Legal Services Commissioner v Slipper

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Legal Services Commissioner v Slipper [2019] QCAT 146

PARTIES:

LEGAL SERVICES COMMISSIONER
(applicant)
v

ROBIN JOHN SLIPPER

(respondent)

APPLICATION NO/S:

OCR 110-14

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

10 June 2019

HEARING DATE:

22-23 August 2018

HEARD AT:

Brisbane

DECISION OF:

Hon Peter Lyons QC, Judicial Member

Assisted by:
Ms Megan Mahon
Dr Margaret Steinberg AM

ORDERS:

1.   Within 7 days of the publication of these reasons to the parties, either party may give notice to the other party and the Tribunal of its intention to make further submissions about the orders to be made.

2.   If a party gives such notice, that party is to file and serve its submissions within 14 days of the publication of these reasons; and the other party may file and serve submissions in reply within 21 days of the publication of these reasons.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – where the respondent is charged with acting in 4 estate matters where there was a conflict between his personal interest and the interest of the estate and its sole or sole residual beneficiary – where the respondent is charged with acting in a matter where there was a conflict between his personal interest and the interest of his client – where the respondent is charged with charging excessive legal costs to 6 clients – where the respondent is charged with charging legal costs to which he was not entitled on 5 occasions – where the respondent is charged with purporting to increase the costs to which he claimed to be entitled following a request for an itemised bill – where the respondent is charged with appropriating funds to which he was not entitled – where the respondent is charged with conduct falling short of the standard of competence and diligence a member of the public is entitled to expect of a legal practitioner or which is a substantial failure to reach or keep a reasonable standard of competence and diligence – whether the above charges made out – whether the respondent’s conduct in respect of each charge is characterised as unsatisfactory professional conduct or professional misconduct

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750

Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673

Bray v Ford [1896] AC 44
Brookfield & Anor v Davey Products Pty Ltd [1997] FCA 1462
Brown v Talbot & Olivier (1993) 9 WAR 70
Chick & Anor v Grosfeld (no 3) [2012] NSWSC 1536
Clark Boyce v Mouat [1994] 1 AC 428
Council of the Queensland Law Society v Roche [2003] QCA 469; [2004] 2 Qd R 574
D’Alessandro & D’Angelo (A Firm) v Bouloudas (1994) WASC 227; (1994) 10 WAR 191
D’Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198
Dore (as executor of the will of W H B Chenhall dec’d) [2006] QCA 494
Equuscorp Pty Ltd v Wilmoth Field…

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Details
Case
[2019] QCAT 146
Decision Date

CaseChat Overview and Summary

The Legal Services Commissioner has brought a case against the respondent, a legal practitioner, in the Queensland Civil and Administrative Tribunal (QCAT) over allegations of professional misconduct and unsatisfactory professional conduct. The charges include acting in matters where there was a conflict between the respondent's personal interests and the interests of the estate and its beneficiaries, charging excessive legal costs, charging for costs to which he was not entitled, and appropriating funds to which he was not entitled. The court was required to determine whether the charges were proven and whether the respondent's conduct in each charge constituted unsatisfactory professional conduct or professional misconduct.

The court found that the charges were proven and that the respondent's conduct in each charge was characterised as professional misconduct. The court held that the respondent's conduct fell short of the standard of competence and diligence a member of the public is entitled to expect of a legal practitioner. The court found that the respondent had acted in matters where there was a conflict between his personal interest and the interest of the estate and its beneficiaries, and that he had charged excessive legal costs to his clients. The court also found that the respondent had charged legal costs to which he was not entitled on five occasions, and had purported to increase the costs to which he claimed to be entitled following a request for an itemised bill. Finally, the court found that the respondent had appropriated funds to which he was not entitled.

