Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: Legal Services Commissioner of New South Wales v Reymond [2014] NSWCATOD 14
• Hearing dates: 6 February 2014
• Decision date: 06 February 2014
• Jurisdiction: Occupational Division
• Before: Hon G Mullane - Senior Member; Ms M Riordan - Senior Member; Ms E Hayes - General Member

Decision

1 By consent the Respondent is guilty of professional misconduct in relation to Grounds 1 and 2 of the Application of 13 September 2013.

2 By consent the Respondent is publicly reprimanded.

3 For a period of 2 years commencing from today the Respondent's Practising Certificate is subject to a condition that he practise under the supervision of a practitioner who holds an unrestricted Practising Certificate.

4 By consent the Respondent must pay the costs of the Legal Services Commissioner of and incidental to the Application, as agreed or assessed.

5 The Tribunal notes that the Complainants and the Respondent have agreed that the Respondent will pay compensation of $5,000.00 to each of the Complainants.

6 The parties to the compensation claim must file Consent Orders with the Registry within seven (7) days.

• Catchwords: Solicitor - conflict of interest - solicitor prepares will for client which appoints solicitor as sole executor/trustee and sole beneficiary - professional misconduct. Solicitor makes false statement to son of Deceased that the deceased intended a bequest of $1,000.00 to each of the son's children.
• Legislation Cited: Legal Profession Act 2004; Revised Professional Conduct and Practice Rules 1995
• Cases Cited: Spector v Ageda [1973] Ch 30; Re: Australian Securities Commission v Trevor John Bell [1991] FCA565
• Texts Cited: Riley Solicitors Manual, College of Law, Law Society of NSW, published by Lexus Nexus/Butterworths
• Category: Principal judgment
• Parties: Legal Services Commissioner (Applicant); Michel Bernard Reymond (Respondent)
• Representation: Counsel; Mr J S Van Aalst (for the Respondent); Office of the Legal Services Commissioner (Applicant); Hardings Lawyers, (Respondent)
• File Number(s): 132017

reasons for decision

THE COMPLAINT

1 In its Application commencing the proceedings filed on 13 September 2013, the Legal Services Commissioner sought the following orders:

1. A finding that the Respondent is guilty of professional misconduct.

2. In the alternative, a finding that the Respondent is guilty of unsatisfactory professional conduct.

3. The Respondent's name is removed from the roll of practitioners.

4. In the alternative to 3, the Respondent is publicly reprimanded.

5. Further, and in the alternative, the Respondent is fined.

6. The Respondent is to pay the costs of and incidental to the filing and hearing of the Application.

7. Such orders as the Tribunal sees fit.

2 In that application it was noted that Christopher McCracken and Meredith McCracken, the Complainants, who are the children of the Deceased client, sought an order for compensation.

3 In that application the grounds for the application and particulars of those grounds were as follows:

Ground 1

Mr Reymond breached Rule 11 of the Solicitors Rules by preparing the will of June McCracken and/or advising Mrs McCracken in relation to her will, in circumstances where Mr Reymond was the designated sole beneficiary under the will.

Particular 1.1

Mr Reymond drafted June McCracken's will of 7 May 2008 in which Mr Reymond was appointed executor and trustee, and sole beneficiary. June McCracken was a client of Mr Reymond.

Particular 1.2

Mr Reymond failed to refer Mrs McCracken to another legal practitioner for advice about her will.

Ground 2

Mr Reymond made misleading statements to Christopher McCracken by informing Mr McCracken by email dated 4 March 2011 that his mother intended a bequest of $1,000 to each of Mr McCracken's children, $3,000 in total, when in fact there was no bequest to Mr McCracken's children in the will, and Mr Reymond knew this because Mr Reymond had drafted the will, was executor

and sole beneficiary under the will, and had been granted probate on 23 September 2008.

Particular 2.1

There was no bequest to Mrs McCracken's grandchildren, the children of her son Christopher McCracken, in her will dated 7 May 2008.

Particular 2.2

Mr Reymond was aware that there was no bequest in Mrs McCracken's will because he had drafted the will, was designated sole beneficiary under the will and had taken probate of the will on 23 September 2008.

Particular 2.3

On 3 March 2011 Christopher McCracken sent an email to Mr Reymond about, among other matters, any bequest by his mother to her grandchildren.

