Council of the Law Society of NSW v Orford

The procedural history

1. This matter has had a prolonged and unfortunate history in the Tribunal. The proceedings were lodged by the Society on 29 January 2015 and the liability hearing occurred over three days commencing on 26 October 2015. Following publication of the Tribunal's reasons on 26 February 2016 the matter was listed for directions and a penalty hearing date of 31 May 2016 was fixed. The Society was directed to file any further material on which it relied by 16 March 2016. There was compliance with that order. The solicitor was required to file and serve any further material on which he sought to rely by 15 April 2016.
2. No documents were filed on the solicitor's behalf as directed, but on 20 April 2016 the matter was relisted at his solicitors' request. The hearing date was vacated on the basis that the solicitor had recently undertaken knee surgery. A new timetable that required the solicitor file and serve any additional evidence by 6 June 2016 was made, and the parties were advised they would be notified by the Registrar of a new hearing date. It was noted that senior counsel for the Society was available from mid-August to the end of that month. A hearing date was subsequently fixed for 19 August 2016.
3. The solicitor filed an affidavit on 10 June 2016.
4. The matter was again listed on 24 June 2016 at the parties' request. On that occasion the Society advised the Tribunal that the matter may not be able to proceed on 19 August 2016 as the solicitor intended to rely on medical evidence and the Society may wish to have him independently medically examined. The matter was adjourned to 6 July 2016 for a compliance check.
5. In the meantime, on 1 July 2016, the solicitor filed and served an affidavit by Dr Jonathan Phillips AM, (Dr Phillips), clinical psychiatrist, sworn 28 June 2016. Dr Phillips annexed to his affidavit a report prepared by him dated 28 October 2015. The affidavit also annexed correspondence from the solicitors for the solicitor dated 4 May 2016. This letter enclosed a copy of the Tribunal's liability reasons. Dr Phillips replied to the solicitors' letter by letter dated 10 May 2016.
6. On 13 May 2016 the solicitors again wrote to Dr Phillips enclosing a copy letter dated 11 June 2015 noting "as you do not appear to have received it". On 31 May 2016 the solicitors again wrote to Dr Phillips noting that they had referred the solicitor to Dr Jeanette Stewart, for a neuropsychological assessment. The letter also enclosed notes made by the solicitor in response to Dr Phillips' report. We pause to note the solicitor did not see Dr Stewart, or any other neuropsychologist, until requested to see Dr Pauline Langeluddecke (Dr Langeluddecke) the expert neuropsychologist retained by the Society.
7. On 9 June 2016 Dr Phillips was provided with a copy of the solicitor's affidavit filed on 10 June 2016 and relied on in the penalty hearing.
8. By letter dated 22 June 2016 Dr Phillips provided commentary on the documentation received by him from the solicitors. He noted that he had not seen the solicitor since 8 June 2015 but would be happy to re-examine him.
9. On 6 July 2016 the hearing date was vacated as the Society indicated it wished to have the solicitor medically examined. The solicitor subsequently attended on Dr Bruce Westmore (Dr Westmore), forensic psychiatrist, and Dr Langeluddecke. The matter was stood over to 5 October 2016 to fix hearing dates. On that occasion the penalty hearing date was fixed.
10. We take this opportunity to note that the opportunity for a practitioner, where appropriate, to have the benefit of an adjourned hearing to respond to findings made in so called liability reasons and proposed final order/s is to ensure procedural fairness to the practitioner (see King v Health Care Complaints Commission [2011] NSWCA 353; Lucire v Health Care Complaints Commission [2011] NSWCA 99 and Pham v Legal Services Commissioner [2016] VSCA 256),
11. We consider that, where findings of professional misconduct have been made following publication of liability reasons, there should not generally be an extended period before a so called "penalty hearing" is conducted given the confined nature of evidence, if any, normally to be adduced for such a hearing. In making this observation we are conscious of the objects in s 3 (1) (d) of the CAT Act namely, to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible (see also s 36 (1) and (3)). But of greater significance is the need to ensure where findings of professional misconduct have been made that orders which protect the public, act as a deterrent, and uphold the standards of the relevant profession, are made in a timely manner. It was of concern to us that these proceedings were not concluded in a more timely manner after publication of the liability reasons.

