Prothonotary of the Supreme Court of New South Wales v Da Rocha

Reasons 12In determining whether an order for removal from the Roll should be made, the question is whether the practitioner has been shown not to be a fit and proper person to be a legal practitioner of the Court (A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; 216 CLR 253). That question, and the question whether a practitioner is of good fame and character, must be determined as at the date of the hearing (A Solicitor (cited above); Ex Parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR (NSW) 448). Before addressing those issues, consideration will first be given to whether Ms Da Rocha has been shown to have been guilty of professional misconduct.

• Professional misconduct 13"Professional misconduct" is defined in s 497(1) of the Legal Profession Act 2004 (NSW) as including: (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. 14Section 497(2) provides that, for finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection 497(1), regard may be had to the matters that would be considered under s 25 or s 42 of the Act if the practitioner were an applicant for admission to the legal profession under the Act or for the grant or renewal of a local practising certificate (as well as any other relevant matters). 15Section 9(1) of the Legal Profession Act includes the following as "suitability matters" (which are relevant when considering an application for admission to practise or the grant or renewal of a local practising certificate): (a) whether the person is currently of good fame and character; (c) whether the person has been convicted of an offence (and, in relation to the latter, the nature of the offence; how long ago the offence was committed; and the person's age when the offence was committed); and (j) whether the person has contravened a law about trust money or trust accounts. 16Ms Da Rocha's conviction for the offences in question is undoubtedly a matter that would be considered on an application for the grant or renewal of a local practising certificate. It involved unauthorised and dishonest conduct relating to the withdrawal of moneys from a solicitor's trust account for Ms Da Rocha's own financial advantage. The Prothonotary submits, and it is accepted, that Ms Da Rocha's conduct is inimical to the principled behaviour and scrupulous honesty required of a legal practitioner when discharging his or her obligations as a legal practitioner. It clearly amounts to professional misconduct within the meaning of s 497 of the Act and a finding to that effect should be made.
• Good fame and character 17This expression is not defined in the Legal Profession Act. In Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320, it was said (by Young CJ in Eq, as his Honour then was, at [17]) that fame refers to a person's reputation in the relevant community, whereas character refers to a person's actual nature. 18In Prothonotary of the Supreme Court of NSW v Alcorn [2007] NSWCA 288, Hoeben J (as his Honour then was) noted (at [57]) that the absence of good fame and character is to be determined at the time of the hearing and (at [58]) that, in determining whether a person is of good fame and character the Court must consider "matters affecting the moral standards and attitudes and qualities" of the person and not merely consider "what is his general reputation" (referring to Ex parte Tziniolis, which considered the question in the context of a medical practitioner, and Incorporated Law Institute of NSW v Meagher [1909] HCA 87; 9 CLR 655 which considered the question in the context of an admission application). His Honour went on to say (at [59]-[60]): However the notion of good character is not at large. It must relate to the qualities relevant to practice as a professional. Kirby P described the concept as follows: The 'good character' which is required, the absence of which may give rise to complaint leading to sanctions, must be a 'good character' relevant to the purpose for which the complaint is entertained, viz for the making of an order affecting the practice of the medical practitioner concerned as such ... The relevant function of the Tribunal is to protect the public from medical practitioners whose continued practice may cause harm to the public. (McBride v Walton (... at [15]). Dixon J described the concept of 'good fame and character' as follows: It would almost seem to go to without saying that conviction of a crime of dishonesty of so grave a kind as housebreaking and stealing is incompatible with the existence in a candidate for admission to the Bar of the reputation and more enduring moral qualities denoted by the expression 'good fame and character', which describes the test of his ethical fitness for the profession. (In Re: Davis at 420). 19In McBride v Walton [1994] NSWCA 199 (at [61]-[62]) the Court noted the matters to be considered when determining whether a finding of proven misconduct should be followed by a consequential finding that the practitioner was not of good character (in the context of fitness to practise medicine) as being: (a) whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character; (b) the intrinsic seriousness of the misconduct qua fitness to practise medicine; (c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities of character; (d) the motivation which may have given rise to the proven episode of misconduct; (e) the underlying qualities of character shown by previous and other misconduct; and (f) whether the practitioner's conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner. 20In the present case, there was nothing to explain the dishonest conduct of Ms Da Rocha as referable to any misjudgement or atypical conduct on her part. The course of conduct was found (and agreed) to be part of a systematic pattern of behaviour over a period of over 3 years. The motivation for the behaviour was described as a mixture of perceived need and pure greed. 21In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 449 Mahoney JA noted that character involves, among other things, the acceptance of high standards of conduct and acting in accordance with those standards under pressure, observing that "[c]haracter is tested not by what one does in good times but in bad". 