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Chief Registrar v Vosarogo - Judgment on Sanctions [2017] FJILSC 12 (29 September 2017)

IN THE INDEPENDENT

LEGAL SERVICES COMMISSION

No. 002 of 2016

BETWEEN:

CHIEF REGISTRAR

Applicant

AND:

VILIMONE VOSAROGO (AKA FILIMONI WR VOSAROGO)

Respondent

Coram: Dr. T.V. Hickie, Commissioner

Counsel for the Applicant: Mr. A. Chand

Respondent: Ms. B. Malimali with Mr. Vosarogo

Dates of Hearing: 14^th June 2017, 18^th and 19^th September 2017

Date of Judgment: 29^th September 2017

JUDGMENT ON SANCTIONS

1. Introduction

[1] This is a judgment as to the sanctions to be imposed upon a legal practitioner following his pleading guilty to four counts of professional misconduct amounting to a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence. In a nutshell, for the audit period of 2015 (i.e. 1^st October 2014 to 30^th September 2015), the Respondent legal practitioner negligently failed to ensure that the accounts of four of his clients were not overdrawn in a combined sum of $14,826.21. There is no suggestion of fraud by him.

[2] On my calculations, the Respondent has now been waiting 18 months and 29 days up until today for a resolution of this matter since the Chief Registrar refused to issue him with a practising certificate as from 1^st March 2016. It is now just on 12 months since the proceedings commenced in the Commission with an initial application containing four Counts. An Amended Application was then filed containing 13 Counts. Finally, there was the filing of a Further Amended Application containing four Counts to which the Respondent pleaded guilty. The issues raised have required a major interlocutory judgment, as well as four ex tempore judgments. Meanwhile, the Respondent has had various periods without a practising certificate (in effect, suspended) and other periods working under a restricted practising certificate with strict conditions.

[3] Arguably, this is the first case of its type to come before the Commission on the sole issue of where a legal practitioner has been negligent in the operation of their trust account to the extent that it is beyond being a minor matter but not to the extent that it has required the practitioner’s name to be struck from the Roll. As for similar matters prior to the formation of the Commission, Counsel for the Respondent legal practitioner advised during the sanctions hearing that “before the ILSC came in we know cases from the Law Society but they are nowhere recorded”. Hopefully, the above may assist in explaining the necessity for the detailed judgment that is to follow, as well as providing a guide for both “prosecution” and “defence” should similar matters arise in the future.

2. Background

[4] According to the written submissions of Counsel for the Respondent legal practitioner, the Respondent was born on 27^th September 1976. This means that on Wednesday of this week he turned 41 years of age – an important stage in one’s life and career. Further, the Respondent is married, is the father of six children and is also responsible for the care of his elderly mother.

[5] In relation to his legal career, I have been advised that the Respondent commenced work as a Barrister and Solicitor of the High Court of Fiji in late 1999. After working for the Office of Director of Public Prosecutions from November 1999 until September 2003, he was then appointed as the Manager Legal Service for the Land Transport Authority. In June 2006, he was appointed for a period of three years as the Director of the Legal Aid Commission. In June 2010, he opened his own law firm, Mamlakah Lawyers based in Suva. He has been the sole principal of that firm ever since. In addition, he has also been the legal adviser/representative to a number of community organisations in Fiji: the Fiji Rugby Union, the Fiji National Rugby League, the Scripture Union in Schools, the Fiji Teachers Registration Board, as well as a past Council Member of the Fiji Law Society.

[6] The Respondent has also been the sole trustee of his firm’s trust account. For the audit period of 2015 (i.e. 1^st October 2014 to 30^th September 2015), the firm’s trust account was overdrawn $14,826.21. After an investigation, it was revealed that four ledgers in the firm’s trust account were overdrawn as follows:
(1) Mamlakah Health & Safety’s account was overdrawn by $14,090.17;
(2) Eugenia Guruyawa Foon’s account was overdrawn by $715.89;
(3) Janendra Murti’s account was overdrawn by $10.10;
(4) Lai Hui v Changlin and Wang Xiutu’s account was overdrawn by $10.05.

[7] When the above came to light following the yearly external audit of the Respondent firm’s trust account, the Respondent admitted that the firm had a poor manual accounting system. He personally repaid into the firm’s trust account the overdrawn sum totalling $14,826.21. He also purchased a software package for the firm’s trust account.

[8] On 1^st March 2016, which was the beginning of the legal practising year, the Chief Registrar refused to issue the Respondent with a new practising certificate.

[9] Just under four months later, on 27^th June 2016, the Chief Registrar filed an application with the Commission alleging three counts of professional misconduct by the Respondent legal practitioner. That application was made returnable in the September 2016 Sittings of the Commission.

[10] After various discussions during those Sittings, Orders were made for the filing of submissions in relation to the Applicant’s Interlocutory Application for Amendment of Count 3 and the Respondent’s Interlocutory Application for the charges to be struck out. The matter was then listed at the commencement of the November/December 2016 Sittings for a ruling on those two applications and (depending upon the outcome of the ruling) for a hearing of the substantive matter/s on 7^th December 2016,

[11] In addition, on 23^rd September 2016, Counsel for the Respondent legal practitioner made an oral application (opposed by Counsel for the Chief Registrar) for the issuing of an interim practising certificate until the 7^th December 2016. An ex tempore ruling was delivered on 23^rd September 2016 granting the application but with the following restrictions:

‘Pursuant to Section 121(3) of the Legal Practitioners Decree, the Chief Registrar shall issue a Practicing [sic] Certificate to the Respondent until 7^th December 2016 forthwithaymepayment of the prescribed pro rata fees, on the following conditions:

(i) The Respondent is not to operate a Trust Account.
(ii) The Respondent is not to operate Trust Account No. ******* held at the Bank ****** unless approved in writing by the Chief Registrar.

(iii) The Respondent is to take the monthly bank statement for Mamlakah Lawyers Trust Account No. ******* held at the Bank ****** to the Office of the Chief Registrar at the end of each month until further notice.

(iv) The Respondent will only operate or practice as a Barrister and will only receive payment upon issuance of an invoice, after the work has been done (Invoice for work done).
(v) The Respondent will work under the Supervision of Mr. Simione Valenitabua who was admitted as a Barrister & Solicitor of the High Court of Fiji in 2006. He is the Managing Partner in the firm of TOGANIVALU & VALENITABUA whose address is 30 High Street, Toorak, Suva.’

(See Chief Registrar v Vosarogo, Unreported, ILSC Case No.002 of 2016, 23 September 2016; PacLII: [2016] FJILSC 6, <http://www.paclii.org/fj/cases/FJILSC/2016/6.html> .)

[12] The matter was then relisted at the commencement of the November/December 2016 Sittings when Orders were made for the filing of further written submissions to be addressed at a hearing on 7^th December 2016.

[13] On 7^th December 2016, following the hearing in relation to the two interlocutory applications, Counsel for the Respondent legal practitioner made an oral application (opposed by Counsel for the Chief Registrar) for the issuing of an interim practising certificate until the next mention date on 6^th February 2017. An ex tempore ruling was delivered on 7^th December 2016 granting the application upon the same restrictions as set out in the ex tempore ruling of 23^rd September 2016. (See Chief Registrar v Vosarogo, Unreported, ILSC Case No.002 of 2016, 7 December 2016; PacLII: [2016] FJILSC 9, <http://www.paclii.org/fj/cases/FJILSC/2016/9.html> .)