Relevant legal principles and statutory provisions

1. As noted in the liability reasons, by reason of the transitional provisions, this matter is governed by the Act (see Griffin v Law Society of New South Wales [2016] NSWCA 364).
2. The Tribunal's power to make disciplinary orders following a penalty hearing is found in s 562 of the Act. For the purposes of this hearing s 562 (1), (2), (4), (5), (7), (8) and (9) are relevant. (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. (2) Orders requiring official implementation in this jurisdiction The Tribunal may make the following orders under this subsection: (a) an order that the name of the practitioner be removed from the local roll, (b) an order that the practitioner's local practising certificate be suspended for a specified period or cancelled, (c) an order that a local practising certificate not be issued to the practitioner before the end of a specified period, (d) an order that: (i) specified conditions be imposed on the practitioner's practising certificate issued or to be issued under this Act, and (ii) the conditions be imposed for a specified period, and (iii) specifies the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed, (e) an order reprimanding the practitioner, (f) an order that the name of the practitioner be removed from the roll of public notaries maintained under the Public Notaries Act 1997 . … (4) Orders requiring compliance by practitioner The Tribunal may make the following orders under this subsection: (a) an order that the practitioner pay a fine of a specified amount, (b) an order that the practitioner undertake and complete a specified course of further legal education, (c) an order that the practitioner undertake a specified period of practice under supervision, (d) an order that the practitioner do or refrain from doing something in connection with the practice of law, (e) an order that the practitioner cease to accept instructions as a public notary in relation to notarial services, (f) an order that the practitioner's practice, or the financial affairs of the practitioner or of the practitioner's practice, be conducted for a specified period in a specified way or subject to specified conditions, (g) an order that the practitioner's practice be subject to periodic inspection for a specified period, (h) an order that the practitioner undergo counselling or medical treatment or act in accordance with medical advice given to the practitioner, (i) an order that the practitioner use the services of an accountant or other financial specialist in connection with the practitioner's practice, (j) an order that the practitioner not apply for a local practising certificate before the end of a specified period. Note : This subsection is not an exhaustive statement of orders that must be complied with by the practitioner. (5) Ancillary or other orders The Tribunal may make ancillary or other orders, including an order for payment by the practitioner of expenses associated with orders under subsection (4), as assessed or reviewed in or in accordance with the order or as agreed. … (7) Maximum fine The amount ordered by the Tribunal under this section to be paid by way of fines by any one Australian legal practitioner in connection with the Tribunal's findings about a complaint must not exceed in total: (a) $10,000 in the case of unsatisfactory professional conduct not amounting to professional misconduct, or (b) $75,000 in the case of professional misconduct. If the Tribunal finds that the practitioner has engaged in both professional misconduct and unsatisfactory professional conduct not amounting to professional misconduct, the amount must not exceed $75,000 in total. (8) Reprimands If the Tribunal makes an order reprimanding the practitioner, the Tribunal is to publish the order and a statement of its reasons for making the order. (9) It is sufficient compliance with the requirement to publish an order under subsection (8) if the Tribunal provides to the Commissioner sufficient information to enable the Commissioner to exercise the Commissioner's powers or functions in respect of the Register of Disciplinary Action required to be kept under Part 4.10 (Publicising disciplinary action).
3. The principles applicable to disciplinary proceedings are well known. Beazley JA, as her Honour then was, in Law Society v Walsh [1997] NSWCA 185 cited with approval the general principles enunciated in Law Society v Foreman (1994) 34 NSWLR 408 as those that govern disciplinary proceedings. Those principles may be summarised as follows: 1. disciplinary orders are not directed to the punishment of the practitioner, but to the protection of the public; 2. the protection of the public is not to be confined to the likelihood of future default by the solicitor, but to create professional awareness in other practitioners of the seriousness of the conduct; 3. the relevant question to be determined is whether or not the practitioner is a person who, at the date of the hearing, is fit and proper to be entrusted with the important duties and responsibilities of a solicitor; 4. consideration must be given to a practitioner's duties to the court, the profession, litigants and the public to ensure that only those practitioners who are worthy are permitted to practice; 5. in considering fitness to practice it is appropriate to consider matters beyond the protection of the public including: 1. the character of the practitioner; 2. the practitioner's understanding of the obligations the law places on him or her; 3. the maintenance of standards in the profession; 4. the ability of the practitioner to maintain proper professional relationships with other members of the profession; and 5. confidence that reliance can be placed on the practitioner's words and actions.
4. In HCCC v Do [2014] NSWCA 307 at [33] Meagher JA, with whom Basten and Emmett JJA agreed, enunciated the principles relevant to disciplinary orders in proceedings involving a medical practitioner under the provisions of the Health Practitioner Regulations National Law (NSW). These principles are apposite to the making of disciplinary orders under the Act. His Honour said: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
5. A tribunal, when determining appropriate orders, exercises its discretion in conformity with earlier decisions albeit taking into account the fact that no two cases are identical in all respects. The need for consistency in discretionary decision making is explained by Deane J, as his Honour then was, in Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21 as follows: It is plainly important that, conformably with the ideal of justice in the individual case, there be general consistency from one case to another of underlying notions of what is just and appropriate in particular circumstances. Otherwise, the law would, in truth, be but the "lawless science" of a "codeless myriad of precedent" and a "wilderness of single instances" of which Lord Tennyson wrote in his poem "Aylmer's Field".
6. We were helpfully referred by counsel for each of the parties to other relevant earlier decisions. We will refer to these authorities when evaluating the proposed orders in light of our findings.

The material relied on by the parties at the penalty hearing

1. We turn now to address briefly the evidence adduced at the penalty hearing.

The Affidavit of Anne Marie Foord

1. Ms Foord swore an affidavit on 15 March 2016. She was not required for cross-examination.
2. Ms Foord annexed a schedule of complaints made against the solicitor covering the period 1991 to December 2014. With the exception of the current complaint, others noted as having been referred to the now repealed Administrative Decisions Tribunal (the ADT), and two upheld reviews in 1993 and 1996, the balance of the complaints were noted as resolved, dismissed, or withdrawn.
3. Ms Foord also annexed to her Affidavit an Instrument of Consent filed in the ADT on 5 November 2008 which recorded a finding of professional misconduct against the solicitor with orders that he be reprimanded, pay a fine of $5,000 and costs of $21,106. The professional misconduct was based on a statement of agreed facts. Those facts related to the solicitor's ongoing conduct of a mortgage practice in 2002 and 2003 contrary to the provisions s 117 of the Legal Profession Act 1987 NSW (repealed) that came into effect consequent on the enactment of the Financial Services Reform Act 2001 (Cth).
4. In his affidavit relied on at this penalty hearing the solicitor deposed that no other complaints had been made against him other than those recorded in Ms Foord's affidavit. In oral evidence in chief, the solicitor explained that his statement about complaints was true at the time he swore his affidavit but since that time he had notice of another complaint. We raised the issue of this complaint with senior counsel for the Society and were informed the Society did not seek to rely on the complaint in these proceedings. In those circumstances we could not make any findings or draw any inferences about this new complaint.

