RPA Alert #8, February 2014, is available for download (112KB PDF). This Alert discusses the importance of lawyers’ undertakings.

A St Kilda solicitor who recklessly mislead the Legal Services Commissioner has pleaded guilty to two counts of professional misconduct in the Victorian Civil and Administrative Tribunal.

The Legal Services Commissioner charged sole practitioner Ms Sue Macgregor with professional misconduct after she made a misleading statement to the Commissioner when responding to a former client’s complaint. In her statement Ms Macgregor suggested she was ‘in constant contact’ with the other side in a legal transaction when she was not.

The Commissioner also charged Ms Macgregor with a second count of professional misconduct for failing to use her best endeavours to enable her client to comply with a court order and for failing to communicate effectively with her client.

Ms Macgregor pleaded guilty to the two charges in VCAT, admitting to the errors she had made and explaining why they had occurred.

While Member Wentworth of VCAT acknowledged that there was no suggestion that the solicitor has acted with dishonesty, in her decision she noted:

‘In this case, one statement in one letter has been found to be misleading. That is enough for the conduct to constitute professional misconduct.’

Member Wentworth also noted that this was the first disciplinary complaint Ms Macgregor had received in 31 years of practice, and that the solicitor had an extensive history of providing pro bono legal and volunteer work to community legal centres and community charities. It was however, appropriate under the circumstances to make a finding of guilt on both charges.

Mrs Macgregor was reprimanded and ordered to pay the Commissioner’s costs of $17,595.

A non-lawyer who undertook legal work on behalf of a client, has been found guilty of engaging in unqualified legal practice.

Keysborough resident Mr Lew Batten appeared before the County Court in December 2013 after appealing a 2012 conviction in the Magistrates’ Court. Mr Batten had been found guilty in the Magistrates’ Court on one count of engaging in unqualified legal practice and one count of representing that he was entitled to engage in legal practice when he was not a lawyer.

The charges were laid against Mr Batten by the Legal Services Board following allegations Mr Batten was undertaking legal work associated with his representation of a woman in a civil matter in court. An investigation commenced by the Board found Mr Batten had prepared a power of attorney, prepared and filed paperwork with the Magistrates’ Court and issued a bill for his work. Mr Batten had also referred to himself in the power of attorney document as a being ‘legal representative’ although he held no legal qualifications.

When brought before the Magistrates’ Court, Mr Batten pleaded guilty to both charges and was convicted, fined $1,500 and ordered to pay the Board’s costs of $7,400.00. Despite his plea, Mr Batten appealed his conviction and sentence, which was heard in late 2013 in the County Court. His Honour Judge Parrish, of the County Court determined:

‘… when one looks objectively at the facts so found, the only reasonable inference open was that the appellant advised, represented and negotiated on behalf of [the client] throughout his engagement as would a legal practitioner.’

Judge Parrish found both charges proven, convicted Mr Batten and fined him an aggregate of $5,000. Mr Batten was also ordered to pay the Board’s costs of $25,000.

A Brighton solicitor who caused a deficiency in a trust account and failed to fully comply with the directions of a trust account inspector has been disqualified from legal practice until 2015.

The Victorian Civil and Administrative Tribunal found Mr Lewis Spaulding, formerly of the law firms De Kever Spaulding Legal, and Brighton Legal, guilty on five counts of professional misconduct after the charges were brought against him by the Legal Services Commissioner.

The charges arose after the Commissioner received a complaint from a client and requested the Law Institute of Victoria send an inspector to review the firm’s trust account. The inspector identified that Mr Spaulding had caused a deficiency in his firm’s trust account by placing funds paid by the client into the office account instead of the trust account.

The inspector directed Mr Spaulding to restore deficiencies in the trust account, address other issues and provide written confirmation that the directions had been followed. Mr Spaulding sought and was granted an extension of time to comply with the directions, however he failed to provide the written confirmation required to the inspector, leading to the first charge of professional misconduct being laid by the Commissioner.

The Commissioner also charged Mr Spaulding with two counts of professional misconduct for failing to provide clients with bills and failing to follow client instructions, and two further counts arising from his failure to provide a full written explanation to the Commissioner of his conduct.

Mr Spaulding pleaded guilty to all five charges and withdrew an appeal he had lodged against the Law Institute after the Institute refused to renew his 2013 practising certificate.

Judge Jenkins of VCAT found:

‘[the] circumstances in combination represent a most serious dereliction of duty by a legal practitioner, both in respect of his breach of statutory obligations towards his clients, and the proper maintenance of trust accounts as well as a serious breach of professional ethical behaviour.’

VCAT ordered that Mr Spaulding be prohibited from applying for a practising certificate before 1 July 2015, and declared him to be a disqualified person until the same date. Further, VCAT ordered that after this date Mr Spaulding was to be restricted to applying for an employee practising certificate and was to undergo supervised legal practice for a period of 18 months.

Mr Spaulding was also ordered to undertake additional professional development training in practice management and trust accounting within the first 12 months of gaining a new practising certificate and to pay the Commissioner’s costs, and the costs of the Law Institute.

For further information, download the VCAT decision.

