Qld partner suspended from practice for 3 years
The former partner of a Queensland-based firm has been suspended from practising as a legal practitioner for a period of three years for misappropriating over $250,000.
The Queensland Legal Services commissioner alleged, in the state’s Civil and Administrative Tribunal, that Mark Joseph O’Reilly was guilty of professional misconduct for defalcations totaling $268,445 with respect to an estate over which Mr O’Reilly had power of attorney.
Those defalcations – which occurred between August 2013 and March 2015 – included the cashing of a cheque on the Commonwealth Bank of Australia account in the name of a company he controlled as per his powers of attorney, the drawing of a cheque from that CBA account to discharge a debt he owed to Bluedice, a company he himself was associated with, and the transferring of payments to Bluedice, to discharge debts which had become due but Mr O’Reilly could not pay.
In May 2015, an administrative employee of the firm at which Mr O’Reilly was a partner noticed “discrepancies” in the bank accounts and statements of the estate and notified a partner at the firm. Subsequently, Mr O’Reilly disclosed his conduct and promptly communicated to the Queensland Law Society said conduct.
Following disclosure, he arranged for repayments, commencing on 11 May 2015 and completed by 21 May 2015, “with most of the money being borrowed from Bluedice and his mother”.
Mr O’Reilly ceased work with the firm the following month and did not renew his practising certificate, which lapsed in June 2015.
The Tribunal characterised his conduct as professional misconduct, and he did not submit otherwise.
Consideration was given to Mr O’Reilly’s mental health: a psychiatrist, Dr Apel, considered that he was suffering from “a depressive illness of marked severity”, which he also described as a major depressive order. Additionally, he considered that Mr O’Reilly suffered from alcohol dependency to the point of physiological dependence, and that his judgment would have been “markedly affected by his psychiatric condition”.
Counsel for the Legal Services Commissioner did not seek to contravert Dr Apel’s views, recognising that Mr O’Reilly was suffering from mental illnesses at the time of the conduct and that the risk of similar conduct in the future was low.
In its deliberations about fitness to practice, the tribunal acknowledged that Mr O’Reilly’s “judgment was markedly impaired”.
“The respondent’s mental condition provides a plausible basis for thinking that the conduct does not truly identify the respondent’s character. Some support for that view may be found in his good conduct, both before and since the misconduct.”
Mention was also made of “the evidence of remorse”, which the tribunal accepted as “deep and genuine”.
“It is confirmed by the respondent’s ‘extraordinary’ commitment to treatment designed to deal with his depressive illness and his alcohol addiction. Some support may also be found in the respondent’s prompt repayment of the amounts which had been taken, prompt reporting to the society, and his co-operation with the investigation and these proceedings. There has also been no attempt to deny or minimise the misconduct.”
Dr Apel submitted that the risk that Mr O’Reilly would engage in similar conduct was low, and that improvements to his overall health were ongoing. That opinion was not challenged.
“It is clear that the respondent’s condition has not improved to the point where he is able to return to practice. The applicant did not advance a case that the current state of the respondent’s mental health warranted a recommendation for the removal of his name from the roll,” the tribunal held.
“When these considerations are weighed up, they do not lead to a conclusion that the probability is that the respondent is permanently unfit to practice law.
Accordingly, an order recommending the removal of the respondent’s name from the local roll is not warranted.”
The tribunal thus decided that Mr O’Reilly should be reprimanded, suspended from practising as a lawyer for three years, and upon application for a new practising certificate, that application should be accompanied by reports from two psychiatrists on his mental condition and its effect on his ability to engage in legal practice.