In The Matter of The Legal Practitioners Act 1970 and In The Matter of An Application By The Law Society of The Australian Capital Territory and Victor Tjakamarra-Forrest [2000] ACTSC 119 (14 December 2000)

Last Updated: 18 January 2001

IN THE MATTER OF THE LEGAL PRACTITIONERS ACT 1970 AND IN THE MATTER OF AN APPLICATION BY THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY AND VICTOR TJAKAMARRA-FORREST [2000]

ACTSC 119 (14 December 2000)

CATCHWORDS

LEGAL PRACTITIONERS - disciplinary proceedings - respondent solicitor accused of depositing trust moneys in general account, keeping insufficient accounting records, failing to carry out monthly and quarterly trust account reconciliations, failing to render bill of costs and statement of account to clients - professional misconduct - respondent admitted to practise aged 48, working as sole practitioner as unable to secure employment with established firms, lack of financial management and record-keeping experience, regularly performed work pro-bono - reprimand recorded, quarterly consultations with Senior Counsellor and costs on solicitor-client basis.

LEGAL PRACTITIONERS - disciplinary proceedings - purpose of.

LEGAL PRACTITIONERS - disciplinary proceedings - "good moral character" - weight of.

LEGAL PRACTITIONERS - professional conduct rules - weight of - when breach of rules constitutes professional misconduct.

Legal Practitioners Act 1970, ss 37, 58(1), 67(2), 91, 92, 94(2), 98(1), 99B, 100

Guide to Professional Conduct and Etiquette, ss 3.1, 3.2, 4.3, 4.4, 6.1, 10.1, 16.1

Professional Conduct Rules, ss 1.1, 3.5, 43.7

Victims Compensation Act 1996 (NSW) (now Victims Support and Rehabilitation Act 1996 (NSW)), s 35

Criminal Injuries Compensation Act 1983 (now Victims of Crime (Financial Assistance) Act 1983), ss 5(4), 6(1)

Health and Other Services (Compensation) Act 1995 (Cth)

Re Law Society (ACT) and Chamberlain (1993) 116 ACTR 1

Re Oakley (unreported, ACTSC, 10 September 1992, No. SC 364 of 1991)

Chamberlain v Law Society (ACT) [1993] FCA 527; (1993) 43 FCR 148; 118 ALR 54

Re Nelson [1991] ACTSC 111; (1991) 106 ACTR 1; 105 FLR 137

No. SC 1032 of 1999

Judge: Higgins, Crispin and Ryan JJ

Supreme Court of the ACT

Date: 14 December 2000

IN THE SUPREME COURT OF THE )

) No. SC 1032 of 1999

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER of the Legal Practitioners Act 1970

AND

IN THE MATTER of an application by THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

Applicant

AND

VICTOR TJAKAMARRA - FORREST

Respondent

Coram: Higgins, Crispin and Ryan JJ

Date: 14 December 2000

Place: Canberra

REASONS FOR JUDGMENT

THE COURT:

1. There is before the Court a motion on notice dated 23 December 1999 by the Law Society of the Australian Capital Territory ("the Society") seeking an order, amongst others, that the respondent show cause why he should not be dealt with by the Court for misconduct or conduct unbefitting a barrister and solicitor. The respondent, Mr Tjakamarra-Forrest, was admitted to practise as a barrister and solicitor of the Court on 21 October 1994 and was first issued by the Society with an unrestricted practising certificate on 26 June 1996. Since 1 July 1996, he has conducted a practice as a sole practitioner under the name Tjakamarra Forrest, Solicitors. The Society's allegation that the respondent has been guilty of professional misconduct invokes the following definitions of "professional misconduct" and "unsatisfactory professional conduct" which are to be found in s 37 of the Legal Practitioners Act 1970 ("the Act"), which provides:

""professional misconduct" includes -

(a) unsatisfactory professional conduct of a substantial, recurring or continuing nature;

(b) conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law that would justify a finding that its perpetrator is not of good fame and character or is not a fit and proper person to remain on the Roll of Legal Practitioners; and

(c) conduct that is professional misconduct by virtue of section 118 or subsection 191D(3), 191E(3) or 191M(2);"

""unsatisfactory professional conduct" includes conduct (whether consisting of an act or omission) occurring in connection with the practice of law that falls short of the standard of competence and diligence that a client is entitled to expect of a reasonably competent legal practitioner."

2. Particulars of the Society's allegations assert, first, a failure, in contravention of s 91 of the Act, to cause moneys received or held on behalf of clients to be paid into a general trust bank account. Section 91 of the Act provides:

"(1) Subject to subsection (2) and section 92, a solicitor shall cause all trust moneys received by the solicitor to be paid -

(a) into the general trust bank account maintained by the solicitor; or

(b) if the solicitor maintains 2 or more such accounts - into 1 of the accounts;

not later than the next banking day after the day on which the money is received by the solicitor.

(2) Where trust moneys are paid by direct deposit or electronic transfer into an account operated by the solicitor in connection with his or her practice, the solicitor shall cause that money to be paid into 1 of the bank accounts referred to in subsection (1) on the next banking day after the day on which he or she becomes aware of the payment."

3. Other allegations made by the Society against the respondent include one of failing in respect of a client, Beverley Griffin, to comply with s 94(2) of the Act and with s 10.1(2) of the Society's Guide to Professional Conduct and Etiquette ("the Guide") which was in force until 30 June 1998. The Guide was superseded by the Society's Professional Conduct Rules ("the Rules") which came into force on 1 July 1998.

4. Section 94(2) of the Act provides:

"Subject to subsection (3) and to Division 8, a solicitor shall not withdraw any money from a trust bank account except for the purposes of payment to, or disbursement according to the direction of, the person for whom the money is, by virtue of section 87, to be deemed to be held in trust."

5. The Guide by s 10.1 stipulated:

"(1) For the purposes of this sub-Section:-

(a) "Principal" means a Practitioner who is the holder of a current unrestricted practising certificate issued by the Law Society.

(b) "Sole Practitioner" includes a Principal who is the only member of a partnership who is present and conducting the practice of that partnership in the Australian Capital Territory for the time being.

(c) "Trust account" means a general trust bank account or a special trust bank account required by the Act to be opened and maintained.

(2) (a) a principal shall comply with the provisions of the Act in respect to the opening, operation and maintenance of trust accounts.

(b) for the purposes of s.90(1) of the Legal Practitioners Act the date by which a solicitor is required to open a trust account is the next banking day following the date of receipt by the solicitor of the first amount of trust moneys after commencing practice.

(3) Except as allowed in this sub-Section, every cheque drawn on a trust account shall be signed personally by a Principal.

(4) In isolated instances only and in circumstances which could not reasonably have been foreseen by the Principal or Principals, a cheque drawn on a trust account may be signed by a Practitioner who is not a Principal provided that:-

(a) it is in the interests of a client that the cheque be drawn without delay; and

(b) it is not reasonably practicable to obtain the signature of a Principal to the cheque.

The Principal and the Practitioner shall notify the Law Society in writing of any such instances within 7 days of the cheque being so drawn on the trust account furnishing full particulars of the circumstances giving rise to the signing of the cheque and the date, payee and amount for which the cheque was drawn.

