Council of the Law Society of New South Wales v Parente

1. [1]

   BASTEN AND MEAGHER JJA: On 2 December 2016 the respondent, Ugo Parente, was convicted in the District Court on three counts of supplying a prohibited drug, with three other offences being taken into account on a Form 1. The respondent was sentenced to imprisonment for 4 years with a non-parole period of 2 years, dating from 1 November 2016.

2. [2]

   The respondent was, at the time of the offending, practising as a solicitor in Sydney. He was admitted as a legal practitioner in February 2006 and is on the roll of Australian lawyers maintained by the Court pursuant to s 22 of the Legal Profession Uniform Law (NSW) (“Uniform Law”).

3. [3]

   By a summons filed on 3 July 2018 the Council of the Law Society of New South Wales (“the Law Society”) invoked the disciplinary powers of the Court, preserved by s 264 of the Uniform Law. The Law Society sought the following orders:

4. [4]

   The respondent did not attend the hearing of the summons, but was represented by his solicitor; he did not oppose the making of orders in the terms set out above. He did not file evidence in response to the evidence filed by the Law Society, nor did he give evidence, either at his sentencing or before this Court.

5. [5]

   Although the Court must be satisfied that it is appropriate to make an order removing the respondent’s name from the roll, having considered the evidence relied on by the Society, we are so satisfied and will make the appropriate order.

6. [6]

   However, the first order sought, being a declaration of professional misconduct, is neither necessary nor appropriate. In past times there has been a debate as to whether the term “professional misconduct” was limited to conduct in the exercise of the practitioner’s profession, and was to be distinguished from personal misconduct. On the view expressed by Viscount Maugham in Myers v Elman, [1] professional misconduct covered any conduct “which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency”. [2] In the same case, Lord Atkin stated that the words “professional misconduct … only mean misconduct in the exercise of the profession”. [3]

7. [7]

   That difficulty of characterising the misconduct has been resolved by the inclusion in the Uniform Law of a definition in the following terms:

8. [8]

   The distinction remains relevant with respect to the first limb of the definition because “unsatisfactory professional conduct” is defined (albeit inclusively) to refer to “conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer”: s 296. As will be seen shortly, it may be that the respondent, whilst addicted to drugs, did fall short of the relevant standard, but that fact was relied upon only to demonstrate that his conduct affected his professional performance and was therefore professional misconduct. Now that the second limb of the definition of “professional misconduct” covers any misconduct which would justify a finding that the lawyer is not a fit and proper person, there is no purpose in making a declaration with respect to professional misconduct. Accordingly, the first order sought by the Law Society should not be made. If the third declaration is made the first is otiose.

9. [9]

   Similar reasoning applies to the proposed second declaration, that the respondent is not of good fame and character. Throughout the last century, an applicant for admission to the profession was required to demonstrate that he or she was “of good fame and character”. [4] However that language has now been removed from the statute. The relevant prerequisite for admission as a lawyer, as provided in s 17(1)(c) of the Uniform Law, is that the applicant be “a fit and proper person to be admitted to the Australian legal profession.”

10. [10]

    It is true that the phrase “good fame and character” has not been entirely removed from the lexicon in this area of the law. In considering whether an applicant for admission is a fit and proper person, the local regulatory authority is required to have regard to matters specified in the Admission Rules made for the purposes of s 17 of the Uniform Law: s 17(2)(b). [5] The Legal Profession Uniform Admission Rules 2015 (NSW) (“Admission Rules”) require that an applicant provide evidence by way of two statutory declarations as to his or her “character”: r 16(1). The Legal Profession Admission Board may require an applicant to provide other evidence “about the applicant’s fame and character”: r 16(6). The applicant must make a statutory declaration disclosing matters which the Board might regard as not being favourable to the applicant when considering whether the applicant “is currently of good fame and character and a fit and proper person to be admitted to the Australian legal profession”: r 17(1). The disclosure statement is required to include a statement by the applicant “that I am and always have been of good fame and character”: r 17(7). Finally, amongst the matters which the Board is required to have regard to for the purposes s 17(2)(b) of the Uniform Law is “whether the person is currently of good fame and character”: r 10(1)(f).

11. [11]

    Indirectly, these matters may be taken into account by a court or tribunal exercising disciplinary powers because s 297(2) provides that “regard may be had to the matters that would be considered if the lawyer were an applicant for admission”. Nevertheless, it is unnecessary to import this phraseology into the exercise being undertaken by the Court in its supervisory jurisdiction with respect to the disciplining of Australian lawyers.

12. [12]

    Particularly is that so where the older terminology was itself imprecise and required care in its application. [6] The only benefit in the reference to “fame”, which was used in the sense of “reputation”, was that it drew attention to one purpose of the disciplinary powers, which was (and is) to maintain public confidence in the integrity and honesty of the profession. Questions of reputation remain relevant in that respect.

