being workshops or courses for which a total of 10 continuing professional development points have been allocated, he is not to act as the solicitor to an executor of a Will or the administrator of a deceased estate, or as the solicitor to a beneficiary of a Will save for the conduct of current files in relation to deceased estates which he holds this day under the supervision of David Gonzalez t/a MNG Lawyers.

1. The respondent is reprimanded for his conduct in the matter of the estate of Sergio Velia, deceased.
2. The respondent is to pay $25,000 to the Legal Services Commissioner by 11 February 2013.

1. On 1 July 2011 I published my reasons in determination of proceedings in which the applicant, the Legal Services Commissioner of the State of Victoria sought findings of professional misconduct on two counts against the respondent a practising solicitor, Mr Michael McNamara. In those reasons I concluded that the first of the charges should be dismissed and as to the second of the charges in accordance with an option given to me by the Legal Profession Act 2004 I found that the practitioner had engaged in unsatisfactory professional conduct. My determination was made in somewhat unusual circumstances where the evidence was heard by a full time senior member of the Tribunal who having reserved his decision was not reappointed upon the expiry of his term of office. As a result I made my determination based on a reading of the transcript of the hearing before the learned senior member. In those circumstances I was unclear as to whether particularly in light of my having made a finding which was not specifically contended for by either of the parties, the parties would wish to make further submissions as to the final disposition of the matter.
2. This afternoon has enabled the parties to make those submissions. The circumstances of the matters that have led to my finding are set out in detail in my published reasons and it is unnecessary for me to revisit them now. I incorporate what I said in those reserved reasons by reference for the purposes of my determination this afternoon.
3. The applicant Commissioner submits that I should make orders which would first exclude the practitioner from acting as solicitor to an executor of the will or administrator of a deceased estate or a solicitor for a beneficiary of the will, (presumably in that capacity if not generally) until he has undertaken courses in the law of succession and administration of deceased estates generally and/or ethical issues in relation to conflicts of interest.
4. Next the Commissioner submitted that the practitioner should be reprimanded for the conduct referred to in the reasons. Thirdly, he submitted a fine of $3,000 should be made payable and finally, through his senior counsel, Dr Hanscombe SC who appears with Ms Stanisich submitted that there should be an award of costs for $25,000 to the Legal Services Commissioner as the Commissioner's costs of the proceeding.
5. Mr Halse appears on behalf of the practitioner. He conceded that a reprimand is in the circumstances appropriate. He submitted further, that there should be no fine and no order for the payment of costs. Mr Halse referred to the very impressive testimonials which were placed before the Tribunal at the initial hearing, the fact that the Executive Director of the Law Institute of Victoria appeared at the hearing to give character evidence for the practitioner specifically in relation to the practitioner's work pro bono publico noting that the practitioner had won an award for this work. He further submitted that this was a situation in which the practitioner had attempted to have these matters disposed of in a manner consistent with the Tribunal's substantive finding with the matter coming to the Tribunal as distinct in being dealt with 'in-house' as Mr Halse put it because the Commissioner simply refused to accept a characterisation of the situation which ultimately was accepted by the Tribunal, namely that there was no professional misconduct.
6. Mr Halse referred also to a matter which was urged upon me at an earlier stage of proceedings by Mr Smith SC on behalf of the practitioner, namely the practitioner had lost the prospect last year of a senior appointment under the Crown in right of the State of Victoria which the laying of these charges effectively prevented. This he said was a significant penalty for the practitioner himself as was the cost of these proceedings which have regrettably been protracted both in the number of appearances involved and the period of time over which they have extended by reason of the unfortunate difficulties with the term of office of the senior member who heard the matter originally. He drew my attention to a letter of demand from one of the practitioner's creditors and noted his family responsibilities. All those matters he said told against the imposition of the sanctions over and above the reprimand which was not opposed.
7. As to the proposal that the practitioner be required either absolutely or conditionally to undertake further study, Mr Halse submitted that there had been a significant learning opportunity and experience for the practitioner as the issues of the law of succession and deceased estates arising out of the facts in dispute here were ventilated at great length and as he was subject to extensive cross-examination on these matters by senior counsel for the Commissioner. In those circumstances said Mr Halse there was no necessity for any further training particularly in light of the fact that the practitioner was subject to the profession's usual requirement to undertake continuing professional development.
