By Paul Gregoire and Ugur Nedim
On 17 January 2017, NSW man Tony Nash made a complaint to the NSW Legal Services Commissioner about a delay in receiving trust money relating to the sale of his property from solicitor Barbara Ann Green, who’d been acting on his behalf regarding the transaction.
On taking over the case, the Law Society of NSW found dishonest conduct on the part of Green, and the solicitor’s practising certificate, which had been active since 1974, was suspended, while a Law Society representative took over the running of her practice, Hermann & Green.
Early July saw Green contact a barrister she had a long-term working relationship with and ask her to assist with a “major shortfall” in her trust account and help the clients who were owned money to make claims via the Law Society’s Fidelity Fund, which occurred in March 2018.
Green began experiencing financial difficulties during the global financial crisis. In an effort to survive, she started working from home, sold her house, and eventually started playing poker machines to make up for shortfalls: a habit that was eventually supported by client trust money.
Green pleaded guilty in the New South Wales Local Court on 5 September 2019 to on count of dishonestly obtaining financial advantage, also known as fraud, contrary to section 192E(1)(b) of the Crimes Act 1900 (NSW); an offence that carries a maximum penalty of 10 years’ imprisonment.
The criminal conduct Green was charged over involved the dishonest misappropriation of $987,252 which had been held in trust for clients in 5 cases, comprising the distribution of funds from three deceased estates and the handling of money linked to two family law cases.
The NSW District Court heard that the misappropriation of trust moneys took place over August 2013 through to June 2017. And it found that Green had committed a serious breach, as she “was acting as a solicitor for her victims and handling money in such an important position of trust”.
The solicitor was convicted in the District Court on 27 July 2020. Green was sentenced to 2 years and 3 months imprisonment, with non-parole set at 10 months. It was her first conviction. And the NSW woman was released from prison in October this year.
A Law Society investigator further found that Green’s behaviour breached a long list of civil offences contained in NSW legislation that governs the legal profession, including failing to maintain trust records and failing to hold trust money exclusively for the person on whose behalf it was received.
And these five further matters, which weren’t the subject of criminal charges, resulted in the necessity for investigators to reconstruct client ledgers.
A declaration sought
With Green being released from prison, the Council of the Law Society of NSW sought a declaration that she is not a fit and proper person to remain on the roll of Australian lawyers maintained by the NSW Supreme Court, along with an order from the court that her name be removed from the roll.
This is pursuant with section 23 of the Legal Profession Uniform Law (NSW), which stipulates that the Supreme Court may order the removal of a name from the roll of lawyers on the recommendation of the designated local authority, which, in this case, is the Law Society of NSW.
And in making such a determination it was necessary for the court to find Green not fit and proper to be practising in the present and into the indefinite future.
Not fit and proper
In their 14 December final findings, Justices Julie Ward and Jeremey Kirk, along with Acting Justice John Griffiths, outlined that in determining whether Green was fit and proper to be a lawyer, it was especially pertinent to consider the protection of the public and its confidence in the profession.
The three-justice bench found that the criminal conduct was “very serious” in nature, as it saw the misappropriation of close to $1 million in client money, and this involved taking deliberate advantage of the trust and confidence that’s placed in the role of a solicitor in our society.
“The offences involved significant breaches of trust and serious dishonesty,” their Honours found. “That alone, in our opinion, establishes that the respondent is not a fit and proper person to practise as a solicitor.”
The justices further pointed to the additional conduct that fell outside of the criminal charges, which amounted to “grave impropriety”, as the lawyer repeatedly and intentionally breached the legal profession rules in place to protect client trust funds.
“Considered as a whole, there is no doubt as to the seriousness and deliberate nature of the respondent’s conduct,” their Honours added.
The Supreme Court further explained that maintaining confidence in the legal profession is of primary public interest as barristers and solicitors play a central role in the administration of justice in this state.
And as to whether Green was unfit to practise law into the indefinite future, the court found that the deliberate nature of the offending, coupled with no evidence to show that she’d done anything to safeguard against repeat behaviour, warranted such a finding.
Struck from the role
On 14 December, the NSW Supreme Court determined that Green’s name should be struck from the state roll of lawyers, as it would tarnish the reputation of the NSW legal profession and lead to a drop in public confidence in the administration of justice if she wasn’t removed from it.
The three justices also made a formal declaration that Green is not a fit and proper person to remain as a practising lawyer in this state.
And in terms of costs, the Law Society called on Green to pay its costs, while Green preferred each party pay their own, and the Supreme Court judges ruled in favour of the Law Society on this matter.