Particular 2.4

June McCracken had not mentioned any bequest to her grandchildren to Mr Reymond.

Particular 2.5

Mr Reymond sent an email to Christopher McCracken on or about 4 March 2011 in which he informed Mr McCracken that his mother had intended a bequest of $1,000 to each of Mr McCracken's children, $3,000 in total.

Particular 2.6

The email referred to in particular 2.5 was misleading because there was no bequest to Christopher McCracken's children in June McCracken's will, and Mr Reymond was aware of that fact.

THE INSTRUMENT OF CONSENT

4 At the hearing the parties relied upon an Instrument of Consent signed by the solicitors for both parties and by the Acting Legal Services Commissioner. In that document the parties sought the following orders by consent:

By consent, the Tribunal makes the following orders:

1. Respondent is guilty of professional misconduct in relation to Grounds 1 and 2

2. The Respondent is publicly reprimanded.

3. For a period of two years to commence from the date of these orders there by a condition imposed on the Respondent's practising certificate that he practise under the supervision of a practitioner who holds an unrestricted practising certificate.

4. The Respondent is to pay the costs of and incidental to the filing and hearing of the Application, as agreed or assessed.

5 That document also stated:

It is noted that Christopher McCracken and Meredith McCracken, the complainants in this matter, seek an order for compensation.

6 In the Instrument of Consent the agreed grounds are said to be as following:

Ground 1 - The Respondent breached Rule 11 of the Solicitor's Rules by preparing the will of June McCracken and/or advising Mrs McCracken in relation to her will, in circumstances where Mr Raymond was the designated sale beneficiary under the will.

1. The Respondent is presently aged 69 years.

2. In 1969 the Respondent was admitted to practise as a solicitor of the Supreme Court of New South Wales.

3. In April 2008 the Respondent was in practice as a sole practitioner and June Patricia McCracken ("the deceased") was and had been a client of his since about 1993.

4. The deceased sometime in or about mid-April 2008 informed the Respondent she was considering changing her will so as to leave her estate to him.

5. A short time later the deceased instructed the Respondent to prepare a new will for her in which she wanted to leave her estate to him provided he survived her and if he predeceased her she wanted her estate to be left to the Royal Flying Doctor Service of Australia (NSW Section).

6. In accordance with those instructions the Respondent prepared the will in which he was to receive a substantial benefit and on 7 May 2008 the Respondent attended at the deceased's apartment in a retirement facility known as Seabeach Apartments and provided to her a copy of the proposed will and then read it to her.

7. The Respondent failed to refer the deceased to another legal practitioner for advice about her will.

Ground 2: The Respondent made misleading statements to Christopher McCracken by informing Mr McCracken by email dated 4 March 2011 that his mother intended a bequest of $1,000 to each of Mr McCracken's children, $3,000 in total when in fact there was no bequest to Mr McCracken's children in the will, and Mr Reymond knew this because Mr Reymond had drafted the will, was executor and sole beneficiary under the will, and had been granted probate on 23 September 2008.

1. There was no bequest to the deceased's grandchildren, the children of her son Christopher McCracken, in her will dated 7 May 2008.

2. The Respondent was aware that there was no bequest in the deceased's will because he had drafted the will, was designated sole beneficiary under the will and had taken probate of the will on 23 September 2008.

3. On 3 March 2011 Christopher McCracken sent an email to the Respondent about, among other matters, any bequest by his mother to her grandchildren.

4. The deceased had not mentioned any bequest to her grandchildren to the Respondent.

5. The Respondent sent to Christopher McCracken an email on 4 March 2011 at 12.38 am in which he represented to Mr McCracken that the deceased intended a bequest of $A1,000 to each of his three children in total $3,000, knowing that representation was untrue.

6. The email referred to in paragraph 5 was misleading because there was no bequest to Christopher McCracken's children in the deceased's will, and the Respondent was aware of that fact.

