Law Society of NSW v English [2011] NSWADT 39 (2 March 2011)

Last Updated: 14 November 2011

This decision has been amended. Please see the end of the decision for a list of the amendments.

Administrative Decisions Tribunal New South Wales

Case Title:	Law Society of NSW v English
Medium Neutral Citation:	[2011] NSWADT 39
Hearing Date(s):	31 May 2010, 25 June 2010
Decision Date:	02 March 2011
Jurisdiction:	Legal Services Division
Before:	Currie JS, Judicial Member Fairlie D, Judicial Member Bubniuk L, Non-judicial Member
Decision:	1.The Respondent be publicly reprimanded. 2. a) The Respondent to be issued with a Restricted Practising Certificate and to be supervised by a Practitioner with either an Unrestricted Principal or Non-Principal or Government or Corporate/Non-Lawyer Entity, Practising Certificate; b) The Respondent not to become a Solicitor/director of any incorporated legal practise. c) The Respondent to continue consulting a practising psychiatrist of the Respondent's choice ("the Respondent's psychiatrist") and approved by the Manager ("the Manager") for the time being of the Professional Standards Department of the Society who is willing to provide reports in terms of (d) hereof until the expiration of the Period and subject to the terms of paragraph (d) hereof. d) The Respondent to provide authorisation in writing to the Respondent's psychiatrist in accordance with these Orders, to permit the psychiatrist to report on the consultations with the Respondent to the Manager, such reports to commence three (3) months after a Practising Certificate is issued to the Respondent and every six (6) months thereafter, and at such other times as the Respondent's psychiatrist may be of the opinion that matters need to be brought to the attention of the Manager. e) The Respondent to bring to the attention of his employer and the Respondent's psychiatrist the Tribunal's Determination in these proceedings and permit the Manager in his or her discretion, to confirm with the Respondent's Employer and psychiatrist that he or she is fully conversant with such Determination. f) The Respondent to provide authorisation in writing to his employer in accordance with these Orders, to permit his employer to provide such information to the Manager as required by the Manager at such times as the Manager deems fit. g) After the expiry of the period, the Respondent not be permitted to hold an unrestricted Principal Practising Certificate or become a Solicitor/director of any incorporated legal practice unless such application is accompanied by a report from the Respondent's psychiatrist certifying the Respondent's medical and psychiatric fitness to practise in such capacity. h) The Respondent not to have access to or to be signatory to or operate any account conducted by his employer or client of his employer with any bank or financial institution. i) The Respondent not to have access to mail received in the Employer's office other than as provided to him by his Employer. j) The Respondent's employment at all times to be under the direct supervision of his Employer. Should that person be absent from the practice in excess of 3 business days, that supervision to be undertaken by another Solicitor either with an unrestricted principal or non-principal or government or corporate/non-lawyer entity, Practising Certificate who has been made aware of the conditions upon which the Respondent is permitted to work in the practice. 3.The Respondent pay the Applicant's costs of these proceedings.
Catchwords:	Findings of Professional Misconduct and Unsatisfactory Professional Conduct; Orders for Public Reprimand, Restrictions on Right to Practise, Provision to the Law Society of Reports from the Respondent's Psychiatrist; Provision to the Law Society of Reports from the Respondent's Employer and Restrictions on Practising Certificate; and Costs.
Legislation Cited:	Legal Profession Act 1987 Legal Profession Act 2004
Cases Cited:	NSW Bar Association v Howen (no. 2) [2003] NSWADT 235; Law Society of NSW v Parling [2008] NSWADT 344; and Law Society of NSW v Kay [2009] NSWADT 39
Texts Cited:	"Courting the Blues" published by the Brain and Mind Research Institute of the University of Sydney Studies undertaken by Professor Ian Hickie
Category:	Principal judgment
Parties:	Council of the Law Society of NSW (Applicant)
Representation
- Counsel:	Counsel: Mr B A Connell (Respondent)
- Solicitors:	Solicitors: Mr P Boyd (Applicant) Mr P M Fordyce, Ms G. Wu; (PMF Legal) (Respondent)
File number(s):	082016
Publication Restriction:

REASONS FOR DECISION

Introduction

1. This is a matter in which disciplinary Orders are sought by the Council of the Law Society of NSW in respect of Martin Francis English ("the Respondent") on the basis of allegations of several grounds of professional misconduct and one ground of unsatisfactory professional conduct. The Respondent's relevant conduct is alleged to have continued over a substantial period of time and to have involved breaches of his professional obligations to several of his clients.

The Parties' Cases as pleaded prior to Hearing

2. In its original Application, filed on 31 July 2008, the Law Society sought Orders that the name of the Respondent be removed from the Roll of Local Lawyers, that the Respondent pay the Law Society's costs of the proceedings and such further and other Orders as the Tribunal deemed appropriate. Eleven grounds of professional misconduct were cited in the original application. Detailed particulars, segregated according to the Respondent's clients concerned, were also provided in that document.

3. In a Reply to the Application dated 11 November 2008, the Respondent admitted all 11 grounds except ground 5 which was that the Respondent misappropriated trust funds.

4. The Law Society at a later stage amended its Application, the Amended Application being filed on 24 May 2010, and later still made further brief amendments to its Application, particularly the Orders sought and some of the particulars. The Further Amended Application was filed in the Tribunal at the hearing on 25 June 2010.

5. Taking those amendments into account, the Law Society at the hearing sought, in lieu of the Orders sought in its original Application, the following Orders (the Respondent being referred to by the Law Society as "the Solicitor"):

1For a period of 3 years during which the Solicitor holds a Practising Certificate ("the Period"), any Practising Certificate so held shall be endorsed with the following conditions:

(a)The Solicitor is to be issued with a Restricted Practising Certificate and is to be supervised by a Solicitor with either an Unrestricted Principal or Non-Principal or Government or Corporate/Non-Lawyer Entity, Practising Certificate;

(b)The Solicitor is not to become a solicitor/director of any incorporated legal practice.

(c)The Solicitor is to continue consulting a practising psychiatrist of the Solicitor's choice ("the Solicitor's psychiatrist") and approved by the Manager ("the Manager") for the time being of the Professional Standards Department of the Society who is willing to provide reports in terms of (d) hereof until the expiration of the Period and subject to the terms of paragraph (d) hereof.

(d)The Solicitor shall provide authorisation in writing to the Solicitor's psychiatrist in accordance with these Orders, to permit the psychiatrist to report on the consultations with the Solicitor to the Manager, such reports to commence three (3) months after a Practising Certificate is issued to the Solicitor and every six (6) months thereafter, and at such other times as the Solicitor's psychiatrist may be of the opinion that matters need to be brought to the attention of the Manager.

