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Victorian Legal Services Commissioner v Rose (Legal Practice) [2023] VCAT 409

Decision published: 13 April 2023

On 13 April 2023, the Victorian Civil and Administrative Tribunal (Tribunal) published a decision in disciplinary proceedings commenced by the Victorian Legal Services Commissioner (Commissioner) against a solicitor, Mr Joseph Rose.

The Tribunal found that Mr Rose engaged in professional misconduct in respect of the following conduct:

  • Mr Rose was reckless as to the lawfulness of his client’s instructions and as to the lawfulness of carrying out his client’s instructions, by making payments to a builder (Payments) (Charge 1):
  • on instructions provided by the executor that the Payments were in accordance with the deceased’s wishes to extend the loan agreement as expressed in letters dated 1 June 2015 and 12 July 2015;
  • with knowledge or reason to suspect that no formal written agreement had been entered into in relation to a renewed or extended loan agreement;
  • despite holding concerns that the Payments may not be lawful and without conducting inquiries to establish the lawfulness of the Payment; and
  • without providing advice to the executor as to the lawfulness of the Payments.
  • Mr Rose acted in knowing contravention of Court orders by purporting to act (and assert rights) on behalf of the executor of the Estate, in correspondence dated 7 December 2016 and 8 December 2016, when he was aware of the fact that the orders had been made removing the executor (Charge 2);
  • The payment Mr Rose’s law practice caused to be made on 15 March 2017 (of $4,474.83 from the trust money held on behalf of the Estate to Rose Lawyers for “Invoice #12896”) was unauthorised by the Estate (Charge 4).
  • Mr Rose informed the Commissioner that, having reviewed his file, he ‘knew of the Order[s] on the 17th December 2016’, in circumstances where Mr Rose was reckless as to whether that information was false or misleading (Charge 8).

The Tribunal found that Mr Rose engaged in unsatisfactory professional conduct in respect of the following conduct:

  • Failing to issue an invoice to the administrator in respect of the payment (of costs) in contravention of rule 42 of the Legal Profession Uniform General Rules; and section 144(2)(b) of the Legal Profession Uniform Law (Victoria) (Charge 6).
  • Failing to provide the documents, papers or information held on behalf of [the removed executor] as executor of the Estate in his possession, power or control to the administrator within 7 days as required by the Orders or within a reasonable time in circumstances where Mr Rose failed to act competently, diligently and as promptly as reasonably possible (Charge 7).

The Tribunal made orders:

  • reprimanding Mr Rose;
  • directing Mr Rose to surrender his practising certificate on 30 April 2023, and, in accordance with his undertaking given to the Commissioner and to the Tribunal, precluding him to thereafter apply for, or hold, a certificate to practice as an Australian legal practitioner in any Australian jurisdiction.
  • issuing Mr Rose with a fine in the agreed sum of $5,000.00; and
  • requiring Mr Rose to pay the Commissioner’s costs of and incidental to the proceeding fixed in the sum of $12,000.00.

Legal Services Commissioner v Magill [2023] QCAT 134

Decision published: 24 April 2023

On 24 April 2023, the Queensland Civil and Administrative Tribunal (Tribunal) published a decision in disciplinary proceedings commenced by the Queensland Legal Services Commissioner (Commissioner) against a solicitor, Mr Adam Raydon Magill.

The Tribunal made orders finding Mr Magill had engaged in:

  • professional misconduct by, between 25 November 2018 and 25 October 2022, engaging in conduct (i.e., breaches of bail conditions on six separate occasions) which was likely to a material degree to bring the profession into disrepute, contrary to rule 5 of the Australian Solicitors Conduct Rules 2012; and
  • unsatisfactory professional conduct by failing to give notice to the Law Society of Queensland of his conviction for breaching bail conditions, within seven days following his conviction in contravention of section 57 of the Legal Profession Act 2007 (QLD) (Legal Profession Act).

The Tribunal made orders:

  • recommending that Mr Magill’s name be removed from the roll of legal practitioners in Queensland pursuant to section 456(2)(a) of the Legal Profession Act; and
  • requiring Mr Magill to pay the Commissioner’s costs of and incidental to the disciplinary application.

The Tribunal held:

“[23] Undertakings by practitioners are of the utmost importance. In Legal Services Commissioner v Wrightway Legal [2015] QCAT 174 at [26] this Tribunal stated:

“The ability to rely upon a legal practitioner’s undertaking is of utmost importance. It is central to dealings with legal practitioners. Because of its importance, noncompliance with the clear terms of an undertaking involves a substantial failure to reach or maintain a reasonable standard of competence and diligence and so amounts to professional misconduct as that term is described in s 419 of the Legal Profession Act.”

…

[25] When those undertakings are between the Crown and the citizen and relate to restrictions on conduct put in place to ensure the proper administration of the criminal law they arguably assume even greater importance.

[26] Mr Magill was not deterred from flouting the bail undertakings despite his obvious knowledge of them, particularly given the charge brought the day after his first undertaking, despite the seriousness of those undertakings which even if his long experience in the law both as a solicitor and police officer had not taught him, ought to have been brought home to him by the decision of the Chief Magistrate, and later the District Court on his appeal, and despite the imposition of substantial fines on 3 June 2019 and 1 August 2019.

