A suburban solicitor who unlawfully claimed an executor’s commission on a deceased estate has been found guilty of professional misconduct in the Victorian Civil and Administrative Tribunal.

The Legal Services Commissioner charged Ms Lorraine Bauer with two counts of professional misconduct and two of unsatisfactory professional conduct after she claimed over $8,000 in commissions from a deceased estate. Ms Bauer, who operated a sole practice in Bentleigh, agreed to plead guilty to all charges.

Senior Member Smithers of VCAT reprimanded Ms Bauer and ordered that the full amount of the commission she claimed be repaid to the residuary beneficiary of the estate.  Ms Bauer was also ordered to undertake a series of monthly meetings with a mentor approved by the Commissioner at her cost, and to complete six additional units of continuing professional development in addition to the ten points each lawyer is required to undertake every year.

Further, Ms Bauer was ordered to pay a fine of $5,000 to the Legal Services Board.

For further information, download the VCAT orders. (81KB PDF)

A Doncaster solicitor who failed to maintain a standard of competence and diligence in serving his clients, has been found guilty of professional misconduct in the Victorian Civil and Administrative Tribunal.

Mr Sydney Powell of the firm SB Powell and Co. was charged by the Legal Services Commissioner with two counts of professional misconduct for neglecting assets and delaying the settlement of two estates. Mr Powell was also charged with unsatisfactory professional conduct for the poor state he kept his files in.

Mr Powell had been acting for two brothers who were the executors of their parents’ separate estates. After several years of holding the files neither estate had been wound up. It emerged that Mr Powell had failed to invest over $600,000 received from the sale of the estate properties, and also failed to register a share portfolio, causing a significant financial loss to the clients.

When the clients’ numerous attempts to contact Mr Powell were unsuccessful, they were forced to engage another lawyer to complete the settlement of the two estates.

After the Commissioner issued the proceedings, Mr Powell claimed ill health and sought for the charges to be withdrawn. The Commissioner requested that Mr Powell obtain independent medical evidence to support his claims, however he did not do so. Mr Powell ultimately accepted the charges, pleaded guilty and agreed to not renew his practising certificate. He also consented to VCAT ordering that he not be granted another practising certificate and that he pay the Commissioner’s costs, to be determined.

The firm, SB Powell and Co. was sold after Mr Powell’s son and director of the firm, John Powell, was also dealt with by the Commissioner earlier in 2013 for misleading a client and gross delay in file handling.

For further information download the VCAT order. (79KB PDF)

An East Brighton solicitor has had his licence to practice cancelled after he failed to adequately supervise his staff, leading to client money being lost, and for inappropriately handling client money.

The Victorian Civil and Administrative Tribunal found Mr Darroll Nelson guilty of professional misconduct after a paralegal employee acted without his knowledge in accepting payments of trust money from a client, the majority of which was subsequently lost and remains unaccounted for.

VCAT found that Mr Nelson, whose practising certificate did not entitle him to receive trust money, failed to adequately supervise the actions of his employee, and that the significance of his error was compounded by a similar disciplinary finding against him in 2003. It further found on two other occasions Mr Nelson received money from a client which was paid directly into his betting account.

The Legal Services Commissioner brought nine charges of professional misconduct against Mr Nelson for failing to properly supervise an employee, accepting trust funds when not entitled to do so, and for failing to provide information to the Commissioner. Mr Nelson pleaded guilty to all charges.

In his decision, Senior Member Smithers of VCAT noted that the previous action taken against Mr Nelson in 2003 ‘should have forcefully demonstrated to Mr Nelson that he needed to adopt a more hands on approach to supervision of his employees’. He also noted that Mr Nelson’s lay associate employee was the subject of action taken by the Legal Services Board in the Magistrates’ Court earlier in 2013 for working at a law practice without disclosing a previous relevant offence, and led VACT to declare him a prohibited person.

Senior Member Smithers ordered that Mr Nelson’s practicing certificate be cancelled for a period of 8 months commencing 2 September and that any future certificate issued to him be done so on the condition that Mr Nelson employ a bookkeeper approved by the Commissioner or make other financial management arrangements approved by the Commissioner. Mr Nelson was also ordered to pay the Commissioner’s costs, fixed at $9,000.

