Legal Profession Act 2004 s.4.4.4(a); unsatisfactory professional conduct by legal practitioner; failure to obtain from clients written acknowledgement and agreement concerning practitioner acting for both parties.

Legal Profession Act 2004 s.4.4.3(1)(a); professional misconduct defined as unsatisfactory professional conduct involving substantial or consistent failure to reach or maintain reasonable standard of competence and diligence; breach of duty of loyalty alleged to be professional misconduct as defined.

Michael McGarvie, Acting Legal Services Commissioner

Legal Services Commissioner v Cassidy (Legal Practice) [2009] VCAT 2141

1. The principal registrar is to amend the records of the Tribunal to show the applicant as "Michael McGarvie, Acting Legal Services Commissioner" instead of "Victoria Fay Marles, Legal Services Commissioner".
2. The Tribunal finds the respondent guilty of professional misconduct as defined by s.4.4.4(a) of the Legal Profession Act 2004, in that he contravened rule 1.1 of the Professional Conduct and Practice Rules 2005 by failing to act honestly and fairly in his clients' best interests (Charge 1).
3. The Tribunal finds the respondent guilty of unsatisfactory professional conduct as defined by s.4.4.4(a) of the Legal Profession Act 2004, in that he contravened rule 8.5.1 of the Professional Conduct and Practice Rules 2005 by not informing his clients in writing of the potential disadvantages of acting for both parties to a proposed conveyancing transaction (Charge 4).
4. The Tribunal finds the respondent guilty of unsatisfactory professional conduct as defined by s.4.4.4(a) of the Legal Profession Act 2004, in that he contravened rule 8.5.1 of the Professional Conduct and Practice Rules 2005 by not obtaining from his clients their written acknowledgement of advice given by him about acting for both parties to a proposed conveyancing transaction and their written agreement that the respondent could act for the other party to the transaction (Charge 5).
5. Charges 2, 3, 6, 7 & 8 are dismissed.
6. The principal registrar is to appoint a time, date and place for the resumption of the hearing to hear submissions as to the orders that should be made consequent upon these findings.

1. Mr. Cassidy is a legal practitioner who practises at Cobram.
2. The Legal Services Commissioner has charged Mr. Cassidy with eight counts of professional misconduct. The charges arise out of a proposed sale of land at Katamatite, in respect of which Mr. Cassidy acted for both the vendor and the purchasers. The charges are associated in different ways with either potential conflict or actual conflict between the interests of the vendor and the interests of the purchasers.

1. The proposed vendor was Oakura Farms Pty Ltd. The directors of Oakura Farms Pty Ltd are Mr. Clinton Muggeridge and Mrs. Therese Muggeridge. Mrs. Muggeridge gave evidence on behalf of the Commissioner.
2. The proposed purchasers were Mr. Dennis Bowerman and Ms Kay Jackel, who both gave evidence on behalf of the Commissioner.
3. The estate agent involved in the proposed sale was Landmark Hoban Real Estate, based at Cobram. The matter was handled by its representative Mr. Laurance Evans, who gave evidence on behalf of Mr. Cassidy.
4. Mr. Cassidy also gave evidence.