13. [13]

    For other purposes, the old language should be put to one side; there is no purpose in making a declaration in the terms sought by the Law Society’s order (2).

14. [14]

    The third order, seeking a declaration that the respondent is not a fit and proper person, reflects the current statutory terminology and is therefore an appropriate form of declaration.

Background circumstances

1. [15]

   Although the respondent did not give evidence, the material before the Court included much detailed information about the respondent adduced at his sentencing in the District Court. The sentencing judge, McLellan DCJ, noted that there was before him “an impressive collection of testimonials testifying to his personal and professional qualities which on any objective assessment must be regarded as outstanding.” The judge noted that the “genesis for his tragic descent into hopeless addiction lies in the breakup of his only serious relationship of five years and the emotional effect of his work well understood to criminal lawyers which centred around both the perpetrators and victims of sexual abuse.”

2. [16]

   The respondent’s sentencing was the subject of an appeal to the Court of Criminal Appeal. The basis of the appeal, which was upheld, was that the sentencing judge had erroneously proceeded on the basis that an offender convicted of supplying a significant quantity of drugs must, absent exceptional circumstances, receive a custodial sentence. However, despite accepting that the sentencing judge had applied (in accordance with authority) an erroneous principle, the Court concluded that no lesser a sentence should be imposed. In reaching that conclusion, the Court engaged in a resentencing exercise. In the course of so doing, the Court set out, in summary, the subjective background of the respondent in the following terms: [7]

3. [17]

   The respondent was arrested on Friday, 26 June 2015, at about 1am, having been stopped while driving his car in the Eastlakes area of Sydney. The police searched the car and found a plastic bag containing 100 tablets later analysed as 3,4-Methylenedioxymethylamphetamine (MDMA). The police also located a litre bottle containing gamma butyrolactone (GBL), together with a small container also containing GBL in liquid form. The respondent had $3,000 in $50 notes on his person.

4. [18]

   The respondent was arrested and conveyed to Mascot Police Station. Later that morning, police executed a search warrant at his home and discovered more drugs in his bedroom and kitchen.

5. [19]

   He was later charged with a number of counts of supplying prohibited drugs, to which he entered pleas of guilty, together with the three further counts on the Form 1. A certificate of conviction recorded the following offences:

   1. (1)

      supply prohibited drug, namely 17.5 g of MDMA in tablet form contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (“the Act”); [8]

   2. (2)

      supplying a prohibited drug, namely not less than a litre of GBL, being a commercial quantity of that drug, pursuant to s 25(2) of the Act; [9]

   3. (3)

      supplying a prohibited drug, namely 338.8 grams of butanediol, pursuant to s 25(1) of the Act.

   4. (4)

      having goods in custody, namely $3,000, pursuant to s 527C of the Crimes Act 1900 (NSW);

   5. (5)

      supplying a prohibited drug, namely 3.65 grams of MDMA;

   6. (6)

      supplying a prohibited drug, namely 2.92 grams of methyl-amphetamine.

6. [20]

   All of the offences arose out of the events of 26 June 2015 and the charges related to that day. However, it is clear that his activities were not so limited.

7. [21]

   The sentencing judge accepted that the respondent was “hopelessly addicted to ice and other drugs” at the time of his arrest. It is not in doubt that he was addicted and, as the Court of Criminal Appeal noted, based on information supplied by the respondent to a psychiatrist, Dr Olav Nielssen:

8. [22]

   While the respondent’s addiction is not in doubt, following his arrest and release on bail, he saw a psychologist, Dr Stuart Edser, between August 2015 and September 2016. Dr Edser was able to assist him in overcoming his addiction and remaining free of drug abuse prior to his sentencing. That was a circumstance greatly to his credit which led to the sentencing judge making a number of favourable findings, accepted by the Court of Criminal Appeal, including “genuine remorse; no previous convictions and excellent prior character; excellent prospects of rehabilitation including substantial rehabilitation prior to sentencing; and unlikelihood of reoffending.” [10]

9. [23]

   Despite these factors, the seriousness of the offending warranted the sentence of four years imprisonment.

