Edwards v Law Society of New South Wales & anor [2000] NSWADT 29 (23 March 2000)

Last Updated: 24 March 2000

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL LEGAL SERVICES DIVISION

CITATION: Edwards -v- Law Society of New South Wales & anor [2000] NSWADT 29

PARTIES: APPLICANT

Lynette Kay Edwards

1st RESPONDENT

Council of the Law Society of New South Wales

2nd RESPONDENT

Council of the Bar Association of New South Wales

FILE NUMBERS: 992026

HEARING DATES: 08/11/99

SUBMISSIONS CLOSED: 10/01/2000

DECISION DATE: 23/03/2000

BEFORE: Turner RF - Judicial MemberBarnes M - Judicial MemberHayes E - Member

LEGISLATION CITED: Legal Profession Act 1987

CASES CITED:

APPLICATION: Application for approval to employ a person convicted of an indictable offence pursuant to s.48K(2)(c) of the Legal Profession Act 1987

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

A W Street SC, barrister

RESPONDENT REPRESENTATIVE: 1st RESPONDENT

D Barton, solicitor

2nd RESPONDENT

J Needham, barrister

ORDERS: 1. The Tribunal approves Part A of the Amended Application of Lynette Kay Edwards to be an associate of Nash O'Neill Tomko subject to the following conditions:

1.1 The Applicant will not open any correspondence arriving at Nash O'Neill Tomko Lawyers ("NOT").

1.2 The work the Applicant will be undertaking at NOT will be wordprocessing and the Applicant will work under the supervision of the partners.

1.3 The Applicant will not have any contact with the NOT office account system.

1.4 The Applicant will not have any contact with the NOT trust account system.

1.5 The Applicant will not have any access to the NOT office petty cash system.

1.6 The Applicant will not have any access to NOT cash or cheques.

1.7 Cabcharge vouchers are given to the Applicant by the partners' bookkeeper and are not transferable.

1.8 The Applicant will not have contact with the NOTpartners' clients apart from occasions on which the Applicant receives specific instructions from a NOT partner to contact a client, for a specified purpose.

1.9 The Applicant's duties at NOT will be transcription typing of dictation tapes prepared by the legal practitioners and secretarial duties and will not involve any form of accounting or bookkeeping.

2. No order as to costs.

Reasons for Decision:

1 On 8 November 1999, the Tribunal heard an Application by Lynette Kay Edwards (hereafter referred to as the Applicant), pursuant to Section 48K of the Legal Practitioners Act. Such Application sought the Tribunal's approval pursuant to Section 48K(7) to be an Associate of Michael Francis O'Neill, John Graham Tomko and Graham Dennis Nash, solicitors practicing at Level 17, 59 Hunter Street Sydney of Nash O'Neill Tomko, Lawyers. It is noted that incidental to an amendment to the Application that the solicitors, carrying on that practice was extended to include Alexander Korokney.

2 Within the Application a Schedule of constraints upon the Applicant's activities were identified.

3 Relevantly, the Law Society of New South Wales filed a Reply in which it did not oppose the Application as sought.

4 On the allocated Hearing Date, the Applicant gave notice by her legal advisers that she sought to amend the Application to seek general approval pursuant to Section 48K.

5 The Law Society of New South Wales was not in a position to meet the proposed amendment.

6 All evidence was tendered in the proceedings and subject to the matters set out hereunder, the Applicant and the Law Society closed their cases.

7 Various directions were given including a direction that the Applicant file an Amended Application.

8 An Amended Application was filed on behalf of the Applicant on 10 November 1999 and an Amended Reply was filed on behalf of the Law Society of New South Wales on 23 November 1999.

9 Further, provision was made for Written Submissions to be received. Such Submissions have been filed on behalf of the Applicant, the Law Society of NSW and the Bar Association of NSW.

10 The Amended Reply of the Law Society of New South Wales, opposed the granting of general approval under Section 48K(2)(c) for the Applicant to be an Associate of a Solicitor on the terms sought by the Applicant in her Amended Application and specifically within Part B.

11 The circumstances that give rise to the Application and the Amended Application involved the Applicant having worked as a Legal Secretary for several Barristers, including Mr A Shand QC, over a period in the order of approximately 16 years.

12 In relation to Mr Shand QC, the Applicant had stolen $102,750.00 over a period of approximately 4 years. On 14 July 1999 the Applicant was convicted of three counts of obtaining money by deceit.

