A summary of two recent interstate legal disciplinary decisions
Victorian Legal Services Commissioner v Waduge (Legal Practice) [2023] VCAT 906
Decision published: 4 August 2023
On 4 August 2023, the Victorian Civil and Administrative Tribunal (Tribunal) published a decision in disciplinary proceedings that the Victorian Legal Services Commissioner (Commissioner) had commenced against Ms Melissa Waduge.
The Tribunal found Ms Waduge had engaged in unsatisfactory professional conduct and professional misconduct in relation to being engaged, by a sole director and shareholder of Meyfield Developments Pty Ltd (Myfield), Mr Luke Stokie, to prepare a general power of attorney.
The Tribunal found Ms Waduge guilty of unsatisfactory professional conduct on the basis that she:
- relied on a personal power of attorney to execute an agreement on behalf of Myfield; and
- failed to record file notes of oral instructions purportedly received from her clients.
The Tribunal found Ms Waduge guilty of professional misconduct on the basis that she:
- caused and/or allowed the creation and execution of a false document, being a company power of attorney, and, in doing so, acting dishonestly; and
- produced a company power of attorney (being a false document) to the Supreme Court of Victoria in answer to a Subpoena, and, in doing so, acted dishonestly.
The Tribunal made orders:
- reprimanding Ms Waduge;
- prohibiting Ms Waduge from applying for a practising certificate until 1 July 2027;
- imposing conditions on any practising certificate obtained by Ms Waduge on or after 1 July 2027 requiring Ms Waduge to practise as an employee under supervision only for a period of at least two years;
- requiring Ms Waduge to undertake and complete six units of continuing professional development in the areas of ethics and professional responsibilities, two units of continuing professional development in the area of substantive law relating to powers of attorney and one unit in the area of substantive law in the area of execution of company documents (or such appropriate unit regarding the execution of company documents as may be determined to be appropriate by the applicant) prior to or at the time of applying for a practising certificate;
- dismissing the Commissioner’s application for an order recommending to the Supreme Court that Ms Waduge’s name be removed from the roll; and
- requiring Ms Waduge to pay the Commissioner’s costs of the proceeding in the sum of $26,000.
With respect to disciplinary findings, the Tribunal held as follows:
“[64] Ms Waduge has admitted that her conduct in using the Stokie POA to execute the Services Agreement on behalf of Meyfield was conduct in her practice as a lawyer which fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.
[65] The Stokie POA was a personal power of attorney. It was directed to Mr Stokie’s personal affairs. It is a fairly basic principle that a company is a separate entity from its directors. A company’s affairs are separate and distinct from the personal affairs of the company’s directors. The Stokie POA could never have been used by Ms Waduge to execute a document on behalf of Meyfield. Its attempted use to execute the Services Agreement displays a lack of understanding of this basic principle and falls well short of the expected standard of competence and diligence that a member of public is entitled to expect from a reasonably competent lawyer.
[66] Ms Waduge made no file notes of any instructions or conversations with Mr Stokie regarding these matters. In the context of the Proceedings, the circumstances surrounding the execution of the Services Agreement, the preparation and execution of the Stokie POA and the preparation and execution of the Meyfield POA become paramount. Given the matrix of the these matters the contents of the discussion at the 23 September meeting may also have been of relevance.
[67] A reasonably competent lawyer ought to keep file notes regarding the preparation of a power of attorney. Those notes may assist a later stage [sic] if an irregularity such as lack of capacity or lack of authority becomes an issue. It is reasonable for a client as a member of the public, to expect notes relating to preparation of powers of attorney and instructions and authorisation to use the same to be made by the lawyer. A lawyer can never know in advance whether the execution of a document will become an issue. A file note ought to have been prepared. The 23 September meeting was a meeting with Meyfield’s lawyer. If, at that meeting, Mr Stokie provided Ms Waduge with instructions then she should have recorded those instructions.
[68] Whilst the preparation of file notes is always important, if not prudent, not every failure to prepare notes will necessarily constitute a failure to reach the appropriate standard. The absence of file notes in this matter does fall well short of the standard given the significance of the execution of the Services Agreement preceded by the execution of the Stokie POA some six weeks previously. Ms Waduge has pleaded guilty to this failure to meet the requisite standard.
[69] Ms Waduge has admitted Charges 2 and 3. She has agreed that she acted dishonestly in causing and/or allowing the creation and execution of a false document namely the Meyfield POA and by producing the Meyfield POA to the Supreme Court in answer to the Subpoena.
…
[71] Back dating the Meyfield POA renders it “false.” It was not executed on the date it bears. It was produced to the parties and the Supreme Court as a document executed on 27 April 2015. Furthermore, the sequence execution by the signatories to this document whereby Ms Waduge signed before Mr Stokie underlines her dishonesty. Adopting the normal meaning of “false,” the Meyfield POA bearing the date of execution of 27 April 2015 renders it untrue. It is a false document.
[72] There is no doubt that the conduct in relation to the Meyfild POA was conduct which ‘would reasonably be regarded as disgraceful and dishonourable by legal practitioners of good repute and competency’ and thereby was behaviour or conduct which was serious.
[73] Each of the charges are proven and Ms Waduge is guilty.”
With respect to the decision to dismiss the Commissioner’s application for a roll removal recommendation, the Tribunal held as follows:
“[162] I have accepted that Ms Waduge has a mental health issue which, at the time of the hearing, impacted on her ability to attend the hearing. Even if Ms Waduge had attended the hearing it would not have necessarily followed that she would have been cross-examined about her actions or her insight and remorse. Where direct oral evidence of insight and remorse is not provided, the Tribunal can refer to other material if it is directed to do so. Mr Scotter referred me to the contents of the October statement and the December affidavit. Mr Scotter submitted that there is constant reference to remorse and apology throughout these documents.
