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 MemberORDERS:
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 320APPEARANCES & 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…
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- Case
- [2018] QCAT 173
- Decision Date
CaseChat Overview and Summary
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
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
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