13 It is accepted that the Applicant admitted her theft to Mr. Shand and co-operated with the Police investigations. Further it is accepted that the Applicant entered a plea of guilty in relation to the matters in a timely way. She was sentenced to 9 months periodic detention as well as being ordered to pay an amount of $22,604.00 in compensation to Mr Shand.

14 The Applicant by way of Affidavit in support of her own position and supporting expert medical opinion explained that at the time she was taking the money, she was in a dysfunctional de-facto relationship. She believed that by using the money to support her partner, as well as providing him with clothing and gifts, he would be able to establish his own career. Furthermore she was financially contributing to her aged parents.

15 The Applicant had suffered from depression and has been referred for specialist psychiatric assessment and treatment. It was clear from the evidence that the Applicant has made partial financial restitution to Mr Shand and was continuing to make payments of compensation.

16 At the date of Hearing the Applicant was still attending for periodic detention.

17 On the Applicant's behalf, submissions were initially received in support of the Application and the Amended Application which in summary form provided as follows:

1. The specific catalyst which explains, but does not excuse the crime, involves a five year defacto relationship which was personally unbalanced and destructive ending on 27 October 1997. The crime commenced in the course of and in a deluded endeavour to maintain the defacto relationship. Although not excusing the offence, the applicant laboured under the false belief that her defacto would become successful and she would be able to repay the stolen funds.

2. Prior to the commencement of this destructive relationship, the applicant had worked assiduously as a legal secretary and earned a reputation of a trustworthy person of high integrity and good character.

3. The four year period of stealing from Mr. Shand was a marked and serious aberration from her otherwise good character. The guilt and remorse with which the applicant has been racked giving rise to both her confession and subsequent counselling is entirely consistent with a person of underling good character.

4. The risk of any future aberration is, upon the evidence available, so remote as to be in practical terms, highly unlikely. This is supported by, inter alia, the termination of the destructive relationship, the confession, the full recognition and acceptance of the offence, the genuine contrition and oppressive remorse and the sincere desire to make reparation and to obtain complete rehabilitation. It is also supported by Dr. Churnin, 4 November 1999, "virtually no chance of a re-occurrence of her crime"; Dr. Wilcox, 14 May 1999, "very minimal risk that she would ever re-offend"; "will never be repeated", C. Porter, 15 March 1999; "I would have offered to employ her"' "I would have no hesitation in employing her", J. Timbs, 18 March 1999; "I would offer her employment in the future if the opportunity arose", L. Levy, 20 May 1999.

5. Approval for the applicant will further considerably assist the applicant as recorded in the report of Dr. Brian Churnin dated 4 November 1999 in obtaining full rehabilitation within herself and into society generally.

6. For the purpose of section 48K(2), the applicant presents no risk to the public from her employment as a legal secretary given all the circumstances surrounding this conviction. Indeed, the public interest would, in the present case, be best served by granting general approval to the applicant to be employed as an associate as defined by section 48L(7) of Michael Francis O'Neill, John Graham Tomko and Gregory Dennis Nash, or any other legal practitioners without further condition. There is no risk of non-disclosure to any other legal practitioner from whom employment is sought and the scheme of the Act otherwise provides adequate and proper protection without the need for any more limited approval in this case.

18 The Law Society in its Submission, had no objections either to the Application in its original form, nor to the Amended Application in relation to Part A thereof. Rather the opposition was to the Amended Application in relation more specifically to Part B thereof and in summary the Law Society emphasised the following in its submission:-

1. Regard must be had to the overriding question of the protection of the public in deciding whether to approve the Applicant's application to be an Associate of a Solicitor or Barrister.

2. The Applicant's offence was serious and it occurred in the course of employment in a legal practice.

3. The theft represented a breach of trust and there was a series of thefts over a period of years.

4. The Applicant was given a custodial sentence, albeit to be served by periodic detention.

5. The Applicant has not made and seems unlikely to make complete restitution to the victims of her crime.

19 Further, the Law Society asserts that issue of character remains in question and the Applicant had not demonstrated full rehabilitation, specifically the following is submitted:

1. The Applicant attributes her offences to a "dysfunctional defacto relationship" and annexes to her affidavit in support of her application a report by a psychiatrist, Dr. Rosalie Wilcox. The report links the offences and the dysfunctional defacto relationship to underlying personality flaws. The report thereby places issues of character squarely in question. The Applicant's rehabilitation necessarily requires that the personality traits called in question by the psychiatrist to be properly addressed. The success or otherwise of her rehabilitation will depend in large part upon a satisfactory conclusion of the treatment the psychiatrist judged necessary. The psychiatrist's report makes reference to reasons for lack of continuity of appropriate treatment (psychotherapy), and the Applicant's poor commitment to a satisfactory course of that treatment. See the report of Dr. Wilcox at pages 5 and 6 under the headings "PSYCHIATRIC DIAGNOSIS" and "TREATMENT".

