conduct will have significant consequences for me, not least of all my ability to practice law again. However, the most significant consequence is the loss of honour and reputation. My good name in the legal community in which I practiced for over 25 years lies in the gutter, as does my good name and reputation in the community in which I live. I have, by my conduct, hurt those I love and care for the most, my beautiful children, and I will spend the rest of my life trying to rebuild the trust that I have destroyed. I hope and pray that they will one day find the strength to forgive me. Throughout the course of the Law Society's investigation I have, in my mind at least, provided every co-operation to the Law Society and its investigative officers, most significantly culminating in my "confession" to John Mitchell at my former office on 14 August 2013 regarding my misappropriation of trust and controlled money funds. This "confession" resulted, as I understand, in a significant saving of time and effort and resources of the Law Society in unravelling the transactions in question. I would request that this co-operation be taken into account by the Law Society when it determines this matter in due course. I would further submit that the fact that the misappropriated funds were repaid to the trust account, such that no client of the practice was prejudiced by my conduct, and no claim on the Law Society Fidelity Fund was necessary, be taken into account… At this time, given my dismal financial position, I am unable to even commence making any meaningful payments to Marcus Young in respect of the monies owed to him. However, it is my intention to make good my debt to him when I am in a position to do so. I am currently undergoing counselling with Dr George Jacobs, a psychiatrist located in Bondi Junction, in an attempt to try and determine and understand why I chose to embark on this course of obviously self-destructive behaviour. Whilst I indicated in previous correspondence that I anticipated obtaining a report from Dr Jacobs to submit to the Law Society in support of my submissions, it seems that the cost of obtaining such a report is beyond my current financial resources. I rely therefore on this and my previous submission. I am extremely sorry and remorseful for my conduct. It has destroyed my professional and personal life. My prospects for any meaningful future employment are bleak. My only hope is that in considering the appropriate punishment to be meted out to me, the Law Society takes my genuine remorse and co-operation into account, and leaves the door open to my ability to be re-admitted as a solicitor again, whether on a restricted practicing certificate or otherwise, at some time in the future.
The Law Society took no issue with the Solicitor's responses and it relied upon them to submit that the Tribunal should be satisfied that all of the grounds of the Application were established and that the Solicitor is guilty of professional misconduct for the following reasons:

Ground 1 - Contravened a condition on his practising certificate for the years ending 30 June 2011 and 30 June 2012

Based upon the decisions of the Administrative Decisions Tribunal ("ADT") in Council of the Law Society of NSW v Kim [2012] NSWADT 45 ("Kim"); Council of the Law Society of New South Wales v Sandroussi [2012] NSWADT 40 ("Sandroussi"); and the decision of this Tribunal in Council of the Law Society of New South Wales v Arraj [2014] NSWCATOD 117 ("Arraj"), the Solicitor's conduct is properly regarded as professional misconduct as defined in s 497(1)(a) of the LP Act. This is because s 58 of the LP Act states that a legal practitioner must not contravene a condition to which the certificate is subject and the solicitor breached the condition that required him to complete MCLE Units in two successive practising certificates.

Ground 2 - Failed to comply with his undertaking of 5 October 2011 to the Law Society

Undertakings given to a professional body are important (see: the decision of the ADT in NSW Bar Association v Howen [2008] NSWADT 148, which was applied by this Tribunal in Council of the Law Society of New South Wales v Morgan [2015] NSWCATOD 71). Based upon the decisions in Kim, Sandroussi and Arraj, which involved similar undertakings to those in this matter, the solicitor's failure to comply with the undertaking amounts to professional misconduct.

Ground 3 - Failed to respond to correspondence from the Law Society Registry in respect to the practising certificate years ending 30 June 2011 and 30 June 2012.

The Solicitor continued to practice without fulfilling a condition of his practising certificate. This condition was imposed to ensure that members of the profession remain competent by being abreast of and skilled at applying current law and its importance is recognised by the fact that it was codified in s 58 of the LP Act.
In Kim, the ADT found that the Solicitor's failure to respond to correspondence with the Law Society demonstrated a failure to maintain a reasonable standard of competence and diligence and that s 497(1)(a) of the LP Act defines professional misconduct to include: …unsatisfactory professional conduct… where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence.
In Sandroussi, the ADT found that the solicitor's failure to respond to two separate letters from the Law Society constituted unsatisfactory professional conduct. However, the conduct of the Solicitor in this matter is more serious than that in Sandroussi as he failed to respond to five separate letters from the Law Society. Therefore, even if the Tribunal adopted the approach in Sandroussi and found that the breach amounted to 'unsatisfactory professional conduct', by repeating that conduct on (a total of five times) the solicitor demonstrated 'a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence' and he is therefore guilty of professional misconduct as defined by s 497(2) (a) of the LP Act.