[14] On 6^th February 2017, a Ruling was delivered on the two interlocutory applications wherein (1) The Applicant’s Application seeking Leave to Amend Count 3 was refused and (2) The Respondent’s Application for the three counts to be stuck was granted in part. Leave was granted, however, to Counsel for the Chief Registrar to file an Amended Application. The matter was then made returnable on 13^th February 20o heam Counsel fsel for ther the Respondent as to whether she had any objections to the Applicant’s Further Amended Application if not, to set the substantive matter down for hearing. (See Chief Registrar v Vosa Vosarogo, Unreported, ILSC Case No.002 of 2016, 6 February 2017; PacLII: [2017] FJILSC 1, <http://www.paclii.org/fj/cases/FJILSC/2017/1.html> .)

[15] Immediately following the above ruling on 6^th February 2017, Counsel for the Respondent legal practitioner made an oral application (that was opposed by Counsel for the Chief Registrar) for the continuation/issuing of an interim practising certificate until 28^th February 2017 (the end of the “2016” legal practising year). An ex tempore ruling was delivered on the same date granting the application upon the same restrictions as set out in the ex tempore ruling delivered on 23^rd September 2016. (See Chief Registrar v Vosarogo, Unreported, ILSC Case No.002 of 2016, 7 February 2017; PacLII: [2017] FJILSC 9, <http://www.paclii.org/fj/cases/FJILSC/2016/9.html> .)

[16] On 10^th February 2017, an Amended Application was filed by Counsel for the Chief Registrar alleging 13 counts of professional misconduct against the Respondent legal practitioner.

[17] On 13^th February 2017, the Amended Application was set down for hearing on 10^th April 2017 with a time estimate of two days and, if necessary, a third hearing day on 13^th April 2017. Counsel for the Respondent legal practitioner then made an oral application (opposed by Counsel for the Chief Registrar) for the continuation/issuing of the Respondent’s interim practising certificate until the next hearing, that is, as from 1^st March 2017 up to and including 13^th April 2017. When I advised that I would be granting the application, Counsel for the Chief Registrar indicated that he did not require on this occasion to have a written ex tempore ruling providing reasons. The application was then granted upon the same restrictions as set out in the ex tempore ruling of 23^rd September 2016.

[18] On 10^th April 2017, just prior to commencement of the hearing, Counsel for the Chief Registrar sought to have evidence taken by Skype from one witness and explained that there was also another witness who was in New Zealand. Counsel for the Respondent legal practitioner objected to evidence being taken by Skype and noted that no prior discussion had taken place seeking her consent to this proposed course of taking evidence. Counsel for the Chief Registrar then indicated that he was not ready to proceed on that day. The matter was then adjourned for hearing on 13^th April 2017.

[19] On 13^th April 2017, Counsel for both parties advised that discussions had taken place in relation to the various counts with indications as follows:
(1) there would be a plea of guilty to Count 1;
(2) Counts 2, 3, 5, 6 and 10 might be withdrawn;
(3) there needed to be a reconfirmation that Counts 4 and 13 were part of the audit period;
(4) there would be a plea of guilty to Count 7 once the Applicant had agreed that the amount was $10.10;
(5) there would be a plea of guilty to Count 8 in the amount was $10.05;
(6) Count 9 was alleged to have been a “bank problem” with the Applicant to check and, if it had to proceed, then it would be a plea of not guilty;
(7) Count 11 was a bank error again for the Applicant to check and, if it had to proceed, then it would be a plea of not guilty; and
(8) Count 12 was also for the Applicant to check.

[20] The matter was then adjourned until 18^th April 2017 to allow discussions to continue so that on that date the Commission could be advised whether the remaining matters were to proceed as a defended hearing or as a plea in mitigation.

[21] On 18^th April 2017, Counsel for the Chief Registrar advised that further discussions had now taken place for which he was seeking instructions from the Chief Registrar who was overseas. The matter was then adjourned until 5^th June 2017. In the meantime, Counsel for the Chief Registrar was to write to the Respondent with a copy to the Commission as soon as he received a response from the Chief Registrar. In addition, it was ordered that the Respondent’s interim practising certificate be extended until 5^th June 2017.

[22] On 5^th June 2017, Counsel for both parties advised that an agreement had been reached whereby it was proposed that Counsel for the Chief Registrar would file a Further Amended Application containing just four counts (that is, Counts 1, 4, 7 and 8 from the previous Amended Application) and the remaining counts would be withdrawn. Counsel for the Respondent legal practitioner indicted that once the Further Amended Application had been served there would be pleas of guilty formally entered to the four counts. Orders were then made for the Further Amended Application to be filed and served by 6^th June 2017 and the matter was adjourned until 7^th June 2017.

[23] On 7^th June 2017, Counsel for the Respondent legal practitioner entered pleas of guilty to the four counts. Orders were then made for Counsel for both parties to file and serve written submissions and the matter set down for a sanctions hearing (plea in mitigation) on 14^th June 2017.

[24] On 14^th June 2017, the sanctions hearing proceeded, following which, Counsel for the Respondent legal practitioner made an oral application for the continuation of the Respondent’s interim practising certificate while judgment was pending on what sanctions were to be imposed in this matter. Counsel for the Chief Registrar opposed that application. An ex tempore ruling was delivered that same evening wherein the application was refused. (See Chief Registrar v Vosarogo, Unreported, ILSC Case No.002 of 2016, 14 June 2017.) The Respondent has now been without a practising certificate since 5^th June 2017.

[25] On my calculations, after reviewing the history of this matter as set out in paragraphs [8]-[24] above, the Respondent legal practitioner has been refused the issuing of a practising certificate (in effect, suspended) for a total of 327 days or 10 months and 17 days since 1^st March 2016, as follows:

(1) 1^st March 2016 up to and including 23^rd September 2016 (when I granted at approximately 7.00pm that evening the Respondent’s application for the issuing of an interim practising certificate) - a period of suspension for 205 days or 6 months and 21 days including the end date;
(2) 13^th April until 17^th April 2017 - a period of 5 days.
(3) 5^th June 2017 until today, 29^th September 2017 - a period of 117 days or 3 months and 25 days including today.

[26] In addition, on my calculations, the Respondent legal practitioner has worked under a severely restricted practising certificate for a total of 249 days or 8 months and 7 days as follows:

(1) 24^th September 2016 until 13^th April 2017 - a period of 201 days or 6 months and 20 days NOT including the end date (when he appeared before the Commission);

(2) 18^th April 2017 until 5^th June 2017 - a period of 48 days or 1 month and 18 days NOT including the end date (when he appeared before the Commission).

3. The offences - professional misconduct – while operating a trust account failed to ensure that the ledgers (accounts) of four clients were not overdrawn

[27] Counsel for the Respondent legal practitioner has entered pleas of guilty on behalf of her client to four counts of professional misconduct contrary to section 82 (1)(a) of the Legal Practitioners Decree 2009 as follows:

‘Count 1

PROFESSIONAL MISCONDUCT: Contrary to section 82(1) (a) of the Legal Practitioners Decree 2009

PARTICULARS

Vilimone Vosarogo also known as Filimoni WR Vosarogo, a legal practitioner, principal of Mamlakah Lawyers and trustee of Mamlakah Lawyers Trust Account kept with ******** Bank, Suva Branch, bearing Account Number ******* from the period 1^st October 2014 to 30^th September 2015 failed to ensure that his client, namely, Mamlakah Health & Safety’s account was not overdrawn by a sum of $14,090.17, which conduct constitutes professional misconduct pursuant to section 82(1)(a) of the Legal Practitioners Decree 2009.

Count 2

PROFESSIONAL MISCONDUCT: Contrary to section 82(1) (a) of the Legal Practitioners Decree 2009

PARTICULARS

Vilimone Vosarogo also known as Filimoni WR Vosarogo, a legal practitioner, principal of Mamlakah Lawyers and trustee of Mamlakah Lawyers Trust Account kept with ******** Bank, Suva Branch, bearing Account Number ******* from the period 1^st October 2014 to 30^th September 2015 failed to ensure that his client, namely, Eugenia Guruyawa Foon also known as Eugine Guruyawa and also known as Eigine Praveena Agness’ account was not overdrawn by a sum of $715.89, which conduct constitutes professional misconduct pursuant to section 82(1)(a) of the Legal Practitioners Decree 2009.