2. The further affidavit in support sworn on 5 November 1999 by the Applicant, falls short of an undertaking to continue psychotherapy. It addresses treatment for the sequelae of the loss of the relationship and the personal consequences of the misappropriations.

3. Paragraph numbered 5 of the Applicant's submissions filed on 1 December 1999 ("the submissions") alleges that the Society has failed to take account of the Applicant's evidence that "...explains... the circumstances that gave rise to the offences, articulates clearly the cessation of those circumstances and strongly supports the absence of any real risk to the public..." . On the contrary, the Application and the submissions fail to address the unresolved issue raised by her psychiatrist as to the underlying personality flaws that led to the Applicant's misappropriations.

4. Furthermore, neither the Application nor the submissions address the issue of lack of rehabilitation in respect of the personality flaws identified by the psychiatrist as requiring further treatment and the lack of a satisfactory conclusion to the treatment.

20 The written Submission of the Second Respondent, the New South Wales Bar Association in relation to the Amended Application, did not oppose the orders sought in Part A thereof and did not consent nor oppose the orders sought in part thereof and regarded Part B as being a matter for the Council of the Law Society of New South Wales.

21 As to Part C, where approval was sought for the Applicant to be an Associate of a Barrister, the Bar Association strongly opposed that Application and in summary submitted as follows:

1. In Part C of the Amended Application, the applicant seeks approval under s 48K(7) of the Legal Profession Act ("the Act") as an "associate" of a Barrister - that is, that she be able to work as a legal secretary/word processor for a barrister or barristers, and that if she undertakes such employment, she inform the Council of the Association within seven days of accepting such employment of the name of her employer, and the nature and role of her employment.

2. The Association submits that the seriousness of the offences, the long period over which they occurred, and the breach of trust in which the Applicant indulged are matters of real concern when ascertaining the fitness of the Applicant for such a general approval under the Act. The orders sought by the Applicant do not require her to do more than notify the Association when her employment changes. It will be up to the Applicant to comply with the disclosure requirements of s 48K(5).

3. The Association submits that a more appropriate approach is that the order sought be refused, leaving the Applicant to seek approval for employment by a barrister or barristers from either the Bar Council or to the Tribunal as appropriate, as and when the circumstances arise. The orders sought are a general and blanket approval for future employment, which takes no account of continued rehabilitation and treatment, and of course of any future regression or recurrence of depression. Refusal of the orders would protect both the position of the prospective barrister employer and the Association as well as, in a sense, the Applicant. The question of rehabilitation and treatment is an important one in any approval. It should be remembered that the Association was not a party to the Application prior to the amendment by the Applicant, and in a sense the Association is bound by the evidence which has been brought forward by the Applicant and the Law Society in relation to the original Application. the Association therefore adopts the submission of the Law Society in relation to the evidence of rehabilitation (see pars. 7-10 of the Submission of the Law Society dated 16 December 1999).

4. The submission of the Applicant that the approach suggested above is "humiliating and protracted" (par 9, submissions dated 1 December 1999) is not to the point. The purpose of the relevant provisions of the Act are protection of the public, not sparing the feelings of a person subject to those provisions. The seriousness of the offences, and the opportunities to reoffend offered by the nature of a barrister's practice, would require ongoing supervision and attention by the Applicant to her responsibilities under the Act. In any event, there may be no requirement for the Applicant to return to the Tribunal, given the terms of s 48K(2)(a), a procedure of approval which is lost to the Bar Council should the orders in Part C of the Amended Application be made. The Applicant's submission that the Tribunal is the "only relevant body for approval" is not correct.

5. It is submitted that the appropriate resolution is that the Tribunal refuse the orders sought in Part C of the Amended Application. The Association does not seek to file evidence, nor to list the matter for further oral argument.