(5) The Executive may permit a Sole Practitioner to delegate the authority to sign trust account cheques to:

(a) a Practitioner in his or her employ; or

(b) a Principal who has been engaged by the Sole Practitioner to conduct the practice in the Sole Practitioner's absence; or

(c) any other Principal;

for a limited period and on such terms and conditions as may be specified by the Executive."

6. In addition, it is alleged that the respondent failed to comply with s 98(1) of the Act by neglecting to maintain a proper record of dealings with moneys received or held on behalf of clients. Section 98(1) provides:

"A solicitor shall keep such accounting and other records as disclose particulars of all trust moneys received or paid by the solicitor."

7. There are also cognate allegations of failure to carry out a monthly reconciliation of the respondent's trust account as required by s 99B of the Act and failure to prepare quarterly statements in relation to the trust account as required by s 100 of the Act. Sections 99B and 100 respectively provide:

"99B(1) In respect of each month during which a solicitor maintains a trust account the solicitor shall obtain a bank statement.

(2) The solicitor shall carry out a reconciliation in respect of each monthly bank statement within 7 days of receiving the statement.

100(1) If at the end of a quarter a solicitor holds any trust moneys or controls other moneys, within 14 days of the end of the quarter or, in the case of the quarter ending on the last day of December, within 1 month of the end of that quarter, a solicitor shall prepare a statement setting out, as at the close of business on the last day of the quarter -

(a) the name of each person on behalf of whom the solicitor held trust moneys or controlled other moneys;

(b) the amount shown in the records kept by the solicitor in accordance with this Division as the amount of trust money held, or other money controlled, by the solicitor on behalf of each of those persons;

(c) the amount of trust money held by the solicitor and not paid into a general trust bank account maintained by the solicitor in accordance with section 91;

(d) the amount standing to the credit of each trust bank account kept by the solicitor in accordance with this Part; and

(e) in relation to each trust bank account kept by the solicitor in accordance with this Part -

(i) the total amount of all cheques drawn on the account which have not been presented for payment; and

(ii) the total of all amounts deposited in the account which have not been credited to the account.

    (2) In subsection (1) -

"quarter" means the period of 3 months ending on the last day of June, September, December or March in each year."

8. The Society also alleges a failure to comply with obligations imposed by the Guide and, later, the Rules, to render bills of costs to his clients at the conclusion of their matters and to provide clients at the completion of their matters with a statement of account showing moneys received and paid out on their behalf and any balance remaining. The relevant provisions of the Rules are:

"1.1 A practitioner should treat his or her client fairly and in good faith, giving due regard to the client's position of dependence upon the practitioner, his or her special training and experience and the high degree of trust which a client is entitled to place in a practitioner.

3.5 A practitioner should within a reasonable time of completion of the matter render to the client a memorandum of fees in writing sufficient to identify the general nature of the professional work or services performed.

43.7 Statement of Account

Subject to any rule of Court, where any moneys are received by a practitioner from any person other than the client or the agent of the client the practitioner should:

(a) within a reasonable time of receiving a request from the client for a statement of account; and

(b) upon completion of the matter render to the client a statement of account showing particulars of:

(i) all moneys received, when and from whom;

(ii) all moneys paid, when and to whom;

(iii) the balance remaining undisbursed;

in sufficient detail to enable the statement to be conveniently and properly understood."

9. Finally, there are allegations of charging grossly excessive fees to one client, Ms Maxwell, and a contravention in relation to the same client and Mr Dunn of s 35 of the Victims Compensation Act 1996 (NSW) (now the Victims Support and Rehabilitation Act 1996 (NSW)). Section 35 of that Act provides, so far as is relevant:

"(1) An applicant for statutory compensation is entitled to be paid his or her costs in respect of the application (whether or not proceedings are taken before the Tribunal on appeal or otherwise) in accordance with such scale of costs as may be prescribed by the rules.

(2) An applicant may, if the Tribunal or a compensation assessor so directs, be awarded costs under this section even if the application for compensation is dismissed.

(3) The Tribunal or a compensation assessor may award an applicant costs in excess of the amount to which the person would otherwise be entitled under this section, if of the opinion that the special circumstances of the case justify such an award being made. The Tribunal or compensation assessor may also decline to make an award of costs or award costs of a lesser amount.

(4) Despite any Act or law to the contrary, but subject to any order of the Tribunal or compensation assessor, a legal practitioner is not entitled to charge or recover, by way of costs in respect of an application for statutory compensation or of the proceedings of the Tribunal in respect of such an application, any amount in excess of the amount payable in accordance with the scale of costs referred to in subsection (1)."

10. In the same context, the Society refers to ss 3.1, 3.2, 6.1(a) and 16.1 of the Guide which were in these terms:

"3.1 A Practitioner should treat his or her client fairly and in good faith, giving due regard to the client's position of dependence upon the Practitioner, his or her special training and experience and the high degree of trust which a client is entitled to place in a Practitioner.

3.2 A Practitioner should always be completely frank and open with a client and should at all times give the client a candid opinion on any professional matter in which the Practitioner represents that client.

6.1 During the course of a retainer, a Practitioner should give full attention to furthering the client's interest, unaffected by:

(a) any interest of the Practitioner;

(b) any interest of any other person; or

(c) the Practitioner's perception of the public interest.

16.1 A Practitioner should not engage in conduct (whether in pursuit of his or her profession or otherwise) which is dishonest or which may otherwise bring the legal profession into disrepute or which is prejudicial to the administration of justice."

11. The facts to which the Society points as constituting one or more of the breaches on which it relies are related, variously, to eight clients or former clients of the respondent. It is convenient to summarise separately the facts alleged, and the explanations proffered by the respondent, in relation to his transactions with each of those clients.

Stanley Dunn

12. The respondent acted for this client in pursuing a victim's compensation claim arising from an incident on 16 July 1997. An award of $2,605 was made in Mr Dunn's favour, representing $2,400 statutory compensation and $205 expenses. As well, he received an award of costs of $750. A cheque for $2,605 was paid into the respondent's general or office account on 14 April 1998. A cheque had earlier been drawn for cash on the same account on 6 April 1998 in an amount of $700 and a notation on the cheque butt suggests that $400 of the proceeds were paid to Mr Dunn. A later cheque for $1,845 was drawn on the same account on 14 April 1998 in favour of Mr Dunn as "settlement moneys". The respondent has explained the difference of $360 between the $2,605 received in settlement of Mr Dunn's claim and the $2,245 apparently paid out to him, by deposing:

"From time to time Mr Dunn would seek a loan against his CIC claim. Often these loans would be for a small amount; however, at times they could be up to an amount of $150.00. These amounts were to be repaid to me once settlement took place. I was not prudent to record these loans at the time. I believe that the unaccounted for discrepancies reflect the repayment of these loans."

13. As well, the respondent has explained his acknowledged failure to pay Mr Dunn's settlement moneys into his trust account, by deposing:

"When the settlement cheque arrived in my office I rang Mr Dunn to advise him that the cheque had arrived and I was about to deposit it in the Tjakamarra Forrest Solicitors Trust account and he would have to wait some five working days before I could settle with him. He asked if he could get money that day. As all of the disbursements had been paid from Tjakamarra Forrest Solicitors general account and there were no outstanding accounts to be paid I deposited the cheque into my general account in order to pay Mr Dunn earlier."

