Purpose:

1. This memorandum aims to provide the tribunal with the evidence of the case and the guiding principles that the tribunal is required to be following at the time of dealing with the allegations bought against Ms Jane.

FACTS OF THE CASE

• This written submission is presented on behalf of the Law Society (herein after referred to as the petitioner).
• This written submission is against the conducts of Ms Jane (herein after referred to as the defendant) that can be considered as unethical and against the Australian Solicitors Conduct Rules 2012.
• That the defendant, Ms Jane, had been a former medical secretary before pursuing law and belongs to an ethnic community. Her community had a general consensus that she would understand and represent their community.
• That the defendant had been approached by Ms Janet, one of her community member, for a conveyance. Although the defendant was not fully knowledgeable yet the conveyance was done successfully by her and a sum of $50,000 was also kept by Ms Janet to the trust account of the defendant.
• That the defendant was again approached by another community member Mr Simon for major issues related to his debts. It was brought to the defendant’s notice that Mr Simon had been served a Creditor’s Petition which was required to be set aside within 10 days.
• That Ms Jane failed to perform her duties because her father became sick and was taken to hospital. This caused her client to get served with documents related to bankruptcy. Ms. Jane took the money from the trust fund of Ms Janet to settle the bankruptcy claims for Mr Simon and when he paid her off she settled the conveyance of Ms Janet.
• That after three months Ms Jane was found to be lying to the Trust Account Inspector John Niggly. The report presented by Mr Niggly made the Council of the Law Society to be cancelling the Practising Certificate of Ms Jane.

Advice

• The council is requested to be following the Legal Profession Conduct Rules established under the provisions of section 427 of the Legal Profession Uniform Law to decide the current case.
•  The issues that have been raised against Ms Jane in the current case are misappropriation of trust funds, breaches towards the Uniform Law in relation to the proper maintenance of the trust accounts and hindering in the proper investigation process.
•  Section 35 of the Legal Profession Conduct Rules provides for the criteria that are needed to be followed by a solicitor for the proper maintenance of the trust account.  Ms Jane has been found guilty under this section because as the facts of the case can be viewed she had been incompetent to maintain the trust fund properly.
• In section 42 of the Legal Profession Conduct Rules the provisions in relation to the withdrawal of the trust money. The procedures for the withdrawal of money by the solicitor have also been mentioned in the section. Ms Jane had also been in breach of this section as she withdrew the trust fund for a purpose other than what it actually was intended for.
• In furtherance to this the Tribunal is also required to be following the rules mentioned in the Legal Profession Conduct Rules.
•  Rule 4.1 provides with the duties of the solicitor to be acting in a competent and diligent, way for the best interest of the client. The solicitor is also required to be honest in all the dealings of the legal practice. Ms Jane had not acted in a competent way. Throughout the facts of the case there had been multiple examples found regarding her incompetence in the legal matters.
• Rule 5 prohibits any solicitor from engaging in any kind of dishonest or disreputable conduct. By lying to the Trust Fund Investigator Ms Jane not only engaged herself in a dishonest conduct but also created hindrance to the investigation process.
• As per rule 10.1 a solicitor is required to avoid conflict of interest between the duties owed by them towards the former and current clients. Ms Jane, according to the facts of the case, used the funds of Ms Janet, one of her clients, to clear the bankruptcy documents of another of her clients Mr Simon.
•  Considering the abovementioned provisions it is advisable to the Council that there has been gross misconduct on the parts of Ms Jane. Therefore, in conclusion it can be said that the judgment of the NCAT to revoke her Professional Licence is appropriate

Reference

Australian Solicitors Conduct Rules 2012

Legal Profession Uniform Law 2015

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015