22 The Applicant had an opportunity to put in place further submissions and such submissions were filed in answer to the Amended Reply by the Law Society of New South Wales and by the Bar Association of New South Wales. Specifically in relation to the Law Society Submission on behalf of the Applicant the following was further submitted:

1. The allegation that the offences are "too serious for a general order" is a generalised "knee jerk" submission that takes no account of the circumstances surrounding the particular offences and erroneously characterises the approval as "a general order". Any application dealing with an indictable offence is one requiring specific focus upon the needs for protection of the public in respect of the particular applicant. Moreover, the present applicant's convictions are by no means in the category of the most heinous conduct in the indictable offences for which she was convicted as is blatantly apparent by the leniency of the criminal sentence.

2. The assertion that "a general order" should be resisted because it has been sought "so soon after the offences and conviction" is again stereotyping the convictions and failing to recognise the substantial body of evidence in support of the applicant which both explains without excusing the circumstances that gave rise to the offences, articulates clearly the cessation of those circumstances and strongly supports the absence of any real risk to the public from the applicant being employed or paid in connection with a barrister or solicitor's practice. Again, it is not "a general order" but rather a limited approval in the role of secretary/word processor. The "so soon" submission ignores the substantial period post-confession of the crimes during which the applicant has been employed. The strong support from her past employers is a matter of considerable weight in demonstrating that any risk to the public from the applicant's employment as a legal secretary/word processor is, in practical terms, zero.

3. The submission that the applicant's character remains in question is inconsistent with the evidence adduced which powerfully supports proper grounds for the making of the order sought in Part B. Whatever is thought to be the content of the suggested criteria of "full rehabilitation", there is a clear distinction between the administrative power to protect the public and punishment for the criminal offences.

4. The factor or rehabilitation is a matter specifically taken into account in sentencing and there is no substance in imposition of a criteria to demonstrate "full rehabilitation" to support the exercise of the power of approval. This is not to say that rehabilitation is irrelevant to the approval. There is a clear public interest in encouraging and facilitating social rehabilitation. In the present case it is clear that the applicant's rehabilitation into society would be markedly assisted and advanced by the making of the approval as sought. To the extent that full rehabilitation is intended to focus upon the risk of commission of further offences, it is submitted that the material adduced strongly supports a full and complete recognition by the applicant of the criminal conduct and, to the extent necessary, demonstrates a full rehabilitation in the recognition of the offences and that so such criminal conduct is likely to occur ever again.

5. The approval sought remains limited and is capable of review if any other capacity of employment other than "secretary/word processor" was desired. The conditions of notification also remain alive obligations which must be fulfilled. These condition are of real benefit by reason of requiring disclosure of the role, be it as a legal secretary or a word processor, or both, as well as identifying the nature of her duties. This is a significant burden but does permit the Law Society to communicate any concern to either the applicant or her employer. There remains a very real remedy by reason of the statutory prohibition in a role other than as secretary/word processor and the approval is only valid if the limitations and conditions are fulfilled. The desire of the Law Society to monitor, through the Tribunal, the applicant's secretarial employment future is, in this case, unnecessary and inappropriate. Indeed, the Law Society's stance appears to be based upon the misconceived notion that approval is sought without limitation.

23 In relation to the Bar Association submission on behalf of the Applicant the following was contended:

The applicant has sought a specific approval for the role of legal secretary/word processor which role she has, through her counsel, foreshadowed a desire to pursue when the weekend detention sentence expires. It is not as asserted in the Bar Association reply a "general approval". The submissions of the Bar Association seek to achieve a specified practitioner limitation which, in the circumstances of the case, is not justified. The applicant should not be required to undergo the protracted and humiliating exercise of seeking case-by-case approval from this Tribunal (being the only relevant body for approval). To re-assess the events upon each change of employer as a legal secretary/word processor would, in this case, be offensive and unjust. The potential burden of repeated medical/psychological assessments is unfair and unnecessary. The suggested need for a condition of disclosure ignores the obligation already imposed by section 48K. The applicant made full disclosure to her current proposed employer even prior to the convictions and there is accordingly no need for such an express condition (if nonetheless so desired the applicant without consenting dos not oppose such a condition, albeit superfluous, given the obligation under section 48K(5)). The applicant otherwise relies upon the earlier submissions in support of the order south in Part C of the application.

24 At the close of the evidence in this matter it had been some 4 months from the conviction of the Application. The obligations to make financial compensation had only been partially discharged and as mentioned previously, the Applicant was still attending for periodic detention. The Tribunal is satisfied in giving consideration to the object of Section 48K(2) the clear focus must be upon protecting the public interest, and the interests of an individual applicant are subservient to the public interest.

