The Law Society of New South Wales v William Daniel Clapin

1. Council, having become aware that one or more of the circumstances referred to in Section 615 of the Legal Profession Act 2004 ["the Act"] exist in relation to the law practice known as W D Clapin ["the Law Practice"] and having decided that external intervention with respect to the Law Practice is warranted and having formed an opinion under Section 616(2)(c)(i) of the said Act, determines to apply for the appointment of a Receiver for the Law Practice;" 2 Thereafter on 14 September 2007 the plaintiff applied by summons for an order pursuant to the provisions of s 630(2) of the Legal Profession Act 2004 ("the Act") appointing Jean Sayer as receiver of the defendant's law practice. On 21 September 2007 the matter came before me on an urgent basis for final hearing. Mr Stitt QC appeared for the plaintiff. Mr Lynch of counsel appeared for the defendant. Background 3 The defendant is a solicitor practising as W D Clapin from Level 8, 309 Pitt Street, Sydney. On 30 August 2007, Mr Fred House prepared a report pursuant to s 270 of the Legal Profession Act 2004 ("the Act") relating to certain aspects of the defendant's law practice. That report became Exhibit B to the affidavit of Raymond John Collins sworn 14 September 2007. That affidavit was read in support of the summons. 4 Mr House's report reveals that on 17 May 2007 the plaintiff received a notification under s 263 of the Act from Mr J Maguire of Harrington, Maguire and O'Brien on behalf of Mr G Cannon, an accountant, who was the executor of the estate of Mary Lillian Pugliese who died on 4 June 2004. The notification was in relation to the defendant's bill of costs in the estate in the amount of $63,571.28. The executor had objected to this amount and terminated the defendant's instructions. Mr Maguire was instructed in his stead. The defendant agreed to reduce his costs to $30,000. Mr House was assigned to investigate the defendant's practice on 28 May 2007. 5 The matters contained in Mr House's report formed the basis of the plaintiff's resolutions and for its claims for relief. 6 Following his investigation, Mr House came to the conclusion that the defendant had committed a number of breaches of the Act and Regulations. He set out in his report in considerable detail the results of his investigation and the reasons for his conclusions. He noted that the defendant had cooperated fully with him in his investigation. A summary of some of Mr House's conclusions is as follows: - 6.1 There was evidence that one or more defaults had occurred in that the defendant had "failed to pay or deliver trust money . . . that was received by the practice . . . where the failure arises from . . . an act or omission . . . that involves dishonesty" as defined in s 419 of the Act.

6.2 There was evidence of a deficiency in the trust funds resulting from clients having been improperly charged.

6.3 Amounts had been withdrawn from trust in satisfaction of bills which had been raised but not rendered to the client, or where no bills had been raised at all. Authority had not been obtained to appropriate the funds.

6.4 Monies had been transferred between ledger accounts without the authority of the client, and certain accounts had been used to provide temporary or permanent funding of disbursements made from trust and amounts withdrawn from trust as costs in other matters. These costs had not been disclosed to the client at the time of the withdrawal.

6.5 Amounts withdrawn from trust for costs in some matters were considerably in excess of the cost of time recorded to the matter in the defendant's time records. Periods of time had been double - and even triple-charged. Charges had been booked to the wrong matters and not corrected. In one matter, the time charged was less than the time booked, but Mr House retained "grave doubts in relation to the booked time".

