1. The respondent is found guilty of professional misconduct, within the meaning of section 4.4.3(1)(a) of the Act, in that the respondent's conduct - of, on 22 March 2011, writing a letter to the beneficiaries of the estate of Mr William L. Ross the content of which was, in part, false and misleading was conduct of an Australian legal practitioner occurring in connection with the practice of law that involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence.

1. The respondent is found guilty of unsatisfactory professional conduct within the meaning of section 4.4.2 of the Act, in that the respondent's conduct of, on 22 March 2011, writing a letter to the beneficiaries of the estate of Mr William L. Ross which precluded the beneficiaries from giving their informed consent to the respondent's request that they authorise the executors of Mr Ross' estate to charge executors' commission at a rate of 4% - was conduct of an Australian legal practitioner occurring in connection with the practice of law that fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

1. The respondent is reprimanded.
2. The respondent is to pay a fine of $5,000 to the Legal Services Board.
3. The respondent is to repay to the estate of William L. Ross (deceased) the sum of $120,000 together with interest at the rate from time to time pursuant to the Penalty Interest Rate Act 1983 plus 2%. The respondent's liability to make repayment pursuant to this order is joint and several with the liability of John Barlow which is imposed separately to this proceeding in proceeding no. J11/2014.
4. The respondent is prohibited from applying for a practising certificate at any time in the future.
5. The respondent is to pay to the applicant its costs of this proceeding on County Court Scale, failing agreement to be assessed by the Costs Court.
6. The Applicant is directed to serve a copy of this order and reasons on each and every beneficiary of the estate of William L. Ross (deceased).

1. The respondent is an Australian lawyer, having been admitted to the legal profession on 1 April 1974.
2. At all material times the respondent was an Australian legal practitioner and the holder of a local practising certificate subject to the conditions that he was authorised to receive trust money and was authorised to engage in legal practice as a principal of Birch Ross & Barlow (law practice), a law practice in Victoria.
3. A former partner of the law practice was William L. Ross (Mr Ross).
4. Mr Ross died on 5 July 2010. Mr Ross died testate, his last will being that dated 6 May 2005 (Mr Ross' will).
5. Mr Ross' will appointed the respondent and John Barlow (Mr Barlow) executors and trustees of Mr Ross' will.
6. Mr Ross' will bequeathed his estate to his four daughters in equal shares.
7. The Inventory of Assets and Liabilities sworn by the respondent and Mr Barlow on 13 August 2010 in the matter of Mr Ross' will deposed to assets of Mr Ross' estate of $3,101,635.25 and liabilities of $1,206.50, being $3,100,428.70 net.
8. Mr Ross' will authorised a trustee of Mr Ross' will:

'to charge commission at such rate or rates as he shall consider reasonable having regard to the duties performed and responsibilities undertaken ...'

1. The respondent administered the estate of Mr Ross in his capacity as a legal practitioner and partner of the law practice, for which work the law practice sent bills to the estate. The estate's trust account ledger records that the law practice transferred from the estate to the firm's office account a total of $30,135.97 in costs and disbursements in this regard: $23,109.23 on 21 December 2010, $3,176.74 on 3 May 2011 and $3,850 on 31 October 2011.
2. On 22 March 2011 the respondent wrote to the beneficiaries of Mr Ross' estate among other things to seek their authority for the executors of Mr Ross' estate to charge executors' commission of 4% on Mr Ross' estate.
3. An undated document styled 'Estate of William Louis Ross - Statement of Receipts and Expenditure from 6/7/2010 to 21/3/2011' indicates that the executors of Mr Ross' estate retained executors' commission of $120,000. This amount represents 4% of $3,000,000. Mr Barlow received half of this amount, being $60,000. The respondent received the other half of this amount, being $60,000.
4. The respondent has retained the amount of $60,000 which he was paid as executor's commission.

1. Misconduct at common law, within the inclusive definition of professional misconduct of section 4.4.3(1) of the Act, in that the respondent's conduct - of being paid, accepting and retaining $60,000 by way of executor's commission from the estate of Mr Ross in circumstances where there was no basis for him to do so - would reasonably be regarded as disgraceful or dishonourable by legal practitioners of good repute and competency.

1. Professional misconduct, within the meaning of section 4.4.3(1)(a) of the Act, in that the respondent's conduct - of, on 22 March 2011, writing a letter to the beneficiaries of the estate of Mr Ross the content of which was, in part, false and misleading was conduct of an Australian legal practitioner occurring in connection with the practice of law that involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence.

1. Unsatisfactory professional conduct within the meaning of section 4.4.2 of the Act, in that the respondent's conduct of, on 22 March 2011, writing a letter to the beneficiaries of the estate of Mr Ross which precluded the beneficiaries from giving their informed consent to the respondent's request that they authorise the executors of Mr Ross' estate to charge executors' commission at a rate of 4% - was conduct of an Australian legal practitioner occurring in connection with the practice of law that fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

• The Inventory of Assets and Liabilities of Mr Ross' estate which the Respondent and Mr Barlow swore to on 13 August 2010 deposes to Mr Ross' estate comprising of approximately 30 assets.

