RPA Alert 2, 2012 is available for download (591KB PDF)

The practising certificate renewals cycle for 2013/2014 will open on Monday, 25 March 2013. The deadline for renewing your practising certificate without incurring a surcharge is 30 April 2013.

You will receive a letter from the Legal Services Board in the week beginning 25 March 2013, which will outline details of the renewals process. The Board encourages all practitioners to renew online again through the Board’s online application called LSB Online. You must login to LSB Online using your Practitioner Number as the username. Your Practitioner Number will be published in the letter sent to you by the Board in the week beginning 25 March 2013. The hard copy renewal form will be available on the Board’s website from 25 March 2013 if you do not wish to renew online. Please phone the Board on 9679 8000 for more information.

The Legal Services Board 2013 Major Grants round has now closed. Outcomes are expected by September 2013.

RPA Alert 1, 2013 is available for download (583KB PDF)

The Legal Services Commissioner has issued RPA Alert 1 for 2013. Download the Alert from the RPA Alerts page.

The Magistrates Court has found a former lay associate of a law firm guilty for failing to disclose a previous dishonesty offence.

Mr John Leo Lelleton of Fitzroy was employed as a paralegal in 2009 by the East Brighton law firm, Darroll Nelson and Co. Because Mr Lelleton had been found guilty of receiving property by deception in 1996, he was required to inform the practice that he had a previous finding of guilt for a dishonesty offence. However the firm was never informed.

It is an offence for a person who has been found guilty of a relevant offence to seek employment in a local law practice, or commence employment in a local law practice, unless they have first informed their prospective employer of the offence. The employer must then seek permission from the Legal Services Board if they wish to employ the person. This issue was covered in RPA Alert 1, 2012.

The Board learned of Mr Lelleton’s finding of guilt for a relevant offence in mid-2012 and subsequently charged him with being a person who, having been found guilty of a relevant offence, became a lay associate of a law practice. Mr Lelleton pleaded guilty to the charge in the Magistrates Court, was fined $1,000 and ordered to pay the Board’s costs of $3,000.

For further information on prohibited lay associates, see the Board’s Prohibited Lay Associates Guidelines and the Frequently Asked Questions.

A practitioner who worked as a corporate lawyer for more than two years without holding a current practising certificate has pleaded guilty to 16 charges of misconduct.

The Victorian Civil and Administrative Tribunal found that Mr Andrew Nguyen of Maribyrnong had not renewed his corporate practising certificate after it expired in June 2009. Despite this he continued to work as an in-house lawyer for a prominent retail chain, even being involved in litigation in the Supreme Court on behalf of his employer.

The Legal Services Commissioner brought two charges of misconduct at common law against Mr Nguyen for lying to a County Court Judge while under oath in a previous disciplinary hearing in 2011, where he falsely stated he was not practicing as a lawyer and that he had applied to renew his practising certificate. A further 14 charges of professional misconduct were also brought against him relating to seven counts of practising without a current practising certificate, and seven of representing that he was entitled to practise when he did not hold a current practising certificate. Mr Nguyen pleaded guilty to all 16 charges.

In making his decision, Senior Member Smithers found that Mr Nguyen had demonstrated a lack of knowledge of his ethical obligations as a legal practitioner and that he is “not a person of honesty”, therefore concluding that he is unfit to practise and likely to remain so for the indefinite future. An order was made that Mr Nguyen was not to be granted a practicing certificate before 1 April 2019 and he was ordered to pay the Commissioner’s costs, yet to be fixed.

The Tribunal also recommended that Mr Nguyen’s name be removed from the roll of practitioners.

This case is a salient reminder to corporate lawyers that they are responsible for renewing their practising certificates each year and cannot expect their employer to necessarily ensure a current certificate to practise exists.

A Kew solicitor was ordered to pay $11,000 in legal costs and had his practicing certificate suspended after being found guilty of eight charges of professional misconduct.

Mr Andrew Burgess, a partner at the firm Henderson &Ball, appeared in the Victorian Civil and Administrative Tribunal in March where the eight charges were heard before Her Honour, Judge Jenkins of the County Court.