Count 3

PROFESSIONAL MISCONDUCT: Contrary to section 82(1) (a) of the Legal Practitioners Decree 2009

PARTICULARS

Vilimone Vosarogo also known as Filimoni WR Vosarogo, a legal practitioner, principal of Mamlakah Lawyers and trustee of Mamlakah Lawyers Trust Account kept with ******** Bank, Suva Branch, bearing Account Number ******* from the period 1^st October 2014 to 30^th September 2015 failed to ensure that his client, namely, Janendra Murti’s account was not overdrawn by a sum of $10.10, which conduct constitutes professional misconduct pursuant to section 82(1)(a) of the Legal Practitioners Decree 2009.

Count 4

PROFESSIONAL MISCONDUCT: Contrary to section 82(1) (a) of the Legal Practitioners Decree 2009

PARTICULARS

Vilimone Vosarogo also known as Filimoni WR Vosarogo, a legal practitioner, principal of Mamlakah Lawyers and trustee of Mamlakah Lawyers Trust Account kept with ******** Bank, Suva Branch, bearing Account Number ******* from the period 1^st October 2014 to 30^th September 2015 failed to ensure that his clients, namely, Lai Hui v Changlin and Wang Xiutu’s account was not overdrawn by a sum of $10.05, which conduct constitutes professional misconduct pursuant to section 82(1)(a) of the Legal Practitioners Decree 2009.’
[My anonymisation]

[28] Section 82(1)(a) of the Legal Practitioners Decree 2009 states:

‘82.—(1) For the purposes of this Decree, “professional misconduct” includes –

(a) unsatisfactory professional conduct of a legal practitioner, a law firm or an employee or agent of a legal practitioner or law firm, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence;’

[My emphasis]

4. Background to the submissions
[29] On 7^th June 2017, once the Respondent legal practitioner entered a plea of guilty to each of the above four counts, Orders were made for each party to file written submissions, noting that I would be considering the 5^th edition of ‘Guidance Note on Sanctions’ published by the Solicitors Disciplinary Tribunal of England and Wales on 8^th December 2016 as a guide as to what sanction/s should be imposed in this matter. (See <http://www.solicitorstribunal.org.uk/sites/default/files-sdt/GUIDANCE%20NOTE%20ON%20SANCTIONS%20-%205TH%20EDITION%20-%20DECEMBER%202016.pdf> .) A copy of that publication was provided to Counsel for the Respondent (Counsel for the Applicant already having obtained a copy in previous matters). I then set the matter down for a “sanctions” hearing on 14^th June 2017, following which I then adjourned the matter until 18^th September 2017, whilst I considered my judgment and to also allow the Respondent legal practitioner the opportunity to undertake a trust account management course in either New Zealand or Australia.

[30] As I was considering my judgment subsequent to the sanctions hearing on 14th June 2017, I noted that of the cases that have come before the Commission between 2009-2017 involving poor or negligent trust account management, apart from two decisions of Commissioner Connors in 2010 that had been cited by Counsel for the Respondent in her submissions, I was not cited any other case from Fiji by either Counsel. Instead, Counsel for the Applicant had cited three cases from Australia, while Counsel for the Respondent had cited four case summaries published on the web site of the New Zealand Law Society.

[31] Thus, I had the staff of the Commission check through both the Commission’s files and Discipline Register to provide a summary of all matters that have come before the Commission between 2009-2017 involving trust account issues where the application has been established. That summary revealed 11 cases. I also undertook a survey of recent cases listed on the website of the Solicitors Disciplinary Tribunal of England and Wales where the legal practitioner had failed to keep proper accounting records and came across five recent decisions.

[32] I then arranged for the Secretary of the Commission to write to Counsel for each party on 11^th September 2017 (which was the Monday of the week prior to the present Sittings) providing them with a written summary of the 11 cases that have come before the Commission between 2009 and 2017 involving trust account issues, as well as a written summary of five recent decisions of the Solicitors Disciplinary Tribunal of England and Wales where the legal practitioner failed to keep proper accounting records.

[33] As the focus of the summaries was on whether orders were made for a practitioner to be struck off from the Roll, suspended or fined together with any costs that were ordered, the summary did not include in most cases whether any conditions were attached to the grant of a restricted practising certificate except where it was of particular relevance such as a course was required to be undertaken. Counsel were provided, however, with the web address for each case if it was listed on the internet and invited to provide written submissions to be filed and served by the Friday (i.e. 15^th September 2017) before the commencement of the present Sittings addressing the penalties imposed.

[34] Counsel for the Applicant filed submissions on 14^th September 2017. He also sent a further reply on 14^th September 2017, confirming that ‘the summary of the 11 cases [sent by the Secretary of the Commission on 11 September 2017] is correct’ save that the Orders in Shah and Naidu were not complete and attached copies which included matters in addition to suspension or fine which was the focus of the Commission’s letter.

[35] Counsel for the Respondent legal practitioner did not file any written submissions and sought instead to make further oral submissions.

[36] When the matter was listed for mention at the commencement of these present Sittings (18^th September 2017), after Counsel for the Respondent legal practitioner was asked why she had not complied with the above and why costs should not be awarded, a timetable was ordered for the filing of final submissions. In addition, as both Counsel agreed that there would not be the need for a further listing date (for Counsel to speak to their respective submissions), the parties were advised that judgment would then be on notice.

[37] Counsel for the Respondent then appeared in the Commission the following day (19^th September 2017) to file her submissions whilst I was hearing another matter where Counsel for the Applicant Chief Registrar in this present matter was also appearing. I immediately stood the matter down that I was then hearing and asked both Counsel to come forward as it was an opportune time for me to immediately relist this matter rather than having to call Counsel back on another date.

[38] I then explained to both Counsel that since the mention of this matter the previous day, my staff (in consultation with me) had noted that there was a twelfth trust account case that had come before the Commission in the period 2009-2017 that was not listed in the summary previously provided by the Commission to Counsel for the parties, namely another case involving Haroon Ali Shah. I further explained that what was of relevance from that case for the present matter was that in one of the counts it had been found that the legal practitioner had failed to account properly for money received from the proceeds of a sale and there was a certain sum of money in the legal practitioner’s trust account that was yet to be paid to the client (approximately $4,000). I noted that it was a condition imposed by Commissioner Connors in Shah that the legal practitioner was required to undertake five criminal trials for the Legal Aid Commission on a pro bono basis within 12 months, otherwise the legal practitioner’s practising certificate would be automatically suspended for five months. (See ief Registrgistrar v Haroon Ali Shah, Unreported, ILSC Case No.008 of 2009, Commissioner Connors, 30 September 2010; Pac[2010] FJILSC 26, <http://www.paclii.org/fj/cases/FJILSC/2010/26.html> ) – involinvolving three counts of professional misconduct and one count of unsatisfactory professional conduct.)

[39] Counsel for the Applicant Chief Registrar recalled this additional Shah case and confirmed that the legal practitioner did comply with the condition imposed by Commissioner Connors. I then noted that I wanted both Counsel to be aware of it so that if Counsel for the Respondent legal practitioner wanted to add anything further to her written submissions that she was just about to file she could do so and then Counsel for the Applicant Chief Registrar could have the opportunity to respond.

