Council of the Law Society of the Act v Jackson
[2014] ACAT 28
•16 January 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COUNCIL OF THE LAW SOCIETY OF THE ACT v JACKSON
(Occupational Discipline) [2014] ACAT 28
OR 15 of 2013
Catchwords: OCCUPATIONAL DISCIPLINE – LEGAL PRACTITIONER – agreed statement of facts - non-disclosure of legal costs to client in writing – briefing counsel without first disclosing to client – dishonour of personal cheque of practitioner that was issued for refund of legal aid grant – misleading statements made to Law Society
Legislation:ACT Civil and Administrative Tribunal Act 2008, s 33
Legal Profession Act 2006, ss 269, 270 and 425
Tribunal: Mr B. Loftus – Senior Member
Date of Orders: 16 January 2014
Date of Publication of Reasons for Decision: 8 May 2014
AUSTRALIAN CAPITAL TERRITORY)
CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: OR 13/15
RE:THE COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY
Applicant
AND:SIMON JACKSON
Respondent
ORDERS
Tribunal:Mr B. Loftus – Senior Member
Date of Order: 16 January 2014
Having considered the agreed statement of facts annexed to these orders, the respondent’s admission that proper cause exists for disciplinary action against him and the submissions of the parties in relation to the penalties that are appropriate in all the circumstances of this matter, the Tribunal finds that the respondent is guilty of professional misconduct in relation to the matters set out in the agreed statement of facts and orders that:
1. The respondent be publicly reprimanded pursuant to section 425(3)(e) of the Legal Profession Act 2006.
2. By 16 March 2014, the respondent is to pay a fine of $5,000 pursuant to section 425(5)(a) of the Legal Profession Act 2006.
3. The respondent is to attend the Ethics and Trust Accounts components of the next practice management course conducted by the Law Society of the ACT commencing on 28 March 2014.
4. Within 12 months of the date of this order, the respondent is to pay the applicant the costs of and incidental to the application and the amended application, at the full Supreme Court scale, and disbursements in full in an amount to be agreed or, failing agreement, as assessed by the registrar of the tribunal, such costs to be paid in equal monthly instalments on the due date of the agreement or assessment, whichever first occurs.
5. The hearing date of 12 March 2014 is vacated.
…………………………
Ms L. Crebbin – General President
for Mr B Loftus – Tribunal Member
AGREED STATEMENT OF FACTS
ACT Civil and Administrative Tribunal
File No: OR 13/15
LAW SOCIETY OF THE ACT
Applicant
LEGAL PRACTITIONER “J”
Respondent
At all relevant times, the Respondent was employed by S & T Lawyers (“the Law Practice”), a firm of solicitors carrying on a business in Canberra, ACT.
The Law Practice is a “law practice” as defined by the Dictionary to the Legal Profession Act 2006 (ACT) (“the Act”).
The Respondent was the holder of a restricted practising certificate granted by the Applicant on 1 July 2003 pursuant to s 44(1) of the Act until 1 July 2011, at which time he was granted an unrestricted practising certificate by the Applicant pursuant to s 44(1) the Act.
On or about 17 April 2009, the Respondent signed a “Form of Acceptance by a Private Legal Practitioner of General Conditions of Referral”, which was faxed to Legal Aid ACT on 17 April 2009. The form signed by the Respondent contained the following statement:
‘I, Simon Jackson of S & T Lawyers
(a) Hereby notify the Legal Aid Commission that I accept the General Terms and Conditions of Referral and Guidelines approved by the said Commission on 15 December 1995 and all Scales of Costs offered by the Commission and undertake to be bound by such Condition, Scales of Costs and Guidelines in every particular and as amended by the Commission from time to time.’
On or about 9 June 2009, Legal Aid ACT assigned to the Law Practice a client, [….redacted] (“the Client”), who obtained a grant of legal aid with reference number […redacted] to conduct her criminal matter in the ACT Magistrates Court with file number […redacted]. The grant covered professional costs and disbursements for a plea of guilty in the Magistrates Court (solicitor only $990).
