Summary of PCC decisions: May 2026

There were 5 disciplinary matters determined in the March Quarter, which concerned:

• timely legal advice;
• improper encumbrance of estate property;
• communication with another solicitor’s client;
• discourteous and improper correspondence; and
• preparation and witnessing under a defective power of attorney.

Timely legal advice

In the March Quarter, the PCC considered a matter arising from a residential conveyancing transaction where repeated settlement failures ultimately resulted in termination of the contract and forfeiture of the deposit.

The purchasers had been introduced to the solicitor by a property developer connected with the proposed investment arrangements. Throughout the transaction, settlement was repeatedly delayed due to the purchasers’ inability to provide the balance of funds required for completion. Notices to Complete and, ultimately, a Notice of Termination were issued by the vendors.

The key issue was whether the solicitor for the purchasers failed to provide clear and timely advice regarding the consequences of the failed settlements, the Notices to Complete, and the termination of the contract. At the time the conveyance was on foot, the solicitors were subject to the NSW Professional Conduct and Practice Rules 2013. Rule 7.1 required solicitors to provide clear and timely advice to assist clients to understand relevant legal issues and make informed decisions.

The PCC also considered the solicitor’s broader duty of care to act in the clients’ best interests. Reference was made to Dal Pont’s Lawyers’ Professional Responsibility at [5.40], which notes that the scope of the duty of care is influenced by the client’s apparent need for advice. The PCC referred to Lu v Council of the Law Society of New South Wales [2025] NSWCATOD 11, where the Tribunal affirmed a finding of unsatisfactory professional conduct against a solicitor who failed to recommend that a client obtain independent legal advice in circumstances involving a conflict of interest. The Tribunal observed that the solicitor’s conduct fell short of the standard of competence and diligence expected of a reasonably competent lawyer.

The PCC considered that the solicitor was aware of significant concerns regarding the transaction, including repeated failed settlements and the risk of termination, yet failed to advise the clients about the legal and financial consequences of those events. There was no evidence that the solicitor explained the risks of forfeiture of the deposit or potential claims for damages by the vendors.

Although the solicitor submitted that the day-to-day conduct of the matter had primarily been handled by other staff within the practice, it was found that the solicitor remained actively involved and had been specifically requested to advise the clients regarding their legal position.

The PCC determined that a reasonably competent solicitor would have taken active steps to advise the clients, or ensured another solicitor did so. The solicitor’s failure to provide timely advice in circumstances involving significant financial risk was found to amount to unsatisfactory professional conduct. The solicitor was reprimanded and ordered to undertake legal ethics training.

Improper encumbrance of estate property

Another matter considered by the PCC involved a solicitor acting as executor of a deceased’s estate, who twice encumbered estate property to secure loans for personal and law practice purposes.

The estate included residential property held on trust for beneficiaries under a Will. The solicitor entered into a mortgage over the property to secure a loan with a credit union. Later, that mortgage was discharged and replaced with a further mortgage securing a business loan with ANZ.

The beneficiaries only became aware of the mortgages after conducting title searches through their solicitor. Investigations revealed that the ANZ loan was obtained in the name of the executor solicitor’s law practice and that the property had also been used as security for an overdraft account utilised for law practice and personal expenses.

The solicitor maintained that the loans had been obtained to fund repairs or rebuilding works to the property. The PCC considered whether the solicitor had authority, as executor, to mortgage the property and examined the solicitor’s reliance on ss 153 and 154 of the Conveyancing Act 1919 (NSW). The PCC rejected the solicitor’s submission that an implied power existed under s 154(1), noting that the provision only applied where probate had been granted prior to the commencement of the Act. The PCC further considered s 153, which permits executors to mortgage estate property “for the purposes of administration”, but concluded that the loans had not been obtained for estate administration purposes.

The PCC also considered the terms of the Will, which empowered the trustee, at the request of certain beneficiaries, to sell the residence and apply the proceeds of sale towards another property to be held on the same trusts. However, it was found that no such request had been made and that the solicitor’s conduct fell outside the scope of the authority provided under the Will.

In considering whether the conduct was unethical, the PCC referred to rr 4 and 5 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Conduct Rules), including the duties to act honestly, avoid compromising professional integrity and independence, and avoid conduct likely to bring the profession into disrepute.