[40] Counsel for the Respondent legal practitioner advised that she did not wish to add anything further to her written submissions and would accept whatever additional research my staff had located. She also noted that
“Because in the Dorsami Naidu, because it was a conveyancing matter. He was asked to do a conveyancing [course] ... in Australia or New Zealand” as one of the conditions imposed on his practising certificate by Commissioner Connors. (See Chief Registrar v Dorsami Naidu (Unreported, ILSC Case No. 005 of 2009, 16 August 2010, Commissioner Connors; PacLII: [2010] FJILSC 20, <http://www.paclii.org/fj/cases/FJILSC/2010/20.html> .)

[41] In reaching my judgment, therefore, as to the appropriate sanction/s to be imposed in this matter, I have taken into account the following submissions:
(1) the ‘Applicant’s Submissions on Penalty’ filed on 13^th June 2017;
(2) the ‘Respondent’s Submission on Sanction’ filed on 14^th June 2017;
(3) the oral submissions made by each party before me at the sanctions hearing on 14^th June 2017;
(4) the ‘Applicant’s Further Submissions on Penalty’ filed on 14^th September 2017;
(5) the brief oral responses made before me by Counsel for each party on 18^th and 19^th September 2017;
(6) the ‘Respondent’s Further Submission on Sanction’ filed on 19^th September 2017;
(7) the ‘Applicant’s Reply to Respondent’s Further Submission on Sanction’ filed on 21^st September 2017.

5. The ‘Guidance Note on Sanctions’ and the three stages in Fuglers
[42] In the 5^th edition of the ‘Guidance Note on Sanctions’ published by the Solicitors Disciplinary Tribunal of England and Wales, the Tribunal has explained (page 6, paragraph [7]) that its ‘approach to sanction’ is based upon the three stages set out in Fuglers and Others v Solicitors Regulation Authority [2014] EWHC 179 Admin (per The Honourable Mr Justice Popplewell, at paragraph [28]) (see <http://www.bailii.org/ew/cases/EWHC/Admin/2014/179.html> ). That is:

‘The first stage is to assess the seriousness of the misconduct. The second stage is to keep in mind the purpose for which sanctions are imposed by such a tribunal. The third stage is to choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question.’

[My Emphasis]

(1) THE FIRST STAGE – ‘to assess the seriousness of the misconduct’
[43] In assessing the seriousness of the misconduct, the 5^th edition of the Guidance Note on Sanctions has explained at paragraph [16] as follows:

‘The Tribunal will assess the seriousness of the misconduct in order to determine which sanction to impose. Seriousness is determined by a combination of factors, including:

• the respondent’s level of culpability for their misconduct.
• the harm caused by the respondent’s misconduct.
• the existence of any aggravating factors.
• the existence of any mitigating factors.’

[My emphasis]

(a) ‘The respondent’s level of culpability for their misconduct’

[44] According to Counsel for the Applicant (‘Applicant’s Submissions on Penalty’, 13^th June 2017, page 5, paragraph [20]), ‘there is a high level of culpability on the part of the Respondent’ on the following basis:
(1) ‘The Respondent was grossly in breach of his position as the trustee’ of the trust account;
(2) ‘The Respondent had direct control or responsibility’ and ‘such control or responsibility was primarily and principally incumbent on the Respondent and not to anyone else in the firm’;
(3) ‘The total amount overdrawn was $14,826.21 which was a large sum’;
(4) ‘... given the Respondent’s experience and also having [a] poor accounting system in place leads to a high level of culpability on the part of the Respondent’.

[45] Counsel for the Respondent in her submissions in response has sought to argue that culpability be seen in terms of negligence rather than fraud as has been accepted by Counsel for the Applicant. (See ‘Respondent’s Submission on Sanction’, 14^th June 2017, page 6, paragraphs 4.3-4.8). That is, as submitted at paragraph 4.5, the Respondent ‘had entrusted his booking on his accounting and conveyancing staff to ensure compliance and that he be properly advised of the balances’.

[46] In assessing culpability, the 5^th edition of the ‘Guidance Note on Sanctions’ has explained as follows (pp.8-9):

‘The level of culpability (“responsibility for fault or wrong”) will be influenced by such factors as (but not limited to):

• the respondent’s motivation for the misconduct.
• whether the misconduct arose from actions which were planned or spontaneous.
• the extent to which the respondent acted in breach of a position of trust.
• the extent to which the respondent had direct control of or responsibility for the circumstances giving rise to the misconduct.
• the respondent’s level of experience.
• the harm caused by the misconduct.
• whether the respondent deliberately misled the regulator (Solicitors Regulation Authority v Spence [2012] EWHC 2977 (Admin)).’
  

[47] Applying the above criteria, I have assessed the Respondent legal practitioner’s level of culpability as follows:
(i) &#8he respondent’s mo;s motivation for the misconduct’

• I accept the submi of Counsel for the Applicant that there is ‘a higa high level of culpability’ on the part of the Respondent legal practitioner as the sole practitioner of the firm.
• I also accept the submission of Counsel for the Respondent ‘had entrusted’ the booking keeping to certain of his staff.
• Whilst there is no motivation of fraud, he should, however, have had more stringent systems in place to oversight the work of his staff and thus was negligent.
  

(ii) ‘Whether the misconduct arose from actions which were planned or spontaneous’

• I accept the submission of Counsel for the Applicant that the misconduct, in particular associated with Count 1, was not just a “one-off” but occurred over a period of time.
  

(iii) ‘The extent to which the respondent acted in breach of a position of trust’

• The breach involved here was of a trust account – a serious matter.
• Counts 3 and 4 are at the very lower end of the scale being $10.10 and $10.05 respectively and were caused, it would appear, from staff wrongly attributing bank charges.
• Count 2 is a little more serious where $715.89 was wrongly sent twice to a client (and thus being an overpayment that was not “picked up” so to speak until the yearly audit of the Respondent’s trust account). Fortunately, the client returned the money. I have noted the oral submission made by Counsel for the Respondent at the sanctions hearing on 14^th June 2017, when he succinctly observed: “... where did that overpayment come from? It came from another client’s money, which was held in trust”. I have also noted that Counsel for the Respondent disputed this. It is something to which I will return later in this judgment when discussing aggravating factors.
• Count 1 is the most serious of the four counts, that is, where the account of the client (who is also the respondent’s spouse) was overdrawn by a sum of $14,090.17. From my attempts to clarify at the sanctions hearing on 14^th June 2017 how this occurred, I accept the submission of Counsel for the Applicant that in relation to both Counts 1 and 2, “So what the auditors relied on is the ledger that is kept, that is why the ledger at all times should show the true accounting position.” It would appear from an explanation from the Bar Table provided by the Respondent that (although not being evidence and not objected to by Counsel for the Applicant), I accept was an attempt to be forthright with the Commission as to how this occurred. As I understood the Respondent, the accounts were incorrect at the start of the accounting year with the ledger incorrectly showing a lesser amount to be in the trust account for the Respondent’s spouse. I have, however, not been provided with any documentary evidence to support this submission.
• In short, it was a breach of trust - even though it arose from negligence in not overseeing staff rather than the Respondent acting dishonestly.
  

(iv) ‘The extent to which the respondent had direct control of or responsibility for the circumstances giving rise to the misconduct’

• I believe that that is no dispute that this was the respondent’s responsibility to oversee his staff.
  

(v) ‘The respondent’s level of experience’

• As noted above, the Respondent has been a solicitor with nearly 18 years of experience and for at least the last seven operating his own firm.
  

