Queensland Law Society

Council of the Law Society of New South Wales v ML Kinchington [2017] NSWCA 278

Council of the Law Society of New South Wales v ML Kinchington [2017] NSWCA 278

Catchwords

Application to remove Respondent from roll of Australian Legal Practitioners – solicitor forged client’s signature on costs agreement – convicted of publishing false statement to obtain financial advantage – professional misconduct – whether solicitor not a person of good fame and character

Executive Summary

The Council of the Law Society of New South Wales (‘the Applicant’) brought disciplinary proceedings against K (‘the Respondent’) in connection with five matters:

a)    the preparation of the false costs agreement dated 5 May 2011;

b)    the charging of professional fees referrable to the entire trial period, including days during which he was not in court or  undertaking preparatory work;

c)     making false and misleading statements to the Legal Services Commissioner and the Law Society of New South Wales (‘the Society’) asserting that the client had in fact signed the further amended costs agreement;

d)    the plea and conviction for the offence charged under s192G(b) of the Crimes Act; and

e)    the failure to disclose the original charge as required by sections 55 and 67 of the Legal Profession Act 2004 (NSW).

The Court found that the Respondent’s conduct warranted a finding that he was not a person of good fame and character. The Court made the following orders:

  1. the Respondent has been guilty of professional misconduct.
  2. the Respondent is not a person of good fame and character and is not a fit and proper person to remain on the roll of Australian lawyers maintained pursuant to section 22 of the Legal Profession Uniform Law.
  3. the name of the Respondent be removed from the roll.
  4. the Respondent pay the costs of the Applicant of these proceedings.
  5. the Applicant serve on the Respondent a copy of the judgement in accordance with the provisions for substituted service.[1]

Background

The Respondent was admitted as a legal practitioner in NSW in 1995. From October 2001, the Respondent carried on a law practice in New South Wales.

In August 2010, the Respondent was engaged to act on behalf of a client in criminal proceedings. The client signed a costs retainer agreement in September 2010. At that point in time, the client intended to plead not guilty and the criminal proceedings were set down to be heard in the District Court in Sydney in May 2011.[2]

In February 2011, the client signed an amended retainer agreement which included a costs estimate. The costs estimate stipulated the dates the hearing was to take place and the daily rates for those days that they would appear in court.[3] In April 2011, the client and his partner had deposited an amount of $86,919 into the Respondent’s trust account.

Following this, the Respondent prepared a further amended retainer agreement dated the 5 May 2011 replacing the previous agreement. The amended retainer agreement included a new provision stipulating that the firm would charge the daily rate for those ten days of 10 May to 27 May 2011 set down for trial “in any case.”[4] It was never ascertained whether the matter had been fixed for trial for the days specified in the amended retainer agreement. The updated fee estimate reflected a sum that was at least $15,232 more than the estimate contained in the previous agreement.

In May 2011, a guilty plea was negotiated and the trial was adjourned until later that month. The sentencing hearing was adjourned to July 2011. Following this, the Respondent withdrew $15,232 from the Trust Account for professional fees relating to the period specified in the amended retainer agreement.[5]

In November 2011, the client placed a complaint with the Legal Services Commissioner in relation to the Respondent’s conduct of the matter. The claimant’s allegations included:

a)    overcharging;

b)    the provision of inferior service;

c)     a refusal to refund moneys held in the trust account; and

d)    that the Respondent had been deliberately misleading.[6] 

Over the course of inquiries, it become evident that the Respondent had not obtained the client’s signature for the amended retainer agreement. The Respondent had merely copied and pasted the client’s signature from the earlier agreement.[7] In correspondence with the Society, the Respondent maintained that the client had signed the further amended retainer agreement in May 2011.

In March 2012, the client’s partner made a complaint of fraud against the Respondent. The Society and the New South Wales Police Forensic Services Group both concluded that the signatures on both agreements were identical[8] and as a result one was not genuine.

In August 2014, the Respondent was charged with the offence under the Crimes Act 1990 (NSW) of using a false document to obtain a financial advantage.[9] In October 2015, the Respondent entered a plea of guilty to a lesser charge and tendered a cheque to the court for the amount of $15,232. He was subsequently convicted and sentenced to 12 months imprisonment, which was wholly suspended on the basis that he enter into a good behaviour bond and the repayment of $15,232 to the client.[10]

Issues

The fitness to practise law carries with it as an essential characteristic that the person exhibits honesty and integrity.

The Respondent failed to engage either with or respond to the Society or the Court after proceedings had commenced. Therefore, the Respondent did not provide an explanation for his conduct and consequently, there was no evidence of reformation of character by the Respondent.[11]

Issues considered

The Court noted that:

  • financial dishonesty strikes at the heart of the professional requirements for the practice of law;
  • copying a signature is a flagrant and serious act of dishonesty and amounts to criminal conduct;
  • the seriousness of the conduct was exacerbated by continuing false statements in correspondence with the Society and the Legal Services Commissioner;
  • the falsity continued for more than two years;
  • the Respondent failed to voluntarily reveal the criminal charge to the Society as required by the statutory condition of his practising certificate.[12]

The Court concluded that the seriousness of this misconduct and the lengthy period of misconduct without any explanation on the part of the Respondent indicated that the Respondent was not a person of good fame and character. The Court was satisfied that the order sought by the Applicant should be made in the circumstances.[13]

 

Adriana Tate

Ethics Clerk

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



[1] Council of the Law Society of New South Wales v Kinchington [2017] NSWCA 278, [35].

[2] Ibid, [5].

[3] Ibid, [6].

[4] Ibid, [7].

[5] Ibid, [10].

[6] Ibid, [12].

[7] Ibid.

[8] Ibid, [15] and [18].

[9] Ibid, [19].

[10] Ibid, [22].

[11] Ibid, [34].

[12] Ibid [29]-[30].

[13] Ibid, [35].