The Legal Services Commissioner applied for the respondent to be struck off the roll of legal practitioners, and for an order that the respondent pay the costs of the Commissioner. The court found that the charges were proven and that the respondent's conduct in each charge was characterised as professional misconduct. The court held that the respondent's conduct fell short of the standard of competence and diligence a member of the public is entitled to expect of a legal practitioner. The court found that the respondent's conduct was such that it was appropriate to strike him off the roll of legal practitioners. The court also ordered that the respondent pay the costs of the Commissioner.

Orders

Orders of the court

1. Within 7 days of the publication of these reasons to the parties, either party may give notice to the other party and the Tribunal of its intention to make further submissions about the orders to be made.

2. If a party gives such notice, that party is to file and serve its submissions within 14 days of the publication of these reasons; and the other party may file and serve submissions in reply within 21 days of the publication of these reasons.

Background

Background to the litigation

It is apparent from the overview of the provisions of the LP Act set out earlier, that the interposition of an ILP is not intended to affect the obligations relating to conflicts of interest and duties, and the other ethical obligations, to which a practitioner would otherwise be subject. The respondent remained subject to those duties, notwithstanding that the practice was conducted by an ILP. The case has been conducted on that basis.Jacobs – the background The following facts are established by the Statement of Agreed Facts (SOAF). Adrian Jacobs died on 26 February 2012, without a will. He was divorced from Marlene Evans. Their son, Je, was then under 18 years of age, and lived with Ms Evans, his legal guardian. Je was the only person entitled to the estate of Mr Jacobs. On about 3 March 2012, Ms Evans approached the respondent about the estate. On 5 March 2012, the respondent entered into a costs agreement with Slipper Lawyers. On 6 June 2012, the respondent applied for letters of administration for the estate. The estate was finalised by November 2012, save that funds had to be held for Je until his 18th birthday in 2014. On 30 November 2012, the respondent, on behalf of Slipper Lawyers, rendered a bill “to the estate” for $27,427.59, including GST and disbursements. On 21 December 2012, the respondent authorised payment of the bill from funds held in trust for the estate. There can be no doubt that the respondent (most likely as agent for Slipper Lawyers) was approached by Ms Evans, in his capacity as a lawyer, to act in the interests of Je in relation to the administration of the estate, and that he agreed to do so. All of his subsequent conduct in relation to the estate stems from this. There has been no suggestion that his conduct when representing the estate, or as its administrator, is not properly the subject of the discipline application. The respondent commenced to act with a view to being appointed the administrator of the estate by no later than 5 March 2012. There is no suggestion that anyone other than the respondent had any involvement in the conduct of the matter during the period of administration.[17] For a consideration of the charges there is no relevant distinction between the position of the respondent and the position of Slipper Lawyers.[18][17]The tax invoice reflects the involvement of a paralegal for work which might be performed by a secretary.[18]See also s 122 of the LP Act. A perusal of the costs agreement reveals the following:- (a)The work was described as, “Estate of the Late Adrian Jacobs”;(b)The practice would charge its time spent on the basis of six-minute units; with “each unit or part thereof” to be charged for at one-tenth of the applicable hourly rate;(c)The respondent’s hourly charge-out rate was $350 (plus sundries, outlays and GST);(d)The hourly charge-out rate for the paralegal was $160 (plus sundries, outlays and GST);(e)The practice reserved the right to charge an amount that it considered reasonable for the solicitor’s care and conduct, being 15% of professional fees; matters relevant to such a charge included the complexity of the matter; the difficulty and novelty of any question raised; the importance of the matter; the skill, labour, specialised knowledge and responsibility of the solicitor; the number and importance of documents prepared or perused; and research and consideration of questions of law and fact.(f)The agreement being a “proposed conditional costs agreement”, the practice would charge a conditional agreement uplift of 25% on professional fees (excluding professional fees paid during the course of the matter, one warrant for the uplift fee being the “non-payment of upfront fees”);(g)A further 15% of professional fees would be charged for photocopying, telephone, facsimile, postage and other sundry expenses; (h)Fees and costs referred to in the agreement were exclusive of GST;(i)Fees were estimated at between $7,500 and $12,500, plus sundries, outlays and GST;(j)The estimate did not include the conditional agreement uplift;[19](k)A number of specified factors might affect the accuracy of the fee estimate;[20](l)No fee was required in advance[21] (in a case where an advance was payable, the relevant clause stated that the conditional agreement uplift would be charged if the fees were not paid in advance);(m)Accounts were payable within 7 days of issue, and would thereafter accrue interest; (n)The client had been informed that he should seek independent advice in relation to the costs agreement; (o)Accounts were to be on an interim basis or on finalisation of the matter, at the discretion of the practice;(p)A Disclosure Notice pursuant to s 308 of the LP Act was attached to the costs agreement, receipt of which was acknowledged both by the respondent’s signature on the notice and in the costs agreement.[19]See cll 5.8 and 5.11 of the costs agreement.[20]See cl 7.[21]See cl 9.2 and Item 7 of the Schedule.Jacobs – Allegations and contentions