(vi) ‘The harm caused by the misconduct’

• I note that the Respondent has repaid the total overdrawn sum $14,826.21 into the trust account. Counsel for the Respondent in her written submissions suggested that the harm caused was minimal (see paragraph 4.7).
• Further, at the sanctions hearing on 14^th June 2017, Counsel for the Respondent initially suggested that “... the biggest harm really in terms of the monetary amount which is the health and safety”, that is, the business of the Respondent’s spouse.
• I note, however, that after I explained to Counsel for the Respondent that in terms of harm “there is a whole issue about the protection of the public” and “the harm to the profession”, Counsel for the Respondent conceded: “Absolutely, and he has accepted that”.
• I agree with the oral submission of Counsel for the Applicant when he stated at the sanctions hearing on 14^th June 2017 as follows:

“... I would say that the harm is caused to the public ... and also to the reputation that the profession has in the minds of public. So what I am saying is that the harm has been caused, because the public have a certain expectation from the legal profession, in terms of trust monies they have a higher level of expectation from the legal profession, the profession that is regarded as noble. So, therefore, it is the harm that is done to that expectation from members of public. They are entitled to have that expectation, and it a harm to them sir, when the practitioner is not able to protect the[m]”

(vii) ‘Whether the respondent deliberately misled the regulator (Solicitors Regulation Authority v Spence [2012] EWHC 2977 (Admin))’

• It is my understanding that both Counsel agree that the Respondent was frank as to what occurred.
  

(b) ‘the harm caused by the respondent’s misconduct’
[48] As I have noted above, I do not accept that the harm caused was minimal, particularly in relation to Count 1.

[49] Indeed, recently in Chief Registrar v Alipate Qetaki (unreported, ILSC Case No.004 of 2016, 18 April 2017), I discussed the applicability or otherwise of the test of what a fair and reasonable person would think of such behaviour, as was discussed by the United Kingdom Supreme Court in Healthcare at Home Limited v. The Common Services Agency [2014] UKSC 49; (BailII: <http://www.bailii.org/uk/cases/UKSC/2014/49.html> ), where Lord Reed (with whom Lord Mance, Lord Kerr, Lord Sumption and Lord Hughes agreed) explained the application of the term noting:

‘As Lord Radcliffe observed in Davis Contractors Fareham eham Urban District Council [1956] UKHL 3; [1956] AC 696, 728:

"The spokesman of the fnd reasonable man, who represents after all no more thae than the anthropomorphic conception of justice, is and must be the court itself."’

[My emphasis]

[50] In assessing harm, the 5^th edition of the ‘Guidance Note on Sanctions’ has explained as follows (p.9):

‘In determining the harm caused by the misconduct, the Tribunal will assess:

• the impact of the respondent’s misconduct upon those directly or indirectly affected by the misconduct, the public, and the reputation of the legal profession. The greater the extent of the respondent’s departure from the “complete integrity, probity and trustworthiness” expected of a solicitor, the greater the harm to the legal profession’s reputation.
• the extent of the harm that was intended or might reasonably have been foreseen to be caused by the respondent’s misconduct.’

[My emphasis]

[51] Applying the above criteria, I have assessed ‘the harm caused by the misconduct’ of the Respondent legal practitioner as follows:

(i) ‘the impact of the respondent’s misconduct upon those directly or indirectly affected by the misconduct ... ‘

• In my view, ‘the impact of the respondent’s misconduct’, while arguably low for Counts 2, 3, and 4, is very serious in relation to Count 1.
  

(ii) ‘the extent of the harm that was intended or might reasonably have been foreseen to be caused by the respondent’s misconduct’

• Whilst there has been no allegation of dishonesty against the Respondent legal practitioner, ‘the extent of the harm that ... might reasonably have been foreseen ... caused by the respondent’s misconduct’ is again arguably low for Counts 2, 3, and 4, it is again very serious in relation to Count 1.
  

(c) ‘The existence of any aggravating factors’
[52] According to Counsel for the Applicant Chief Registrar (‘Applicant’s Submissions on Penalty’, 13^th June 2017, page 5, paragraphs [15]-[16]):

‘15. The Respondent’s misconduct could be seen as one committed within one accounting period that is from the 1^st of October 2014 to 30^th September 2015 and involved the accounts of more than a single client.

16. The Respondent being a trustee and principal of the law firm knew that the conduct which gave rise to disciplinary proceedings was in material breach of his obligation as a trustee and as such he had the obligation to protect the public (client’s) moneys that he held in trust.’

[My emphasis]

[53] According to Counsel for the Respondent legal practitioner in her oral submissions on 14^th June 2017: “paragraphs 15 and 16 are not aggravating factors, they are actually part of the charges and particulars of the charges”.

[54] The 5^th edition of the ‘Guidance Note on Sanctions’ includes (at page 9) some nine criteria (though not an exhaustive list) of ‘factors that aggravate the seriousness of the misconduct’. Arguably, four of them might be applicable to the present matter:
(i)‘misconduct continuing over a period of time’

• It is my understanding that there is no dispute that this occurred throughout one accounting period and while Counts 2, 3 and 4 may have each involved been a single incorrect ledger entry and/or transaction, Count 1 involved multiple incorrect entries and/or transactions.

(ii)‘misconduct where the respondent knew or ought reasonably to have known that the conduct complained of was in material breach of obligations to protect the public and the reputation of the legal profession’

• I accept that the Respondent legal practitioner ought reasonably to have known that such misconduct ‘was in material breach of obligations to protect the public and the reputation of the legal profession’ as Counsel for the Respondent legal practitioner conceded at the hearing – that is, the Respondent should have reasonably known what his staff were doing.
  

(iii) ‘previous disciplinary matter(s) before the Tribunal where allegations were found proved’

• The Respondent was reprimanded and fined $2,500.00 in 2013 for instructing another legal practitioner who did not hold a valid practising certificate.
• Counsel for the Respondent legal practitioner in her oral submissions on 14^th June 2017 (whilst noting that there were various changes to the practice of law in Fiji arising from the introduction of the Legal Practitioners Act in 2009) conceded:

“Well, it is something that we cannot dispute and with respect, again we have to concede that the previous disciplinary proceeding is something that is relevant to the ultimate sanction ...”

(iv)‘the extent of the impact on those affected by the misconduct’ -

• According to Counsel for the Applicant in his oral submissions on 14^th June 2017:

“... our submissions are that the amounts that were overdrawn despite it being reimbursed. At the time it was overdrawn, another client’s money was being taken out.” [My emphasis]

• Whilst I accept that the accounts of four clients were overdrawn to which the Respondent has pleaded guilty and I understand the argument of Counsel for the Applicant that it logically follows it was another client’s money was being taken out, submissions from the Bar Table, however, are not evidence and there was no documentary evidence to which my attention was drawn by Counsel for the Applicant that it was indeed “another client’s money”.
• Indeed, while Counsel for the Respondent agreed four accounts were overdrawn, she disputed that “another client’s money was being taken out”. Instead, Counsel for the Respondent suggested that, “the one that has suffered the most out of all of this is Mr. Vosarogo” and further submitted from the Bar Table that “Mamlakhaa Health and Safety, they have a lump sum of money that was deposited into the trust account, I think it was over a $100,000.00”. Again, as was the case with the submissions of the Applicant on this issue, similarly it is with the submissions of the Respondent. That is, submissions from the Bar Table are not evidence. There has been no documentary evidence to which my attention was drawn by Counsel for the Respondent to support her submission that it was the Respondent who has suffered most and that it was his wife’s business that was the source of the money being taken out.
• Therefore, on the issue as to ‘the extent of the impact on those affected by the misconduct’, the most that I can say is the following:
  • (1) The accounts of four clients were overdrawn;
  • (2) For Counts 3 and 4, the overdrawn amounts were very minor, being $10.10 and $10.05 respectively, apparently related to wrongly allocated bank charges. The conduct might be viewed of the type where a reprimand or fine might be applicable;
  • (3) For Count 2, the overdrawn amount was $715.89 when a client had been reimbursed twice and although this conduct was sufficiently serious, the client, when alerted, returned the overpayment to the Respondent’s firm;
  • (4) The account of the company of the Respondent’s wife was overdrawn by $14,090.17. This was a very serious breach. As to who was exactly affected by this, Counsel for the Applicant Chief Registrar has not pointed me to any documentary evidence other than making the oral submission whereby he concluded that if it was overdrawn then it followed that “another client’s money was being taken out”. Similarly, Counsel for the Respondent legal practitioner has not made provided me with any documentary evidence to support her submission that it was the Respondent (and the Respondent’s spouse) who have been ‘affected by the misconduct’;
  • (5) I note that at the relisting of the matter on September 2017, the following exchange took place between Counsel for the Applicant Chief Registrar and the Bench:

“Mr. Chand: So the applicant also has not been able to say, because the auditors were not able to say, where the monies went to. So the applicant case is indeed based on that the monies may have come from other clients.