Mr Burgess agreed to plead guilty to seven charges: two charges of failing to communicate with clients, two of gross delay in finalising two estates, and three of failing to provide a full written explanation to the Commissioner relating to other complaints.

Mr Burgess contested a further charge of statutory professional misconduct for failing to comply with an undertaking given to the Commissioner in 2011, which stated he would complete particular units of continuing professional development (CPD) training by a set date, in addition to the normal CPD requirement for legal practitioners.

While he acknowledged that he failed to comply with the terms of his undertaking, Mr Burgess argued that this was not caused by wilful or reckless behaviour but because he did not review the terms of the undertaking prior to carrying out the additional CPD. Judge Jenkins commented that it was “incomprehensible that a prudent solicitor would not have checked the very document containing the terms of the undertaking prior to its performance”, and found Mr Burgess guilty of professional misconduct.

Judge Jenkins described Mr Burgess’ conduct as “inevitably and deservedly” bringing the profession into disrepute, and noted that it warranted “sanctions sufficiently severe to reflect appropriate condemnation and send the clearest message to the legal profession that such conduct will not be tolerated.”

Judge Jenkins suspended Mr Burgess’ practising certificate for 9 months from May 2013, and ordered that for a further 12 months after the suspension period Mr Burgess should only be permitted to practise as an employee solicitor. Her Honour also reprimanded Mr Burgess and ordered that he pay the Commissioner’s costs fixed at $11,000.

For further information, download the VCAT Decision. (534KB PDF)

A Melbourne solicitor who lied to the regulator and falsified documents has been reprimanded and had his practising certificate cancelled. Mr Nabil El Hissi, of Narre Warren, pleaded guilty to 10 charges of professional misconduct in VCAT following an investigation by the Legal Services Commissioner.

Mr El Hissi acted for two clients in a joint property transaction; the first client was a company associated with his parents, and the second was a company associated with friends of his parents. The interests of both clients began to diverge when the first client successfully obtained finance but the second client could not. Despite this, Mr El Hissi continued to represent both parties and devised a new arrangement which allowed the purchase of the property to go ahead.

Loans from family members of the second client were arranged for the balance of the property purchase. This involved the mortgaging of a property to raise capital. However the owner of the property was overseas at the time the transaction was to be finalised. The documents were instead signed by a member of the second party, and Mr El Hissi falsely executed and attested to the documents.

When the Law Institute of Victoria, on behalf of the Commissioner, questioned Mr El Hissi about the mortgage documents Mr El Hissi instructed his solicitor to provide false and misleading information about the attestation and execution of the documents. After further investigation and the discovery of new information, Mr El Hissi eventually admitted what he had done.

The Commissioner brought five charges against Mr El Hissi related to conflict of interest and false execution and attestation of mortgage documents, while a further five charges related to the breach of duty of candour to the regulator during the course of an investigation.

Senior Member Smithers of VCAT noted that “Practitioners are required to be scrupulously honest in their dealings with the courts, tribunals, the community, other practitioners and regulators. This fundamental requirement has been blatantly breached here”.

Mr El Hissi was reprimanded and his practising certificate cancelled for 9 months. He was also ordered to pay the LSC’s costs fixed at $16,293.84.

For more information, see the VCAT decision.

A solicitor working for a government agency has been found guilty of two charges of professional misconduct and prohibited from practising for three months in a decision handed down by VCAT.

Mr Elias Rallis, employed in a senior government position, was found to have breached an undertaking he gave to the Commissioner in 2012 involving payment of costs following an earlier misconduct finding. No misconduct occurred in connection to government work.

Mr Rallis was found guilty in 2009 of four counts of misconduct related to work undertaken before he commenced with the government agency. He was ordered to pay costs of $24,500 to the Commissioner by December 2010. After no payments were made, the Commissioner commenced court action in late 2011 to recover the costs. In mid-2012 Mr Rallis gave the Commissioner a $10,000 payment towards the outstanding costs and a written undertaking to pay the balance in line with an agreed payment schedule, in exchange for the Commissioner withdrawing further legal action at that time. However, no further payments were made and Mr Rallis did not respond to the Commissioner’s attempts to contact him by phone and in writing.