Ground 4 - Failed to pay counsel's fees

The Solicitor was bound by a Costs Agreement to pay counsel's fees and his failure to do so amounts to professional misconduct (see: the decision of the ADT in Council of the Law Society of NSW v Ross [2013] NSWADT 106).

Ground 5 - Failed to respond to counsel's correspondence

The evidence clearly indicates that counsel, through his agent, corresponded with the solicitor on a monthly basis for a year from February 2012 (excluding December 2012) in relation to the unpaid fees. The solicitor failed to respond to any of those letters and fact that this conduct continued for a year and the fact that he misappropriated the monies that were the subject of counsel's correspondence in September 2011, renders this conduct as 'professional misconduct' as defined by s397(2)(a) of the LP Act.

Ground 10 - Without reasonable excuse caused a deficiency in trust monies

In relation to grounds 6 to 10 (inclusive), conduct that consists of a contravention of the LP Act, the regulations or the legal profession rules is capable of being either 'unsatisfactory professional conduct' or 'professional misconduct' under s 398(1)(a) of the LP Act.
However, in the current matter there are multiple significant breaches of the LP Act and the breaches of ss 263 and 264 of the LP Act were intentional and were aimed at covering up the breaches of ss 255 and 256 of the LP Act, which resulted from the solicitor's misappropriation of entrusted funds. On that basis, this conduct amounts to 'professional misconduct' under s 398(1) (a) of the LP Act.

Ground 11 - Misappropriated trust monies

On and after 28 September 2011, the solicitor acted without authority, intentionally and for his own purposes and used monies belonging to counsel. Further on 13 December 2011, he again acted without authority, intentionally and for his own purposes and used monies belonging to Karmea Holdings. On 25 January 2012, he again acted without authority, intentionally and for his own purposes when he repaid the Karmea Holdings monies from trust monies.
The solicitor admitted that he knew that he was not entitled to use the funds of others for his own purposes and that he attempted to conceal his conduct by failing to document it in trust records and his knowledge of these matters renders his actions subjectively dishonest. In addition, his actions were objectively dishonest by the ordinary standards of reasonable and honest people. At best, his use of entrusted monies and counsel's fees amounted to a loan of last resort, but in any event it amounts to misappropriation.
A finding of misappropriation is not based upon an assessment of the incidence and magnitude of harm, or on the likelihood that harm would have been averted by resort to the use of the solicitor's personal funds (see: Bolster v Law Society of New South Wales [NSWCA Unreported decision dated 20 September 1982 BC8211696 at 9].)
The Tribunal notes that Bolster was cited by the ADT in Council of the Law Society of New South Wales v Clapin [2011] NSWADT 83, as follows: 201 In Bolster v Law Society of New South Wales , the Court of Appeal confirmed an order of removal from the Roll made against a solicitor whose conduct was described by Moffitt P as follows (BC8211696 at p 1): ... he mixed his own affairs with those of his clients, principally by his participation, as their solicitor, in the lending by them of money to a finance company in which he had an interest and which then made advances to himself and his family and companies in which they had an interest. He acted as solicitor for these clients in these transactions without making a full and proper disclosure of his interest and without advising his clients to take independent legal advice. 202 As it had done in Carvan, the Court characterised this conduct as professional misconduct even though the solicitor did not act fraudulently and his clients did not lose money. Moffitt P stated also that a claim by the solicitor that he was ignorant of the fiduciary principles that he had violated amounted to 'a confession of ignorance of his fundamental duty as a solicitor and hence of his unfitness to be a solicitor' (BC8211696 at p 8).
Therefore, the Law Society submitted that the solicitor's statements to the effect that he did not intend to permanently deprive his clients and counsel of their money and that in his mind he was only 'borrowing it', are irrelevant. It also relied upon the decision of the Court of Appeal in Law Society of New South Wales v Starky [Unreported decision dated 13 August 1979] as authority for the proposition that if a wrongful act is committed, it is wrong at the time of commission and it does not become less grave because the perpetrator had the means to avert or repair any harm caused by the act.
The solicitor's repayment of the monies transferred from the controlled money account Karmea Holdings by using trust funds did not expunge the first act of misappropriation, but was a second misappropriation, and the fact that the solicitor later replenished the trust account from his personal funds is irrelevant. In any event, he did not make good the deficit in the trust account until after a Manager was appointed to his Law Practice and a Receiver was appointed to the regulated property of the Law Practice and counsel's fees remains unpaid.
Therefore, the misappropriations constitute 'professional misconduct'.