8. As to the issue of costs, Mr Halse submitted that this matter was regulated by Clause 46D of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 which provided that where a finding inter alia of unsatisfactory professional conduct was made, the Tribunal ought save in exceptional cases make an order in favour of the Commissioner that the practitioner in question pay the Commission its costs. He noted that a further sub-clause of Clause 46D provided that in special circumstances an order could be made against the Commissioner and in favour of the practitioner. He said that in judging the distance which the two concepts of 'special circumstances' were 'exceptional circumstances' stood relative to what one might describe as the ordinary case, exceptional circumstances were more distant from the ordinary than special circumstances. Ultimately however whilst having made a number of submissions as to the special nature of this proceeding he did not press the submission that there should be any costs order in his client's favour against the Commissioner. He said however that this was an exceptional case for a number of reasons. He referred to the attempts which his client had made to have this matter dealt with in-house on the basis of a finding of unsatisfactory professional conduct, something which the Commissioner was empowered to do if the Commissioner were minded to do things in that light. He noted it was an exceptional circumstance for the Executive Director of the Institute to give evidence for a respondent in a disciplinary proceeding. He referred to a period of five years delay in the laying of the charges. The events in question here took place in the years 2004 and 2005. The charges in question were only laid last year and were heard over two days in the middle and at the end of last year.
9. First said Mr Halse, the proceeding was an exceptional one because it is customary for the Commissioner in these matters either to obtain a plea from the practitioner which the Commissioner is prepared to accept or to have findings made by the Tribunal in accordance with the case put by the Commissioner. Here, said Mr Halse the Commissioner had not succeeded in obtaining the findings which he sought and the matter should be regarded as having been determined by the Tribunal in a manner broadly consistent with the practitioner's attempts to have it dealt with 'in house'.
10. Dr Hanscombe, SC on behalf of the Commissioner said first, that the loss of the Crown appointment last year ought not be given any weight at all. She said that the purpose of this disciplinary jurisdiction was primarily to protect the public. Any disadvantages suffered by the practitioner as a result of these proceedings did not in any way derogate from the Tribunal's obligations to see to the protection of the public interest and so that matter should be put aside entirely. She did not agree that the Commissioner enjoyed such universal success, that anything less than complete success was for that reason alone to be regarded as exceptional. She said as to the issue of delay, the authority referred to by Mr Halse in connection with that, namely The Queen v Merritt Piggott and Ferrari [2007] VSCA 1 at [35] in the judgment of Maxwell P, the learned President of the Court of Appeal, the issue of delay there is a mitigating factor was regarded by the Court only as being of significance relative to the issue of rehabilitation. There was nothing here she said which amounted to a program of rehabilitation or re-training which had been undertaken by the practitioner, therefore the issue of delay should not be given any weight. Further, since I have already considered as to the substantive findings the issue and significance of the testimonials as to character, it would be wrong to weigh them a second time in the balance on the issue of how matters should be disposed of.
11. What then are the appropriate orders to make? First, since it is advocated by the Commissioner and not opposed by the practitioner's counsel, I believe an order of reprimand should be made. As to the issue of further professional development, I believe that a failure to analyse some fundamental concepts to the law of succession and the administration of deceased estates has led the practitioner to his difficulties here. As Mr Halse correctly observes there is not a scintilla of evidence that the practitioner was motivated by any corrupt motive or motive of personal gain. To the extent that might be seen that he sacrificed the interests of one client for the potential benefit of the other, ultimately that benefit to the other client does not accrue to him in any event there was nothing to suggest that the other client was in some way a friend or associate of the practitioner. Mr Halse said this was the situation where in the context of conflicts of interest there was no bright line. It was therefore a situation in which it is easy to go astray.
12. I believe that if the practitioner is to continue in practice in the law of succession and the administration of deceased estates, the further training which is advocated by the Commissioner is appropriate. Dr Hanscombe has said it is possible for him if he wishes to do so, simply to abandon that area of practice. I believe therefore that Order 1 should be made.
13. Having made that order there are consequences for the proposed Order 3 namely, the fine of $3,000. I believe that Order 1 which has effect either of excluding the practitioner for further involvement in the area of practice involving deceased estates and succession of requiring him to be further trained in those areas, represents an appropriate protection of the public interest. The issue of a fine therefore is I suppose of general significance so far as one is to be seen to be upholding the standards of the profession and in the interests of the public generally and deterring other practitioners from straying into the difficulties that this practitioner has found himself in. Once one looks at matters in that light it seems to me therefore that the loss of the senior appointment that this practitioner suffered is not a matter which should be ignored. I believe it should be given some weight. The fact that he is apparently not in a state of over abundance of funds is also a significant factor. Mr Halse drew attention to an order which I made fining a practitioner $3,500 for professional misconduct where the misconduct entailed a forgery of a doctor's certificate. The finding which I have made against this practitioner is of a significantly less serious failure to live up to the standards of the profession. When one considers that in light of the lack of fraudulent intent or the desire for personal benefit and the practitioner's previously spotless record attested to by no less a figure than the Executive Director of the Institute, I believe it is inappropriate in the circumstances to impose a fine.
