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[2025] NSWCA 215
plaintiff. The Court declared that Mark Leo O’Brien was not fit and proper to remain on the Roll of Australian lawyers, ordered that his name and associated particulars be removed, and ordered him to pay the...
The Court removed O’Brien from the Roll after finding that his repeated and concealed misappropriation of substantial estate funds showed he lacked the honesty, trustworthiness and integrity required of a solicitor. The Court had to reach its own conclusion even though he did not oppose removal. It also made a formal declaration and ordered him to pay the Council’s costs, including costs connected with documentary evidence needed for the Court’s assessment.
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2,268 words · generated 06/10/2026
The Council of the Law Society of New South Wales applied to the Court of Appeal for two substantive orders: a declaration that Mark Leo O’Brien was not fit and proper to remain on the Roll of Australian lawyers, and removal of his name and associated particulars from the Roll. It also sought its costs. O’Brien did not oppose the substantive relief, but argued that costs associated with preparing a 215-page documentary exhibit should be excluded. The Court granted the substantive relief and ordered O’Brien to pay the Council’s costs [1]-[3], [35]-[39].
10 cited instruments linked from this judgment.
The facts concerned O’Brien’s handling of money connected with two estates. He had been admitted in New South Wales in 1980 and was a partner in Harrington Maguire & O’Brien, where he had control over the practice trust account. His practising certificate was suspended on 1 March 2019 [20]-[21].
In 2015, O’Brien misappropriated money held in trust for the Rafferty Estate. The funds included two $100,000 legacies intended for the Central Sydney Area Health District and the St Vincent de Paul Society. He also took two amounts of $654,956.05, corresponding to the shares intended for RANZCO and Paraquad. He used false ledger entries and forged receipts to create the impression that distributions had been made properly [26]-[29].
The Delaney Estate conduct involved both a period before Ms Delaney’s death and the administration of her estate. In 2017, while acting under an enduring power of attorney, O’Brien transferred $155,000 from Ms Delaney’s account to a joint account he held with his wife [25]. In 2018, after he was appointed executor, he transferred funds received into the law practice’s trust account for the estate into that joint account. The judgment gives precise amounts of $1,773,486.23 and $2,740,288.12 for the two identified misappropriations. It also records forged documents and false trust-ledger entries used to conceal the conduct [22]-[24].
The investigator’s final report put the total misappropriation at $6,178,686.18, comprising funds from both estates [30]. O’Brien later pleaded guilty to ten criminal charges, with another offence taken into account. He was sentenced to an aggregate term of ten years’ imprisonment, with a six-year non-parole period [31]-[32]. The judgment did not treat the criminal sentence as a substitute for the Court’s separate responsibility to decide whether he should remain on the professional Roll.
The governing inquiry was whether O’Brien was fit and proper to remain a member of the profession. The Court explained that this required assessment of current fitness and likely future fitness. Removal was appropriate where the facts showed current unfitness likely to continue for the indefinite future [7]. The Court also stressed that it had to decide the issue independently, notwithstanding the Council’s recommendation and O’Brien’s non-opposition [8].
The Court’s reasoning focused on the nature, scale, duration and concealment of the conduct. At [33], it described the abuses of trust as “egregious”, “calculated” and repeated “over a sustained period of many years”. It referred to the very substantial sums and concluded that the conduct showed an absence of the basic qualities of honesty, trustworthiness and integrity required of a solicitor. The conclusion was not framed simply as a response to criminal conviction. It was a professional-fitness finding based on the underlying conduct and the implications of that conduct for public confidence.
That approach followed the judgment’s account of the purpose of the Court’s jurisdiction. It exists to protect the public and maintain confidence in the legal profession [9]. The Court explained that this purpose requires public accountability and a measure of general deterrence. It also means that a court should record relevant facts even where the practitioner does not contest them. A detailed judgment makes the conduct and the judicial response publicly examinable [10]-[11].
The Court additionally considered why dishonesty involving trust money is especially serious for the profession. Earlier authorities discussed in the judgment identify trust in lawyers as important to clients, fellow practitioners, the judiciary and the public [14]-[18]. The Court applied that context to the facts before it: the funds were entrusted for estate beneficiaries, and O’Brien’s position as solicitor and control of the trust account enabled him to take and conceal those funds. The Court’s conclusion at [33] drew together the conduct and the professional qualities it found lacking.