22Ms Da Rocha has admitted to criminal offences in relation to the unauthorised drawing of cheques from the firm's trust account for her own benefit. The complaint as to her conduct goes directly to matters in which she was acting as a solicitor and in which she had the capacity to cause loss to beneficiaries of the deceased estates in question. The dishonesty involved in such conduct strikes at the fundamental role of a solicitor in the community and the trust that is placed in members of the legal profession. As at the time of commission of the offences, there can be no doubt that Ms Da Rocha did not demonstrate the character expected of a solicitor and that, on her conviction for those offences, she did not have the reputation in the community that is expected of a solicitor. 23The question is as to whether Ms Da Rocha is currently not of good fame and character. 24In Prothonotary of the Supreme Court of New South Wales v Nikolaidis [2010] NSWCA 73, the Court had no doubt that the gravity of the misconduct that had there occurred (over ten years before the application for the solicitor's removal from the roll) demonstrated a present unfitness to practise as a solicitor. The conduct in question was described by the Court (Allsop P, as his Honour then was, McColl and Young JJA) as having involved a deliberate and planned course of action involving third parties to deceive a costs assessor appointed by the Court in order to advance the solicitor's position against a former client. The Court noted that the conduct did not bear the hallmark of a one-off lapse of judgment not reflective of underlying character; rather, it revealed a willingness to engage in dishonest conduct and to undertake it in a planned fashion. The Court made a declaration that the solicitor was guilty of professional misconduct and that the practitioner was not a fit and proper person to remain on the Roll. 25However, the Court did not consider it necessary to make an additional declaration as to present absence of good fame and character in the absence of contemporary evidence. The Court there considered it unnecessary to discuss whether declaratory relief as to fame and character would require more recent evidence. The Court did, however, note that cases such as Ex parte Tziniolis and Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 448 made it appropriate to act on the basis of the absence of reformation of character in assessing current fitness to remain on the Roll. The Court had earlier observed (at [25]) that, in the context of assessing whether reformation may or may not have occurred, in circumstances where the respondent did not give evidence it was difficult to see how it could be concluded that the reflection upon the underlying character of the respondent by the commission of a planned offence of dishonesty did not reflect on him over ten years later. 26In Alcorn, the Court was prepared to make a declaration that the practitioner was not a person of good fame and character (though noting that the practitioner had served his sentences of imprisonment, was in employment and was endeavouring to rehabilitate himself) in circumstances where proof to show that he had established himself "as a different man" had not and could not (because of the serious nature of the conduct) be forthcoming. Reference was made to what was said by Walsh JA in Tziniolis at p 461: Reformations of character and behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man. 27In Tziniolis, Walsh JA went on to note that: ... adverse findings on the facts relating to an earlier period when he was already mature in years make it difficult to come to a conclusion that he is now of good character at this later time. There can, of course, be no universal rule on such a question. Each case must depend on its own facts and circumstances. 28In the present case, Ms Da Rocha has served her sentence of home detention but there is no evidence to show that she has reformed her character from that which it was when the serious offences of dishonesty were committed. Ms Da Rocha voluntarily surrendered her practising certificate on 22 October 2010. The Prothonotary notes that, since then, Ms Da Rocha has not been in a position of trust. She has therefore not been in a position in which her integrity in a professional context has been able to be assessed nor, in the absence of evidence from Ms Da Rocha, is there a basis on which to form a view as to the existence of genuine contrition or remorse revealing insight into the quality and causes of her offending. The Prothonotary submits that the mere effluxion of time without further adverse conduct does not lead to satisfaction as to a reformation of character in respect of offences continuing over a period of three and a half years and ending only four years ago. The Court agrees. In those circumstances, the Court is not satisfied that Ms Da Rocha is currently a person of good fame and character.
• Fit and proper person 29In Foreman, the Court of Appeal indicated that in determining whether someone is a fit and proper person to be a solicitor the relevant considerations may include: the protection of the public against similar conduct, the character of the solicitor, and the effect which an order will have on the understanding (within the profession and amongst the public), of the standard of behaviour required of solicitors, the effect upon relationships which must exist between solicitors and the circumstances surrounding the impugned conduct. 30The Prothonotary accepts that a criminal conviction, even for a serious offence, does not automatically render a person unfit to be on the Roll and that it is necessary to assess the nature and quality of the criminal conduct and its relevance to the practice of law (Ziems v Prothonotary of the Supreme Court of NSW [1957] 46; 97 CLR 279). 31In NSW Bar Association v Hamman [1999] NSWCA 404, Mason P (at [101]) expressed the view that the proven misconduct and conviction (involving significant and prolonged dishonesty for personal gain) there established unfitness to practise as a barrister. There, the offences in question related to the dishonest understatement of income in tax returns for a period of three years, for which the barrister was sentenced (as varied by the Court of Criminal Appeal) to a period of 14 months by way of periodic detention. The Court considered that the dishonesty in question was professional misconduct of a kind that demonstrated unfitness to practise as a barrister (and that such unfitness to practice must be marked by disbarment). 32In the present case, the dishonesty of Ms Da Rocha occurred over a long period of time and on numerous occasions. It occurred in her capacity as a legal practitioner having responsibility in relation to the disbursement of moneys from the firm's trust account. That conduct constituted professional misconduct. Ms Da Rocha is not a fit and proper person to practise as a solicitor and hence to be on the Roll.