(e)The Solicitor is to bring to the attention of his employer and the Solicitor's psychiatrist the Tribunal's Determination in these proceedings and permit the Manager in his or her discretion, to confirm with the Solicitor's Employer and psychiatrist that he or she is fully conversant with such Determination.

(f)The Solicitor shall provide authorisation in writing to his employer in accordance with these Orders, to permit his employer to provide such information to the Manager as required by the Manager at such times as the Manager deems fit.

(g)After the expiry of the period, the Solicitor is not permitted to hold an unrestricted Principal Practising Certificate or become a solicitor/director of any incorporated legal practice unless such application is accompanied by a report from the Solicitor's psychiatrist certifying the Solicitor's medical and psychiatric fitness to practise in such capacity.

(h)The Solicitor is not to have access to or to be signatory to or operate any account conducted by his employer or client of his employer with any bank or financial institution.

(i)The Solicitor shall not have access to mail received in the Employer's office other than as provided to him by his Employer.

(j)The Solicitor's employment shall at all times be under the direct supervision of his Employer. Should that person be absent from the practice in excess of 3 business days, that supervision is to be undertaken by another solicitor either with an unrestricted principal or non-principal or government or corporate/non-lawyer entity, Practising Certificate who has been made aware of the conditions upon which the Solicitor is permitted to work in the practice.

2That the Solicitor pay the Applicant's Costs of these proceedings.

3Such further and other Orders as the Tribunal deems fit.

6. By its Amended Application, the Law Society added further grounds of alleged professional misconduct and unsatisfactory professional conduct, so that, as the final form of the Application was considered at the hearing, it consisted of 19 grounds of professional misconduct and one ground of unsatisfactory professional conduct.

7. The grounds of professional misconduct were as follows (grounds 1 to 11 being the same as in the original Application):

(1)The Solicitor breached an undertaking to the Legal Services Commissioner.

(2)The Solicitor practised without a Practising Certificate.

(3)The Solicitor failed to account.

(4)The Solicitor wilfully breached s61 of the Legal Profession Act 1987.

(5)The Solicitor misappropriated trust funds.

(6)The Solicitor failed to comply with s152 of the Legal Profession Act 1987.

(7)The Solicitor failed to comply with s660 of the Legal Profession Act 2004.

(8)The Solicitor failed to inform Rigging Construction Pty Limited of a cost assessment application.

(9)The Solicitor failed to inform Rigging Construction Pty Limited of a District Court hearing on 7 December 2004.

(10)The Solicitor consented to an indemnity costs order against Rigging Construction Pty Limited on 7 December 2004 without authority to do so.

(11)The Solicitor breached an Undertaking given to the District Court on 7 December 2004 to pay the hearing allocation fees.

(12)The Solicitor engaged in unethical conduct by failing to respond to a cost assessor's requisitions.

(13)The Solicitor failed to attend a Court hearing on 22 August 2003 as a result of which the proceedings were struck out and costs awarded against the complainant company (Rigging Construction Pty Limited).

(14)The Solicitor permitted the complainant company's case to be dismissed on 22 August 2003.

(15)The Solicitor failed to advise that the case had been dismissed on 22 August 2003 and that costs were awarded against the client.

(16)The Solicitor was negligent by failing to attend or arrange representation at the Court appearances on 22 August 2003 and 30 April 2004.

(17)The Solicitor failed to advise his client:

(a)That on 22 August 2003 the Court ordered costs against the complainant company and had dismissed its claim.

(b)That on 4 December 2003 the Court awarded costs against the complainant company.

(18)The Solicitor consented to a dismissal of the claim by Rigging Construction Pty Limited on 7 December 2004 without the consent or knowledge of Rigging Construction Pty Limited or Mr and Mrs Andrade.

(19)The Solicitor misled or lied to his client Fiona Blundell.

The ground of unsatisfactory professional conduct was stated as:

(1)The Solicitor failed to transfer documents.

8. The Law Society provided detailed Particulars of these grounds, running to some 14 pages of detail, and arranged by complaint; that is, the document set out the grounds alleged against the Respondent and particulars in detail, for each of the complainant client, sequentially.

9. The Respondent through his Counsel handed up at the commencement of the hearing an Amended Reply which updated his response to each of the amended Grounds pleaded by the Law Society. Significantly, the Amended Reply admits (without further comment) all 19 grounds of alleged professional misconduct and the one ground of alleged unsatisfactory professional conduct.

10. In the result, there was no dispute between the parties as to the Respondent's actions, as pleaded, constituting professional misconduct and unsatisfactory professional conduct.

Agreed Facts

11. To further assist the Tribunal, at the commencement of the hearing the parties handed up a document entitled "Particulars of Agreed Facts" which we will refer to in this judgment as the "Agreed Facts".

12. That document commences with the statement that:

"In respect of the following grounds of complaint, the Legal Practitioner engaged in professional misconduct and unsatisfactory professional conduct:"

13. The Agreed Facts documents then sets out, sequentially by complainant (ie by each client who made a complaint against the Respondent) the grounds of professional misconduct or unsatisfactory professional conduct that are alleged and detailed particulars of those alleged grounds.

14. In this way, the parties have conveniently encapsulated for the benefit of the Tribunal the concessions which are made by the Respondent in respect of the facts, and the grounds upon which the admitted professional misconduct and unsatisfactory professional conduct are based.

15. The Agreed Facts document deals with the complaints segregated by client as follows:

- Elite Industries Pty Ltd, Murray Aldridge SC, Legal Services Commissioner and Law Society of NSW;

- Law Society of NSW: complaint re lease of shop 1, 16-32 Oxford Street, Sydney;

- Patricia Malcolm;

- Law Society of NSW: complaint by Rigging Construction Pty Limited;

- Law Society of NSW: complaint by Fiona Blundell; and

- Harding Group Investments Pty Ltd.

16. The conceded grounds and particulars can be summarised as follows:

Elite Industries Pty Limited, Murray Aldridge SC, Legal Services Commissioner of Law Society of NSW

17. The Grounds alleged and admitted in respect of these complaints comprise misappropriation, breach of undertaking to the Legal Services Commissioner, failure to comply with Section 152 Notice and failure to transfer documents.

18. In summary it is alleged and admitted that the Respondent acted for Elite Industries Pty Limited ("Elite") in Supreme Court Proceedings heard on 10 December 2001 and Mr Aldridge SC appeared on behalf of Elite. Judgment was obtained together with an order for costs, in favour of Elite.