The Commissioner brought one charge of professional misconduct against Mr Rallis for his breach of a written undertaking, and one count of professional misconduct for failing to provide a full written explanation of his conduct during the Commissioner’s subsequent investigation.

Senior Member Smithers said that as a government lawyer, Mr Rallis was “under ethical obligations over and above those applicable to private solicitors, associated with the government’s obligations to act as a model litigant”. Given that Mr Rallis was employed by a government agency which protected peoples’ rights, this “further underlines the importance of compliance with his ethical obligations”.

While Mr Rallis paid the balance of the outstanding costs on the day of the hearing, Senior Member Smithers highlighted the need to protect the public by imposing a sanction which interfered with Mr Rallis’ right to practise.

Mr Rallis was found guilty of both charges and was prohibited from practising as a legal practitioner, whether as a government lawyer, or otherwise, for a period of three months, as well as being prevented from being granted a practising certificate for the same period. Mr Rallis was reprimanded and ordered to pay the Commissioner’s costs fixed at $3,945.30.

As a government solicitor, Mr Rallis is not required to hold a practising certificate to undertake legal work for his employer. This case demonstrates that even where holding a practising certificate is not required, the right to practice can be revoked by a court or tribunal in some circumstances where professional misconduct has occurred. Mr Rallis no longer works in a legal capacity with the government agency.

For further information download the VCAT Decision.

The Board has released draft Mortgage Investment Scheme Notification Rules 2013 for public consultation. For more information, see the Legal Profession Rules page.

A Melbourne barrister has been found guilty of professional misconduct for failing to meet his tax obligations.

Mr Nigel Turner had been previously charged by the Legal Services Commissioner in 2012 with professional misconduct after being convicted on 27 tax offences in the Magistrates Court. The convictions covered a period of approximately 10 years and included failure to lodge income tax returns, failure to lodge business activity statements, failure to disclose income received, and failure to make provision for and pay income tax and GST. Mr Turner pleaded guilty to professional misconduct before the Victorian Civil and Administrative Tribunal and was reprimanded, fined $5,000 and ordered that he advise the Legal Services Board of his discharge from bankruptcy and the Commissioner of any future tax breaches. He was also ordered to pay the Commissioner’s costs of $8,233.76.

The Commissioner appealed the decision on the basis that the sanction was not appropriate for the seriousness of the conduct. The Commissioner argued that a period of suspension from practice was an appropriate sanction.

Justice Emerton of the Victorian Supreme Court heard the appeal and found that Mr Turner’s conduct demonstrated ‘an absence of the honesty and integrity that the public is entitled to expect from a legal practitioner’. Her Honour also noted that Mr Turner’s conduct over an extended period of time ‘reflects the practitioner’s hypocrisy in purporting to practise and uphold the law while at the same time committing serious breaches of the law’.

Justice Emerton ruled that the Tribunal made a material error of law in its finding that its role as being protective of the public was minimal in the matter because Mr Turner’s actions were not directly involved with clients. Her Honour ruled that this error had the capacity to affect the severity of the sanction. Further, Justice Emerton stated that the Tribunal’s reference to Mr Turner being in the twilight of his career and having few prospects if he could not carry on practice, had served no purpose other than to display sympathy, which was not a proper consideration for the sanction applied. Her Honour directed VCAT to rehear the matter.

In April 2013 Member Butcher of VCAT presided over the rehearing and determined the previous sanction was appropriate to act as a general deterrence for legal practitioners by demonstrating that they would face a sanction for non-compliance with tax obligations. Although Mr Turner did not have a diagnosed mental illness, Member Butcher deemed that Mr Turner’s ‘head in the sand attitude’ towards meeting his tax obligations was influenced by ‘powerful mitigatory factors, particularly his mental condition at the time of his default and delay’. He considered that Mr Turner’s conduct, though it had brought the legal profession into disrepute and damaged the public confidence in the system, had been reformed and therefore a suspension of Mr Turner’s practising certificate was not warranted.

Member Butcher reaffirmed the original VCAT finding and orders, with the addition that costs as per the previous order were to be paid by 16 May 2013.

For more information, see the VCAT decision.