RPA Alert #9, March 2014, is available for download (324KB PDF). This Alert covers the 2014 Board election and contains details of how to nominate for candidacy.

Unqualified people who give legal advice, provide legal services or represent others at court without revealing their unqualified status, are being warned by the legal regulator that they face the prospect of being prosecuted for unqualified legal practice.

Over the past six months the Legal Services Board has prosecuted three unqualified people in the Magistrates’ Court for unqualified legal practice; an offence which carries a penalty of up to two-years’ prison.

Board CEO, Michael McGarvie, said the law restricted who could offer legal services to protect consumers from substandard and inadequate advice and service.

‘Unqualified people cannot offer the same level of skill which qualified lawyers can, given their years of training and professional experience. Admitted and licensed lawyers are officers of the court and are bound by rules of conduct, breach of which can bring about severe penalties. Lawyers are also insured, which offers their clients an extra level of protection. Unqualified people don’t have insurance, so if something goes wrong, the client is left without any avenue of recourse.’

The most recent case prosecuted by the Board concluded in late January 2014 when an unqualified person, Ms Khristy Khan, appeared before the Magistrates’ Court on one count of unqualified legal practice. The Board had charged Ms Khan after she represented a friend before the Victorian Civil and Administrative Tribunal, and VCAT questioned her eligibility to do so.

The Court found that between March 2012 and January 2013 Ms Khan provided legal advice, drafted legal documents and appeared before VCAT, then billed approximately $9,000 for her work.

Despite her earlier insistence that she was only helping her friend and her continuing denial of the Board’s charges, Ms Khan eventually pleaded guilty and agreed to the facts presented by the Board.

In reviewing the matter, Her Honour Magistrate Lambden considered the long period of time over which the conduct occurred and the various types of legal work Ms Khan had undertaken. In particular Her Honour noted Ms Khan had continued to undertake legal work after VCAT questioned her about it, and also noted the significant sum Ms Khan charged for her work.

Highlighting the need to protect the public against people who are not qualified to undertake legal work, Her Honour convicted Ms Khan one count of unqualified legal practice, fined her $6,300 and ordered her to pay the Board’s costs of $6,400.

Two other cases in the past six months also led to unqualified people being convicted and fined for unqualified legal practice. In August 2013 Mr Geetha Somasundaram was convicted for calling himself a lawyer and providing legal advice to a business client, while in December 2013 Mr Lew Batten was convicted for referring to himself as a lawyer, filing paperwork with the Magistrates’ Court and billing for his work.

A solicitor who breached his tax obligations over an extended period has been found guilty of professional misconduct in the Victorian Civil and Administrative Tribunal.

Mr Robert Booth, who formerly practised at Hastings, was charged by the Legal Services Commissioner with professional misconduct after he failed to submit income tax returns for 11 years between 1989 and 2000, and failed to lodge on-time income tax returns or pay income tax for five years from 2000 to 2005.

Mr Booth, who was suspended from practice for 12 months in November 2012 following unrelated disciplinary action taken by the Commissioner, chose not to attend the hearing.

In his deliberations, Senior Member Smithers of VCAT highlighted the seriousness of the charge brought against Mr Booth, emphasising that:

‘…breaches of taxation obligations, especially over an extended period, are very serious matters, which in the absence of powerful countervailing mitigating factors, will lead to the conclusion that a practitioner is not a fit and proper person to practise.’

VCAT found Mr Booth guilty of professional misconduct in his absence.

Mr Booth attended a subsequent hearing to consider the penalty to be imposed. VCAT ordered that he be prohibited from legal practice for a period of 36 months, commencing 9 December 2013, but with 28 months of that period suspended for five years. Mr Booth was permitted to hold a local practicing certificate for work only as an employee of a law practice and/or as a volunteer at a community legal centre from 9 August 2014.

A series of conditions were also placed on any practising certificates granted to Mr Booth until the end of the 28 month period of suspension, enabling the Commissioner to check his compliance with tax obligations.

Mr Booth was ordered to pay the Commissioner’s costs and was also declared a disqualified person for eight months commencing 9 December 2013, which prohibits him from working for a law practice in any capacity without first applying for permission from the Legal Services Board.

For further information see the VCAT decision and the VCAT orders.

A lawyer who made two false statutory declarations to the Legal Services Board, and who falsified her employment record on two CVs provided to prospective employers, has been found guilty of misconduct by the Victorian Civil and Administrative Tribunal.

VCAT found Oakleigh-based lawyer, Ms Irene Adamakis, guilty of misconduct at common law after she falsely declared she had completed 18 months of supervised legal practice, as required of all new lawyers, when she had only completed seven.

Ms Adamakis had applied to the Board to remove the supervised legal practice condition from her practising certificate, thereby allowing her to work unsupervised. The two statutory declarations she provided to the Board in support of her application both proved to contain false statements. These included a claim that she had worked at one law firm under legal supervision when her work did not involve any legal work, that she had been employed up to a certain date at another firm when she had ceased employment 15 months earlier, and that she had worked with another firm where she had in fact never been employed.

