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Sole practitioner suspended for 3 years for practising without certificate
A sole practitioner found to have engaged in unsatisfactory professional conduct and professional misconduct for failing to file reports and practising without a certificate has been suspended for three years and ordered to complete an ethics course.
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The Queensland Civil and Administrative Tribunal (QCAT) heard allegations from the Legal Services Commissioner that former sole practitioner Edward Pene had continued to practise for a month after his certificate had expired and despite receiving a number of reminders from the Queensland Law Society (QLS).
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After the second reminder was received, over 20 days after his practising certificate had expired, Mr Pene responded to QLS and said he was “confused” and thought that the certificate was under review while an investigation into overdue audit reports was underway. He also informed them that he was awaiting the finalisation of that investigation and asked for further guidance on what steps to take.
In another email, Mr Pene said he was prepared to go in-house and close his practice but intended to settle two conveyancing files he still had open. QLS advised the respondent that he had to either transfer the files to another legal practise or find employment somewhere else so that he could continue working on the files.
“The gravity of the respondent’s conduct was exacerbated by the fact that he was repeatedly told by the QLS, in no uncertain terms, that he had to stop practising immediately. Rather than doing so, the respondent continued practising for a month by attending the conveyancing matters, while simultaneously engaging with the QLS about the fact that he did not hold a practising certificate,” QCAT found.
In the course of conducting a receivership for the audit reports, the QLS receiver uncovered documents that demonstrated that Mr Pene had continued acting in at least one conveyancing matter. The documents included correspondence during the time Mr Pene was liaising with QLS about his expired practising certificate.
In response to inquiries, Mr Pene told the Law Society that he was left with “no other option” because the two conveyancing files “were for family friends of which I did not want to hand over their files to just anyone” and were “nearing settlement that required immediate action on critical conditions” before he could close the files.
Further charges were heard by QCAT on the issue of Mr Pene’s failure to timely submit external examiner’s reports. In one charge, Mr Pene submitted a report 14 months after it was due and, on another, never submitted. During this time, he informed QLS that he could not afford to pay for the report from the auditor.
“The respondent’s failure to file the audit reports can be explained, but not excused, by his financial circumstances at the time. The seriousness of that conduct is, however, significantly overborne by the gravity of his conduct in persisting in practice without a practising certificate,” QCAT wrote in its judgement decision.
The entire judgement can be read on AustLII and JADE: Legal Services Commissioner v Pene [2021] QCAT 299 (23 September 2021).
