Discipline & Bondage … From Queensland to NSW, appeal judges have been scratching their noggins trying to work out what’s fit and proper … The extent to which past misconduct affects current properness … A practitioner who, as a teenager, accessed child porn is F&P, while a solicitor who helps himself to a temporary loan from his clients’ pool of cash, is not … Emily Meller and Kate Lilly reporting
A man convicted of accessing child pornography has been allowed admission as a lawyer, the Queensland Court of Appeal finding that he is still fit and proper.
Margaret McMurdo, Philip Morrison and Martin Burns delivered joint reasons, raking over the meaning of fit and proper and applying it deftly to the offence in question.
Fit and proper
The court had to decide whether the heavily anonymised practitioner was a “fit and proper” person based on the “suitability matters” listed in s.9(1) of the LPA.
The two relevant matters were:
- whether the person is of good fame and character, and;
- whether the person has been convicted of an offence.
Since the applicant was convicted, the court then had to consider:
- the nature of the offence;
- how long ago the offence was committed; and
- the person’s age when the offence was committed.
The court has discretion to decide that a person is fit and proper if one of the suitability matters applies. This all depends on the circumstances.
Offences
The applicant was charged just after his 17th birthday with one count of transmitting child pornography, two counts of accessing child pornography, one count of making child pornography available and one count of possessing child exploitation material.
The court said that it was a “relatively small number of images and movie files compared with the number usually encountered in offending of this nature”. Also, he accessed the files but did not save them.
He was fined $5,000 and put on a good behaviour bond for 12 months, and had his name placed on the child protection register. He also had to get counselling – which he “wasted no time” in seeking.
The psychiatrist’s report, made in May of this year following a year of treatment, said the applicant’s prognosis was “excellent”, and that it is extremely unlikely he will reoffend.
The LPAB said “no”
The admission board refused him a ticket, even though it accepted that the convictions of themselves were not sufficient grounds to do so.
Instead, the board said that having a lawyer whose name is listed on the child protection register “could adversely affect the public’s perception of the legal profession”.
His name is going to come off the register in October 2016, and the board thought he should wait until then before he is admitted.
Appeal findings
Taking into consideration the “nature of the offence”, that is “the real facts of the case” (Ziems v the Prothonotary of the Supreme Court of New South Wales), the applicant was allowed through the front door.
The CA found that the offences were “at the lower end of the scale of seriousness for offending of this type”.
The applicant had complied with the authorities before, during and after the criminal proceedings and had made an “impressive” rehabilitation. The appeal judges said:
“It cannot be concluded that the convictions tell against his ability to practise as a lawyer. Nor do they mean that the applicant is not currently of good fame and character.”
It was accepted that admitting someone listed on the child protection register wouldn’t be a good look for the profession. But, it was pointed out that the register isn’t open to the public.
Being listed on a secret child offenders register, apparently, is far less offensive to the public’s perception.
At any rate, the law’s position is clear:
“As the High Court’s decision in A Solicitor v Council of the Law Society of New South Wales (NSW) (2004) 216 CLR 253 indicates, even an individual convicted for the sexual abuse of minors can, albeit in a very small number of conceivable circumstances, remain a fit and proper person to practise law in this country.”
In the matter of an application for admission as a legal practitioner by MCF
Whenever the Prothonotary comes out of the cupboard, invariably something spicy is at stake. And so it was in this case, with a Sydney solicitor who lifted over $1 million from his clients being struck from the jam roll.
James Dimitrious pleaded guilty to 16 criminal charges in 2013, and received a sentence of two-and-half-years porridge.
The NSW Supreme Court then had the testing task of determining whether Dimitrious was a fit and proper person to practice.
The swindle
Dimitrious was admitted to the roll in 1993. Between 2007 and 2011, he ran a legal practice in Earlwood called James Lawyers Solicitors & Attorneys.
In January 2011, an external investigator discovered that trust money was missing from the general trust account. A receiver appointed by the NSWSC discovered that between December 2009 and November 2010 at least $356,000 had been transferred from the TA into Dimitrious’ personal account.
Further investigations revealed the solicitor had helped himself to $919,500 from the trust account, between July 2008 and January 2011.
After the receiver commenced proceedings, Dimitrious coughed-up $1,094,192 for the fidelity fund.
On February 20, 2013, Dimitrious pleaded guilty to 16 criminal charges, including one count of making a false document to obtain a financial advantage, six counts of using a false instrument, six counts of fraudulent misappropriation, and three counts of dishonestly obtaining a financial advantage by deception.
Dimitrious’s psychiatrist reported he was suffering from a depressive illness and had always intended to return what he had plundered. The report read:
“Mr Dimitrious said that he transferred about $850,000 to cover a temporary inability to finance his loans, which he intended to fully repay after refinancing or selling property. He said that he had exhausted all other avenues of obtaining credit at the time and the alternative was bankruptcy, which would have greatly disadvantaged the clients who relied on him.”
Notwithstanding these noble intentions, the Prothonotary sought declarations that Dimitrious “has been guilty of professional misconduct, that he is not of good fame and character and that he is not a fit and proper person to remain on the roll”.
Presently not a fit and proper person
Justice Tony Meagher delivered the NSWCA’s judgment.
Dimitrious had not contested any of the orders. Nonetheless, Meagher found it “remained necessary for the court to satisfy itself that it is appropriate to make the orders and declarations sought”.
In a brief judgment, HH observed:
“Over a period of almost three years the respondent misappropriated clients’ funds and sought to conceal that conduct by the creation of false documents and accounts. His doing so was careful, planned, not isolated and no doubt targeted clients who were least likely to discover what was going on. That conduct only came to an end when a junior solicitor in the practice notified the Law Society of a shortfall in the general trust account …
The respondent’s conduct was inconsistent with his possessing qualities of honesty and integrity and a willingness to comply with the law. It also reveals a preparedness to prefer and pursue self-interest and financial gain at the expense of those qualities, which is incompatible with the standards and behaviour required of a legal practitioner. In these respects Mr Dimitrious’ conduct reflects adversely on his character and, accordingly, on his fitness to remain on the roll.”
Considering the conduct in question had occurred over four years ago, it was necessary to consider whether Dimitrious was presently not a fit and proper person to practise.
Meagher noted some mitigating factors were considered in the sentencing, including Dimitrious’s depressive illness and his cooperation in making full reparation of the stolen monies.
Despite this, HH held:
“None of these matters is relied on in support of a submission that the respondent has reformed his character to such an extent that he is presently a fit and proper person to remain on the roll. Specifically, it is accepted that his criminal and other misconduct still speaks as to his present character and fitness to practise. Nor could it be suggested otherwise when the respondent, because of his circumstances, is not able to say that by his conduct over a number of years since his offending he has demonstrated that he is in relevant respects a ‘different man’.”
Dimitrious was ordered to pay the Prothonotary’s costs.
The Prothonotary of the Supreme Court of New South Wales v Dimitrious