Solicitor's submissions

The Tribunal regards the Solicitor's responses to the Law Society (set out previously in this decision) as being submissions and notes that at the hearing of this matter, the Solicitor referred to and relied upon his responses. He also made brief oral submissions in relation to his psychiatric counselling, his 'dismal' financial situation (such that he was 'unable to even commence making meaningful payments' to counsel); and again expressed sorrow and remorse for his conduct.

Determination

In our view, the appropriate standard of proof in this matter is that elaborated in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (at 361 - 363), in which Dixon J said: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences…This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.
Based on a consideration of all of the available evidence, the Tribunal is satisfied that each of the eleven grounds alleged in the Application have been established and that the solicitor is guilty of professional misconduct as defined in s497(1)(a) of the LP Act.
We are also satisfied that the statutory breaches regarding the management of trust monies and controlled monies and the breach of s 58 of the LP Act (for contravening a condition in the solicitor's practising certificate) amounts to professional misconduct as defined in s 498(1)(a) of the LP Act.
We are also satisfied that the solicitor's conduct constitutes professional misconduct at common law based upon the test formulated in Allinson v General Council of Medical Education and Registration (1894) 1QB 750, as it was conduct which would reasonably be regarded as disgraceful or dishonourable by other legal practitioners of good repute.

Considerations as to penalty

At the hearing of the matter, the Law Society sought an order under s 302(1) (f) of the Uniform Law, recommending that that the Solicitor's name 'be removed from a roll kept by a Supreme Court, a register of lawyers kept under jurisdictional legislation or the Australian Legal Profession Register' and an order that the Solicitor pay its costs as agreed or assessed.