14. By letter dated 10 May 2000, the solicitors acting for the respondent on the present motion wrote to Mr Dunn a letter containing the following passage:

"It has come to Mr Tjakamarra Forrest's attention that he failed to present you with an explanation of his fees in relation to your matter. I am taking this opportunity to forward you the explanation as to your settlement and how the various fees were disbursed.

Please contact this firm once you have received this correspondence so that we can discuss any queries you might have in respect of Mr Tjakamarra Forrest's account.

I would further like to discuss with you the question of Mr Tjakamarra Forrest loaning you money from time to time pending your settlement, with the loans being repaid out of the settlement. It is quite important that I am able to confirm this matter for Mr Tjakamarra Forrest's sake."

15. The attached letter of explanation advised Mr Dunn that $360 had been retained by the firm of Tjakamarra Forrest in respect of "moneys loaned to you from time to time." Mr Dunn did not reply to the communication from the respondent's solicitors.

Jocelyn Maxwell

16. Ms Maxwell was Mr Dunn's de facto wife. She had a victim's compensation claim arising out of the same incident in which Mr Dunn had been involved. Her claim was settled for $3,840 damages plus $165 expenses together with $750 costs. A cheque for $4,005 representing the claimant's expenses was paid into the respondent's general or office account on 14 April 1998. On the same day, a payment of $2,005 was paid from that account to Ms Maxwell and a further $800 was paid to a trust ledger account in her name. On 29 May 1998, $790 was paid to Ms Maxwell out of the trust account and the balance of $10 standing to her credit in the trust account was transferred to the general or office account. The investigating accountant accordingly reported that Ms Maxwell received the total sum of $2,795 in respect of her claim and the respondent retained $1,210 from the award, plus the costs awarded of $750. The respondent has explained the transaction with Ms Maxwell by saying that, as a result of events which occurred after those which gave rise to her victim's compensation claim, she was charged with driving under the influence of alcohol and assaulting police, and, after she had been refused legal aid, the respondent agreed to defend her against those charges in the Queanbeyan Magistrates Court. That defence, the respondent says, was undertaken on the basis that his professional fees would be paid out of the proceeds from the criminal injuries compensation claim. His fees are said to have amounted to $1,210. The respondent's explanation for paying the cheque received in settlement of Ms Maxwell's criminal injuries compensation claim into his general or office account is as follows:

"When the settlement cheque arrived in my office I rang Ms Maxwell to advise her that the cheque had arrived and I was about to deposit it in the Tjakamarra Forrest Solicitors Trust account and she would have to wait some five working days before I could settle with her. She asked if she could get money that day. As all of the disbursement [sic] had been paid from Tjakamarra Forrest Solicitors general account and there were no outstanding accounts to be paid I deposited the cheque into my general account in order to pay Ms Maxwell earlier."

17. A letter in identical terms to that quoted in para 14 above was sent to Ms Maxwell. The attached letter of explanation contained these paragraphs:

"The costs awarded in the amount of $750.00, has been paid to Tjakamarra Forrest Solicitors direct. However, in relation to moneys loaned to you from time to time and our fees for representing you in the Queanbeyan Magistrates Court on the charge of driving with a high PCA, totalled $1210.00. The amount of $1210.00 has been retained by this Firm to cover those costs.

You have received a cheque for the amount of $2795.00 being full and complete compensation in this matter."

18. Neither the respondent nor his solicitors have received any response from Ms Maxwell.

Alexander Rutten

19. Mr Rutten also instructed the respondent in respect of a claim for criminal injuries compensation for which he obtained an award of $5,000 damages and $901 expenses. Pursuant to an authority signed by Mr Rutten his award was paid in full to Tjakamarra Forrest, Barristers and Solicitors, and a cheque for $5,901 was deposited in the respondent's general account of 11 November 1998. Payments, apparently to Mr Rutten, had earlier been made out of that account in an amount of $200 on 20 October 1998 and an amount of $2,000 on 10 November 1998. On the same day, 10 November 1998, Mr Rutten signed an acknowledgment in these terms:

"I, Alex Rutten, of 23A Karang Apartments received from Tjakamarra Forrest Solicitors the sum of $3000 in [sic] form of $1000.00 cash a $2000.00 cheque as full & final settlement of the Criminal Injuries Compensation Claim in the ACT. I have no further claim on Tjakamarra Forrest Solicitors who is now responsible for payment of all Doctors reports Police reports & any other fees owing."

20. The report by the Society's investigating accountant disclosed that the respondent had paid disbursements totalling $181 in respect of Mr Rutten's claim and an outstanding amount of $720 remained due in respect of those disbursements to Dr Bruce Stevens. No bill of costs was ever prepared for Mr Rutten and the respondent's file does not provide any explanation for the difference between the $3,000 which Mr Rutten acknowledged he had received and the $5,901 received by the respondent on Mr Rutten's behalf. The respondent has suggested that the discrepancy is to be explained by disbursements of $1,001 paid on Mr Rutten's behalf, including the sum of $720 paid to Dr Stevens for a "psychological assessment", $100 for "damages to spectacles" and $150 to Dr Gray-Grzeskiewic for a "medical examination". A further $320 is attributed by the respondent to "loans to Alexander Rutten prior settlement" and $1,581 is claimed in respect of the respondent's professional fees. The respondent's affidavit contains these paragraphs in relation to Mr Rutten:

"8.7 From time to time money was lent to Mr Rutten when he asked if he could be borrowed against his CIC claim. The amounts ranged from $10.00 upwards. On one occasion Mr Rutten rang and said he was in urgent need of some $250.00 to assist his son moved [sic] out from the flats where he was living. This money was a loan to Mr Rutten on the understanding that it would the [sic] deducted from his CIC settlement moneys. Money was also outlayed for Mr Rutten's glasses. Unfortunately, I was not prudent enough to keep a record of these loans. A letter detailing Mr Rutten's fee arrangement is annexed at "H".

8.8 When the settlement cheque and covering letter (see annexure marked "I") arrived in my office I rang Mr Rutten to advise him that the cheque had arrived and I was about to deposit it in the Tjakamarra Forrest Trust account and he would have to wait some five working days before I could settle with him. He asked if he could get money that day. As all of the disbursement [sic] had been paid from Tjakamarra Forrest Solicitors general account and there were no outstanding accounts to be paid I deposited the cheque into my general account in order to pay Mr Rutten earlier."

21. The respondent's present solicitors wrote to Mr Rutten in May this year enclosing a letter of explanation from the respondent to account for the treatment of Mr Rutten's claim for criminal injuries compensation. That letter detailed disbursements totalling $1,351 including $320 for "cash loans to assist son, Uger, to shift". The letter noted that "Fees for Tjakamarra Forrest Solicitors" were $1,581 but concluded:

"However, in relation to moneys loaned to you from time to time, and our fees for preparing your CIC claim, totalled $2902.00. The amount of $2902.00 has been retained by this Firm to cover those costs.

You have received a cheque for the amount of $3000.00 being full and complete compensation in this matter. You accepted and agreed to the explanation given to you on the 10^th November 1998, see attached signed agreement between yourself and myself.

Should you require further information regarding this matter, please contact this office on the phone numbers provided."