For further information on the prosecution of Mr Nelson, see the VCAT decision.

For further information on prohibited lay associates, see the RPA Alert, RPA News and the Legal Services Board’s disclosure requirements for non-legal employees.

A corporate adviser consulting to a regional telecommunications company has been found guilty in the Melbourne Magistrates’ Court of unqualified legal practice.

Mr Getha Somasundaram pleaded guilty in the Melbourne Magistrates’ Court to the charge brought by the Legal Services Board after the contents of several letters raised concerns with a local law firm.

Mr Somasundaram wrote to the law firm on behalf of his client, CountryTell Management Pty Ltd, a telecommunications company, in late 2011. Several of his letters contained legal analysis and argument relating to a licensing agreement between his client and a regional library, being represented by the law firm. In one of those letters Mr Somasundaram referred to himself as ”Legal Counsel”.

The lawyer representing the library was concerned that Mr Somasundaram was falsely representing himself as a lawyer, and raised the matter with the Board, which commenced an investigation in early 2012. Mr Somasundaram was soon after charged with engaging in unqualified legal practice.

Mr Somasundaram pleaded guilty to one charge of engaging in unqualified legal practice. He was convicted and fined $5,000 and ordered to pay the Board’s costs fixed at $10,696.70.

We have prepared a new fact sheet for consumers: Investing money with your lawyer. See our Fact Sheets page.

RPA Alert 5, September 2013 is available for download (454KB PDF). This Alert covers the employment of overseas-qualified lawyers in Victoria.

The Legal Services Board has issued RPA Alert 5, September 2013. Download the Alert from the Alerts page.

A western suburbs solicitor who inappropriately communicated with clients of his opposing solicitors has had his practising certificate cancelled by the Victorian Civil and Administrative Tribunal. VCAT found Footscray solicitor, Mr Mohammed Tuferu, guilty of professional misconduct for dealing directly with two opposing clients without their respective legal representative’s knowledge.

Mr Tuferu was engaged to act for a father from an African community in a family law matter. An Intervention Order had been sought against the father by his child, a minor. The Department of Human Services were also involved in the matter, and both the child and the Department had their own independent legal representation.

After some initial administrative procedures, and before the matter eventually came before the Court, Mr Tuferu was approached in his office by the child, an uncle of the child and several other adult males, all members of the same community. The child’s legal representative was not present. During the meeting, the child signed a statutory declaration indicating a desire to cease Court proceedings against the father, which Mr Tuferu then provided directly to an officer of the Department of Human Services.

When the child’s solicitor learned of the meeting, the child confirmed signing the declaration but explained he had not understood the implications of the document. The child indicated a desire to continue to seek the Intervention Order against the father, which was eventually granted by the Children’s Court.

The Court alerted the Legal Services Commissioner to Mr Tuferu’s contact with the child and the Department, and Mr Tuferu was subsequently charged with two counts of professional misconduct for dealing directly with an opponent’s client.

Appearing before VCAT, Mr Tuferu acknowledged that he found himself in a conflict of interest situation. VCAT was concerned that the conduct was more than a conflict of interest, but appeared to be coercion of the child without a legal representative present. VCAT found “The course of action indicates an abuse of the Court’s process and that action was also clearly against the interests of the child.”

VCAT found Mr Tuferu guilty of both charges, and ordered Mr Tuferu’s practising certificate be cancelled and that he not be entitled to apply for a new practising certificate before 1 August 2014. Mr Tuferu was also ordered to complete a course in legal ethics as approved by the Legal Services Board, and to pay the Commissioner’s costs fixed at $8,132.32.

Mr Tuferu has sought leave to appeal the decision, and the Supreme Court has stayed VCAT’s decision relating to the cancellation of his practising certificate and costs, pending a decision on the appeal.

For further information, see the VCAT decision.

A former corporate lawyer who practised law for over two years without holding a practising certificate has been struck from the Roll of Legal Practitioners maintained by the Supreme Court of Victoria.

Mr Andrew Nguyen was removed from the Roll by the Supreme Court following a recommendation by the Victorian Civil and Administrative Tribunal in early 2013, which determined that Mr Nguyen was “not a person of honesty”. VCAT had found Mr Nguyen guilty of 16 charges of professional misconduct brought by the Legal Services Commissioner. These charges included lying to a Judge in a previous disciplinary hearing, engaging in unqualified legal practice, and holding himself out as being entitled to practise law when he was not entitled to do so.