Dr Bruce Westmore

1. As noted above, the Society arranged for the practitioner to be examined by Dr Westmore whose curriculum vitae discloses that he is a highly qualified and experienced psychiatrist. Dr Westmore had a copy of the liability reasons and Dr Phillips affidavit (with annexed report and correspondence) at the time of writing his report. He was not required for cross-examination.
2. Dr Westmore recorded that at his interview with Dr Phillips in June 2015 the solicitor gave a detailed history. That history included the solicitor reporting an incident "in 2007 or 2008" that caused him "a lot of grief". The solicitor reported a fire occurring in an investment property of which he was a co-owner with two other investors. During the fire, the tenant of the property, a young man, suffered smoke inhalation and died shortly thereafter. Subsequently the young man's partner committed suicide. The solicitor also related disputes between himself and his siblings over his late father's care noting his father died in 2015, and his wife's diagnosis of cancer in that year.
3. The solicitor told Dr Westmore he experienced sleeplessness, nightmares, and at the conclusion of the coronial inquiry into the young man's death, suicidal ideation.
4. Dr Westmore opined at page 8 of his report: Some deficits were identified on neuropsychological testing and at this particular time an impairment, disability, lack of cognitive function or other medical condition which might impede him from holding an unrestricted principal practising certificate.
5. Dr Westmore went on to note that the practitioner had not received any regular psychiatric care despite a history of suffering very "significant psychiatric and psychological symptoms during the period 2007 up to 2009 at least".
6. In considering the solicitor's conduct in the majority of the period covered by the professional misconduct complaint, Dr Westmore substantially agreed with diagnoses and opinions expressed by Dr Phillips. We will refer to Dr Phillips' report shortly. While noting the difficulties associated with making a retrospective diagnosis, Dr Westmore accepted the solicitor, based on his reporting, had symptoms of depression and anxiety, and that "his history might also suggest that he developed some Posttraumatic Disorder type symptoms as well". Dr Westmore opined that a differential diagnosis, based on the practitioner's depression, would include "a single and first episode of a Major Depressive Disorder".
7. Dr Westmore's opinion of whether the solicitor currently suffered a diagnosable psychiatric condition, or was likely to do so in the foreseeable future, was appropriately qualified. He opined: I am not able to totally or definitely exclude the possibility that [the solicitor] might suffer an impairment or disability or medical condition which might impact on his capacity to practice as a solo practice or principal of a law practice. I am of the view that [the solicitor] is, nevertheless, fit to continue to practice subject to the imposition of some conditions on his practicing certificate.
8. Dr Westmore recommended a number of health conditions. These proposed health condition have been broadly replicated in the orders sought in the alternative by the Society. The imposition of the health conditions on his practising certificate is not opposed by the solicitor. They sensibly include establishing a therapeutic relationship with a general practitioner, and attendance on a psychiatrist for such duration and frequency as the psychiatrist may recommend.

Dr Pauline Langeluddecke

1. Dr Langeluddecke is a clinical psychologist. She saw the solicitor on 22 August 2016. She was provided with copies of Dr Phillips' report and the correspondence provided to him. Dr Langeluddecke carried out psychometric testing of the practitioner using well recognised psychometric tests including the Weschsler Memory Scale.
2. Dr Langeluddecke opined that the test performance results did not indicate cognitive impairment at a level "which supports a diagnosis of a neurodegenerative condition (i.e. dementia)". However, she went on to note "there is some evidence of cognitive changes with increasing age in adulthood which exceed those found in the general population given that [the solicitor's] generally Average level of achievement on present testing is below the at least High Average cognitive functioning expected given his (self-reported) early educational history".
3. Dr Langeluddecke went on to opine: Also worthy of comment are selective weaknesses in executive functioning on present testing. I am unable to offer an opinion on the aetiology of these weaknesses, and in particular whether they are longstanding or of more recent origin. [The solicitor's] professional complaints history suggests that they may constitute longstanding weaknesses, possibly exacerbated by ageing processes. In relation to work performance, these weaknesses have the potential to impact of [the solicitor's] planning/organisational abilities, attention to detail and higher level reasoning abilities and adaptability, particularly when dealing with novel, complex or prolonged legal matters.

