//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2014] NSWCATOD 134
NCAT Occupational
2014-11-03
Original judgment source is linked above.
INTRODUCTION 1These are disciplinary proceedings commenced by the Law Society against the Respondent. 2The Law Society seeks orders for the name of the Respondent to be removed from Roll of Solicitors and for the Respondent to pay the Law Society costs. The Application also seeks compensation in respect of allegations of conduct prejudicial to Ms Anne Bury. 3At the commencement of the hearing the Tribunal was provided with an Instrument of Consent signed by the parties and the Legal Services Commissioner consenting to the orders sought by the Law Society. 4The Respondent had indicated by letter at least a year earlier that he would consent to such orders and surrendered his Practising Certificate.
THE EVIDENCE 5The evidence comprised: (1)The Instrument of Consent filed 31 October 2014; (2)The Application for disciplinary findings and orders filed 28 February 2014; (3)The Reply filed 3 September 2014; (4)The Affidavit of John Earnest Mitchell sworn 14 February 2014; (5)The Affidavit of John Leslie Sutton sworn 20 February 2014; (6)The Affidavit of Anne-Marie Foord sworn 27 February 2014; (7)The Affidavit of the Respondent sworn 1 September 2014. (8)The Affidavit of Sally Mayo sworn 1 September 2014; (9)The Affidavit of Michael Jalousis sworn 12 September 2014.
SOME BACKGROUND 6The Respondent is 33. He commenced practice as a solicitor in May 2005. He was employed by Gadens Lawyers from May 2005 to June 2006. Then he took up a position with the Commonwealth Director of Public Prosecutions and he worked there until October 2009. From October 2009 until when he was dismissed on 12 April 2012 he worked for a Sydney law practice, Armstrong Legal. At Armstrong Legal he specialised in criminal law and appearing for Defendants.
ADMITTED FACTS 7The Grounds are that the Respondent between about April 2011 and about May 2012 engaged in various professional misconduct concerning the receipt of trust moneys on behalf of the law practice. The moneys were usually payments on account for costs and disbursements for acting for a client. Sometimes he received cash and kept it for his own use. Other times he instructed the client to deposit the amount to the law practice trust account but gave the BSB number and account number for his own personal bank account so that the trust funds went to his account. 8In many cases, the Respondent did not cause the client's file to be registered in the law practice's file and client registers. He conducted a file of his own and the law practice had no record of the client or the matter. 9The Respondent admitted the Grounds and particulars set out in the Instrument of Consent signed by the Legal Services Commissioner and by the solicitors for the parties. Those details are as follows: AGREED STATEMENT OF FACTS Re: RICHARD NEIL MAYO In respect of the following ground of complaint RICHARD NEIL MAYO ["the Solicitor"] engaged in professional misconduct as set out in the following allegation: Grounds of complaint In respect of the complaint by Ms Ann Janet Bury:
UNSATISFACTORY PROFESSIONAL CONDUCT AND PROFESSIONAL MISCONDUCT
11Sections 496, 497 and 498 of the Legal Profession Act 2004 provide: 496 Unsatisfactory professional conduct For the purposes of this Act: "unsatisfactory professional conduct" includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. 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. 498Conduct 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, (b) charging of excessive legal costs in connection with the practice of law, (c) conduct in respect of which there is a conviction for: (i) a serious offence, or (ii) a tax offence, or (iii) an offence involving dishonesty, (d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration, (e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth, (f) conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice), (g) conduct of an Australian legal practitioner in failing to comply with an order of the Disciplinary Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law), (h) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law. (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.
EVIDENCE FOR THE RESPONDENT 12The Respondent was a school captain of the primary school he attended. He attended Newington College and was dux of the school and captain of the debating team. He attended the University of Technology at Sydney from 2000 to 2004 and graduated in Journalism and Law in early 2005. He was awarded first class honours in Law. He worked as a lawyer for almost 6 years from May 2005 to April 2011 and in respect of that period there has been no evidence of any transgression or inadequacy in his conduct as a lawyer. 13His evidence is that when he worked for Armstrong Legal he worked: "primarily autonomously. I estimated costs, issued bills, appeared for clients and managed my own time exclusively. There was some oversight from the partners of the firm but it primarily related to attaining financial targets." 14In the 2011 financial year he earned over $360,000 in billings. 15But the Respondent also said: "21.I found the work that I was doing to be very stressful. I found it difficult to distance myself from clients, as a result I would often take on their issues personally and that would upset me. 22.I worked on most nights and weekends and would answer client's telephone calls on my mobile telephone 24 hours a day, 7 days a week. 23.I estimate I was working 70-80 hours per week between the beginning of 2010 and April 2012. 24.I now realise that my work/life balance was completely unsustainable and that the way I worked was exacerbating my personal problems." 16His personal problems included that he began to use cocaine and that he also was gambling. These two problems resulted in a serious deterioration in his financial situation. He accumulated substantial debt with credit cards and by August 2010 he was forced to sell his home unit, which was purchased partly with an inheritance of $50,000 from his grandmother. On the sale of the unit he received only $100,000 after payment of his debts. He then increased his gambling. The whole of those funds was exhausted within 7 months by drugs and gambling. He continued to incur debts by personal loans and credit cards to fund his gambling and drug habits. From April 2011 to May 2012 he also used funds that he had misappropriated. 17Throughout the period from 2008 onwards, his lifestyle and habits also contributed to a decline in his physical health. He had difficulties sleeping and was often physically exhausted at work. His weight increased from 83kgs in 2010 to 104kgs in April 2012. 