The Legal Services Board has issued RPA Alert 4, June 2013. Download the Alert from the RPA Alerts page.

The Legal Profession (Practising Certificate Fee) Regulations 2012 state that the prescribed fee for a practising certificate in force for the financial year beginning 1 July 2013 is:

• 36.50 fee units for a practising certificate with trust authorisation; and
• 24.71 fee units for a practising certificate without trust authorisation.

The state Treasurer has fixed the value of a fee unit for 2013-14 in the amount of $12.84. Accordingly, the following practising certificate fees will apply from 1 July 2013:

• $469 for a practising certificate with trust authorisation; and
• $317 for a practising certificate without trust authorisation.

Further information can be obtained from the Practising Certificate Fees page.

A Kew solicitor who had his practicing certificate suspended for nine months has had an appeal against his penalty allowed in the Court of Appeal.

Mr Andrew Burgess, a partner at the firm Henderson & Ball, appealed the penalty decision made by Judge Jenkins in the Victorian Civil and Administrative Tribunal in March, 2013.

In the VCAT hearing, Mr Burgess had 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 Legal Services Commissioner relating to other complaints.

Mr Burgess had 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 had 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 at the time 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”. Judge Jenkins found Mr Burgess guilty of professional misconduct on all eight charges.

In her judgement, 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.” As part of the penalty, Judge Jenkins suspended Mr Burgess’ practising certificate for a period of nine months. She further ordered that for the subsequent 12 months, Mr Burgess only be allowed to practise under supervision by restricting him to an employee practising certificate.

Mr Burgess appealed to the Court of Appeal, arguing that he should undergo a period of informal supervision as opposed to a suspension and a restriction placed on his practising certificate. His Honour Justice Nettle and Her Honour Justice Neave reviewed Judge Jenkins’ original decision on penalty and found it did not adequately take into account the evidence Mr Burgess’ provided on his psychological condition at the time of the conduct in question. Justices Nettle and Neave set aside Judge Jenkins’ nine month suspension of Mr Burgess practising certificate, instead ordering that Mr Burgess’ practising certificate be restricted to an employee practising certificate for the full 21 month period.

Judge Jenkins’ reprimand of Mr Burgess and her order that he pay the Commissioner’s costs fixed at $11,000 were unchanged.

This post was originally titled Delayed work and breach of CPD undertaking prove costly for Kew lawyer and was published on 4 April 2013.

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

The issue of unqualified legal practice discussed by Reynah Tang in the LIV President’s blog (28 June 2013), is one which the Legal Services Board recognises as being of great importance to both the profession and to consumers of legal services. The Board has responded to the LIV President’s blog, which can be found on the LIV website.

The 2013 Project Grants round is now open.

Applications close 5 pm Friday, 13 September 2013.

For further information, see the Project Grants page.

A solicitor who was ordered by the Victorian Civil and Administrative Tribunal to undertake a period of supervised legal practice has been reprimanded and fined $5,000 for breaching her supervision orders.

In January 2012, sole practitioner Ms Margaret McAuley of Brighton pleaded guilty to two charges of professional misconduct and one charge or unsatisfactory professional conduct before the Tribunal. The charges related to her receiving trust money from a client when not entitled to do so, failing to provide relevant information to the Legal Services Commissioner and failing to follow her client’s instructions. Ms McAuley was ordered by the Tribunal to undertake a period of 12 months supervised legal practice, and to meet with an appointed supervisor at least once a month.

The conditions of the supervision order were breached when, over a ten month period, Ms McAuley only met with her supervisor twice and failed to cooperate with him.  During that time, Ms McAuley did not provide her supervisor or the Commissioner with an adequate explanation for her breach of the supervision order.  When the supervisor indicated to the Commissioner that he no longer wished to supervise Ms McAuley, a new supervisor was appointed in late November 2012. Ms McAuley has since cooperated with her new supervisor, including having regular meetings with him.

Ms McAuley agreed to a statement of facts admitting her breach of the supervision order and pleaded guilty to the charge. Member Butcher of VCAT reprimanded Ms McAuley, fined her $5,000 and ordered her to pay the Commissioner’s costs of over $10,300. The Tribunal also extended the supervision order for a further 12 months.

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

From January 2009 to September 2012 Mr John Lelleton of Fitzroy was employed as a paralegal by an East Brighton law firm. Because Mr Lelleton had been found guilty of receiving property by deception in 1996, he was required to inform the law practice that he had a previous finding of guilt for a dishonesty offence. Mr Lelleton had also been found guilty in 1994 of unqualified legal practice. However his employer was not informed of either prior conviction, as required by law.

As covered in RPA Alert 1, 2012, it is unlawful for a person who has been found guilty of a relevant offence to seek 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 that person.

The Board learned of Mr Lelleton’s convictions in mid-2012 and subsequently charged him with unlawfully working for a law practice. In March 2013, Mr Lelleton pleaded guilty before His Honour Magistrate Hassard of the Melbourne Magistrates’ Court to having worked as a lay associate with a law firm without disclosing his previous criminal conviction. Mr Lelleton was fined $1,000 and ordered to pay the Board’s costs of $3,000.

The Board also sought an order in the Victorian Civil and Administrative Tribunal that Mr Lelleton be listed as a disqualified person indefinitely, and in late May 2013 the Tribunal made that order.

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

The Legal Services Board recently appointed Commonwealth Bank of Australia (CBA) as the new banker for statutory deposit accounts (SDAs) in Victoria. The new arrangements will take effect on Monday, 2 December 2013.

For more information about the new CBA SDA arrangements, please see the New Statutory Deposit Account Arrangements FAQs 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 RPA 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.

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.

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)

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

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 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.