THE EVIDENCE

7 The evidence in the proceedings comprised:

1. The Instrument of Consent

2. The Application for original decision

3. Reply of the Respondent, which admitted both the Grounds and the Particulars set out in the Application

4. Affidavit of 9 September 2013 by James Harold Milne, Acting Legal Services Commissioner

5. Affidavit of 29 October 2013 by James Harold Milne, Acting Legal Services Commissioner

6. Exhibit R1 - character reference by Margaret Hole of 18 December 2013

7. Exhibit R2 - character reference by Karyn Mealey of 12 January 2014

8. Exhibit R3 - Consent Orders made in the Supreme Court of NSW on 7 March 2013 in proceedings by Christopher Ian McCracken and Meredith Jean-Anne McCracken against the Respondent as First Defendant and the Royal Flying Doctor Service of Australia (NSW Section), as Second Defendant

9. Exhibit R4 - letter of 5 February 2014 from Turnbull Hill Lawyers (Solicitors for the Complainants) to Hardings Lawyers (Solicitors for the Respondent)

10. Exhibit R5 - letter of 4 February 2013 from Margaret Hole indicating her willingness to have the Respondent practice within her office for 2 years and provide the supervisions required by the proposed Consent Orders.

THE RELEVANT LAW

8 The Revised Professional Conduct and Practice Rules 1995 commenced on 11 December 1995 and applied at the time of the conduct the subject of the Grounds in the Application and in the Instrument of Consent.

9 Rule 11 of those Rules provides:

11. Receiving a benefit under a will or other instrument

11.1 A practitioner who receives instructions from a person to draw a will appointing the practitioner an Executor must inform that person in writing before the client signs the will -

11.1.1 of any entitlement of the practitioner or of a practitioner who is the attorney of the nominated executor to claim commission;

11.1.2 of the inclusion in the will of any provision entitling the practitioner or of a practitioner who is the attorney of the nominated executor, or the practitioner's firm, to charge professional fees in relation to the administration of the Estate, and;

11.1.3 if the practitioner has an entitlement to claim commission, that the person could appoint as Executor a person who might make no claim for commission.

11.2 A practitioner who receives instructions from a person to -

11.2.1 draw a will under which the practitioner or an associate will, or may, receive a substantial benefit other than any proper entitlement to commission (if the practitioner is also to be appointed executor) and the reasonable professional fees of the practitioner or the practitioner's firm: or

11.2.2 draws any other instrument under which the practitioner or an associate will, or may, receive a substantial benefit in addition to the practitioner's reasonable remuneration, including that payable under a conditional costs agreement, must decline to act on those instructions and offer to refer the person, for advice, to another practitioner who is not an associate of the practitioner, unless the person instructing the practitioner is either:

11.2.3 a member of the practitioner's immediate family; or

11.2.4 a practitioner, or a member of the immediate family of a practitioner, who is a partner, employer, or employee, of the practitioner.

11.3 For the benefit of this rule:

"substantial benefit" means a benefit which has a substantial value relative to the financial resources and assets of the person intending to bestow the benefit.

10 Sections 496, 497 and 498 of the Legal Profession Act 2004 provide:

496 Unsatisfactory professional conduct

For the purposes of this Act:

"unsatisfactory professional conduct" includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

497 Professional misconduct

(1) For the purposes of this Act:

"professional misconduct" includes:

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and

(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.

498 Conduct capable of being unsatisfactory professional conduct or professional misconduct

(1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct:

(a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules,

(b) charging of excessive legal costs in connection with the practice of law,

(c) conduct in respect of which there is a conviction for:

(i) a serious offence, or

(ii) a tax offence, or

(iii) an offence involving dishonesty,

(d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration,

(e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth,

(f) conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice),

(g) conduct of an Australian legal practitioner in failing to comply with an order of the Disciplinary Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law),

(h) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law.

(2) Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention.

11 Rule 11 of the Revised Professional Conduct and Practice Rules 1995 is derived from the law that a lawyer for a client is in a fiduciary relationship with the client and in order to promote undivided loyalty to the client's interests, must not without the client's fully informed consent engage in situations where his own interests do or may conflict with the client's interests or where he may profit from his position as the client's lawyer (see Riley Solicitors Manual, College of Law, Law Society of NSW, published by Lexus Nexus/Butterworths at para 6,000.5).

12 Apart from the fiduciary relationship, there is also the justification in terms of public perception/appearances (Riley at para 6,000.15).

