$25,000 fine for cheques in the bottom drawer scheme

The latest decision from VCAT’s Legal Practice List is Legal Services Commissioner v JHMcC [2011] VCAT 231, a ‘guilty plea’ to six charges of professional misconduct. A lawyer purchased a franchise to operate under the name of one of Melbourne’s leading personal injury firms — I never knew such things existed — and was responsible for 1,000 files at a time down in Traralgon.  (Don’t try that at home, by the way, kids:  I well remember multiple retainers when I was solicitor for a gentleman formerly of the profession who from an office in the suburbs of an Australian capital (not the respondent in this case, obviously), and with the assistance of only non-legal staff, had 1,000 personal injury files open at a time.  He was a most vulgar man, insistent on telling me at every opportunity how much money he made, and of the details of his expenditure of it in pursuit of hackneyed hedonism.  And he was quite often negligent, apparently regarding the excess he had to pay his indemnity insurer as a cost of business.)

Anyway, our lawyer underpaid tax and suddenly had to pay $160,000 to the tax man, putting financial stress on his business.  So, when he received payment of bills from clients, he paid the whole lot into office, wrote cheques made out to barristers for their fees which had been billed to and received from clients as disbursements, and then put them into the bottom drawer to be retrieved and delivered only when convenient to the practice’s cash flow. The solicitor pleaded guilty to six charges of professional misconduct. Charge 6 was of breach of the following fiduciary duty, which I must confess is not one I had previously heard of:

‘to apply such moneys [amounts received for disbursements] in accordance with the purpose for which they were supplied by that client’.

Judge Pamela Jenkins, presently a Vice-President of VCAT and two other members were invited to impose a fine of at least $20,000 and plumped for $25,000.  In addition, costs payable by the solicitor were fixed at $6,715.

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2 Replies to “$25,000 fine for cheques in the bottom drawer scheme”

  1. Doesn't Charge 6 relate to a breach by the solicitor of a Quistclose or similar type of trust arrangement where the money is received for particular purposes and should be applied that way unless the client provides a written direction as to other applications of the fund?

    1. Interesting observation. Still, that doesn\’t turn it into a breach of fiduciary duty does it? Or would you say all breaches of trust are a breach of a fiduciary duty?

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