[163] For these reasons already given, I am satisfied that Ms Waduge has insight into her conduct and is remorseful. The fact that she may or may not have been available for “cross-examination” is a moot point given that even if she had attended, she might not have given evidence.
[164] It is also clear that the conduct relates to an error which Ms Waduge dishonestly attempted to rectify. That attempt did involve falsification of a document and production of same to the Supreme Court in response to a subpoena. Her conduct was both dishonest and serious. It was however conduct which arose out of a single error caused by her lack of knowledge of the law. It was not a part of a sequence of behaviour concerning other breaches occurring over a lengthy period. I am satisfied it was a “one-off” event which spiralled into a series of dishonest steps designed to “rectify” a technical error which occurred due to her inexperience and lack of knowledge of the law.
[165] These events occurred some seven years ago. Ms Waduge had continued to practice up to 30 June 2022 without coming under the scrutiny of the applicant.
[166] Can it be said that Ms Waduge is unfit at that date of this hearing? The answer is no. I must consider more than Ms Waduge’s historical actions. It is true that those historical actions did involve serious dishonesty. However, she now has insight. She is remorseful. This is conduct confined to a particular set of facts and was not “widespread” conduct nor was it conduct which occurred over a lengthy period of time.
[167] A further factor to be considered is whether Ms Waduge has “demonstrated effective rehabilitation.” There is direct no evidence [sic] that she has undertaken additional CPD units. Mr Bruno submits that she could have undertaken CPD units but has not. The undertaking of additional CPD could have been an indication of a step taken towards rehabilitation, but no documentary evidence of relevant CPD attendances was provided in the course of the hearing.
[168] Rehabilitation is a process. Undertaking additional CPD units would be one way in which a legal practitioner could “rehabilitate” but in my view this is not the only way a practitioner can “rehabilitate.” To my mind the first step in the rehabilitation process is for the practitioner to have insight into the wrongdoing and have an understanding as to how the wrongdoing could have been avoided. I am satisfied that Ms Waduge has achieved this first step.
[169] In the October statement Ms Waduge writes:
and in the circa six years following that error it is unquestionably the case I have dramatically improved my technical understanding in this area, and I have not made such an error again.
Later in the October statement, she writes:
In the six years practising as Shield Partners following being made aware of this error in preparing the original power of attorney, I have ensured a much deeper technical understanding of powers of attorney, as well as others matters referrable in particular to wills and estates. I have not awaited the Commissioner’s investigation nor the eventual outcome to make amends, I did this immediately of my own accord.
[170] I am satisfied that, based on these statements, that Ms Waduge has taken steps to ensure a “deeper understanding” of the law in this area. The October statement does not address the question of her ethical understanding. However, as there was nothing brought to my attention by Mr Bruno regarding the completion of CPD units by Ms Waduge I assume therefore that she has in each CPD cycle since the commencement of the investigation undertaken appropriate CPD components in ethics.
[171] The demonstration of effective rehabilitation is a factor which must be taken into account. Effective rehabilitation is a question of fact. In this instance, I am satisfied that Ms Waduge through her statements in the October statement and the presumed completion of compulsory CPD ethics components has taken adequate steps to achieve effective rehabilitation. Whilst the consideration of “fitness” must occur at the date of the hearing I am somewhat comforted by the additional CPD, and supervisory requirements referred to in the order I propose to make.
[172] Given the circumstances of what I regard to be an isolated event, her remorse, her insight and the steps undertaken to rehabilitate herself of her own accord without waiting “the Commissioner’s investigation nor the eventual outcome to make amends” I am satisfied that although the charges involve dishonesty, Ms Waduge is a fit and proper person,(and is likely to continue to be so after the period of disqualification) to remain on the Roll. I consider that as at the date of the hearing Ms Waduge has demonstrated that she has the requisite knowledge of the duties and responsibilities devolving upon her as a legal practitioner.
[173] Consequently, the request for an order to recommend to the Supreme Court that Ms Waduge be removed from the Roll is dismissed.”
DIAO and LAW COMPLAINTS OFFICER as the delegate of the LEGAL PROFESSION COMPLAINTS COMMITTEE [2023] WASAT 73
Decision published: 18 August 2023
On 13 June 2022, the Law Complaints Officer, as a delegate of the Legal Profession Complaints Committee (Committee) resolved to dismiss a complaint made by Ms Ying Diao against a legal practitioner (Complaint) on the basis that it was misconceived and/or lacking in substance.
The Complaint arose out of the alleged conduct of a legal practitioner in relation to being engaged, by Ms Diao’s brother-in-law, to act in a Family Violence Restraining Proceedings involving Ms Diao. Specifically, the Complaint alleged the legal practitioner:
- lied about her personal close relationship with Mr Diao’s brother-in-law and his family;
- acted in an aggressive, abusive and intimidating manner towards Ms Diao; and
- blamed Ms Diao and her children for everything on behalf of the brother-in-law.
On 22 August 2022, Ms Diao commenced proceedings in the Western Australia State Administrative Tribunal (Tribunal) to seek a review of the Committee’s resolutions.
On 18 August 2023, the Tribunal affirmed the Committee’s decision to dismiss the Complaint (at [58]). In so doing, it found that:
- there was no reasonable cause to suspect the legal practitioner had engaged in unsatisfactory professional conduct or professional misconduct (at [52] and [56]);
- there was no reasonable prospect that further investigation would result in the discovery of any additional information or any new perspectives on existing material (at [50] and [56]).
