Court decisions involving solicitors

The Prothonotary of the Supreme Court of NSW v “A” (a pseudonym) [2023] NSWCA 258

Decision published: 27 October 2023

On 27 October 2023, the New South Wales Court of Appeal (Court of Appeal) published its decision in proceedings that the Prothonotary of the Supreme Court of New South Wales (Prothonotary) commenced against a solicitor assigned the pseudonym ‘A’.

In the proceedings, the Prothonotary sought a declaration that A is not a fit and proper person to remain on the Roll and an order removing A’s name from the Roll. It sought that declaration and those orders on the basis A was convicted of, and sentenced to a term of imprisonment for, seven (7) counts of aggravated indecent assault in contravention of section 61M(2) of the Crimes Act 1900 (NSW).

The Court of Appeal made the declaration and orders that the Prothonotary sought.

With respect to the Roll removal orders, the Court of Appeal held:

“[26] In the present case, the applicant accepts that the conduct bore no connection to the practice of law but submits that the serious nature of the offences and the status of the victim are such as to require disqualification from practice. For the following reasons, we agree.

[27] The respondent was admitted as a legal practitioner in the Supreme Court of New South Wales nearly 40 years ago. He was also admitted to practice in Queensland, the Australian Capital Territory and Victoria. The evidence adduced at the sentence hearing was that the respondent’s reputation as a legal practitioner was that of a person of good character, who enjoyed the respect of his colleagues. The respondent had no previous convictions.

[28] The offending conduct was serious criminal conduct. It involved the indecent assault, over a period of over a year, of a very young person in a position of vulnerability and dependence on the respondent. As the sentencing judge found, it involved a betrayal by [A] of his position of trust. As the sentencing judge also found, it constituted very serious offending. The maximum sentence for such an offence (10 years imprisonment for each count) reflects the seriousness of the offending. As noted above, the sentence imposed was an aggregate sentence of four years (and the appeal therefrom was dismissed). The circumstances of the present case are thus distinguishable from those in A Solicitor.

[29] The applicant submits, and we accept, that in the circumstances of this case the offending was so serious and of such a character that it is incompatible with the maintenance of confidence in the integrity of a legal practitioner and does not meet the standard of behaviour to be expected of a member of the legal profession. As set out by Dixon CJ in Ziems at 285-286:

If counsel is adequately to perform his functions and serve the interests of his clients, he should be able to command the confidence and respect of the court, of his fellow counsel and of his professional and lay clients. When a barrister is justly convicted of a serious crime and imprisoned the law has pronounced a judgment upon him which must ordinarily mean the loss by him of the standing before the court and the public which, as it seems to me, should belong to those to whom are entrusted the privileges, duties and responsibilities of an advocate. There may be convictions for a crime of which this is not true, but I cannot think that the present is one of them.

[30] Those observations apply equally to a solicitor such as [A]. [A’s] offending conduct reveals defects of character that are incompatible with the standards and behaviour required of a member of the legal profession.

[31] Although [A] pleaded guilty to the charges, it appears that he sought at first to minimise the conduct (and to suggest it was consensual), which indicates a lack of insight or perception at least at that stage as to the misconduct in question. The applicant suggests that this tempers the effect of the statements of remorse and contrition offered to the Court in his case on sentence. However, the sentencing judge was of the view, which we accept, that the respondent had demonstrated clear remorse and had accepted responsibility for his criminal conduct and acknowledged the significant harm caused to the victim by his conduct.

[32] Another relevant factor as to the character of the offending is the profound degree of harm suffered by the victim as recorded in the remarks on sentence, which we do not here need to recount. As noted, [A] accepts that significant harm was caused to the victim.

…

[35] Having taken into account all of the above matters, we are satisfied that [A] is not a fit and proper person to remain on the Roll having regard to the offending conduct and his lack of good character; and that such unfitness is likely to continue for the foreseeable future.”

Council of the New South Wales Bar Association v Rollinson (No 2) [2023] NSWSC 1390

Decision published: 15 November 2023

On 15 November 2023, the Supreme Court of New South Wales (Supreme Court) published a decision in contempt proceedings commenced by the Council of the New South Wales Bar Association (Bar Council) against Mr Michael Rollinson.