Removal from the roll

The Solicitor did not contest the making of the order under s 302(1) (f) of the uniform law. However, it is necessary for this Tribunal to satisfy itself that it is appropriate to make the orders sought by the Law Society. In relation to this issue, we refer to the decision of the Court of Appeal in The Prothonotary of the Supreme Court of New South Wales v Dimitrious [2015] NSWCA 258, in which Meagher JA (with whom Beazley P and Leeming JA agreed) stated: 4. Where an order for removal is sought the question for the Court is whether at the time of the hearing the lawyer is shown not to be a fit and proper person to remain on the roll. The related question as to whether the practitioner is of good fame and character is also to be addressed at that time: Ex parte Tziniolis; re The Medical Practitioners Act (1966) 67 SR (NSW) 448 at 475 (per Holmes JA). In this case, notwithstanding that the orders sought by the Prothonotary are consented to, it remains necessary for the Court to satisfy itself that it is appropriate to make the orders and declarations sought. The cases supporting that proposition are referred to by McColl JA in Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 at [27].
The well-established principle that the primary object of disciplinary proceedings against a legal practitioner is to protect members of the public from professional misconduct was stated by the High Court of Australia in Walter v Council of Queensland Law Society Inc (1988) 62 ALJR 153 at 157 (per by Mason CJ and Wilson, Deane, Toohey and Gaudron JJ). Further, in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 270), Deane J stated: Disciplinary proceedings against a legal practitioner are primarily directed towards the protection of the public and not the punishment of the legal practitioner.
This principle was restated by Mahoney JA in Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 (at 441-442) as follows: What, then, are the purposes of the orders to be made and the considerations to be taken into account? It has frequently been said that disciplinary procedures and the orders made in the course of them are directed not to the punishment of the solicitor but to the protection of the public. This, of course, is true. The protection of the public has been described as, for example, the primary purpose or a primary object of such proceedings: Walter v Council of Queensland Law Society Inc (1988) 62 ALJR 153 at 157E; 77 ALR 228 at 235; Smith v New South Wales Bar Association (1992) 176 CLR 256 at 270 per Deane J; or one of the primary objects of the proceedings and the orders made: see Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 251. In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done.
In Council of the Law Society of NSW v Ross [2013] NSWADT 106, the ADT considered the relevant authorities in the determination of whether a solicitor is a fit and proper person to remain on the roll, as follows: 49. In the matter of Law Society of NSW v Jones [Court of Appeal, 29 July 1978, Unreported] Street CJ with whom Reynolds and Samuels JJA agreed, stated (at page 10): Reliability and integrity in the handling of Trust funds are fundamental prerequisites in determining whether an individual is a fit and proper person to be entrusted with the responsibilities belonging to a solicitor. Members of the public, many of them wholly inexperienced and unskilled in matters of business or of law, inevitably must put great faith and trust in the honesty of solicitors in the handling of moneys on their behalf. The Court must ensure that this trust is not misplaced. 50. The Court of Appeal also expressed some further general views about this area in its unreported decision of Dupal v Law Society of NSW (delivered 26 April 1990 - unreported). Kirby P held at p1: In an Appeal such as the present, the Court disposes of the case before it by reference to criteria of general application. They should be clear and simple. They should be such as to leave no doubt in the mind of a practitioner in financial difficulties, exposed to the temptation of using, without clear authority, the funds of another, the consequences that will flow for the right to practice when such misuse of funds is discovered. 51. He also said that: 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 removal of the name of the solicitor from the Role" (at pp2-3). 53. In the same decision Handley JA, with whom Priestly JA agreed, said (at p12): 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 Role. Counsel were not able to refer us to any case where a solicitor found guilty of misappropriation or wilful contraventions of S.41(1) has not been struck off the Role. 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 in the handling of moneys entrusted to their charge.
In Kumar v Legal Services Commissioner [2015] NSWCA 161, Leeming JA (with whom Basten JA and Sackville AJA) agreed, stated: 61…Lest there be any doubt about it, even a temporary use by Mr Kumar of his client's funds without prior approval amounts to serious and deliberate dishonesty. That is precisely the sort of conduct which is antithetical to the trust and confidence which is required by a solicitor with custody of his or her clients' money…
Further, in Council of the Law Society of NSW v Isaac [2012] NSWADT 203, the ADT held: 41… the Solicitor misappropriated significant amounts of money from barristers whom he had briefed, to pay his own debts. As Mr Baran noted when the Solicitor first informed him of what he had done, this amounted to theft, as well as amounting to a gross breach of trust, for which the only appropriate penalty is that his name be removed from the Roll.
In Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320, Young CJ in EQ (with whom MEAGHER JA and TOBIAS JA agreed) held that an order striking off the Roll should only be made when the probability is that the solicitor is permanently unfit to practice.
In considering whether the solicitor is a presently a fit and proper person, the Tribunal notes that he was admitted on 30 October 1992 and that he was an experienced legal practitioner when the misconduct occurred. The misconduct occurred over a period of time from about September 2011 to August 2013 and we note the solicitor's practising certificate lapsed during this period (on 30 June 2013) and that he has not applied for a further practising certificate.
We note that in his responses to the Law Society, the solicitor sought to offer some explanation regarding the circumstances in which the misappropriation of entrusted funds occurred and said that he (belatedly in our view) made deposits to the trust account on 7 August 2013 and 9 August 2013 in order to correct the deficit resulting from his second misappropriation. He also drew attention to the fact that he fully co-operated with the Law Society regarding its investigation and prosecution of the matters before the Tribunal. He acknowledged the seriousness of his wrongdoing and his deviation from his previous moral and ethical standards, as well as the pain that he has caused to family and friends; and he expressed remorse for his conduct. He also said that he was undergoing counselling from Dr George Jacobs, Psychiatrist, in relation to his 'apparent psychological and emotional problems in relation to the management and operation of my practice, and my inability to properly and professionally deal with matters of conflict arising within the practice.'
However, the Solicitor did not rely upon any of these matters in support of a submission that he has reformed his character to such an extent that he is currently a fit and proper person to remain on the roll. He did not lodge any 'character evidence' and he stated that he could not meet the cost of obtaining a medical report from Dr Jacobs.
As a result, there is no evidence before the Tribunal that supports a finding that the Solicitor's misconduct does not speak as to his present character and fitness to practise. In other words, we are not satisfied that during the period since he last offended he has demonstrated that he is in relevant respects a "different man" (see: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637, approving what was said earlier by Walsh JA in Ex parte Tziniolis at 460-461).