The declaration had a separate public-facing function. Removal is the order with operative effect, but the Court considered a formal declaration appropriate because it records the basis for removal and communicates that conduct of this character is not tolerated in the profession [34]. The Court therefore made both orders rather than treating removal alone as sufficient.
Costs were also resolved by reference to the Court’s independent function. O’Brien argued that the Council should have sought agreement on a comprehensive statement of facts instead of compiling Exhibit VG-1. The Court found the exhibit was necessary. It contained correspondence, notifications, investigation reports, formal resolutions, conviction records and sentencing remarks [36]. The agreed statement of facts was useful but “not self-sufficient” [37]. Since the Court had to examine the facts and decide for itself whether removal was appropriate, the Council reasonably put those materials before it. The Court found no basis to exclude the exhibit-related costs [37]-[38].
The judgment does not describe a change in the law. It applies an existing framework for applications to remove a practitioner from the Roll. That framework asks whether the practitioner is fit and proper to remain, taking account of present and likely future fitness [7]. The Court’s use of that test reflects the cited decisions, particularly In Re Davis, Ziems and Green [7].
The jurisdictional route in this case was statutory. The Council relied on s 23(1)(b) of the Legal Profession Uniform Law (NSW), which the judgment identifies as allowing removal on the recommendation of the designated local regulatory authority [4]. The Council’s resolution and summons established the recommendation for this purpose [5]. The Court noted that the statutory jurisdiction exists in parallel with the Supreme Court’s inherent jurisdiction concerning its officers [6]. The case therefore applies, rather than replaces, those jurisdictional foundations.
The judgment also restates that professional discipline is not merely a response to criminal punishment. Its stated purpose is public protection and confidence in the profession [9]. Detailed public findings are part of that work, including where the practitioner agrees with, or does not oppose, the result [10]-[11]. In this case, the relevant assessment was informed by the conduct as established in the disciplinary material and sentencing records, rather than only by the fact of conviction [19].
For trust-account misconduct, the judgment presents removal as the ordinary response to serious misappropriation, referring to Green, Ghobrial and Du Pal [16]-[18]. But the Court’s determination remained fact-specific: it examined O’Brien’s sustained conduct, the substantial sums and the use of false records before reaching its own conclusion [30], [33]. The decision confirms that, in this case, such conduct demonstrated unfitness likely to persist indefinitely.
The costs ruling likewise applies the Court’s existing independent role. An agreement between the parties does not relieve the Court of its duty to assess the factual basis for removal. Consequently, evidence needed to discharge that duty may be reasonably included in the applicant’s costs [35]-[38].
At [7], the Court says the inquiry involves “an assessment of current fitness and likely future fitness.” In plain English, the question is not confined to whether the practitioner was fit at some earlier time or whether the conduct has stopped. The Court considers whether the person is fit now and what the evidence indicates about future fitness.
At [8], the Court says it “must determine for itself” whether the practitioner is no longer fit and proper, despite the Council’s findings and the lack of opposition. That means the parties cannot make removal automatic by agreement. The Court must be satisfied independently.
At [9]-[10], the Court connects removal proceedings with public protection, professional confidence, accountability and general deterrence. It explains why a judgment should set out the conduct even when the facts are not contested. In plain English, the process is not only about the individual practitioner; it also makes the operation of professional discipline visible to the public.
At [33], the Court describes the conduct as egregious, calculated and repeated over many years, and says it revealed an absence of honesty, trustworthiness and integrity. This is the central application of the fitness test. The court’s conclusion follows from the character and duration of the conduct and its implications for the essential qualities of a solicitor.
At [34], the Court explains that removal has the operative effect but that a formal declaration serves the public interest. In practical terms, the declaration publicly records why the Roll order was made, rather than leaving the basis to be inferred only from the reasons.
At [37]-[38], the Court says the agreed facts were not self-sufficient and that it was necessary to put the documentary records before the Court. This explains the costs result: the evidence supported the Court’s own examination of the matter, rather than merely duplicating a determination already made by the parties.
The judgment is most directly relevant to roll-removal applications involving a solicitor who has misappropriated substantial client or estate funds held in a professional trust account. The features that mattered here were not limited to the total amount. The Court highlighted calculated and repeated conduct over many years, substantial sums, and an absence of honesty, trustworthiness and integrity [33].