1. The Inventory of Assets and Liabilities of Mr Ross' estate which the respondent and Mr Barlow swore to on 13 August 2010 also deposes to Mr Ross' estate comprising of 5 liabilities, being to various local accounts.

1. Mr Julian Snow of Counsel appeared on behalf of the applicant. There was no appearance by or on behalf of the respondent. By email dated 23 May 2014, the respondent advised the applicant that he did not intend to appear at the hearing or oppose the orders sought.
2. Material detailing the administration of Mr Ross' estate was annexed to the application for order and it is clear from that material that the charges are made out.

1. As set out in the application for order, executors' commission can be paid to compensate an executor who also acts in a professional capacity as administrator of an estate for his or her personal pains and trouble in that administration. The pains and trouble must be over and above and in addition to those experienced in the normal course of carrying out professional duties as executor, which aspect is compensated for by the executor issuing a bill for his or her professional services.

1. I am satisfied that Mr Ross' estate was not complex in nature. Further I am satisfied that the respondent suffered no personal pains and was put to no personal trouble in the administration of Mr Ross' estate.

THE REQUEST TO THE BENEFICIARIES OF MR ROSS' ESTATE

1. The respondent's letter dated 2 March 2011 to the beneficiaries of Mr Ross' estate sought the beneficiaries' authorisation of an executors' commission at the rate of 4% partly on the basis that Mr Ross' estate was suggested to be complex in nature. I am satisfied that this was false and misleading as Mr Ross' estate was not complex in nature. In the case of Walker & Ors v D'Alessandro [2010] VSC 15 (5 February 2010) T. Forrest J at [30] stated the following:

[30] I consider that an executor who is also solicitor for the estate and who is seeking to procure the beneficiaries' consent to charge an executors commission, at a bare minimum ought disclose the following, in order for that consent to be informed:

(a) The work that he has done to justify the commission. This should be done with particularity.

(b) If he is invoicing the estate for legal fees and disbursements he ought identify with particularity what constitutes the basis for same. Only then can a beneficiary accurately measure the 'pains and troubles' occasioned to the executor beyond the subject matter of those legal fees and disbursements.

(c) That the beneficiaries are entitled to have this Court assess his commission pursuant to s 65 of the Act. This needs to be explained fully.

(d) That it is desirable that the beneficiaries seek independent legal advice as to their position on this issue of consent. In many cases where the beneficiaries are unsophisticated people and the issues are complex he ought insist upon them receiving independent legal advice and ought not enter into any commission agreement until they have.

1. The letter sent to the beneficiaries of Mr Ross' estate precluded the beneficiaries from giving their informed consent to the respondent's request that they authorise the executors to charge commission at the rate of 4% as the letter did not disclose with particularity the work done to justify the requested rate of executors' commission. Additionally, the letter did not identify with particularity the basis for the legal fees and disbursements charged to the estate such that the beneficiaries could accurately measure the pains and trouble occasioned to the executors beyond the subject matter of those legal fees and disbursements. The letter insufficiently explained that beneficiaries were entitled to have the Supreme Court of Victoria assess executor's commission pursuant to section 65 of the Administration and Probate Act 1958. Finally the letter did not advise the beneficiaries to obtain independent legal advice before deciding whether to authorise the executor's commission rate which the letter sought.

1. Having regard to the above, the three charges against the respondent are proved.

1. By email dated 27 November 2013 from the respondent to the applicant, the respondent wrote:

... pursuant to section 2.4.30 of the Legal Profession Act 2004 I JOHN DAVID MAGUIRE (Practitioner Number: P0008912) hereby SURRENDER my Practising Certificate to the Legal Practitioners (sic) Board.

1. On 5 December 2013 the respondent's practising certificate was cancelled pursuant to section 2.4.30(2) of the Act.
2. In an email to the applicant dated 23 May 2014, the respondent stated that he will not oppose an application that he be excluded from applying for a practising certificate. While such an application was not made, the Tribunal considers that an order to this effect is appropriate having regard to the seriousness of the misconduct.

1. The respondent and Mr Barlow acted jointly as executors in appropriating $60,000 each as commission and it is appropriate that they be jointly and severally liable for repayment of $120,000.00 to the estate. Similarly, they should be jointly and severally liable to pay interest to the estate in respect of the money from the date of appropriation until repaid in full. It is to be noted that both Mr Barlow and Mr Maquire were invited to make submissions to the Tribunal on the question of whether they should be jointly and severally liable for repayment of the $120,000.00. Neither took up the invitation.
2. The three charges arise from a single course of action. Accordingly, a global disposition is appropriate.