19. On 11 December 2001, Mr Aldridge SC rendered a tax invoice to the Respondent for $4,840.00. The following day the Respondent issued to Elite a tax invoice for costs and disbursements, including fees to Mr Aldridge SC, for $11,563.00. Then on 31 July 2003 the Respondent wrote to the new solicitors for Elite claiming a solicitor's lien in the amount of $13,281.28, for unpaid costs and disbursements in relation to the proceedings. It was indicated that the file for the matter would be transferred to the new solicitors upon payment of that amount. The Respondent issued a Creditor's Statutory Demand on Elite on 29 July 2003 claiming $11,563.00 together with interest of $1,718.28 making a total of $13,281.28.

20. On 13 August 2003 the new solicitors for Elite sent the Respondent a letter which said in part:

"We confirm our client's agreement to transfer $9,000.00 into your ANZ account today in full and final settlement of your demand. Our client will fax you the deposit receipt. Once it is received by you, please arrange transfer of Elite Industries Pty Limited's file to our office ..."

21. The payment was duly made to the Respondent by the new solicitors. A copy of the deposit receipt was received by the Respondent. The new solicitors made further requests for the transfer of the file but despite these requests the Respondent failed to transfer the file to the new solicitors.

22. Furthermore, the Respondent failed to pay fees due to Mr Aldridge SC in the sum of $4,840.00.

23. The Respondent misappropriated the sum of $558.72 due to Mr Aldridge SC calculated as follows:

Amount received$9,000.00

Less amount due for costs $6,723.00

Interest on costs and Mr Aldridge's fees$1,718.28

$8,441.28

$ 558.72

$9,000.00$9,000.00

24. There were further particulars given, and conceded by the Respondent that he failed to comply with an undertaking to the Legal Services Commissioner. This was an undertaking to comply by a particular time and date in relation to the complaint lodged against the Respondent by the new solicitors for Elite.

25. Following referral of the complaint to the Law Society and Notice under Section 152 of the Legal Profession Act 1987 was issued on 1 March 2007 and a subsequent Section 152 Notice was also issued on that date. The Respondent concedes that he failed to comply with these two Notices.

26. It should be noted that on 27 April 2009 the Respondent provided a bank cheque to Mr Aldridge's chambers in the amount of $8,414.29, being payment of the outstanding memorandum of fees of $4,840.00 plus interest to the date of payment. Additionally, on 28 April 2009 the Respondent answered both Section 152 Notices.

Law Society of NSW: Complaint re lease of Shop 1, 16-32 Oxford Street, Sydney

27. The Ground alleged and admitted in respect of this complaint is that the Respondent practised without a Practising Certificate. The particulars of the complaint are in summary that on 24 September 2004 the Respondent sent to the solicitors for the lessor in this transaction a facsimile transmission which in part said:

"We act for the Lessee of the above premises and understand you act for the lessor. We have been instructed by our client that there have been continuing negotiations..."

28. There were apparently several other indications in that facsimile transmission that the Respondent was acting for the lessee as its solicitor.

29. At the time of sending that facsimile transmission the Respondent did not have a Practising Certificate.

Complaint by Patricia Malcolm

30. The Grounds alleged and admitted in respect of this complaint comprise failure to account, practising without a Practising Certificate, failure to comply with a Section 152 Notice and failure to respond to cost assessor's requisitions.

31. In summary it is alleged that in April 2002 Mrs Patricia Malcolm instructed the solicitor in respect of her commercial dispute with various parties, including trustees and bankruptcy, with respect to a property at Frenchs Forrest.

32. On 29 July 2004 the Respondent sent Mrs Malcolm an itemised tax invoice for work done which showed a balance amount held on account of $17,249.00. In fact the correct amount held on account was $14,251.00.

33. It is further alleged that the Respondent did not renew his Practising Certificate for the period from 1 July 2004 but on that date he delivered a brief on behalf of Mrs Malcolm to counsel.

34. There continued a course of correspondence between the Respondent, the Argyle Partnership Solicitors and the counsel who had been briefed.

35. Additionally, Mrs Malcolm lodged an application with the Supreme Court for assessment of the Respondents tax invoice. It is alleged that the Respondent failed to respond to letters which the Cost Assessor sent to him. Mrs Malcolm subsequently approached the Law Society for assistance and commencing in April 2006 correspondence sent by the Society to the Respondent was not responded to. This culminated in the issue, on 1 March 2007 of a Section 152 Notice, and it is alleged that the Respondent failed to respond to that notice.

36. Subsequently, on 27 April 2009 the Respondent paid the Law Society's Fidelity Fund $14,227.53 which was the amount agreed as having been paid out by the Fidelity Fund in relation to Mrs Malcolm, and on 28 April 2009 the Respondent answered the Section 152 Notice.

Complaints by Law Society of NSW and Rigging Construction Pty Limited

37. This detailed and complex complaint involves allegations of practise without a Practising Certificate, misappropriation, failure to inform the client of costs assessment application, failure to inform the client of District Court hearing, consenting to an indemnity costs order against the client without authority to do so, breach of undertaking to the District Court, wilful breach of Section 61, and failure to comply with Section 152 and Section 660 Notices, failure to attend a Court hearing on 22 August 2003 as a result of which the proceedings where struck out with costs against the client, permitting the client's case to be dismissed, failing to advise the client of that, negligently failing to arrange representation at court appearances, failing to advise the client of orders made against it, and consenting to a dismissal of the claim by the client without the client's knowledge or that of its principals.

38. The facts particularised in the Agreed Facts document run to some 35 paragraphs. Without seeking to minimise or omit consideration of any of those facts, it is clear from the particulars that, amongst other things the Respondent:

- failed to account properly for amounts paid by this client.

- failed to appear at a Directions Hearing in the District Court when the proceedings were dismissed.

- failed to advise his client of this fact and of an adverse costs assessment.

- failed to appear at a Directions Hearing on 30 April 2004 (this is alleged and agreed to have constituted negligence).

- appeared on behalf of the client before Rolfe DCJ on 20 May 2004 where His Honour ordered the Respondent to pay the defendant's costs of the day and the costs which were reserved on the earlier occasion within a month. The Respondent then obtained reimbursement in the sum of $500.00 for the payment he made to the defendant's solicitors.

- undertook legal work in respect of the matter and appearances before the District Court on occasions after 1 July 2004 during which period he did not have a current Practising Certificate.

- on 7 December 2004, again appeared on behalf of the client, this time before Garling DCJ and gave a personal undertaking to pay the hearing allocation fee and agreed to the client's action being dismissed and consented to indemnity costs being paid by it. This was done without the client's instructions and the Respondent failed to comply with his undertaking; and

- failed to comply with further Section 152 and Section 660 Notices.

39. The particulars note that the relevant Section 152 and 660 Notices were subsequently (in 2009) complied with. Additionally, all amounts owing to the client, and to other parties including counsel were paid in full with interest.

Law Society of NSW and Fiona Blundell

40. The Grounds alleged and admitted in respect these complaints were practising without a Practising Certificate, misappropriation, failure to comply with Section 152 and Section 660 Notices and misleading/lying to the client.

