Defence lawyer found guilty of professional misconduct
A prominent Adelaide defence lawyer has been found guilty of professional misconduct after making false and misleading representations to the Legal Services Commission of South Australia.
George Mancini has been found guilty of professional misconduct after being charged with five counts of making false and misleading representations to the Legal Services Commission of South Australia on a number of occasions between 2013 and 2015.
In addition, Mr Mancini was charged with four counts of claiming and attempting to claim fees from the Commission to which he knew or should reasonably have known he was not entitled.
The decision comes after an appeal by the Legal Profession Conduct Commissioner was heard by the Supreme Court of South Australia - Full Court this month.
The appeal by the commissioner was made against findings by Legal Practitioners Disciplinary Tribunal that Mr Mancini was not guilty of professional misconduct but guilty of unsatisfactory professional conduct.
The appeal was granted to upgrade Mr Mancini’s charge from unsatisfactory professional conduct to professional misconduct after the commissioner successfully argued that Mr Mancini was guilty on each count of the more serious charge of professional misconduct under s 82(2) of the Legal Practitioners Act 1981.
Mr Mancini may now face the possibility of being struck off after being found guilty of professional misconduct. Lesser penalties may include a fine and/or suspension of his practising certificate.
The string of charges stem from multiple occasions whereby Mr Mancini acted for clients as part of his defence work.
Among them, court documents show that on 22 January 2015 Mr Mancini attended the Magistrates Court to defend child sexual exploitation charges against clients known only by their initials - SG and BJ.
Mr Mancini had been told two days prior to the court date that the prosecution would withdraw the charges due to the prosecution tendering no evidence against his clients SG and BJ. Despite this however, Mr Mancini was found to have sent emails to the Legal Services Commission, requesting legal aid funding for each matter.
In doing so Mr Mancini failed to disclose that the charges were about to be dismissed by the prosecution, thereby making a false representation that the matter was still pending and claiming fees to which he was not entitled, court documents found.
Mr Mancini’s defence was that that he believed that the commission exercised discretion to grant retrospective funding occasionally, the court documents reveal.
Another charge eventuated from a matter Mr Mancini advised on in February 2015, whereby he sent certified commitment certificates to the Legal Services Commission claiming payment for a pre-trial conference, and guilty pleas and counsel fees in respect of his client who was known to the court also only by their initials - KC.
This was despite Mr Mancini not actually attending any hearing of the matter nor attending a pre-trail conference or the hearing at which KC pleaded not guilty, court documents reveal.
As a result Mr Mancini was again charged with making false representations and claiming fees for which he was not entitled.
This time his defence was that he had “done the work necessary for each court appearance including providing advice to KC and communicating with the court including making written submissions on sentence”, the documents said.
Another, separate, charge rose from an incident which took place on 2 March 2015 whereby the Legal Services Commission wrote to Mr Mancini authorising him to represent a client, known by their initials of HR, on a guilty plea after they were charged with two counts of assault.
The court found that just over a week later, on the morning of 10 March, Mr Mancini sent a facsimile to the commission reiterating a previous request for funding for trial. At the commencement of trial Mr Mancini negotiated a resolution of the matter by way of guilty plea, documents say.
Then, on 17 March, the commission wrote to Mr Mancini saying that legal aid had been extended for a trial.
“On 20 March the practitioner wrote to the commission saying that the matter resolved on the day of trial and attaching a commitment certificate claiming legal costs for a trial,” the documents state.
Thereafter the commissioner alleged that Mr Mancini, by the commitment certificate, “made a false representation that the matter was a defended matter (as opposed to a defended matter not proceeding at trial)” … and claimed fees to which he was not entitled.
Mr Mancini defended the allegations by the Commissioner, saying he believed that he was entitled to make the claims for the amounts he did because of the “nature of the matter, its complexities and the extent of the brief”.
The appeal argument
When the initial charges were brought to Mr Mancini they were heard by the Legal Practitioners Disciplinary Tribunal, who cited that it was not satisfied that the practitioner acted dishonestly, accepting the Mr Mancini's evidence about his state of mind and that the practitioner was not guilty of professional misconduct.
The Tribunal then proceeded to consider the individual counts — which include, but are not limited to, those listed above — and concluded that in respect of each count the practitioner was guilty of unsatisfactory professional conduct, rather than professional misconduct, court documents reveal.
In its issues on appeal, the Legal Profession Conduct Commissioner argued that the Tribunal’s decision “should have found that the practitioner was guilty on each count of the more serious charge of professional misconduct within the meaning of the act”.
“Specifically, the commissioner contends that the Tribunal erred in finding that the practitioner’s conduct in certifying as accurate and submitting a number of commitment certificates to the commission which were inaccurate and misleading did not comprise professional misconduct and also that the Tribunal fell into error in taking into account when assessing the practitioner’s conduct his belief that it was an acceptable practice to claim from the commission fees for work he had not done,” the court heard.
“The commissioner contends that the Tribunal erred in failing to find that at the very least the practitioner’s conduct had been reckless. The commissioner contends that the Tribunal erred in failing to consider that at the time of the conduct alleged in 2015 the practitioner was practising under the supervision of a senior practitioner by order of the Full Court made in April 2014 as a direct consequence of findings of guilt in relation to similar conduct.
“The commissioner contends that the reasoning of the Tribunal in accepting the practitioner’s evidence as honest took only a generic approach to the charges with the consequence that its reasons do not adequately disclose on which facts it ultimately based its conclusion that the conduct of the practitioner was only ‘unsatisfactory professional conduct’.”
Ultimately the commissioner argued that the Tribunal made “several fundamental interrelated errors of approach which led it to make erroneous conclusions and vitiated its ultimate findings” and “misapprehended the relationship between unsatisfactory professional conduct and professional misconduct”.
“The relationship between unsatisfactory professional conduct and professional misconduct is apparent from their respective definitions in sections 68 and 69 of the act,” the commissioner explained.