The affidavit of the solicitor

1. In his affidavit relied on at the penalty hearing, solicitor deposes to reading the liability judgment and says he accepts the findings that he is guilty of professional misconduct in respect of grounds 2, 3, 4 and 5, and further that the conduct the subject of grounds 2 and 3 constitutes a substantial failure to meet the standard of competence and diligence expected of an Australian legal practitioner. He goes on to depose that while he accepts the findings in the liability judgment that he was affected by his circumstances at the relevant time.
2. The solicitor sets out details of the fire at his investment property, the death of the tenant and the subsequent suicide of the tenant's partner.
3. At [11] the solicitor deposes: In hindsight I have come to realise that this incident clearly retarded my judgment and ability to act with the due diligence required of me and it is clear that I made errors and mistakes that should not have been made.
4. Later in his affidavit, under the heading "The findings of professional misconduct and what I have learnt", the solicitor deposes to feeling deeply ashamed that his conduct, the subject of the complaint, resulted in findings of professional misconduct. He further expresses regret about the fact he let transfers out of his possession so that his signature created a misleading impression that he had witnessed all transferors' signatures on the transfers. He also expresses regret about not obtaining the full settlement sum due on the settlement of Lot 8.
5. The practitioner acknowledges that he did not have appropriate management procedures in place to ensure that errors and failures would not occur.
6. The practitioner deposes "as a general rule" that he no longer takes on consortium-style matters, although he does still do some large scale development work, but only where he can deal with one or both directors. He further deposes that where more than one client is involved he makes sure he has a conference with each client before proceeding to act or take instructions. He explains that if a matter, such as the CPP, came before him he would say that "it was too complicated and complex, and send them to a medium sized firm".
7. The practitioner notes he has "investigated possible continuing education courses that I might attend relating to practice management" and expresses a view that he would be willing to undertake courses including a refresher course on best conveyancing practice.
8. The practitioner was cross-examined by senior counsel for the Society and was questioned by us, including questions relating to his continuing professional development.
9. In his oral evidence in chief the solicitor explained that he continues to practice in sole practice, that he had formed a view he wished to transition into retirement and that he was taking steps to sell his practice. He said that if there was a condition on his practising certificate that required him to work as employed solicitor it would impede his ability to sell the practice as a going concern. He wished to sell his practice as a going concern so that his personal assistant of many years standing could remain in the employ of the firm.
10. In answer to questions posed by us, the solicitor explained he hoped to sell the practice and on completion of its sale, work in an employed solicitor role until December 2017.
11. The solicitor was crossed examined by senior counsel for the Society about whether, if he had the benefit of another solicitor with an unrestricted practising certificate in the practice at the time he was undertaking the CPP matters he could have benefitted from discussions with that practitioner. He agreed, with hindsight, the benefit of discussions with another practitioner could have been helpful.
12. The solicitor was also cross-examined about what steps, if any, he had taken to obtain medical treatment or to consult his general practitioner. His evidence demonstrated a lack of insight into the reasons for the recommendations made by his own expert, Dr Phillips, in particular that he should engage in up to twenty psychotherapy sessions and undergo neurological testing. When pressed about failure to follow his expert's advice the practitioner referred to his wife's illness, and a potential conflict of interest with a psychiatrist he had met treating a family member.
13. In response to questions about courses he might undertake, the solicitor was unable to recall any details of continuing professional development about which he asserted he had made enquiries. The practitioner gave evidence that he was prepared to consent to a mentoring condition and proposed his solicitor in these proceedings, Mr D Simpson, an experienced senior solicitor, should be his mentor.

Dr Jonathan Phillips AM

1. As with Dr Westmore, Dr Phillips was not required for cross-examination. We have early noted Dr Phillips' substantive report was prepared and provided to the solicitor in October 2015.
2. At [38] of his original report Dr Phillips opined: This is a difficult case for analysis from my point of view, as allegations made against [the solicitor] relate to matters which are unusually complex for a non legal person to understand. However, on the history given by your client, and taking into consideration the formal application for disciplinary findings, it seems probable that at the time of his professional activities involving the persons concerned, your client was either depressed or cognitively impaired. It is possible that he may have suffered a combination of both.
3. Dr Phillips, having read additional material provided on the solicitor's behalf, prepared a final report dated 22 June 2016. Having noted that he was not aware whether the solicitor had undertaken neuropsychological testing in the period since his first report, and because of possible alternate diagnoses at the time of that report, that he was "somewhat handicapped in providing this further opinion" in light of the fact he had not seen the solicitor since 8 June 2015 and he did not know if he had undertaken psychological testing.
4. Dr Phillips explained it was his opinion, based on the updated material, that the solicitor developed his "first substantive depression spectrum disorder as a direct consequence of the stressors associated with the fire in late 2007, and the death of his tenant, and subsequently his tenant's girlfriend". He also opined that the solicitor suffered a cognitive impairment "throughout the period". He concluded at [21]: On the balance of probabilities, [the solicitor's] significant professional difficulties in the period late 2007-2009 were likely to have been secondary to his then troublesome depression spectrum disorder and concomitant cognitive problems. To the best of my understanding, the respondent had not previously suffered professional difficulties in the course of his legal practice.
5. Dr Phillips concluded, based on his understanding that the practitioner had returned to a normal level of psychological and cognitive functioning, that there was no health reason that "would prevent him from his usual professional practice". We pause to note in expressing this opinion, Dr Phillips did not have the benefit of Dr Langeluddecke's report, nor it appears, was he aware of the ADT orders.
6. In dealing with the question of insight, Dr Phillips confined his remarks to insight by the practitioner into his mental health status in 2007-2009. Dr Phillips concluded his report expressing the opinion that the practitioner "could be vulnerable to again become depressed particularly if he were to face any significant stressors in the future".