18The Respondent's parents are retired. However, when the Respondent informed them of what he had been doing with client's moneys, at about the time he made disclosure to his employers, they arranged for payment of a total of $70,000.00 to the law practice towards covering the losses of the law practice and the clients. He himself arranged payment of $10,000 to the law practice by foregoing termination entitlements and using other money in his possession. He handed in his Practising Certificate to the Law Society on 23 April 2012 and indicated that he would consent to being struck from the Roll. Also in April and early May he attended interviews with the Law Society's Chief Trust Account Inspector and made voluntary disclosure of the information required of him. He also made disclosure to his employers and voluntarily provided his bank records. 19Since June 2012 the Respondent has attempted to set up a business running web sites and selling advertising. This was unsuccessful. He worked for a while doing industrial cleaning and on some occasions as a labourer. He worked as a casual waiter in a restaurant for a few months in 2012. In late 2012 he also worked for a woman who worked for an on-line health supply business doing packing and mailing. From May 2013 to October 2013 he obtained work as a social media producer for a television show. When the season finished his employment ended. He then had no employment until May 2014. 20He applied for hundreds of jobs between October 2013 and May 2014 without success. In November 2013 he started work with a publisher, but found his skills were not required. In May 2014 he obtained employment as a receptionist for a small consulting firm and he remained in that employment at the time of the hearing. His salary is $45,000 per annum. He is fearful he will lose his job because of the pending decision by this Tribunal. He has enrolled in a course at the University of Sydney for the degree of Master of Business Administration and has completed his first subject. 21The parents of the Respondent expect him to repay the funds that they have paid to his former employers. He says he intends to do that but that he still owes a substantial debt to the former employers. He says his inconsistent work history has not enabled him to make significant repayments since May 2012. At the time of his dismissal he paid a total of $9,361.71, including statutory entitlements for long service leave and other termination entitlements. He has since paid a total of $4,400 when he was employed as a social media producer for the television show. 22His evidence is: "I have not declared bankruptcy and do not intend to voluntarily. I am willing to repay everything that I owe, including interest, no matter how long it takes." 23It is clear from the evidence that the Respondent is seriously remorseful and guilt stricken over what he has done. He has experienced considerable shame and the loss of the opportunity to participate in his chosen vocation. He had thought that he might be able to study medicine but has decided not to do that because he fears that he would be refused admission to the profession because of the subject conduct. 24In his Affidavit he expressed sincere regret for his conduct and the "incredible upheaval caused to the clients and the employer", "the broader financial and reputational damage that I caused to the firm", and, "bringing my profession into disrepute". 25He regrets that having worked so hard to become a lawyer and "helped many people until my misconduct". That misconduct "has over-shadowed and to some extent diminished the good work I did prior to that." He is conscious he has caused his friends and family and his partner, who is a legal professional, "pain and suffering". He believes her association with him has damaged her own reputation. He said that his shame has included that his misconduct "has destroyed my reputation and brought my family name into disrepute. I am in financial ruin." 26He said that because of the shame he feels for what he has done he had to withdraw from all the connections he had in his life as a lawyer, including many colleagues and friends. He said he is very anxious about answering unknown phone calls, checking e-mails, and checking physical mail, and "knowing that disciplinary and criminal proceedings were inevitable and that on any given day, I may be contacted by the Law Society, Armstrong Legal or the Police." 27He says that he now avoids all areas in the city where he is likely to see his former colleagues and associates in the legal profession "because of the shame I feel for what I have done."
PSYCHIATRIC EVIDENCE 28 A psychiatrist, Dr Selwyn N Smith, conducted the psychiatric examination of the Respondent on 16 June 2014. He was briefed with a copy of the Application of the Law Society and records from North Sydney Local Health Network in relation to the Respondent. Information the Respondent gave Dr Smith was in accordance with his disclosures to the Tribunal. Dr Smith diagnosed the Respondent as suffering from:
CONCLUSIONS 38The primary role of these proceedings is not to punish the Respondent, but to protect the public. Another subsidiary role is to protect the reputation of the profession. Another is to set an example that deters other practitioners. 39This is a particularly tragic matter. 40The clients, the public, the courts and other members of the profession and are entitled to expect a solicitor to be a person of honesty, trustworthiness and integrity. They are also entitled to expect a solicitor to exercise due competence and diligence. Diligence, of course, involves maintaining ethical standards in complying with the law. 41The Respondent's pattern of conduct between April 2011 and May 2012 displayed a lack of diligence, a lack of trustworthiness, a lack of honesty and a lack of integrity. 42It may be that in time, after on-going psychological and psychiatric assistance a Tribunal would have confidence that the Respondent would meet the required standards if he practiced as a solicitor. But at this time the Tribunal is satisfied that his pattern of conduct over 13 months from April 2011 to May 2012 comprised by the admitted grounds and particulars constitutes professional misconduct and the Respondent at this time is not a fit and proper person to practice as a solicitor. 43The Tribunal has therefore decided to make the orders agreed to by the parties. 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: 14 November 2014
Council of the Law Society of NSW
Mayo