Legal delinquents across the land were denied hopes for Lenten salvation … Variously censured, stripped, smacked and suspended (not from a cross) … Max Shanahan with the latest professional lapses
Down south, the full court of the Tasmanian Supremes, hearing an appeal from the Legal Profession Board, saw fit to tar Burnie lawyer ‘W’ with a finding of professional misconduct, overturning an earlier ruling of mere unsatisfactory professional misconduct made by Justice Gregory Geason, who has himself graced these pages.
W landed himself in hot water over his conduct in the course of acting in a matrimonial property dispute. In February 2018, W’s client was charged with two counts of assault against his former wife, and had a family violence order taken out against him.
In March of that year, the client wrote to his ex-wife through W, offering to settle their property dispute so long as “all legal pursuits and accusations cease including Tas Police”.
The client’s unsubtle negotiation tactics landed him a charge of perverting justice, and W appeared on his behalf before a Burnie beak.
At this point, the discerning legal practitioner may have sensed a need to modify the negotiation tactics in the property case. Not so W, who himself sent two further letters to the ex-wife’s lawyer offering to settle the case in exchange for the withdrawal of the police complaints made against his client.
When chased down by the Legal Profession Board, W’s defence was that “he was bound by his client’s instructions and those instructions were that the accusations made by his former wife were false”.
Justice Stephen Estcourt and the others were not not inclined to agree:
“Whatever his client’s instructions were and no matter what his belief in those instructions was, the respondent’s conduct had a tendency to prevent or defeat the due course of justice or administration of the law.”
W also tried to argue that s.131 of the Evidence Act excluded evidence of settlement negotiations. Again, this did not wash with the bench:
“[it] is hardly to the point. It was the making of those offers, so conditioned, that had a tendency to prevent or defeat the course of justice …”
The Fulls overturned Geason’s decision on the grounds of a mistaken interpretation of s.421 of the Legal Profession Act.
Geason ruled that s. 421 ss. (a) and (b) were to be read conjunctively and that professional misconduct could only be found if the conduct justified a finding that “the practitioner is not a fit and proper person to engage in legal practice”.
Citing Parente, Estcourt disagreed:
“If the paragraphs must be read in conjunctively, then personal misconduct not occuring in connection with the practice of law could not be professional misconduct.”
Even so, said Estcourt, rubbing it in:
“I am of the view that [W’s] conduct was sufficiently serious as to in fact raise questions of his competence and diligence and in that respect his fitness to practice.”
As such, W was declared to be guilty of professional misconduct, with Tamara Jago J and Disco Dave Porter AJ agreeing.
Even so, W was protected from the worst slights by having his identity kindly kept under wraps.
Legal Profession Board of Tasmania v W
To Western Australia, where a different form of – to put it lightly – indelicate communication attracted a bevy of complaints.
John Abou Haider was admitted to practice in 2018 but has never held a practicing ticket
According to the State Administrative Tribunal he engaged in conduct that was “bizarre and disgusting … disgraceful and dishonourable.”
Haider did not contest the charge of professional misconduct.
Between September and October 2019, Haider sent sexually explicit emails to a group of lawyers. The first tranche were sent to email addresses of Ms C and Mr A, for who he had worked as a clerk – asking for help obtaining work with Ms B.
“I remember all the shoes I saw [Ms C] wear in my time at [firm]. Bit weird? I wank about [Ms C’s] feet way more than is healthy. The way you would dangle your heels, change your shoes, take your shoes of … Oh my days.”
Haider evinced an unexplained obsession with a client of Ms B’s grandmother, including sexually explicit messages about her in his communications with Ms C and Mr A.
In late September 2019, the Complaints Committee became aware of the original email and raised concerns with Haider. In response, his disturbed messages continued, before an apology of sorts:
“Firstly, I have a foot fetish and a very submissive sexual nature … I promise that I masturbate over other girls [sic] feet and shoes, not just [Ms C’s] … she is a very competent and articulate lawyer, who happens to have a pretty face and cute feet.
“I again unreservedly apologise … I hope to not hear back about my email and rather focus my energy on sending out my CV and covering letter to prospective employers.
“I have learnt the importance of keeping my inner monologue private, and not sharing my fantasies with other people.”
Undeterred, Haider sent a further email to Mr D, Ms E, Ms F and Dr G – all lawyers – making “full disclosure of all my wanking memories”.
After further concerns raised by the Committee, Haider apologised profusely, claiming that the emails were “the product of mental agitation” and that he was in a “close relationship” with Ms B and Ms C, who he believed would “understand the situation” and be “aware of my personal problems”.
B and C both denied having any material relationship with Haider, as did Ms E when Haider later claimed a similar understanding.
For the State Administrative Tribunal, the case was an open and shut instance of professional misconduct, exhibiting behaviour that was “disgraceful and dishonourable” and demonstrated that Haider was not “fit and proper”.
The tribunal accepted a psychiatrist’s assessment that Haider showed remorse, and that his judgment was affected by his depression, combined with cannabis use and excessive alcohol consumption.