Commissioner: May have come from other clients?

Mr. Chand: Ah..

Commissioner: But in the end of the day, whether it is or it isn’t, the major issue is this: he was negligent in ...

Mr. Chand: Yes.

Commissioner: There was just this was raised - I just want to be fair too - as an aggravating factor Ms. Malimali remembered and argued whether this was still part of the charge ...

Mr. Chand: Yes.

Commissioner: and I said well there was still an issue about aggravation but there is an argument it’s a bit unclear what has actually happened.

But you are saying well it is up to me whether I find that aggravating or not, but at the end of the day he has been negligent in his accounts.

Mr. Chand: Yes.”

[My emphasis]

(6) Thus, whether the money was the Respondent’s wife, that of the Respondent (misplaced through poor accounting by his staff), or indeed “may have come from others clients”, I agree with Counsel for the Applicant that there is no doubt that in considering ‘the extent of the impact on those affected by the misconduct’, it has had an impact on the reputation of the legal profession. I would see that as a factor ‘that aggravate[s] the seriousness of the misconduct’.

(d) ‘The existence of any mitigating factors’
[55] Counsel for the Applicant did not mention any mitigating factors during his written and oral submissions of 13^th and 14^th June 2017 respectively.

[56] Counsel for the Respondent legal practitioner raised, both in her written and oral submissions, “The mitigating factor, of the family circumstances” of the Respondent.

[57] According to the 5^th edition of the ‘Guidance Note on Sanctions’ (page 10), ‘matters of purely personal mitigation are of no relevance in determining the seriousness of the misconduct’. Such matters, however, ‘will be considered ... when determining the fair and proportionate sanction’ to be applied. I agree.

[58] Applying the criteria set out in the 5^th edition of the ‘Guidance Note on Sanctions’, I have assessed ‘the existence of any mitigating factors’ as follows:
(i) ‘misconduct resulting from deception or otherwise by a third party (including the client)’

• Whilst, arguably, this is not applicable, as it is somewhat unclear (and no direct evidence provided) as to what exactly occurred, the submission was not challenged by Counsel for the Chief Registrar that the misconduct resulted from staff within the Respondent’s firm who are no longer employed by the firm.
  

(ii) ‘the timing of and extent to which any loss arising from the misconduct is made good by the respondent’

• The Respondent, once advised as to the problem, took immediate steps to “make good” the loss.
  

(iii) ‘whether the respondent voluntarily notified the regulator of the facts and circumstances giving rise to misconduct’

• Not applicable.
  

(iv) ‘whether the misconduct was either a single episode, or one of very brief duration in a previously unblemished career’

• Not applicable.
  

(v) ‘genuine insight, assessed by the Tribunal on the basis of facts found proved and the respondent's evidence

• While the Respondent has not given direct evidence under oath, I have taken note of his explanation from the Bar Table together with his correspondence to the Chief Registrar and that he has recently undertaken a trust account course in New Zealand as ‘genuine insight’ that go towards mitigating the seriousness of the misconduct.
  

(vi) ‘open and frank admissions at an early stage and/or degree of cooperation with the investigating body’

• There is no doubt that the Respondent made open and frank admissions in his letter dated 26^th February 2016 to the Chief Registrar.
• Whilst the Respondent may have resisted pleading guilty to the charges and indeed, through his Counsel, brought an application for the initial application to be struck out, this was the Respondent’s right as my ruling of 6^th February 2017 confirmed.
• The Amended Application filed on 10^th February 2017 by Counsel for the Chief Registrar alleged 13 counts which were to have proceeded to hearing on 10^th April 2017 but could not proceed on that date through no fault of the Respondent.
• It was then that serious discussions resulted in a Further Amended Application being filed on 7^th June 2017 containing the present four counts, to which Counsel for the Respondent entered pleas of guilty on his behalf on that date.
• I also note that it was suggested by 13^th April 2017 that the Respondent would be entering pleas of guilty to what has eventually become three of the four counts of the Further Amended Application for which the Respondent is now being sanctioned.
• Therefore, the Respondent should be given some credit for his pleas of guilty.
  

(e) Initial conclusion on Stage 1 – the seriousness of the misconduct
[59] Thus, in assessing the seriousness of the misconduct, I have considered in detail as set out above the four factors from the 5^th edition of the Guidance Note on Sanctions and concluded:
(1)‘level of culpability’: high even if it involved negligence by not overseeing the staff managing his trust account;
(2) ‘harm caused’: while arguably low for Counts 2, 3, and 4, it is again very serious in relation to Count 1;
(3)‘aggravating factors’: Counsel for the Respondent suggested at the sanctions hearing that the misconduct fell within the level 3 “more serious” range suggested in the five fine bands (on page 12 of the 5^th edition of the Guidance Note on Sanctions), “we have 2 aggravating factors out of paragraph 19 of your guidelines” and “... you would probably with those aggravating factors and that, you would now be looking at, alright, at this point I am looking at suspension”. I disagree. I have clearly identified above four aggravating factors. Even on the submissions of Counsel for the Respondent, this would take the level of the seriousness of the misconduct into Level 4 of the fine bands, into ‘conduct assessed as very serious’ and to use the words of Counsel for the Respondent, “I am looking at suspension”;
(4) ‘mitigating factors’: I have identified two mitigating factors that go towards mitigating the seriousness of the misconduct. - the Respondent took immediate steps to “make good” the loss and his ‘genuine insight’. Arguably, there were ‘open and frank admissions at an early stage’ for which he should be given some credit. I have noted there is a suggestion that, arguably, the fault lay at the feet of staff within the Respondent’s firm, however, without more, I cannot take it to the level of mitigating the seriousness of the misconduct.
(5) Therefore, in my view, the mitigating factors would only impact upon the level of the seriousness to some degree. That is, the misconduct would remain within Level 4 of the fine band ‘assessed as very serious’, but, perhaps, take it down to the lower end of that band. The mitigating factors would not have such an impact as to take the seriousness of the misconduct back into Level 3.