Whether respondent should remain on the roll

1. [24]

   An analogous case involved a solicitor involved in importing a large quantity of prohibited drugs: The Prothonotary of the Supreme Court of New South Wales v Sukkar. [11] Although the seriousness of the offences committed by the respondent are not of the same order as that committed by Mr Sukkar, the submission, based on his activities in supplying prohibited drugs, that the respondent is not a fit and proper person to remain on the roll of lawyers, should be accepted. [12]

2. [25]

   That flows from application of the principles explained in New South Wales Bar Association v Cummins, [13] Spigelman CJ stating:

3. [26]

   There would be an incongruity in accepting that a person still the subject of a 4 year sentence of imprisonment, albeit on parole, could be described as meeting the highest standards of integrity. A conviction for a serious offence may, of course, reveal no relevant defect in character or personality sufficient to warrant disbarment. So much was held by the High Court in Ziems v The Prothonotary of the Supreme Court of New South Wales. [14] In that case, although convicted of manslaughter (resulting from a road accident) and sentenced to imprisonment for two years, the Court held that doubt had been cast on the premise of Mr Ziems’ conviction, namely that the accident was a result of inebriation as opposed to an injury to the head, innocently suffered. Where the conviction and the nature of the offending cannot be characterised in this way, there is much to be said for the view of Street CJ in the Full Court in Ziems, that it was “incongruous” that a person serving a sentence of imprisonment for a serious crime should remain on the roll of practitioners. [15] It would greatly diminish the disapprobation expressed by the community through the imposition of significant penalties under the Drugs Misuse and Trafficking Act, to consider that a person properly sentenced to imprisonment for 4 years could maintain the confidence of the community in the administration of justice, if permitted to remain on the roll of lawyers.

4. [27]

   It may also be accepted that just as imprisonment was not an inevitable consequence of a conviction for supplying significant quantities of drugs (as the Court of Criminal Appeal held in the respondent’s sentencing appeal), so disbarment is not an inevitable consequence of conviction for such offending. Prothonotary of the Supreme Court of New South Wales v P [16] provides an example, being a drug importation case where the guilty solicitor was not struck off the roll. The solicitor, in collaboration with her boyfriend, had imported a quantity of some 200 grams of cocaine when returning from an international holiday. Seventy eight grams were secreted on her person. The drugs were discovered at the airport and she was charged with importing a trafficable quantity of cocaine. In the District Court she was sentenced to 6 months imprisonment, and was to be released on a recognisance after 3 months. The Court seems to have accepted that the drug had been purchased by the respondent’s boyfriend who had intended to carry it into Australia, persuading her to take part of it only in the course of the flight, shortly before they reached Sydney.

5. [28]

   In dismissing the application that she be removed from the roll of practitioners, this Court noted: [17]

6. [29]

   An unusual feature of the case was that the Law Society had taken no steps to have the respondent disciplined and indeed had resolved very shortly prior to the hearing, as a result of contact made by the Registrar of the Court, that the case “was not one which in the circumstances warranted the removal of the name of the solicitor from the roll.” [18] The Court appears to have accepted that the sole issue before it was whether the public required protection from the respondent, presumably on the basis that the attitude of the Law Society demonstrated that leaving the solicitor on the roll, despite her conviction and sentence, raised no concern as to the effect on public confidence in the legal profession generally.

7. [30]

   The present case is materially different from Prothonotary v P. Although both cases involved solicitors suffering from drug addictions, implying abuse of prohibited drugs over a significant period, (a) P was convicted with respect to a relatively small quantity of drugs obtained for personal use; (b) that finding expressly negated any suggestion of supply to others for financial reward or otherwise; (c) the sentence was short compared with that imposed on the present respondent, and (d) the positions taken by the relevant professional association were diametrically opposed in the two cases.

8. [31]

   Although it is not necessary to determine whether the conduct in question could properly be characterised as “professional misconduct”, the extent to which the conduct may have directly affected the exercise of the functions of a legal practitioner is a relevant consideration in assessing the seriousness of the misconduct. The connection between the misconduct and the exercise of a profession will often involve an evaluative judgment. In the present case the criminal offending was accepted to be a function of the respondent’s addiction, in that he supplied drugs in order to obtain resources to feed his addiction. His addiction, and therefore the offences, were not unrelated to the disarray in his personal practice at the time of his arrest. In fact, his employer had given verbal notice to terminate his employment as an associate on 30 April 2015, subject to identifying a convenient date to hand over his files to another solicitor. In an email to his managing partner, the respondent had noted the reason given for termination as being “my lapse in performing administrative tasks in recent months, which you stated was inexcusable.” In a letter to him from the managing partner, sent after his arrest on 26 June 2015, the reason given for his termination was “the appalling state of your files, your failure to attend court and appointments, your failure to return phone calls and your failure to respond to numerous emails.”

9. [32]

   Once the offending and the addiction were revealed by the respondent’s convictions and sentencing, it followed that the respondent was no longer a person in whom the community or the courts could place trust as a person of integrity.

