Legal Services Commissioner v Boundy
[2018] QCAT 55
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- Unreported Judgment
- Legal Services Commissioner v Boundy[2018] QCAT 55
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Legal Services Commissioner v Boundy[2018] QCAT 55
Legal Services Commissioner v Boundy[2018] QCAT 55
CITATION: | Legal Services Commissioner v Boundy [2018] QCAT 55 |
PARTIES: | Legal Services Commissioner (Applicant) v Richard Alexander Boundy (Respondent) |
APPLICATION NUMBER: | OCR242-16 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 6 March 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Justice Daubney, President Assisted by: Ms Megan Mahon Dr Margaret Steinberg |
DELIVERED ON: | 6 March 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – NEGLECT AND DELAY – where the respondent failed to maintain reasonable standards of competence and diligence – where the respondent caused delay in administration of an estate – where the respondent caused delay in obtaining probate – where the respondent caused delay in executing a deed of settlement – where the respondent was asked to provide an itemised account – where the respondent failed to provide an itemised account within 28 days – where the respondent provides evidence of personal issues – whether the respondent should be publically reprimanded – whether a pecuniary sanction should be imposed Legal Profession Act 2007 (Qld) s 332(2) |
APPEARANCES AND REPRESENTATION: | |
APPLICANT: | Ms D A Holliday instructed by the Legal Services Commissioner |
RESPONDENT: | B T Cohen of Bartley Cohen |
REASONS FOR DECISION
- [1]The respondent, Richard Alexander Boundy, was admitted as a solicitor in 1992. He commenced sole practice at Anderson Solicitors on about 3 July 1995 and has been practicing as the sole principal of that firm ever since. As at late 2005 his predominant areas of practice were family law, succession law (including drafting wills and enduring powers of attorney) and conveyancing.
- [2]By the present proceeding brought by the Legal Services Commissioner the respondent faces two charges which have been filed under the Legal Profession Act 2007. The charges are that between 18 November 2005 and 31 March 2015 the respondent failed to maintain reasonable standards of competence and diligence whilst acting for his client, Sonya McLeod Patterson, and that on or about 19 August 2013 the respondent failed to provide an itemised bill to his client, Sonya McLeod Patterson, in contravention of section 332(2) of the Legal Profession Act 2007.
- [3]The parties have filed a statement of agreed facts. The underlying factual matrix in this matter is not in issue. The applicant and the respondent have also filed comprehensive written outlines of submissions. It is notable that the charges are, in effect, not contested by the respondent.
- [4]The respondent has put before the tribunal material which, whilst not exculpatory, nevertheless provides context and explanation for the circumstances which gave rise to the charges which are now before the tribunal, and we will refer to those matters shortly.
- [5]Turning to the underlying facts, it is sufficient to note that in September 2005 Ms Sonya McLeod Patterson retained the respondent to act on her behalf in her capacity as executor of the estate of her late brother. She signed a costs agreement that had been prepared by the respondent. The particular estate was concerned with a will of the deceased which was dated some six years before his death by which he left the bulk of his estate to his former de facto. Other beneficiaries under the will included the deceased’s mother, the respondent’s client and her two brothers. The deceased’s de facto was represented by another firm of solicitors.
- [6]The significant assets of the estate included a property in Acacia Ridge, a death benefit under a superannuation policy and shares in BP which were held in the United Kingdom. In November 2005, the interested parties under the will signed a handwritten version of a deed of settlement for the purposes of distributing the deceased’s estate in accordance with what were understood to be his later expressed wishes. The respondent then, on instructions, drafted a deed of settlement using the hand-written agreement and the will itself as the basis for the terms of the deed of settlement. Then, over the next 18 months there was extensive correspondence between the respondent and the solicitors for the de facto.
- [7]It is quite clear on the material that over that time the respondent was undertaking steps to try and have the deed finalised and signed by the parties. Ultimately, by 20 March 2007 all parties had signed the deed.
- [8]It is not in issue that whilst the respondent took some steps to progress the matter he nevertheless failed to meet reasonable standards of competence and diligence because there was, amongst other things, undue delay in the administration of the estate. Indeed, as at March 2015, some nine and a-half years after he was first retained by his client, the estate had still not been finalised.
- [9]There was, it must be said, some significant complication of the finalisation of the estate. For example, the BP shares held in the estate were traded in the United Kingdom and there were issues in terms of having those shares administered. After the deed of settlement had been signed the respondent took advice from counsel and was advised in September 2008 that probate should be obtained. Notwithstanding receiving that advice in September 2008, however, the respondent did not make application to the Supreme Court for probate until 19 February 2009, a delay of some five months. There was then, it would seem, some delay in having that grant of probate resealed in the United Kingdom for the purposes of dealing with the BP shares. That did not occur until the 9th of November 2010, and yet the estate was still not finalised by March 2015.
- [10]The agreed statement of facts also details delays that occurred in relation to the transfer of the Acacia Ridge property. Despite the deed of settlement being a relatively straightforward transaction, it seems that considerable periods of time were permitted to elapse. Some of that might be accounted for by the fact that one of the parties wished the property to remain in her name for accounting purposes, but nevertheless it’s quite clear that instructions were given to the respondent by August 2011 to transfer the Acacia Ridge property in accordance with the terms of settlement, but the transfer forms were not sent out for a further eight months, and then there was considerable delay of some 16 months before the transfer was actually registered.