6.6 The irregularities extended over a considerable period spanning the operation of the Legal Profession Acts 1987 and 2004 and the regulations thereunder. 7 Mr House set out his conclusions and recommendations. In his opinion, further investigation was needed into unauthorised withdrawals of trust monies for costs, particularly where these withdrawals were not supported by the work carried out according to the firm's time records. The provision to clients of misleading "trust statements" was considered by Mr House to be the reason, at least in part, why previous complaints had not been received. Mr House was of the view that there may have been other matters where time had been duplicated in the records, or where clients were charged amounts in excess of the time recorded as having been spent on their matter. Mr House emphasised that the defendant's clients had been overcharged even in terms of his own costs disclosure document. 8 Mr House said he noted several instances where trust statements issued to clients had been false. The statements were false in that they did not show the timing or the amount of individual withdrawals from trust. He concluded that the purpose of the statements was to conceal from the particular clients the way in which withdrawals from their trust accounts had been made without their knowledge or authority. Mr House concluded that in the case of two particular matters, the defendant used unauthorised journal entries, and failed to provide trust statements, in order to conceal, from the Trustees of the Congregation of the Holy Family of Nazareth, the taking of unauthorised sums from trust. 9 Mr Collins was not required for cross-examination. No part of his affidavit was the subject of objection. 10 The defendant provided the plaintiff with an unsworn response to Mr House's report upon which he (the defendant) sought to rely. The document is in the form of a twenty-two page signed statement written by the defendant in the first person. It is dated 19 September 2007. It has a number of annexures. The defendant tendered it in evidence. The plaintiff objected to this course. I admitted the document. One of the bases for doing so was that Mr Stitt made reference to some of the material that it contained and relied upon it in the course of his submissions. That material included so-called "admissions". The following paragraphs of the document are particularly instructive: - "The regulation of solicitors generally and specifically in relation to the treatment of trust moneys has become much more detailed and demanding over the years. I realise that [my] practice which has developed did not comply with the regulations currently in force, and generally those which have been in force since the major reforms of about 1988.

I am not aware of any matter over the period in which I have acted for these clients where I have failed to give a full accounting for all monies received and paid. I do accept that the methodology of the accounting has fallen well short of the requirements of the regulations, in recent years, as to timing and matters of detail.

I also agree that while it was convenient, it was not sensible or appropriate to treat funds available to either [client A] or [client B] in one matter as available for payment of amounts due by either of those organisations in a separate matter, and that a proper degree of separation should have been maintained and observed on the accounts. To do so requires very clear informed authority.

I have discussed these matters with Mr [X], the Chief Executive Officer of [client C], in the company of my solicitor, Mr Williams. Mr [X] has informed me that notwithstanding what has been said to him by the Trust Inspector, Mr House, both [client B] and [client C] wish me to continue to act for the organisation, but in future they also would like to see a proper degree of compliance and a greater separation of the various matters.

If my practice survives, it is my intention to ensure that all matters, both in relation to [client B] and [client A], and other matters, are dealt with in a manner which fully complies with all of the relevant regulations.

As appears below in relation to my responses to the specific matters raised by Mr House, I accept that I have failed to observe the prescribed procedure for the withdrawal from my trust account of monies for costs and disbursements.

I accept also that while I have provided trust account statements to clients (or the other appropriate person) at the conclusion of each matter, I have not always provided trust account statements as at 30 June in each year.

I accept also that in relation to trust account statements issued subsequent to the introduction of the Legal Profession Regulation 2005, the form and details of statements issued has not satisfied the strict requirements of the Regulation.

I accept also that I have at different times transferred funds for costs and disbursements in relation to interim bills which have not been sent to the client at the time and for which no specific authority had been received from the client. Such matters constitute specific examples of the failure to comply with the procedure prescribed by the Regulation.

I accept that I have at different times had recourse to funds held on behalf of a client in relation to a particular matter for the payment of amounts required to be paid (including amounts for costs and disbursements to which I believed I was entitled) in relation to other matters conducted for the same client without specific authority for that action being obtained from the client. I say, however, that in relation to all such matters it was my understanding and belief that the general authority which I held from the client was a sufficient authority to justify the belief on my part that such action was appropriate and approved by the client. Such transactions are brought to account in the final (or earlier) accounting to the client.

Although it is the case that funds were transferred from the trust account to my general account in or on account of payment of costs and disbursements in relation to interim bills which were not at that time delivered to the client, to the best of my knowledge in all cases a trust account statement and a bill of costs were delivered to the client at least upon the completion of the matter, which bills of costs and statements showed clearly to the client the amount of costs and disbursements charged and the amounts which had been transferred from funds held by me in trust in payment of costs and disbursements.

I accept that there have been breaches of Section 61 (2) and Section 61 (3) (b) of the 1987 Legal Profession Act and Section 255 (1) (b) and Section 261(1) (b) of the 2004 Legal Profession Act, particulars of which are set out below. I take it that the reference to Clause 78 is a reference to Clause 78 of the Legal Profession Regulation 2002.

It is my understanding that Clause 78 of LPR 2002 and Clause 88 of LPR 2004 are facilitative provisions, not proscriptive provisions, and are not capable of being breached. In that sense, the trust inspector Mr House has failed to understand the nature of the Regulations.