He was said to be “actively compliant” with psychiatric treatment and “highly unlikely” to repeat his misconduct.
As such, the tribunal settled on a reprimand and withheld the grant of a practicing ticket for nine months.
Legal Services and Complaints Committee v Abou Haidar
Back in Sydney, in a comparatively high-brow affair, the incarcerated former “Pizza Man” of Sydney University took on the Law Society over a decision by the Fidelity Fund to deny his company compensation for loss arising from the suspension and default of his long-time lawyer, who has absconded across the Tasman Sea.
Brian Meknas, through his company Eco-Pat Pty Ltd, was the franchisee of Newtown’s Eagle Boys Pizza store. In 2013, the store was destroyed by a fire, described by police at the time as “suspicious”.
Eco-Pat subsequently made a claim on its insurance policy. The insurers, QBE, admitted liability, but a dispute began as to the amount payable.
Eco-Pat engaged solicitor Jacqueline Saldaneri, of North Parramatta’s Saldaneri & Associates, to act for it in the dispute. Saldaneri had previously acted for Meknas in an unrelated dispute.
Thus began a tempestuous relationship between client and solicitor. Meknas accused Saldaneri of, among other things, continually withholding information from him and failing to act on instructions, such that he was unable to accept settlement offers relating to a separate Eagle Boys dispute, causing his company to be wound-up and for himself to be declared bankrupt.
The matter which appeared before the NSW Supremes John Griffiths AJ in connection with $80,000 Meknas had transferred to Saldaneri under the description of “legal fee payments”.
Meknas, giving evidence from prison, told the court that Saldaneri advised him to transfer the money – which came from insurance payments disbursed to Meknas by Saldaneri – into her firm’s account, so that it would “be safe from any creditors who try to bankrupt you”.
Meknas believed that payments were destined for the firm’s trust account, but they were directed to Saldaneri’s office account. The money never arrived in the trust account.
In 2017, a report was made into Saldaneri’s questionable tax affairs, and her practising certificate was suspended. She duly absconded. Around the same time, Eco-Pat made a claim to the Fidelity Fund for the missing $80k.
In consideration of the claim, Griffiths AJ said that the Fidelity Fund scheme “is not so broad as to provide compensation to any person who entrusts money to a solicitor and it is misappropriated”.
Section 221(1) of the LPUL provides that a person is entitled to make a claim on the fund following a firm’s default “only to the extent that it occurs in connection with the provision of legal services by the law practice”.
The statutory definition of “trust money” holds a similar requirement.
Given the money claimed by Meknas was transferred for the purpose of hiding from creditors, rather than for any legitimate legal services, Griffiths held that the LPUL could not accommodate a claim based on “conduct of a legal practice which is illegal or improper”.
Ten years after the fire which destroyed his business, it was another loss for Meknas, victim of his absconding solicitor.
Eco-Pact Pty Ltd v Law Society of NSW
And so to the end of a bumper week for bad lawyers. On Monday, NCAT upheld a finding of unsatisfactory professional conduct against Sydney solicitor Joseline Quinones for failure to pay barrister’s fees.
Under the original ruling, Quinones had been ordered to undertake training and apologise to the wronged barrister. “In a somewhat inauspicious start”, said the tribunal, Quinones failed to do either.
Quinones disputed the original finding, but crumbled during cross-examination, admitting to unprofessional conduct.
She had originally briefed a local (unnamed) barrister on a criminal appeal matter. The barrister advised that he would charge $4,400 for a review of the materials, and asked for confirmation of the costs, to which the solicitor replied “Yes. please proceed …”
A further three similar exchanges occurred, with Quinones agreeing each time to the costs agreement sent by the barrister via email.
The brief ultimately invoiced the solicitor’s firm $17.6k, to which Quinones instantly replied that payment would be in small portions, due to the client’s own manner of payment.
Over the following weeks, the barrister followed up the invoice, eventually receiving a response from Quinones:
“I was going to contact you but due to my knee injury was unavailable.”
Rejecting a request for his fees to be halved to $8,000, our barrister hit back:
“In this matter I was very conscious of fees, and that is why I specifically sought your approval before every step I took in the matter … I have never done this before … And you did give me your approval at each step of the way.”
Ultimately, the barrister lodged a complaint but, before reaching NCAT, the parties settled as to costs, leaving the question, conceded by Quinones herself, as to whether she had engaged in unsatisfactory professional conduct.
NCAT found Quinones to be …
“unhelpful … despite her legal training and experience, [she was] seemingly unable to answer simple questions without moving to advocate for her position at every turn.”
Quinones reneged on her two previous affidavits to assert new claims, not endearing herself to the CAT.
In upholding the finding of unsatisfactory professional conduct, the tribunal found that the solicitor had “failed to remedy her personal obligation to pay the complainant’s fees for a period of over three years”.
Quinones was reprimanded and ordered to undergo an ethics course. However, it wasn’t all doom and gloom for the stingy solicitor. After settling costs with the barrister, she was no longer required to provide an apology.
Quinones v Council of the Law Society of NSW