(2) THE SECOND STAGE – ‘to keep in mind the purpose for which sanctions are imposed’
[60] The 5^th edition of the ‘Guidance Note on Sanctions’ does not explicitly discuss this stage. An insight, however, was provided by Popplewell J in Fuglers at paragraphs [30]-[32] as follows:

‘30. At the second stage, the tribunal must have in mind that by far the most important purpose of imposing disciplinary sanctions is addressed to other members of the profession, the reputation of the profession as a whole, and the general public who use the services of the profession, rather than the particular solicitors whose misconduct is being sanctioned. In Bolton v The Law Society [1993] EWCA Civ 32; [1994] 1 WLR 512 Sir Thomas Bingham MR stated the guiding principles as follows, at pp 518-519:

"... Lapses from the required high standard may, of course, take different forms and be of varying degrees ... If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends upon trust. A striking-off order will not necessarily follow in such a case, but it may well. The decision whether to strike off or to suspend will often involve a fine and difficult exercise of judgment ... Only in a very unusual and venial case of this kind would the tribunal be likely to regard as appropriate any order less severe than one of suspension.
It is important that there should be full understanding of the reasons why the tribunal makes orders which might otherwise seem harsh. There is, in some of these orders, a punitive element: a penalty may be visited on a solicitor who has fallen below the standards required of his profession in order to punish him for what he has done and to deter any other solicitor tempted to behave in the same way ... But often the order is not punitive in intention. ... In most cases the order of the tribunal will be primarily directed to one or other or both of two other purposes. One is to be sure that the offender does not have the opportunity to repeat the offence. This purpose is achieved for a limited period by an order of suspension; plainly it is hoped that experience of suspension will make the offender meticulous in his future compliance with the required standards ... The second purpose is the most fundamental of all: to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth ... A profession's most valuable asset is its collective reputation and the confidence which that inspires.
Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again... All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely, to be so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price."

...

32. ... The primary purpose of the sanction is to deter others and uphold the reputation of the profession (see e.g. Solicitors Regulation Authority v Anderson [2013] EWHC 4021 (Admin) per Treacy LJ at [72]). In determining sanction the tribunal will properly have in mind the message which the sanction will send to other solicitors for the purposes of promoting and maintaining the highest standards by members of the profession, and the high standing of the profession itself in its reputation with the public at large. This latter aspect engages not only the public's confidence in the standards maintained by practising solicitors, but also its confidence in the organs of a self regulating body to conduct effective and fair disciplinary regulation.’

[My emphasis]

[61] I have taken note of the above discussion by Popplewell J in Fuglers as to ‘the purpose for which sanctions are imposed’ and, in particular, his citation of ‘the guiding principles’ as outlined by Sir Thomas Bingham MR in Bolton v The Law Society (also cited in Bailii: [1993] EWCA Civ 32 (6 December 1993), <http://www.bailii.org/ew/cases/EWCA/Civ/1993/32.html>, paragraphs [13]-[16].)

(3) THE THIRD STAGE – ‘choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question’

(a) The Applicant: The Commission should impose a suspension of 3 to 5 years (with a discount for time served under suspension)

[62] Counsel for the Applicant in his written submissions of 13^th June 2017 submitted in his conclusion (page 7): ‘that there be a suspension for a period between three to five years imposed on the Respondent’.

[63] At the sanctions hearing on 14^th June 2017, Counsel for the Applicant explained:

“... our submissions are that this is not a matter where fine would be sufficient, however, if the Commissioner is minded to give a suspension and fine ... To reflect the seriousness, we do not have any, any issues with that, but fine alone with a reprimand we feel is too lenient.”

[64] Thus, it was my understanding that the submission of Counsel for the Applicant was that the starting point would be a suspension of three to five years with credit being given for the over six months (between 1^st March and 23^rd September 2016) when the Respondent was not issued with a practising certificate.

[65] The question as to what credit is to be given for the Respondent working under a restricted practising certificate from late September 2016 until the beginning of June 2017, was left for determination by the Commission. In addition, as to what credit must also now be given for the additional three months (between 5^th June and September 2017) when the Respondent was not issued with a practising certificate, has also been left for determination by the Commission.

[66] As for case law, Counsel for the Applicant cited:
(1) Guss v Law Institute of Victoria Ltd [2006] VSCA 88 (21 April 2006);
(2) Victorian Legal Services Commissioner v Koltay VCAT 1374 (16 August 2016); and
(3) Law Society of New South Wales v Shenker [1999] NSWADT 37 (23 April 1999).

[67] According to Counsel for the Applicant in his written submissions (paragraph 23), Guss (although not being a trust account matter) has been cited for ‘what the Supreme Court of Victoria – Court of Appeal acknowledged as serious misconduct for which suspension as penalty was ordered in various judgments’ for a trust account breach.

[68] Koltay has been cited by Counsel for the Applicant for what the Victorian Civil and Administrative Tribunal stated (amongst other matters) at paragraph 13 of its judgment:
“One of the defining characteristics of being a solicitor is that you can be trusted to protect clients’ money which is given into your custody no matter what happens. Trust money is sacrosanct.”
[My emphasis]

[69] In relation to Shenker, Counsel for the Applicant noted in his written submissions (at paragraph 26) that ‘the Respondent was charged for a number of trust account breaches including overdrawn trust account’ and it was ‘ordered that the name of the Respondent be removed from the Roll of legal practitioners’. In his oral submissions on 14^th June 2017, however, Counsel for the Applicant distinguished Shenker from the present case explaining:

“The current matter could be distinguished from Shenker on the basis that there were other serious breaches of the trust account [in Shenker]. Other serious allegations, trust account allegations against the practitioner and also the overdrawn trust account were in relation to a longer period of time in the case of Shenker. In totality, the court ordered a striking off, in that matter. Whereas if you see, we have established it in this matter and we are not asking for a striking off but we are ...

[seeking] suspension on the basis that this is a very serious breach ...

And the harm that has been caused ... In light of the public interest and because of the profession in regards to some of the admissions that has been made by the respondent in sense that there were poor accounting system in place, we believe that this a case where anything lesser than suspension would not be sending the right message not only to the public but also to the profession.”

[My emphasis]

(b) The Respondent: The Commission should impose a reprimand and fine and, if appropriate a further restricted practising certificate (taking into account time already suspended and restricted)
[70] Counsel for the Respondent legal practitioner in her written submissions sought that ‘the Commission ... impose a reprimand, a fine and consider the time without the practising certificate as sufficient suspension and order further suspension ... it may seem appropriate under restricted practice’. (See ‘Respondent’s Submission on Sanction’, 14^th June 2017, page 6, paragraph 10.3).

[71] In terms of case law, Counsel for the Respondent legal practitioner in her written submissions cited (at paragraph 8.1) Solicitors Regulation Authority v Sharma [2010] EWHC 2022 for enunciating the principle that ‘cases of dishonesty will almost lead to striking off, save in exceptional circumstance’. (See BaiLII: <http://www.bailii.org/ew/cases/EWHC/Admin/2010/2022.html> .)

[72] Further, at the sanctions hearing on 14^th June 2017, Counsel for the Respondent legal practitioner in her oral submissions cited two cases from Fiji being decisions of the Commission: Chief Registrar v Akuila Naco (Unreported, ILSC Case No.007 of 2009, 16 June 2010, Commissioner Connors; PacLII: [2010] FJILSC 11, <http://www.paclii.org/fj/cases/FJILSC/2010/11.html> ) and Chief Registrar v Dorsami Naidu of the 16^th August 2010 cited above.

[73] Counsel for the Respondent legal practitioner noted that in Naco “it was to do with trust account, Mr. Naco was fined a sum of $1000.00 and he was to pay costs of $500.00 to Chief Registrar”. She also noted that in Naidu, “it was also something to do with a trust account, and at paragraph 5, Justice Connors said, they are not matters of dishonesty but matters of carelessness and poor practice”. [My emphasis] In Naidu, the practitioner was fined $1,500.00 and ordered ‘to undertake no less than 10 hours of professional development or legal education in ... Conveyanicng, Real Property and Practice Management’.

[74] I did point out to Counsel for the Respondent legal practitioner at the sanctions hearing, that in Naco the trust account was overdrawn $2,000 for three days - a different scenario to the present case. As for Naidu, I also agreed with Counsel for the Applicant when he submitted that the Naidu case was not a trust account breach, rather, “... it was a conveyancing matter which had gone wrong between parties and there were certain things as per the sales and purchase agreement ... which gave rise to the complaint.”

