Updated post (25 July 2014): The answer to the question posed by the original post is: yes, he will be struck off. Here are the reasons: Council of the Law Society of NSW V Andreone (No2)  NSWCATOD 81. His failure to make submissions on the question would not have assisted. On the question of whether monies received by solicitors from clients for payment of counsel’s fees are trust monies, and on whose behalf they are held, see Legal Services Board v Gillespie-Jones  HCA 35 about which Melbourne University’s Associate Professor Bant’s learned commentary may be found here.
Original post (published as ‘Will Solicitor Who Failed to Pay Counsel’s Fees be Struck Off?’): The Law Society of NSW wants a solicitor who persistently delayed in paying counsel struck off. The NSW equivalent of VCAT has found the professional misconduct established: Council of the Law Society of NSW v Andreone (No. 1)  NSWCATOD 49, and a hearing on sentencing is pending. In this case, clients had paid bills which included claims by the solicitor for counsel’s fees by electronically depositing monies into the firm’s office account — probably at the firm’s direction, as the Tribunal found.
The Tribunal found without reference to authority that those payments were trust monies to the extent that they satisfied the claims by the solicitor for counsel’s fees, the solicitor not having paid the counsel at the time of their receipt. In other words, the solicitor held the monies on trust for the barristers. But it seems that the Tribunal considered the solicitor’s misappropriation of trust monies and the failure to pay the fees as separate instances of professional misconduct. In other words, the mere failure to pay the fees, given its intentionality and persistence, amounted to professional misconduct. This is what the Tribunal said: Continue reading “NSW solicitor who failed to pay counsel’s fees struck off”