10. [33]

    Nevertheless, a practitioner’s name should be removed from the roll only if the Court is satisfied that the reason for disqualification is permanent, or at least of indefinite duration. [19] In his favour, it may be noted that the respondent’s sentence, whilst still on foot, subject to release on parole, will expire on 31 October 2020. It may also be noted that there was an entirely favourable finding in relation to the unlikelihood of reoffending. Further, it may be accepted that both the offences for which he was convicted, and his professional derelictions leading to the termination of his employment, resulted from his addiction, although that in turn resulted from abuse of prohibited drugs over a period of at least 12 months.

11. [34]

    These considerations leave open the possibility that the respondent may be able to satisfy a court in the future that he should be readmitted. However, his descent into drug use and addiction was not fully explained in the criminal proceedings by reliance on statements made to a forensic psychiatrist. Favourable findings by the sentencing judge, adopted by the Court of Criminal Appeal, cannot substitute for an explanation on oath which would allow this Court to form an independent view as to his character and personal qualities. His present unfitness to remain on the roll is not one which will end with the expiration of his sentence and it is not possible to say at what point it will end. In these circumstances, no order of limited duration is appropriate. The respondent’s name should be removed from the roll.

12. [35]

    Accordingly the Court should make the following orders:

    1. (1)

       Declare that Ugo Parente is not a fit and proper person to remain on the roll of Australian lawyers.

    2. (2)

       Order that the name of Ugo Parente be removed from the roll of Australian lawyers.

    3. (3)

       Order that Ugo Parente pay the Law Society’s costs of these proceedings, as agreed or assessed.

13. [36]

    BRERETON JA: The decline and fall of the respondent Ugo Parente bears the hallmarks of tragedy. A young man of considerable academic ability, a leader of and role model for his peers, captain and dux of his school, who was commended by a Prime Minister and a Premier for his commitment to and leadership of anti-drugs campaigns, and who as a young lawyer was sufficiently highly regarded by his peers to be elected president of his regional law society, was precipitated by the breakdown of an intimate relationship of five years – his first significant such relationship – and his professional representation of victims and perpetrators of child sexual abuse, into depression, experimentation with and then addiction to the drugs he had so despised, and finally to engaging in small scale dealing to sustain his habit. His performance at work declined; his employment by the law firm in which he had become an associate was terminated; he was arrested, charged, and for about five weeks refused bail.

14. [37]

    Following his arrest he ceased using drugs, and upon being granted bail entered a rehabilitation program, throughout which he remained clean of drugs. The experienced counselling psychologist he consulted over that period provided the following description:

15. [38]

    In due course, on his plea of guilty he was committed for sentence to the District Court, where, adhering to his guilty plea, he was convicted of Court on three counts of supplying a prohibited drug, with three other offences being taken into account on a form 1. The offences of which he was convicted were:

    1. (1)

       supplying a prohibited drug, namely 17.5 grams of MDMA in tablet form, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (“the Act”);

    2. (2)

       supplying a prohibited drug, namely not less than a litre of GBH, being a commercial quantity of that drug, contrary to s 25(2) of the Act; and

    3. (3)

       supplying a prohibited drug, namely 338.8 grams of butanediol, contrary to s 25(1) of the Act.

16. [39]

    The additional offences taken into account were:

    1. (1)

       having goods in custody, namely $3,000, contrary to s 527C of the Crimes Act 1900 (NSW);

    2. (2)

       supplying a prohibited drug, namely 3.65 grams of MDMA; and

    3. (3)

       supplying a prohibited drug, namely 2.92 grams of methylamphetamine.

17. [40]

    The sentencing judge accepted that Mr Parente was genuinely remorseful, had excellent insight into his conduct, and felt guilty of the hurt he had done his family; that he was of previous excellent character; and that he was already substantially rehabilitated with excellent prospects, and unlikely to reoffend. He was sentenced to a fixed term of 2 years and additional term of 2 years. The material that was before the sentencing judge was tendered in this Court, and plainly supports those findings of the sentencing judge.

18. [41]

    An appeal was brought against the sentence, and a five judge bench of the Court of Criminal Appeal – assembled to reconsider the so-called Clark principle (that in cases of drug dealing to a substantial degree, a sentence of full-time custody must be imposed unless there are exceptional circumstances), [20] on which the sentencing judge had acted – granted leave to appeal, but dismissed the appeal, concluding that no less a sentence was warranted. [21] One unsuccessful ground of appeal, which the Court of Criminal Appeal did not consider established, was an alleged failure by the sentencing judge to take into account the extra curial punishment involved in the respondent’s almost inevitable loss of a promising legal career.

19. [42]

    The fixed term of imprisonment expired on 31 October 2018; while there is no material before the Court as to his present activities, there is no reason to assume that he is not now on parole. The additional term remains on foot and will not expire until 31 October 2020.