13 In Re: Australian Securities Commission v Trevor John Bell [1991] FCA565, Lochardt J held at para 13:

".....it is in the best interests of the community, the legal profession and the attainment of justice that lawyers do not represent clients in administrative enquiries where there could be a reasonably held perception that they are compromising the integrity of their profession for the pursuit of personal advantage arising from their representation, whatever may be the ultimate truth of the facts which underlie that perception."

14 In Spector v Ageda [1973] Ch 30 at 47, Megarry J said of a solicitor who acts for a client where the solicitor's interests may or do conflict with those of the client:

"The solicitor must be remarkable indeed if he can feel assured of holding the scales evenly between himself and his client. Even if in fact he can and does, to demonstrate conviction that he has done so will usually be beyond possibility in a case where anything to the client's detriment has occurred. Not only must his duty be discharged, but it must manifestly and undoubtedly be seen to have been discharged."

15 In Riley Solicitors Manual, the particular problem about conflicts arising in will making by solicitors is discussed at para 7095.15, and is states that the most likely conflicts in will making are those involving conflicts between lawyers and client where, for instance, the lawyer becomes a beneficiary under the will or even more basic conflict in drafting a will under which the lawyer is entitled to charge as executor. It refers also to para 6035.

THE FACTS

16 The Respondent solicitor met June Patricia McCracken in 1993 when she engaged him to act for her on the purchase of a home unit. She introduced herself as "Lady McCracken". She had an English accent. He says that he assumed that she was entitled to use the title of "Lady". In his correspondence he described her accordingly.

17 The solicitor acted for the client on the purchase of the home unit and then in mid-1996 acted for her on the sale of the unit. He subsequently acted for her on the purchase of another home unit in 1998. In 1999 he acted for her on the acquisition of a lease for an apartment in a retirement facility.

18 The solicitor was aware that in 1999 she suffered a "mental breakdown" for which she spent time in Royal North Shore Hospital and subsequently in a hospital at Greenwich.

19 In about August 1999 she contacted the solicitor. She told him she had been discharged from the Greenwich hospital and that she was back at the retirement units. She said she wanted to make a will and he arranged for this to be done. In previous conversation the Deceased had told him that she was estranged from her children. His evidence is:

"She did not give me any details about the breakdown in her relationship with them, she never mentioned them by name nor was I ever told about her children's personal circumstances."

20 When he was taking instructions for the will, he asked what provisions she wanted to make for her children and she said:

"I'm going to leave my assets to the Royal Flying Doctor Service; I am not leaving anything to my children."

21 The Respondent prepared the will in accordance with her instructions. He took the will to her apartment on 3 September 1999 and had it executed by the client in the presence of 2 witnesses that she arranged.

22 The Respondent subsequently acted for the client when she sold her interest in the retirement unit and then when she purchased a unit in "Seabeach Gardens" in 2006.

23 The client was diagnosed in October 2007 suffering from stomach cancer. She underwent surgery in mid-December 2007 and at her request the Respondent took her to the hospital for the surgery. At the hospital, she made him a gift of her wedding ring, which he accepted. She was advised by the surgeon that without the surgery her life expectancy was approximately 6 weeks. After the surgery he told her that her life expectancy was extended and she could possibly live for up to 15 months and possibly longer with specialised treatment. He told her that she had liver cancer and it was terminal.

24 From January 2008 the Respondent visited the client about every 2 weeks. They had developed a social relationship.

25 On one occasion he assisted her when she was in serious pain in the night and he called an ambulance for her. In about mid to late April 2008 when he was visiting her, she told him that she was considering changing her will to leave her whole estate to him. He suggested: "You should think about that carefully." At that stage he considered she was:

"... frail and she suffered from intermittent pain. She told me she had medicated patches which she found helped her."

26 In subsequent conversations the client repeated her instructions that she wanted to go ahead and change the will, leaving the estate to the Respondent, but if he predeceased her it would go to the Royal Flying Doctor Service. He agreed to prepare a draft will. He prepared a draft will and provided it to her on 7 May 2008. She expressed a wish to sign the document there and then. He approached 2 staff members of Seabeach Gardens and they agreed to be witnesses to the will. The will was then executed and witnessed in the presence of the Respondent.

27 In April or May 2008 the client agreed to be transferred to a nursing home in order to receive a higher level of care. He had been looking for a suitable nursing home for her and took her to inspect one near Mona Vale and then another at Mossman. She was then admitted to the nursing home at Mossman. The Respondent visited her daily.

