Disciplinary prosecutors must specifically plead dishonesty

In Council of the Law Society of NSW v WDC [2011] NSWADT 83, NSW’s Bureau de Spank rejected a submission of the Law Society to the effect that it should make findings of misappropriation (a necessary element of which is dishonesty) which the Law Society said it had impliedly alleged in the charge.  ‘Nonsense!’ said the Bureau:

‘As the above outline indicates, the Grounds stated in the Application alleged misappropriation in the context of only three matters: Daude, Gibki and Laczny. But Mr Stitt argued that a claim of misappropriation was made implicitly in a number of other matters in which the Solicitor withdrew funds to which he was not entitled from a trust account: for example, Ida Potier, Davidson, Crowe, Maguda, Milkow, Obolska and Pugliese.

We agree, however, with a submission by Mr Lynch that the only matters in which we may properly make a finding of misappropriation are those in which the Law Society has alleged it. This follows, in our opinion, from the decision of the High Court in Walsh v Law Society of New South Wales (1999) 198 CLR 73: see in particular the judgment of McHugh, Kirby and Callinan JJ at 94-95.’

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