Queensland Law Society

Legal Services Commissioner v RWT Biddle [2017] QCAT 119

Legal Services Commissioner v RWT Biddle [2017] QCAT 119

PROFESSIONAL MISCONDUCT OR UNSATISFACTORY PROFESSIONAL CONDUCT – DISHONEST APPLICATION OF TRUST FUNDS ON TEN OCCASIONS

Executive Summary

The Legal Services Commissioner (‘the Applicant’) brought disciplinary proceedings against B (‘the Respondent’) in connection with his conviction of ten serious offences in the District Court at Brisbane in December 2016.

The Applicant alleged that the Respondent was guilty of professional misconduct and/or unsatisfactory professional conduct between November 2012 and June 2014 when he engaged in conduct for which he was convicted of a serious offence.

The Tribunal held that the Respondent’s conduct amounted to professional misconduct in accordance with section 419 of the Legal Profession Act 2007 (Qld) (‘the Act’). The Tribunal recommended that the Respondent’s name be removed from the local Roll of Legal Practitioners.

The Tribunal ordered that the Respondent pay the costs of the Applicant.

Background

In the initial disciplinary proceedings, the Applicant alleged that the Respondent was guilty of professional misconduct and/or unsatisfactory professional conduct in relation to six charges of improper dealing with client’s trust money for his own benefit.

The disciplinary proceedings were put into abeyance pending the conclusion of criminal proceedings against the Respondent.[1]

In the period between November 2012 and June 2014, the Respondent was found guilty of ten occasions of committing a serious offence in connection with the improper dealing of client’s trust money for his own benefit. The total amount involved was $1,821,230.59.

This money was taken from two estates, namely the Estate of D and the Estate of G. In relation to the Estate of D, the Respondent stole a total of $1,145,000 in his capacity as Executor of the Will. In October 2013, the Respondent returned the sum of $172,114.73 and the complainants received a sum of $451,456.42 from the Fidelity Fund (administered by the Queensland Law Society).

In connection with the Estate of G, the Respondent stole a total of $676,230.59 in his capacity as the holder of an Enduring Power of Attorney and as the Executor of the Will. The Respondent did not repay any portion of the money and a payment was made in the sum of $506,792.20 from the Fidelity Fund. As it stood, the Estate of G was deficient by $169,438.39.

The amount owed to the Fidelity Fund was a total of $958,248.62.  

In the criminal proceedings, the District Court Judge considered the following when determining the appropriate sentence for the Respondent:

(a)   the Respondent was in a significant position of trust and responsibility when the serious offences were committed and this trust was grossly abused;

(b)   the significant losses both to the Fidelity Fund and to the two estates;

(c)   the relatively small repayment made by the Respondent;

(d)   the fact that as an officer of the Court, it is vitally important that the community understands that such offences are taken fully into account; and

(e)   the use of the funds for the payment of an ATO Debt and for personal and business expenses.[2]

The Judge concluded that due to these aggravating features a head sentence of seven and half years imprisonment should be imposed.[3]

Issue

In these proceedings, the Applicant submitted that in accordance with section 419(1)(a) of the Act professional misconduct includes unsatisfactory professional conduct if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence.

The Applicant made further mention of section 420 of the Act which provides that conduct which is capable of constituting unsatisfactory professional conduct or professional misconduct includes conduct for which there is a conviction for a serious offence or an offence involving dishonesty.[4]

In relation to professional misconduct, “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.”[5]

In February 2017, the Respondent sent a letter to the Applicant stating that he wishes to confirm that he did not oppose any order that the charges constituted professional misconduct and/or unsatisfactory professional conduct. The Respondent asserted that he would not oppose an order removing his name from the Local Roll of Solicitors.[6]

Issue Considered

The Tribunal agreed with the observations of the District Court Judge that the conduct of the Respondent amounted to very significant crimes, particularly when committed by a person in the position of trust and responsibility.[7]

Further, His Honour considered the significant loss suffered by both estates and the Fidelity Fund, and concluded that the Respondent’s conduct fell short, to a substantial degree, of the standard of professional conduct reasonably expected of a legal practitioner and amounted to professional misconduct in accordance with section 419 of the Act.

 

Adriana Tate

Ethics Clerk

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



[1] Legal Services Commissioner v RWT Biddle [2017] QCAT 119, [2].

[2] Ibid [19].

[3] Ibid [21].

[4] Ibid [24].

[5] Ibid [26].

[6] Ibid [30].

[7] Ibid [34].