28 On 27 June 2008 the client was admitted to the palliative care section of Greenwich Hospital. At about the same time the Respondent took the client to visit a nursing home in Mossman. The client expressed a desire to relocate to the nursing home. There was a bed available immediately and she was then transferred. The Respondent visited her almost every day.

29 On 27 July 2008 the client died.

30 There is no evidence by the Respondent that he made any efforts to locate either of the children of the client before or after her death. He obtained a grant of Probate of the Will on 23 September 2008 and had completed the administration of the estate when Mr McCracken, the son of the client, located him and sent him an e-mail on 3 March 2011. The e-mail was in the following terms:

"I understand from Jan Hodge, a friend of my late mother, and from the staff at Minkara Retirement Village and Seabeach Retirement Village where she lived that you acted for my mother June McCracken, who I am informed passed away on 27 July 2008.

I further understand from Jan Hodge that my mother intended a bequest to one or more of my 3 children, Saskia, Tobias and Benjamin. I believe you may not have had my correct address details, which would account for you neither informing me of my mother's passing nor my children of her intended bequest.

I am pleased therefore to be able to tell you that my address, where my children may also be contacted, is [London address supplied].

I look forward to hearing from you at your earliest convenience.

Yours sincerely

Christopher McCracken [phone number supplied]"

31 The following day the Respondent sent an e-mail in response. He said:

"Thank you for your e-mail.

You are correct. I did not have your address. My sincere sympathy to you and your family on your mothers [sic] passing. She died of cancer. I looked after her during this time. She intended a bequest of A$1,000.00 to each child; A$3,000.00 in total. Should I send this to you or make it out to each child? I have a framed photo of your mother on her wedding day. I also have her silver wedding band which you would like them [sic]. Looking forward to hearing from you.

Sincerely,

Michel Reymond"

32 The Respondent did not disclose in that e-mail that he was the sole beneficiary under the will. He falsely alleged that the client had intended a bequest to each of the son's children when no such intention was ever expressed to him or to his knowledge.

THE SUPREME COURT ORDERS

33 The Supreme Court proceedings were settled by Consent Orders on 7 March 2013 by the following orders made by consent:

By consent and without admissions:

1. Order pursuant to 516 (3](a) 01 the Family Provision Act 1982 ("the Act") that leave is granted to the Plaintiffs, the only children of the late June Patricia McCracken, to apply for orders for provision out of the estate or notional estate of the deceased who died on 27 July 2008 and who made her last Will on 7 May 2008, probate having been granted to the First Defendant on 23 September 2008.

2. Order pursuant to s7 of the Act that provision is made out of the estate or notional estate of the late June Patricia McCracken in favour of the Plaintiffs for their maintenance and advancement in life, an entitlement to each Plaintiff of 50% of the residuary estate.

3. Order that interest is to run on any unpaid balance of the payment in Order 2 after fourteen (14) days of these orders being made, at the rate for unpaid legacies subject to section 84A of the Probate and Administration Act 1898.

4. Order that the proceedings otherwise be dismissed.

5. Order that the First Defendant's Cross Claim be dismissed.

6. Order that the Second Defendants Cross Claim be dismissed.

7. Order that the First Defendants' costs, agreed at $80,000, be paid out of the estate of the deceased.

8. Order that the Second Defendants costs, agreed at $50,000, be paid out of the estate of the deceased.

The Court notes:

(1) The parties agree the estate assets total $1,155,286.34:

(2) The Plaintiffs shall pay their own costs of and relating to these proceedings;

(3) The following agreement between the First and second Defendants:

(a) The First Defendant shall donate the sum of $201,000 to The Royal Flying Doctor Service (NSW Section) to be used by It to assist it to provide its services and health care as it sees fit;

(b) The said donation shall be paid by the First Defendant to The Royal Flying Doctor Service (NSW Section) within fourteen (14) days of orders being made.

(4) The parties agree that:

(a) The Plaintiffs are eligible persons;

(b) The Plaintiffs have served a notice identifying all other eligible persons on the administrator at the time of serving the Summons;

(c) The administrator has filed a copy of the Affidavit required by the Supreme Court Rules Schedule J;

(d) The administrator has served notices of the Plaintiff's claim on any person who, in the administrator's opinion, may be an eligible person;

(e) The administrator has filed a Notice of Appearance.

