Legal Services Commissioner v Quinn [2015] QCAT 85

CITATION:
Legal Services Commissioner v Quinn [2015]
QCAT 85
PARTIES:
Legal Services Commissioner
(Applicant/Appellant)
v
Michael James Quinn
(Respondent)
APPLICATION NUMBER:
OCR182-13
MATTER TYPE:
Occupational regulation matters
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Justice Thomas, President
Assisted by:
Mr Scott Anderson
Practitioner Panel Member
Ms Julie Cork
Lay Panel Member
DELIVERED ON:
24 March 2015
DELIVERED AT:
Brisbane
ORDERS MADE:
1. That the name of the respondent be
removed from the local roll of
practitioners.
2. That the respondent pay the costs of the
applicant fixed at the sum of $2,500.00
within 30 days of the date of this order.
CATCHWORDS:
PROFESSIONS AND TRADES – LEGAL
PRACTITIONERS – COMPLAINTS AND
DISCIPLINE – DISCIPLINARY PROCEEDINGS
–
UNSATISFACTORY
PROFESSIONAL
CONDUCT
AND
PROFESSIONAL
MISCONDUCT – TRUST MONEY – where the
respondent is charged with 64 charges
regarding management of trust accounts –
where the respondent failed to properly
administer a trust account – where the
respondent kept improper trust records – where
2
the respondent produced numerous deficiencies
in trust ledgers – where the respondent illegally
transferred funds from trust – where the
respondent misappropriated trust funds – where
the respondent pertained trust money in the
general account – whether the respondent is a
fit and proper person – removal from the roll
Legal Profession Act 2007 (Qld) ss 6(1), 248,
249, 259(1), 261, 418, 419, 420(1)(a), 456
Queensland Civil and Administrative Tribunal
Act 2009 (Qld) s 32
Adamson
v
Queensland
Law
Society
Incorporated [1990] 1 Qd R 498
Attorney-General v Bax [1999] 2 QD R 9
Legal Services Commissioner v Michael Vincent
Twohill [2005] LPT 001
Queensland Law Society Incorporated v
Whitman (2003) QCA 438
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the
Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
[1]
The respondent was an Australian legal practitioner within the meaning of
s 6(1) of the Legal Profession Act 2007 (“the Act”).
[2]
In disciplinary proceedings dated 11 July 2013, the applicant has outlined
64 charges against the respondent which, in broad terms, assert that the
respondent:
[3]

Failed to properly administer a trust account.

