Busy time at the Bureau de Spank … Barrister’s breach of undertakings … Telling pork pies to the court … Solicitor lets non-lawyer husband have access to her firm’s trust account … Unauthorised withdrawals … Lack of professional candour … Stephen Murray reports from the Hellfire Club
Media reports at the time reported the judge characterising the handling of the case as “nothing short of deplorable”.
Barrister Patrick Lott was found by the Occupational Division of the NSW Civil and Administrative Tribunal to have failed to reach a standard of competence and diligence expected of a reasonably competent legal practitioner, and failing in his duties to the court and his client in the handling of the matter in 2014.
Lott met with the husband client on May 1, 2014. The client then terminated a retainer he had with other solicitors, but they withheld the file owing to non-payment of their fees. The fees were ultimately paid on May 22, a Thursday, and the file was released and delivered to Lott that evening.
When proceedings commenced on May 28, Lott did not have a case outline to present to the court but gave an undertaking to Judge Stephen Scarlett that he would have it ready for the court the following morning. Lott did not prepare the outline for then, or any other time.
When the question of the breached undertaking was raised, Judge Scarlett asked: “Did I or did I not speak to you about the advisability of giving undertakings?”
In the course of proceedings, Lott advised the court that he had not received the file until 5pm on May 23, the day after he had actually received it, and that he had only been briefed from that Friday.
The tribunal said:
“In our view a reprimand should bring home to the respondent and other members of the profession the seriousness of giving an undertaking to a court and the care which must be taken by members of the profession as to the accuracy of statements made to judicial officers.”
The tribunal indicated that a reprimand should not be taken lightly:
“A reprimand is a serious matter. It marks the disgrace of a member of an honourable profession inherent in the misconduct.”
The tribunal noted the sanction was not only to protect the public from the conduct of the lawyer in question, but also from similar conduct by other lawyers.
Additional grounds in the bar council’s original application to the tribunal that Lott had failed to prepare adequately, and that this failure contributed to his inadequate presentation of his client’s case, had failed to understand the issues and had displayed a general lack of competence and diligence were dismissed with the agreement of both parties.
Council of the NSW Bar Association v Lott
It looks like a Sydney solicitor is due to be birched after being found guilty of professional misconduct by NCAT.
The findings arose from a series of suspect withdrawals from the trust account associated with her sole practitioner practice.
The Law Society alleged that sometime in November 2014, Sesilia Fehoko Terepo gave her husband access to her practice’s trust account. Her husband was neither a solicitor nor an employee of the practice, LMJ Lawyers, based in Ingleburn in south-western Sydney.
On various dates between November 3, 2014 and February 9, 2015, withdrawals were made from the trust account. It was asserted that apart from a cash withdrawal of $850, the withdrawals from the trust account were either transferred to the practice’s office account or Terepo’s personal account.
The Law Society contended that was a deficiency in the trust account from November 3, 2014 to September 7, 2015, by which time all funds had been repaid.
The Law Society’s trust account investigator, John Michalski, established that Terepo had travelled overseas, giving her husband access to the practice trust account. While the solicitor was apparently overseas unauthorised withdrawals from the trust account totalling just over $13,000 were made. The withdrawals were for various amounts ranging from $50 to $2,000.
In an email response to the Law Society in November 2015, purportedly from Terepo, she is said to have stated:
“There was a lot of discrepancies in our trust account due to unforeseen and unexpected circumstances.”
Terepo is said to have given her husband authority to handle all her accounts while she was overseas, and said “it was just a mistake I had made in allowing access to non-legal people who didn’t understand the concept of a trust account”.
The tribunal noted “her apparent inability to provide suitably detailed and diligent responses to the Law Society” as to when she was actually overseas, “which we must take as indicating a lack of professional candour on her part”. Accordingly, the tribunal could not be satisfied that it was Terepo’s husband who made the unauthorised withdrawals.
The Law Society tried to discover the identity of the person who withdrew the $850 in cash from the trust account. It had a withdrawal slip in Terepo’s name, with her driver’s licence number and a signature looking like hers.
In a response in July 2016, she conceded that the signature “looks exactly like” her signature, and that while she remembered taking out money she did not recall taking it out from the trust account. Pressed for further details, Terepo made no further response.
The tribunal viewed it as “highly unlikely” that anyone other than Terepo made the cash withdrawal, and on the basis of her July 2016 admissions, felt that it could comfortably reach that conclusion. It was “comfortably satisfied” that there was misappropriation of the trust funds of the practice.
Terepo was found guilty of professional misconduct by being recklessly indifferent to the possibility that trust monies might be misappropriated when giving her husband access to the account, by misappropriating the $850, and for failing to assist the investigation and reply to a section 371 notice served on her.
The tribunal also found her guilty of unsatisfactory professional conduct with respect to the use of the trust account by an unauthorised person.
The matter is listed in August for directions and for a date to be fixed for determination of disciplinary orders.