I accept that Clause 77 of the Regulation (which I take to be a reference to Legal Profession Regulation 2004) has not been complied with in all cases, at least insofar as statements were not always issued as at 30 June in each year. I do say that a trust account statement was issued at the completion of all matters.

I accept that Clause 82 of the Legal Profession Act 2004 has not been complied with in all cases in that statements were not always sent as at 30 June 2004 [sic] although they are always sent at the completion of the matter. I accept also that the statements were, in some cases, either defective or inaccurate as to form in that they fail to include some of the matters prescribed by the Regulation. I dispute that there has been a wilful breach of Section 62 or that there is any deficiency in any of the trust ledger accounts.

. . . It is admitted that there have been occasions when costs and disbursements have been withdrawn from the trust account in satisfaction of bills raised but not delivered, and on occasions where bills have not been raised at the time of the withdrawal. I do not admit that there have been cases where amounts have been withdrawn as alleged and when no bills have been raised at all, and I do not understand that allegation in the summary to be supported by anything in the body of the report." 11 Apart from those paragraphs, upon which Mr Stitt relied, the defendant's response also contained the following paragraphs: - "I do not agree that there has been any occasion when I have failed to provide to the client or other relevant person at the conclusion of the relevant matter a trust account statement and such other statements of account as disclose the total amount of costs and disbursements charged and received (but not the date of receipt).

I do not agree or accept that I have ever withdrawn or received money for costs and disbursements which exceeded the amount to which I believed I was properly entitled upon the rendering of a bill in appropriate form.

I absolutely reject the proposition that there is any deficiency in the trust account or ever has been any deficiency in the trust account or that any money has been paid to a person not entitled to receipt of it or that any money required to be deposited to the trust account has not been deposited to the trust account.

I further say that all trust money has been paid to or applied for the benefit of the person entitled thereto.

I also dispute that misleading trust statements have been supplied.

I also reject the allegation of a failure to pay or deliver trust money . . . that involves dishonesty as defined in Section 419 of the Legal Profession Act 2004 or otherwise."

The statutory regime 12 The following provisions of the Act were referred to by both parties in the course of argument: - 615 Circumstances warranting external intervention External intervention may take place in relation to a law practice in any of the following circumstances:

(a) where a legal practitioner associate involved in the practice:

(i) has died, or (ii) ceases to be an Australian legal practitioner, or (iii) has become an insolvent under administration, or (iv) is in prison,

(b) in the case of a firm-where the partnership has been wound up or dissolved,

(c) in the case of an incorporated legal practice-where the corporation concerned:

(i) ceases to be an incorporated legal practice, or (ii) is being or has been wound up, or (iii) has been deregistered or dissolved,

(d) in any case-where the Law Society Council forms a belief on reasonable grounds that the practice or an associate of the practice:

(i) is not dealing adequately with trust money or trust property or is not properly attending to the affairs of the practice, or (ii) has committed a serious irregularity, or a serious irregularity has occurred, in relation to trust money or trust property or the affairs of the practice, or (iii) has failed properly to account in a timely manner to any person for trust money or trust property received by the practice for or on behalf of that person, or (iv) has failed properly to make a payment of trust money or a transfer of trust property when required to do so by a person entitled to that money or property or entitled to give a direction for payment or transfer, or (v) is in breach of the regulations or legal profession rules with the result that the record-keeping for the practice's trust account is inadequate, or (vi) has been or is likely to be convicted of an offence relating to trust money or trust property, or (vii) is the subject of a complaint relating to trust money or trust property received by the practice, or (viii) has failed to comply with any requirement of an investigator or external examiner appointed under this Act, or (ix) has ceased to be engaged in legal practice without making provision for properly dealing with trust money or trust property received by the practice or for properly winding up the affairs of the practice, or

(e) where any other proper cause exists in relation to the practice.

(1) This section applies when the Law Society Council becomes aware that one or more of the circumstances referred to in section 615 (Circumstances warranting external intervention) exist in relation to a law practice and decides that, having regard to the interests of the clients of the practice and to other matters that it considers appropriate, external intervention is warranted.