20. [43]

    At about the time of his plea of guilty in May 2016, the respondent informed the Law Society that he would not apply to renew his practising certificate; accordingly he has not practised as a lawyer since 30 June 2016 at the latest, and indeed, although he had indicated an intention to practice on his own account after his employment was terminated with effect from the date of his arrest, there is nothing to indicate that he did so. The Council of the Law Society of New South Wales (“the Law Society”) now applies to this court, in its inherent supervisory jurisdiction, to expunge what remains of his professional status, by removal of his name from the roll of Australian lawyers maintained by the Court pursuant to s 22 of the Legal Profession Uniform Law (NSW) (“the Uniform Law”). The respondent – who appears to have assumed from the moment of his arrest that his legal career was virtually at an end – appeared by his solicitor and did not oppose the application. His non-opposition, while a factor, does not bind this Court, which must be satisfied that the orders sought should be made, and – as has often been said – should record the basis on which it acts, so that its reasons are available for consideration on any future application for restoration to the roll.

Relief sought

1. [44]

   The application is brought in the Court’s inherent supervisory jurisdiction, which is preserved by s 264 of the Uniform Law. The issue, on which the applicant bears the onus of proof, is whether it is shown that the respondent is not a fit and proper person to remain on the roll. [22] This directs attention to the present fitness of the practitioner. [23] An order striking a practitioner off the roll should be made only where the respondent is at least indefinitely, if not permanently, unfit. [24] The jurisdiction is protective, not punitive. Protection in this context is concerned with the public who may deal with the practitioner, other members of the profession, and the reputation of the profession and the public’s confidence in it.

2. [45]

   Misconduct unconnected with professional practice is not within the common law concept of “professional misconduct”, [25] though it is now within the statutory definition in s 297(1)(b) of the Uniform Law. However, such conduct has always been capable of founding an order for removal, because it may manifest unfitness and incompatibility with the requisite personal qualities for membership of the profession, and may do so even in the absence of a criminal conviction. [26] Thus a finding of “professional misconduct” – let alone a formal declaration to that effect – is not a necessary precondition of an order for removal. Nor is a declaration that the practitioner is not of good fame and character a necessary precondition of an order for removal, although a finding to that effect might well warrant such an order. Moreover, as conclusion of unfitness is inherent in the making of the order, so again a declaration to that effect is unnecessary surplusage. As has often been observed, even where the order is unopposed, the Court should set out its findings of fact, so that on a later re-admission application, the basis on which the Court acted is clear. However, findings of fact should not ordinarily be formulated as declaratory decrees.

Protection of public

1. [46]

   The respondent’s relevant conduct was not in the course of professional practice. It is true that, in the six months prior to his arrest, his performance deteriorated, to the point that his employer had given him notice of termination. This involved failing to attend at the office, failing to attend court, and failing to return calls; his files were said to be “in disarray”. Those failures are not the subject matter of the Law Society’s present complaint, which is founded on the convictions for supplying drugs, and the criminal conduct which gave rise to them. At the time of those failures in his professional practice, the respondent was in the grip of addiction and a hopeless depression. The evidence fully justified the conclusion of the sentencing judge that, by the time of the sentencing proceedings, he was already very substantially rehabilitated with excellent prospects. Repeated urinalysis tests showed no trace of drugs. By that time, he had overcome his addiction. There is no reason to suppose that that position has changed.

2. [47]

   In my view, there is no reason to suppose that, were he to resume practice, he would now pose any risk to clients, or to others with whom he would be required, in the course of professional practice, to deal. Moreover, declining to make an order for removal does not mean that he would be able, without more, to resume practice. Having indicated, following his plea of guilty in the Local Court, that he would not renew his practising certificate, he would have to again apply to the Law Society for a practising certificate, and if the Law Society were prepared to issue one, it could do so subject to such conditions as it might consider appropriate.

3. [48]

   Accordingly, in my view, no purpose protective of the public would be achieved by removal from the roll.

Protection of profession

1. [49]

   However, the protective jurisdiction is concerned with more than protection of clients and other members of the profession; it is also concerned with protection of the reputation of the profession and the maintenance of public confidence in it. It is for that reason that the good fame and character of an applicant is a relevant consideration on an application for admission; [27] the corollary is that a lack of good fame and character is highly relevant on an application for removal from the roll. [28] As was observed by Young CJ in Eq, with the concurrence of Meagher JA and Tobias JA, in Prothonotary v P, [29] in a passage which has since been cited with approval by the Court (Bathurst CJ, Beazley P and Sackville AJA) in Prothonotary v Gregory, [30] the concept of good fame and character has a twofold aspect, fame referring to a person’s reputation in the relevant community, and character to the person’s actual nature. [31]

2. [50]