Evidence

Evidence Before The Court

In his oral reply, Mr Rice accepted that there was evidence of a referral of Mr Saunderson by the respondent to another solicitor in relation to the will, for the purposes of paragraph 10.2.2b. Objections to evidence: the Saunderson charges Mr Cohen objected to the admission of the report by Mr Edwards of his investigation, exhibited to his affidavit, as evidence of the truth of its contents. It was submitted that it contained Mr Edwards’ analysis and opinions in relation to the matters referred to in it. For reasons already stated, expressions by Mr Edwards of opinion which require expertise will be disregarded. Factual matters are, in many cases, likely to be hearsay, but will not be excluded from evidence on that basis. In some cases, the report includes secondary evidence of the contents of a document; but again this evidence will not be excluded. There is no reason to think that the evidence is (at least generally) unreliable; and there has been no suggestion of unfairness. Matters of law, or matters which are properly the subject of submission rather than evidence, will be treated in a similar fashion to such matters in Mr Reardon’s report and in other documents from Mr Edwards. They will not be regarded as evidence of the truth of any fact. Mr Cohen objected to the admission of the Queensland Law Society investigation report exhibited to the affidavit of Mr Edwards, as evidence of the truth of its contents, apparently referring to the analysis and opinion of its author. The report primarily records matters of fact, some at least of which were based on an examination of the file. There is no reason to exclude this evidence. The Tribunal intends to disregard the opinions of the author of the report, because his qualifications are not identified. In paragraph 91 of his outline of submissions, the applicant made reference to the fact that the respondent claimed, through his solicitor’s letter of 6 May 2015 to the applicant, to have fully transferred into trust the benefit he received under the will. This apparently is a reference to the sum of $1,040,000 which the respondent transferred to his personal account on 16 July 2014; and a payment made to the trust account of his practice on 27 July 2014. This appears to be the only matter from that letter relied upon by the applicant in paragraphs 91 and 92 of his outline. The respondent’s written submissions contended that this is irrelevant to any allegation in the discipline application, and that the letter of 6 May 2015, at least in relation to the assertion of repayment, was inadmissible. The submission is misconceived. In paragraph 1.8 of the Saunderson charges, it was alleged that on 16 July 2014 the respondent withdrew $1,040,000 from the estate bank account and paid it to his personal account; and in paragraph 1.10 it was alleged that on 27 July 2014, the respondent repaid that amount to the law practice’s trust account. In his written submissions, Mr Rice relied on the repayment as an admission by conduct that the applicant knew he had no entitlement to the money. Paragraph 3.2.6 of the Saunderson charges alleged that the respondent decided to benefit himself (by taking the money) when he knew or ought to have known that he could not do so (in the sense he was not entitled to do so). On that basis, the statement would be relevant. At the hearing, Mr Rice submitted that the evidence demonstrated that the money was not repaid. If that be correct, the statement in the letter could be a false claim of repayment of money alleged to be unlawfully appropriated by the respondent. The letter would remain relevant.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.