Legal Services Commissioner v Clapin

CITATION: Legal Services Commissioner v Clapin [2011] QCAT 339

PARTIES:	Legal Services Commissioner (Applicant)
v
Peter Ross Clapin (Respondent)

APPLICATION NUMBER:   OCR256-10

MATTER TYPE: Occupational Regulation Matters

HEARING DATE: On the papers, 15 February 2011; further written submissions received from the applicant on 23 May 2011 and the respondent on 10 June 2011.

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President
Assisted by
Mr Geoffrey Sinclair
(Practitioner Member)
Dr Margaret Steinberg AM
(Lay Member)

DELIVERED ON:  21 July 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

1.    That the respondent be publicly reprimanded.

2.    That the respondent pay a pecuniary penalty of $7,500, within six months.

3.    That the respondent pay the Commissioner’s costs fixed in the amount of $2,500, also within 6 months.

4.    That Mr Stockdale and Ms Fuller’s application for compensation be determined on the papers; and that they deliver submissions in writing in support of their claims for compensation to the Tribunal, and to Mr Clapin, within 14 days; and that Mr Clapin deliver submissions in response within 14 days thereafter.

CATCHWORDS: 

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – COMPENSATION – where the respondent was charged with four charges of: acting for more than one party in connection with a loan, certifying that he had witnessed the signing of a mortgage document when that was not true, paying monies out of his Trust Account without authorisation, and certifying that he had witnessed the signing of a guarantee document when that was not true – where the respondent admits guilt in respect of all the charges – where the respondent admits that the first and third counts amount to unsatisfactory professional conduct, and the second and fourth amount to professional misconduct – appropriate penalty

Legal Profession Act 2007, pt 4.10, ss 456, 465, 466
Legal Profession (Solicitors) Rule 2007, r 8.5.4
Queensland Law Society Rules 1987, r 85
Trust Accounts Act 1973, s 8

Legal Services Commissioner v Cassidy [2009] VCAT 2141, cited
Legal Services Commission v Tung Nguyen [2005] LTP 007, cited

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Clapin is a solicitor, 56, who was admitted to practice in 1983.  He ceased practising law in mid 2009 and has not, since, sought to renew his practising certificate.

1. These disciplinary proceedings concern four charges brought under the Legal Profession Act 2007.  The first is that in the period late 2005/early 2006 Mr Clapin acted for more than one party (namely a financier, a borrower and a guarantor) in connection with a loan.  The second is that in December 2005 he signed a mortgage document certifying that the mortgagor had signed the document in his presence, when that was not true.

2. The third charge is that, in the same month, he paid monies out…