A Victorian sole practitioner is to be penalised for misconduct ranging from trust money breaches and fabrication of documents to having acted in conflict for a matter that concerned his own family.
Joseph Guss, a solicitor of 60 years’ standing, was found to have engaged in professional misconduct and unsatisfactory professional conduct in respect of three separate client matters, two of which involved a friend of his partner and his family members.
Senior member Jonathan Smithers of the Victorian Civil and Administrative Tribunal listed the matter for an administrative hearing to determine the appropriate penalty orders.
The first of the charges arose out of Guss’ receipt of trust money, despite it being a contravention of his practising certificate. The tribunal made clear the money was not misappropriated.
While some amount of the money was used to pay debts on his client’s instructions, the majority was taken for legal fees that were never billed. The Victorian Legal Services Commissioner (VLSC) contended Guss was “motivated by his desire to secure his own fees”.
“As the VLSC submitted, as an experienced practitioner who had been authorised to receive trust money in the past, he was, or should have been, aware of his obligations.
“Further, this was done deliberately, with the motive of securing his fees in circumstances where his clients were deprived of the usual opportunity to challenge the fees levied before they were taken by the solicitor to himself,” Smithers said in his written reasons.
On the second charge, Guss was found to have engaged in mortgage financing, contrary to the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015. Rule 41 prohibits a solicitor from conducting a managed investment scheme or mortgage financing.
For a separate client matter, the VLSC brought a charge of professional misconduct against Guss for acting as solicitor on record for his son, despite being required to give evidence material to the determination of contested issues before the court.
Following the litigation, the Supreme Court awarded costs against Guss for his conduct as a solicitor, including for propounding a will when there was no proper basis, abuse of process, and misleading or deceptive conduct under the Civil Procedure Act 2010 (Vic).
Smithers considered the test of whether a fair-minded, reasonably informed member of the public might conclude the proper administration of justice requires a solicitor to be prevented from acting in the interests of the protection of the judicial process.
Given Guss was acting for his son in circumstances that concerned their financial interests, the litigation was a longstanding family dispute, and his evidence related to at least one key contention, Smithers said it was plain “the test was satisfied”.
In the third and final matter, the VLSC submitted it caught Guss “red handed” fabricating an invoice he purported to send to a client. The invoice was said to support a legal bill for $1,000.
The tribunal was satisfied the invoice was fabricated, which had the effect of proving two of the remaining three charges: that Guss had made a false statutory declaration as to the invoice’s legitimacy; and he received funds on account of legal costs, which was trust money.
Guss was also found to have delayed work on the matter and failed to return the $1,000 to the client.
The case: Victorian Legal Services Commissioner v Guss (Legal Practice) VCAT 714
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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