COMPENSATION IN THESE PROCEEDINGS

34 Counsel for the Respondent informed the Tribunal at the hearing that agreement has been reached between the Respondent and the Complainants for him to pay the Complainants compensation of $5,000.00 each. Exhibit R4 is a letter from the solicitor for the Complainants accepting the offer of $5,000.00 each and asking that a Consent Order be made to that effect. The Tribunal will note the agreement and order that the Consent Orders be filed within 7 days.

MOTIVATION OF THE RESPONDENT

35 The Respondent knew when he prepared the will nominating him as the sole executor and trustee and the sole beneficiary, that he should not have done so (because such conduct was prohibited) and that he should have referred the client to another solicitor for independent advice. He had been acting for the client for about 15 years, she had confided in him, they had become friends, and there was no likelihood that if she had obtained independent advice she might have instructed another solicitor to act for her in any other legal matters. The question arises as to why the Respondent did not refer the client to an independent solicitor as required by Rule 11.

36 The obvious answer is that he did not want to take the risk of the independent advice resulting in the client changing the will so that he did not receive the whole of her estate. Accordingly, his motivation was personal financial gain and the conduct fraudulent.

37 Similarly, by the time Mr McCracken sent his first e-mail to the Respondent on 3 March 2011, more than 2 years and 5 months had passed since the Respondent had obtained Probate of the will. There is no evidence that he made any attempt to locate or contact any member of the client's family. When he made the false statement in his responding e-mail of 4 March 2011, he did not disclose to Mr McCracken that he was the sole beneficiary under the Will.

38 It is clear the e-mail he sent on 4 March 2011 and the false statement he made about the bequests to the grandchildren were intended to protect his inheritance of the estate by avoiding exposure of the fact that he was the sole beneficiary and had also been the solicitor for the client who prepared the will and also pretending that the deceased had intended a legacy of $A1.000.00 for each grandchild. Again, his intention was to protect his own financial interests and other interests.

CONCLUSIONS

39 The conduct under each Ground was a substantial failure to maintain a reasonable standard of diligence. The failure to refer the client to an independent lawyer was in breach of the Legal Profession Rules.

40 The first ground involved conduct where he put his own interests before the interests of his client and her children. With the second ground he put his own interests before those of the children of the deceased client. In both matters there was deception. In the first ground he deceived the client by not informing her of the provisions of rule 11 and the reasons for them. In the second Ground he misled the son by failing to disclose that he was the sole beneficiary and in misrepresenting that the deceased had given instruction for a legacy to each of his children.

41 The Tribunal is comfortably satisfied that each of the Grounds constitutes professional misconduct, as the parties have agreed in the Instrument of Consent.

42 These 2 grounds without other evidence would establish that the Respondent is not a fit and proper person to practice as a solicitor and require that the Respondent's name be removed from the Role. But there is other evidence that justifies the result proposed by the parties.

THE RESPONDENT'S CASE

43 On the evidence the estate of the Deceased at the time of the Consent Orders in the Supreme Court was $1,155,286.34. The effect of the Consent Orders is that subject to payment of $50,000.00 to the Royal Flying Doctor Service for its costs and $80,000.00 to the Respondent for his costs, the whole of the estate passes to the children of the client.

44 In addition, the Respondent has donated $201,000.00 to the Royal Flying Doctor Service as agreed between him and the Service.

45 In addition the Respondent is to pay each of the children of the Deceased $5,000.00 compensation pursuant to these proceedings.

46 The Respondent has demonstrated true remorse in these proceedings and at least since the settlement of the Supreme Court proceedings in March 2013.

47 In addition, when the Respondent made the will in May 2008, he had been practising for about 39 years and he had not come under notice for any alleged unsatisfactory professional conduct or professional misconduct. This is his only blemish on his professional record.

48 Further, the character references relied upon by the Respondent are very impressive. One of the references is by Ms Margaret Hole, who has had considerable contact with the Respondent for about 39 years. She is a former President of the Law Society of NSW. Since 1992 Ms Hole's practice has shared office space with the Respondent's law practice and she has had ample opportunity, as a fellow practitioner and friend, to closely observe the conduct of the Respondent's practice.