(a) to appoint a supervisor of trust money received by the law practice, if the Council is of the opinion:

(i) that external intervention is required because of issues relating to the practice's trust accounts, and (ii) that it is not appropriate that the provision of legal services by the practice be wound up and terminated because of those issues, or

(b) to appoint a manager for the law practice, if the Council is of the opinion:

(i) that external intervention is required because of issues relating to the practice's trust records, or (ii) that the appointment is necessary to protect the interests of clients in relation to trust money or trust property, or (iii) that there is a need for an independent person to be appointed to take over professional and operational responsibility for the practice, or

(c) to apply for the appointment of a receiver for the law practice, if the Council is of the opinion: (i) that the appointment is necessary to protect the interests of clients in relation to trust money or trust property, or (ii) that it may be appropriate that the provision of legal services by the practice be wound up and terminated.

(3) The Law Society Council may, from time to time, make further determinations in relation to the law practice and for that purpose may revoke a previous determination with effect from a date or event specified by the Council. Revocation of a determination does not itself affect the appointment of a receiver already made.

(4) A further determination may be made under subsection (3) whether or not there has been any change in the circumstances in consequence of which the original determination was made and whether or not any further circumstances have come into existence in relation to the law practice after the original determination was made.

(5) An appointment of a supervisor or manager for a law practice may be made in respect of the practice generally or may be limited in any way the Law Society Council considers appropriate, including for example to matters connected with a particular legal practitioner associate or to matters connected with a particular office or a particular subject-matter.

(1) This section applies if the Law Society Council determines to apply to the Supreme Court for the appointment of a receiver for a law practice.

(2) The Supreme Court may, on the application of the Law Society Council, appoint a person as receiver for the law practice.

(3) The Supreme Court may make the appointment whether or not the law practice or a principal of the practice concerned has been notified of the application and whether or not the practice or principal is a party to the proceedings.

(4) Before commencing to hear an application for appointment of a receiver, the Supreme Court must order from the precincts of the Court any person who is not:

(b) a party, an officer or employee of a party, a legal representative of a party, or a clerk of a legal representative of a party, or

(d) a person who is about to or is in the course of giving evidence, or

(e) a person permitted by the Court to be present in the interests of justice.

(a) an Australian legal practitioner who holds an unrestricted practising certificate, or

(b) a person holding accounting qualifications with experience in law practices' trust accounts, and may (but need not) be an employee of the Law Society Council.

(a) identify the law practice and the receiver, and

(b) indicate that the external intervention is by way of appointment of a receiver, and

(c) specify any conditions imposed by the Supreme Court when the appointment is made, and

(d) specify any fees payable by way of remuneration to the receiver specifically for carrying out his or her duties in relation to the external intervention, and Note: Paragraph (d) is intended to exclude remuneration payable generally, for example as an employee of the Law Society Council.

(e) provide for the legal costs and the expenses that may be incurred by the receiver in relation to the external intervention.

(a) specify the term (if any) of the appointment, and

(b) specify any reporting requirements to be observed by the receiver.

(8) An appointment of a receiver for a law practice may be made in respect of the practice generally or may be limited in any way the Supreme Court considers appropriate, including for example to matters connected with a particular legal practitioner associate or to matters connected with a particular office or a particular subject-matter. Submissions 13 The plaintiff contended that in the circumstances of the present case I was required to have regard to two questions: - 13.1 Was there material before the Council that afforded reasonable grounds for the formation of a belief in relation to the defendant or his practice of any of the matters referred to in s 615(d)(i), (ii), (iii), (v) or (vii) of the Act;

