Legal Services Commissioner v Amitesh Kumar - [2018] QCAT 173

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Amitesh Kumar [2018] QCAT 173

PARTIES:

LEGAL SERVICES COMMISSIONER
(applicant)

v

AMITESH KUMAR

(respondent)

APPLICATION NO/S:

OCR170-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

17 July 2018

HEARING DATE:

12 June 2018

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

Assisted by:

Ms Megan Mahon, Legal Panel member
Dr Margaret Steinberg, Lay Panel Member

ORDERS:

1.   The respondent, Amitesh Kumar, is publicly reprimanded for professional misconduct.

2.   A local practising certificate is not to be granted to the respondent until 26 January 2021.

3.   The respondent shall pay the applicant’s costs, to be assessed on a standard basis on the Supreme Court scale under the Uniform Civil Procedure Rules, such costs to be assessed as if the matter were proceeding before the Supreme Court of Queensland.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT – TRUST MONEY – whether striking off roll or suspension is more appropriate – where respondent has shown evidence of being of fit and proper character – whether respondent can maintain exhibiting behaviour considered fit and proper

Legal Profession Act 2007 (Qld) ss 419, 456, 465, 462

Attorney-General and Minister for Justice Qld v Priddle [2002] QCA 297
Attorney-General of the State of Queensland v Legal Services Commissioner & Anor; Legal Services Commissioner v Shand [2018] QCA 66
Attorney-General v Kehoe [2001] 2 Qd R 351
Jensen v Legal Services Commissioner [2017] QCA 189
Legal Services Commissioner v Fellows [2017] QCAT 337
Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320

APPEARANCES & REPRESENTATION:

Applicant:

M R Lester of the Legal Services Commission

First respondent:

G M Cranny of Gilshenan & Luton

REASONS FOR DECISION

The respondent was admitted as a solicitor on 8 September 2003. He has not practiced law since 10 August 2013 and no longer holds a practicing certificate. He is currently employed as the Group Compliance and Governance Manager for a not for profit organisation.
The respondent commenced his legal career in September 2003 at McCarthy Durie Lawyers (then McCarthy Durie Ryan Neil Solicitors).He was made a Director of McCarthy Durie Lawyers on 1 July 2009, and he purchased an interest in the firm. His employment and directorship were terminated on 9 August 2013.
In this disciplinary proceeding brought by the Legal Services Commissioner, the complaint is that between late February 2013 and 9 August 2013, the respondent misappropriated funds totally $12,672.50 from a deceased estate.
The parties have filed a statement of agreed facts and the underlying factual matrix is not in issue.
Background
Mr Peter Powell was a client of the respondent from 2005 until Mr Powell’s death, in 2012. The respondent and Mr Powell developed a close relationship throughout the time the respondent acted for him. Their relationship was so close, indeed, that Mr Powell asked the respondent if he could bequeath his estate to the respondent. The respondent declined this offer, but was named and subsequently acted as executor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] QCAT 173
Decision Date: 17 July 2018

CaseChat Overview and Summary

The case of Legal Services Commissioner v Amitesh Kumar involves the respondent, Amitesh Kumar, a former lawyer, and the applicant, the Legal Services Commissioner. The dispute centres on the respondent's professional misconduct involving the misappropriation of trust money from his client's estate, which he used to pay for renovations on his own home. The Queensland Civil and Administrative Tribunal was tasked with determining the appropriate disciplinary action against the respondent, weighing between a public reprimand, suspension, or striking off the roll. The tribunal had to decide whether the respondent's actions warranted a more severe penalty considering his otherwise unblemished record and his demonstrated regret and efforts to rectify his wrongdoing.

The primary legal issue before the tribunal was to determine the appropriate disciplinary action to impose on the respondent, considering the factors of his professional misconduct, his personal circumstances, and the mitigating factors presented. The tribunal had to balance the need to uphold the integrity of the legal profession against the respondent's personal circumstances and the steps he had taken to rectify his actions. Additionally, the tribunal needed to assess the respondent's fitness to continue practising law, considering his acceptance of wrongdoing and his efforts to make amends.

In reaching its decision, the tribunal considered the respondent's otherwise unblemished career, his immediate confession and repayment of the misappropriated funds, and the personal pressures he was under at the time of his misconduct. The tribunal noted that the respondent had shown evidence of being of good character and had taken steps to rectify his actions, including resigning from his firm and undertaking community service. The tribunal also considered the public interest in maintaining the integrity of the legal profession. Ultimately, the tribunal decided that a public reprimand and a temporary suspension from practising law were appropriate sanctions, reflecting the seriousness of the misconduct while also taking into account the respondent's efforts to make amends and his otherwise good character.

