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Principal lawyer guilty of professional misconduct for breaching undertaking

The principal of a Sydney boutique firm has been reprimanded for breaching an undertaking with an opposing solicitor.

user iconNaomi Neilson 13 November 2023 Big Law
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David Kelvin Downey, of Downeys Lawyers, has been found guilty of professional misconduct and ordered to pay a $3000 fine, in addition to the reprimand, for failing to comply with an undertaking.

The undertaking was provided in the context of a property sale and required Mr Downey to provide a signed lease document to the solicitor for the other party within seven days of settlement.

The opposing solicitor had originally requested the document within 12 hours, but Mr Downey said this was not possible and provided an undertaking he would instead do so within seven days.


A settlement was reached in May 2021, but as of writing, the NSW Civil and Administrative Tribunal (NCAT) said the opposing solicitor still had not received the signed lease document.

The Council of the NSW Law Society submitted Mr Downey’s conduct in this matter “involves a substantial failure to reach or maintain a reasonable standard of competence and diligence, and therefore amounts to professional misconduct”.

Mr Downey conceded the conduct amounted to professional misconduct and told NCAT he did not contend it was affected “by any absence of authority or instructions”.

While NCAT accepted the submissions, it did note Mr Downey had made a submission that the undertaking “was out of his control”.

“A solicitor must not give an undertaking in circumstances where its fulfilment will be out of their control,” NCAT said in response.

“Undertakings must not be given by legal practitioners lightly or casually. An undertaking should only be given in circumstances where the legal practitioner is sure that they were able to fulfil the obligation created by the undertaking.”

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