The Bar Council alleged that, in addition to pre-existing contempt charges, Mr Rollinson was guilty of contempt of court on thirteen (13) occasions by reason of his failure to comply:

1. on twelve (12) occasions with orders made by Wilson J on 16 August 2021, which prohibited Mr Rollison from engaging in, or holding out an entitlement to engage in, legal practice without a practising certificate; and
2. on one (1) occasion with orders made by Campbell J on 16 September 2021, which prohibited Mr Rollinson from engaging in, or holding out an entitlement to engage in, legal practice regarding certain matters without a practising certificate

Mr Rollinson pleases guilty to the above 13 counts of contempt. The Supreme Court determined to remand the proceedings for sentence to 13 November 2024 on the condition that Mr Rollinson agrees to comply with conditions requiring him, amongst other things:

1. to be of good behaviour (including by complying with Wilson J’s and Campbel J’s orders referred to above);
2. to accept no contact from, and initiate no contact with, a particular client;
3. to attend a specified medical practice at least once every three months and to accept all reasonable advice, treatment and referral;
4. upon the receipt of a Medicare Card, to make an appointment within 7 days to attend a specified Memory and Cognition Clinic and thereafter accept the treatment, assistance and supervision made available to him by the staff of the Clinic; and
5. to appear before the Supreme Court as directed.

The Supreme Court held:

“[97] Mr Rollinson committed his further 13 contempts while already under the suspended order of committal imposed by Beech-Jones CJ at CL. His breach of the terms of that suspension bears on the appropriate penalty for the present 13 charges.

[98] Ordinarily, I would have no hesitation in imposing a sentence of full-time imprisonment in relation to a barrister who re-offended during the period that an earlier sentence of imprisonment had been suspended. I have concluded here, however, that exceptional circumstances have been shown, and that this is not a case where the suspension should be lifted such that Mr Rollinson serve a sentence of full-time imprisonment. My reasons are as follows.

[99] All 13 instances of contempt since 8 April 2022 involve the defendant communicating either by email or letter on behalf of Vincent Stanizzo or his private company Vinja Holdings. On the evidence Mr Stanizzo was a bully who took advantage of Mr Rollinson’s vulnerability. I find that but for Mr Stanizzo taking advantage of Mr Rollinson’s mental deterioration the conduct the subject of these proceedings would not have occurred.

[100] The offending spanned the period between 17 June and 8 August 2022. The principal feature of the conduct is the breach of the orders of the Supreme Court and the terms of the suspended sentence imposed on 8 April 2022. There is no evidence the defendant benefitted financially from this conduct and every reason to think he did not. Whilst I accept that the letter styled as a “concerns notice” led to Lawyers Weekly taking down an article from the internet, there is no evidence that Mr Rollinson’s conduct had a negative impact on the administration of justice generally. At the time of this offending, Mr Rollinson was the subject of demanding and abusive conduct from Mr Stanizzo and was also impacted by his progressively deteriorating mental state.

[101] Prior to July 2021 the defendant was a person of good character. At that point he was 61 years of age. These further offences are a continuation of his early misconduct, dealt with in April 2022 by Beech-Jones CJ at CL.

[102] The defendant’s deteriorating mental condition, his pre-existing personality traits and the oppressive impact of Mr Stanizzo’s conduct are the principal causative factors regarding all of his conduct since July 2021 in breach of orders of the Supreme Court. In the circumstances, the defendant is entitled to a considerable measure of leniency.

[103] Mr Rollinson has pleaded guilty to each of the 13 present charges. The guilty pleas were entered at the first opportunity. The entry of the pleas and the agreement with the facts alleged by the Bar Council indicates a willingness on his part to facilitate the course of justice.

[104] The 13 offences that are the subject of the further proceedings occurred between 17 June 2022 and 8 August 2022. As noted, on each occasion the defendant acted at the behest of Mr Stanizzo. There have been no further instances of this conduct for the last 15 months. I conclude that the oppressive influence exerted upon the defendant by Mr Stanizzo during 2021 and 2022 is no longer occurring, and that further offending is unlikely.”