22. There has been no response to the invitations to seek further information which have been extended to Mr Rutten.

Janette Duffin

23. This client had instructed the respondent in relation to a claim for damages for personal injuries sustained in a motor vehicle collision. On 17 August 1998, Ms Duffin signed an authority to "Messrs Tjakamarra Forrest, Barristers and Solicitors" in these terms:

"I hereby authorise and instruct you to settle my case in the sum of $12,000.00 inclusive of costs.

I note you have explained to me the ramifications in so far as Medicare, Social Security and costs are concerned.

I instruct you to transfer your costs from Trust to General and that the merits of my case have been explained to me by Counsel, whose fees I agree to pay.

I note that I am to receive approximately $7000.00 in the hand and that the settlement figure is based on a very strong likelihood of a finding by the Court of contributory negligence.

It has also been explained to me that there is a possibility that I may lose the case and have to pay costs, and I accept the advice of my solicitors and Counsel to settle the matter once and for all.

I note this brings to an end any claim that I may have against the driver of the vehicle and his/her insurer.

I further instruct you that I take full responsibility for payment of all out-of-pocket expenses and release your firm accordingly. I acknowledge that the provisions of the Health and Other Services Compensation Act have been explained to me."

24. Ms Duffin's action in the Canberra Magistrates Court was in fact settled on 17 August 1998 for $12,500 inclusive of costs. After repayment to the Health Insurance Commission, a cheque for $11,250 was paid into the respondent's general account on 14 September 1998. On the same day, cheques were drawn on that account, one in favour of Ms Duffin for $6,375 and another for $850 in favour of Mr Baran of Counsel, who had appeared for Ms Duffin. The respondent had rendered a bill of costs dated 20 May 1997 to Ms Duffin for work done between 13 February 1997 and 21 May 1997. However, no bill of costs was rendered to the client on the completion of the matter. Nor was Ms Duffin provided with a statement of moneys received and paid out on her behalf. The investigation by the Society's accountant disclosed nothing in the respondent's file to explain the difference between the total of $7,225 paid out to Ms Duffin or on her behalf and the sum of $11,250 received in settlement of her action. In his affidavit of 17 April 2000 the respondent has claimed to have incurred disbursements in respect of Ms Duffin's action, in addition to Mr Baran's fee of $850 mentioned above, of $855 including $450 in respect of airfares and taxi charges incurred by Mr Baran. As well, the respondent claimed to have deducted from settlement moneys received on behalf of Ms Duffin his professional fees of $2,230. His explanation for paying the settlement moneys into his general account was as follows:

"When the settlement cheque arrived in my office I rang Ms Duffin to advise her that the cheque had arrived and I was about to deposit it in the Tjakamarra Forrest Solicitors Trust account and she would have to wait some five working days before I could settle with her. She asked if she could get money that day. As all of the disbursement [sic] had been paid from Tjakamarra Forrest Solicitor's general account and there were no outstanding accounts to be paid I deposited the cheque into my general account in order to pay Ms Duffin earlier."

25. Ms Duffin died during 1999.

Marchelle Stephenson

26. The respondent also acted for this client in an action for damages for personal injuries arising out of motor vehicle collision. The collision occurred on 2 January 1997. She signed a letter of authorisation to the respondent dated 21 September 1998 which was in these terms:

"I hereby authorise and instruct you to settle my case in the sum of $10,000.00, inclusive of costs.

I note you have explained to me the ramifications in so far as Medicare, Social Security and costs are concerned.

I instruct you to transfer your costs from Trust to General Account and that the merits of my case have been explained to me by Counsel, whose fees I agree to pay.

I note that I am to receive approximately $6500.00 in the hand and that the settlement figure is based on a very strong likelihood of a finding by the Court of contributory negligence.

It has also been explained to me that there is a possibility that I may lose the case and have to pay costs, and I accept the advice of my solicitors and Counsel to settle the matter once and for all.

I note this brings to an end any claim that I may have against the driver of the vehicle and his/her insurer.

I further instruct you that I take full responsibility for payment of all out-of-pocket expenses and release your firm accordingly. I acknowledge that the provisions of the Health and Other Services Compensation Act have been explained to me."

27. Ms Stephenson's action had, in fact, been settled about 10 days before the date of the letter of authority. The settlement was for $7,500 plus $2,400 costs. After deduction of expenses payable to the Health Insurance Commission, the insurer sent a cheque for $9,250 to the respondent who paid it into his general account. On 31 September 1998, a cheque for $5,500 was drawn on that account in favour of Ms Stephenson. No bill of costs was ever prepared in relation to work undertaken by the respondent for Ms Stephenson. Nor was any account or other statement prepared to explain the difference of $3,750 between the $9,250 received on her behalf and the amount of $5,500 paid out to her. However, it appears from his affidavit that the respondent assessed his professional fees at $2,500 and not the $2,400 provided for in the terms of settlement. A further $2,000 was claimed as costs in respect of an unrelated family law matter as to which the respondent has deposed:

"10.5 On or about the 12^th October, 1998 I received a phone call from Ms Stephenson who asked me if I could assist her with a Family Court matter in relation to care and residence and access to her child by the natural father. I agreed to do this work. Ms Stephenson and I agreed that the costs incurred in the Family Law matter be paid out of her settlement moneys.

10.6 The fees for the family law proceedings were repaid to me once settlement took place. I was not prudent to record or provide a proper bill of costs to Mr Stephenson at the time."

28. Like Mr Dunn and Ms Maxwell, Ms Stephenson was sent, on 10 May 2000, under cover of a letter from the respondent's present solicitors, a letter of explanation indicating how the amount of $5,500 previously paid to her had been calculated. The letter of explanation contained this sentence:

"However, we retained a further $1,350.00 from your settlement moneys for fees charged by this firm in relation to representing you in the Family Court regarding the care and residence of your child."

29. Ms Stephenson did not respond to an invitation to direct any queries or requests for further information to the respondent or the writer of the covering letter.

Scott Jones

30. The respondent acted for this client in respect of a claim under the Criminal Injuries Compensation Act 1983, (now Victims of Crime (Financial Assistance) Act 1983). An order was made in the Canberra Magistrates Court on 4 January 1999 for compensation made up as follows:

Expenses - sub-section 6(1)(a) $ 1,263.75

Pain and suffering - sub-section 6(1)(c) $ 8,000.00

Other expenses - sub-section 5(4) $ 755.00

Total $10,018.75

31. A deposit of $10,443.75 was made to the credit of the respondent's general account on 21 January 1999 and has been assumed by the Society's investigating accountant to have included the amount of $10,018.75 payable under the order to which we have just referred. On 29 January 1999, a cheque was drawn on the general account for $7,000 in favour of Mr Jones and, on 3 February 1999, a further cheque was drawn on the same account for $263.73 in respect of "Ambulance - Scott Jones". The respondent's file contained no explanation of the discrepancy between $10,018.75 apparently received on behalf of Mr Jones and the total amount of $7,263.73 paid out to him and to the Ambulance Service on his behalf. In particular, there is no evidence that any bill of costs was ever prepared for Mr Jones. Despite the absence of written records, Mr Tjakamarra Forrest claims to have "calculated" at $3,018.73 the moneys paid out of the general account in respect of Mr Jones' claim but otherwise than directly to that client. That amount included the ambulance charge of $263.73, an amount of $700.00 paid to Dr Bruce Stevens for a "psychological report" and an amount of $2,000.00 paid to Tjakamarra Forrest, Solicitors, for professional fees. It is significant, having regard to the lapse of more than a week between the payment into the respondent's general account of the proceeds of the order and the payment out to Mr Scott, that there is no explanation for the failure to process the transactions in relation to this client through the respondent's trust account.