1. The land originally was Crown Allotment 60A in the Parish of Katamatite. In the year 2000 the then owners of the land applied to the Shire of Moira for approval of a two lot subdivision. In September 2000, the owners entered into an agreement with the Shire. The agreement was made pursuant to s.173 of the Planning and Environment Act 1987. In effect it created a covenant that no dwelling house could be erected on Lot 1. The plan of subdivision then was approved by the Shire, and registered with the Land Registry. On 10 January 2001, the Shire registered a memorandum of the agreement on the title to Lot 1.
2. Oakura Farms Pty Ltd became the registered proprietor of Lots 1 and 2 in 2004. A house was erected on Lot 2, and occupied by Mr. & Mrs. Muggeridge. In 2007, Oakura Farms Pty Ltd placed Lot 1 with several estate agents, including Landmark Hoban, for sale.
3. Mr. Bowerman and Ms Jackel approached Mr. Evans of Landmark Hoban with a view to purchasing Lot 1. Terms of sale were negotiated, and Mr. Bowerman and Ms Jackel paid a deposit of $1,000 to Landmark Hoban. Mr. Bowerman informed Mr. Evans that Mr. Cassidy's firm was his solicitor. On 9 January 2008, Mr. Evans sent a letter to Mr. Cassidy's firm asking that contracts be prepared. The letter indicated that Mr. Cassidy's firm acted for both the vendor and the purchasers. The letter stated that the agreed price was $177,500, that the sale was subject to finance being arranged by 23 January 2008, that the parties were to share equally in the cost of some fencing, and that settlement was to take place on 6 February 2008. No mention was made of the s.173 agreement.
4. Mr. Bowerman gave evidence that a neighbour told him about the s.173 agreement. He said that he discussed the agreement with Mr. Evans, who told him that an application could by made to the Shire seeking cancellation of the agreement to allow a dwelling to be constructed on Lot 1. Mr. Cassidy gave evidence that Mr. Evans telephoned his office on 25 January 2008, stated that a letter about the s.173 agreement had been sent to the Shire, and asked that a special condition be inserted into the contract making it conditional upon cancellation of the agreement. The evidence of Mr. Cassidy was supported by an internal office email.
5. Both Mr. Evans and Mrs. Muggeridge gave evidence that a letter was written to the Shire on behalf of Oakura Farms Pty Ltd. The letter is not in evidence, but I assume that in substance it was an application for cancellation of the agreement and removal of the memorandum of agreement from the title. Mr. Evans, Mrs. Muggeridge, Mr. Bowerman and Ms Jackel all gave evidence that the Shire council was not to meet until 14 March 2008, meaning that they did not expect the application to be dealt with before that date.
6. The contract prepared by Mr. Cassidy is in evidence. In addition to the conditions about finance and fencing, it included a condition that "This sale is subject to and conditional upon the vendor at their [its] expense and within 90 days from the date hereof removing or amending the existing S173 agreement registered on the Certificate of Title so as to allow a residential building to be erected on the land".
7. Both Mrs. Muggeridge and Mr. Cassidy gave evidence that Mr. & Mrs. Muggeridge went to Mr. Cassidy's office in February 2008 and signed a contract.
8. Mr. Bowerman and Ms Jackel went to see Mr. Cassidy on 7 February 2008. Mr. Cassidy said that he was informed by Mr. Bowerman and Ms Jackel that Bendigo Bank had verbally approved a loan, but would not give written approval until the s.173 agreement was cancelled.
9. Mr. Cassidy also gave evidence that Mr. Bowerman and Ms Jackel queried the extent of the water entitlements being sold with the land, and sought conditions requiring redirection of drainage flowing from Lot 2 onto Lot 1, construction of the fencing prior to settlement, and a warranty that the pump being sold with the land would be in working order.
10. Mr. Cassidy gave evidence that he offered to prepare an amended contract including the additional conditions required by Mr. Bowerman and Ms Jackel, if they were prepared to sign a contract containing those conditions. Mr. Cassidy said that Mr. Bowerman was prepared to sign, but Ms Jackel was not. I accept the evidence of Mr. Cassidy.
11. Mr. Cassidy said that, at the conclusion of the meeting on 7 February 2008, he informed Mr. Bowerman and Ms Jackel that he would speak with Mr. Muggeridge and then get back to them. He said that he telephoned Mr. Muggeridge, and told Mr. Muggeridge of the new conditions. He also told Mr. Muggeridge that the date for loan approval would need to be extended. He said that Mr. Muggeridge objected to the new conditions on the basis that he had agreed to an "unconditional" sale, but that he would ring back. Mr. Cassidy said that Mr. Muggeridge did not ring back. He said that he telephoned Mr. Muggeridge again, and Mr. Muggeridge responded by saying that he would discuss the matter with his wife and then ring back. I accept the evidence of Mr. Cassidy.
