In light of an undertaking given to the LSCC and Legal Practice Board of Western Australia that the practitioner has, of their own volition, retired from practice and will not engage in legal practice or apply for a practising certificate again, Lawyers Weekly has opted to anonymise the practitioner.

In a judgment handed down by the State Administrative Tribunal of Western Australia, the practitioner was found guilty of one count of professional misconduct and four counts of unsatisfactory professional conduct.

The practitioner began acting for a client known as “RF” from about 1981 and continued acting frequently for him on various incorporated entities associated with RF, and various members of RF’s family.

In 2013, the practitioner was engaged by RF, and his sibling TF, to obtain the grant of probate and carry out the administration of the estate of one of their parents. In 2014, the practitioner was further engaged to act in relation to the administration of the estate of their other parent.

“Both matters involved, amongst other things, the administration of various trusts,” Judge Henry Jackson, senior member David Aitken and member Ross Povey noted.

The tribunal detailed that there were “various failures and inadequacies in relation to the work done”, including that the necessary transfer of shares from various companies, held by the relevant estate, to various beneficiaries, failed to occur in a timely manner and “took far too long despite repeated requests”.

There were also failures, the tribunal continued, to lodge tax returns in a timely manner, failures to respond to correspondence, and failures to comply with various cost disclosure obligations and, lastly, the failure to comply with various requirements relating to the payment of tax invoices from monies retained on trust.

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The practitioner ceased acting for these clients in about 2018.

The single count of professional misconduct was related to matters concerning the administrations of the estates of RF and TF’s parents and was described by the tribunal as “failings of competence and diligence.”

The members listed the practitioner’s “failure to progress and finalise the administration of the estates, the failure to respond to correspondence and requests for information and otherwise to instructions within a timely manner, and the failure to act upon instructions in a proper, timely, competent, and diligent manner, as well as making interim distributions before the estate was fully administered”.

The tribunal also described the four allegations of unsatisfactory professional conduct, including failures to provide costs disclosures and the withdrawal of trust monies to pay for the practitioner’s tax invoices, as “failures of competence and diligence”.

The practitioner had been acting for RF and his family for more than 30 years, “apparently without complaint”, and there was no allegation that he stood to gain by such failures.

The facts of the matter, and the proposed penalty, were agreed to by the LSCC and practitioner, in which both parties were represented by counsel.

The tribunal espoused: “In our view, the practitioner’s retirement and undertakings provide a very considerable level of protection to the public, which, it is trite to say, is the purpose for which penalties are imposed in disciplinary proceedings.”

“It might be said that the protection of the public that is provided by the undertaking is such that there is no need for an (additional) reprimand and a fine. In our view, however, the concept of general deterrence may, depending on the circumstances, constitute an important element of a penalty which seeks to protect the public,” the members explained.

A reprimand and a fine constitute “a significant admonition”, the tribunal continued, and demonstrates that serious consequences will flow from adverse disciplinary findings.

“When imposed together, and in addition to the findings and the undertaking to retire, we are of the view that the agreed penalty is at the upper end of the range of an appropriate penalty, particularly where no dishonesty is involved,” the members submitted.

“We are comforted by the fact that the practitioner was represented by senior counsel and accept that the agreed penalty is within the ‘appropriate range’, and orders giving it effect should be made.”

Ultimately, the practitioner was reprimanded, pursuant to s439(d) of the Legal Profession Act (2004), and fined $5,000, pursuant to s441(a) of the act, along with being required to pay the LSCC’s costs in the amount of $5,000.