32. A letter of explanation dated 28 April 2000 from the respondent was sent to Mr Jones under cover of a letter dated 10 May 2000. The letter of explanation detailed disbursements amounting to $1,018.73 and noted "Fees for Tjakamarra Forrest Solicitors" at $2,000.00. The letter concluded as follows:

"The amount of $3018.75 has been retained by this Firm to cover the costs outlined above.

You have received a cheque for the amount of $7000.00 being full and complete compensation in this matter.

Should you require further information regarding this matter, please contact this office on the phone numbers provided."

33. Mr Jones has not since made any contact with the respondent or the solicitors acting for him on the present motion.

Brenda Hill

34 On or about 30 March 1998, the respondent took over from another practitioner the conduct of a personal injuries action on behalf of this client. The action in this Court was settled on 18 September 1998 for $375,000 with no order as to costs. The terms of settlement apparently provided for repayment of $128,640.82 received as workers compensation payments and a further deduction of $37,500.00 in respect of an amount to be assessed under the Health and Other Services (Compensation) Act 1995 (Cth). There was some irregularity in the administration of the respondent's trust account because a cheque for $238,859.18 from the defendant's insurer, the NRMA, was dishonoured on 4 November 1998. The NRMA's cheque was re-presented on 12 November 1998 and apparently honoured. In the meantime, a cheque had been drawn on the trust account for $8,250 in favour of Mr Baran of Counsel and $14,500 had been transferred to the respondent's general account, presumably on account of his professional fees. As a result, there was a temporary deficiency, noted by the Society's investigating accountant, in the trust funds of the respondent as at 4 November 1998 of $22,750. Subsequently, Ms Hill's account in the respondent's trust account was debited with a further payment of $200,000 made to her, a payment of $800 made to Ms Jan McLay for acupuncture treatment and a payment to J Pappas, the plaintiff's former solicitor, of $8,073.05. Taking account of these payments, the Society's investigating accountant ascertained that a balance of $7,236.13 remained standing to Ms Hill's credit in the respondent's trust account after the proceeds from the NRMA's cheque had been received. The respondent held a handwritten authority dated 11 September 1998 from Ms Hill in the following terms:

"I hereby authorise & instruct you to settle my case for the sum of $375,000.00 inclusive of workers compensation payments made by third-party insurers & costs.

I understand that I have had the benefits of insurance payment in the sum of $128,640.82 which are to be deducted from the settlement.

I note that counsel explained the Social Securities [indecipherable] Health & Compensation Act.

I understand there are no payback to either [indecipherable] or Social Securities.

I instruct you to transfer your costs inclusive of Counsel's fees & disbursements from your trust account to your general account.

I have accepted the settlement on advice from Counsel who has assessed my claim at approx. $400,000.00 and that I have compromised the claim rather than wait 2 yrs to proceed & face higher legal costs & Workers Compensation payback.

I understand this brings to an end all rights I have against that party to workers compensation insurer in respect to the accident. I also note that I am liable for any treatment expenses in the future.

In coming to this settlement the various risks & legal issues have been fully explained to me & I fully accept the advice given to me & wish to proceed to settlement forthwith."

34. The gravamen of the Society's complaint in respect of the respondent's conduct of Ms Hill's matter is that no bill of costs was ever prepared in relation to it and the respondent's file contained no written explanation for the balance of $57,236.13 apparently remaining in trust for Ms Hill and no indication of the reasons for the transfer of $14,500 to the general account, presumably by way of costs.

Beverley Griffin

35. The respondent acted for this client in relation to a claim for criminal injuries compensation on which an order was made in the Canberra Magistrates' Court on 11 September 1997 for expenses under s 6(1)(a) of the Criminal Injuries Compensation Act of $1,168, for pain and suffering under s 6(1)(c) of $14,000 and other expenses under s 5(4) of $764 making a total of $14,932.

36. The respondent's trust account ledger indicated that $10,000 had been paid out of the trust account to Ms Griffin on 31 December 1997. Thereafter, a further trust account payment of $600 was made to Dr Bruce Stevens on 2 January 1998, a transfer of $2,800 was made to the Tjakamarra Forrest general account on 7 January 1998 and a further amount of $808 was paid to Ms Griffin on 22 January 1998. Finally, on 4 March 1998, a transfer of $724 was made to the Tjakamarra Forrest general account. Mr Kidney, the Society's Professional Standards Director, who investigated these transactions noted that disbursements paid by the respondent, including the $600 paid to Dr Stevens, amounted to $824. Mr Kidney also noted a bill of costs which claimed professional fees (exclusive of disbursements of $824) of $2,826. That claim was rounded down to $2,800 in a statement of account prepared in relation to Ms Griffin. The same statement of account debited Ms Griffin with a "pre-payment of $10,500" instead of the payment actually made to her on 31 December 1997 of $10,000. Mr Kidney's report concluded with these paragraphs:

"e) The problem is that the amount transferred on 4 March 1998 of $724 which was the balance of the account as at 4 March 1998, of that sum, $500 apparently belongs to the client. In effect, the amount transferred to General Account for costs and disbursements was $3,524 which apparently included the $600 payable to Dr Stevens. This amount was paid on 2 January 1998 direct from the trust account. The disbursements identified, excluding the $600 payable to Dr Stevens, which had been paid by Mr Forrest-Tjakamarra [sic], as shown in the account - Attachment I - and could be recovered from the award of damages, was $224. Accordingly, the amount which could be recovered by Mr Forrest-Tjakamarra [sic] on the basis of his costs being $2,800 was $3,024 not $3,524, a difference of $500.

f) The order, dated 11 December 1997 - Attachment G - shows an amount of $764 included in the order for disbursements incurred. This amount has been calculated as follows: the disbursements paid set out in paragraph 16b), $164, plus Dr Stevens' account, $600 - total $764. This amount apparently omitted the $60 paid to Dr Wald.

g) It would appear that the sum of $724 has been transferred to the office account without taking into account disbursements already recovered or paid from trust.

h) Therefore, from the material it appears that Mr Forrest-Tjakamarra [sic] has retained, since 4 March 1998, $500 which properly belongs to the client."

37. The respondent has explained the discrepancy identified by Mr Kidney by deposing:

"A loan of $500.00 had been made by me to Mrs Griffin again with the knowledge that the $500.00 would be repaid by Mrs Griffin when the settlement money had been received."

38. The same claim was made in a letter of explanation from the respondent which was delivered to Ms Griffin on 9 May 2000. That letter detailed disbursements paid on her behalf of $824.00 and claimed "Fees for Tjakamarra Forrest Solicitors" of $2,826.00. The letter then concluded:

"The amount of $3650.00 has been retained by this Firm to cover the costs outlined above. See the attached bill sent to you previously. However, we have retained a further $500.00 for the repayment of moneys loaned to you prior to your matter being settled.

