What’s the world come to “if we cannot trust a solicitor”? … Williamstown lawyer gets a stretch in pokey after tickling mortgage funds … CJ Earl Warren points to remorse, a hitherto blemish free existence and ongoing depression … But at the end of the day over $600,000 is still missing … Ama Somaratna reports
Victorian solicitor Brian Francis Maloney was given five years porridge (three on the bottom) by CJ Earl Warren after the poor wretch pleaded guilty to financially scalping a mortgage investor.
Brian had previously been free of blemishes and was an adored family man, however between 2007 and 2013 he was nicking money on a large scale from the complainant, Mr Tony Gatt.
Earl Warren expressed sympathy for Brian’s depressed condition, which triggered his downhill spiral. Also, his display of true remorse didn’t do him any harm.
Nonetheless, the CJ thought that the solicitor’s conduct was a blow to the integrity and reputation of the profession and that there should be “significant consequences”.
The offender was a battler, leaving school before the HSC to work in the criminal law branch of the former crown solicitor’s office. He studied at night and ultimately graduated in law from the University of Melbourne.
Later he left the public service and set-up a law shop in Williamstown, and it was sufficiently successful to employ seven staff. He was a good role model with six sons, all of whom were doing well in their studies and in life.
Pressure started to set in when he acted pro bono for a friend in unsuccessful litigation against Victoria Police that went all the way to the High Court and ran for four years. In the process he neglected his paying work.
This endeavour cost him about $2 million. His wife’s fashion business in Ocean Grove, which he had backed, closed as a loss maker in 2011.
Also, a franchise handyman business called Hire a Hubby, of which he was a director, went bust owing the taxman $600,000.
Brian, himself was forking out $2,000 a fortnight to the ATO to pay off tax debts.
Maloney pleaded guilty to 13 counts of obtaining financial advantage by deception, two charges of deficiency in a trust account and failing to deliver trust money and one count of theft.
Between 2003 and 2006 Gatt and Maloney were involved in a number of legitimate transactions with the complainant lending money to the solicitor’s mortgage clients.
However, from 2007 Maloney started to systematically abuse his position by falsifying documents to obtain loan money from Gatt. The money he acquired was used for personal and business expenses.
Things came to a head in about late 2012, when Gatt asked for repayment of money that was overdue.
It was all too much for Brian who wrote suicide notes and text messages explaining a plan to fake a car accident with the idea that the life insurance would pay out the money owed to Gatt.
He even wrote a note to Gatt, expressing sorrow for what had happened:
“I just got caught in the trap and could not repay the first loan and it snowballed from there.”
One of his sons stepped in and prevented the suicide mission. When the coppers stepped in Maloney was fully co-operative and admitted everything.
The Legal Services Commissioner took over Maloney’s law shop and sold it for the princely sum of $2,000.
The CJ acknowledged that the evidence from medicos was that Maloney was indeed suffering from a major depressive disorder and that he was “deeply remorseful and ashamed” of his conduct.
However, she took into account Gatt’s victim impact statement, which asked:
“What chance have we got if we cannot trust a solicitor on advising us and for them to do the correct legal documentation?”
In total the solicitor misappropriated $1,758,300 and Gatt was down to the tune of $651,375.
HH pointed out:
- He knowingly abused the special power given to a solicitor by utilizing information provided by Gatt within the lawyer client relationship for self-gain.
- He falsified documents for his benefit using the special knowledge he had from his work.
- The defrauding had been ongoing for several years therefore it was safely concluded these actions were not momentary lapses of judgement but rather premeditated criminal acts.
- It demonstrated that he is not a person that can be trusted “to behave honestly, legally and ethically”.
Maloney’s name was struck off the jam roll, with consent, with a total of five years in the slammer and a non-parole period of three years.
If he’s out on parole on time, he would have served one year for roughly every $200,000 that was not repaid.
The CJ wrapped it up, saying:
“Primarily, your conduct warrants general deterrence. Imagine if your conduct was commonplace? It is important to the courts, the rule of law and the community that lawyers know there are significant consequences for your type of offending and breach of trust. The court must take a clear position that this conduct is unacceptable.”
However she thought he was unlikely to reoffend:
“Having said this, specific deterrence is not a significant consideration in your case and … you are not likely to offend again.”