41. The admitted facts arose out of the Respondent acting for Mrs Fiona Blundell in relation to an employment matter when the Respondent failed to account properly to Mrs Blundell and misappropriated sums from her. Many of the Respondent's actions occurred after 1 July 2004, particularly in the period September 2004 to March 2005, when the Respondent did not have a current Practising Certificate.

42. It is also evident from the particulars set out in paragraph 7A particularly at sub-paragraphs (ix) to (xiv) that the Respondent falsely advised Mrs Blundell as to actions which he had allegedly taken in pursuance of her matter. He simply made up facts about the conduct of the matter when in fact none of the actions which he reported to his client had occurred.

43. Section 152 and Section 660 Notices were served on the Respondent in February and March 2007 and the Respondent failed to comply with those notices until April 2009.

Harding Group Investments Pty Ltd

44. The Grounds alleged and admitted in respect of this complaint were a wilful breach of Section 61 and a failure to comply with a Section 152 Notice.

45. Essentially the particulars, which are admitted to, detail a course of withdrawals by the Respondent from his trust account. The Respondent transferred from his trust account various amounts in payment of invoices which he had raised. It would appear that in many cases the Respondent prepared a bill for an excessive amount considering the amount of work he had done and his agreed hourly rate at that time.

46. Amounts were transferred very quickly from his trust account following the raising of many of these bills and certain transfers are conceded to have been in breach of Section 61.

47. The Respondent admits that these breaches were wilful.

48. A Section 152 Notice was issued on 18 June 2004. The Respondent answered it on 26 May 2009.

The Law Society's Evidence

49. Mr Boyd, Solicitor for the Law Society sought to tender at the hearing certain affidavits which were read and accepted into evidence. They comprised:

- an affidavit by Raymond John Collins sworn on 27 May 2010. Mr Collins is the Solicitor for the Council of the Law Society. This affidavit annexes reports from Dr John Roberts, which will be referred to below under the heading "Psychiatric Evidence".

- a further affidavit by Raymond John Collins sworn on 29 July 2008. This voluminous affidavit annexes relevant correspondence by and to the Law Society in relation to each of the complaints;

- an affidavit by Ken James Ramshaw sworn 5 October 2004. This is an affidavit of service.

- an affidavit by James Milne sworn 27 August 2008. Mr Milne is the Assistant Commissioner (Complaints) in the office of the Legal Services Commissioner. His affidavit annexes certain correspondence relating to some of the complaints and supports the allegation of a failure to honour an undertaking given on 23 June 2004, by Practitioner.

- an affidavit by Murray Robert Aldridge SC sworn on 16 March 2009. In this affidavit Mr Aldridge SC provides brief details of his dispute with the Respondent in relation to the client Elite Industries Pty Ltd and annexes relevant documentation.

- an affidavit by Sam Andrade affirmed on 18 March 2009. Mr Andrade was at all relevant times a director of Rigging Construction Pty Limited, one of the complainants. His affidavit annexes an affidavit which he swore and was filed in District Court proceedings commenced by Rigging Construction Pty Limited, No 2293 of 2002, which in turn provide details of the alleged actions of the Respondent in relation to that matter, as well as statements of account from the Respondent.

- an affidavit by Tracey Andrade affirmed on 18 March 2009. This affidavit annexes Ms Andrade's affidavit filed in the District Court proceedings commenced by Rigging Construction Pty Limited, No 2293 of 2002, and provides further details of the company's dealing with the Respondent.

The Respondent's Evidence

50. Mr Connell, Counsel for the Respondent sought to tender at the hearing certain documentary evidence, some of which was by way of affidavit. The tender was accepted. This evidence comprised:

- a report of Dr Stephen Allnutt dated 22 June 2010.

- a bundle of documents which comprise character reference affidavits. These will be discussed in further detail below but they comprise affidavits by Harley Lee Coombes, Project Management Consultant affirmed on 29 July 2009 and a further affidavit affirmed by Mr Coombes on 5 August 2009; Lindy Kearns, Chief Executive Officer affirmed 16 July 2009; Juris Ozols Solicitor sworn 29 July 2009; Frederick Theodore Gulson, Company Director affirmed 3 July 2009; Roger Kurt Mody Rasmussen, Barrister affirmed on 28 July 2009; and Peter Kintominas, Barrister affirmed on 31 July 2009.

- A study by the Brain and Mind Research Institute of the University of Sydney entitled "Courting the Blues".

- A study by Professor Ian Hickie entitled "Mental Health of Australian Lawyers".

- A paper on Mental Health Issues by the Honourable Robert McClelland, Attorney-General of the Commonwealth (comprising the Tristan Jepson Memorial Lecture 24 September 2009).

- Report by Dr Robert Hampshire, Psychiatrist dated 15 July 2009.

- Report by Dr Bruce Westmore, Psychiatrist dated 29 July 2009.

Further report by Dr Bruce Westmore dated 10 November 2009.

Further report by Dr Bruce Westmore dated 24 December 2009.

Four affidavits by the Respondent sworn on 4 February 2009, 29 July 2009, 27 May 2010 and 17 June 2010.

51. The psychiatric evidence will be commented on in more detail below. For completeness it should be noted that the evidence for the Law Society includes, as annexures to the affidavit of Raymond John Collins sworn 27 May 2010, further psychiatric reports from Dr John Albert Roberts; dated 30 August 2009, 23 November 2009 and 2 December 2009.

The Psychiatric Evidence

52. There was substantial psychiatric evidence adduced on behalf of the Respondent and, at the request of the Law Society, the Respondent was also seen by Dr John Roberts, Psychiatrist, who provided the reports referred to in the previous paragraph.

53. At the request of the Respondent's solicitors, the Respondent was also examined by Dr Stephen Allnutt, Forensic Psychiatrist, Dr Robert Hampshire, Consultant Psychiatrist, and Dr Bruce Westmore, Forensic Psychiatrist.

54. Each of the psychiatrists provided a comprehensive report.

55. The reports of the psychiatrists are consistent in identifying that the Respondent suffered from some form of psychiatric illness during the period in which the acts and omissions pleaded in the Grounds are alleged to have occurred.

56. It is clear from the psychiatrists' affidavits, supported by the affidavit of the Respondent sworn on 29 July 2009 that the Respondent was under a number of emotional pressures prior to and during the time at which the professional misconduct and unsatisfactory professional conduct is alleged to have occurred.

57. The Respondent's account of the relevant background in his affidavits, which is consistent with what he told the psychiatrists, is as follows:

- Following his admission to practice in 1978, the Respondent worked during the period 1978 to 1986 as a corporate in-house lawyer at several major companies, rising to the position of company secretary and general counsel of Lindeman (Holdings) Ltd and subsidiaries controlling the business of Lindeman's wines Leo Buring and other wine distribution operations worldwide, reporting to the then owner, Philip Morris Inc in New York.