13.2 Can I be satisfied that the Council had a proper evidentiary basis for forming such a belief. 14 I was referred to the decision of Yeldham J in The Law Society of New South Wales v Dennis (New South Wales Supreme Court, 20 December 1978, unreported). At page 13 of his judgment, his Honour referred to s 71 of the Legal Practitioners Act 1898, which dealt with the circumstances in which the Council could refuse to issue or to cancel a practising certificate. His Honour continued: - "Mr Staff further submitted that for the cancellation to be effective one or more of the various grounds contained in paragraphs (a) - (e) of s.71 must be affirmatively shown to exist. If it is not shown, he submitted, the cancellation is void. However, in my opinion, the functions of this Court, on an application for the appointment of a receiver, are limited (apart from discretionary factors) to the requirement that the court must be satisfied that the Council had reasonable grounds for the cancellation (s.65B (2))." 15 Mr Stitt contended that I was bound to apply the same test by analogy in my consideration of the two questions that he submitted I was required to answer. By way of example, therefore, according to this submission, the plaintiff was not required affirmatively to demonstrate that the defendant or his practice was in fact not dealing adequately with trust money or trust property contrary to s 615(d)(i), or that he had committed a serious irregularity, or a serious irregularity had occurred, in relation to trust money or trust property contrary to s 615(d)(ii) of the Act. According to this argument, I am only required to be satisfied that the Council had before it appropriate and adequate material upon which it could reasonably form a belief ("a belief on reasonable grounds") about such matters and that the Council had a proper evidentiary basis for forming its belief. 16 I was also referred to the decision of the Court of Appeal in Law Society of New South Wales v Foreman (1994) 34 NSWLR 408, in support of the proposition that, in the exercise of the discretion to which Yeldham J referred, one of the relevant considerations to which I should have regard included the very important function performed by the Law Society in the protection of the public against similar conduct. Indeed, s 616(2)(c)(i) of the Act, dealing with the determination of the Council to apply for the appointment of a receiver for a law practice, refers in terms to the formation of an opinion "that the appointment is necessary to protect the interests of clients in relation to trust money or trust property". 17 Significant among the matters to which I should have regard in the exercise of my discretion is the fact that, even though the report of Mr House, upon which the Council relied, had been prepared in consultation with the defendant, and contained explanatory statements by him, he had not in any accepted sense been given an opportunity to be heard or to make any representations to it. In addition, it is important to have regard to the fact that the appointment of a receiver will or may affect the personal capacity of the defendant to practise, as well as his proprietary interest in his practice as a solicitor. The terms of s 630(4) would appear clearly to be sympathetic to such concerns. Finally, it seems inevitable or at least highly likely that the making of such an order will adversely affect the reputation and standing of the defendant as a solicitor, even if in due course the appointment of a receiver were shown to have been unnecessary or unwarranted. This has the potential to have a significant impact on the defendant having regard to the fact, described in his unsworn response, that his wife and three of his children are dependent upon him and that his only source of income is from his practice as a solicitor. 18 Mr Lynch, on behalf of the defendant, raised three principal arguments in opposition to the present application. First, he argued that the terms of the resolution that was passed were such as to make it ineffective on its face. The resolution did not disclose which of the s 615(d) factors were actually considered by the Council so that one could not be satisfied that a majority of councillors who voted upon it considered, or were satisfied about, any one or more of those particular matters. However, this argument can be disposed of simply. The terms of the resolution recite that the Council had "become aware that one or more of the circumstances referred to in Section 615 . . . exist". A majority vote in favour of the resolution must by definition have been a majority vote in favour of the existence of at least one of the circumstances referred to in s 615, even if the terms of the resolution do not specify it, or do not bespeak a majority vote in favour of the existence of all the circumstances contemplated by it. 19 Mr Lynch conceded that, in the event that his first point did not succeed, and subject to his second and third points, no challenge was made either to the existence of at least some of the circumstances listed in s 615 (d), which would otherwise support the need for one of the forms of external intervention referred to in s 616(2) or, as I understand it, to the appropriateness in such circumstances of the test applied by Yeldham J in Dennis (supra). 20 Secondly, however, Mr Lynch strongly opposed the present application on the basis that unless the Court is persuaded that ". . . it [is or] may be appropriate that the provision of legal services by the [defendant's] practice be wound up and terminated . . .", the application "must be refused". This submission proceeded upon the basis that that result necessarily flowed from s 616(2)(c)(ii). I disagree. The Council need only have formed the opinion that the appointment was "necessary to protect the interests of clients in relation to trust money or trust property": s 616(2) (c)(i). The terms of the Council's resolution reflects this. Sub-cll (i) and (ii) are clearly alternatives. 21 Thirdly, however, Mr Lynch argued that I should refuse to make the orders sought as a matter of discretion. Principal among his submissions in this regard was that the response of the Council was an over-reaction and therefore excessive. He submitted that the evidence does not establish that there has been a true deficiency in the defendant's trust account and, although he did not himself use the term, that the defendant's admitted breaches were no more than "technical". This submission was based upon the proposition that the evidence established that any breaches committed by the defendant were temporary and were ultimately corrected. According to this submission, none of the defendant's clients was left out of pocket or without finally receiving a proper statement of account. Even though the circumstances may have warranted external intervention within the terms of s 615(d), when one has regard to the interests of the clients of the practice and to other appropriate matters, the plaintiff could and should have determined only to take action pursuant to s 616(2)(a) or (b), but not (c).