Character referees

1. The solicitor relied on three character referees (Mr Gus Bernadi, solicitor, Mr Maxwell Noy, a friend and a client of the practitioner, and Mr Peter Michael McBride, solicitor) each of whom provided an affidavit setting out the circumstances of their knowledge of the practitioner. They were not required for cross-examination.
2. Mr McBride refers to the practitioner being "unfailingly courteous and professional". Mr Bernadi, who has been an employed solicitor in the solicitor's firm from time to time, attests to his generosity both to his clients, and on at least one occasion, to Mr Bernadi. We find the referees' assessments, particularly Mr Bernadi and Mr McBride, should be afforded some weight.

Discussion and conclusions

1. We propose to first consider whether the conduct we have found proved requires an order that the solicitor's name be removed from the roll.
2. Submissions relied on by counsel for the solicitor at [6] state that it is of significance that in the liability judgment the then constituted Tribunal made no findings the solicitor had engaged in any dishonest, fraudulent or deliberate conduct.
3. Senior counsel for the Society responded to this submission noting the concessions made on the solicitor's behalf in the agreed statement of facts in respect of Ground 2. The solicitor admitted his conduct set out in [8] to [29] of the agreed statement of facts. At [29] the following is set out: In witnessing the transfer for Lot 7 the solicitor falsely certified and represented that he was personally acquainted with or otherwise satisfied as to the identity of the persons who signed the transfers in his presence".
4. We accept that the finding in the liability reasons at [86] is one of a poor system of reminder and a general lack of care on the solicitor's behalf. But the conduct was not found to have been deliberately undertaken to deceive the purchaser or Land and Property Information. We also refer to the fact we found the solicitor's conduct in respect of the sale of Lot 9 (Grounds 3 and 5) was careless, his practices were lax and constituted a substantial failure [reasons 101].
5. We commence our discussion considering whether the complaints we have found proved are explicable given the solicitor's mental health at the relevant time. We note that the weight which can place on the expert medical evidence of the two psychiatrists must be considered in the light of two factors. First, Dr Phillips only saw the practitioner on one occasion in June 2015 and the practitioner had not availed himself of the opportunity to see him again as offered by the doctor in his letter dated 22 June 2016.
6. Secondly, each doctor's opinion must necessarily rely on the accuracy of the solicitor's reporting to those professionals. However, the solicitor was not challenged at all about the accuracy of his reported symptoms, nor were the two experts required for cross-examination. We therefore accept the experts' opinion that the solicitor probably suffered the diagnosis, or diagnoses, set out in the expert reports. We note the experts were in broad agreement about probable diagnoses. We find the diagnosis/es may have contributed to the solicitor's conduct.
7. The question of whether or not a solicitor should be removed from the roll must be assessed by considering whether the practitioner is a fit and proper person to be an officer of the Supreme Court at the date of the penalty hearing (see A Solicitor v Law Society of New South Wales (2004) 216 CLR 253). Senior counsel for the Society in her helpful written submissions referred us to a number of factors relevant to our consideration of whether the appropriate order to be made is removal of the practitioner from the roll. She also referred to the fact the medical evidence casts doubts on the solicitor's capacity to self-assess, and reject instructions that have the potential to become "too complex". She also pointed out that the solicitor's conduct must be assessed in the light of his long experience in the profession.
8. By contrast, the solicitor's counsel, while appropriately acknowledging the conduct as found is serious, submitted that it "does not render [the solicitor] permanently unfit to practise". This submission was made with reference to authority (The Law Society of New South Wales v Gathercole [2016] NSWCATOD 27 and Fraser v Council of the Law Society of NSW (Court of Appeal, unreported 7 August 1992).
9. The professional misconduct found in Gathercole and Fraser involved, in the former case, the witnessing of mortgage documents and other documents in the presence only of the mortgagor husband and not his wife (who the solicitor had never met). In Fraser, a relatively inexperienced solicitor, provided a certificate of explanation about a mortgage without seeing the proposed mortgagors or speaking to them, and later provided misleading and evasive answers on two occasions to the mortgagee's solicitor.
10. The facts in this case are distinguishable in some respects from those in both Gathercole and Fraser. In Fraser the solicitor provided a certificate knowing he had not seen or given the requisite advice to the proposed mortgagors. In Gathercole the solicitor knowingly also witnessed documents without seeing the proposed mortgagor wife. Here we have found the solicitor was careless, and had failed to put in place appropriate checks in his conveyancing practice. We have also found the solicitor was reckless in permitting the settlement of Lot 8 in the CPP without obtaining the full contract price or instructions from one of the vendors.
11. In Fraser Kirby JA (as his Honour then was) found four matters that were relevant to determining whether or not the former Legal Services Tribunal's determination that the solicitor should be removed from the roll should be upheld. Some of those factors bear consideration in this case.
