Former Marsdens partner struck off the roll of solicitors in NSW

Here’s a decision from the NSW Court of Appeal, apparently exercising original jurisdiction, in which a former partner of Marsdens in Campbellfield was struck off the roll by consent for receiving secret commissions of $180,000 amongst other things, including deceiving the investigation into that conduct: Prothonotary of the Supreme Court of NSW v Alcorn [2007] NSWCA 288. The analysis of whether the solicitor was a fit and proper person was as follows:

’64 The finding that a practitioner has been guilty of professional misconduct does not automatically lead to a finding that the practitioner is not a fit and proper person to remain on the roll of legal practitioners (Ziems v The Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279). Rather an order for the removal of the legal practitioner’s name from the roll is the final consideration where a finding of professional misconduct has been made (NSW Bar Association v Smith (NSWCA unreported 9 May 1991 at [37]).

65 Some guidance on this question is provided in Ziems as follows:

“The conviction is not irrelevant: it is admissible prima facie evidence bearing on the ultimate issue, and may be regarded as carrying a degree of disgrace itself. But, in the first place, its weight may be seriously affected by circumstances attending it, and it must be permissible to look at the conduct of the trial. And, in the second place, it is on what the man did that the case must ultimately be decided. And we are bound to ascertain, so far as we can on the material available, the real facts of the case.” (Fullagar J at 288) and:

“The vital question, as I have already said, and as these considerations show, is whether the conduct of the person concerned, whether it constitutes an offence against the law or not, has been such as to show that he is unfit to remain a member of the bar.” (Taylor J at 303)

66 In this case not only has the opponent been convicted of criminal offences, but the offences are of such a disgraceful kind and so concern his capacity to act as a legal practitioner, that he is not a fit and proper person to remain on the roll. In addition it is not only the conduct the subject of the criminal convictions which demonstrates the necessity for removal from the roll, but the other examples of dishonesty, lack of candour and failures of professional duties to which has been made.

67 In determining the question of fitness to remain on the Roll, as with the question of “good fame and character”, the focus of the inquiry is upon fitness as at the time of the application (Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 at [17]). In making such a determination the important factor is the nature and extent of the past conduct and demonstrated dishonesty.

68 In this case the systematic course of dishonest conduct, albeit that it occurred in 2002 and over a relatively short period, is such that it is incompatible with the degree of honesty and integrity required for legal practice (NSW Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279, NSW Bar Association v Somosi [2001] NSWCA 285; (2001) 48 ATR 562.) This is particularly so when the course of conduct involved deliberate deception and dishonesty, including attempts to deceive investigating authorities.

69 A legal practitioner is required to be faithful to the oath of office, the courts, fellow practitioners and clients and as such, considerable trust is placed in him or her. The conduct of the opponent has demonstrated aspects of his character that are “fundamentally inimical to fitness to practice as a legal practitioner” (Barwick v Council of the Law Society of NSW [2004] NSWCA 32 at [119]). In my opinion these matters establish that he is not a fit and proper person to discharge the responsibilities of practising as a legal practitioner.

70 The final consideration arises from the nature of these proceedings. Such proceedings are not punitive in nature and it is the protection of the public and the maintenance of proper standards within the legal profession which are the ultimate considerations.

71 In considering an order for the removal of a legal practitioner’s name from the Roll, it is clear that the deterrent aspect of such an order both in terms of the individual practitioner and others who may be tempted to engage in like conduct, must be considered. This deterrent aspect is consistent with both the protection of the public and the maintenance of proper standards within the legal profession.

72 For those reasons I am of the opinion that a declaration should be made that the opponent is not a fit and proper person to remain on the Local Roll of Lawyers of the Supreme Court of NSW. I am also of the opinion that an order should be made that the name of the opponent be removed from the Local Roll of Lawyers of the Supreme Court of NSW.

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