The facts also show the significance of concealment. O’Brien made false ledger entries and used forged documents and receipts to make it appear that beneficiaries had received their distributions [24], [27]-[28]. The judgment treats those features as part of the factual picture supporting the Court’s assessment of fitness, rather than as incidental details.
The decision may also be relevant where the conduct involves other entrusted money or a related position of trust. The judgment discusses Thomson, in which misappropriation involved a union’s funds rather than a solicitor’s trust account, and notes the proposition that repeated misappropriation from an entity that entrusted a person with control of funds can reveal a characteristic inconsistent with holding client trust money [18]. In O’Brien’s own case, the Court also recorded transfers made while he acted under an enduring power of attorney [25].
Procedurally, the decision is relevant where the practitioner does not oppose removal. It makes clear that non-opposition does not remove the Court’s obligation to determine fitness independently and to examine the factual circumstances [8], [10]. It also illustrates that an agreed statement may not be enough by itself if the Court needs additional records to assess the application [37].
The decision does not establish that every financial offence, every trust-account irregularity or every instance of dishonesty necessarily has the same result. The Court’s conclusion rests on the findings about this respondent’s particular conduct, including its duration, scale, planning and concealment [30], [33].
The judgment was decided on 22 September 2025. The material supplied contains no decisions after that date, so it does not establish how later courts have treated O’Brien. No claim about subsequent approval, limitation, distinction or reconsideration can be made from this judgment alone.
The judgment does explain the earlier authorities it used. It applied the fitness framework in In Re Davis, Ziems, Green and Cummins [7]. It relied on Clifton and McCaffery for the proposition that the Court must make its own determination, and on Thomson for the need to record facts in detail [8], [10]-[11]. It also relied on Barwick, Ghobrial and Du Pal in discussing the seriousness of misappropriating entrusted funds [15]-[18]. Those are the relationships stated or reflected in the judgment; they do not show how later courts treated O’Brien itself.
The case may be cited for the way these established principles were applied to sustained and substantial misappropriation accompanied by forged records, and for the treatment of costs where documentary evidence was required despite an agreed factual position. Whether later courts adopt or distinguish those applications would require subsequent judgments not included in the supplied material.
The decision does not set out a numerical threshold at which misappropriation requires removal. Although the amount was very substantial, the Court’s reasoning also emphasised duration, calculation, concealment and the effect on honesty, trustworthiness and integrity [30], [33]. The judgment therefore does not answer how a different combination of scale, duration, repayment, cooperation or other circumstances would affect the fitness assessment.
Nor does it prescribe a comprehensive method for assessing likely future fitness. It states that future fitness is part of the inquiry and that O’Brien was likely to remain unfit indefinitely [7], [33], but it does not discuss rehabilitation evidence or identify factors that might alter such an assessment in another case.
The judgment notes that a detailed record may matter to a later readmission application [11], but it does not determine any future application or say what evidence would be sufficient for readmission. That remains a separate question for the relevant authority on the facts then available.
Finally, the Court found that the 215-page exhibit was necessary in this application and that the agreed statement was not self-sufficient [36]-[38]. It does not establish a general rule that every removal application requires an exhibit of comparable size, or define the limits of recoverable evidence-preparation costs in other proceedings.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: The Council of the Law Society of New South Wales v O’Brien [2025] NSWCA 215
Hearing dates: On the papers
Date of orders: 22 September 2025
Decision date: 22 September 2025
Before: Ward P, Stern and Free JJA
Decision: (1) The Court declares that Mark Leo O’Brien is not a fit and proper person to remain on the Roll of Australian lawyers (Roll) maintained by the Supreme Court for the jurisdiction of New South Wales under s 22 of the Legal Profession Uniform Law (NSW).
(2) An order that the name of Mark Leo O’Brien and any associated particulars be removed from the Roll.
(3) The respondent is to pay the applicant’s costs.