12. First, in Fraser the solicitor had knowingly signed the certificate which he knew others would act on. The solicitor's conduct in respect of the witnessing of the transfers was not done knowingly but rather carelessly.
13. Secondly, the solicitor in Fraser had misled a fellow practitioner. No such finding has been made in this matter.
14. Thirdly, in Fraser the solicitor failed to perceive the seriousness of his conduct until questioned by the judges in the Court of Appeal. The solicitor in his Reply admitted a number of particulars of the complaint, and prior to the hearing consented to an Agreed Statement of Facts being presented to the Tribunal. He has, in his affidavit, expressed remorse for his actions and acknowledged his inappropriate conduct and practices.
15. Fourthly, the court gave weight to the conclusions of the Legal Services Tribunal that the solicitor's behaviour was dishonourable and disgraceful and required removal from the roll. Although the Society asserted we could make an order removing the solicitor from the roll, that position was not strongly agitated before us, rather the Society's focus was addressed primarily to appropriate conditions and restrictions on the solicitor's practice designed to protect the public.
16. In Fraser Kirby JA also considered "countervailing" circumstances. These included the fact there was no evidence the solicitor had ever previously acted in a dishonourable way, his conduct was not a course of conduct pursued over a long time, but rather was an isolated serious error of judgment. The solicitor did not charge to provide the certificate and obtained no financial benefit. Further the solicitor had relied on advice he had received that a barrister, with whom he was acquainted and held in high regard, had earlier given advice to the mortgagors.
17. The "countervailing circumstances" as noted by Kirby JA in Fraser do not assist the solicitor in this case. The solicitor's conduct in the established grounds was not limited to one instance. Rather it involved witnessing transfers for Lots 7, 8 and 9, permitting the sale of Lot 9 without one vendor's instructions, and settlement of the sale of Lot 8 without obtaining the full purchase price. The solicitor obtained a financial benefit from the transactions.
18. We have also taken into account in considering whether the solicitor is a fit and proper person as at the date of the penalty hearing to practice that he has been found guilty of professional misconduct by an earlier Tribunal. Those proceedings were determined by the acceptance by the ADT of an instrument of consent. The orders made included a reprimand and fine. While the essential facts are different to the instant case, they disclose a pattern of carelessness in the solicitor's practice. In the earlier case it was a failure to observe changes to the conduct of a mortgage practice because of a failure to check the relevant legislation and after advice from an officer of the Society. This conduct occurred well prior to the fire and the probable impact of that event on the solicitor.
19. As we have earlier noted by reference to Mallet the facts in this case are not "on all fours" with the authorities to which we referred but those authorities provide a useful illustration of relevant matters to take into account in assessing fitness to practice.
20. The relevant criteria in this matter are finely balanced. Weighing each of the criteria we are not satisfied that the solicitor is currently unfit to practice, but we are firmly of the view that in order to protect the public, and to send a strong message of deterrence that he should be reprimanded, subject to a fine, and conditions imposed on his practising certificate. We now discuss our conclusions in respect of the appropriate disciplinary orders including a reprimand, fine and conditions.
21. Neither party suggested that this was a case where the imposition of a suspension of the solicitor's practising certificate was an appropriate or practical outcome. We can see no utility in imposing a suspension in the facts of this matter.
22. Given the serious nature of our findings, notwithstanding the solicitor's understandable distress at the publicity and impact on his reputation our liability reasons have caused, we are satisfied a reprimand is appropriate. This is particularly so, given the ADT's earlier findings of professional misconduct caused by a carelessness in failure to check the relevant legislation in respect of mortgage practices in 2002.
23. Counsel for the solicitor submitted we should not impose a fine. He pointed out the considerable financial burden to the solicitor as a result of his incurring his legal costs in these proceedings. We have taken those costs into account. However, the solicitor has continued to practice since the liability hearing enabling him to earn income. The imposition of a fine will act as a deterrent to other practitioners engaging in like conduct, and will uphold and maintain the standards of the profession.
24. The range of fines that may be imposed are carefully documented by reference to authority in Law Society of New South Wales v Mahony [2017] NSWCATOD 1, and in particular to the factors identified by Mahoney JA in Foreman. We are satisfied the imposition of a fine at the lower end of the range, but which is sufficient to recognise the seriousness of the conduct found proved, is appropriate. We will impose a fine of $5,000.
25. We turn now to the conditions to be imposed on the practitioner's registration.
26. It was of concern to us that the solicitor's evidence revealed he had not taken any steps to act on Dr Phillips' recommendation of a neuropsychological assessment or engage in up to twenty sessions of psychotherapy. We found the solicitor's evidence on the topic of his health highly unsatisfactory. Although he said he had consulted one psychiatrist (whom he referred to by her given name) and said there was a conflict of interest in him consulting this practitioner, he had taken no steps since 2015 to see another psychiatrist. Likewise, his evidence about attendance on a general practitioner was vague and unconvincing.