- In 1986 the Respondent became the secretary and general counsel at Griffiths Bros, then known as Oilmet Investments Ltd Group.

- In 1988, his stepson Adrian, who was a promising paralympic athlete, committed suicide, following a partial lack of athletic success and a breakdown of his relationship with a girlfriend. Adrian died from a self-administered overdose of Panadol tablets and his body was discovered by his stepfather, the Respondent.

- Following Adrian's death, the Respondent's stepdaughter Katherine who was aged 14 left home with all her possessions without notice and moved in with her natural father. Two years later in 19991 when Katherine was aged 16 she developed anorexia nervosa and was admitted to Rivendell at Concord Hospital.

- At that time the Respondent's marriage was under severe strain and he says that the marriage never really recovered from this period and that stress on the marriage was increased by the fact that his wife's relationship with most of her family had broken down. By 1995 the Respondent says that he and his wife were living separate lives.

- In or about 1999 the Respondent's wife ceased working with her employer International Gaming Technology but did not for some time tell the Respondent that she had resigned. The Respondent says that from that time he was under increased financial pressure as the sole income provider but that his wife put pressure on him to work harder.

- It was from about this time that the Respondent started consulting Dr Ian Chung.

- The Respondent says that from this time he was having great difficulty coping at work and felt that he was taking on too much work. He deposes in his affidavit of 29 July 2009 that he had a significant amount in bad debts and was subject to various trust account inspections and as a result ceased running a trust account in about July 2001 because of the administrative burden it involved.

- The Respondent goes on to depose (in paragraphs 47 to 49 of his affidavit) that he was feeling extremely stressed and increasingly depressed from 1999 onwards. He found that he had increasing difficulties in concentrating and difficulty in sleeping. He would wake up in the early hours of the morning and had constant feelings of being unable to cope with the stresses and demands of his wife and the practice. He said that he had terrible feelings of sadness, panic attacks and thoughts of suicide.

- Significantly, when Dr Ian Chung suggested a regime of medication, the Respondent resisted these suggestions and did not see Dr Chung again. The Respondent says that this opposition to the use of medication was inherited from his father who was a prominent pharmacist, and that his father had constantly said that most medications were unnecessary. The Respondent also states (paragraph 49 of his affidavit of 29 July 2009) that his reluctance to take medications also stemmed from his experience in working with Mr Rene Rivkin who was heavily medicated.

- The Respondent further states in his affidavit evidence that from 2000 he started not to keep proper time sheets, often failing to record his activities during the day or at the end of the day. This led to difficulties with billing clients and recovering funds to keep the office going and paying a fulltime secretary.

- In July 2001 the Respondent and wife separated for the second and final time. At this stage he decided not to pursue a property settlement against his wife and reluctantly decided to allow his children (by the marriage) to stay with his wife. At that stage he was, he declares, without assets or savings. His wife effectively refused him access to his children and he feels that during 2001 and 2002 the family relationships led to him becoming more depressed and to feeling very isolated.

- In October 2002 the Respondent moved his office to an apartment in Francis Street, East Sydney and commenced to live at the office. In his own words:

"It was a depressing situation. It was a strange setup. The apartment was actually set up as an office. It had a small kitchen and bathroom. I would sleep on the sofa which converted to a bed in the evenings. The client sat on the sofa during the days while I sat at my desk. I never left work."

- The Respondent says that his feelings of depression and anxiety increased at this time progressively through the next 3 years.

- On 1 July 2004 the Respondent decided not to renew his Practising Certificate. He says that he had run out of funds.

- In September 2004, three months after his Practising Certificate had expired, the Respondent says that he moved into a townhouse in Hurstville which was owned by a friend of the family who was a 92 year old woman who had moved to a nursing home. He says that he lived in that townhouse surrounded by all her furniture clothing and possessions and that he slept in her bed. Although he felt extremely uncomfortable in that situation he felt that he had been forced into it.

- For a period of about 6 months he states that he locked himself up in this house, had no income, did not answer the phone or the door, lived on takeaway food and put on significant weight. He says at this time he received various communications from the Law Society concerning his previous conduct of his practice but that he was still depressed and felt that he was unable to answer these enquiries.

- The Respondent indicates that in late 2004 and 2005 he was working only for brief periods, for example about 2 days per month as a part time commercial manager with a commercial recycling company and also working to help his father make deliveries and undertaking chores for the family. Then from April 2006 and continuing he failed to comply with Notices from the Law Society, as pleaded by the Law Society.

- The Respondent feels that he was in a "rebuilding" phase and his depression was lifting from late 2006 until 2009. He gradually undertook more work and at some stage, apparently in 2008 was recommended to Oxygen8 Communications where at the time of swearing his affidavit of 27 May 2010 he was currently working in the area of telecommunications industry code compliance. The Respondent adds that he is also engaged in other part time work as a management consultant, working a total of about 35 hours per week.

58. On the basis the Respondent's personal history as related by him to the various psychiatrists consulted, it appears from the psychiatrists' reports that there is consensus at the time of the alleged professional misconduct and unsatisfactory professional conduct that the Respondent was suffering from a psychiatric illness which involved depression.

59. There is also considerable consensus, as a matter of psychiatric commentary by the doctors consulted, that many patients have major difficulties with their attention and concentration, with focusing on and completing tasks, during periods of depression. Dr Westmore, in his report dated 29 July 2009 notes that:

"Depressive illnesses can impair people's judgment, their perceptions of themselves in the world. Loss of motivation and drive is common and people can act in unexpected and uncharacteristic ways during the course of illnesses."

60. Dr Westmore confirms that many patients have difficulty in these circumstances with attention and concentration and with completing tasks, this affecting both their personal and professional lives.

61. Dr Roberts' summary in his report of 30 August 2009 includes the following opinions:

"It is my impression from the history given by Mr English and reinforced by further information provided in documentation, that during the period of time during which Mr English behaved inappropriately he was suffering from a serious mental illness, namely Major depression.

In addition to developing symptomatology of Major depression, Mr English was exposed to a variety of personal circumstances-it may be debated from the psychiatric viewpoint as to whether such circumstances were aetiological in relation to the development of his depression, or simply that his depression rendered circumstances that were not relevant to the genesis of his depression more difficult for him to manage.

Regardless of that theoretical debate, it is consistent with the presence of Major depression that significant cognitive impairment may occur and that associated with depression there is also associated with such a depressive illness inertia which may be severe. Mr English's description of being in bed for days on end and neglecting himself is consistent with such inertia.