12. Mr. Cassidy, Mr. Bowerman and Ms Jackel all gave evidence that they met a second time, although none of them could remember the date. Mr. Cassidy did not make a file note. Mr. Cassidy said that at the second meeting he gave a copy of the contract, signed by Mr. & Mrs. Muggeridge on behalf of Oakura Farms Pty Ltd, to Ms Jackel so that she could lodge it with Bendigo Bank. Ms Jackel produced what she said was the copy contract given to her by Mr. Cassidy, and it was tendered in evidence. The copy is not signed by Mr. & Mrs. Muggeridge
13. When asked whether he signed a contract at any stage, Mr. Bowerman replied "I can't remember signing any". When asked whether she signed a contract, Ms Jackel replied "Can't remember". Mr. Evans said that he believed that no contract was signed. Mr. Cassidy said a contract was not signed by Mr. Bowerman or Ms Jackel. I find that Mr. Bowerman and Ms Jackel did not sign a contract for the purchase of the land.
14. Mr. Cassidy said that he was telephoned by Mrs. Muggeridge early in March 2008. He said that Mrs. Muggeridge asked if the land could be sold to someone else. He said that he advised Mrs. Muggeridge that the land could be sold to someone else because Mr. Bowerman and Ms Jackel had not signed a contract. Mrs. Muggeridge gave evidence to the same effect, except that she said that the discussion took place during the last ten days of February.
15. There was a dispute as to whether Mrs. Muggeridge informed Mr. Cassidy during the same telephone discussion that there actually was a new purchaser. Mrs. Muggeridge gave evidence that an estate agent other than Landmark Hoban found a new purchaser towards the end of February 2008. She said that she told Mr. Cassidy that she wanted to sell to the new purchaser because the price was higher than the price agreed to by Mr. Bowerman and Ms Jackel. Mr. Cassidy denied that Mrs. Muggeridge informed him that there was a new purchaser. Mrs. Muggeridge was an impressive witness, who strongly denied in cross-examination that she did not inform Mr. Cassidy about the new purchaser. I accept her evidence.
16. Mrs. Muggeridge gave evidence that on 6 March 2008 she believed that she spoke with Mr. Cassidy, but could have spoken with his assistant Belinda, and asked that a contract be prepared for the new sale. Mr. Cassidy gave evidence that he did not speak with Mrs. Muggeridge on that date, and I accept his evidence.
17. On the same date, 6 March 2008, Mrs. Muggeridge sent a facsimile to Mr. Cassidy. The facsimile commenced with the sentence "Confirming conditions of sale". It stated that the price was $200,000, and that the parties were to contribute equally towards the cost of the boundary fence. Mr. Cassidy gave evidence that he did not see the facsimile until about 14 March 2008. I accept his evidence. Mr. Cassidy said that he did not prepare a contract for the new sale, although he was aware that a contract had been prepared by a member of his staff.
18. Mrs. Muggeridge gave evidence that she and her husband went to Mr. Cassidy's office on 16 or 17 March 2008 and signed a contract for the new sale. Mr. Cassidy said that the contract with the new purchaser was exchanged on about 18 March 2008.
19. Mr. Bowerman said that he went to see Mr. Evans to enquire as to progress with cancellation of the s.173 agreement. He said that Mr. Evans agreed to make enquiries, and then informed him the next day that the land had been sold. The evidence of Mr. Evans was to the same effect, save that he added "about 20 March" as the date upon which he told Mr. Bowerman that the land had been sold.
20. Mr. Bowerman said that he telephoned Mr. Cassidy, who confirmed that the land had been sold, and stated that Mr. Bowerman's contract "had run out".
21. Mr. Cassidy said that he ceased to act for Mr. Bowerman and Ms Jackel on 18 March 2008, although he did not notify them on that date that he had ceased to act for them, or that the land had been sold. He agreed that it "could be correct" that Mr. Bowerman did not know until 19 March 2008 that the land had been sold. Mr. Cassidy said that he informed Mr. Bowerman on 19 March 2008 that Mr. Bowerman should see another solicitor.
22. None of the witnesses was able to say whether the application to cancel the s.173 agreement was dealt with by the Shire council at its meeting scheduled for 14 March 2008. So far as loan approval is concerned, Mr. Bowerman gave evidence that the proposed loan was "not finally approved" at that stage.
23. Mr. Bowerman and Ms Jackel lodged a complaint with the Legal Services Commissioner on 4 April 2008. A copy of the complaint is annexed to the Commissioner's application to VCAT. The thrust of the complaint is that Mr. Bowerman and Ms Jackel signed a contract to purchase the land, that Mr. Cassidy acted for both parties, that Mr. Cassidy allowed their purchase of the land to be "gazumpted" [sic], and that "we can't get the farm that we had our hearts set on". Of course, I have found that Mr. Bowerman and Ms Jackel did not sign a contract to purchase the land.
24. It was against this background that the Legal Services Commissioner brought the eight charges of professional misconduct against Mr. Cassidy.