A current casual vacancy exists for a non-advocate legal practitioner representative on the Legal Services Board. A by-election, managed by the Victorian Electoral Commission, will be conducted by postal vote between 5 – 24 June 2013. Any person wishing to stand for election to fill the vacancy, or to vote in the by-election, must be enrolled on the roll of non-advocates.

The closing date for enrollment on the voter’s roll of non-advocates is Thursday, 16 May 2013. For further important information about the by-election, including how to obtain a nomination form, please see the Board election page.

A solicitor who was denied a practising certificate by the Legal Services Board in 2010 has had his appeal against the Board’s decision dismissed by the Court of Appeal.

Mr David Forster of Frankston law firm Whistleblowers Lawyers, and also previously of the law firm Hollows Lawyers (in receivership), was refused a practising certificate by the Board in 2010 due to concerns about his fitness and suitability to engage in legal practice. The Board determined that Mr Forster was not a fit and proper person to hold a practising certificate because of the way he conducted himself with clients of his law practice and because of his behaviour during a 2009 Supreme Court hearing where the Board sought to appoint a receiver to Mr Forster’s law practice. The application to appoint a receiver resulted from allegations that Mr Forster had committed breaches of trust accounting requirements under the Legal Profession Act 2004, and breaches of the Legal Profession Regulations 2005.

Mr Forster appealed the Board’s decision to refuse him a practising certificate to the Victorian Civil and Administrative Tribunal and failed. In his orders, VCAT President Ross noted that Mr Forster had ‘failed in his duty of honesty and candour to the Court’ in the 2009 Supreme Court receivership proceedings. He further noted that Mr Forster showed a ‘reckless disregard towards his duty of candour to the Tribunal’ during the VCAT appeal by being ‘evasive and changing his evidence when confronted with contradictory material’. Justice Ross dismissed the appeal, finding that Mr Forster was not a fit and proper person to hold a practising certificate.

Mr Forster then lodged an appeal against the VCAT decision with the Supreme Court on 12 grounds, arguing that Justice Ross made numerous errors of law in his judgement. In February 2013 Justices Harper, Weinberg and Kyrou heard the matter. In their decision handed down in April 2013, their Honours also found that there was overwhelming evidence to suggest Mr Forster’s conduct during the receivership proceedings constituted a failure to comply with his duty of honesty and candour to the Court. Further, they found that Justice Ross’ decision was carefully considered and without any of the errors alleged by Mr Forster. The Court dismissed Mr Forster’s appeal and awarded costs to the Board.

Mr Forster now no longer holds a practising certificate and is not entitled to engage in legal practice.

For more information, see the 2009 Supreme Court decision, the 2011 VCAT decision and the 2013 Court of Appeal decision.

A former solicitor, Mr Anthony Coleman of Yarraville, has been sentenced to nine months in prison (suspended for 18 months) after pleading guilty to nine charges in the Melbourne Magistrates Court on 14 May 2013 for breaches of the Legal Profession Act 2004. Mr Coleman was also fined $13,000 and ordered to pay $20,000 in costs to the Legal Services Board.

The charges related to Mr Coleman’s unauthorized use of ‘regulated property’, unqualified legal practice and failing to cooperate with the Receiver of his former law practice, Coleman Lawyers.

In 2011, the Supreme Court made Orders that a Receiver be appointed to Coleman Lawyers, following findings of serious financial irregularities in the running of the law practice. Immediately prior to the appointment of the Receiver, Mr Coleman advised the Legal Services Board that he would not re-apply for a practising certificate after 30 June 2011, and did not, and has not done so.

Following the Receiver’s appointment, however, Mr Coleman did not cooperate with the Receiver and obstructed the Receiver in the discharge of its functions. Subsequent investigations revealed that Mr Coleman unlawfully retained a number of legal files from the former law practice and sought to continue to act in these matters in conjunction with licensed legal practitioners, even though by this time he did not hold a practising certificate, and was therefore not entitled to practise law.

The Board worked closely with the Office of Public Prosecutions and the Victoria Police on this matter, but as the offences were committed under the Legal Profession Act, the agencies agreed the Legal Services Board would undertake the prosecution.

Magistrate Collins told Mr Coleman that if he had not pleaded guilty to the charges, she would have imposed an immediate custodial sentence.

