Legal Services Commissioner v Mingos (Legal Practice) [2013] VCAT 1773

The Tribunal finds Mr Mingos guilty of six charges of professional misconduct and two charges of unsatisfactory professional conduct. Having made those findings, the Tribunal orders as follows:

1. Under s.4.4.17(b) of the Legal Profession Act 2004 (the Act) the local practising certificate of John Mingos is suspended with effect from 14 August 2013, for a period of one month, with the period expiring on 13 September 2013.
2. Under s.4.4.17(b) of the Act any local practising certificate of John Mingos shall include the additional condition, with effect from the expiration of the period of suspension under the preceding order, that the respondent be entitled to practise as an employee solicitor only, for a period ending on 28 February 2015, before being eligible for a full practising certificate.
3. Under s.4.4.19(n) of the Act, in addition to the requirements under the Law Institute Continuing Professional Development Rules 2008 (the Rules) John Mingos is to obtain an additional five CPD units (as defined in the Rules) for each of the CPD years ending 31 March 2014 and 31 March 2015.
4. John Mingos shall pay the LSC's costs of the application, fixed in the sum of $12,500, to be paid by instalments as follows:
   • (a) $1,250 on or before 16 September 2013
   • (b) $1,250 on or before 14 October 2013
   • (c) $1,250 on or before 14 November 2013
   • (d) $1,250 on or before 16 December 2013
   • (e) $1,250 on or before 14 January 2014
   • (f) $1,250 on or before 14 February 2014
   • (g) $1,250 on or before 14 March 2014
   • (h) $1,250 on or before 14 April 2014
   • (i) $1,250 on or before 14 May 2014
   • (j) $1,250 on or before 16 June 2014.

This is a written version of reasons delivered orally at the conclusion of the hearing.

1. Mr Mingos is a 57 year old solicitor who has been practising since 1982. He was the principal of Mingos Kay Lawyers in Glen Waverley.
2. Four sets of disciplinary proceedings have been brought against him by the respondent, the Legal Services Commissioner (LSC). These arise out of complaints concerning Mr Mingos' conduct over the period extending from 2010 into 2013. In brief they relate to:
   • failing to complete work on behalf of clients in a timely manner;
   • failing to communicate properly with clients;
   • failing to furnish trust account statements;
   • delay in paying moneys to clients which were held by him on trust for those clients;
   • delay in provision of documents to clients after his retainer had been terminated and failing to provide information when requested to do so by the LSC.
3. Initially these matters were set down for contested hearings. There were a number of directions hearings but on 30 July 2013 the Tribunal was notified that Mr Mingos would plead guilty to a selection of eight out of the 14 charges which have been brought against him in the four proceedings. Six have been withdrawn.
4. While the LSC's investigations have been going on, the matters the subject of these complaints have been resolved in various ways. In general terms, the work required to be done on behalf of the clients has been transferred to other solicitors and moneys and documents held by Mr Mingos have eventually been returned to his clients. In each case there was very significant delay and inconvenience to his clients caused by Mr Mingos' failure to progress his client's files or to take action after his instructions had been terminated.
5. Mr Mingos' practice deteriorated badly and a receiver was appointed to his practice in April 2013. I was told that his practice has been sold to another solicitor and that Mr Mingos has, since 1 June 2013, been working as an employee for that solicitor. Thus he no longer bears the burdens of administration and of ultimate responsibility for regulatory compliance or for servicing his clients.

1. The eight charges to which Mr Mingos pleaded guilty were described in a proposed form of order provided to the Tribunal, as follows:

Professional misconduct within the meaning of section 4.4.4.4(a) of the Legal Profession Act 2004 (the 'Act') in that contrary to Rule 1.2 of the Professional Conduct and Practice Rules 2005 (the 'Rules'), he did not use his best endeavours to complete legal work as soon as reasonably possible in that he did not finalise the administration of the estate of Margaret Yvonne Dahlstrom (the 'Deceased') by finalising the transfer of the Deceased's shares in Australia and New Zealand Banking Group Ltd and Wesfarmers Ltd to Ross Dahlstrom and Martin Dahlstrom between May 2010 and December 2011.