You have received a cheque for the amount of $10782.00 being full and complete compensation in this matter.

Should you require further information regarding this matter, please contact this office on the phone numbers provided."

39. There is nothing to suggest that Ms Griffin disputes any of the matters asserted by the respondent in his letter of explanation.

Agreed Facts

40. After the hearing of the Society's motion had commenced, Counsel presented to the Court the following agreed statement of facts:

"Agreed Facts

1. On 25 June 1999 the respondent undertook to comply with certain conditions as outlined in annexure "R" of his Affidavit of 17 April 2000. These undertakings have been complied with and no issue is raised as to the respondent's manner of practice since entering into these undertakings.

2. Marie McNeill, a registered company auditor, has audited the respondent's trust accounts from April 1999 until June 2000. There have been no inadequacies in respect of the manner in which these trust accounts have been operated during this time, nor as to the manner of the operation of the general account.

3. In relation to the files of Dunn, Rutten, Stephenson, Hill, Duffin and Jones The Law Society does not assert gross overcharging on the part of the respondent.

4. The respondent admits that in respect of the files of Maxwell, Dunn, Rutten, Stephenson, Hill, Duffin and Jones he has failed to comply with sections 91, 98, 99B and 100 of The Legal Practitioners Act 1970.

5. The respondent has been unable to, and is unable to, produce documentation from the time of making of loans to each of his clients which show these loans being made to, or confirmed by, those clients.

6. The respondent did not send accounts in the files of Dunn, Maxwell, Rutten, Duffin, Stephenson and Jones prior to the accounts sent on 28 April 2000 and accordingly was in breach of the Professional Guide (pre June 1998) and the Law Society of the Australian Capital Territory's Professional Conduct Rules (post July 1998)."

41. The undertaking by the respondent referred to in the statement of agreed facts was in these terms:

"1) That I will pay all moneys received by me in the course of my practice from or on behalf of any client into a trust bank account maintained by me not later than the next banking day after the day on which the money is received by me and will pay such money out only in accordance with the instructions of the client.

2) That I will not pay any money out of any such trust account to my general account or any other account owned and controlled by myself on account of professional costs for work performed until one month after delivery to the client of a bill of costs drawn in sufficient detail to enable the client to determine whether to exercise his or her rights under the Act to require the bill to be itemised or taxed. This undertaking will not apply where the client gives me written consent to such transfer after receiving such account but prior to the expiration of 30 days from its delivery.

3) That I will not pay any money out of any such trust account into my general account or to any other account owned or controlled by myself on account of disbursements unless those disbursements have previously been paid by me.

4) That I will procure and deliver to the Law Society an Audit Report by a Registered Company Auditor of my trust account or accounts, trading or general account or accounts or any other account or accounts owned or controlled by me on or before the last day of each calendar month commencing on 31 July 1999 or such less frequent period as may be notified to me by the Law Society in writing from time to time. The Audit Report is to verify compliance with the undertakings specified in 1-3 above.

5) That I will otherwise abide by all of the professional obligations imposed upon me by the Act and the ACT Law Society Professional Conduct Rules including but without limiting the generality thereof obligations in respect of trust accounts and reporting and accounting to clients."

Conclusions

42. In those circumstances, the Society alleged that the respondent had breached both the terms of the Act and his duty as a solicitor.

Breach alleged by the Law Society of Section 91 of the Act

43. The Society alleged six breaches of s 91 of the Act relating to the clients Dunn, Maxwell, Rutten, Duffin, Stephenson and Jones.

44. The respondent agreed that he had in these instances deposited moneys received on behalf of these clients, and so trust moneys, into his general account rather than his trust account.

45. He was aware that he was obliged, both under the Act and the Guide (now the Rules) to place those moneys in his trust account. He stated that his reason in each case was that he was aware that each client was in urgent need of the nett proceeds due to him or her and he could make funds available immediately by these means.

46. He deposed that in relation to Mr. Dunn and Ms Maxwell, he had been asked by those clients if he could make the funds available the day they were received. So also did Mr. Rutten and Ms Duffin.

47. In relation to Mrs Stephenson, the respondent conceded there had been no direct request for immediate payment but he knew she was in dire financial straits.

48. Mr. Jones stood in a different category. The respondent conceded that the payment of this cheque into his general account was a book-keeping error ("sloppy book-keeping").

49. The other five breaches, however, were deliberate in the sense that the respondent made a conscious decision to disregard s 91.

50. Inadvertent breaches, whilst not to be encouraged, do not call for a disciplinary response if the solicitor conducts his or her trust account properly so as to discover such a breach and then promptly rectifies it. It is proper for such a breach and the remedial measures taken to be disclosed promptly to the Society.

51. The importance of s 91 in the proper conduct of trust accounts cannot be over-emphasised. It is fundamental to the integrity of the trust account system addressed by the Act. To enable an examination of the propriety of a solicitor's dealings with trust moneys the first necessity is for those moneys to be received into a trust account known to the Law Society and available to be audited.

52. In this case, we accept that, perhaps unusually, this respondent, in the five cases mentioned, breached s 91 of the Act in the client's interests not his own. That, as Mr. Nash suggests, is an explanation not inconsistent with the respondent's general good character, honesty and concern for his clients' welfare, although it affords no excuse for the conduct in question.

53. It does exhibit a lack of understanding of the reason for the rule prescribed by s 91. That represents unsatisfactory professional conduct.

Section 94(2) of the Act

54. It was alleged by the society that, in the matter of Griffin, the respondent had withdrawn funds standing to the credit of that client without the client's authority.

55. The sum involved was $500. That, the respondent explained, represented a loan he had made to the client before settlement of the latter's claim to tide the client over. The veracity of that statement was not challenged by the Society.

56. It would not, of course, be lawful for a solicitor, even if entitled to payment by a client, to deduct moneys from the trust account to make that payment without the client's authority.

57. Proper accounting practice, as well as common prudence, would suggest that such authority should be both express and evidenced in writing acknowledged by the client.

58. In this case, the respondent asserted that the client, when advanced the $500, had expressly authorised the repayment of the loan out of the trust moneys when received. However, that authority was not evidenced in writing.

59. The respondent's assertion that he had been so authorised was not challenged by counsel for the Society. Having regard to the conclusion, to which the Court unanimously came, that the respondent was a person of transparent honesty, that assertion is accepted.

60. It follows that no breach of s 94(2) has been made out.

61. It is, nevertheless, unsatisfactory that the respondent failed to obtain written confirmation of the loan of $500 and of the authority to repay it out of the trust moneys received on behalf of the client. In that respect, there was unsatisfactory professional conduct.

Section 98 of the Act

62. In the matters of Griffin, Dunn, Rutten and Maxwell, the respondent had retained moneys, which represented repayment of loans he had made to those clients, usually in small sums.

63. He had, however, failed not only to record these loans, but also to obtain written acknowledgment of them and of the authority to apply trust moneys to repay them.

64. There was an acknowledgment from Mr. Rutten that the $3,000 he received was the total sum due to him. That acknowledgment tended to confirm the respondent's assertion that the loans had been made to Mr. Rutten and that he had authorised their repayment.