Relief sought 33The Prothonotary has established that Ms Da Rocha has been guilty of professional misconduct, is not of good fame and character and is not a fit and proper person to be on the Roll. 34The Court has referred above to the lack of evidence from Ms Da Rocha going to the question of contrition. In Childs v Walton [1990] NSWCA 41, Samuels JA (with whom Priestley and Meagher JJA agreed) noted the protection of the community as the paramount interest in this regard and said, in relation to contrition, that: The law does not require the expression of contrition as the satisfaction of some arcane ritual. In cases such as this, where the protection of the community is the paramount interest, contrition, if accepted as honest, may indicate that no occasion for protection exists. 35Similarly, in Dawson v Law Society of New South Wales [1989] NSWCA 58, Mahoney JA (Meagher JA concurring in a separate judgment; Kirby P dissenting in the result) said (at pp 6-7): Repentance is relevant, at least in the ordinary case, because it assists the conclusion that the applicant has left his previous standards or values and adopted more appropriate ones. Without that, his conduct in the future is unlikely to be acceptable. 36The Prothonotary accepts that, in sentencing Ms Da Rocha, the Magistrate observed that Ms Da Rocha had demonstrated remorse and contrition and that she had repaid all the misappropriated funds and cooperated with the Law Society and the police. There is no suggestion that Ms Da Rocha intends to resume legal practice. 37Nevertheless, the Prothonotary submits that it is in the interests of upholding the standards of professional conduct expected of legal practitioners and officers of this Court that Ms Da Rocha's name be removed from the Roll. The Court agrees. Such an order should be made. 38As to the declarations sought, it is submitted that the making of such declarations has utility in that these may be of relevance in the event that there were to be a subsequent application by Ms Da Rocha for readmission to the Roll. Reference is made to Bridges v Law Society of New South Wales [1983] 2 NSWLR 361; Prothonotary of the Supreme Court of New South Wales v Ritchard (NSW Court of Appeal, 31 July 1987, unreported); New South Wales Bar Association v Cummins [2001] NSWCA 284, 52 NSWLR 279 at [24] per Spigelman CJ (with whom Mason P and Handley JA agreed) in this regard. 39In Cummins, Spigelman CJ said (at [21]) that: ... Neither the relationship of trust between a legal practitioner on the one hand, and his or her clients, colleagues and the judiciary on the other hand, nor public confidence in the profession, can be established or maintained, without professional regulation and enforcement. 40His Honour considered that maintenance of the confidence of the public in the legal profession made it appropriate to make formal declarations as to the practitioner's unfitness to practise and that his past conduct was professional misconduct. For that reason, and because the Court accepts that the making of declarations consistent with the findings above would be of utility if there were later to be an application by Ms Da Rocha for readmission to the Roll, those declarations should be made.

Conclusion 41For the reasons set out above, the Court is of the view that the following order and declarations should be made.

1. Declare that the Respondent was guilty of professional misconduct in having fraudulently misappropriated moneys held in the trust account of Marsdens Law Group in the period from December 2005 to September 2009, whilst employed as a solicitor with that firm (as so convicted in July 2011 in proceedings before the Local Court at Campbelltown).
2. Declare that, by reason of the professional misconduct referred to in 1 above, the Respondent is not a person of good fame and character.
3. Declare that, by reason of the professional misconduct referred to in 1 above, the Respondent is not a fit and proper person to remain on the Local Roll of Lawyers of the Supreme Court of New South Wales.
4. Order that the name Sandra Rocha be removed from the Local Roll of Lawyers of the Supreme Court of New South Wales.

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