1. Mr. Cassidy is charged with professional misconduct within the meaning of s.4.4.4(a) of the Legal Profession Act 2004 in that he contravened rule 1.1 of the Professional Conduct and Practice Rules 2005.
2. Rule 1.1 provides that "A practitioner must, in the course of engaging in legal practice, act honestly and fairly in clients' best interests and maintain clients' confidences".
3. The actual charge is that Mr. Cassidy failed "to act in the best interests of the complainants being clients of the practitioner". I conclude that charge 1 does not extend to the second part of rule 1.1, which relates to maintaining clients' confidences.
4. It was submitted on behalf of the Commissioner that the words "interest" or "interests", which occur in many places in the Rules, are not limited to legal interests. I accept the submission. The word "interest" is of wide import, as any dictionary will show. Mr. Bowerman and Ms Jackel did not have a legal interest in the land because they did not sign a contract of sale. However, they had an interest in the form of a reasonable expectation that they would be able to purchase the land, particularly if the Shire cancelled the s.173 agreement.
5. Particulars of charge 1 are set out in paragraphs 3 to 11 of the application. There are only three allegations in paragraphs 3 to 11 of the particulars that appear to me to be relevant to charge 1.
6. One allegation is that, while continuing to act for Mr. Bowerman and Ms Jackel, Mr. Cassidy accepted instructions from Oakura Farms Pty Ltd to prepare a contract for the sale of the same land to another purchaser [paragraph 9(c)]. A second allegation is that, having accepted instructions to prepare a contract for the sale of the same land to another purchaser, Mr. Cassidy did not cease to act for Mr. Bowerman and Ms Jackel [paragraph 9(a)]. A third allegation is that, while continuing to act for Mr. Bowerman and Ms Jackel, Mr. Cassidy did not continue to negotiate with Oakura Farms Pty Ltd on their behalf to try to reach agreement on the special conditions to be included in the proposed contract between them and Oakura Farms Pty Ltd [paragraph 9(b)].
7. I find that Mr. Bowerman and Ms Jackel were not prepared to sign a contract unless the vendor Oakura Farms Pty Ltd agreed to the additional conditions that they sought when they conferred with Mr. Cassidy on 7 February 2008. I find that Mr. Bowerman and Ms Jackel instructed Mr. Cassidy to negotiate on their behalf with the vendor seeking to achieve agreement about those additional conditions. I find that Mr. Cassidy negotiated with the vendor, seeking the inclusion of the additional conditions, but that the vendor did not provide an answer as to their inclusion.
8. I find that Mr. Cassidy was aware that Mr. Bowerman and Ms Jackel (because they could not get an answer from the vendor) and the vendor (because it did not want to lose a sale to Mr. Bowerman and Ms Jackel) were content to allow the matter to drift along with an expectation that the Shire would make a favourable decision on 14 March 2008 to cancel the s.173 agreement. I find that Mr. Cassidy and the parties expected cancellation of the agreement to lead to final approval of the loan, to agreement about a reduced number of conditions to be included in the contract, and to signing and exchange of the contract. Of course, everyone was well aware that the proposed sale was less likely to proceed if the Shire refused to cancel the s.173 agreement. To this point, bearing in mind that Mr. Bowerman and Ms Jackel were not prepared to sign a contract containing the additional conditions until the vendor agreed to the additional conditions, I regard Mr. Cassidy as having acted in the best interests of Mr. Bowerman and Ms Jackel.
9. However, at least by 6 March 2008, Mr. Cassidy accepted instructions from the vendor to prepare a contract of sale to another party. The chances of Mr. Bowerman and Ms Jackel purchasing the land greatly reduced at that point. At the very least, Mr. Cassidy should have ceased acting for Mr. Bowerman and Ms Jackel immediately, and advised them to consult another solicitor immediately. Instead, Mr. Cassidy continued to act for Mr. Bowerman and Ms Jackel, ceased to negotiate with the vendor on their behalf, left them unaware that a sale to another purchaser was likely to take place, prepared and exchanged a contract whereby the vendor sold to another purchaser, and only then responded to an enquiry by Mr. Bowerman by telling Mr. Bowerman that the land had been sold.
10. I find that, from 6 March 2008 onwards, Mr. Cassidy contravened rule 1.1 of the Professional Conduct and Practice Rules 2005 by failing to act honestly and fairly in his clients' best interests.
11. Contravention of a rule is capable of constituting unsatisfactory professional conduct or professional misconduct: s.4.4.4(a) Legal Profession Act. Whether a contravention of the Act, or rules made under the Act, amounts to unsatisfactory professional conduct or professional misconduct depends upon the seriousness of the conduct. I have made decisions to that effect in a number of cases, such as Legal Services Commissioner v Spaulding [2008] VCAT 318 @ [13]. The seriousness of the conduct will depend in turn upon all relevant factors brought to the attention of the Tribunal, and to the manner in which similar factors have been treated in previous cases.
12. The conduct of Mr. Cassidy in accepting instructions from Oakura Farms Pty Ltd to prepare a contract for the sale of the same land to another party, in continuing to act for Mr. Bowerman and Ms Jackel, in ceasing to negotiate with Oakura Farms Pty Ltd on their behalf, in leaving them unaware that a sale to another purchaser was likely to take place, and in preparing and exchanging a contract of sale to another purchaser, was sufficiently serious as to amount to professional misconduct.
13. I find Mr. Cassidy guilty of professional misconduct as defined by s.4.4.4(a) of the Legal Profession Act 2004, in that he contravened rule 1.1 of the Professional Conduct and Practice Rules 2005 by failing to act honestly and fairly in his clients' best interests.
14. I acknowledge that it was submitted on behalf of the Commissioner that Mr. Cassidy did not act in the best interests of Mr. Bowerman and Ms Jackel because he did not provide them with full and frank advice as to the legal consequences of not entering into a conditional contract of sale. An allegation to that effect was not included in the particulars, and I do not intend to make a finding in relation to the submission. However, it seemed to me that Mr. Bowerman and Ms Jackel were aware of the need to sign a contract in order to purchase land, but declined to sign a contract unless the additional conditions were agreed to by the vendor.