27. As noted above, we questioned the practitioner about any courses he had undertaken, and his continuing professional development particularly in light of the liability findings. As with his answers to questions about addressing his health issues, we found the practitioner's evidence was vague and unsatisfactory. He had not attended any professional development courses or lectures since at least October 2015. He gave evidence that he had watched CD's and read material to satisfy his annual continuing professional development requirements.
28. Based on our assessment of the practitioner's oral evidence, and his demeanour in the witness box, we had no confidence that he would voluntarily ensure he received proper medical support so that he would be able to deal with the stress of solo or any professional practice. Nor could we be satisfied that he would engage in the types of professional development that would assist him to effectively manage his practice, and to competently engage in conveyancing particularly that associated with some of the large scale development property work in which he continues to engage.
29. It was however encouraging that we were informed by his counsel that the solicitor did not oppose the health conditions sought by the Society, or the appointment of a mentor in the terms proposed by the Society, and on an ongoing basis post 2017 if he remained in sole practice. We have also taken into account the solicitor's evidence in his affidavit that he would be prepared to undertake and complete such professional development programs as we might order as a condition on his practising certificate.
30. The remaining area of dispute between the parties was whether, after 1 July 2017, the practitioner should only be permitted to practice as an employed solicitor. The Society's rationale for this proposed order is that having a mentor in place until 1 July 2017 will enable the practitioner to continue practising (with his health being monitored) while he sells his practice as a going concern and transitions into retirement. He may then, if he wishes to do so, continue in employment in his former firm, or another firm. as an employed solicitor.
31. As we have earlier noted, the solicitor's evidence before us is that he is currently involved in negotiations to sell his practice as a going concern, and that after the sale he wishes to remain as an employee of the firm until December 2017 enabling him to effect a smooth transition of client matters to the new principal/s. The countervailing argument advanced on the solicitor's behalf to the conditions proposed by the Society is that it may take longer than the next five months to sell the practice, and if he is required to practice only as an employed solicitor from July 2017, it may thwart his plans to sell the practice as a going concern. It is submitted on the solicitor's behalf that the public will be properly protected if the mentoring arrangement proposed by the Society to be in place until July 2017 is continued for a period to be determined by us, or such time as he holds an unrestricted practising certificate.
32. The fundamental principles to be applied in imposing conditions on a practitioner's unfettered right to practice are essentially threefold. Any condition imposed must ensure that the interests of clients of the practitioner are properly protected. The order made must act as a deterrent to other practitioners engaging in like conduct, and finally the order must uphold the standards and reputation of the profession. The imposition of a reprimand and a fine cover, to a significant degree, the last two principles or objects.
33. We are concerned about the Society's proposed orders which are designed to come into effect on 1 July 2017. If it is the Society's view that the protection of the public requires that the practitioner's practice be supervised by a principal after 1 July 2017 then it is appears illogical that such a requirement is not sought to be imposed immediately, or at least within some reasonably short period of time to enable the practice or files to be sold, and clients transitioned to a new firm. The period contemplated by the Society during which the solicitor may practice as a principal is one of almost six months' duration. This leads to the inference that the Society deems it is appropriate for the practitioner to continue practising as a principal subject only to having the assistance of a mentor from the date of our orders until 1 July 2017 but not thereafter.
34. We find that the public's interest will be properly protected if the solicitor is required to have a mentor for a period of not less than three years, or him becoming an employed solicitor, whichever event first occurs. The mentor will be required to be approved by the Society and report to it. He or she will also be required to meet not less than fortnightly with the solicitor. The cost of the mentor is to be borne by the solicitor. The mentoring (and health) conditions proposed by the Society in the submissions filed on 23 December are comprehensive.
35. We also find that the solicitor should be required, on or before 30 March 2017 to enrol and to provide evidence to the Society of satisfactory completion of an accredited continuing legal education course of not less than 10 units, including at least two units in aspects of conveyancing practice. If a course offering a conveyancing update is not available on or before that date, then such other course as may be approved by the Society. This continuing professional development is to be in addition to the normal annual mandatory continuing professional development requirements.

