Queensland Law Society

Legal Profession Conduct Commissioner v SJG Thomas [2017] SASCFC 159

Legal Profession Conduct Commissioner v SJG Thomas [2017] SASCFC 159

Catchwords

Lawyers – misconduct; unfitness and discipline – disciplinary orders – striking off and ancillary orders

Executive Summary

The Legal Profession Conduct Commissioner (‘the applicant’) commenced disciplinary proceedings against T (‘the respondent’) seeking orders that the respondent be struck off the Roll of Legal Practitioners.[1]

The Court ordered that the Respondent’s name be struck off the Roll of Legal Practitioners. [2]

Background

The respondent was admitted to practice in December 1991.

In 2006, the respondent met Ms H through his church. In 2013, the respondent agreed to be appointed as Ms H’s attorney and executor. Ms H granted an enduring power of attorney to the respondent in May 2013, and appointed the respondent as executor in June 2013.[3]

In January 2016, as Ms H’s attorney, the respondent gained online access to Ms H’s bank accounts.[4]

After Ms H’s death in February 2016, the respondent instructed another practitioner, M, to act on his behalf in the administration of Ms H’s estate. M was responsible for preparing the will and the enduring power of attorney granted to the respondent.[5]

Throughout 2016, the respondent engaged in fraudulent misappropriation both in his capacity as attorney for Ms H and her executor by making a number of unauthorised payments, transfers or withdrawals from her CBA accounts. The net of the fraudulent or unauthorised transfers and withdrawals by the respondent from Ms H’s estate totalled $176,729.66. The respondent repaid this amount to the estate of Ms H after action was instituted by the applicant.[6]

In March 2017, M issued a summons in the Supreme Court of South Australia (Full Court) seeking directions in relation to the administration of Ms H’s estate. M made the application in his capacity as trustee of estate monies held in his firm’s trust account on behalf of the respondent as executor of the estate of Ms H.[7]

The Court made orders restraining the respondent from:

(a)   disposing of or dealing with any assets of Ms H’s estate; and

(b)   from taking any step or exercising any further power as executor in relation to the estate until further order.[8]

In April 2017, the Court made further orders revoking the grant of probate issued to the respondent in relation to Ms H’s estate.[9] In May 2017, the Court made orders which enabled the administration of Ms H’s estate to proceed with another beneficiary as administrator. The respondent agreed to indemnify Ms H’s estate in relation to costs.[10].

Issues

False affidavit

In May 2016, the respondent’s solicitor emailed the respondent a draft Statement of Assets and Liabilities of Ms H’s estate (‘the Statement’). The respondent deliberately delayed in approving the Statement containing references to the balances of Ms H’s accounts at the time of her death.[11]

In October 2016, the respondent altered the Statement that M had previously provided to him. This was done in an attempt to conceal the discrepancies between the accounts of the deceased.

The respondent then swore an Affidavit of Assets and Liabilities in relation to the estate of Ms H exhibiting the Statement of Assets and Liabilities that he had amended and M administered the oath. The respondent did not advise M that he had altered the Statement, and the Affidavit was filed in court. A grant of probate was issued to the practitioner on the basis of the Affidavit in November 2016.[12]

The criminal proceedings

The respondent retained a solicitor in relation to the disciplinary matter and to criminal charges laid against him. The respondent pleaded guilty to 25 counts of aggravated theft, one count of perjury[13] but attempted to mitigate the offences by assisting the Computer and Electronic Crimes Department of South Australia.[14]

Issues considered

The Court found that the restitution made by the respondent did not mitigate the need to protect the public and the gross breach of trust and dishonesty required an order striking the respondent’s name from the Roll of Legal Practitioners.[15]

 

Adriana Tate

Ethics Clerk

As approved by Grace van Baarle, Manager, Ethics Solicitor, QLS Ethics Centre



[1] Legal Profession Conduct Commissioner v Thomas [2017] SASCFC 159 at [1].

[2] Ibid [37].

[3] Ibid [7].

[4] Ibid [8].

[5] Ibid [10].

[6] Ibid [24].

[7] Ibid. [11].

[8] Ibid [12].

[9] Ibid.

[10] Ibid.

[11] Ibid [26].

[12] Ibid [28]-[29].

[13] Ibid [36].

[14] Ibid [33]-[35].

[15] Ibid [37].