Timbo Carmody rejects application to strike-off solicitor who fraudulently inflated timesheets … Still “an ethical member” of the profession … “Status seeking” solicitor’s “safety switch” is back-on … Plus, Melbourne solicitor off the jam roll … No prospect of rehabilitation … Nick Bonyhady courtside
Justice Tim Carmody has declined to strike from the roll Luke James McDonald, a former partner at Corrs who overcharged clients more than $515,000.
In his QCAT decision, Carmody described how McDonald had become “obsessed with overcharging”.
“He systematically forged (by adding false hours) 914 electronic timesheet entries submitted by legal staff under his supervision … over an 18 month period in the 2012-13 financial years.”
The tribunal did not find a clear explanation for McDonald’s conduct, but it did mention that he had abruptly separated from his wife in 2012, was stressed at work and may have been “status seeking”.
In his summary of counsel’s submissions, Carmody also noted some odd mitigating factors, including McDonald’s “success and significant achievement as a partner in a major firm on a stellar career path” and the “the mutual advantage of permitting a … ethical member to re-join the profession”.
Ultimately the tribunal held that while McDonald’s past conduct was a “serious breach of the solicitor’s ethical duty”, he was not likely to reoffend.
“It is accepted (but not without some hesitation) that the practitioner’s safety switch is back on and he now has the strength of mind and character needed to safely resume restricted and conditional practice unhindered by the cumulative incapacities and deficiencies responsible for the past misconduct.”
The tribunal made a finding of professional misconduct and fined McDonald $20,000. He is not to apply for a principle’s practicing certificate for five years after obtaining an employee practicing certificate. McDonald’s clients have been refunded by the firm, with interest.
Legal Services Commissioner v McDonald
John Kotsifas, a suburban Melbourne solicitor, has been struck off the jam roll by Victorian Supreme Court Justice Jack Forrest.
He had previously been found guilty of 39 charges of professional misconduct by VCAT largely relating to his practice’s trust account. To date, the Fidelity Fund has paid out some $1.3 million to Kotsifas’ former clients, including interest and legal costs.
Kotsifas first ran into trouble in 2006, when he was reprimanded for keeping improper records of his trust account. Things spiralled from there. After a number of complaints in the intervening years, the Victorian Legal Services Commission started investigating Kotsifas’ record keeping.
In 2014 and 2015, Kotsifas pleaded guilty to eight charges of professional misconduct, which led to the appointment of an external manager to his practice. The manager subsequently found a deficiency of $537,396.04 in the practice trust account.
Even after his numerous encounters with the VLSC, Kotsifas continued in his deception. VCAT found that he had:
He had also obstructed the practice manager and lied repeatedly to his clients.
In its judgment, VCAT found that “Kotsifas showed an egregious disregard for his trust account responsibilities and for his clients’ funds”. It said that Kotsifas had “effectively had 10 years to reflect on his conduct but has given no substantive indication that any steps have been taken towards rehabilitation”.
HH agreed.
“There is no prospect of him mending his ways in the future. I confidently reach the conclusion that Mr Kotsifas will not be a fit or proper person to practice as a lawyer in the foreseeable future.”