In my opinion it can be stated on reasonable psychiatric grounds that Mr English in terms of the behaviour exhibited by him was dysfunctional by virtue of a Major depressive illness which resulted in a dysfunctional cognitive state, inertia and general attitude in which the offences relating to professional misconduct charges occurred."

62. The report by Dr Hampshire, whilst more general and narrative as to the Respondent's background, reaches similar conclusions. Dr Hampshire notes (on pages 11 and 12) that the issues for the Respondent worsened until by 2006 and 2007 he was unable to even open letters from the Law Society and return or read them as he was so traumatised and paranoid and agitated and depressed by his behaviour over the previous years. In Dr Hampshire's words:

"It was as if he put his head in the sand. He did not know he was unwell but he knew things were not going well for him."

63. Dr Hampshire concludes:

"In retrospect, it was almost certainly a period which seemingly went on for 5 or 6 years from around about 1999 to 2004 or 2005 or even 2006, in which he was profoundly depressed...(at paragraph 38) in his opinion, he suffered a nervous breakdown in around July 2005. I assume by that that he developed an acute or chronic depression though it may have been an exacerbation of his panic attacks. He was clearly depressed long before this and described episodic panic attacks which were present for that past number year or so... These went on for approximately one year around 2005 to 2006 or maybe into 2007."

64. In his report dated 24 December 2009, Dr Bruce Westmore excludes the possibility that the Respondent suffered from an anti-social personality disorder, on the basis that Dr Westmore does not believe his longitudinal life history was consistent with that particular condition.

65. For the purposes of his report dated 23 November 2009, Dr Roberts was asked to consider certain specific questions about the Respondent's activities and his psychiatric state.

66. For example the Law Society asked Dr Roberts to opine as to whether the form of incapacity or illness which befell the Respondent at the relevant times was such that he was incapable of forming a rational view as to his conduct or whether, although he might have been able to do so, he deliberately chose the course of conduct he subsequently undertook.

67. Dr Roberts answered in the following terms:

"I am of the view that if Mr English was able to undertake certain work of a legal nature, the severity of his depression would have substantially lessened. I believe that... at the time of his (incapacity) what he was doing was known by him to be wrong, and his depressive illness may have been a factor in generating an attitude of indifference."

68. However Dr Roberts goes on to state:

"It is very difficult, if not impossible, at a point subsequent to a series of events such as those which has brought Mr English before (the Tribunal) to determine exactly what was in his mind at that time."

69. That, of course, is a reasonable caveat on all the psychiatrists' diagnoses, because none of them had the opportunity to examine the Respondent in the period during which the alleged professional misconduct occurred.

70. However, on the basis that the Respondent's account of the relevant period was consistent as between psychiatric consultations, and that it is reflected in the affidavits sworn by the Respondent in these proceedings (particularly his affidavit of 29 July 2009) the Tribunal is inclined to accept the basic accuracy of that account.

71. This does not entirely remove the problem of potential ex post facto diagnosis, and of course the psychiatrists are careful to note that, but it does add considerable weight to the psychiatrists' opinions as to the cause of the Respondent's problems during the relevant period of professional conduct.

72. Significantly Dr Roberts' concluding opinion is as follows:

"On reasonable psychiatric grounds I would be of the view that:

(i)Assuming the history given by Mr English, he was suffering from a serious mental illness namely a Major depression which had an impact on his capacity to exercise judgment but which did not abolish his capacity to distinguish right from wrong ...

(v)his dysfunctionality can be accounted for on the basis of a degree of cognitive impairment due to his depressive illness..."

73. There is area of difference between the views of the psychiatrists, particularly between Dr Roberts and Dr Westmore, as to whether the Respondent can in the future be permitted to act "independently"; that is, the nature and extent of any restrictions which should be placed on the Respondent's ability to resume legal practice.

74. This area of controversy is better dealt with when considering the appropriateness of Orders in respect of the Respondent.

Character Evidence

75. As noted under the heading "The Respondent's Evidence", the Respondent has produced in evidence several affidavits which depose as to his character. Each deponent of these affidavits says that he or she has read each of the eight section 152 or section 660 Notices and also the Respondent's responses which are exhibits to their affidavits.

76. Many of the affidavits (for example the affidavit of Harley Lee Combes), refer in detail to the deponent's knowledge and impression of the Respondent prior to the relevant professional period of conduct and to his personal difficulties, but also to their impressions as to his character following his attempts at rehabilitation.

77. Mr Combes for example deposes that:

"he seems to be back to being his old self, which is cheerful, chatty and energetic. In one thing he has changed; he seems to be more measured.

My view of Martin's character is and has been that he is someone who genuinely loves the law and the practice of the law, and has done it not just for the money or prestige but really enjoys it. He is very competent. He has an ability to empathise with clients' needs and an understanding of clients which is not common."

78. This line of impression is confirmed in the affidavit of Lindy Kearns who deposes that she joined the Respondent to form the firm of English Kearns Combes and Co in about 1995. Ms Kearns deposes that during her period of practice at that time she was impressed not only with the Respondent's integrity but with his vast litigation experience. She says that he was at all times a most considerate Practitioner, very generous with his time and commitment towards ensuring the best possible outcome for clients. Significantly, Ms Kearns has had experience working with the Respondent more recently, in that he provided clerical and management consultancy services. She deposes that in her recent dealings she has found the Respondent to be as knowledgeable and efficient as ever.

79. Mr Frederic Theodore Gulson, company director, deposes that prior to his difficulties the Respondent was a careful, analytical, thoughtful lawyer who operated at a sophisticated level. Mr Gulson says that he has had more recent contact with the Respondent and that:

"My impression of Martin having observed him on those occasions now is that he is like his old self again, like twenty years ago."

80. Mr Roger Rasmussen of Counsel deposes as to the Respondent's extensive litigation experience including involvement and running of most complex commercial cases. He further deposes as to his knowledge of the Respondent's personal difficulties and says that he has seen the Respondent in the recent past and:

"He seems to be back to being his former self."

81. Mr Peter Kintominas of Counsel deposes that the Respondent's behaviour during the period of his difficulties was out of character. He says he believes there is a fundamental honesty to the Respondent and that having spoken to him on some occasions in recent months his observation is that Practitioner appears to be focussed and happy.

82. The Law Society did not object to any of this character evidence and indeed most helpfully provided a short memorandum as a guide to the character affidavits.

83. In the circumstances the Tribunal gives the character affidavits substantial weight.

Law Society's Submissions on Orders

84. Mr Boyd, solicitor for the Law Society, addressed the Tribunal in support of the amended supplemental orders as set out in the Amended Application (as set out under the heading "The Parties' Cases as Pleaded Prior to Hearing").

85. Mr Boyd indicated that in his experience he had never seen a solicitor repay monies in full, and make other recompense to affected clients, the way that this Practitioner has.

