52. These cases and comparisons do not assist the respondent. It is an unremarkable proposition that each case must turn on its own facts and circumstances and his submission completely ignores or fails to appreciate the tenor of the authorities[39] namely, the fact that the nature of his conduct which has been the subject of numerous and serious adverse findings can also be the basis for a finding that a lawyer is not a fit and proper person, thus permitting an order that the lawyer's name be removed from the roll of practitioners. The breadth of the concept of professional misconduct is wide.

1. The respondent relied on The Legal Services Commissioner v CBD[40]. Unfortunately, that case did not assist the respondent. The Tribunal is not persuaded by the respondent's submissions. We are however, persuaded by the applicant's submissions in this regard.

Insight and Remorse - the Respondent's Appreciation of Wrongdoing

54. The respondent's written submissions and his oral address were full of expressions of remorse. However, his submissions contain statements of argument and justification for his actions. His submissions and oral address also contain assertions of having suffered 'agony' as a consequence of his remorse for his transgressions. The Tribunal had cause to comment upon them[41]. The Tribunal summed up those expressions thus:

You throw words like 'agony' around and you have concern for your clients, but when it comes down to the hard and fast payment of cash it doesn't appear.

Your words are very easy. Type the words out on paper. Express them to the Tribunal. You're in agony.

You say you take full responsibility, but the fact of the matter is you have not taken full responsibility. It is the Tribunal that has made the finding, and it was only after the finding that you seemed to accept responsibility. Up until that time there was no acceptance of responsibility. Indeed there was a denial of responsibility. That you had done nothing wrong, it was not your fault, it was other people's fault.....this rings a little hollow.

55. The reference in the above transcript extract relates to the financial loss suffered by the respondent's former clients (the complainants) as a consequence of the respondent's conduct and an inquiry from the Tribunal in relation to the question of any compensation paid or any offer to pay any to them by the respondent[42].

56. No compensation had been paid and nor had an offer to pay any compensation been made by the respondent. The fact that the respondent had not even offered to pay compensation to his former clients is a consideration, which goes to the appropriate sanction[43]. Although it is not in evidence, the respondent, following the conclusion of the hearing on penalty on 10 October 2012, forwarded a copy of a letter and a copy of a cheque to his former clients. However, far from assisting his case, this conduct was only demonstrative of his lack of insight into his misconduct.

57. A lawyer's failure to appreciate the correctness and gravity of the misconduct may be indicative of unfitness to practise[44]. Such a failure is often associated with lack of understanding or care of fundamental aspects of professional responsibility[45].

1. The respondent's significant disciplinary history, the apparent failure of the impact of earlier disciplinary proceedings and the penalties imposed on him to alter his professional conduct, the essentially dishonest nature of many of the charges proven and the subject of adverse findings in respect of them further suggest to the Tribunal that the respondent has no insight into his misconduct.

59. The Tribunal therefore cannot be confident that the respondent appreciates the nature of his wrongdoing. The Tribunal regards his expressions of remorse as hollow. His 'agony' suggests agony for his present predicament, rather than any genuine remorse for the effect of his misconduct on his former clients. So much is clear from his written submissions[46].

60. The degree to which a lawyer appreciates the seriousness of the misconduct is a relevant factor in the extent to which the Tribunal, exercising a protective jurisdiction, might choose between the alternatives of suspension or removal from the roll. A lawyer who fails to understand the consequences of misconduct is a great risk to the community: New South Wales Bar Association v Evatt[47]; Law Society of New South Wales v Moulton[48]; Legal Practitioners Complaints Committee v Lashansky [49].

1. The Tribunal takes notice of the fact that, independent of the suspension imposed in LP 8 of 2009, the Law Society has taken its own action in refusing to grant the respondent a practising certificate of any kind. The Tribunal acknowledges that the loss of the respondent's practising certificate and the refusal of the Law Society to grant him a restricted practising certificate have already caused the respondent significant financial loss and embarrassment.

62. Strictly speaking, the loss suffered by a lawyer as a consequence of his or her wrongdoing as well as the attendant damage to reputation is irrelevant to the question of penalty in the face of the overarching protective purpose of professional disciplinary proceedings[50]. Those matters might be relevant if the penalty of a fine were contemplated. Such a penalty has not been sought and, even granted the Tribunal's discretion in this respect, a fine, in these circumstances would not be an appropriate sanction.

1. Bearing in mind the very serious nature of the findings in these proceedings, the considerable disciplinary history, such consideration of the loss already suffered, as was pressed upon the Tribunal by the respondent, is not weighty.