   Often, a conviction for an offence accompanied by a sentence of imprisonment will be incompatible with “good fame and character”, not only because of the underlying conduct, but also because of the public disgrace involved. To oversimplify the position, persons who commit serious offences against the law are not readily accommodated in a profession that is beholden to upholding the laws and usages of this State. However, while the deterrent effect of knowledge that serious offending is incompatible with membership of the profession is important, so too is allowing that a person of otherwise upright character might for any number of reasons once lapse, and what that lapse speaks of the person’s character will differ according to the circumstances and causes of the particular lapse. For that reason, not every conviction – even resulting in imprisonment – is incompatible with membership of the profession. The profession can tolerate persons of otherwise good character who have once lapsed, even gravely, where that conduct does not reflect on qualities regarded as fundamental to membership of the profession, or (even if it does) was aberrant – or, “out of character”. These principles were eloquently expounded in Ziems, by Kitto J: [32]

3. [51]

   Controversy over permitting persons who had been convicted of serious crimes to practice law has a lengthy history in this State. In the earliest days, a number of ex-convicts were admitted to practice in the courts; two even acted as magistrates. This was opposed by the brothers Bent who, in defiance of the wishes of Governor Macquarie, refused to admit emancipists to practice before them, which resulted in no civil business being transacted for a year, an impasse which was resolved only with Ellis Bent’s death and J.H. Bent’s removal from office.

4. [52]

   Thereafter, although the instruction of the Secretary of State for the Colonies that convicted persons should not be employed as attorneys was generally adhered to, there were exceptions, [33] until the 1823 Charter of Justice, which authorised the Supreme Court to approve, admit and enrol English, Scottish and Irish practitioners, and also to admit fit and proper persons to appear and act as barristers and solicitors, but provided that the Court shall not admit any person who has been convicted of any crime which, according to any law then in force in England, would disqualify him from appearing and acting in any of the courts of record at Westminster. As was later explained in Ex Parte Rofe, [34] the crimes encompassed were those of forgery, willful and corrupt perjury, or subornation of perjury, or common barratry.

5. [53]

   While the acceptance in those times of emancipist attorneys was undoubtedly in part a consequence of the exigencies of the times, when the alternatives were limited at best, they also reflected the enlightened view of Macquarie and others that convicts who had served their sentence should be permitted to resume their lives as useful members of society, by deploying their professional skills. One of the emancipist attorneys – Edward Eagar, who had been sentenced to death, commuted to transportation for life, for uttering a forged bill – was described by Governor Macquarie as “a man of strong good sense and superior understanding … extremely well-informed … very capable”; he became a persistent advocate of the emancipist cause and critic of Commissioner Bigge. He was consulted by the drafters of what became the New South Wales Act 1823 – James Stephen and Francis Forbes, later Chief Justice of New South Wales – and is credited with significant responsibility for the recognition that was given to the rights of emancipists in the Transportation Act 1824. In a letter to Earl Bathurst, he defended the principle that a long course of good conduct atones for “the Solitary Error” and that acquired respectability of character should be recognised and respected. [35]

6. [54]

   Three significant more recent cases illustrate that the modern profession can tolerate persons of otherwise good character who have once lapsed, even gravely, if satisfied that conduct was irrelevant to their professional qualities, or “out of character”.

7. [55]

   The first is Ziems v Prothonotary, [36] in which a barrister of many years’ standing and of good reputation, was convicted of manslaughter (by driving a vehicle while under the influence of alcohol) and was sentenced to 2 years imprisonment. The Full Court of the Supreme Court of New South Wales struck his name off the roll, but the order was reversed by the High Court, which substituted a suspension for so long as the barrister was actually in prison. The rationale was that the conviction related to an isolated occasion and did not warrant any adverse conclusion as to the barrister's general behaviours or inherent qualities, and that once his sentence had been served no real difficulty would be felt, by fellow barristers or by judges, in meeting with him and co-operating with him in the life and work of the Bar, as Kitto J explained: [37]

8. [56]