14. The final matter that I have to consider is the issue of costs and that is in its own way the most perplexing. I have recorded the various matters which it is said rendered this an exceptional proceeding such that the prima facie obligation of the Tribunal in these circumstances to make a costs order in favour of the Commissioner ought to be excluded. It is necessary now for me to say something about those matters. I am a relative newcomer as Head of this List and so I cannot offer a personal opinion as to whether the Commissioner has had the sort of universal success that Mr Halse contends that he and his predecessors have had. Even if that were true I do not believe that for that reason alone this case should be regarded as exceptional. I have already referred to Mr Halse's characterisation of exceptional circumstances as something more out of the ordinary than special circumstances. I believe he is correct. Further, I do not accept the factual premise of the contention put by Mr Halse that his client in effect attempted to plead this matter out. The transcript accords that apart from an admission as to a conflict of interest situation in early 2005 there was no admission and no plea to any breach of proper professional standards. In closing address senior counsel for Mr McNamara submitted that the Tribunal should find that his client dealt with these matters 'soundly'. That is a view of things which I felt compelled to reject for the reasons that I have already recorded. The practitioner could have offered some sort of plea at the hearing but did not, he maintained stout denials throughout, right through to the final submission, therefore I cannot regard this as a situation where the proceeding was driven forward solely by a determination on the part of the Commissioner to obtain findings beyond those which were somehow available to the Commissioner if only the Commissioner had been prepared to accept them. This therefore leads me to a conclusion that this proceeding is not so unusual as to constitute an exceptional circumstance and therefore the Tribunal is prima facie obliged to make the costs order which the Commissioner seeks.
15. Mr Halse submitted that scales perhaps at the level of County Court Scale B should be applied based on the fines which the Commissioner is seeking to have levied. Dr Hanscombe says that the Commissioner had communicated to the practitioner that there would be no submission made that his practising certificate should be cancelled. Those exchanges were of course between the parties and were not placed before me for the purposes of my determination. In any event I think that the issue of the application of the County Court Scales which are now to be merged into one with effect from 1 September is not in a situation such as this to be judged by the quantum of the fine sought or levied. What was under threat here was the professional standing of the practitioner. County Court Scale D cuts in at $50,000. This practitioner's professional standing I think is worth at least $50,000. If an order is to be made by reference to any County Court Scale it should be by reference to Scale D. Mr Halse raised the issue as to whether it is appropriate to brief senior counsel in these circumstances. He took me to an authority from the Court of Appeal where the Learned President of the Court had disapproved a Tribunal determination, finding it appropriate to retain senior counsel where the factual situation was relatively straight forward. This was another straight forward factual situation he submitted, therefore it would be inappropriate if any costs award were to be made against his client or there to be a certificate for senior counsel or that the quantum should reflect the briefing of senior counsel.
16. Dr Hanscombe observed that the practitioner himself had been represented by senior counsel and that consideration in itself rendered it appropriate for the Commissioner to do likewise. In any event she said there was a complex narrative involved and the very vast volume of documents which was brought to the two days of hearing, albeit that a relatively modest and reasonable volume of the total was placed in evidence. She said that the $25,000 figure which was nominated by the Commissioner was a reasonable one. He omitted any allowance for two directions hearings conducted before me to sort out the issues arising out of the reconstitution of the Tribunal and was in fact under charging for the actual cost of the Commissioner in conducting the matter over those two days before the learned senior member. The Commissioner said that if there were a doubt about this the matter could be referred for taxation in the Costs Court but the Commissioner through Dr Hanscombe submitted that this was a lengthy and expensive process and should not be embarked upon. I do not claim expertise in the area of taxation or to use the more contemporary term, assessment of costs myself, however I believe the characterisation by Dr Hanscombe of the figure of $25,000 as being no more than County Court Scale D would tax out to or assess at if the taxation or assessment were made is correct. For the reasons that I have already given I believe that there should be a costs order in favour of the Commissioner and that the $25,000 figure is a proper figure for me to adopt in the circumstances to spare the parties an assessment costs in the Costs Court.