Kept improper trust records

Produced numerous deficiencies in trust ledgers

Illegally transferred funds from trust

Misappropriated trust funds

Pertained trust money in the firm’s general account.
The conduct asserted against the respondent occurred between 24 April
2008 and 4 February 2010.
3
Legislation
[4]
Section 418 of the Act relevantly provides:
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.
[5]
Section 419 of the Act relevantly provides:
(1)
(2)
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… that would, if
established, justify a finding that the practitioner is not a fit and
proper person to engage in legal practice.
For finding that an Australian legal practitioner is not a fit and proper
person to engage in legal practice…, 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 the Act.
[6]
Conduct consisting of a contravention of a relevant law is conduct which is
capable of constituting unsatisfactory professional conduct or professional
misconduct.1
[7]
As to “professional misconduct”, Thomas J in Adamson v Queensland Law
Society Incorporated2 said:
The test to be applied is whether the conduct violates or falls short of, to a
substantial degree, the standard of professional conduct observed or
approved by members of the profession of good repute and competency.
Discussion
[8]
The respondent has informed the Tribunal that he does not propose to
respond to the application or make any submissions or representations to
the Tribunal in respect of the discipline application.3
[9]
The following is alleged in the discipline application.
Section 259
[10]
1
2
3
Section 259(1) of the Act provides that an Australian legal practitioner
must not, without reasonable excuse, cause a deficiency in any trust
account or trust ledger account or a failure to pay or deliver any trust
money.
Legal Profession Act 2007 (Qld) s 420(1)(a).
[1990] 1 Qd R 498 at 508.
Letter from Gilshenan & Luton Legal Practice to the Queensland Civil and
Administrative Tribunal dated 10 September 2013.
4
[11]
The discipline application sets out 32 occasions when there was a breach
of s 259(1) of the Act.
Section 249
[12]
Section 249 of the Act provides that a law practice must hold trust money
deposited in the general trust account of the practice exclusively for the
person on whose behalf it is received and disburse the trust money only
under a direction given by the person.
[13]
The discipline application sets out 22 occasions on which there was a
breach of s 249 of the Act.
Section 261
[14]
[15]
Section 261 of the Act provides:
(1)
A law practice must keep in permanent form trust records in relation to
trust money received by the practice.
(2)
The law practice must keep the trust records—
(a)
in the way prescribed under a regulation; and
(b)
in a way that at all times discloses the true position in relation to
trust money received for any person; and
(c)
in a way that enables the trust records to be conveniently and
properly investigated or externally examined; and
(d)
for the period prescribed under a regulation.
The disciplinary application sets out 9 occasions when there was a breach
of s 261 of the Act.
Section 248
[16]
Section 248 of the Act provides that as soon as is practicable after a
receiving trust money a law practice must deposit the money in a general
trust account of the practice.
[17]
The disciplinary application sets out one occasion when there was a
breach of s 248 of the Act.
[18]
The allegations made in the disciplinary application are not denied.
[19]
The Tribunal will proceed on the basis that the assertions made in the
disciplinary application are correct.
[20]
The disciplinary application demonstrates that the respondent’s
administration and management of his law practice trust account was in
breach of various sections of the Act and its regulations and that the
respondent failed to administer and manage the trust account in
accordance with the standards of competence and diligence expected of a
reasonable legal practitioner.
5
[21]
A practitioner is under a very serious duty to properly maintain trust
accounts.4 In the case of Twohill, it was found that six breaches of the
Trust Accounts Act 1973 (Qld) amounted to professional misconduct.
[22]
In this case, the conduct of the practitioner is extreme. The circumstances
demonstrate serious and persistent breaches over a prolonged period of
time.
[23]
In the circumstances, the conduct involved a substantial failure to reach a
reasonable standard of competence and diligence and falls short to a very
substantial degree, the standard of professional conduct which would be
expected of members of the profession of good repute and competency.
[24]
In those circumstances, the respondents conduct amounted
professional misconduct as is contemplated by s 419 of the Act.
to
Penalty
[25]
It is open to the Tribunal to make any order it thinks fit including one of the
orders which are set out in s 456 of the Act.
[26]
The respondent does not hold a current practising certificate, and has not
done so since 4 May 2012.
[27]
Because of the persistent breaches of the standard expected of a solicitor
over a prolonged period of time, the question arises whether the Tribunal
should make an order recommending that the name of the respondent be
removed from the local roll.
[28]
In this respect, the consideration is whether the respondent is a fit and
proper person to be entrusted with the important duties and grave
responsibilities of a solicitor.5
[29]
Legal practitioners must maintain high standards of integrity in the way in
which they conduct themselves in the profession and particularly in the
way in which they maintain monies held on trust for their clients.
[30]
In this case, the respondent’s conduct was repeated and involved
numerous failings including failing to properly administer a trust account,
failing to keep proper trust records, producing numerous deficiencies in
trust ledgers, transferring funds from trust contrary to legislative
requirements, misappropriating trust funds, and retaining trust money in
the firm’s general account.
[31]
The seriousness of the misconduct set out in the disciplinary application is
obvious and practitioners who are guilty of such misconduct are not fit to
practice.
4
5
Legal Services Commissioner v Michael Vincent Twohill [2005] LPT 001.
Attorney-General v Bax [1999] 2 QdR 9 at [12]; Queensland Law Society Inc. v
Whitman (2003) QCA 438 at [37].
6
[32]
It is ordered that the name of the respondent be removed from the local
roll of practitioners.
Costs
[33]
The applicant has sought an order for costs fixed in the amount of
$2,500.00.6
[34]
The Tribunal orders that the respondent pay the costs of the applicant
fixed at the sum of $2,500.00, and that this sum be paid within 30 days of
the date of this order.
6
Legal Profession Act 2007 (Qld) s 465(2).