Legal Services Commissioner v Jones - [2015] QCAT 84

CITATION:

Legal Services Commissioner v Jones [2015] QCAT 84

PARTIES:	Legal Services Commissioner (Applicant/Appellant)
v
Warwick Gerard Jones (Respondent)

APPLICATION NUMBER:

OCR027-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

29 October 2014

HEARD AT:

Brisbane

DECISION OF:

Justice Thomas, President

Assisted by:
Mrs Joanne Collins
Practitioner Panel Member

Dr Margaret Steinberg AM
Lay Panel Member

DELIVERED ON:

19 March 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondent be publicly reprimanded.

2. The respondent pay the applicant’s costs fixed in the sum of $1,500 within 30 days of these orders.

CATCHWORDS:

PROFESSIONS AND TRADES – LEGAL PRACTITIONERS – COMPLAINTS AND DISCIPLINE – DISCIPLINARY PROCEEDINGS – UNSATISFACTORY PROFESSIONAL CONDUCT AND PROFESSIONAL MISCONDUCT – where respondent charged with borrowing money from a client, failing to maintain reasonable standards of competence and diligence and failing to deposit trust money into general trust account – where the respondent acted for two clients in family court proceedings – where the respondent decided to financially carry one the client’s matters in circumstances where she was unable to continue the litigation – where respondent asked other client for a personal loan to fund the other’s matter – where the money was transferred to the respondent’s personal account, and paid back to the lending client when requested – whether the loaned money falls within the definition of “trust money” as defined by the Legal Profession Act 2007 – whether the conduct amounts to unsatisfactory professional conduct or professional misconduct – appropriate penalty

Legal Profession Act 2007 (Qld), s 237, s 248, s 418, s 419, s 456

Adamson v Queensland Law Society Incorporated [1991] Qd R 498
Attorney-General v Bax [1999] 2 Qd R 9
Legal Services Commissioner v Madden (No 2) 2008 QCA 301
Legal Services Commissioner v Podmore [2006] LPT 005

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr D Kent QC, instructed by the Legal Services Commissioner

RESPONDENT:

Mr J Bell QC, instructed by John Henderson Solicitors

REASONS FOR DECISION

The respondent is a solicitor who was admitted on 25 August 1981 and is the managing partner of Jones Mitchell Lawyers at Southport.
The Commissioner alleges that the following charges constitute professional misconduct and/or unsatisfactory professional conduct.
Charge 1 – borrowing money from a client
The respondent borrowed money from his client in breach of rule 11 of the Legal Profession (Solicitors) Rules 2007.
Charge 2 – failing to maintain the reasonable standards of competence and diligence
The respondent borrowed money from his client for his own benefit, was in independent fiduciary relationships with the clients Smith and Chiu and failed to refer either Smith or Chiu to independent legal advice concerning the making of the loan.
Charge 3 – failing to deposit trust money in the general trust account of the practice
On receipt of the loan money as particularised in charge 1, the respondent breached s 248 of the Legal Profession Act 2007 in that he deposited trust monies (as defined s 237 of the Act), to an account other than a general trust…

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.

Keep reading for free

Create a free CaseChat account to read Legal Services Commissioner v Jones and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] QCAT 84
Decision Date: 19 March 2015

CaseChat Overview and Summary

The Legal Services Commissioner brought proceedings against the respondent, a legal practitioner, in the Supreme Court of Queensland, alleging unsatisfactory professional conduct and professional misconduct. The Commissioner alleged that the respondent had borrowed money from a client, failed to maintain reasonable standards of competence and diligence, and failed to deposit trust money into a general trust account. The respondent had acted for two clients in family court proceedings and decided to financially carry one client’s matter when the client was unable to continue the litigation. The respondent asked the other client for a personal loan to fund the first client’s matter, and the money was transferred to the respondent’s personal account, with repayment to the lending client upon request.

The court was required to determine whether the loaned money fell within the definition of “trust money” as defined by the Legal Profession Act 2007, whether the conduct amounted to unsatisfactory professional conduct or professional misconduct, and what the appropriate penalty should be. The court found that the borrowed money constituted trust money as it was held by the respondent for the purpose of funding the client's litigation. The court also found that the respondent's conduct amounted to unsatisfactory professional conduct and professional misconduct. The court found the respondent's conduct to be a serious breach of professional obligations and a breach of trust, as the respondent had borrowed money from a client for a purpose unrelated to the client’s legal matter.

The court ordered that the respondent be publicly reprimanded and pay the applicant’s costs fixed in the sum of $1,500 within 30 days of the orders. The court found that a public reprimand was an appropriate penalty in the circumstances, given the seriousness of the respondent's conduct. The court also found that the respondent should bear the costs of the proceeding, as the Commissioner had been successful in establishing the allegations against the respondent. The court's decision highlights the importance of maintaining professional standards and ethical conduct in the legal profession, particularly in relation to the handling of trust money and the avoidance of conflicts of interest.

Orders

Orders of the court

1. The respondent be publicly reprimanded.

2. The respondent pay the applicant’s costs fixed in the sum of $1,500 within 30 days of these orders.

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.