A solicitor who was once principal of Brisbane migration firm is to be struck off over a range of offences including practising without authority and misleading the Legal Services Commission (LSC).
Earlier this year, the practitioner of 20 years faced five charges relating to engaging in legal practice when not entitled to, falsely certifying documents, failing to act with competence and diligence, mishandling trust money, and misleading the regulator.
In the Queensland Civil and Administrative Tribunal decision delivered on Friday, Justice Frances Williams found four of the five charges, which related to a business loan transaction in May 2019, should be characterised as professional misconduct.
The LSC contended that three of the charges constituted professional misconduct, and two of the charges constituted unsatisfactory professional conduct, and that the practitioner be removed from the local roll.
The practitioner contended that the conduct the subject of the charges did not constitute professional misconduct and/or unsatisfactory professional conduct, and that a strike-off order “would be an excessive sanction and would not serve the interests of justice”.
In the loan transaction seven years ago, the practitioner gave legal advice to a guarantor. At the time she held an unrestricted employee practising certificate but was not employed by a law practice and therefore did not hold the professional indemnity insurance required to practice.
The guarantor was a 73-year-old retiree who was offering his house as security to someone he had met a year earlier in order to buy a café.
Justice Williams said a legal practitioner’s role in the transaction was to advise on the nature and effect of the guarantee, ensuring the guarantor fully understood it.
“It is not an administrative exercise. The task involves a legal practitioner engaging with the terms of the guarantee and properly advising the guarantor of the terms and possible effects,” she said.
The practitioner failed to advise the guarantor to seek independent financial advice and to advise on the Power of Attorney. She also failed to make a file note of her dealings with the guarantor.
The LSC submitted that the practitioner should have strongly recommended independent financial advice, including as to the serviceability of the loan and whether the guarantor had financial means to avoid his house being sold if the borrower defaulted.
As to the failure to advise the guarantor in respect of the Power of Attorney, the Commission said the potential consequences for the guarantor were “staggering”.
“The respondent’s conduct had the ultimate effect of exposing (the guarantor) to significant risk and has resulted in serious consequences, including District Court proceedings,” Justice Williams said.
During the transaction, the practitioner certified a schedule to the loan document when she did not have the required identification documents.
Justice Williams said the certification of identification documents by a legal practitioner was an important safeguard for those involved in loan transactions.
She said to improperly certify the schedule undermined public confidence in the honesty and integrity of the legal profession.
“The respondent appears to accept that she falsely certified the schedule but maintains her denial that she had ‘any intention to deceive’,” she said.
“This response lacks any insight into the issue.
“By her conduct in certifying (the schedule), the practical effect was that the respondent deceived anyone who read and relied on the certification in the schedule.
“At best, the respondent’s conduct was recklessly indifferent, at worst intentionally deceptive.”
She said the conduct was a “serious breach going to the integrity of the legal system and is also dishonourable”.
During the transaction, the practitioner also dealt with trust money – $75 for a land tax clearance certificate – while not entitled to.
“It is no answer that the amount of the funds was small or nominal, or that the respondent was not a law practice. The funds were trust monies and needed to the appropriately dealt with by the respondent,” Justice Williams said.
Then between February 2021 and February 2022, the practitioner gave misleading information to the LSC during its investigation.
“The respondent’s conduct shows a failure to be open and frank with the Commission,” Justice Williams said.
“While the respondent did ultimately correct her response, she only did so after being required to file the respondent’s District Court Affidavit, which contained a sworn position contrary to what she had previously told the Commission,” she said.
“The obligation on a solicitor to be open and frank in dealings with the Commission is an important component of the wider regulatory scheme applicable to Australian legal practitioners.
“It goes to the very foundation of the integrity of the legal profession. It operates as part of the ‘protective statutory framework’, and is also integral to protecting the public.”
Justice Williams said the practitioner had not presented any persuasive evidence that her dishonest character had changed.
“If anything, what the respondent has put forward and her participation in the hearing demonstrates a complete lack of insight and that the circumstances or features that may have led to the offending conduct have not been identified, let alone addressed,” she said.
The practitioner submitted that she no longer worked as a lawyer, but did not want to be struck off because her lawyer qualification reflected her achievement and “professional identity”.
The practitioner also contended that the LSC had “overstated both the factual circumstances and the legal consequences arising from what was, at its highest, an isolated administrative and procedural irregularity arising from a single transaction in 2019”.
Justice Williams said the submission showed the respondent had “no insight into the particularly serious nature of the conduct”.
She said removal from the roll served the wider public interest including the protection of the public, the protection of the profession’s standing and deterrence, both general and specific.
“The respondent not intending to continue practising as a lawyer does not address all of these considerations,” she said.
“General deterrence also requires consideration of protection of the public against similar failures by other legal practitioners.”
She said in all of the circumstances, the practitioner was permanently unfit for legal practice, there was no evidence the practitioner was likely to become fit, and for the protection of the public and general deterrence, a strike-off recommendation was required.
The practitioner was also ordered to pay the LSC’s costs.
Read the decision here.
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