Catchwords: Removal of practitioner from roll of Australian lawyers – Declaration that practitioner is not a fit and proper person to remain on the roll – Misappropriation of trust funds – Need for consideration of factual circumstances warranting removal from Roll – Entitlement of Council of the Law Society to costs of application
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
Legal Profession Uniform Law Application Act 2014 (NSW), s 11
Legal Profession Uniform Law (NSW), ss 22, 23, 77, 154
Supreme Court Act 1970 (NSW), s 48
Supreme Court Rules 1970 (NSW), Pt 65A, r 2
Cases Cited: Barwick v Council of the Law Society of New South Wales (2004) Aust Torts Reports 81-730; [2004] NSWCA 32
Bridges v Law Society of NSW [1983] 2 NSWLR 361
Council of the Law Society of New South Wales v Clifton [2021] NSWCA 340
Council of Law Society of New South Wales v Ghobrial [2024] NSWCA 307
Council of the Law Society of New South Wales v Green [2022] NSWCA 257
Council of the New South Wales Bar Association v Einfeld (2009) 258 ALR 768; [2009] NSWCA 255
Council of New South Wales Bar Association v Power (2008) 71 NSWLR 451; [2008] NSWCA 135
Du Pal v The Law Society of New South Wales (Court of Appeal, 26 April 1990, unreported)
Hilton v Legal Profession Admission Board [2017] NSWCA 232
In Re Davis (1947) 75 CLR 409; [1947] HCA 53
New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284
Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470
Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230
Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46
Category: Principal judgment
Parties: The Council of the Law Society of New South Wales (Applicant)
Mark Leo O’Brien (Respondent)
Representation: Counsel:
K C Morgan SC, M Kearney (Applicant)
Solicitors:
Law Society of New South Wales (Applicant)
File Number(s): 2025/93287
The respondent, Mark Leo O’Brien, is on the roll of lawyers (Roll) maintained by the Supreme Court under s 22 of the Legal Profession Uniform Law (NSW). The applicant, the Council of the Law Society of New South Wales (Council), seeks a declaration that the respondent is not a fit and proper person to remain on the Roll and an order that his name be removed from the Roll.
The respondent was a practising solicitor between July 1980 and 1 March 2019, when his practising certificate was suspended by the Council. He was a partner in a law practice known as Harrington Maguire & O’Brien (formerly Harrington Maguire and Company). In February 2019 the Law Society was notified of irregularities in the management of the practice’s trust account.
It transpired that the respondent had misappropriated substantial amounts of money held in the trust account of the law practice. The misappropriations related to trust funds that had been received by the law practice in relation to two estates.
In 2015 the respondent misappropriated approximately $1.2 million in trust money held for the estate of Ms Margaret Ruth Rafferty (Rafferty Estate). The respondent had acted as solicitor on behalf of Mr Robert Rafferty, who was Ms Rafferty’s nephew and the executor of the estate. Ms Rafferty’s will provided for bequests of various kinds, including $100,000 to each of the Central Sydney Area Health District and the St Vincent de Paul Society. The residue of the Rafferty Estate was left in equal shares to the Royal Australian and New Zealand College of Ophthalmologists (RANZCO) and the Paraplegic and Quadriplegic Association of NSW (Paraquad).
The respondent misappropriated $200,000 from the trust account, nominally due to be paid by way of legacy to the Central Sydney Area Health District and the St Vincent de Paul Society. He made false entries in the trust ledger purporting to show that the sums had been paid to the intended beneficiaries**.** He later drew two further trust account cheques from the funds held for the Rafferty Estate, each in the amount of $654,956.05, corresponding to the amounts that ought to have been paid to RANZCO and Paraquad. He forged receipts and again made false ledger entries.
In 2018 the respondent was appointed as the executor of the estate of Ms Aileen Delaney (Delaney Estate). One-third of the residuary estate of the Delaney Estate ought to have been distributed to St Vincent’s Hospital and two-thirds ought to have been distributed to the St Vincent de Paul Society. The respondent deposited over $1.7 million, which had been received into the trust account for the Delaney Estate following the release of a bond, into the joint account that he held with his wife. He misappropriated and paid into the joint account an additional amount of roughly $2.7 million from funds held in the trust account for the Delaney Estate. The respondent produced forged documents and made false entries in the trust account ledger in an attempt to conceal his misappropriation. Before Ms Delaney’s death the respondent also abused his position of trust under an enduring power of attorney by transferring a total of $155,000, in three transactions, from Ms Delaney’s account to the joint bank account.
Following an investigation into these matters by the Law Society, the respondent was convicted of dishonestly obtaining financial advantage by deception and knowingly dealing with proceeds of crime. On 16 March 2021 the respondent was sentenced in the District Court to an aggregate term of imprisonment of ten years, commencing on 16 March 2021 and expiring on 15 March 2031, with a non-parole period of six years.