1. Mr. Cassidy is charged with professional misconduct within the meaning of s.4.4.4(a) of the Legal Profession Act 2004 in that he contravened rule 8.2 of the Professional Conduct and Practice Rules 2005.
2. Rule 8.2 provides that "A practitioner must avoid conflict of interest between two or more clients of the practitioner". The actual charge is in identical terms, namely that Mr. Cassidy "failed to avoid a conflict of interest between two or more clients of the practitioner". Particulars of charge 2 again are those set out in paragraphs 3 to 11 of the application. There are five allegations in the particulars that appear to me to be relevant to charge 2.
3. One allegation is that Mr. Cassidy did not inform Mr. Bowerman and Ms Jackel, in writing or at all, about the potential disadvantages of a practitioner acting for both parties to a conveyancing transaction [paragraph 5(b)]. This allegation, standing alone, is the subject matter of charge 4, and I will deal with it there.
4. A second allegation is the allegation already mentioned that, while continuing to act for Mr. Bowerman and Ms Jackel, Mr. Cassidy accepted instructions from Oakura Farms Pty Ltd to prepare a contract for the sale of the same land to another purchaser [paragraph 9(c)]. A third allegation is the allegation already mentioned that, having accepted instructions to prepare a contract for the sale of the same land to another purchaser, Mr. Cassidy did not cease to act for Mr. Bowerman and Ms Jackel [paragraph 9(a)]. A fourth allegation is the allegation already mentioned that, while continuing to act for Mr. Bowerman and Ms Jackel, Mr. Cassidy did not continue to negotiate with Oakura Farms Pty Ltd on their behalf to try to reach agreement on the special conditions to be included in the proposed contract between them and Oakura Farms Pty Ltd [paragraph 9(b)]. A fifth allegation is that, after the land had been sold to another purchaser, Mr. Cassidy continued to act for Oakura Farms Pty Ltd [paragraph 11(c)]. I find these four factual allegations proved.
5. I conclude by finding that Mr. Cassidy failed to avoid a conflict between the interests of his clients, and thereby contravened rule 8.2 of the Professional Conduct and Practice Rules 2005. However, the facts upon which the finding is based are the same facts upon which the finding of professional misconduct in charge 1 was based. Put another way, Mr. Cassidy did not act in the best interests of his clients Mr. Bowerman and Ms Jackel (charge 1) because he did not avoid a conflict between their interests and the interests of Oakura Farms Pty Ltd (charge 2). There being a large element of duplication, charge 2 is dismissed.