1. The respondent filed letters from persons purporting to give character references in support of him. He also filed newspaper clippings and so forth, reporting on his successes and good works. The Tribunal notes them.

65. However, counsel for the applicant made various points in relation to them[51]. First, he pointed out that the only referee who acknowledged LP 8 of 2009 and this application was Mr N. In that letter Mr N tells us that the respondent is remorseful in respect of his conduct giving rise to those matters.

1. The second point made by the applicant is essentially an inconsistency point. As counsel for the applicant pointed out, the decision in LP 8 of 2009 is on appeal. In that appeal, it is clear that the respondent rejects and challenges each of the very serious adverse findings and asks that they be overturned. That does not sit comfortably with the so-called remorse for the very same conduct apparently expressed to Mr N. For that reason, the references are of little weight.

1. The applicant seeks an order pursuant to section 425(3)(a) of the Act recommending that the respondent's name be removed from the roll and also seeks an order for costs.

68. This Tribunal found in its reasons for decision published on 28 June 2012 that it was no longer justified in holding out the respondent as a fit and proper person to remain on the roll of solicitors[52].

69. The applicant relied upon the comments of Spigelman CJ in New South Wales Bar Association v Cummins[53] and submitted that the Tribunal would conclude that the respondent did not meet the four criteria set out by the Chief Justice any longer. We agree with that submission.

1. The applicant then relied upon Council of the Law Society of the ACT v The Legal Practitioner (Occupational Discipline) [2010] ACAT 46 which, in turn, relied upon Southern Law Society v Westbrook.

71. While not every finding of professional misconduct will lead to an order that the lawyer's name be removed from the roll[54], where a finding involves a finding that the misconduct proven demonstrates unfitness to practise and where there is a strong basis for considering that the defect is still operative, it is a course that must be considered[55].

72. It was submitted by the applicant that that principle was applicable in this case and the Tribunal is persuaded by that submission[56]. Moreover, it was submitted by the applicant that there had been no change in circumstances to undermine the finding of unfitness. The Tribunal agrees with that proposition and is of the view that the matters to which we have referred above add further strength to the submission that the appropriate penalty is that suggested by the applicant.

73. The respondent submitted that the appropriate penalty was some form of suspension, reprimand and some limited costs order[57]. The respondent also suggested that he undertake a course in ethics[58]. As we have noted above, the respondent was ordered to undertake a course in ethics as part of a penalty in relation to his first disciplinary breach. In addition, he was privately reprimanded. He has been publicly reprimanded in the past and, in LP 8 of 2009, he received a suspension.

1. None of these penalties and sanctions appears to have had the least impact or deterrent effect on the respondent. He appears unreformed. It is improbable, in the circumstances, that such a penalty as suggested by the respondent would have any effect on him, despite his protestations to the contrary.
2. On the other hand, such a penalty as suggested by him, ignoring for the moment the position of the Law Society vis a vis his practising certificate, would pose a great risk to the community because it necessarily contemplates a return to practice.

1. In assessing the penalty, the Tribunal will assess a penalty for the complaint as a whole rather than on the basis of separate penalties for the individual grounds.
2. The Tribunal has given careful consideration to the penalty in this application. It has considered all the principles and factors relevant to such deliberations. The Tribunal concludes that the appropriate sanction in this application is an order recommending that the respondent's name be removed from the roll pursuant to section 425(3)(a) of the Act.

1. The respondent has engaged in professional misconduct. There is no evidence of exceptional circumstances pursuant to section 433(1) of the Act that would justify an exception to the general rule that a legal practitioner who is found to have engaged in professional misconduct should pay the costs of the applicant. Nor is there any justification for an order pursuant to section 433(5)(a) of the Act.
2. The respondent should pay the applicant's costs on the party/party basis on the scale applicable to matters proceeding in the Supreme Court. The parties should make an attempt to reach agreement on costs. If agreement is not reached within 28 days, the applicant may file and serve a Bill of Costs using form 2.45 approved under the Court Procedures Rules 2006. The respondent is to file and serve a document setting out the objections he has to the Bill within 14 days of its service. The Bill and the respondent's objections will be referred to the registrar of the Tribunal. The registrar is to assess the costs and make a recommendation to the tribunal concerning the amount that it should state be paid by the respondent.