86. Mr Boyd submitted to the Tribunal that considerable care has been taken by both parties in framing appropriate orders and that the Law Society has given considerable consideration to the issue of Practitioner's continuing fitness to practice. The decision to amend the Application to remove the request for a striking off order would not have been taken lightly.

87. Mr Boyd explained that in the Law Society's view the evidence shows that the Respondent's mental condition has improved dramatically particularly in the last eighteen months. In Mr Boyd's words:

"He has come a long way".

88. Mr Boyd conceded that no set of orders can guarantee fully that any particular Respondent will not come before the Tribunal again. The Tribunal is well aware of the cases involving "repeat offenders". However, it is the Law Society's considered view that it is highly unlikely that the present Respondent will fall into this category.

89. Mr Boyd said that the Law Society had carefully considered the character affidavits tendered by the Respondent, and noted that considerable care had been taken to ensure that each deponent of those affidavits understood the background and nature of the Law Society's complaints including in particular the failure to comply with the section 152 and section 660 Notices, and the reasons that those Notices were issued.

90. The Law Society also noted that the Respondent had expressed considerable contrition for his actions.

91. The Tribunal notes that the Respondent makes specific contrition for his various defaults during his period of difficulty in paragraphs 90 to 93 of his affidavit of 29 July 2009. Moreover, both the Law Society and the Tribunal have noted that the Respondent concludes that affidavit by stating as follows:

"96. I am endeavouring to rebuild my life. I believe that I have passed by the period of time when my state of mind caused me to misconduct myself, and hope to be able to re-establish my standing in the profession.

97. I accept that in order to be permitted to do so, I may be subject to various requirements as to retraining and supervision."

92. Mr Boyd referred the Tribunal to the cases of NSW Bar Association v Howen (no. 2 [2003] NSWADT 235; Law Society of NSW v Parling [2008] NSWADT 344; and Law Society of NSW v Kay [2009] NSWADT 39.

93. Mr Boyd further contended that this was not an appropriate matter for the imposition of a fine on the Respondent. The Law Society would contend that the Respondent repaid all the monies which were in question with interest and that those actions are most unusual. In somewhat similar cases, a fine was not considered to be necessary.

94. The Law Society supported the orders as set out in its Amended Application and as agreed between the parties.

Respondent's Submissions on Orders

95. Mr Connell of Counsel made written submissions as to the Orders and also addressed the Tribunal. He relied upon the fact that each of the examining psychiatrists found that the conduct the Respondent, involving serious misconduct as it did, was a result of profound depression, rather than bad character.

96. Mr Connell relied heavily on the character evidence in submitting that the Respondent's character and skills as a solicitor were, before his illness and now, of a high order.

97. Mr Connell also noted that expert evidence particularly the psychiatric evidence does not suggest any particularly high prospect of a recurrence of the misconduct in question with this Respondent. It is submitted that the very particular family circumstances which gave rise to many of the Respondent's problems no longer exist and are well behind the Respondent. Mr Connell submitted that, to the contrary, the Respondent's situation on a personal level is now quite clearly very good. The psychiatrist and particularly Dr Allnutt in his report dated 22 June 2010 confirm that the Respondent now presents as mentally well.

98. Mr Connell submitted that the imposition of a fine would serve no useful purpose and indeed would be counter productive. Mr Connell asks the Tribunal to note that the repayments were made by the Respondent to clients as promptly as circumstances allowed and included interest. In relation to the Respondent's own responsibilities for his problems, particularly related to his reluctance to take medication, Mr Connell submitted that this was not done out of some stubbornness or petulance, but rather that it was based on logical (although probably mistaken) grounds of objection and the influence of the Respondent's father, a noted pharmacist.

99. To the extent that the misconduct by the Respondent needs to be "marked-out" to the public and the profession as a whole as unacceptable, Mr Connell submitted that that a fine was not the appropriate means of achieving that.

100. Mr Connell conceded that there were no grounds that he could object to the Tribunal making an order for costs against the Respondent.

Psychiatric Opinion as to Restrictions on Practice

101. As noted briefly under the discussion of psychiatric evidence above, there is some area of difference between some of the psychiatrists as to whether the Respondent should be permitted in future to act "independently"; that is, the proper nature and extent of restrictions which, from the psychiatrists' expert point of view might be necessary to ensure that the Respondent conducts legal practice "within the rules".

102. In particular there is some area of difference between Dr Westmore and Dr Roberts in this regard.

103. The starting point is that generally Dr Roberts and Dr Westmore concur that the Respondent was at the relevant time suffering from a psychiatric illness namely Major depression and that generally the possibility that the Respondent at that time suffered from (or now suffers from) any antisocial personality disorder has been discounted.

104. However, Dr Roberts in his report dated 23 November 2009 expressed the view that the Respondent should not be permitted to act "independently". Dr Roberts goes on to opine:

"I do not consider that he should be permitted to formulate any opinion or course of action that has not been signed off by a colleague. I do not consider that the Respondent should be permitted to act in a manner independently of another colleague...

I considered (the Respondent's) need for supervision would be close supervision to the extent that no work undertaken by him would in essence leave the office without the imprimatur of a senior colleague."

105. Dr Westmore, in his report dated 24 December 2009, believes that this sort of condition if imposed upon the Respondent would be far too restrictive. He says that such a restriction might be appropriate were he still psychiatrically unwell, but he is not. Moreover, Dr Westmore suggests that the very conditions suggested by Dr Roberts as restrictions would probably be detrimental to the Respondent's long term mental health. In Dr Westmore's view, the Respondent, provided he remains well, should be able to work independently of other legal Respondents. Dr Westmore goes so far as to opine that although it might be appropriate for the Respondent to continue to attend a treating psychiatrist he believes that the Respondent should be able to attend conferences alone with clients and attend at court alone whilst instructing counsel.

106. These views were put back to Dr Roberts who stated in the correspondence that he maintains his position.

Tribunal's Findings as to Professional Misconduct and Unsatisfactory Professional Conduct

107. Upon consideration of the evidence and in light of the concessions made by the Respondent, as reflected in the Agreed Facts document, the Tribunal finds that each of the nineteen grounds of alleged professional misconduct pleaded in the Amended Application is made out in accordance with the particulars admitted to and summarised in the Agreed Facts; and that the one ground of unsatisfactory professional conduct as stated in the Amended Application, and as conceded in the Agreed Facts document is also made out. In summary, the Respondent is guilty of professional misconduct and unsatisfactory professional conduct as particularised in the Amended Application and as conceded in the Agreed Facts document.

Tribunal's Decision on Orders

108. Notwithstanding the concessions made by the Respondent, the agreement by the parties as to concessions, and the detailed drafting of the proposed orders as reflected in the Amended Application and the Agreed Facts, the Tribunal believes that it must give independent consideration to what orders are appropriate here.