VCAT also found Ms Adamakis guilty of a second charge of unsatisfactory professional conduct brought by the Commissioner relating to her failure to notify the Board of a change in employer. Ms Adamakis had not informed the Board that she had commenced employment with a new law firm, and of the subsequent termination of that employment three weeks later.

VCAT described Ms Adamakis’ conduct as being very serious and a ‘breach of her professional obligations of honesty and candour’.

Ms Adamakis did not attend the VCAT hearings. In her absence, VCAT reprimanded Ms Adamakis and ordered that she be banned from holding a practising certificate until November 2018. VCAT also ordered her to pay the Commissioner’s costs of $8,353.16.

For further information, download the VCAT Reasons and the Penalty Decision.

The Legal Profession Act 2004 requires that the Board hold an election for the three legal practitioner member positions every four years. The current term of the three legal practitioner members expires on 30 June 2014.

The election will be held from early April to early May 2014 and is being managed by the Victorian Electoral Commission. For details of how to nominate, eligibility to vote and for the contact details of the election manager, please see the 2014 Board Election page.

A Melbourne lawyer, Mr Geoffrey Ripper, who received trust money from a client without holding the correct type of practising certificate has been reprimanded in the Victorian Civil and Administrative Tribunal.

An investigation by the Legal Services Commissioner revealed that a client had retained Mr Ripper, paying $5000 in cash on trust. Mr Ripper did not hold a practising certificate which entitled him to receive trust money, and therefore did not operate a trust account. The money was placed in a desk drawer and later discounted from the legal bill.

The investigation also showed that when the retainer was terminated, Mr Ripper caused an unreasonable delay in returning the client’s documents. Mr Ripper had claimed a lien over the documents because his costs were not paid. The Commissioner discovered however, that Mr Ripper had not provided the client with a final bill, thus preventing the client from making payment.

A charge of professional misconduct is usually appropriate where a lawyer handles trust monies without the appropriate practising certificate. Senior Member Smithers of VCAT considered the reasons for the lesser charge of unsatisfactory professional conduct being brought by the Commissioner against Mr Ripper instead. After reviewing the mitigating circumstances which included Mr Ripper’s health, his guilty plea, his unblemished 40 plus years of practise and the Commissioner’s satisfaction that this was a one-off offence, VCAT determined that the charge as presented was indeed appropriate.

VCAT found Mr Ripper guilty on two counts of unsatisfactory professional conduct. Mr Ripper was reprimanded and ordered to undertake a trust accounting course prior to recommencing legal practice, and to pay the Commissioner’s costs of $4,500.

For further information, download the VCAT decision. (473KB PDF)

The Legal Profession Uniform Law Application Bill 2013 passed the Victorian Parliament today. Lawyers from Victoria and New South Wales will soon be regulated by the same legislation. For more information see the Parliament of Victoria website.

The practising certificate renewals cycle for 2014-2015 will commence on Monday, 24 March 2014. The deadline for renewing your practising certificate without incurring a surcharge is 30 April 2014.

You will receive a letter from the Legal Services Board in the week beginning 24 March 2014 which will outline details of the renewals process. You can renew your practising certificate online again through the Board’s online application LSB Online. You can 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. The hard copy renewal form will be available on the Board’s website from Monday 24 March if you do not wish to renew online.

Please contact the Board on 9679 8000 for more information.

The results of the 2014 Legal Services Board election have been announced by the Victorian Electoral Commission.

The Board has issued a media release about the election results, and the 2014 Board election page on the Board website has been updated.

RPA Alert #10, May 2014, is available for download (333KB PDF). This Alert announced the results of the 2014 Board election.

RPA Alert #11, May 2014, is available for download (452KB PDF). This Alert announces the consultation period for the proposed Victorian Solicitors’ Conduct Rules.

RPA Alert #12, June 2014,  is available for download (99KB PDF). This Alert deals with Uniform Legal Profession Regulation.

From Friday 20 June 2014, all practising certificate functions will be handled by the Legal Services Board. This means the Board will issue practising certificates, process applications for the renewal, grant or variation of a practising certificate, consider applications for the removal of supervised legal practice conditions and determine suitability matters.

Please direct any practising certificate queries to the Board’s Practitioner Services Team on (03) 9679 8000 or email admin@lsb.vic.gov.au.

The Legal Services Board and Commissioner have updated the website content relating to the Legal Profession Uniform Law.

Visit the Legal Profession Uniform Law page to see what will and what will not change under the Uniform Law when it is proclaimed (expected in early 2015).

Please note, that from 1 September 2014 the Legal Services Board will be moving to a new office and our contact details will change. Our new contact details will be as follows:

Address:
Level 5, 555 Bourke Street Melbourne 3000
GPO Box 492 Melbourne 3001
Ausdoc: DX 185 Melbourne

Telephone:
Reception: 03 9679 8001
Practitioner Services: 03 9679 8000
LSB Online: 03 9679 8111
Fax: 03 9679 8101

Email: admin@lsbc.vic.gov.au
Web: www.lsbc.vic.gov.au

RPA Alert #13, August 2014,  is available for download (433KB PDF). This Alert covers the Board and Commissioner moving to new premises, and that the LSB Online facility will be unavailable during that move.