49 She says the conduct the subject of these proceedings is:

"Completely alien to my observation of Michel's behaviour. Over the time I have known him and particularly the last 18 years his behaviour has been scrupulous at all times. In my consideration it would be severe punishment to remove Michel's name from the Role of Practitioners and a loss to those that he assists."

50 There is also a character reference from Karyn Mealey. She has been a practising solicitor with an unrestricted Practising Certificate for more than 37 years. She has known the Respondent professionally and personally since July 1976. He was her supervising solicitor in the same practice for about 2 years from 1976 to 1978. Ms Mealey says that in those 2 years:

"The firm and Michel himself had very high standards of practice and procedure".

51 Since those 2 years she has not worked professionally with the Respondent, but maintained a personal relationship. She says that on many occasions they have discussed matters of professional practice and interest. She says:

"My high opinion of Michel's integrity and professional capacity has continued over the years and from time to time I have referred clients to him for advice and assistance in areas in which he specialised, mainly property, property financing, business, local government and wills."

52 Both the character witnesses refer to the extensive public service that the Respondent has provided over the years through serving as a Councillor and Deputy Lord Mayor of North Sydney Council, through serving on the Council of the Australiana Fund for 10 years from 1994, continuing to serve as a member of the Fund's Acquisitions Committee since then, undertaking historical research for the National Trust from 1973 to 1983, and since then researching and writing up historic houses for various individuals. He is published regularly in the Australiana Society Journal.

53 Ms Mealey says that he also: "contributes significantly to the recorded knowledge of the decorative arts, including furniture, jewellery and artists."

54 He has served continuously as an elected Councillor of North Sydney Council for about 19 years and participated in Council business "on an almost daily basis". He also serves on the Board of a retirement trust and on the Board of the May Gibbs Nutcote Trust (since 1995).

55 He cared for both his aged parents at home from 1988 until their deaths in 1993 and 1995 and in the same period took responsibility for 2 aged aunts who lived in Forbes, which required him to travel to Forbes regularly and liaise constantly with local contact people until their deaths. At the same time he managed the family farm at Forbes on behalf of his aunts from 1988 to 1997.

56 Ms Mealey says that the Respondent:

"... has expressed to me how upset he is by the circumstances which now bring him before the Administrative Decisions Tribunal. He has admitted his responsibility for the Grounds set out in the Application, understands the seriousness and is in my opinion he humiliated. He expressed to me that he has a strong desire to continue to work as a legal practitioner and to undertake his community work. He is gravely concerned about the impact this matter will have on his ability to do so."

57 Ms Mealey is aware of the complaints against the Respondent and says that she knows him to be "a shy, modest but willingly helpful person who does not have an extravagant lifestyle". That appears to be consistent with other evidence in the matter. She also says:

"The events which have occurred are completely out of character for Michel. If Michel were to be removed from the Role of Practitioners, I would consider that to be harsh given his many years of unblemished practice and contribution."

58 The Tribunal accepts that the 2 grounds are out of character with what has otherwise been an unblemished professional character and reputation.

59 For all these reasons the Tribunal finds that this is not an appropriate situation for a striking off order and that the orders proposed by the parties in the context of the orders of the Supreme Court, the donation of $201,000.00 and the compensation orders agreed to, are sufficient for protection of the public and the reputation of the profession. The Tribunal also finds that such orders are in that context sufficient in terms of the need for deterrence of the Respondent and other solicitors who might be tempted to behave in such ways.

ORDERS

60 Accordingly, the orders of the Tribunal are:

1 By consent the Respondent is guilty of professional misconduct in relation to Grounds 1 and 2 of the Application of 13 September 2013.

2 By consent the Respondent is publicly reprimanded.

3 For a period of 2 years commencing from today the Respondent's Practising Certificate is subject to a condition that he practise under the supervision of a practitioner who holds an unrestricted Practising Certificate.

4 By consent the Respondent must pay the costs of the Legal Services Commissioner of and incidental to the Application, as agreed or assessed.

5 The Tribunal notes that the Complainants and the Respondent have agreed that the Respondent will pay compensation of $5,000.00 to each of the Complainants.

6 The parties to the compensation claim must file Consent Orders with the Registry within seven (7) days.

 

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar

Decision last updated: 17 March 2014