Although the solicitor submitted that no loss had ultimately been suffered because the loans were repaid and the mortgages discharged, the PCC referred to Bolster v Law Society of NSW (unreported, 20 September 1982) CA 233/1982, where Moffitt P observed that the absence of loss does not mitigate the seriousness of unethical conduct and may instead demonstrate a lack of appreciation of professional responsibility.

The PCC found that the solicitor had acted unethically in entering into the mortgage arrangements and that the conduct occurred in connection with legal practice, noting that the probate application, loan facilities and overdraft arrangements were all connected to the solicitor’s law practice.

The PCC found that the conduct amounted to unsatisfactory professional conduct. Although it had considered whether the conduct amounted to professional misconduct, it ultimately concluded that, having regard to the passage of time and the repayment of the loans, the conduct did not constitute a substantial or consistent failure to maintain the required standard of competence and diligence.

The solicitor was reprimanded and ordered to pay a fine of $10,000 to the Public Purpose Fund.

Communication with another solicitor’s client

In the March Quarter, there was a matter considered by the PCC, which concerned direct communication by a solicitor to a represented party in the context of bankruptcy proceedings.

The conduct in question arose during negotiations between solicitors for the purpose of finalising a deed of settlement. During this process, the solicitor bypassed the opposing solicitor and sent a direct SMS to the trustee in bankruptcy.

Rule 33.1 of Conduct Rules provides that a solicitor must not communicate with a person known to be represented by another practitioner unless one of the specified exceptions applies, including where the circumstances are so urgent as to justify the communication.

The PCC considered whether the communication could be justified on the basis of urgency under r 33.1.2. While the solicitor asserted a belief that delay in finalising settlement might jeopardise resolution of the bankruptcy proceedings, the PCC was not satisfied that the circumstances were sufficiently urgent to warrant bypassing the trustee’s legal representative.

The rationale for the “no contact” rule has long been recognised as protecting represented parties from being circumvented by opposing practitioners. Reference was made to Riley Solicitor’s Manual (Butterworths), which states:

                  “[27,055.10] Rationale for the “no contact” rule

The main justification usually cited for the “no contact” rule is to prevent a lawyer from circumventing the protection that legal representation provides to an opposing party. A concern is that direct access to the opposing party could allow the lawyer, because of his or her legal knowledge and position, to secure damaging admissions from that party, access privileged communications (see Ch 10) or undermine that party’s trust in his or her lawyer. If so, the value of legal representation for the opponent is arguably reduced significantly. As explained by Kekewich J in Re Margetson and Jones:

“It is a professional rule that where parties to a dispute are represented by solicitors neither of those solicitors should communicate with the principal of the other touching the matters in question. That is a rule binding the profession as gentlemen, but it is also highly cognisant with good sense and convenience, because otherwise solicitors cannot really do their duty, and it is impossible for business to be properly conducted unless the solicitors have the full confidence of their clients and are enabled to communicate the one with the other upon that footing.”

The PCC noted that the trustee’s solicitor had indicated they were actively attending to preparation of the deed and had not refused to progress the matter prior to the Christmas period. In those circumstances, there was no proper basis to conclude that bypassing the trustee’s solicitor was necessary.

The PCC considered that the content of the SMS exceeded what was required in the circumstances, as it included commentary regarding perceived delay and reference to an unrelated prior matter involving the complainant solicitor.

Accordingly, the PCC was satisfied that the trustee was represented at the time of the communications, that no consent had been obtained and that none of the exceptions in r 33.1 of the Conduct Rules applied. The solicitor’s conduct was therefore found to constitute a contravention of r 33 of the Conduct Rules.

The PCC found that the conduct amounted to unsatisfactory professional conduct. The PCC determined that the appropriate outcome in this matter was a caution to the solicitor. In determining this outcome, the PCC took into account that the conduct involved a single instance of direct communication followed by an unsuccessful attempt at further contact, that the solicitor promptly apologised, ceased acting in the matter and demonstrated insight into the impropriety of the conduct.

Discourteous and improper correspondence

Another matter that was considered in the March Quarter concerned discourteous and personally offensive correspondence sent by a solicitor to a self-represented litigant in proceedings before the Land and Environment Court.

The solicitor had sent an email to the self-represented litigant which contained numerous derogatory and inappropriate personal remarks.