The Commissioner applied to the Supreme Court to have Mr Nguyen removed from the Roll of Legal Practitioners, and in late August Justice Macaulay of the Supreme Court granted the Commissioner’s application.

In the Court’s decision, Justice Macaulay stated that Mr Nguyen’s conduct demonstrated that he lacked “…the requisite qualities of honesty, knowledge and ability – particularly honesty – involved in the notion of being fit and proper to practise law.”

Justice Macaulay further found that Mr Nguyen “…has been shown not to be fit and proper and that he will likely remain so for the indefinite future.”

The Court ordered Mr Nguyen’s name be removed from the Roll.

For further information, see the Commissioner’s previous RPA News post and the Supreme Court decision.

A North Melbourne solicitor has pleaded guilty to professional misconduct after failing to provide information requested by the Legal Services Commissioner.

Mr Rainer Ellinghaus, of the law firm Ellinghaus & Lindner, was charged with two counts of professional misconduct after he consistently failed to provide information requested of him by the Commissioner.

In attempting to conciliate a resolution between a complainant and the solicitor, the Commissioner’s Rapid Resolution team communicated with Mr Ellinghaus informally over many months seeking information to help resolve the complaint. When Mr Ellinghaus failed to provide the information, the Commissioner made a formal request for specific information about the issues involved in the complaint. Mr Ellinghaus delayed his response to the Commissioner for a further five months, and the information he provided did not include all the information the Commissioner had requested.

The Commissioner, Michael McGarvie, took the unusual step of laying charges against Mr Ellinghaus because of the continued recalcitrance of the solicitor.

‘Only in rare circumstances would these charges be laid against a lawyer for failing to respond to a request of further information from my office’, Mr McGarvie said.

Mr Ellinghaus agreed to plead guilty before the Victorian Civil and Administrative Tribunal, and undertook to provide the Commissioner with the information sought by an agreed date.

‘This need never have reached this point. If the solicitor had provided the information in a reasonable time, he would not have this finding of professional misconduct against his name.’

Member Butcher of VCAT reprimanded Mr Ellinghaus, fined him $500 and ordered he pay the Commissioner’s costs fixed at $1000.

For further information, download the VCAT decision. (204KB PDF)

A solicitor who attested to witnessing signatures that were not signed by the persons named, has pleaded guilty to professional misconduct in the Victorian Civil and Administrative Tribunal.

Caulfield solicitor, Mr Con Kiatos, was found by VCAT to have failed to reach or maintain a reasonable standard of competence and diligence when he witnessed two signatures that he was aware did not belong to the named signatories.

Mr Kiatos improperly witnessed the signatures while assisting his wife’s property development company secure credit with a supplier. Mr Kiatos said that he had authorisation to sign his wife’s name on the credit application which he did without indicating that he had signed as his wife’s agent. He then witnessed that signature.

Mr Kiatos also witnessed signatures on a directors’ guarantee requested by the supplier, despite being aware that the signatures did not belong to the persons named on the documents; one belonged to Mr Kiatos who again signed his wife’s name, while a second belonged to a relative of the another director, not the director himself. The suppliers accepted the credit application without knowledge of the way in which the guarantee was executed.

The responsibility given to lawyers to be approved witnesses requires that when they sign as a witness to a document, they do so truthfully. The public should have confidence that the document has been executed properly as attested by the lawyer’s signature, even if the witnessing is not done in the course of legal practice. In light of this, the Legal Services Commissioner believed that Mr Kiatos’ decision to witness the signatures on the directors’ guarantee in the way that he did was improper and charged Mr Kiatos with one count of professional misconduct.

Mr Kiatos pleaded guilty before VCAT, where he was reprimanded, fined $3,000 and ordered to pay the Commissioner’s costs.

For further information, download the VCAT decision.

A South Yarra solicitor has been found guilty of professional misconduct after the sale of a business fell through and deposit moneys were not refunded to the prospective purchaser.

Solicitor, Mr Joseph Katz, was reprimanded by the Victorian Civil and Administrative Tribunal, fined and ordered to pay compensation to the prospective purchaser after pleading guilty to a charge of professional misconduct brought by the Legal Services Commissioner.