   In A Solicitor v Council of the Law Society of New South Wales, [38] the solicitor committed four offences in 1997 of aggravated indecent assault on two daughters of a person with whom he was in a relationship, and after pleading guilty was sentenced to 3 months imprisonment, which on appeal was reduced to a recognisance to be of good behaviour for 3 years. Later, in 2000, another charge involving one of the same victims was brought against him, to which he pleaded not guilty; he was convicted of aggravated indecent assault, but on appeal the conviction was quashed. The Law Society commenced proceedings for his removal in reliance on the 1997 conduct; it was not then aware of the 2000 proceedings, which were still on foot. In the course of the disciplinary proceedings, the solicitor disclosed the 2000 charges and his successful appeal, and the Law Society added a count founded on his failure to make a timely disclosure of the 2000 charges and convictions. The Court of Appeal declared that the solicitor was (1) guilty of professional misconduct in that he: (a) was convicted on 20 February 1998 for aggravated indecent assault, and (b) failed to disclose to the Law Society that he had been convicted on 7 November 2000 of further charges of aggravated indecent assault, notwithstanding that at that time, he was aware that the Law Society was actively considering whether disciplinary action should be taken against him in respect of previous similar convictions; and (2) was not a fit and proper person to be a legal practitioner. In respect of the 1997 conduct, the Court of Appeal found that the conduct constituted a most serious breach of trust on the solicitor's part, given his quasi-paternal position with the victims, and thus manifested qualities of character which were incompatible with the conduct of legal practice. However, on appeal, the High Court: (1) set aside declaration 1(a), because the nature of the trust breached with respect to the 1997 offences, and the circumstances of the breach, were so remote from anything to do with professional practice that the characterisation of the solicitor's personal misconduct as professional misconduct was erroneous; [39] (2) upheld declaration 1(b), on the basis that frankness required the disclosure of the 2000 convictions and sentence, and the solicitor's duty of candour in his dealings with the respondent was a professional duty, and its breach was professional misconduct; [40] (3) set aside declaration 2, on the basis that it should not have been concluded that the solicitor was unfit to practise, as the Court of Appeal gave insufficient weight to the isolated nature of the 1997 offences, the powerful subjective case made on behalf of the solicitor as to his character and rehabilitation, and the extraordinary circumstances in which the breach of the duty of candour occurred; [41] and (4) concluded that, as the solicitor had not practised for more than five years, it would have been appropriate for the Court of Appeal to make an order for his suspension not extending beyond the present time. [42]

9. [57]

   In Prothonotary v P, [43] the solicitor, who had been using cocaine and heroin for several years, had pleaded guilty to importing a trafficable quantity of cocaine, at the last minute request of her then boyfriend – whom she knew was carrying a quantity of cocaine – as their flight from Argentina approached Sydney. The sentencing judge accepted that the importation was not committed for the purpose of sale or commercial dealing with the cocaine, and that the drugs were handed to her only shortly before she reached Sydney, but also observed that she was fully aware of what she was doing, and was sufficiently calculating to secrete the drugs in her underwear. She was sentenced to 6 months imprisonment, but to be released after 3 months upon entering upon a recognisance to be of good behaviour for 3 months from the date of her release. She served her time in prison, and after 3 months was released to and complied with her recognisance.

10. [58]

    After she had served her sentence, the Prothonotary applied to have her removed from the roll. The Court of Appeal (including two former Presidents of the Bar Association), accepted that the solicitor had been drug free for almost five years, and that the factual matrix of the case was such that the solicitor was not a risk to the public, and in circumstances where the Law Society expressed the view that removal was not necessary, concluded that in light of her proven rehabilitation, and the additional protection that she would have to apply to the Law Society for a practising certificate should she wish to resume practice, no protective purpose would be served by removal.

11. [59]

    Young CJ in Eq observed that while the value of similar cases in the United States was limited because of the social and cultural differences, the general rule there [44] was that drug offences (which relevantly involved attorneys who had been convicted of possessing controlled substances with intent to distribute) involve moral turpitude and warrant disbarment in the absence of compelling mitigating circumstances; but that such mitigating circumstances could be provided by ten relevant factors, namely (1) absence of any prior disciplinary or criminal record; (2) absence of a motive of personal enrichment; (3) honesty and cooperation with the authorities after detection; (4) the offences being unrelated to the practice of the law, in that the addiction has not impacted on performance of professional duties or resulted in harm to clients or others; (5) the ignominy of having suffered a criminal conviction and the deterrent effect; (6) absence of premeditation with respect to the commission of the crime; (7) evidence of good character; (8) any voluntary self-imposed suspension or court imposed temporary suspension from practice; (9) delay in commencing disciplinary proceedings; and (10) most importantly, clear and convincing evidence of rehabilitation.

12. [60]

    Mr Parente satisfies many of those criteria. He had no prior criminal or disciplinary record. He was honest and co-operative with the police. He pleaded guilty in the Local Court, and adhered to that plea on committal to the District Court. He has incurred great ignominy and shame. He appears – according to the reports tendered to the sentencing judge and before this Court – to be genuinely remorseful, and to be ashamed of his conduct, and its impact on his family and associates. He was otherwise of excellent character. He did not apply for renewal of his practising certificate once he pleaded guilty, thereby effectively voluntarily suspending himself from practice, before he was imprisoned.

