Gents – time please … Barrister lightly spanked for sending disturbing fee threat to former clients … “See what happens if you don’t pay your bills” … File leverage … Agreement not to complain in exchange for the file … NCAT bares its gums … Janek Drevikovsky reports
It’s not the first time McDonald has been birched. In a previous life, he was a partner at accountancy firm Hall Chadwick, and was suspended for two years from the roll of liquidators by ASIC after an unfortunate conflict of interest came to light.
McDonald’s most recent strife goes back to 2014 when, by now a barrister, he was acting for a tyre franchise business. His clients were the Colevski brothers, Saso and Robert, who retained him on a direct access basis to sue AAMI. Later, solicitor Simon Beverly was brought in.
After an initial bout of litigation, the brothers dropped McDonald as their brief – whereupon he demanded fees of about $40,000.
Since the brothers Colevski failed to fork-up a new approach was required. It turned out McDonald had kept a file of documents and guessed they might be important to his former clients ongoing trial.
He held the file hostage until the brothers stumped-up, assuming he had a lien over the papers. Interestingly, McDonald later agreed with the bar council that we would not in future rely in his practice on possessory liens.
Saso Colevski was calling the shots on the brothers’ behalf and was anxious to retrieve the file.
In May, McDonald was told the Colevskis’ case had been listed in the Supreme Court. Four minutes later, he sent Saso an email with a link to the listing:
“Gents, you are going to have trouble dealing with this without the files.”
He knew the brothers at this point did not have legal representation. Later, after Holman Webb stepped-in the act for them, McDonald wrote to their new lawyer, Stephen Rogers:
“I am very concerned at his [Saso’s] mental state. I am aware that he has previously attempted suicide and I was warned that he can become very depressed and erratic. I do care about the man.
I have been told that he remains anxious to obtain the relevant files in my possession. I am interested in being paid for my hard work.”
However, McDonald was not always so empathetic. In June 2014, one John Gasovski was murdered in an execution-style killing, part of a bungled drug deal. Gasovski was an associate of the Colevskis.
Soon after the killing, McDonald sent Saso Colevski an email with the following subject line:
“See what happens if you don’t pay your bills.”
In the email, McDonald linked to an article about Gasovski’s murder.
McDonald knew Gasovski had close ties to the Colevskis. In fact, Saso had suggested the barrister act as Gasovski’s trustee in a bankruptcy case.
In July, Saso Colevski complained to the bar council about the threat and the detained file, but withdrew it the same day. McDonald caught wind of this, and soon drafted an agreement to get the whole thing to go away.
He offered to give back the file in exchange for his fees paid in instalments. He also included the following clause:
“Finally, the clients and their directors agree that … there is no reason for them to file any complaint regarding any conduct of Simon [Beverly, the solicitor] nor (sic) me and therefore they agree not to do so. Any previous concerns have arisen as a result of a misunderstanding.”
The agreement was struck in August 2014, and the file was handed back. By early October, the brothers had defaulted on their payments. And in late October, they made a new complaint to the bar council, which then took it to NCAT.
There were several grounds of complaint, three of which were pressed:
The tribunal found that all three grounds amounted to professional misconduct.
McDonald’s birching was duly delivered. He had to apologise for the implied “death threat” – an “unorthodox remedy”, according to NCAT.
Saying sorry was just a warm-up. There was also a “reprimand”, a verbal tut-tutting of small material consequence. The tribunal thought McDonald had to be reprimanded to “bring home” to other lawyers that death threats, implied or otherwise, weren’t the done thing.
“A reprimand is a serious matter. It marks the disgrace of a member of an honourable profession.”
McDonald’s final punishment was to pay the bar’s legal bill.
There were leaves of damp butter lettuce all over the floor.