Held, by the Court (Ward P, Stern JA and Free JA):
1. The respondent is not a fit and proper person to remain on the Roll. He engaged in egregious abuses of trust in his capacity as a solicitor. The conduct was calculated and repeated over a sustained period of many years. The sums involved were very substantial. The conduct reveals an absence of the basic qualities of honesty, trustworthiness and integrity which are required of a solicitor, and which are fundamental to the maintenance of public confidence in the profession: at [33].
In Re Davis (1947) 75 CLR 409; [1947] HCA 53, Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46, Council of the Law Society of New South Wales v Green [2022] NSWCA 257, New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284, Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230, Barwick v Council of the Law Society of New South Wales (2004) Aust Torts Reports 81-730; [2004] NSWCA 32, Council of Law Society of New South Wales v Ghobrial [2024] NSWCA 307, Du Pal v The Law Society of New South Wales (Court of Appeal, 26 April 1990, unreported), applied.
2. In addition to an order for removal from the Roll it is appropriate to make a declaration that the respondent is not a fit and proper person to remain as a member of the profession: at [34].
New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284, applied.
As to costs,
3. The Council is entitled to an order for its costs. It is not appropriate to exclude the costs associated with the preparation of Exhibit VG-1, as the respondent requests. In circumstances where, regardless of the agreed position of the parties, the Court must be independently satisfied of the appropriateness of removal from the Roll and must address the relevant factual circumstances, it was necessary for the various records contained in Exhibit VG-1 to be put before the Court: at [35]-[38].
THE COURT**:** The applicant, the Council of the Law Society of New South Wales (Council), seeks a declaration that the respondent, Mark Leo O’Brien, is not a fit and proper person to remain on the Roll of lawyers (Roll) maintained by the Supreme Court under s 22 of the Legal Profession Uniform Law (NSW) (Uniform Law) and an order removing his name from the Roll.
The Council also seeks an order that the respondent pay its costs. The respondent does not oppose the substantive relief sought. The respondent submits that any order for costs in favour of the Council should exclude all costs of and incidental to the preparation of Exhibit VG1 to the affidavit of Ms Valerie Anne Griswold affirmed 6 March 2025 (Exhibit VG1).
For the reasons which follow, the orders sought by the Council should be made.
The Council invokes the jurisdiction of the Supreme Court under s 23(1)(b) of the Uniform Law to order the removal of the name and other particulars of a person from the Roll on the recommendation of the designated local regulatory authority. The Council is the relevant designated local regulatory authority for these purposes: Table 1, s 11(1) of the Legal Profession Uniform Law Application Act 2014 (NSW).
The Council resolved on 13 November 2023 that it was of the view that the respondent is not a fit and proper person to remain on the Roll and that, given that finding, proceedings would be instituted for the purposes of s 23(1)(b) of the Uniform Law seeking the removal of the respondent’s name from the Roll. The necessary recommendation by the Council engaging the Court’s jurisdiction under s 23(1)(b) is established where there is a resolution of this kind and a summons is filed by the Council seeking an order for removal: Council of the Law Society of New South Wales v Green [2022] NSWCA 257 (Green) at [57].
The jurisdiction of the Supreme Court to remove a lawyer from the Roll under s 23(1)(b) of the Uniform Law exists in parallel to the Court’s inherent jurisdiction to take the same action in respect of its officers: Council of the Law Society of New South Wales v Clifton [2021] NSWCA 340 (Clifton) at [7]. Proceedings of this kind involving the exercise of disciplinary powers of the Supreme Court with respect to legal practitioners are assigned to the Court of Appeal pursuant to s 48(2)(k) of the Supreme Court Act 1970 (NSW) and Pt 65A, r 2 of the Supreme Court Rules 1970 (NSW).
Where an application is made for removal of the name of a practitioner from the Roll, the question to be determined is whether the practitioner is a fit and proper person to remain as a member of the profession: In Re Davis (1947) 75 CLR 409; [1947] HCA 53 at 416 (Re Davis); Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46 at 297-298; Green at [58]. That involves an assessment of current fitness and likely future fitness. Where the facts demonstrate that the practitioner is presently not fit to practise and is likely to be unfit for the indefinite future, removal from the Roll is the appropriate order: Green at [67]; New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [25]-[28] (Cummins).
Notwithstanding the findings and recommendation of the Council, and the lack of opposition from the practitioner concerned, this Court must determine for itself whether the practitioner is no longer a fit and proper person to remain on the Roll: Clifton at [9]; Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 at [12].