- [11]All of these matters are evidence of the dilatoriness which underpins charge 1.
- [12]Turning to charge 2, the underlying facts are simply that in August 2011 the respondent sent a tax invoice for some $47,454.37 for unbilled work as at the 8th of June 2011. On the 21st of July 2013 the client asked the respondent to provide an itemised account for those fees. The respondent, however, did not provide such an itemised bill within 28 days of her request. Eventually, in October 2013, the respondent engaged a costs assessor to provide an itemised bill. That itemised bill was not provided until 30 July 2014.
- [13]There is no issue that there was a contravention of the relevant requirements for the provision by the respondent of an itemised account and there is no challenge to the facts underpinning charge 2.
- [14]The Legal Services Commissioner submitted that it is appropriate that the conduct contemplated by both of the charges should be characterised as unsatisfactory professional conduct. Indeed, the Legal Services Commissioner accepted that the conduct under the charges is not so egregious as to be characterised as professional misconduct. There was no challenge by the respondent that the characterisation of the conduct referred to under both of the charges should be taken as unsatisfactory professional conduct.
- [15]The tribunal, for its own part, considers that it is clear that, whilst the conduct referred to under both of the charges was less than that of a reasonable competent and diligent solicitor, in neither case was the conduct so egregious as to warrant characterisation as professional misconduct. It seems to the tribunal that the characterisation of unsatisfactory professional conduct in respect of each of the charges is appropriate in all of the circumstances.
- [16]As I have already noted, there was no real challenge for today’s purposes of the facts underpinning the charges, nor of the proper characterisation of the professional defalcations by the respondent.
- [17]The respondent has put on a statement which is admirable for its openness and frankness. It is quite clear that the respondent has cooperated with the authorities in respect of these charges. He has also provided information which, as I said before, was not exculpatory but nevertheless, provides an explanation, or some explanation at least, for the failures in this case to meet the requisite standard.
- [18]In particular, the tribunal is cognisant of the health issues properly described as chronic and serious health issues from which he has been suffering since about 2003. That includes having been diagnosed with type 2 diabetes in 2003. Between 2005 and the present day, he has been hospitalised on some 11 separate occasions for various symptoms, procedures and illnesses, including pneumonia and blood poisoning. He is currently receiving treatment for a range of illnesses.
- [19]It is also notable that the respondent was practicing as a sole practitioner. The tribunal would observe that this case is an exemplar of the pressures which are faced in contemporary practice by many sole practitioners. The simple fact of the matter is that the weight of work in his practice in a wide variety of matters, all of which are explained in his statement, was overbearing for the respondent and simply became too much for him. He has given particulars, for example, of a variety of difficult and complex family law matters with which he was dealing in a professional capacity at the time of the events which gave rise to the present charges.
- [20]He has frankly acknowledged that over the lengthy period of time during which his conduct in relation to this particular client’s matters were not to the requisite standard, he was in a position of not coping with the pressures of sole practice and also not adequately managing his workload and health problems. He has said that in hindsight it is clear to him that he should have sought assistance in 2009 or 2010 when things got on top of him, and he deeply regrets that he did not do so. He says that he struggled on, tried to juggle his workload and health problems, and properly concedes that, as his conduct in relation to these particular matters reveals, he was unable to do so to an acceptable standard. He says that he is very sorry for and embarrassed by his failures in that regard. And I note that his statement contains numerous express statements of apology and deep regret for the failings evidenced by the conduct which are the subject of the current charges.
- [21]In his statement he says that towards the end of 2012 he came to realise that he was not, and had not been, coping with his workload and health problems. The long delays in this administration of this particular estate were a significant factor in that. He says that he began to take on less new work with a view to transitioning to retirement from full-time practice over time. And in his statement he then sets out details of the steps that he has taken to transition away from practice into retirement.
- [22]As I have said, the tribunal is not unsympathetic to the position in which this particular sole practitioner found himself and accepts that he is remorseful and has extended sincere apologies to the client for the significant inconvenience occasioned by the failure in these particular respects to meet the requisite standard.
- [23]In terms of an appropriate sanction, it is not in issue before us, and the tribunal itself considers it appropriate, for there to be a public reprimand in respect of the conduct in question. In so doing, it should be noted that despite the explanations given by the respondent, which the tribunal accepts as honest and truthful, by any objective measure there was considerable and unacceptable delay in the disposition of the estate matter in which the respondent was engaged to act. There was also the matter of the simple failure to provide an itemised account when requested by the client. Those matters warrant the making of a public reprimand.
- [24]In terms of further penalty, the Tribunal has had regard to the submissions made in that regard both by the Legal Services Commissioner and the respondent. Having regard to the consideration that the fixing of an appropriate sanction is not merely a matter of punishment but is also reflective of the public interest to ensure confidence in the profession, the Tribunal has determined that the appropriate pecuniary sanction to be imposed is one of $1000.
- [25]There is no opposition to an order that the respondent pay the applicant’s costs of and incidental to the present proceeding.
- [26]Accordingly, there will be following orders: (1) the respondent is publicly reprimanded; (2) the respondent is to pay a fine in the sum of $1000; (3) the respondent shall pay the applicant’s costs, to be assessed on a standard basis on the Supreme Court scale under the Uniform Civil Procedure Rules, such costs to be assessed as if the matter were proceeding before the Supreme Court of Queensland.