22 In further support of this ground Mr Lynch drew attention to the terms of s 633. He argued that, having regard to the role of a receiver referred to in s 633(1), winding up and termination of the affairs of the defendant's practice was a fait accompli. That section is relevantly as follows: - (1) The role of a receiver for a law practice is:

(a) to be the receiver of regulated property of the practice, and

(b) to wind up and terminate the affairs of the practice.

(2) For the purpose of winding up the affairs of the law practice and in the interests of the practice's clients, the Supreme Court may, by order, authorise:

(a) the receiver to carry on the legal practice engaged in by the law practice, if the receiver is an Australian legal practitioner who holds an unrestricted practising certificate, or

(b) an Australian legal practitioner who holds an unrestricted practising certificate, or a law practice whose principals are or include one or more Australian legal practitioners who hold unrestricted practising certificates, specified in the instrument to carry on the legal practice on behalf of the receiver.

(3) Subject to any directions given by the Supreme Court, the person authorised to carry on the legal practice engaged in by a law practice has all the powers of a manager under this Part and is taken to have been appointed as manager for the law practice.

(4) The Supreme Court may, by order, terminate an authorisation to carry on a legal practice granted under this section.

23 In my opinion, nothing in this section, or in Part 5.5 of the Act generally, supports this argument. The terms of s 633(1) are descriptive, not mandatory. Sections 633(4) and 645(3)(b) also contemplate circumstances other than the winding up and termination of the affairs of the practice. In any event, the plaintiff strongly disavowed the utility of the appointment of either a supervisor of trust money or a manager for the defendant's practice if there were some prospect that it may be appropriate that the provision of legal services by the practice be wound up and terminated. The plaintiff was not prepared to accept undertakings from the defendant with respect to the continued operation of his trust account by him.

24 Taking these matters into account, I consider that there was material before the Council upon the basis of which it could form a belief on reasonable grounds that the defendant had failed in one or more of the respects enumerated in s 615(d) of the Act and that it had a proper evidentiary basis for forming such a belief. I also consider that the Council's determination pursuant to s 616(2)(c)(i) was appropriate. 25 I am fortified in these views by the candid and helpful admissions made by the defendant referred to in par [10] above. Unfortunately, they lend support to the plaintiff's concern that the defendant has knowingly disregarded the regulations applying to him, apparently on the basis that such conduct was relatively innocuous and presumably permissible, or at least excusable, provided that no dishonesty was involved and no clients or third parties were disadvantaged. The plaintiff, however, is in no position to countenance or condone such conduct. The application for the appointment of a receiver is not, in my view, unwarranted. 26 Furthermore, not only do the defendant's admissions lend support to the proposition that the Council had reasonable grounds for forming its belief, but in a secondary sense, they are relevant to the exercise of my discretion, in that they ameliorate the harshness of the perception that the Council's decision may theoretically have been made without affording the defendant procedural fairness. They put for present purposes beyond controversy some of the matters listed in s 615(d) upon which the Council is required to form a belief on reasonable grounds. They enable me to have regard to the fact that in forming the view that it formed, the Council did not rely, or did not only rely, upon facts that are wholly contested by the defendant. 27 Finally, as Mr Lynch quite properly conceded, there is "a serious problem" in the defendant's practice. The significant collection of wisdom in Foreman (supra) concerning the role of the plaintiff in the supervision of solicitors and the protection of the public must be given full weight. This includes the effect that orders of this Court will have upon the understanding in the profession and amongst the public of the standard of behaviour and conduct required of solicitors. Orders 28 In these circumstances I make the following order: - ORDER that pursuant to s 630(2) of the Legal Profession Act , 2004 Jean Sayer be appointed receiver of the Law Practice known as W D Clapin, Level 8, 309 Pitt Street, Sydney. 29 I will hear submissions from the parties concerning such further or other orders as may be appropriate.

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