1. Mr. Cassidy is charged with professional misconduct within the meaning of s.4.4.4(a) of the Legal Profession Act 2004 in that he contravened rule 8.3(a)(i) of the Professional Conduct and Practice Rules 2005.
2. Rule 8.3(a)(i) is cumbersome. It provides that:

A practitioner who, or whose firm intends to act for a party, to any matter where the practitioner is also intending to accept instructions to act for another party to the matter must be satisfied, before accepting an engagement to act, that each party is aware that the practitioner is intending to act for the others and consents to the practitioner so acting in the knowledge that the practitioner:

(i) disclosing to each party all information relevant to the matter within the practitioner's knowledge;"

1. The actual charge is that Mr. Cassidy "failed to ensure that the complainants consented to the practitioner acting for another party in a matter in the knowledge that the practitioner may, thereby, be prevented from disclosing to the complainants all information relevant to the matter within the practitioner's knowledge".
2. The charge relates to one part of rule 8.3(a)(i). The charge is not that Mr. Cassidy failed to satisfy himself that the complainants were aware that he intended to accept instructions from another party, which is another part of rule 8.3(a)(i), but solely that Mr. Cassidy failed to satisfy himself that the complainants consented to him acting for the other party in the knowledge that he may be prevented from disclosing to them all relevant information within his knowledge.
3. The charge alleges that Mr. Cassidy "failed to ensure", whereas the rule requires that Mr. Cassidy "must be satisfied", but the change in meaning resulting from the use of different terminology is not important.
4. The particulars of charge 3 are those set out in paragraphs 3 to 5 of the application. The allegation in those paragraphs relevant to charge 3 is an allegation that Mr. Cassidy did not inform Mr. Bowerman and Ms Jackel about the potential disadvantages of Mr. Cassidy acting for both parties [paragraph 5(b)].
5. The evidence of Mr. Bowerman was that he has a clear recollection of being told by Mr. Cassidy that Mr. Cassidy acted for both parties. However, he could not remember whether Mr. Cassidy told him that one consequence of acting for both parties would be that Mr. Cassidy might be prevented from disclosing information to him and Ms Jackel.
6. The evidence of Ms Jackel was that she recalled being informed by Mr. Cassidy that he acted for the vendor. She was asked on two occasions whether Mr. Cassidy told her that one consequence of acting for both parties would be that Mr. Cassidy might be prevented from disclosing information to her and Mr. Bowerman. On the first occasion, Ms Jackel answered "Don't understand". On the second occasion, she answered "Don't recall".
7. Mr. Cassidy gave evidence about his meeting with Mr. Bowerman and Ms Jackel on 7 February 2008. He said that he told them that he acted for the vendor. He said that he told them that he might not be able to disclose information to them or give advice adverse to the other party. He said that he believed that Mr. Bowerman and Ms Jackel understood.
8. I accept the evidence of Mr. Cassidy. I find that Mr. Cassidy did satisfy himself that Mr. Bowerman and Ms Jackel consented to Mr. Cassidy acting for both parties in the knowledge that Mr. Cassidy might be prevented from disclosing information relevant to the matter.
9. Charge 3 is dismissed.

1. Mr. Cassidy is charged with professional misconduct within the meaning of s.4.4.4(a) of the Legal Profession Act 2004 in that he contravened rule 8.5.1 of the Professional Conduct and Practice Rules 2005.
2. Rule 8.5.1 provides that "A practitioner must not act where the practitioner is acting or intending to act ... for both vendor and purchaser in connection with the contract for the sale of land or a transfer of land for value at arm's length ... unless and until the practitioner obtains the written acknowledgment and agreement of each party in or to the effect of Form 1 in the Schedule to these rules after first informing that party in writing concerning the potential disadvantages to that party of so acting".
3. The rule has two parts, although they are not set out in chronological order. The first part requires the practitioner to obtain a written acknowledgement and agreement from the vendor and the purchaser to the effect of Form 1. The second part requires a practitioner, before obtaining an acknowledgement and agreement in Form 1, to inform the vendor and the purchaser in writing of the potential disadvantages of acting for both parties.
4. Charge 4 is limited to an alleged contravention of the second part of the rule. It recites that Mr. Cassidy "did not inform the complainants in writing concerning the potential disadvantages of the practitioner acting for both the complainants being the purchasers and the vendor in connection with the contract for the sale of land".
5. Charge 4 is different to charge 3 in the following respects. Charge 4 is that Mr. Cassidy did not inform Mr. Bowerman and Ms Jackel in writing of "potential disadvantages". Charge 3 was that Mr. Cassidy failed to satisfy himself that Mr. Bowerman and Ms Jackel had knowledge that Mr. Cassidy may "be prevented from disclosing ... all information relevant to the matter". Charge 4 and charge 3 are similar because to be prevented from disclosing information is a potential disadvantage resulting from a practitioner acting for both parties.
6. Mr. Cassidy admitted that he did not inform Mr. Bowerman and Ms Jackel in writing of the potential disadvantages to them of Mr. Cassidy acting for both parties. However, he maintained that his contravention of the rule amounted to unsatisfactory professional conduct rather than professional misconduct.
7. As I mentioned in relation to charge 1, whether a contravention of a rule amounts to unsatisfactory professional conduct or professional misconduct depends upon the seriousness of the conduct. I found, when dealing with charge 3, that Mr. Cassidy informed Mr. Bowerman and Ms Jackel that he might not be able to disclose information to them, or give advice to them adverse to the other party. Of course, "potential disadvantages" might be more extensive than the information provided by Mr. Cassidy. However, the main thrust of the charge is that Mr. Cassidy did not provide information about potential disadvantages in writing. The contravention of the rule was not sufficiently serious as to amount to professional misconduct.
8. As he admitted, I find Mr. Cassidy guilty of unsatisfactory professional conduct in that he contravened rule 8.5.1 of the Professional Conduct and Practice Rules 2005 by not informing his clients in writing of the potential disadvantages of acting for both parties to a proposed conveyancing transaction.