13. [61]

    There is very good evidence of rehabilitation. It is true that there is little evidence since the sentencing proceedings. But the evidence before the sentencing judge, which is also before us, amply supported his Honour’s conclusion that he was already substantially rehabilitated with excellent prospects, and unlikely to reoffend. The Court of Criminal Appeal observed that it was reported that he had been a “well-behaved inmate”. There is nothing to show that that situation has changed, and while the Law Society submitted that it was for the respondent to adduce any updating evidence of his circumstances, in the absence of anything else it should be accepted that the position remains as the evidence adduced in these proceedings by the Law Society showed it then to have been.

14. [62]

    Moreover, in judging his character, it is also relevant that the criminal conduct was precipitated by addiction, itself due to depression secondary to relationship breakdown and work stressors. While the role of addiction was not considered relevant by the sentencing judge in assessing character and fitness, it is important here. Further, there is his history of positive contribution to his profession and society – at school, at University, through the Labor Party, and through his regional law society.

15. [63]

    However, there are some respects in which Mr Parente’s case is inferior. As to absence of motive of personal enrichment, he was at least motivated by supporting his own habit, operating as a user/dealer weighing, packaging and distributing quantities of drugs for cash, supplying to a small circle of fellow users and facilitating his purchase on a larger scale for his own use and the use of his associates. Nor can it be said that his conduct was not premeditated; it plainly was. And while his misconduct was not in the course of the practice of law, it was not without impact on others; not only did his performance deteriorate, involving at least risk to his clients, but, in the words of the sentencing judge:

16. [64]

    As has been mentioned, he remains under sentence, albeit on parole. In Prothonotary v P, the Law Society did not consider the case to be one in which removal from the roll was necessary.

17. [65]

    As he did not oppose the application, we do not have the benefit of his own evidence – as the Court had in P. This is not a criticism – the position he has adopted is consistent with the deployment on his behalf, in the sentencing proceedings, of the loss of his legal career as a relevant factor; and it is to his credit that he has not sought to resile from that. However, in circumstances in which evidence of rehabilitation and reformation is central, this deprives the Court of the most important direct evidence, and of the opportunity for it to be tested.

18. [66]

    Accordingly, there are the following significant distinctions between this case and P:

    1. (1)

       objectively, judged by the comparative sentences, the gravity of Mr Parente’s offending was much greater;

    2. (2)

       he was financially motivated, albeit to the limited extent of funding his own habit;

    3. (3)

       he acted with premeditation;

    4. (4)

       his misconduct had some impact on his professional practice, and his conduct was calculated to contribute to the ruin, by drug use, of others;

    5. (5)

       his head sentence remains on foot;

    6. (6)

       the relevant professional association considers and has resolved that removal is appropriate; and

    7. (7)

       he does not seek to remain on the roll, and has adduced no evidence of his present circumstances, status and intentions.

19. [67]

    There is incongruity in a person who is serving a sentence of imprisonment for a serious crime to be able to hold himself or herself out as a legal practitioner. In my view his conviction, sentence and the criminal conduct which resulted in them, establish that Mr Parente is not a fit and proper person to be on the roll, at least so long as he remains under sentence, albeit on parole. At the least, consistently with Ziems and A Solicitor v Council of the Law Society, he must be suspended until the expiry of his head sentence. The question is whether any more than that is required.

20. [68]

    Mr Parent’s lapse was great, and it speaks more adversely of his character than those of the practitioners in Ziems and P. While the profession ought to be expected to allow some to be redeemed, it could be understood that – as distinct from Ziems – a significant body of professional peers might well feel difficulty in meeting with him and co-operating with him in the life and work of the profession, with the knowledge that he is a convicted drug-dealer. His misconduct was of a quality that it would be inimical to the reputation of the profession, and to public confidence in it, for his name to remain on the roll, absent very compelling evidence of rehabilitation, reformation and redemption. While the evidence of rehabilitation, at the time of the sentencing proceedings, was strong, there is no evidence of his present activities, attitudes and intentions, and none from Mr Parente himself. Absent any evidence from him, I cannot conclude that he will be fit for practice upon completion of his sentence.

Conclusion

1. [69]

   Accordingly, his unfitness being at this stage indefinite, an order for removal is appropriate. That said, this is not a case in which that conclusion should be regarded as foreclosing forever, or even for a lengthy period, a successful application for reinstatement.

2. [70]

   For the reasons explained, I do not consider it necessary or appropriate to make declarations about conclusions of fact. And although the parties agreed that the appropriate costs order would be “that the respondent pay the Society’s costs of these proceedings, as agreed or assessed”, it is unnecessary to express such orders “as agreed or assessed”. In every case where the costs are not fixed by the court, they will be assessed unless agreed. The orders I would make are simply:

   1. (1)

      that the name of the respondent be removed from the roll; and

   2. (2)

      that the respondent pay the Society’s costs of the proceedings.