Costs

1. The solicitor did not oppose the making of a costs order in favour of the Society. We note that pursuant to Schedule 5 Division 4 of the CAT Act it is mandatory, having found the solicitor guilty of professional misconduct, that unless there are exceptional circumstances, we must make an order that he pay the costs of the Society. We were not directed to any special circumstances in this case. Accordingly we will make an order for costs in favour of the Society.
2. ORDERS
3. John Laurence Orford (the solicitor) is reprimanded.
4. The solicitor is fined $5000.
5. The following conditions are imposed on the solicitor's current practising certificate and for a period of five years during which he holds a practising certificate commencing 1 July 2017: Medical Conditions (a) within 14 days of these orders the solicitor at his own expense is required to establish a therapeutic relationship with a general practitioner of his choice (general practitioner). (b) within 28 days of these orders the solicitor is to notify the Director, Professional Standards, Law Society of NSW (Society) of the identity of the general practitioner. (c) the solicitor must undertake such medical treatment as his general practitioner or another appropriately qualified medical practitioner the general practitioner may recommend (d) the solicitor is to authorise the general practitioner or any other appropriately qualified medical practitioner referred to in (c) to notify the Society as soon as possible in the event of any failure by the solicitor to comply with clinical advices as to treatment and/or medication which may cause an adverse effect on the solicitor's ability to practise as a legal practitioner (e) within 28 days of the date of these orders the solicitor at his own expense is to establish a therapeutic relationship with a psychiatrist (treating psychiatrist of his choice (subject to the approval of the Society) for treatment as regularly and for such period as recommended by the treating psychiatrist. (f) the solicitor must, at his own expense, continue such medical treatment as his treating psychiatrist may recommend. (g) the solicitor is to authorise the treating psychiatrist to notify the Society as soon as possible in the event of any failure by the solicitor to comply with clinical advices as to treatment and/or medication or in the event there is any significant change or deterioration in the solicitor's mental state which may cause an adverse effect on the solicitor's capacity to practise as a legal practitioner. (h) within 28 days of the date of these orders the solicitor at his own expense is to provide a copy of this decision and orders and the decision in Council of the Law Society of NSW v Orford [2016] NSWCATOD 22 together with a copy of the three reports of Dr J Phillips dated 28 October 2015, 10 May 2016 and 22 June 2016, the report of Dr P Langluddecke dated 22 August 2016 and the report of Dr B Westmore dated 10 October 2016 to the general practitioner and the treating psychiatrist. (i) within 28 days of the date of this order the solicitor at his own expense is to provide to the Society written acknowledgements from the general practitioner and the treating psychiatrist that they are willing to make the notification contemplated by paragraphs 3 (d) and (g). (j) on or before 31March 2017 the solicitor is at his own expense is to notify the Society in writing advising of the dates of attendance on any treating psychiatrist in the preceding three month period and the date of the solicitor's next scheduled attendance(s). Thereafter notifications shall be made quarterly commencing on 30 June 2017 and thereafter on or before 30 September, 30 December, 30 March and 30 June each year unless and until the Society is provided with confirmation in writing from the treating psychiatrist that he or she no longer recommends treatment is required by the solicitor. (k) subject to paragraph 3(l) if the solicitor establishes an ongoing therapeutic relationship with another general practitioner (the substitute general practitioner) other than the general practitioner or another treating psychiatrist (the substitute treating psychiatrist) other than the treating psychiatrist, the conditions in paragraphs 3 (b) (c) (d) (e) (f) (g) (h) and (i) shall apply in respect of that substitute general practitioner and/ or substitute treating psychiatrist. (l) conditions except the obligations in 3(a) shall arise 14 days after the cessation of the solicitor's relationship with the general practitioner, and all other obligations arise within 28 days after the nomination of the substitute general practitioner or substitute treating psychiatrist. Mentoring conditions
6. Subject to paragraph 6 from the date of these orders the solicitor's current practising certificate and any subsequent practising certificate issued to him is subject to the following conditions: (a) within 14 days of the date of these orders the solicitor is to nominate to the Society for its approval as his mentor the name of a solicitor who holds an unrestricted principal practising certificate (b) within 28 days of the date of these orders the solicitor is at his own expense is to establish a mentoring relationship with a solicitor (mentor) who is approved by the Society. (c) within 28 days of the date of these orders the solicitor shall provide to the Society a written notification by the mentor that he or she consents to undertake the mentoring responsibilities set out in paragraph 4(e) (i) and (ii). (d) within 28 days of the date of these orders the solicitor is to provide to the Society a written notification that the proposed mentor has been provided with the material referred to in paragraph 3 (h) of these orders. (e) the mentor is: (i) to attend the solicitor's law practice on a fortnightly basis ( or as otherwise deemed appropriate by the mentor (but not less than fortnightly) to review the solicitor's active matters so as to ensure the proper management of the solicitor's law practice; and (ii) the mentor is to report any concerns regarding the conduct of the solicitor's law practice to the Society (Paragraphs 4(e) (i) and (ii) collectively are the mentoring responsibilities). (f) if the person first appointed as mentor is no longer in a position to undertake the mentoring responsibilities the solicitor shall: (i) immediately on learning of the mentor's inability to undertake mentoring responsibilities notify the Society in writing of that fact; (ii) within 14 days of the solicitor giving notice to the Society under 4 (f) (i) he shall notify the Society in writing the name of a new mentor (the substitute mentor) who is willing to and consents to undertake the mentoring responsibilities in paragraph 4 (e) (i) and (ii).of these orders. (g) within 14 days of the solicitor giving notice to the Society under 4 (f) (i) he shall provide to the Society in writing the consent of the substitute mentor to undertake the mentoring responsibilities. (h) the solicitor at his own expense is to notify the Society in writing of the dates of attendance of the mentor in the preceding three month period and the date of the mentor's next scheduled attendance (s). The notification is to be made on or before the dates set out in paragraph 3 (j) of these orders.
7. If the solicitor fails to comply with paragraphs 3 (j) and 4 (h) of these orders his practising certificate is immediately suspended.
8. The conditions imposed by paragraphs 4 are to continue until: (i) three years from the date of these orders or (ii) such time as the solicitor no longer holds an unrestricted principal practising certificate whichever event first occurs.
9. Within 14 business days of receipt of the solicitor's written notification of a proposed mentor or substitute mentor the Society is to advise the solicitor and the proposed mentor or substitute mentor in writing that he or she has been approved as mentor or substitute mentor.
10. If a proposed substitute mentor is approved by the Society as mentor, the Society is to write to the mentor at the same time as it writes to the substitute mentor informing the mentor that effective from a date selected by the Society he or she is no longer the solicitor's mentor having the mentoring responsibilities.
11. The Society may withdraw its approval of the mentor or any substitute mentor and in such case the solicitor is to nominate a new mentor in accordance with the procedure set out in paragraph 4 (a) (b) (c) and (d) within 14 days of the date of the Society's notice.
12. The solicitor shall on or before 31 March 2017 enrol in and complete a course (other than an on-line course) or courses of at least 10 accredited units of continuing professional education of which 2 units shall be in respect of aspects of conveyancing practice. In the event a course or courses offering 2 units of aspects of conveyancing practice is not available, then such other two accredited units as shall be approved by the Society in writing.
13. The solicitor shall pay the costs of and incidental to these proceedings of the Council of the Law Society of NSW as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

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 February 2017 - Typographical error 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 February 2017