1. Mr. Cassidy is charged with professional misconduct within the meaning of s.4.4.4(a) of the Legal Profession Act 2004 in that he contravened rule 8.5.1 of the Professional Conduct and Practice Rules 2005.
2. I set out rule 8.5.1 when dealing with charge 4, where I also pointed out that the rule has two parts.
3. Charge 5 is limited to an alleged contravention of the first part of the rule, which requires the practitioner to obtain a written acknowledgement and agreement from the vendor and the purchaser to the effect of Form 1.
4. The actual charge recites that Mr. Cassidy did not obtain "the written acknowledgement and agreement of each party". However, the particulars of charge 5 set out in paragraph 5(c) of the application recite that Mr. Cassidy did not obtain the written acknowledgement and agreement _of the complainant_s".
5. Mr. Cassidy admitted that he did not obtain a written acknowledgement and agreement from Mr. Bowerman and Ms Jackel to the effect of Form 1. However, he maintained that his contravention of the rule amounted to unsatisfactory professional conduct rather than professional misconduct.
6. As I mentioned when dealing with charge 3, Mr. Bowerman gave evidence that he has a clear recollection of being told by Mr. Cassidy that Mr. Cassidy acted for both parties. Ms Jackel gave evidence that she recalled being informed by Mr. Cassidy to the same effect. In those circumstances, the contravention of the rule was not sufficiently serious as to amount to professional misconduct.
7. As he admitted, I find Mr. Cassidy guilty of unsatisfactory professional conduct in that he contravened rule 8.5.1 of the Professional Conduct and Practice Rules 2005 by not obtaining from Mr. Bowerman and Ms Jackel their written acknowledgement of advice given by Mr. Cassidy about acting for both parties to a proposed conveyancing transaction and their written agreement that Mr. Cassidy could act for the other party to the transaction.

1. Mr. Cassidy is charged with professional misconduct within the meaning of s.4.4.4(a) of the Legal Profession Act 2004 in that he contravened rule 8.4 of the Professional Conduct and Practice Rules 2005.
2. Rule 8.4 provides that "If a practitioner who is acting for more that one party to any matter determines that the practitioner cannot continue to act for all of the parties without acting in a manner contrary to the interests of one or more of them, the practitioner must immediately cease to act for all parties".
3. The rule requires a determination to be made by the practitioner. An issue arises as to whether the practitioner can make that determination subjectively, or must make it objectively. The apparent purpose of the rule is to prevent a practitioner from acting for either party if the practitioner cannot continue to act for them without acting in a manner contrary to the interests of one or both of them. In some cases the purpose of the rule is unlikely to be achieved if a practitioner can determine subjectively whether it is contrary to the interests of one or both clients for the practitioner to continue to act for both clients. I conclude that, to fully achieve its purpose, the rule must be interpreted as requiring the practitioner to make a determination objectively.
4. The actual charge is that Mr. Cassidy "did not immediately cease to act for all the parties to a matter upon determining that the practitioner could not continue to act for all parties without acting in a manner contrary to the interests of one of them".
5. Particulars of the charge are set out in paragraphs 8 & 9 of the application. Paragraph 8 alleges that on or before 18 March 2008 the vendor instructed Mr. Cassidy that it did not intend to proceed with a sale to Mr. Bowerman and Ms Jackel, that it had entered into [sic] a new contract of sale to a third party, and that it wanted Mr. Cassidy to draw up a new contract of sale.
6. Paragraph 9 alleges that, having received those instructions, Mr. Cassidy did not immediately cease to act for both parties, that he ceased to negotiate with the vendor on behalf of Mr. Bowerman and Ms Jackel, and that he accepted instructions from the vendor to draw up a new contract of sale.
7. I am satisfied that a large majority of legal practitioners, looking at the matter objectively, would conclude that Mr. Cassidy could not continue to act for both parties, without acting contrary to the interests of Mr. Bowerman and Ms Jackel, as soon as Oakura Farms Pty Ltd gave instructions to Mr. Cassidy on 6 March 2008 to prepare a new contract for the sale of the same land to another purchaser. I am well satisfied that Mr. Cassidy, an experienced conveyancing solicitor, would have reached the same conclusion if he considered the matter objectively.
8. I find that Mr. Cassidy contravened Rule 8.4 of the Professional Conduct and Practice Rules 2005 by continuing to act for both parties to a proposed conveyancing transaction when to continue to act for both parties was contrary to the interests of one of them. However, the fact that Mr. Cassidy did not cease acting for both parties contributed substantially to the finding of professional misconduct in relation to charge 1. There being a large element of duplication, charge 6 is dismissed.

1. Mr. Cassidy is charged with professional misconduct within the meaning of s.4.4.4(a) of the Legal Profession Act 2004 in that he contravened rule 4 of the Professional Conduct and Practice Rules 2005. The relevant parts of rule 4 provide that:

A practitioner must not accept an engagement to act for another person in any matter against, or in opposition to, the interest of a person ("the former client"):

(a) for whom the practitioner ... has acted previously and has thereby acquired information personally, confidential to the former client and material to the matter; and

(b) if the former client might reasonably conclude that there is a real possibility the information will be used to the former client's detriment.