At all relevant times, the Respondent had day-to-day carriage of the Client’s matters with the Law Practice and was knowingly involved in the transactions outlined herein, except the transaction described in paragraphs [32] and [33] below.
During the course of the Respondent’s retainer with the Client, at no time did the Respondent disclose in writing any of the matters with respect to legal costs prescribed by section 269(1) of the Act to the Client. The Respondent did discuss legal costs with the Client, in general terms, from time to time.
On 14 August 2009, the Client was charged with further offences, with ACT Magistrates Court file numbers CC […..redacted].
On or about 20 August 2009, the Respondent briefed Mr Timothy Crispin of Counsel in respect of the Client’s matters.
At all relevant times, Mr Timothy Crispin of Counsel was a law practice as defined by the Dictionary to the Act.
10AThe Respondent briefed Mr Timothy Crispin of Counsel without first providing the Client with a written disclosure of the matters referred to in section 270(1) of the Act.
On 27 August 2009, the Respondent attended the Alexander Machonochie Centre, where the Client was incarcerated on remand. The Respondent assisted the Client to complete forms to apply for a further grant of legal aid with respect to the matters numbered CC […redacted].
On 11 September 2009, the Client obtained a further grant of legal aid with reference number […redacted] with respect to matters numbered CC […redacted]. The grant covered professional costs and disbursements for a plea of guilty in the Magistrates Court (solicitor only $990).
On 11 November 2009, the Respondent had a conference with the Client and Counsel. On this occasion, the Practitioner advised the client that she was at risk of being incarcerated on a full time basis. The Client then said words to the effect of: “How much do I need to pay to make this go away?” and indicated to the Practitioner that she could get a loan from her mother. The Practitioner and Counsel indicated that the costs would be of the order of $10,000. The Client instructed the Practitioner in writing (which was signed by the Client and dated 11 November 2009) as follows:
‘I […redacted], instruct Simon Jackson of S & T Lawyers that I wish to enter pleas of guilty to charges […redacted] and [...redacted].
I understand that my matter is before the court on 12 November 2009 for Case Management Hearing. I wish to advise that I do not submit to the jurisdiction of the ACT Magistrates Court and wish to be sentenced in the ACT Supreme Court.
I will pay privately for this service and the quote I have been given is $10,000.00 (including disbursements) however I understand that this is only a quote.’
On 12 November 2009, Mr Timothy Crispin of Counsel appeared for the Client in the ACT Magistrates Court and entered pleas of guilty on her behalf to charges […redacted] and […redacted]. Mr Crispin sought leave to withdraw the consent previously given with respect to the jurisdiction of the ACT Magistrates Court in relation to the sentencing for the offence of charge […redacted] and instead sought leave for that charge together with […redacted] to be committed for sentencing before the ACT Supreme Court for which leave was granted.
On 20 November 2009, the Law Practice’s Trust Account Ledger (“Ledger”) records the deposit of $10,000 into the Law Practice’s Trust Account, which is described in the Ledger as “[…redacted] – on account of Fees and Disbursement”.
It was the client’s mother that deposited the $10,000.
16A. The Respondent did not become aware of this deposit until 3 December 2009.
On 25 and 26 November 2009, the Respondent took steps to cause the Law Practice to render accounts to Legal Aid ACT for grants with reference numbers […redacted] and […redacted], such steps included:
a.causing a tax invoice to Legal Aid to be raised with Law Practice reference number SJ 13408 dated 25 November 2009 for the amount of $999 for professional costs of and incidental to acting for the Client and sent under cover of letter of the same date from the Law Practice and signed off by the Practitioner; and
b.causing a tax invoice to Legal Aid to be raised with Law Practice reference number SJ 13542 dated 26 November 2009 for the amount of $999 for professional costs of and incidental to acting for the Client and sent under cover of letter of the same date from the Law Practice and signed off by the Practitioner.
The terms of the letter referred to [in] paragraph 17(a) stated as follows:
‘Please be advised that the […redacted] matter, under this grant of legal aid, is now finalised.