65. Each of the clients, Griffin, Dunn, Rutten and Maxwell had forwarded to them, though not until 10 May 2000, letters purporting to account to them for moneys received and expended on their behalf. Those letters referred to the sums loaned. No client has protested that there were no such loans nor that the sums appropriated to repay them exceeded the sum of those loans.

66. The Court accepts that the respondent was not likely to have knowingly retained more than was due to him. The lack of records, however, makes it impossible accurately to verify the correct amount loaned.

67. The lack of proper records extends to the keeping of file notes concerning attendances and other work done.

68. That lack of records also makes it difficult to assess whether sums retained for professional fees were fair and reasonable.

69. The respondent conceded that his record-keeping had been deficient and agreed that such deficient record-keeping was a breach of s 94(2) of the Act.

70. In the circumstances of this case, the failure to keep records led to suspicions of unauthorised appropriations of money and gross overcharging which would not have arisen had records been adequately kept. That failure constitutes unsatisfactory professional conduct.

Section 99B of the Act

71. The respondent agreed that up until March 1999 when Ms Jean Sayer concluded her inspection of his trust and other records, he had failed to carry out monthly reconciliations of his trust account records.

72. It is not possible to conclude that if the reconciliations been performed that the breaches of s 91 of the Act referred to above would have been avoided. By definition, the failure to credit funds to the trust account would have led to a failure to include a record of those funds in such a reconciliation. Nevertheless, the satisfaction of the s 99B requirement is of critical importance to ensure that funds posted to the trust account have not accidentally been credited to a general account and that sums debited to the trust account have, in fact, been paid out.

73. Needless, to say, such a reconciliation would also have highlighted any debits to the trust account (such as bank fees) which ought not to have been made.

74. The respondent's non-compliance with this requirement was not due to ignorance of it.

75. It was, we conclude, due to a lack of understanding of the importance of the provision. That is unsatisfactory professional conduct.

Section 100 of the Act

76. Having undertaken no monthly reconciliations of trust funds it is not surprising that no quarterly statements relating to trust accounts were prepared. The additional vice in this failure is that individual ledgers as between clients were not compared so that accidental postings of credits (or debits) could be discovered.

77. Again, it is not likely that such a statement would have avoided or discovered any of the breaches found to have occurred in dealings with trust moneys in this case.

78. Nevertheless, a persistent failure to carry out such a requirement is not to be lightly excused and, in this case, amounts to unsatisfactory professional conduct.

79. It should be noted, in favour of the respondent, that, since June 1999, the respondent has regularly and satisfactorily complied with the provisions of s 99B and s 100. That compliance has been monitored by regular audits.

The Breaches of the Rules (formerly the Guide)

80. It was alleged that the respondent had breached obligations imposed on solicitors generally by the Guide and, after 30 June 1998, the Rules.

81. This Court has previously reminded legal practitioners that such professional conduct rules, adopted as appropriate by relevant professional bodies, whilst not binding on the Court, nevertheless, have considerable force. As Miles C J commented in

Re Law Society (ACT) and Chamberlain (1993) 116 ACTR 1,14:

"The Guide [now the Rules] is a binding code which the court considers has been set by solicitors themselves in the interest of the public and in the interests of the maintenance of proper standards within the profession. The court is not bound by the Guide [nor the Rules] but ordinarily the court would give careful consideration to treating breaches of the provisions of the Guide as instances of professional misconduct. Practitioners who ignore the Guide do so at their own risk: Re: Oakley (SCACT, Full Court 10/9/92, unreported)."

82. That has consistently represented the view of all members of this Court. It was, at least tacitly, approved by a Full Federal Court in Chamberlain v Law Society (ACT) [1993] FCA 527; (1993) 43 FCR 148; 118 ALR 54.

83. It does not, of course, follow that every breach of the Rules will, without more, constitute professional misconduct as defined in the Act. It may constitute unsatisfactory professional conduct if an isolated or trivial instance. It may transpire to have been accidental or unintentional so that no censure is warranted.

84. Nevertheless, solicitors are expected to understand and conscientiously endeavour to follow the letter and the spirit of the Rules.

85. In this case, it is alleged that in the case of clients Dunn, Maxwell, Rutten, Duffin, Stephenson, Jones and Hill, the respondent failed:

* Contrary to Guide s 3.1 and 4.4, Rules s 1.1 and 3.5, to render a bill of costs to his clients at the conclusion of their matters;

and

* Contrary to Guide s 4.3 and Rules s 43.7, to provide to them, at the completion of their matters, a statement of account showing details of moneys received, and paid out as well as the balance, if any, due to them.

86. The respondent did not dispute these allegations. It is apparent that he placed insufficient importance upon compliance with these obligations.

87. It is of importance that a fiduciary account for his or her conduct. Even if trust moneys are not involved, a client is entitled to a prompt and fair accounting at the end of a matter in respect of the work done.

88. Where trust moneys are involved, the memorandum of fees evidences not only that the solicitor is entitled to payment by the client but also quantifies and provides a verifiable record of funds which the solicitor, if so authorised, is then entitled to retain from trust moneys.

89. Absent that memorandum, the solicitor will not be able to demonstrate that his or her entitlement to retain trust moneys for fees had arisen nor the quantum to which the client's authority relates.

90. The final accounting for moneys received, whether trust moneys or not, from or on behalf of a client, is also of fundamental importance. A client, is entitled to know, in a timely fashion, how moneys have been disposed of on his or her behalf.

91. The importance of ensuring that such obligations are discharged promptly is illustrated by the present case. To delay them leads to additional uncertainty in recollections, particularly when contemporary records are lacking or insufficient.

92. As in the present case, a failure to comply with these obligations will give rise to suspicion of financial impropriety, even if the truth is, as here, that there was no dishonesty. Nevertheless, we find that the respondent has in relation to these failures been guilty of unsatisfactory professional conduct.

Overcharging of Clients

93. In relation to clients Dunn and Maxwell, it was alleged the respondent had:

* Charged more for representing those clients in claims under the Victims Compensation Act than the statutory maximum of $750;

and

* In relation to Maxwell, charged a sum that was itself grossly excessive.

94. There had been a number of other matters in relation to which the records on file did not appear to justify the amount charged.

95. However, an examination by a legal costs consultant, whilst confirming that, also concluded that the charges were not so out of proportion to the work ordinarily required to be done as to evidence overcharging.

96. Whilst no adverse finding of overcharging generally was as a result, urged by the Law Society, it should be noted that a failure to keep proper records of work done may well give rise, as it did in this case, to a reasonable suspicion of overcharging even if overcharging has not occurred.

97. So far as the cases of Dunn and Maxwell are concerned, the respondent explained these apparent breaches by reference to additional work on other matters, detailed in his affidavit. His evidence was not challenged and, given the Court's favourable view of the respondent's honesty, the Court accepts that evidence and makes no adverse findings as to overcharging.

98. However, once more, it was the lack of adequate records and a failure to clearly set out relevant charges and statements accounting to clients, which gave rise to the reasonable suspicion of overcharging. That failure to keep proper records we have found to be unsatisfactory professional conduct.

The Court's response

99. It is apparent that the matters found adversely to the respondent would not, individually, constitute conduct that would warrant a conclusion that the respondent is not a fit and proper person to remain on the Roll of Legal Practitioners.

