Workcover case trust transfer costs solicitor $10,000

Law Institute v SA [2006] VCAT 442

On 21 March 2006, Mr Butcher found a solicitor guilty of three counts of unsatisfactory conduct (maximum fine of $1,000 and fine of $500 for taking fees out of workers’ compensation settlement, and $500 for admitted breach of the costs disclosure rules under s. 86 of the Legal Practice Act, 1996 respectively) and one of misconduct ($1,000). Costs of $6,740 were ordered in favour of the Law Institute. Accordingly, for failing to comply with costs disclosures, and then taking costs which he was apparently entitled to out of the settlement monies, the solicitor was ordered to pay a total of just less than $10,000. There was a stay of 6 months.The solicitor allegedly took his fees out of a Workcover settlement or judgment in contravention of s. 97(4) of the Accident Compensation Act, 1985 (Vic.). This was the subject of counts 3 and 4. Whereas other counts are recorded by Butcher as having been admitted, there is no such record in the reasons in relation these counts. Mr Butcher said:

“The difficulty which faces the Tribunal is that no evidence has been given by the legal practitioner or any other evidence given in relation to the circumstances surrounding the breach.”

Nevertheless, for reasons not apparent from the written reasons, he was able to reach this conclusion:

“I am not sufficiently satisfied that the facts as alleged constitute misconduct, however I am satisfied that the facts constitute unsatisfactory conduct on the part of the legal practitioner.”

Counts 3 and 4 were found not to be duplicative though the same omission or ongoing omission seems likely to have been said to breach both the Accident Compensation Act and the trust accounting rules, amounting, so it was alleged, to separate acts of unsatisfactory conduct, one of which was thought to be twice as serious as the other, the fines being $1,000 and $500 respectively.

The reasons are sparse in other respects. For example, in relation to count 6, they read:

“The facts having been admitted by the legal practitioner and no argument having been made in relation to whether the contravention constitutes misconduct or unsatisfactory conduct, I am satisfied that the conduct alleged in relation to Charge 6, being a breach of Rule 31 of the Trust Account Practice Rules, constitutes misconduct and I find the legal practitioner guilty as charged.”

Presumably one of the admitted facts was a reckless disregard for whatever it was that was breached, or an intention to breach it, otherwise a finding of misconduct could not have been made without a finding in the reasons to that effect.

The nature of the allegations is inadequately stated in the reasons, particularly given that general deterrence is a key function of disciplinary decision making.

Martin Randall was for the Law Institute and Sam Tatarka for the solicitor.

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