The self-represented litigant alleged that the correspondence was threatening, abusive, insulting and personally offensive.

Rule 4.1.2 of Conduct Rules requires solicitors to be honest and courteous in all dealings in the course of legal practice. Rule 5.1.2 further provides that a solicitor must not engage in conduct likely to diminish public confidence in the administration of justice or bring the profession into disrepute.

The PCC referred to a number of authorities concerning discourteous correspondence. In Legal Profession Complaints Committee v Lourey [2022] WASCA 114, the Western Australian Court of Appeal observed that courtesy in professional communications conveys “politeness, rather than kindness or consideration, in manner or approach.” The PCC also referred to Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364, where the Court of Appeal confirmed that offensive and derogatory comments by a solicitor may amount to professional misconduct.

Reference was also made to Council of the New South Wales Bar Association v Loukas [2025] NSWCATOD 39, where the Tribunal observed at [85] that:

“one should be able to expect the correspondence of a lawyer to be rational and reasoned and not a personal attack; even where the surrounding circumstances are fraught with stress and anxiety”.

The PCC considered that significant portions of the email were not directed to the legal issues in dispute, but instead constituted personal attacks on the self-represented litigant’s character, intelligence and behaviour. The language used was found to be intemperate, derogatory and inappropriate in a professional legal communication, particularly given that the correspondence had also been copied to the Court Registry.

While the solicitor submitted that the correspondence was sent during a period of personal stress and frustration arising from the procedural dispute, and that it was promptly retracted with an apology, the PCC noted that personal circumstances do not excuse conduct falling below professional standards.

The PCC accepted that the conduct was isolated, that the solicitor immediately apologised and withdrew from the matter, and that the solicitor demonstrated insight, remorse and relative inexperience in practice.

Nevertheless, the PCC determined that the correspondence was discourteous and improper and fell short of the standard of competence and diligence expected of a reasonably competent legal practitioner. The conduct was therefore found to amount to unsatisfactory professional conduct and the PCC concluded that a caution was appropriate.

Preparation and witnessing under defective power of attorney

A further matter considered by the PCC in the March Quarter concerned a solicitor who was acting as a public notary. In that capacity, the solicitor had prepared and witnessed a Power of Attorney for a foreign jurisdiction and, in doing so, relied on a Limited Power of Attorney. The Limited Power of Attorney purported to provide a family member with the ability to make decisions for their relatives. However, the complainant, who was one of the family members on whose behalf the Attorney could make decisions under the instrument, alleged that they never signed the Limited Power of Attorney.

The issue was whether the solicitor failed to take adequate steps to verify the validity of the Limited Power of Attorney before preparing and witnessing the Power of Attorney for the foreign jurisdiction.

The Conduct Rules require solicitors to act honestly, competently and diligently, and to avoid conduct that undermines public confidence in the profession. The PCC noted the heightened obligations of notaries when certifying documents with significant legal and financial consequences.

The solicitor relied on the Limited Power of Attorney, did not communicate directly with the principals about the Limited Power of Attorney, and instead obtained some limited medical evidence said to confirm capacity of the principals. The solicitor submitted that they believed the principals had capacity and that the Attorney was authorised to act.

The PCC found the Limited Power of Attorney was defective on its face, being unwitnessed and inconsistent with statutory requirements, and raised obvious concerns as to validity. In these circumstances, a reasonably competent notary would have taken further steps to confirm the authority before relying on it.

Such steps would have included obtaining a properly executed power of attorney, communicating directly with the principals, or requiring fresh execution of the Limited Power of Attorney. The steps taken by the solicitor were considered insufficient given the obvious defects.

The PCC referred to Council of the Law Society of New South Wales v CZD [2017] NSWCATOD 153, where failure to properly verify document validity was found to fall below the standard expected of a reasonably competent practitioner. Reference was also made to Xu v Council of the Law Society of NSW [2009] NSWCA 430, in which improper witnessing was described as “incredibly sloppy” and irresponsible, albeit not amounting to professional misconduct.

The PCC concluded that the solicitor’s reliance on third-party instructions without direct verification fell below the standard expected of a practitioner performing notarial functions.

The conduct was found to amount to unsatisfactory professional conduct. The solicitor was reprimanded and subject to a fine and regulatory orders, including further education in wills and estates practice and a restriction on engaging in notarial work pending completion of an approved notarial practice course.