Costs

Sch 5, cl 23(1) of the CAT Act provides: 23 Costs consequent of adverse conduct findings (1) Despite section 60 of this Act, the Tribunal must make orders requiring a respondent lawyer whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist.
As the Tribunal has found the solicitor to have engaged in professional misconduct, it must make an order requiring him to pay the Law Society's costs unless it is satisfied that exceptional circumstances exist.
The Law Society relied upon the decision of the ADT in Council of the New South Wales Bar Association v Miller (No 2) [2012] NSWADT 129 (at [44]) as authority for the proposition that 'not even bankruptcy alone will constitute exceptional circumstances' for the purposes of sch 5 cl 23(1) of the CAT Act.
However, the Tribunal notes that the ADT considered the question of 'exceptional circumstances' in Council of the Law Society of New South Wales v Hinde [2011] NSWADT 20. In that matter, the Tribunal made a finding of professional misconduct against the solicitor and determined that as a result of 'exceptional circumstances', he should not be ordered to pay the Law Society's costs. It based that determination principally on the solicitor's poor financial circumstances and the fact that he was 82 years of age. It summarised its reasons as follows, at [32 - 33]: 32 The features of this case that support a finding of 'exceptional circumstances' are… the advanced age of the Respondent and his straitened financial situation. The relevant aspects of his financial situation are these: (a) he has a very small regular income, taking the form of a state pension; (b) he has no assets of significant value; (c) due in particular to his age, he has no significant prospect of obtaining gainful employment; and (d) any costs order against him could only be satisfied by small instalment payments commencing on a future date and lasting over a significant period of time. 33 In the context of disciplinary proceedings such as these, we are satisfied that these constitute 'exceptional circumstances'. They fall within the phrase 'out of the ordinary course, or unusual, or special, or uncommon', used in R v Kelly (Edward) [2000] QB 198 at 208 and adopted by the Queensland Legal Practice Tribunal in Legal Services Commissioner v Scott (No 2) [2009] QLPT 9 at [19]. The hearing of disciplinary proceedings against a legal practitioner who is both as far past the normal age of retirement and as impoverished as the Respondent is indeed a most unusual phenomenon.
Further, in Council of the Law Society of New South Wales v Webb (No 2) [2012] NSWADT 212, the ADT held that an order for payment of only 50% of the Law Society's costs was justified in the light of 'exceptional circumstances'. At [52], it outlined these as follows: 52… The trial was longer than it need have been; the Solicitor remains liable to pay a very substantial sum towards the costs of the investigation of his practice; his financial circumstances are relatively poor… 53 We have decided that this is also a case in which 'exceptional circumstances' exist, but only to the extent of providing partial relief from liability for costs. 54 In so deciding, we take account of the following matters. The degree to which the Solicitor is impoverished is comparable to that of the respondent in Hinde. His prospects of re-employment, at least in the immediate term, are low and that they might be reduced by being ordered to make a significant payment on account of costs. He raised relatively little opposition to the case brought by the Law Society, though the opposition that he did raise inevitably contributed to the scale of the costs incurred by the Society. 55 Our order is that he is to pay the sum of $2,000 to the Law Society on account of costs.
The current matter differs from Hinde and Webb as the Solicitor has not filed any evidence in support of his asserted poor financial circumstances, although he made submissions regarding this issue in his responses to the Law Society and his oral submissions to the Tribunal. He also informed the Tribunal during a directions hearing that he did not intend to file any Affidavit evidence as he admitted the conduct alleged against him.
However, in the absence of evidence regarding his financial circumstances, the Tribunal is not satisfied that 'exceptional circumstances' exist. We are therefore satisfied that it is appropriate to order the Solicitor to pay the Law Society's costs, as agreed or assessed.

Findings and Orders 1. The Solicitor guilty of professional misconduct both at common law and under ss 497(1) (b) and 498(1) (a) of the LP Act. 2. We are satisfied to the required standard that the Solicitor is not a fit and proper person to engage in legal practice and that there is no evidence that might explain this misconduct or suggest that conduct of a similarly dishonest kind might not occur in the future. 3. That the name of the Solicitor David Greenstein be removed from the local roll of legal practitioners. 4. Pursuant to sch 5, cl 23(1) of the CAT Act, we order the Solicitor 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

Amendments 06 December 2015 - Order 3 amended pursuant to s63 Civil and Administrative Tribunal Act 2013. 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: 06 December 2015

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