The tribunal ordered that the respondent be publicly reprimanded for his professional misconduct. It further ordered that a local practising certificate not be granted to the respondent until 26 January 2021. The tribunal also required the respondent to pay the applicant's costs, to be assessed on a standard basis on the Supreme Court scale under the Uniform Civil Procedure Rules, such costs to be assessed as if the matter were proceeding before the Supreme Court of Queensland. This outcome reflects the tribunal's view that the respondent's actions warranted a public reprimand and a period of suspension from practising law, while also considering the mitigating factors presented by the respondent.

Orders

Orders of the court

1. The respondent, Amitesh Kumar, is publicly reprimanded for professional misconduct.

2. A local practising certificate is not to be granted to the respondent until 26 January 2021.

3. The respondent shall pay the applicant’s costs, to be assessed on a standard basis on the Supreme Court scale under the Uniform Civil Procedure Rules, such costs to be assessed as if the matter were proceeding before the Supreme Court of Queensland.

Background

Background to the litigation

The parties have filed a statement of agreed facts and the underlying factual matrix is not in issue.Background Mr Peter Powell was a client of the respondent from 2005 until Mr Powell’s death, in 2012. The respondent and Mr Powell developed a close relationship throughout the time the respondent acted for him. Their relationship was so close, indeed, that Mr Powell asked the respondent if he could bequeath his estate to the respondent. The respondent declined this offer, but was named and subsequently acted as executor of Mr Powell’s estate. Following Mr Powell’s death, the respondent organised for renovations to be done to Mr Powell’s home in order to prepare the property for sale. During the time tradesman were working on Mr Powell’s home, the respondent had the tradesman directed to his own home, where they completed works to the value of $12,672.50. This occurred between February and early August 2013. The works done on the respondent’s own property were paid for out of the deceased estate. The respondent filed an affidavit in this proceeding in which he gave a comprehensive narrative and explanation for his actions. The contents of his affidavit were not challenged in any way by the applicant. The respondent said that at the time he rationalised his actions based on the offer Mr Powell had made to bequeath the whole of his estate to him. The respondent now accepts that his actions were inappropriate and that he has no excuse. At the time of the offending, the respondent was under considerable pressure in various aspects of his life, including financial pressure (some of which related to the interest he had been required to acquire in the law firm), cultural expectations, marital stress (which included the financial and emotional stress of the respondent and his wife participating in an IVF program), work pressures and family pressures, which included the need to renovate his own home. Shortly after the diversion of the funds, two of the respondent’s fellow directors asked to meet with the respondent regarding the deceased estate file. A query had been raised by another staff member. The respondent was not aware of the reason for this meeting, but when he attended the meeting he immediately admitted his misconduct. He saw the meeting as an opportunity to confess to his actions. Soon after, the respondent went on to confess his conduct to the other directors of the firm and professed his regret and apology. As a result of his confession, his employment with, and directorship of, the firm were terminated. The respondent repaid the amount misappropriated from the estate, and did so prior to a Queensland Law Society audit of the file later in August 2013. In January 2016, the respondent pleaded guilty in the Magistrates Court to a charge of stealing property exceeding $5,000 in value. At the time of his conviction, the respondent volunteered an undertaking not apply for a practicing certificate for five years, i.e. until 26 January 2021. He was sentenced to 100 hours of community service.Characterisation of the conduct

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Legal Services Commissioner v Amitesh Kumar [2018] QCAT 173
PARTIES:	LEGAL SERVICES COMMISSIONER (applicant)
v
AMITESH KUMAR (respondent)
APPLICATION NO/S:	OCR170-17
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	17 July 2018
HEARING DATE:	12 June 2018
HEARD AT:	Brisbane
DECISION OF:	Justice Daubney, President Assisted by: Ms Megan Mahon, Legal Panel member Dr Margaret Steinberg, Lay Panel Member
ORDERS:	1. The respondent, Amitesh Kumar, is publicly reprimanded for professional misconduct. 2. A local practising certificate is not to be granted to the respondent until 26 January 2021. 3. The respondent shall pay the applicant’s costs, to be assessed on a standard basis on the Supreme Court scale under the **Uniform Civil Procedure Rules, such costs to be assessed as if the matter were proceeding before the Supreme Court of Queensland.**
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT – TRUST MONEY – whether striking off roll or suspension is more appropriate – where respondent has shown evidence of being of fit and proper character – whether respondent can maintain exhibiting behaviour considered fit and proper Legal Profession Act 2007 (Qld) ss 419, 456, 465, 462 Attorney-General and Minister for Justice Qld v Priddle [2002] QCA 297 Attorney-General of the State of Queensland v Legal Services Commissioner & Anor; Legal Services Commissioner v Shand [2018] QCA 66 Attorney-General v Kehoe [2001] 2 Qd R 351 Jensen v Legal Services Commissioner [2017] QCA 189 Legal Services Commissioner v Fellows [2017] QCAT 337 Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320
APPEARANCES & REPRESENTATION:
Applicant:	M R Lester of the Legal Services Commission
First respondent:	G M Cranny of Gilshenan & Luton