The purpose of the Court’s jurisdiction is protection of the public and maintenance of confidence in the legal profession. That purpose is served by a process of public accountability and by providing a measure of general deterrence to other practitioners: Green at [58].
The underlying purpose informs the way in which applications of this kind are resolved. Even where there is no factual controversy and no opposition to an order removing a practitioner from the Roll (as in the present case), the Court ought to record the relevant facts of the impugned conduct. Wrongful conduct that brings disrepute to the profession should be the subject of complete examination. A determination by the Court that contains appropriately detailed factual findings and explains the judicial response serves to advance public confidence in the control and discipline of the profession: Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230 at [4]. As Allsop P (with whom Giles and Hodgson JJA agreed) said in Council of the New South Wales Bar Association v Einfeld (2009) 258 ALR 768*;* [2009] NSWCA 255 at [16]:
… To do less may lead to a view (even if misguided) that the system operates without a full opportunity for the public examination of such wrongful conduct. This is not part of any process of punishment; rather, it is as an aspect of protecting the public and fostering the public interest by maintaining full accountability of those in the profession and involved in the administration of justice.
A judgment which records in some detail the factual circumstances warranting the removal of the practitioner from the Roll is also appropriate given the possibility that there may be a later application by the legal practitioner for readmission, requiring another authority to assess the fitness and propriety of the practitioner: see Bridges v Law Society of NSW [1983] 2 NSWLR 361 at 362C, 368E; Cummins at [24]; Council of New South Wales Bar Association v Power (2008) 71 NSWLR 451; [2008] NSWCA 135 at [10]-[11].
Where misconduct by a practitioner involves dishonesty, there are significant implications for the maintenance of public confidence in the legal profession. In Re Davis at 420 Dixon J said, in relation to a barrister, 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 the more enduring moral qualities denoted by the expression, ‘good fame and character’, which describe the test of his ethical fitness for the profession.
These considerations are not limited to applicants for admission to the Bar; they apply with equal, if not greater, force to practitioners who may seek to work as solicitors, in which capacity they would be entitled to hold trust moneys on behalf of clients. And an unfitness to do so may be shown by the commission of misappropriation offences with less objective seriousness than crimes such as break, enter and steal.
[19] Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity.
[20] There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.
... The trust and confidence which clients place in their solicitors are a basic element of the administration of justice in this country. Violations by legal practitioners of trust accounts betray that trust and harm public confidence in the legal system. This explains the sacrosanct nature of trust accounts and the acute concern that courts have when practitioners, in breach of their fiduciary obligations, misuse trust moneys for their own benefit.
[17] Any practitioner who abuses their position in the way the Respondent did and breaches the trust of his or her clients is not entitled to remain on the Roll. By their actions they have demonstrated that they are unfit to do so and lacking in the essential qualities of honesty, integrity and trust required of a lawyer admitted to practice in this State.
The Chief Justice observed at [19] that misappropriation of trust funds ordinarily attracts the consequence of removal from the Roll, as the Court had found in Green at [65]. That has long been the position. In 1990 Kirby P said in Du Pal v The Law Society of New South Wales (Court of Appeal, 26 April 1990, unreported) that the “normal consequence of the misuse of entrusted funds by a solicitor, and a finding of wilful breaches of the statutory prohibition in that regard, is removal of the name of the solicitor from the roll”.
The strict approach to conduct involving the dishonest handling of money can also be seen in Thomson. The offending conduct of Mr Thomson did not involve a solicitor’s trust account, but rather the misappropriation of funds of the Health Services Union by Mr Thomson in his capacity as an official of the union. The Court said, at [17], that “[r]epeated misappropriation from any entity that has entrusted a person with control of its funds will expose a characteristic inconsistent with the holding of trust moneys for clients”.
The events giving rise to the present application are set out in an agreed statement of facts, and in other evidence adduced by the Council. The evidence includes the notifications made to the Law Society about mishandling of trust money by the respondent, ensuing investigation reports prepared for the Law Society and sentencing remarks made upon the sentencing of the respondent and his wife in the District Court. The respondent did not object to the applicant relying on this material, including the sentencing remarks of Sutherland SC DCJ, to prove the truth of the matters referred to therein. In those circumstances, the Court is entitled to take into account the material adduced by the applicant, including the findings made by the sentencing judge: Green at [47]-[53]; Hilton v Legal Profession Admission Board [2017] NSWCA 232 at [55]-[56].
