Legal Services Commissioner v Brown - [2018] QCAT 263

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Brown [2018] QCAT 263

PARTIES:

LEGAL SERVICES COMMISSIONER
(applicant)

v

PETER MITCHELL BROWN

(respondent)

APPLICATION NO/S:

OCR072-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

10 August 2018

HEARING DATE:

10 August 2018

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

Assisted by:
Dr Susan Dann
Dr John de Groot

ORDERS:

1.   The respondent is publicly reprimanded.

2.   The respondent shall pay a pecuniary penalty in the sum of $4000.

3.   The respondent is to undertake the ethics course facilitated by the Queensland Law Society within 12 months.

4.   Any practicing certificate granted to the respondent is to contain a condition that he not accept from 1 July 2018 appointment under a power of attorney and other conditions as remain necessary, to give effect to the conditions of the practicing certificate granted by the Queensland Law Society on 20 June 2018.

5. The respondent shall pay the applicant’s costs of and incidental to this proceeding, to be assessed on a standard basis, on the Supreme Court scale under the Uniform Civil Procedure Rules 1999, in the manner that costs would be assessed as if this were a matter of the Supreme Court of Queensland.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – where respondent failed to act in client’s best interests in not investing estate funds – where respondent failed to provide costs agreement to client who was also a friend – where respondent acted in conflict of interest situation by acting as both solicitor and enduring power of attorney – where respondent acted in conflict of interest situation by loaning funds from client – where client was elderly and considered vulnerable – whether respondent breached rule 12.3 of Australian Solicitors Conduct Rules – whether conduct amounts to professional misconduct or unsatisfactory professional conduct – whether the imposition of a sanction is appropriate

Attorney-General of the State of Queensland v Legal Services Commissioner & Anor; Legal Services Commissioner v Shand [2018] QCA 66
Legal Services Commissioner v Kumar [2018] QCAT 173

Australian Solicitors Conduct Rules, r 12.3
Legal Profession Act 2007, s 419, 456, 462

APPEARANCES & REPRESENTATION:

Applicant:

D A Holliday of counsel, instructed by Legal Services Commissioner

Respondent:

M Black of counsel, instructed by Gilshenan & Luton Legal Practice

REASONS FOR DECISION

The respondent, Peter Mitchell Brown, was admitted to practice as a solicitor on the 13th of December 1990. He has been in sole practice since 1 July 2003 in a firm named Browns Lawyers. Prior to today he had no history of disciplinary infractions. He appears before the tribunal today facing two charges preferred by the Legal Services Commissioner. Charge 1 is that between the 13th of January 2013 and 14 March 2015, he, in relation to matters involving Elaine Joy Smith, engaged in conduct which amounted to unsatisfactory professional conduct or professional misconduct pursuant to the Legal Profession Act 2007 (“the Act”). In relation to…

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 263
Decision Date: 10 August 2018

CaseChat Overview and Summary

The Legal Services Commissioner filed a complaint against the respondent, Brown, regarding his professional conduct. The dispute centred on allegations of professional misconduct and unsatisfactory professional conduct involving the respondent's handling of an elderly client's estate, who was also a friend. The respondent was accused of failing to act in the client's best interests by not investing estate funds, not providing a costs agreement, acting in a conflict of interest by serving as both the client's solicitor and enduring power of attorney, and loaning funds from the client. The Legal Services Commissioner sought to determine whether the respondent's actions breached rule 12.3 of the Australian Solicitors Conduct Rules and constituted professional misconduct or unsatisfactory professional conduct, as well as the appropriateness of imposing sanctions.

The court examined whether the respondent's actions warranted a finding of professional misconduct or unsatisfactory professional conduct. Key issues included whether the respondent's failure to act in the client's best interests and the conflict of interest amounted to misconduct. The court also considered the respondent's vulnerability and the nature of their relationship with the client, which may have influenced his decisions. The court evaluated the respondent's conduct against the standards set by the Australian Solicitors Conduct Rules, particularly rule 12.3, which addresses conflicts of interest.

In reaching its decision, the court found that the respondent's actions did constitute professional misconduct and unsatisfactory professional conduct. The court determined that the respondent's failure to act in the client's best interests, the conflict of interest, and the loan of funds from the client all contributed to this conclusion. The court acknowledged the respondent's remorse and his efforts to rectify the situation but emphasised the need for accountability and deterrence. The court ordered a public reprimand, a pecuniary penalty of $4000, mandatory ethics course completion, restrictions on the respondent's practicing certificate, and payment of costs. These orders aimed to uphold professional standards and protect the public.

Orders

Orders of the court

1. The respondent is publicly reprimanded.

2. The respondent shall pay a pecuniary penalty in the sum of $4000.

3. The respondent is to undertake the ethics course facilitated by the Queensland Law Society within 12 months.

4. Any practicing certificate granted to the respondent is to contain a condition that he not accept from 1 July 2018 appointment under a power of attorney and other conditions as remain necessary, to give effect to the conditions of the practicing certificate granted by the Queensland Law Society on 20 June 2018.

5. The respondent shall pay the applicant’s costs of and incidental to this proceeding, to be assessed on a standard basis, on the Supreme Court scale under the Uniform Civil Procedure Rules 1999, in the manner that costs would be assessed as if this were a matter of the Supreme Court of Queensland.

Background

Background to the litigation

Full text does not contain this section.

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 Brown [2018] QCAT 263
PARTIES:	LEGAL SERVICES COMMISSIONER (applicant)
v
PETER MITCHELL BROWN (respondent)
APPLICATION NO/S:	OCR072-18
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	10 August 2018
HEARING DATE:	10 August 2018
HEARD AT:	Brisbane
DECISION OF:	Justice Daubney, President Assisted by: Dr Susan Dann Dr John de Groot
ORDERS:	1. The respondent is publicly reprimanded. 2. The respondent shall pay a pecuniary penalty in the sum of $4000. 3. The respondent is to undertake the ethics course facilitated by the Queensland Law Society within 12 months. 4. Any practicing certificate granted to the respondent is to contain a condition that he not accept from 1 July 2018 appointment under a power of attorney and other conditions as remain necessary, to give effect to the conditions of the practicing certificate granted by the Queensland Law Society on 20 June 2018. 5. The respondent shall pay the applicant’s costs of and incidental to this proceeding, to be assessed on a standard basis, on the Supreme Court scale under the Uniform Civil Procedure Rules 1999, in the manner that costs would be assessed as if this were a matter of the Supreme Court of Queensland.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – where respondent failed to act in client’s best interests in not investing estate funds – where respondent failed to provide costs agreement to client who was also a friend – where respondent acted in conflict of interest situation by acting as both solicitor and enduring power of attorney – where respondent acted in conflict of interest situation by loaning funds from client – where client was elderly and considered vulnerable – whether respondent breached rule 12.3 of Australian Solicitors Conduct Rules – whether conduct amounts to professional misconduct or unsatisfactory professional conduct – whether the imposition of a sanction is appropriate Attorney-General of the State of Queensland v Legal Services Commissioner & Anor; Legal Services Commissioner v Shand [2018] QCA 66 Legal Services Commissioner v Kumar [2018] QCAT 173 Australian Solicitors Conduct Rules, r 12.3 Legal Profession Act 2007, s 419, 456, 462
APPEARANCES & REPRESENTATION:
Applicant:	D A Holliday of counsel, instructed by Legal Services Commissioner
Respondent:	M Black of counsel, instructed by Gilshenan & Luton Legal Practice