The outcome in these matters was as follows:-
· On 29 October 2009 the defendant entered pleas of guilty;
· Defendant did not subject to jurisdiction and matter sent to ACT Supreme Court for Sentencing with other matters.
Our client instructs that she will not be seeking Legal Aid for her Supreme Court matter.
Our bill is attached, and payment is requested.
On behalf of our client we thank you for this grant of aid.’
The terms of the letter referred to [in] paragraph 17(b) stated as follows:
‘Please be advised that the […redacted] matter, under this grant of legal aid, is now finalised.
The outcome in these matters was as follows:-
· On 12 November 2009 the defendant entered pleas of guilty;
· Defendant did not subject to jurisdiction and matter sent to ACT Supreme Court for Sentencing with other matters.
Our client instructs that she will not be seeking Legal Aid for her Supreme Court matter.
Our bill is attached, and payment is requested.
On behalf of our client we thank you for this grant of aid.’
On 1 December 2009, the sum of $999 from Legal Aid ACT for the grant of aid with reference number […redacted] appeared as cleared funds in the Law Practice’s trust account. On 2 December 2009 the Law Practice transferred the $999 from the trust account to the operating account.
20A. On 3 December 09, the Respondent became aware of the deposit made into trust on 20 November 09.
20B.The Respondent had not previously been in the position where a client with a grant of Legal Aid later provided money in trust. The Respondent immediately brought the matter to the attention of the partners, Mr Sutherland and Mr Tiirikainen. The Respondent carefully described the progress of the matter to that date, and showed the partners relevant documents from the file. Mr Sutherland asked a member of staff to print out the trust ledger. Mr Sutherland retained the file for several days.
20C. Mr Sutherland was the partner who assumed primary responsibility regarding the partnership accounts. Mr Sutherland took a close interest in the present matter. Mr Sutherland directed the Respondent as follows:
(i)Refund Legal Aid immediately – from the Respondent’s own personal funds (account dated 25/11/09);
(ii)Write to Legal Aid and cancel payment immediately (account dated 26/11/09).
20E. Later on that day, the Respondent became aware that the Client had orally ended the retainer, and requested the return of the $10,000. The Respondent immediately spoke to the partners again. Mr Sutherland directed the Respondent as follows
(i)Obtain a memorandum of fees from Mr Crispin.
DELETED
On 3 December 2009, the Respondent wrote to Legal Aid ACT. The letter enclosed a cheque in the sum of $999.00 that was drawn on the Respondent’s personal bank account, not on an account belonging to the Law Practice (“the Respondent’s Cheque”). The letter contained the following statements:
‘On 25 & 26 November 2009 we submitted our account in relation to both grants of aid.
Our client had endeavoured to make arrangement to fund her own legal proceedings from a private source; however, she was unable to do so until after we had submitted our accounts.
Our client has now advised that she can raise the funds privately. In the circumstances we enclose a cheque for $999.00 being a refund of aid already paid under reference number […redacted].
We have advised your office to stop payment of our account in relation to reference number […redacted].
We apologise for any inconvenience or misunderstanding, however, this matter has only just been bought to our attention.’
On 10 December 2009, the Respondent’s Cheque was dishonoured by the Commonwealth Bank of Australia.
On 21 December 2009, the Client directed the Respondent by email to transfer the funds she deposited into the Law Practice’s trust account into the Client’s personal bank account.
On 22 December 2009, the Client again directed the Respondent by email to transfer the funds she deposited into the Law Practice’s trust account into the Client’s personal bank account and stated “i [sic] have requested 3 times now for it to be done”.
25A. On 22 December 09, the Respondent again sought advice from Mr Sutherland and Mr Tiirikainen.
25B.Mr Sutherland directed the Respondent to write to the Client, and dictated the contents of the letter. In accordance with this direction, the Respondent prepared a letter. Mr Sutherland checked the letter, and directed the Respondent to send the letter, and to enclose the following
(i)Tax invoice of S & T lawyers dated 23/12 (including disbursement of $4950 for Mr Crispin);
(ii)an authority to disburse.