The respondent was born on 2 June 1956. He was admitted to the legal profession in New South Wales on 11 July 1980 and held a practising certificate from 1 July 1981 until 1 March 2019, when it was suspended by the Council pursuant to s 77 of the Uniform Law.
The respondent was a partner in a law practice known as Harrington Maguire & O’Brien (formerly Harrington Maguire and Company). He was involved with the practice from November 1985. It has been described by Mr John Maguire, a second principal of the practice, as an old-fashioned general practice, operating initially out of York Street in Sydney before relocating to Edgecliff. In his capacity as a principal and partner of that practice the respondent had control over the trust account of the practice.
On 21 February 2019 Mr Maguire notified the Law Society under s 154(1) of the Uniform Law of irregularities in the management of the practice’s trust account. On the same day the respondent attended the premises of the Law Society and reported that he had misappropriated trust money from the trust account. The notifications at that time concerned the misappropriation of trust funds that had been received by the law practice in relation to the estate of Ms Aileen Delaney (Delaney Estate) in 2018.
Under the terms of Ms Delaney’s will, which appointed the respondent as executor, one-third of the residuary estate of the Delaney Estate ought to have been distributed to St Vincent’s Hospital and two-thirds ought to have been distributed to the St Vincent de Paul Society. In his notification to the Law Society on 21 February 2019 the respondent admitted that he had deposited $1.7 million, which had been received into the trust account for the Delaney Estate following the release of a bond, into the joint account that he held with his wife, by way of a cheque payable to his wife. The precise amount in question was later found to be $1,773,486.23. The respondent admitted that he had misappropriated an additional amount of roughly $2.7 million from funds held in the trust account for the Delaney Estate. The precise amount was later found to be $2,740,288.12. This misappropriation had also taken the form of a cheque payable to his wife which was deposited into their joint account.
The act of removal from the Roll is the act with operative effect. Nevertheless, it is appropriate for the Court to declare in a formal way, and not merely in reasons for decision, the basis on which that order was made. Such a declaration serves the public interest, not least by reaffirming the high regard the Court has for the reputation and standing of the legal profession, represented before the Court by the Bar Association. A formal declaration will go some way to assuring the public that conduct of this character cannot be and is not tolerated in the profession. The damage that Mr Cummins has done may be somewhat redressed: see Ainsworth v Criminal Justice Commission (1991-1992) 175 CLR 564 at 581-582. Where, as here, the public interest is involved, the Court should formally record the result: see Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 at 100, 106, 107.
Costs should follow the event. While broadly accepting the inevitability of that outcome, the respondent asks the Court to qualify the order by excluding costs associated with the preparation of Exhibit VG-1. The respondent contends that, rather than incur the costs of preparing Exhibit VG-1, the Law Society ought to have contacted him and invited him to agree to a statement of agreed facts in the terms which were ultimately agreed on 8 May 2025.
Exhibit VG-1 is a collection of documents, with a total of 215 pages. The documents in question are the notifications and correspondence passing between the Law Society and Mr Maguire, the respondent and the respondent’s solicitor, the interim and final reports of Mr Lombe, the formal resolutions of the Law Society and the records of criminal conviction and sentencing remarks in the District Court.
It was necessary for the various records contained in Exhibit VG-1 to be put before the Court for the purposes of resolving this matter. As explained above, the Court must satisfy itself that an order for removal is appropriate, irrespective of the agreed position of the parties. The Court is also required to examine the factual circumstances in some detail. The agreed statement of facts that was signed by the Law Society on 8 May 2025, while useful, was not self-sufficient.
The Law Society acted reasonably and appropriately in adducing the evidence in Exhibit VG-1. There is no basis to infer that it would have been more efficient to seek to agree a comprehensive statement of agreed facts. Indeed, given the relatively straightforward exercise of compiling the documents in the form of an exhibit to an affidavit, it is quite likely to have been the more efficient course.
The orders of the Court are:
The Court declares that Mark Leo O’Brien is not a fit and proper person to remain on the Roll of Australian lawyers (Roll) maintained by the Supreme Court for the jurisdiction of New South Wales under s 22 of the Legal Profession Uniform L**aw (NSW).
An order that the name of Mark Leo O’Brien and any associated particulars be removed from the Roll.
The respondent is to pay the applicant’s costs.