Mr Katz was a partner of a small suburban firm engaged to act for the vendor in the sale of a small business. An employee solicitor had day to day conduct of the matter. A prospective purchaser paid a $20,000 deposit for the sale of the business, however the finalisation of the sale was subject to certain conditions which were never met.

Before the sale fell through, Mr Katz’s firm asked for and received $4,600 from the purchaser’s deposit money to cover legal costs. When the conditions of sale were not met, the prospective purchaser sought a full refund of the deposit. Mr Katz, as a partner in the law firm, became involved in the matter and refused to refund the $4,600, claiming an entitlement to retain those moneys for legal costs owed by their client, the vendor.

The Legal Services Commissioner charged Mr Katz with professional misconduct for retaining the deposit money without any proper basis to do so.

In making his decision, VCAT Vice President Judge Macnamara accepted that Mr Katz had a previously spotless record of almost 40 years practice. He noted:

‘…the life of either a sole practitioner or a partner in a small suburban firm is a difficult one, long hours of work make it easy for a practitioner to be distracted and perhaps make misjudgements…’.

Judge Macnamara took into account the community and pro-bono contributions Mr Katz had made over his 40-year career. His Honour commented that this formal reprimand and misconduct finding would be mortifying for a person of seniority and standing and represented a proper punishment.

The judge reprimanded Mr Katz and ordered him to refund $4,600 to the prospective purchaser, pay $2,000 in interest and refund legal costs incurred by the prospective purchaser of $577.50. Mr Katz was also fined $4,000 and ordered to pay the Commissioner’s costs of over $6,500.

For further information, see the VCAT decision.

The consolidated Legal Services Board and Commissioner annual report for 2013 is available for download from the Annual Reports page.

RPA Alert 6, November 2013 is available for download (451KB PDF). This Alert covers the importance of lawyers retaining appropriate professional detachment when dealing the opposing side.

RPA Alert 7, November 2013 is available for download (325KB PDF). This Alert was sent only to staff of law practices which have authorisation to operate a trust account. The Alert covers the changes to statutory deposit accounts taking place between 27 November and 2 December 2013.

The offices of the Legal Services Commissioner will be closed from 2:00 pm, Monday 23 December 2013 and will re-open the morning of Thursday 2 January 2013.

A lawyer who provided poor advice to a client in an employment discrimination claim has pleaded guilty to unsatisfactory professional conduct in the Victorian Civil and Administrative Tribunal.

Solicitor Mr Kevin Saw, of the former law firm Saw Hunter Moore, gave verbal and written advice suggesting the claim had a strong chance of success without reviewing the relevant paperwork or taking full instructions from the client.

The client, who received an offer of employment by the Department of Defence which the Department subsequently withdrew, believed he was rejected on the basis that he had a pre-existing illness. Mr Saw advised the client could expect to recover up to $100,000 in compensation if he pursued his discrimination claim.

While Mr Saw was on leave, another partner at the firm reviewed the file and advised the client that he in fact had a weak case, and that he would be lucky to even recover his legal costs. The client subsequently complained to the Commissioner about the advice Mr Saw gave him.

Mr Saw pleaded guilty in VCAT to unsatisfactory professional conduct for his substantial failure to reach or maintain a reasonable standard of competence and diligence.

Mr Saw, who does not currently hold a practising certificate, gave the Tribunal an undertaking that he would not apply for a new practising certificate for six months. VCAT ordered Mr Saw to undergo an appropriate health assessment as determined by the Legal Services Board or its delegate, before he applies for a new certificate.

Mr Saw was also ordered to pay the Commissioner’s costs fixed at $15,000.

A Glen Waverley solicitor who significantly delayed completion of legal work has been found guilty of professional misconduct by the Victorian Civil and Administrative Tribunal.

Mr John Mingos, principal of the former law firm Mingos Kay Lawyers, pleaded guilty to six counts of professional misconduct and two counts of unsatisfactory professional conduct in August 2013.

The charges were brought by the Legal Services Commissioner after several complaints were made by Mr Mingos’ clients relating to issues including poor communication, delays in finalising legal work and failure to provide trust account statements.