Legal Services Commissioner and Board CEO, Michael McGarvie said: ‘This is the first time that these particular criminal provisions have been used against a lawyer; no-one is allowed to stop a court-appointed Receiver from doing their job.

‘These are very powerful provisions. The maximum penalty for each unauthorised dealing with property of a law practice, either immediately before or after the appointment of a Receiver, is six years imprisonment,’ Mr McGarvie said.

‘These provisions will be used when and where we need to protect consumers of legal services and the reputation of the legal profession as a whole.’

Mr Coleman also received a four month prison sentence (suspended for 12 months) after pleading guilty to charges brought by the State Revenue Office arising out of the failure to pay stamp duty on transactions in 2007 and 2008, was fined $5,000.00 and was ordered to pay costs.

The Chairperson of the Legal Services Board, Fiona Bennett, is delighted to announce the election of Steven Stevens to the Board following the recent election.

Mr Stevens is presently the Chairman of the Professional Ethics Committee at the Law Council of Australia and is a past President of the Law Institute of Victoria. He is currently a member of the Board’s Legal Practice Committee and has worked closely with the Board on the National Solicitors’ Conduct Rules.

Mr Stevens’ term with the Board officially commences on 9 July 2013 for a period of 12 months.

This post appeared originally on 29 January 2013, but has been updated with penalty details.

A solicitor pleaded guilty to misconduct charges before VCAT in November 2012 for misleading his client.

Mr John Powell, of Doncaster East, told his client that he had issued a writ and was proceeding with a personal injuries claim for his client’s son who was injured in 2001 at a Primary School. The solicitor pretended for nine years that the case was in hand and progressing normally. He dishonestly advised his client that the delay was caused by the other side’s lawyer. In fact the solicitors representing the Primary School had already closed their file due to inaction.

Mr Powell pleaded guilty to conduct that was short of the standard the public is entitled to expect of a lawyer, and which involved a substantial and consistent failure to act competently and diligently. At a penalty hearing in April 2013, Senior Member Davis suspended Mr Powell’s practising certificate until 30 November 2013 and ordered Mr Powell to pay the Commissioner’s costs. Mr Powell has now sold his law practice to another solicitor.

A lawyer who falsified his academic transcript in order to obtain a job has pleaded guilty to six charges of professional misconduct in the Victorian Civil and Administrative Tribunal.

The lawyer, granted the pseudonym of PFM by the Tribunal due to considerations for his current mental health, was brought to the attention of the Legal Services Commissioner through a complaint made by his former employer. Following a lengthy investigation, the Commissioner brought six charges of professional misconduct against PFM relating to supplying recruitment agencies with forged academic transcripts, providing false information on a CV, making false representations about his employment status and making a false statutory declaration to the Law Institute of Victoria.

During the Tribunal hearing, Senior Member Smithers of VCAT noted that PFM had provided false and misleading information to the investigators, causing the investigation to be significantly drawn out. He also described the conduct about which PFM was charged as comprising ‘systematic dishonesty, rather than a momentary or aberrant lapse’.

In his defence, PFM presented psychiatric reports as evidence that he was suffering from a major depressive disorder, and that this had affected him in his wrongdoing.  Assessing the evidence, Senior Member Smithers found that there was no causal link between PFM’s illness and his lack of candour to the Tribunal. Further, he found PFM was ‘not a fit and proper person, and that it is likely he is unfit to practise permanently, or at least, for the indefinite future, because he is not a person of honesty’.

The Tribunal found “…in order for penalty to be mitigated due to mental illness, there must be cogent and compelling evidence of the requisite relationship between the mental condition and the offending conduct. Here, the evidence falls well short of that.”  On the evidence presented, the Tribunal found that “PFM’s mental health status did not have any effect relevant to the determination of penalty…” of five of the charges, and only marginally at best about the sixth.

The Tribunal recommended that the PFM be referred to the Supreme Court for his name to be struck from the roll of practitioners. He was ordered by the Tribunal not to be employed by or consult for a law firm without the approval of the Legal Services Board, that he may not be granted a practising certificate before 27 May 2020, and was ordered to pay the Commissioner’s costs fixed at $25,000.

For further information, see the VCAT decision.

RPA Alert 4, June 2013 is available for download (454KB PDF)