109. The Tribunal takes note of the care which has been taken by the parties and their legal representatives in consulting as to the appropriateness of particular orders and in formulating the Amended Application (as reflected in the Agreed Affects) ongoing supervisory orders. The Tribunal believes that the more conservative approach favoured by Dr Roberts as to ongoing supervision is preferable in this case, and to that extent at least the Tribunal supports the nature of the ongoing supervisory orders agreed to between the parties.

110. Upon further analysis and detailed consideration by the members of this Tribunal, we believe that the ongoing orders proposed are in themselves appropriate and that they should be made.

111. The Tribunal does not believe that in all the circumstances this is an appropriate matter for the striking off or suspension from practice of the Respondent.

112. As is stated above, the Respondent's account of his activities during the period of his professional misconduct was consistent as between psychiatric consultations and is the same basically as his account of that conduct as reflected in his own affidavits, particularly his affidavit of 29 July 2009. The Tribunal is inclined to accept the basic accuracy of that account.

113. It is a sad story.

114. As contended by Mr Connell on behalf of the Respondent, the disastrous effects of the disease of Major depression on the legal profession are only beginning to be realised. This fact is emphasised in the booklet tended in evidence, "Courting the Blues" published by the Brain and Mind Research Institute of the University of Sydney and further supported by the studies undertaken by Professor Ian Hickie and submitted to assist the Tribunal.

115. The Respondent appears to have been suffering from an illness which he was not aware of, in an environment and at a time in which a basic understanding of that illness by his professional colleagues and, to some extent by medical professionals, was at a basic level. That is what makes the Respondent's story a sad one.

116. It is true that the Respondent rejected some early attempts at medical intervention and in particular that he totally rejected the need for any form of medication. For some substantial period, during which many of the acts complained of occurred, he went without medical attention at his choice. In that sense, he brought many of his problems upon himself.

117. However, any sympathy that the Tribunal might feel for the situation in which the Respondent found himself, must be measured against the seriousness of his acts against professional misconduct. The Respondent's actions during the relevant period fall within the most serious category of professional misconduct. He lied to and misled the District Court of New South Wales. He lied to and misled his clients. He placed his clients' at positions, including in litigation, in severe jeopardy, without instructions. He undertook many actions whilst not holding a current Practising Certificate. He breached undertakings. He misappropriated trust funds and failed to account, and he failed to comply with proper notices under section 152 of the 1987 Act, and section 660 of the 2004 Act issued by the Law Society.

118. However, the Tribunal does take into account the extremely detailed psychiatric evidence which has been produced and the care which has been taken by the psychiatrists in seeking to explain the Respondent's behaviour. The Tribunal also gives substantial weight to the character evidence, particularly the affidavits which seem to establish that not only has the Respondent recovered from his mental illness but that he appears to be a confident and happy man, and that the deponents of those character affidavits believe, for the most part, that he is capable of achieving the high standard of legal practice which he was able to achieve in the early years of his career.

119. The Tribunal believes however that the serious nature of the Respondent's actions must in some way be "marked out" to the profession as a whole and to the public as falling very substantially short of the standard of behaviour expected by legal practitioners in this State. The question is how this can properly and with justice, be "marked out".

120. The Tribunal believes that, at minimum, the conduct must be marked out by the imposition on the Respondent of a public reprimand. The Tribunal has given substantial consideration as to whether a fine should be imposed on the Respondent as part of this marking out process. Great weight is placed by the Tribunal on the submissions made both by counsel for the Respondent and the solicitor for the Law Society in this regard. Given the proposed substantial restrictions on the Respondent's future professional activities, for a considerable time, and the imposition of a public reprimand, and particularly in light of the Respondent's expressed contrition and particularly his repayment in full of affected Clients, with interest, the Tribunal believes that the important function of marking out such a behaviour is not achieved by the imposition of a fine in this case.

121. Mr Connell makes no submissions in opposition to an order for costs and costs must be ordered against the Respondent.

Orders

122. Accordingly, the Tribunal orders:

1The Respondent be publicly reprimanded.

2(a)The Respondent to be issued with a Restricted Practising Certificate and to be supervised by a Practitioner with either an Unrestricted Principal or Non-Principal or Government or Corporate/Non-Lawyer Entity, Practising Certificate;

(b)The Respondent not to become a Solicitor/director of any incorporated legal practise.

(c)The Respondent to continue consulting a practising psychiatrist of the Respondent's choice ("the Respondent's psychiatrist") and approved by the Manager ("the Manager") for the time being of the Professional Standards Department of the Society who is willing to provide reports in terms of (d) hereof until the expiration of the Period and subject to the terms of paragraph (d) hereof.

(d)The Respondent to provide authorisation in writing to the Respondent's psychiatrist in accordance with these Orders, to permit the psychiatrist to report on the consultations with the Respondent to the Manager, such reports to commence three (3) months after a Practising Certificate is issued to the Respondent and every six (6) months thereafter, and at such other times as the Respondent's psychiatrist may be of the opinion that matters need to be brought to the attention of the Manager.

(e)The Respondent to bring to the attention of his employer and the Respondent's psychiatrist the Tribunal's Determination in these proceedings and permit the Manager in his or her discretion, to confirm with the Respondent's Employer and psychiatrist that he or she is fully conversant with such Determination.

(f)The Respondent to provide authorisation in writing to his employer in accordance with these Orders, to permit his employer to provide such information to the Manager as required by the Manager at such times as the Manager deems fit.

(g)After the expiry of the period, the Respondent not be permitted to hold an unrestricted Principal Practising Certificate or become a Solicitor/director of any incorporated legal practice unless such application is accompanied by a report from the Respondent's psychiatrist certifying the Respondent's medical and psychiatric fitness to practise in such capacity.

(h)The Respondent not to have access to or to be signatory to or operate any account conducted by his employer or client of his employer with any bank or financial institution.

(i)The Respondent not to have access to mail received in the Employer's office other than as provided to him by his Employer.

(j)The Respondent's employment at all times to be under the direct supervision of his Employer. Should that person be absent from the practice in excess of 3 business days, that supervision to be undertaken by another Solicitor either with an unrestricted principal or non-principal or government or corporate/non-lawyer entity, Practising Certificate who has been made aware of the conditions upon which the Respondent is permitted to work in the practice.

3The Respondent pay the Applicant's costs of these proceedings.

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Amendments

30 Mar 2011 Text omitted, order 2 should readFor a period of 3 years during which the Respondent holds a Practising Certificate ('the Period'), any Practising Certificate so held shall be endorsed with the following conditions : Paragraphs: Paragraph 122, Order 2