APPLICANT: The Council of the Law Society of the ACT

TRIBUNAL MEMBER/S: Ms L Donohoe SC - Presiding Member

DATE/S OF HEARING: 10 October 2012 PLACE: CANBERRA

DATE/S OF DECISION: 8 February 2013 PLACE: CANBERRA

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

[1] Council of the Law Society of the ACT and the Legal Practitioner 'Y' [2012] ACAT 40

[2] This decision was previously anonymised and cited as The Council of the Law Society of the ACT v Legal Practitioner Y [2013] ACAT 8 pursuant to section 423A of the Legal Profession Act 2006. As the appeal period has ended, the practitioner has now been identified in the citation of this decision. The reasons for decision otherwise remain unchanged from the date of publication.

[3] The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 at [54].

[4] Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 763.

[5] [2001] NSWCA 284 at [51].

[6] [2010] NSWCA 369 at [44].

[7] [1910] HCA 31; (1910) 10 CLR 609 at 612 per Griffith CJ.

[8] [1947] HCA 53; (1947) 75 CLR 409 at 416 per Latham CJ.

[9] (1979) 40 FLR 1 at 24 - 25 per Blackburn CJ.

[10] [1999] SASC 83.

[11] [2004] HCA 1; (2004) 216 CLR 253 at [15].

[13] [2007] WASC 119 at [8].

[14] [2000] QCA 253; (2000) 112 A Crim R 438.

[15] Jauncey v Law Society of New South Wales, Unreported, NSWCA 1 February 1989 per Clarke JA.

[16] Law Society of the ACT v Gates [2006] ACTSC 126.

[17] Attorney-General v Bax (1999) 2 Qd R 9 at 22 per Pincus JA.

[18] Re Drew [1920] NSWStRp 56; (1920) 20 SR (NSW) 463 at 466 per The C.J.

[19] Re Evatt (1967) 67 SR (NSW) 236 at 250.

[20] Respondent's written submissions at paragraphs 8, 36A(i); T28.25.

[21] Respondent's written submissions at paragraph 8.

[22] Respondent's written submissions at paragraph 8; T42.12-.35.

[23] Council of the Law Society of the ACT and the Legal Practitioner 'Y' [2012] ACAT 40, [43], [74][77], [85]F and [161].

[26] Respondent's written submissions at paragraph 34.

[27] Council of the Law Society of the ACT and the Legal Practitioner 'Y' [2012] ACAT 40, relevantly at [159].

[29] Respondent's written submissions at paragraphs 15 - 23(b).

[30] Respondent's written submissions at paragraph 23(a). See paragraph [75] of Reasons for Decision 16 May 2012.

[31] Respondent's written submissions dated 27 September 2012, paragraph 10, T19.27.

[32] Legal Practitioners Conduct Board v Le Poidevin [2001] SASC 242; (2001) 83 SASR 443; Legal Practitioners Conduct Board v Hay [2001] SASC 322; (2001) 83 SASR 454; Council of the Queensland Law Society v Tunn [2004] QCA 412.

[33] Respondent's written submissions at paragraph 10.

[34] Legal Practitioners Conduct Board v Le Poidevin at [18] per Doyle ÇJ.

[35] Dal Pont, Lawyers Professional Responsibility, GE, Lawbook Co, 4th ed 2010, [23.125].

[39] Clyne v NSW Bar Association [1960] HCA 40; (1960) 104 CLR 186

[40] [2012] QCA 69

[43] Law Society of Tasmania v Turner [2001] TASSC 129; (2001) 11 Tas R 1 at [38] per Crawford J.

[44] Southern Law Society v Westbrook at 626 per Isaacs J; New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 184; Re Maidment (1992) 23 ATR 629 at 642 per Legoe J; Law Society of New South Wales v Foreman (1994) 34NSWLR 408 at 472 per Giles A-JA.

[45] Law Society of New South Wales v Moulton [1982] 2 NSWLR 736 at 743 per Hope JA; Law Society of New South Wales v Foreman (1994) 24 NSWLR 238 at 253 per Mahoney JA.

[46] Respondent's written submissions at paragraph 34.

[47] [1968] HCA 20; (1968) 117 CLR 177.

[48] (1981) 2 NSWLR 736 at 741 & 743 per Hope JA.

[49] [2007] WASC 211 at [35].

[50] Re Maraj (a Legal Practitioner) (1995) 15 WAR 12 at 24 per Malcolm J.

[54] Prothonotary of the Supreme Court of New South Wales v Mccaffery [2004] NSWCA 470.

[55] Council of the New South Wales Bar Association v Slowgrove [2009] NSWADT 150 at [26].

[56] Applicant's written submissions dated 11 September 2012, paragraphs 29 - 36.