25 The Tribunal is concerned that whilst the Applicant has been attending for psychiatric therapy, her attendance has been somewhat irregular and specific notice is taken of the report of Dr Rosalie Wilcox , treating specialist of 14 May 1999 where quote as follows:

"The psychotherapy with Ms. Edwards has been somewhat disjointed. She was seen regularly up until the end of February 1998 and there was then a break of some weeks until the end of May 1998 and then again a break of several months until December. She then came regularly for several weeks until a break of 2 months between March and May of this year.

There have been a number of reasons for the lack of continuity in the sessions. One factor has been Ms. Edwards' work commitments but of probable more significance is that she had difficulty accepting that she had the right to have treatment as she felt that she should be able to manage without professional assistance. However, I believe that she now accepts the importance of having regular sessions. Another factor is that the commitment has never been a strong point with Ms. Edwards and this applies to commitment to psychotherapy.

The aim of the therapy is to help Ms. Edwards understand the patterns that have occurred in her life and to try and overcome her dependency and the need to give to others in order to feel good about herself. It is hoped with time she will be able to become more assertive in interpersonal relationships and develop an improved self esteem."

26 Dr Wilcox did observe that she felt that there were minimal prospects of re-offending.Further, Dr Churnin, the Applicant's GP, in a report of 4 November 1999 also expressed the view there was virtually no chance of recurrence of her crime.

27 The Applicant in her Supplementary Affidavit filed 5 November 1999 deposed she stopped seeing Dr Wilcox on 23 Jun 1999 and did so on the basis that she could not afford the additional fare. That is a fare to Paddington, noting the doctor had previously practiced at The Rocks. No detailed financial statement was tendered on behalf of the Applicant.

28 There is no evidence that the Applicant is currently taking any medication on a regular basis.The Applicant in her evidence clearly recognises a need for further treatment, although it is clearly not being pursued as recommended by Dr. Wilcox. The Applicant has been diagnosed as suffering from depression as well as having an underlying disturbance in her personality.

29 Dr Wilcox in a report of 14 May 1999 observed:

"It is my impression that she had a dependent obsessional trait in her personality"

30 The Tribunal is concerned that when weight, in support of the Amended Application is placed upon an appreciation of the Applicant's circumstances leading up to and surrounding her criminal acts, that there is not a more complete and continuing commitment by the Applicant, to a closely managed psychotherapy programme.

31 There is no suggestion that the Applicant is not coping in the discharge of her duties in her current working environment and her current employers are strongly supportive of Part A of the Amended Application.

32 Further, it is premature having regard to the serious nature of the offences and the deceitful conduct involved to be granting the Amended Application in full.

33 In exercising its discretion and having taken into account all the evidence, the Tribunal is not disposed to grant Part B or Part C of the Amended Application.

34 The Tribunal notes that none of the pleadings seek any order for costs, nor has any submissions been made in that regard. Accordingly the Tribunal will make no order as to costs.

35 The Tribunal noting and relying upon the particulars of the schedule within Part A of the Amended Application, excluding item 10 approves Part A, for the Applicant to be an Associate of Michael Frances O'Neill, John Graham Tomko, Graham Dennis Nash and Alexander Koroknay, practicing as Nash O'Neill Tomko, Lawyers.

36 Orders

1. The Tribunal approves Part A of the Amended Application of Lynette Kay Edwards to be an Associate of Nash O'Neill Tomko subject to the following conditions:

1.1 The Applicant will not open any correspondence arriving at Nash O'Neill Tomko Lawyers ("NOT").

1.2 The work the Applicant will be undertaking at NOT will be wordprocessing and the Applicant will work under the supervision of the partners.

1.3 The Applicant will not have any contact with the NOT office account system.

1.4 The Applicant will not have any contact with the NOT trust account system.

1.5 The Applicant will not have any access to the NOT office petty cash system.

1.6 The Applicant will not have any access to NOT cash or cheques.

1.7 Cabcharge vouchers are given to the Applicant by the partners' bookkeeper and are not transferable.

1.8 The Applicant will not have contact with the NOT partners' clients apart from occasions on which the Applicant receives specific instructions from a NOT partner to contact a client, for a specified purpose.

1.9 The Applicant's duties at NOT will be transcription typing of dictation tapes prepared by the legal practitioners and secretarial duties and will not involve any form of accounting or bookkeeping.

2. No order as to costs.