100. Each of them does, however, constitute unsatisfactory professional conduct as defined in s 37 of the Act.

101. Further, in aggregate, the course of conduct revealed was both "substantial" and "recurring".

102. At least so far as financial management and records are concerned the respondent has, at the request of the Society, submitted to monitoring of his compliance with s 99B and s 100 of the Act.

103. Given that the respondent now understands the importance of compliance with these obligations it seems likely that he will continue to do so.

104. Nevertheless, whilst there is no evidence that the respondent's unsatisfactory professional conduct has continued after the complaint was first made, the conduct prior to that time, being both substantial and recurring instances of unsatisfactory professional conduct, though no others are alleged or found against the respondent, suffices to constitute professional misconduct. The Court formally so finds.

105. There was evidence as to the previous character and professional history of the respondent. That may be summarised as follows.

106. The respondent was born in Perth on 28 June 1946. He was for the most part raised on an Aboriginal Reserve at Mount Magnet, Western Australia. His father has been employed on various sheep and cattle stations.

107. At age 14, he left the reserve. Living conditions had, at times, been hard, certainly inadequate by current standards.

108. During visits to townships he experienced discriminatory conduct from police and white business establishments and councils of a kind that is probably now well-known, and, certainly, a source of shame to modern day Australia.

109. The respondent, after leaving the reserve, joined the Merchant Navy. After serving honourably for four and a half years he married and moved to Perth. After a series of short-term jobs he joined Telecom as a linesman.

110. In 1972 he commenced studies to achieve matriculation, succeeding in doing so in 1973. He then enrolled for and was in 1980 awarded a Bachelor of Arts degree from Curtin University. He then worked at the Mount Lawley College of Advanced Eduction.

111. In 1990 he commenced legal studies at the Australian National University. This was pursuant to an initiative of the then Federal Government to encourage Aboriginal people into the professions. He was granted a cadetship with the Attorney-General's Department.

112. The respondent was successful in obtaining a Bachelor of Laws degree and, in 1994, the Graduate Diploma in Legal Practice (GDLP) from the ANU Legal Workshop.

113. Up until 1996, when he took a retirement package from the Australian Public Service, the respondent had been employed in the Attorney-General's Department and the Aboriginal and Torres Strait Islander Commission.

114. Whilst that experience was, no doubt, of great value to the respondent, it did not include experience of financial management or record-keeping relating to the conduct of matters for private clients.

115. Of course, the respondent had had instruction in such record keeping whilst undertaking the GDLP course. He was aware that he should have kept and maintained such records. However, it is clear that he failed fully to appreciate the importance of that obligation. That appreciation may often be gained during employment in a properly conducted legal practice. Unfortunately, the respondent did not have the benefit of such experience.

116. The respondent did seek employment with established legal firms during 1996. However, he was unsuccessful in obtaining a position. He formed the view, correctly or not, that his age and Aboriginality were regarded as negative factors by prospective employers, though he was conscious that his limited prior experience was also a considerable negative factor.

117. In accepting the respondent's evidence, the Court makes no comment on the correctness of his perceptions. It is more likely, given the great variety of persons from various ethnic backgrounds who are employed in the legal profession in the Australian Capital Territory, that age and prior lack of private practice experience were the major obstacles. Nevertheless, the Court takes favourable note of the respondent's obvious consciousness of the need he had for more private practice experience than he had at the time he obtained his first unrestricted practicing certificate on 26 June 1996.

118. It has often been remarked that the object of disciplinary proceedings such as the present is not the punishment of the respondent to them but, rather, the protection of the public. Thus a respondent, who may generally be of good moral character, may, nevertheless, be removed from the Roll if he or she appears incapable of providing competent legal service to the public, including competent management of trust funds.

119. That is not to say that punishment is not to be meted out in appropriate cases. As Higgins and Foster JJ commented in Re Nelson [1991] ACTSC 111; (1991) 106 ACTR 1, 24; [1991] ACTSC 111; 105 FLR 137, 159:

" The object of protection of the public includes not only striking off those who are unfit, suspending those currently unfit but likely to become fit at the conclusion of that period of suspension, but also meting out proper punishment to those who though generally fit to practise, have committed acts of misconduct. The protection of the public includes imposing penalties which represent both general and particular deterrence to solicitors and an assurance to the public that serious lapses in the conduct of solicitors will be met with severe but appropriate responses."

120. In the present case, despite serious past lapses, it is clear that the respondent is both capable and willing to learn from his past errors. He lacked the guidance of a more experienced practitioner in the ongoing management of his practice.

121. The Law Society does appoint senior solicitors in good standing as Senior Counsellors to give guidance, on a confidential basis, to any practitioner who seeks that guidance.

122. This is a most valuable resource. It is a service, which aids public confidence in the proper conduct of legal practices.

123. It must be recognised that persons issued unrestricted practising certificates will have had varying backgrounds and various prior experiences. No one practitioner, however long in the service of the law, will have all the relevant experience and knowledge required to both manage a legal practice and deal with all matters upon which clients will seek advice and assistance.

124. In a larger legal practice the collective wisdom and experience within the practice may well serve the purpose which Senior Counsellors are designed to serve. That advantage should not, of course, be open only to those gaining employment in such firms.

125. Unfortunately, it seems that the respondent was not aware that this resource was open to him. Perhaps he was, understandably, reticent about acknowledging a lack of experience on his part. Nevertheless, given the respondent's willingness to avail himself of it, the availability of that resource affords some comfort to the Court that the respondent will, in the future, be better able to conduct his practice as a solicitor.

126. The Court is satisfied that the respondent has devoted himself to the service of his clients. He has given much of his time pro bono. As a result, not only has no client been financially disadvantaged by him, but he has not been in a position to have received a high income from his practice. It would, therefore, not be appropriate to impose a fine, particularly as an adverse finding will carry a liability to pay the Society's costs.

127. It was urged that the Court should, though making adverse findings, refrain from formally imposing any penalty.

128. We are unable to accede to that submission. This is not a case where the breaches of proper professional standards were committed through ignorance or mere negligence. The respondent was, as he conceded, aware of his obligations. He simply failed to meet them. In that sense, his breaches were deliberate and wilful.

129. Nevertheless, the circumstances are such that we consider that a reprimand, pursuant to the power conferred on the Court by s 58(1)(d) and s 67(2) of the Act should be recorded.

130. Additionally, the Court requested the respondent to undertake that he will, over the next 12 months, at least quarterly, consult with a Senior Counsellor of the Society in relation to the conduct of his practice with particular reference to record keeping, both financial and otherwise, and to accept reasonable advice so given. That is intended to assist the respondent the better to serve his clients. The respondent readily offered that undertaking.

131. In view of the foregoing, at the request of the Law Society, it is, we consider, also appropriate to order that the respondent pay the costs of the Society of and incidental to those proceedings on a solicitor and client basis.

I certify that the preceding one hundred and thirty one (131) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 14 December 2000

Counsel for the Applicant:	Mr I W Nash
Solicitor for the Applicant:	Hunt & Hunt
Counsel for the Respondent:	Mr N Adams
Solicitor for the Respondent:	pappas, j - attorney
Date of Hearing:	9 and 10 October 2000
Date of Reasons for Judgment:	14 December 2000