**********
The Council of the Law Society of New South Wales
O'Brien [2025] NSWCA 215
(2009) 258 ALR 768
(2008) 71 NSWLR 451
(1947) 75 CLR 409
(2001) 52 NSWLR 279
(1957) 97 CLR 279
(1993) 41 FCR 89
The Court declared that Mark Leo O’Brien was not fit and proper to remain on the Roll of Australian lawyers, ordered that his name and associated particulars be removed, and ordered him to pay the Council’s costs.
The respondent produced forged documents and made false entries in the trust account ledger in an attempt to conceal his misappropriation. The proceeds of this activity were used to acquire a property at 36 Woodstock Street, Bondi Junction. In his notification to the Law Society on 19 February 2019 the respondent indicated that this was the extent of the misappropriation of trust money that he needed to report. He made no mention of having misappropriated trust funds in relation to any other estate.
It subsequently emerged that on three occasions before the death of Ms Delaney the respondent had also abused his position of trust under an enduring power of attorney by transferring money from Ms Delaney’s account to the joint bank account that the respondent shared with his wife. The first amount of $5,000 was transferred on 27 November 2017. A further $100,000 was transferred on 15 December 2017, and $50,000 was transferred on 19 December 2017.
On 28 February 2019 respondent advised the Law Society, through his solicitor, that in 2015 he had also misappropriated approximately $1.2 million in trust money held for the estate of Ms Margaret Ruth Rafferty (Rafferty Estate). Ms Rafferty’s will provided for bequests of various kinds, including $100,000 to each of the Central Sydney Area Health District and the St Vincent de Paul Society. The residue of Ms Rafferty’s estate was left in equal shares to the Royal Australian and New Zealand College of Ophthalmologists (RANZCO) and the Paraplegic and Quadriplegic Association of NSW (Paraquad). The respondent had acted as solicitor on behalf of Mr Robert Rafferty, who was Ms Rafferty’s nephew and the executor of the estate.
The respondent misappropriated $200,000 from the trust account, nominally due to be paid by way of legacy to the Central Sydney Area Health District and the St Vincent de Paul Society. The respondent drew two cheques of $100,000 and deposited the money into his personal bank account. He sought to cover up the conduct by making false entries in the trust ledger purporting to show that the sums had been paid to the intended beneficiaries**.**
The respondent subsequently opened a joint bank account, with his wife, for the specific purpose of receiving further fraudulently obtained funds. He drew two further trust account cheques from the funds held for the Rafferty Estate, each in the amount of $654,956.05, corresponding to the amounts that ought to have been paid to RANZCO and Paraquad. The cheques, which were in the name of the respondent’s wife, were deposited into the joint account. The respondent made a small donation to Paraquad so as to obtain a receipt, which he then used to prepare a forged receipt. The forged receipt was placed on the file in an attempt to support a false ledger entry and create the false impression that the funds had been distributed properly. Similar forged entries and records were created in relation to RANZCO.
The respondent had used the funds from the Rafferty Estate to discharge a mortgage on a property he owned on Old South Head Road. The respondent held some of the money in his self-managed superannuation fund (invested in a share portfolio to the value of approximately $2.1 million) and in cash (approximately $200,000). The sentencing judge found that other funds that had been misappropriated by the respondent, in addition to being used for the purchase of the Bondi Junction property, were disbursed on expenses such as the leasing of a BMW vehicle and cash gifts to his children.
The interim report of Mr Lombe, the Law Society’s investigator, concluded that a total of $6,123,686.18 had been misappropriated by the respondent (comprising $4,613,774.08 from the Delaney Estate and $1,509.912.10 from the Rafferty Estate). The misappropriated amounts corresponded to the amounts due to be paid to charities under each of the Delaney and Rafferty wills, whether by way of specific bequest or the distribution of the residuary estate. A final report of Mr Lombe issued on 31 July 2019 concluded that the total amount misappropriated by the respondent was $6,178,686.18. The additional $55,000 concerned the Delaney Estate.
On 22 November 2020 the respondent was charged by NSW Police with seven offences of dishonestly obtaining financial advantage by deception and four offences of knowingly dealing with proceeds of crime. He subsequently pleaded guilty to ten charges, with the eleventh charge to be taken into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) on the basis that the respondent admitted guilt.
On 16 March 2021 the respondent was sentenced in the District Court to an aggregate term of imprisonment of ten years, commencing on 16 March 2021 and expiring on 15 March 2031, with a non-parole period of six years. The respondent is in custody and is presently held in Emu Plains Correctional Centre.