Legal Services Commissioner v Lyne
[2015] QCAT 291
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- Unreported Judgment
- Legal Services Commissioner v Lyne[2015] QCAT 291
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Legal Services Commissioner v Lyne[2015] QCAT 291
Legal Services Commissioner v Lyne[2015] QCAT 291
CITATION: | Legal Services Commissioner v Lyne [2015] QCAT 291 |
PARTIES: | Legal Services Commissioner (Applicant) |
v | |
Richard Alexander Woodd Lyne (Respondent) |
APPLICATION NUMBER: | OCR044-14 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 2 July 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Justice Carmody Ms Megan Mahon, Legal Panel Member |
DELIVERED ON: | 30 July 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | THE TRIBUNAL ORDERS THAT:
| ||
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – PROFESSIONAL COMPETENCE AND DILIGENCE –– where the respondent was a solicitor practising in succession law – where the respondent was retained to administer a substantial estate – where the respondent took over five years to finalise the estate – where the respondent failed to maintain adequate records annotating the costs charged to the estate – whether the respondent has committed unsatisfactory professional conduct or professional misconduct. Legal Profession Act 2007 (Qld) ss 418, 419, 452, 456, 462 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32 Legal Services Commissioner v Jiear [2012] QCAT 221 Legal Services Commissioner v Smith [2011] QCAT 126 | ||
APPEARANCES and REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- [1]This is a discipline application by the Legal Services Commissioner under s 452 of the Legal Profession Act 2007 (Qld) in relation to the professional conduct of the respondent, Mr Richard Alexander Woodd Lyne. The respondent was an Australian legal practitioner at all material times.
- [2]The applicant has charged the respondent with two counts relating to a failure or substantial failure to reach or keep a reasonable standard of competence or diligence in administering the estate of Mr Robert Allison Scott between 6 April 2006 and 24 August 2011.
- [3]The first charge relates to a five year and four month delay in the administration of the estate of Mr Scott. The second charge relates to the respondent failing to properly record accounts relating to the administration of the estate of Mr Scott, insofar as the respondent failed to itemise and annotate the costs charged to the estate.
- [4]The respondent has admitted the conduct forming the basis of each of the charges, but asserts that they constitute unsatisfactory professional conduct as opposed to professional misconduct. The applicant concedes that the relevant conduct may constitute unsatisfactory professional conduct or professional misconduct.
Unsatisfactory Professional Conduct or Professional Misconduct
- [5]Section 418 of the Legal Profession Act 2007 (Qld) defines “unsatisfactory professional conduct” to mean:
Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening 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.
- [6]Section 419 of the Legal Profession Act 2007 (Qld) defines “professional misconduct” to mean:
- (1)Professional misconduct includes—
- (a)unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and
- (b)conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening 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 suitability matters that would be considered 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.
- [7]The respondent has attested that Ms Winsper and Ms Wallace had received their full entitlements under the estate by November 2007, with the exception of the taxation matters, which represented a comparatively minor proportion of the estate. The residue was not dispersed until August 2011.
- [8]The community is entitled to expect that a legal practitioner administering an estate, exercising reasonable competence and diligence, would discharge his or her functions within a reasonable time of assuming control of the estate. The factors relevant to determining the reasonableness of the time required to administer the estate include:
- The size and geographical spread of the estate;
- The nature of the properties and assets retained by the estate;
- The number and location of devisees of the estate;
- The quantity and complexity of the prescribed distribution of the assets of the estate;
- The quality of the relationship of any stakeholders in the distribution of the estate; and
- The quantity and complexity of any legal issues emerging in the administration of the estate.
- [9]The substantial estate of Mr Scott was valued at approximately $7,400,000. There is limited evidence regarding the nature of the properties and assets retained by the estate. The estate possessed only two beneficiaries, Ms Elizabeth Wallace and Ms Fiona Winsper, the daughters of the deceased testator. The distribution of the estate involved the allocation of $500,000.00 to Ms Wallace, with Ms Winsper to acquire the residue.
- [10]The gross imbalance of the distribution caused the respondent to anticipate an application for maintenance from Ms Wallace. The respondent had also been advised by the estate’s accountant that the estate may possess a significant unpaid tax liability. These factors increased the complexity of the administration of the estate, and justified a cautious distribution of assets.
- [11]Balancing the abovementioned factors, and giving full consideration to the relatively minor proportion of the estate affected by the majority of the delay, the effluxion of five years and four months to administer the estate represents a significant breach of the standard of care and diligence reasonably expected of an Australian legal practitioner. This breach is compounded by the failure of the respondent to maintain adequate records with appropriate annotations itemising the amounts charged to the estate.
- [12]The conduct of the respondent is not sufficient to justify a finding that the respondent is no longer a fit and proper person to engage in legal practice in Queensland. The Tribunal is not satisfied that the conduct of the respondent is a substantial or consistent failure to meet the standard of care and diligence expected of an Australian legal practitioner, having regard to the complexity of the estate and attendant legal concerns. However, the Tribunal is satisfied that the conduct of the respondent amounts to a failure to meet the standard of care and diligence that the public is entitled to expect of an Australian legal practitioner. The respondent has, therefore, committed unsatisfactory professional conduct.
Penalty
- [13]The applicant submits that an appropriate penalty for the unsatisfactory professional conduct of the respondent is a public reprimand and the imposition of a pecuniary penalty of between $2,000.00 and $2,500.00. The respondent submits that an appropriate penalty for his conduct is a public reprimand and the imposition of a pecuniary penalty of between $1,500.00 and $2,000.00.
- [14]The respondent has cooperated with the Tribunal at the earliest opportunity, and candidly disclosed a prior adverse disciplinary finding in respect of the management of a trust account which had not come to the attention of the Tribunal. The respondent has also admitted the facts forming the foundation of both charges, and conceded that they amount to unsatisfactory professional conduct. The respondent appears to be a legal practitioner of honourable standing and repute, with significant experience in legal practice. Aside from the delay, the beneficiaries of the estate do not appear to have suffered significant personal or economic harm resulting from the belated administration of the estate. In such circumstances, the need for personal deterrence and community protection is less salient.
- [15]General deterrence, however, remains an important factor. Professional standards of diligence and competence in legal practice must be maintained. Significant or gross delay in the carriage of legal disputes accrues unnecessary costs, imposes a time burden on the legal system, and disadvantages critical stakeholders. Accordingly, delay is likely to bring the legal profession into disrepute, which damages public confidence in the administration of justice.
- [16]
Application for Costs
- [17]The applicant seeks an order for costs relating to the disciplinary application. The applicant has been successful in prosecuting the respondent for unsatisfactory professional conduct in failing to competently and diligently administer the estate of Mr Scott.
- [18]
- [19]The Tribunal allows the application for a costs order in an amount to be agreed, or failing agreement to be assessed within 30 days of the date of the order.
Proposed Orders
- [20]The Tribunal orders that:
- The respondent be publicly reprimanded.
- The respondent pay a penalty of $2,000.00 within 60 days.
- The respondent pay the applicant’s costs of and incidental to the disciplinary proceedings within 30 days, to be agreed, or failing agreement to be assessed on the standard basis.