On 22 December 2009, the Respondent sent the Client a letter, which enclosed an invoice and an authority to deduct costs from monies in trust for her to sign. The letter stated as follows:
‘We confirm that we have received your written instructions on 22 December 2009.
Please be advised that after seeking advice from the senior partners of my firm. They have instructed me of the following:
· Your original instructions to us when you engaged us privately for the sum of $10,000.00 was to mee [sic] the costs of work involved in the Magistrates Court and your sentence in the Supreme Court.
· They have advised me to send you a bill and this letter to explain that we are intending to retain $8430.00, of which, 1980 [sic] is for our legal fees (at legal aid rates) for all work done up to this point. $4950.00 is for barristers fees done in the magistrate court.
· We note that we are still waiting for Mr Crispin’s tax invoice for his Supreme Court costs. We intend to retain $1500.00 additionally in trust to cover his costs. If there is any amount remaining, we will refund you the remainder.’
On 24 December 2009, the Law Practice closed at midday. Later that day, Ms Mary-Therese Daniel of Legal Aid ACT emailed the Respondent and advised him that the Respondent’s Cheque had been dishonoured. The Law Practice opened on 4 January 2010 and the Respondent read the email form [sic] Ms Daniel.
Between 4 and 12 January 2010, the Respondent spoke to staff at the Legal Aid office by telephone on two occasions. In the first conversation, the Respondent suggested that he would reimburse the $999 personally via EFTPOS, although there was no timetable agreed. In the second conversation, the Legal Aid office suggested and the Respondent agreed, that the amount would be deducted from the next payment from Legal Aid to the Law Practice.
On 3 January 2010, the Client emailed the Respondent and stated as follows:
‘Dear simon,
I am not happy about the invoice provided and there is no way I will be paying 7,000 for 2 appearances in court that is not what you told me would happen you have been doing legal aid and you can not charge me for it now! I have written to the ombudsman to make a formal complaint about the service you have given to me and am also going to be taking it further, in regaurds [sic] to the comments both yourself and tim made about not doing a good job as legal aid dont pay you well enough. So pls get back to me asap about the 10,000 my mother put into your trust account before i take this further.’
On 10 January 2010, the Client again emailed the Respondent and instructed him to return the monies placed into the Law Practice’s trust account.
On 12 January 2010, as agreed above, Legal Aid ACT deducted the sum of $1,089.00 from a payment to the Law Practice.
On 13 January 2010, the Law Practice after receiving the remittance, created a journal entry in the trust account to reflect the $90 credit.
On 14 January 2010, contrary to the Client’s instructions and without the Client’s authority, the Law Practice amended its trust account records to remove $1,089 from the record of the monies deposited by the Client because of the Legal Aid deduction referred to in paragraph [30] [sic] above.
33A.The Respondent did not cause the amendment in paragraphs [32] and [33] above, to the Trust Account records. The Respondent was later advised of this amendment to the Trust Account records, but did not recognise the significance.
On 21 January 2010, the Representative sent an email to Mr Timothy Crispin of Counsel, stating, relevantly:
‘We wish to advise that both the client in this matter, and Mr Sutherland are both insisting that this matter be finalised and the clients funds held in trust, be returned to the client.
Mr Sutherland had [sic] made it clear that unless give us your account for the Supreme Court Matter, S & T Lawyers will not be responsible by your account.
Could you please email us your account this afternoon as the client will be collecting her file and Trust Account money, tomorrow.’
In about mid December 2009, Mr Timothy Crispin of Counsel provided an account dated 11 November 2009 to the Respondent for work performed on the Client’s matter between 20 August 2009 to 12 November 2009 in the sum of $4,950.
On 21 January 2010, Mr Crispin of Counsel provided an account to the Respondent for work performed on the Client’s matter between 26 November 2009 and 3 December 2009 in the sum of $429.
On 30 March 2010, contrary to the Client’s instructions and without the Client’s authority, the Law Practice drew a cheque payable to Mr Timothy Crispin of Counsel in the sum of $5,379.00 from its trust account and paid that cheque to Mr Crispin.
