In light of an undertaking given to VCAT that the practitioner has, of their own volition, retired from practice and will “never again apply” for a practising certificate, Lawyers Weekly has opted to anonymise the practitioner.

As such, Lawyers Weekly has also anonymised clients and other legal practitioners referenced in the tribunal’s judgment. 

The charges included: sending unauthorised communications contrary to the client’s interest, failing to act on client’s instructions, making unauthorised payment from a trust account and failing to cease acting and deliver a file to new solicitors when instructed to do so.

In his judgment, VCAT member John Sharkie ordered the practitioner to pay the VLSC costs in the amount of $25,000.

“This is a case of a legal practitioner failing to comply with a set of fundamental standards and obligations over an extended period of time whilst acting for an executor of a deceased estate,” he stated.

“In particular the legal practitioner did not maintain confidentiality, did not communicate with [their] client fully and properly, expressed opinions which could be regarded as being contrary to [their] client’s interests, did not comply with [their] client’s instructions to cease acting for him and continued to carry out work without authority.”

The practitioner was the principal of their firm from November 2004 until June 2019, during which they engaged in numerous counts of professional misconduct.

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This included acting for a client, (Client A), who, in 2013, inherited $40,000 from his deceased mother, and was appointed the executor and trustee of her deceased estate, which was to be split up between him and his brother (Client B). Client A, who was detained in the psychiatric ward of a hospital at the time, engaged the practitioner to act for him, including preparing probate documents for his late mother’s estate.

The practitioner had “called in all funds in the Estate” by July 2014, to a sum of approximately $550,000. Law firm B, representing Client B, then contacted the practitioner to request information regarding the estate. The practitioner then contacted Client A’s social worker at the correctional facility via email, whereby they called their then-client “demanding” and said he has “tunnel vision and lacks analytical thinking”.

Sharkie M found that this email “was sent without any permitted, lawful or proper justification or reason” and breached the practitioner’s fiduciary obligations to act fairly and in the client’s best interests, and their duties of loyalty and trust to their client.

“[The practitioner] was not compelled by law to disclose the information to [Client A’s social worker] and, where there was no probability that the law would compel the practitioner to disclose the information to [Client A’s social worker],” Sharkie M found.

Following this, Client A’s treating psychologist wrote to the practitioner seeking clarification on elements of her previous email, to which the practitioner responded that they suspected their client “is the kind of person who would hold a grudge because he is not a rational person and while we get on well at the moment he could easily turn on me when things go wrong — and things will go wrong when he tries to invest his inheritance (instead of the sensible option of giving it to his children)”.

“I base this on [Client A’s] advice to me that he owes the ATO approx. $1,000,000.00. I have not seen any evidence of the debt (I presume it is an accurate estimate) but I understand that he has contacted the ATO (without first discussing it with me — which is very annoying when you are trying to help someone). In my view he is like a delinquent child with no respect for his parents,” the practitioner wrote.

“At the end of the day I question whether any amount of mediation will turn [Client A] into a socially acceptable person.”

As Client A had not authorised disclosure of this information to [Client A’s treating psychologist], Sharkie M found that this email also breached client confidentiality and the practitioner’s duty to act in their client’s best interest.

The practitioner then sent Client A a letter together with an invoice dated 21 July 2014, which recorded (and charged for) communications with the correction facility, after Client A had instructed them not to send anything further to the practitioner. 

In a letter received by the practitioner prior to October 2014, Client A wrote to the practitioner:

“... Regarding [Client A], if you have not already done so pls send his solicitors everything they asked for in a letter dated 21/7/14. Also let them know that I will not be taking over his share of the money and he will receive his share as per the will.

“... I am unhappy about two things: i) tax invoice of 21/7/14 which has ‘All necessary communications upon [the correctional facility staff]. These emails to [the social worker and psychologist] were not authorised by me and I have never seen them so on that basis could you pls refund that part of the fee into future invoices. Pls do not contact anyone in the hospital in the future...”

In November 2014, the practitioner wrote to Law Firm B, stating that “as advised by telephone while the executor [Client A] advised in an open letter to us that he would not be “taking over [Client B’s] share of the money” he has since reneged on that open offer”.

“We see no issue with the immediate payment of [Client A’s] legal fees incurred solely due to his proposed Executorship of the Estate and in relation to his position as a primary beneficiary living and residing interstate,” the practitioner wrote.

According to Sharkie M, this letter “expressed [the practitioner]’s own view that there was no issue with immediate payment of [Client A’s] legal fees despite that [Client A] had no automatic entitlement and/or any entitlement at all to claim payment of his legal fees from the Estate; and/or [the practitioner] had not obtained instructions from [Client A] to pay [Client A’s] legal fees from the estate funds”.

The practitioner also spoke with Law Firm B on the phone and called their client “demanding, unpleasant, irrational” and said that he was not capable of being executor and trustee of his late mother’s estate and that his executorship should be revoked, portraying him in a negative manner.

Subsequently, Client A engaged Law Firm C to act for him — and the practitioner received a letter from this law firm requesting that the estate file and funds be transferred to them. Upon termination of their retainer, the practitioner failed to transfer these things to Law Firm C. She then wrote to Law Firm B to implore their client to consider making an application to have [Client A] removed as trustee.

Despite all of this, the practitioner continued to provide legal work on the file — and in November 2015, Her Honour Justice McMillan made orders whereby Client A was discharged as executor of the Estate and Client B was appointed administrator.

“[Client A] provided [the practitioner] with clear instructions that [their] retainer had been terminated and the file was to be transferred to his new solicitors [Law firm C]. Not only were these instructions received directly from [Client A] but also from his solicitors. In breach of [their] professional obligations [the practitioner] failed to cease work on the matter and failed to deliver the file to the new solicitor,” Sharkie M stated in his judgment.

“[The practitioner] may have formed a view that [Client A] lacked capacity to terminate [their] services thus justifying, in [their] mind, [their] decision not to comply with this request. However, when [they] received a doctor’s report establishing [Client A’s] capacity, [they] should have ceased all work and delivered the file without delay. [They were] in no position to make a determination as to [Client A’s] capacity and, in reality, had continued to act in the matter.”

“Had [the practitioner] not pleaded guilty I would have found the charges proven.”