[27] To compound matters there is a complete absence of any semblance of reasonable explanation, particularly so in respect of the last such breach. There was some evidence before the Chief Magistrate of Mr Magill’s mental state in 2018 and the stress he experienced on the bringing of the serious substantive charges against him but that could hardly explain these repeated breaches. The Chief Magistrate did not think it excused the breach he dealt with. There is no psychiatric evidence relevant to the later breaches.

[28] All this demonstrates a flouting of the law, a disdain for the undertakings given, and hence an unfitness to engage in legal practice (see s 419(1)(b) of the Act), or is fairly described as conduct that “falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency”: Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498 per Thomas J at 507. The conduct was likely to bring the profession into disrepute as the Commissioner alleges. We find that Mr Magill is guilty of professional misconduct.

[29] The conduct the subject of Charges 2 and 3 is not as serious, and can be considered as unsatisfactory professional conduct, but still deserving of sanction.”

Victorian Legal Services Commissioner v Vki (Legal Practice) [2023] VCAT 504

Decision published: 4 May 2023

On 4 May 2023, the Victorian Civil and Administrative Tribunal (Tribunal) published a decision in disciplinary proceedings commenced by the Victorian Legal Services Commissioner (Commissioner) against a solicitor referred to by the pseudonym “VKI”.

The Tribunal found that VKI engaged in:

  • professional misconduct by sending inappropriate text message communications to a client that amounted to sexual harassment in connection with the provision of legal services in contravention of rule 42.1.2 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Text Message Conduct); and
  • unsatisfactory professional conduct with respect to the following conduct:
  • making inappropriate verbal comments to or in the presence of a client (Comments Conduct); and
  • failing to appear for a client in court for a scheduled hearing without providing a reasonable notice or excuse (Appearance Conduct).

The Tribunal made orders with the agreement of both parties:

  • reprimanding VKI;
  • prohibiting VKI from re-applying for an Australian practising certificate or Australian registration certificate before 3 June 2023; and
  • requiring VKI to pay the Commissioner’s costs fixed in the sum of $20,000 (repayable in accordance with the repayment plan agreed between the parties).

With respect to the Text Message Conduct, the Tribunal held:

“[27]…sexual harassment of a vulnerable client requires strong and clear condemnation.  It is understood that family law disputes are often highly charged and distressing for all involved.  While no client should be faced with sexual harassment from their own legal practitioner, it is particularly reprehensible conduct when the client is navigating legal processes arising from marital discord.  To make matters worse, the practitioner was well aware the Client had concerns about her own safety as he represented her in respect of an intervention order proceeding.”

With respect to the Comments Conduct, the Tribunal agreed with the Commissioner’s submission that:

“[36] … legal practitioners are required to comply with a standard of professional and respectful communication in connection with the provision of legal services. It also submitted that the verbal comments, said on at least two occasions in the presence of the Client (including on one occasion in the Client’s home in the presence of the respondent’s wife) were disrespectful to the Client and unprofessional.”

With respect to the Appearance Conduct, the Tribunal held:

“[46] … It is not appropriate for a legal practitioner to assume a court (or tribunal) will grant a requested adjournment even when the other party has consented.”

Legal Services Commissioner v Pennisi [2023] QCAT 118

Decision Published: 17 April 2023

On 17 April 2023, the Queensland Civil and Administrative Tribunal (Tribunal) published a decision in disciplinary proceedings that the Queensland Legal Services Commissioner (Commissioner) commenced against Mr Vincent Pennisi.

The Tribunal found Mr Pennisi guilty of unsatisfactory professional conduct on the basis that he failed to maintain a reasonable standard of competence in relation to being engaged, by the executors of a will, to act in the administration of an estate. Specifically, the Tribunal found that Mr Pennisi:

  • failed to advise the executors about correspondence received in relation to an asset that comprised part of the estate;
  • failed to advise the executors of distributions arising from the asset and to seek instructions; and
  • failed to give advice and seek instructions about redeeming or withdrawing from the asset which resulted in undue delay in the finalisation of the estate.

The Tribunal made orders:

  • reprimanding Mr Pennisi;
  • requiring Mr Pennisi to pay a pecuniary penalty in the sum of $5,000; and
  • requiring Mr Pennisi to pay the Commissioner’s costs of and incidental to the application.

The Tribunal dismissed a ground of the Commissioner’s application alleging that Mr Pennisi failed to maintain reasonable standards of competence and diligence by preparing a will and an enduring power of attorney, both of which were executed on the basis the testator did not have the capacity to execute these documents. In summary, the Tribunal’s reason for that decision was:

  • the allegation that Mr Pennisi failed to obtain clear and coherent instructions from the testator was not made out (at [19]);
  • the allegation that Mr Pennisi failed to take sufficient steps to establish the capacity of the testator to execute the documents was not made out (at [39]);
  • the material does not establish that Mr Pennisi failed to take adequate steps to establish that the testator had knowledge and understanding of the new documents (at [47]); and
  • the material does not establish that Mr Pennisi’s notes of his dealings with the testator are such that his conduct has fallen below the standard to be expected of a solicitor (at [52]).

Prepared by: Ashleigh Trezise

Settled by: Clifford Flax