After lengthy discussions with the Commissioner’s office Mr Mingos pleaded guilty to the charges. Mingos Kay Lawyers was also placed into receivership in April 2013 by the Supreme Court of Victoria before eventually being sold.

In his decision, Senior Member Smithers of VCAT characterised Mr Mingos’ conduct as being caused by procrastination and avoidance behaviours. He further noted that Mr Mingos did not appreciate the seriousness of these matters to his clients as his delays continued even after the clients made complaints to the Commissioner.

VCAT took into account Mr Mingos’ existing health conditions when determining the appropriate penalty. Mr Mingos was reprimanded and had his practising certificate suspended for one month, which ended on 14 September 2013. VCAT also restricted Mr Mingos’ practising certificate to a further period of 18 months as an employee solicitor, and he was ordered to complete additional continuing professional development units.

Mr Mingos was also ordered to pay the Commissioner’s costs of $12,500.

For further information, see the VCAT decision.

A former corporate lawyer who practised law for over two years without holding a practising certificate has been struck from the Roll of Legal Practitioners maintained by the Supreme Court of Victoria.

Mr Andrew Nguyen was removed from the Roll by the Supreme Court following a recommendation by the Victorian Civil and Administrative Tribunal in early 2013, which determined that Mr Nguyen was “not a person of honesty”. VCAT had found Mr Nguyen guilty of 16 charges of professional misconduct brought by the Legal Services Commissioner. These charges included lying to a Judge in a previous disciplinary hearing, engaging in unqualified legal practice, and holding himself out as being entitled to practise law when he was not entitled to do so.

The Commissioner applied to the Supreme Court to have Mr Nguyen removed from the Roll of Legal Practitioners, and in late August Justice Macaulay of the Supreme Court granted the Commissioner’s application.

In the Court’s decision, Justice Macaulay stated that Mr Nguyen’s conduct demonstrated that he lacked “…the requisite qualities of honesty, knowledge and ability – particularly honesty – involved in the notion of being fit and proper to practise law.”

Justice Macaulay further found that Mr Nguyen “…has been shown not to be fit and proper and that he will likely remain so for the indefinite future.”

The Court ordered Mr Nguyen’s name be removed from the Roll.

For further information, see the Commissioner’s previous RPA News post and the Supreme Court decision.

A Melbourne barrister who was suspended from practice for three years after being found guilty of tax-related offences has had his penalty reduced by the Court of Appeal.

Mr Matthew Stirling appealed the Victorian Civil and Administrative Tribunal’s 2012 decision to suspend his practising certificate after he pleaded guilty to one charge of professional misconduct and another of unsatisfactory professional conduct.

The charge of professional misconduct related to Mr Stirling’s failure to lodge tax returns over eight years, failure to pay income tax on time over nine years, and failure to lodge BAS returns or pay GST over a period of five years. The second charge arose after Mr Stirling made a false statement to the Victorian Bar that he had been diligent in attending to his lodgement of returns since 2005, when he had in fact received four penalty notices from the Australian Tax Office for late lodgement of BAS returns. A three-person VCAT bench suspended Mr Stirling from practice for three years.

Chief Justice Warren and Justices Neave and Dixon of the Court of Appeal heard Mr Stirling’s appeal in September 2013. In the judgment handed down in December 2013, the Court determined that VCAT had erred by considering conduct that was the subject of one charge as being an aggravating factor in the other charge. The Court of Appeal determined that the penalty imposed by VCAT was made manifestly excessive by factoring in the practitioner’s conduct and applying it to determine a penalty for both charges, instead of separately.

The Court determined a new penalty for Mr Stirling that, while recognising the seriousness of his conduct, would ensure that he complied with his taxation obligations, maintain public confidence in the legal profession and facilitate his rehabilitation.

The Court ordered that Mr Stirling be suspended from practice for a period of 30 months;  with 24 months wholly suspended for 5 years. The court also reprimanded Mr Stirling and placed a series of conditions on any practising certificate that Mr Stirling receives during the period covered by the orders, including the requirement to engage an accountant to prepare his tax and BAS returns, and the creation of a separate bank account into which he deposit half of all barrister’s fees for paying tax. Other additional requirements were also made relating to professional development training and counselling to be organised through the Victorian Bar.

For further information, see the original VCAT decision and the Court of Appeal decision.