On 19 April 2010, the Client provided the Respondent with an authority to release the monies held in the Law Practice’s trust account to Mr Stephen Stubbs of Diana Burns Solicitors.
On 19 April 2010, the Law Practice drew a cheque payable to the Client in the sum of $3,622.00 from its trust account. That cheque was deposited into a personal credit card account controlled by Mr Stephen Stubbs.
Contrary to the Client’s instructions, the Law Practice failed to refund the balance of the monies paid on behalf of the Client into its trust account (being $6,978.00) to the Client.
On 15 June 2012, the Applicant sent the Respondent a letter enclosing a complaint made by the Client about the Respondent’s professional conduct and required the Respondent to respond by 3 July 2012.
The Respondent responded to the Applicant’s letter by way of a letter dated 10 July 2012, wherein he made the following statements, relevantly:
‘On 2 December 2009 I became aware of the fact that the Client had paid money into S & T Lawyers trust account. When I became aware of this fact, S & T Lawyers informed Legal Aid and refunded the sum of $999.00 (see attached letter dated 3 December 2009).
…
In its remittance advice dated 12 January 2010 Legal Aid has debited another amount of $1,089.00 against the next remittance to S & T Lawyers in effect giving a double refund to Legal Aid. This second refund has been debited to the Clients account’.
In the circumstances, the statements to the Applicant referred to in paragraph [42] above were misleading, in that:
(i)the Respondent’s Cheque, which was enclosed with the letter dated 3 December 2009, was dishonoured;
(ii)the Respondent’s Cheque was a personal cheque drawn on the Respondent’s personal account, not that of the Law Practice; and
(iii)Legal Aid ACT did not receive a ‘double refund’ as alleged by the Respondent.
The Respondent should have known that the statements to the Applicant were misleading, in that:
(i)the dishonoured cheque was drawn on the Respondent’s personal bank account;
(ii)on 24 December 2009, the Respondent was advised by Mary-Therese Daniel of Legal Aid ACT by email of the dishonoured cheque;
(iii)the Respondent had responded verbally to the email dated 24 December 2009 by offering to refund the monies to Legal Aid personally, but failed to do so; and
(iv)the Respondent had spoken to the Legal Aid office as detailed above in paragraph [28].
The Respondent has not since making the statements referred to in paragraph [42] accurately advised the Applicant in respect of the said repayment to Legal Aid.
On the 18 December 2013, the Respondent provided two cheques to the total of $6978 to the Law Society for payment to the client.
Sgd. Solicitor for Applicant Sgd. Counsel for Respondent
Edited Ex Tempore Reasons
This application for disciplinary action in relation to the respondent legal practitioner was listed before me so that I could conduct a confidential preliminary conference under section 33 of the ACT Civil and Administrative Tribunal Act 2008. During the course of the conference the parties proposed that the application should be resolved by the tribunal making orders in terms agreed by them. They also agreed that I should close the conference and consider their proposal in an open hearing so that I could determine whether the tribunal has the power to make the orders suggested and whether the orders are appropriate in the circumstances of the case.
The parties agreed about the relevant facts. They produced an agreed statement of facts which was signed by counsel for both parties. I accept that the relevant facts are as set out in the statement.
The parties proposed that in light of the agreed facts, penalties should be imposed directed at the respondent’s education and deterrence. Having considered the agreed statement of facts, I accept that the penalties proposed are within the power of the tribunal and are appropriate in all of the circumstances. I therefore made the orders set out above.
I noted that trust accounts are traps for young players. No-one has suffered any actual financial loss arising out of the actions of the respondent except him. This is a matter taken into account in those orders.
Ms L. Crebbin
for
Mr B. Loftus
PUBLICATION DETAILS
FILE NUMBER: | OR 13/15 |
PARTIES, APPLICANT: | Council of the Law Society of the ACT |
PARTIES, RESPONDENT: | Simon Jackson |
TRIBUNAL MEMBERS: | Mr B. Loftus |
DATES OF HEARING: | 16 January 2014 |
PLACE OF HEARING: | Canberra |
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