1. The rule relates to a situation where the practitioner previously acted for a person ("the former client"), and thereby acquired confidential information relating to the former client. The rule prevents the practitioner acting for a different person in any matter if the former client might reasonably conclude that there is a real possibility that the confidential information will be used to the detriment of the former client.
2. The actual charge adopts the wording of the rule, without identifying the information the subject matter of the charge. Particulars of the charge are set out in paragraphs 7 to 11 of the application.
3. Paragraph 7 of the particulars describes the confidential information as "The confidential information included information as to the complainants' financial position, including the status of the complainants' application for finance in relation to the contract, and information as to the complainants' attitude to the contract and proposed variations and negotiations". The description relates to information allegedly acquired by Mr. Cassidy during the course of the proposed purchase by Mr. Bowerman and Ms Jackel.
4. Paragraph 10 alleges that Mr. Cassidy ceased to act for Mr. Bowerman and Ms Jackel, and accepted instructions to act for the vendor in relation to the new sale, in circumstances where Mr. Bowerman and Ms Jackel might reasonably conclude that Mr. Cassidy would use the confidential information to their detriment.
5. I find that most of the information described in paragraph 7 was not confidential. The proposed sale was conditional upon finance, meaning that Oakura Farms Pty Ltd was entitled to be informed as to the status of the finance application made by Mr. Bowerman and Ms Jackel. Information as to the attitude of Mr. Bowerman and Ms Jackel to the contract, and the variations proposed by them, likewise was not confidential because it was the subject matter of the negotiations that Mr. Bowerman and Ms Jackel instructed Mr. Cassidy to enter into with Oakura Farms Pty Ltd. Because of the negotiations, Oakura Farms Pty Ltd must have been aware of the information long before Mr. Cassidy accepted an engagement to act for Oakura Farms Pty Ltd in relation to the new sale.
6. In any case, there is no evidence to support a finding that Mr. Bowerman or Ms Jackel might reasonably conclude that the information described in paragraph 7 would be used to their detriment.
7. I find that Mr. Cassidy did not contravene rule 4 of the Professional Conduct and Practice Rules 2005. Charge 7 is dismissed.

1. Charge 8 is put as an alternative to charge 7.
2. Charge 8 charges Mr. Cassidy with professional misconduct as defined by s.4.4.3(1)(a) of the Legal Profession Act 2004, namely unsatisfactory professional conduct that involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, in that he "acted in breach of his duty of loyalty to the complainants being former clients".
3. Section 4.4.3(1)(a) does not mention the duty of loyalty owed by legal practitioners to clients, and the allegation that Mr. Cassidy acted in breach of his duty of loyalty seems to me to be an unnecessary complication.
4. The conduct of Mr. Cassidy might establish that there was unsatisfactory professional conduct involving a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and thus establish that Mr. Cassidy is guilty of professional misconduct as defined by the section. The fact that the same conduct might establish a breach of the duty of loyalty seems to me to be irrelevant.
5. Particulars of charge 8 are set out in paragraphs 7 to 11 of the application. Those paragraphs have been dealt with in relation to other charges, but I will repeat them in summary form.
6. Paragraph 7 describes the confidential information allegedly acquired by Mr. Cassidy. Paragraph 8 sets out the instructions allegedly given by Oakura Farms Pty Ltd to Mr. Cassidy for a new sale. Paragraph 9 sets out the action allegedly taken, or not taken, by Mr. Cassidy after he received those instructions. Paragraph 10 alleges that Mr. Cassidy ceased to act for Mr. Bowerman and Ms Jackel, and accepted instructions to act for Oakura Farms Pty Ltd in relation to the new sale, in circumstances where Mr. Bowerman and Ms Jackel might reasonably conclude that Mr. Cassidy would use confidential information to their detriment. Paragraph 11 alleges that, on or about 19 March 2008, Mr. Cassidy informed Mr. Bowerman and Ms Jackel that he could no longer act for them, advised them to seek independent legal advice, and continued to act for Oakura Farms Pty Ltd in relation to the new sale.
7. The conduct alleged is substantially the same conduct that gave rise to the finding of professional misconduct in relation to charge 1. There being a large element of duplication, I do not intend to determine the main issues that arise because of the way in which the charge is framed, namely whether there was a breach of the duty of loyalty and, if so, whether a breach of the duty of loyalty equates with professional misconduct as defined by s.4.4.3(1)(a). Charge 8 is dismissed.

1. I have made one finding of professional misconduct and two findings of unsatisfactory professional conduct. I will arrange for the Tribunal to resume to hear submissions as to the orders that should be made consequent upon those findings.