[75] In response, Counsel for the Respondent legal practitioner explained: “... the reason we were highlighting this judgment was because at paragraph 12 of the same judgment”. To what Counsel for the Respondent legal practitioner was referring, was the following statement made by Commissioner Connors in Naidu at [12]:

‘The conduct of the Respondent is in many respects concerning and whilst it does not display dishonesty it shows a lack of appreciation of practice management principles and the obligations of legal practitioners under the Trust Account requirements.’

[My emphasis]

[76] In addition to citing the cases of Naco and Naidu from Fiji, Counsel for the Respondent legal practitioner during her oral submissions on 14^th June 2017, tendered four case summaries published on the web site of the New Zealand Law Society. Subsequently, I checked the website of the New Zealand Law Society (as well as NZLII) for a fuller citation and details of each of the four cases. These can be summarised as follows:
(1) Lawyers Standards Committee v Lawyer D: ‘Censure and fine for trust account breaches’ (Published online: 04 Aug 2014, last updated on 3^rd June 2015) –

‘A lawyer, D, has been censured and fined $5,000 by a lawyers standards committee after it found she had failed to keep accurate trust account records, had allowed client ledgers to become overdrawn and had provided the Law Society monthly certificates that her trust account was in order when it was not.’

‘As well as the censure and fine, ... ordered D to pay $1,500 costs.’

[My emphasis]

(See New Zealand Law Society’, ‘For the Community’, ‘Standards Committee decisions’, <https://www.lawsociety.org.nz/for-the-community/lawyers-standards-committee-decisions/2014/Censure-and-fine-for-trust-account-breaches>.)

(2) Lawyers Standards Committee v Lawyer C: ‘Fined for breaching trust account regulations’ – (Published online: 08 Dec 2015)

‘A lawyer, C, has been censured and fined $4,000 by a lawyers standards committee for contravening the Trust Account Regulations [had filed neither monthly nor quarterly trust account certificates between September 2014 and February 2015] and failing to honour an undertaking to the NZLS. The committee also ordered C to successfully complete a Trust Account Supervisor training programme within 12 months, and provide confirmation of this to the Lawyers Complaints Service.’

‘As well as the censure, fine and order that C complete a Trust Account Supervisor training programme, ... ordered ... to pay the Law Society $1,000 costs.’

[My emphasis]

(See New Zealand Law Society’, ‘For the Community’, ‘Standards Committee decisions’, <https://www.lawsociety.org.nz/for-the-community/lawyers-standards-committee-decisions/2015/fined-for-breaching-trust-account-regulations>.)

(3) Otago Standards Committee v Richard Zhao: ‘Suspension follows mishandling client monies’ – (Published online: 31 March 2017)

‘... Richard Zhao was censured and suspended for four months from 1 December 2016 by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal ... The misconduct involved four different categories of default:

• failure to pay client money [of $50,000] into a trust account;
• failure to ensure client money earned interest;
• personally earning interest from client monies; and
• failure to act upon a request to uplift client documents.’
  

‘As well as the censure and suspension, the Tribunal ordered Mr Zhao to undertake the next available trust account supervisor course, pay $47,903 standards committee costs and $15,508 Tribunal costs.’

[My emphasis]

It was noted that the lawyer was appealing.

(See New Zealand Law Society’, ‘For the Community’, ‘Standards Committee decisions’, <http://www.lawsociety.org.nz/for-the-community/lawyers-standards-committee-decisions/decisions-by-other-bodies/nzlcdt/suspension-follows-mishandling-client-monies> .)

I also note that the full decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal in Zhao is published on NZLII: Otago Standards Committee v Zhao [2016] NZLCDT 32 (23 November 2016), <http://www.nzlii.org/nz/cases/NZLCDT/2016/32.html> .

(4) Lawyers Standards Committee v Lawyer K: ‘Trust account breaches’ (Published online: 17 May 2017)

‘A lawyer, K, has been censured and fined $1,000 ... for a series of breaches relating to the operation of his trust account.’

‘K had:

• Charged agency fees in transactions where he had not employee an agent;
• Made payments for personal matters from his trust account ledger (no client funds were used for these payments);
• Dormant balances in his firm’s accounts;
• Not provided engagement letters in two matters; and
• Paid funds into a client’s bank account without verifying the account with his client before making payments.’
  

‘As well as the censure and fine, ... a finding of unsatisfactory conduct, ordered K to pay $2,000 standards committee costs and $1,200 LCRO costs, and ordered publication of the facts of the complaint, but not K’s name.’

[My emphasis]

(See New Zealand Law Society’, ‘For the Community’, ‘Standards Committee decisions’, <http://www.lawsociety.org.nz/for-the-community/lawyers-standards-committee-decisions/decisions-by-other-bodies/nzlcdt/trust-account-breaches> .)

[77] Counsel for the Applicant’s oral submissions in reply (in relation to the above four case summaries), I have summarised as follows:
(1) What had been tendered was “I won’t call it case law, the case briefs from the New Zealand Law Society”;
(2) Case of lawyer D of 3^rd June 2015 –

“The issue that I picked up, the Commissioner has already raised that, is that to do with overdrawn amount, and there is no mention of that amount and also the practitioner, from my reading, it seems the committee has found that the accounts have been overstated but the accounts have not been overdrawn. I cannot see that the committee’s finding that there had been an overdrawn account.”

(3) Case lawyer C of 8^th December 2015 -

“There is no mention of the overdrawn account in the matter ...

And there is also no mention of the amount that was overdrawn. Further, in the current scenario the practitioner is charged with professional misconduct and there I see the New Zealand law society had put allegation of unsatisfactory professional misconduct.”

(4) Case of lawyer Richard Zhao of 31^st March 2017 –

‘... the allegations were completely different from what the allegations are In this matter. There were no allegations on overdrawn trust account and the allegation were mainly to do with failure to pay a client’s money into a trust account ...

Then it was about interest, failure to ensure that the client money earned interest and we do not have those offenses under the trust account act in Fiji. ‘Failure to act upon request to uplift client’s documents’. Now those are totally different allegation from what the respondent in the current situation faces.”

(5) Case of lawyer K of 17^th May 2017 involving trust account breaches – the case “is not relevant”.

[78] As for relevant trust account disciplinary cases from Fiji prior to the establishment of the Commission in 2009, Counsel for the Respondent legal practitioner observed in passing at the sanctions hearing on 14^th June 2017 that, “... before the ILSC came in we know [of] cases from the [Fiji] Law Society but they are nowhere recorded”. Counsel for the Applicant Chief Registrar did not dispute her observation. I can only presume, therefore, that it is correct. Indeed, to reinforce her observation, Counsel for the Respondent legal practitioner mentioned that she had at one time been part of the Council of the Fiji Law Society. I am unaware of any formal attempt made by Counsel for either party to obtain records from the Fiji Law Society and, even if there are any such records, whether they would have any relevance or not to the present matter before me.

(c) Trust account matters that have come before the ILSC 2009-2017
[79] In relation to trust account matters that have come before this Commission since 2009, Justice Madigan in Chief Registrar v Silika Vuilagi Waqabitu (Unreported, ILSC Case No.001 of 2014, 28 July 2014; PacLII: [2014] FJILSC 4, <http://www.paclii.org/fj/cases/FJILSC/2014/4.html> ) stated as follows (at [12]):

‘Trust account defalcations have been dealt with by the Commission in the cases of Haroon Ali Shah (No 007 11), Kini Mini Marawai (N of 2012), Jolameolame Uludol(No 02No 025 of 2013) and Lus Llavu<160;(No 002 of02 of 2013 and No 003 of 2013). The principles established by these case cases ares are that offending with regard to trust accounts ms by ctitioner is very very serious professional misconduct and and it is offending which would attract the severest of penalties available to the Commission.’