Professional misconduct within the meaning of section 4.4.4.(a) of the Act in that contrary to Rule 39.1 of the Rules, he did not communicate effectively and promptly with his clients in that he did not respond to telephone calls from Ross Dahlstrom or Martin Dahlstrom, or update them as to the progress of the administration of the Deceased's estate in the period from May 2010 to November 2010, or again in the period from December 2010 to November 2011.

Professional misconduct within the meaning of section 4.4.4(a) of the act and that contrary to section 3.3.28(6)(c) of the Legal Profession Regulations 2005 (Vic) and therefore section 3.3.14(3) of the Act, he failed to furnish a trust account statement to each person to whom or on whose behalf trust money was held or controlled by Mingos Kay Lawyers as soon as practicable after 30 June each year, in that he failed to furnish trust account statements to Ross Dahlstrom and Martin Dahlstrom as soon as practicable after 30 June 2008, 2009, 2010 and 2011.

Unsatisfactory professional conduct within the meaning of section 4.4.4(a) of the Act, in that contrary to Rule 1.2 of the Rules he did not use his best endeavours to complete legal work as soon as reasonably possible.

Unsatisfactory professional conduct within the meaning of section 4.4.4(a) of the Act, in that contrary to Rule 39.1, of the Rules he did not communicate effectively and promptly with his clients, the Hosseinis.

Professional misconduct within the meaning of section 4.4.3(1)(a) of the Act, in that he engaged in a substantial and consistent failure to reach or maintain a reasonable standard of competence and diligence in that he did not, his retainer having been completed or terminated, when requested to do so by Douros Jackson Lawyers on behalf of the Mihaloudakis family, give to them documents related to the engagement to which they were entitled, namely the Certificates of Title for the properties at Rowville and Devon Meadows and the following documents:

(a) File No. 06.5656 N Mihaloudakis v Bariamis (litigation matter);

(b) File No. 05.5342 T & N Mihaloudakis (transfer and discharge);

(c) Certificate of Title Volume 8828 Folio 814 in the name of John Mihaloudakis & Sons Pty Ltd for 1 Makella Avenue, Mulgrave; and

(d) Certificate of Title Volume 10048 folio 391 in the name of John Mihaloudakis & Sons Pty Ltd for Lot 87, Nepean Highway, Rye.

Professional misconduct within the meaning of section 4.4.4(a) of the Act in that he contravened section 4.4.11(1)(b) of the Act by failing to comply at the required time with the request of the Legal Services Commissioner, to provide the Legal Services Commissioner with further information in respect of Mr Mingos' conduct, regarding the disciplinary complaint made by Peter Wellby.

1. In the Hosseini matter, the moneys held by Mr Mingos were not returned for in excess of 12 months. This was partly due to Mr Mingos being unsure who they should be paid to - in circumstances where they were ultimately simply repaid to the client who had provided them.
2. In relation to the Mihaloudakis complaint, it took one and three quarter years before certain documents were returned to Mr Mingos' clients or their new solicitors, so those new solicitors could progress their matters.
3. As Mr Shaw for the LSC said, in a number of instances the seriousness of the matters was not appreciated by Mr Mingos, in that significant delays occurred even after the matter had been referred to the LSC by way of complaint by the clients.
4. In relation to the final charge of failing to provide information to the LSC when requested, this has been recognised as a serious matter by the Tribunal, given that it is essential for the LSC in carrying out its function of public protection, to be able to gather relevant information in response to complaints received about practitioners.

1. I am satisfied that each of the above charges of professional misconduct and of unsatisfactory professional conduct are proved and I find Mr Mingos guilty of those eight charges.

1. The parties agreed that the following orders be made:
   • Mr Mingos be suspended for one months from 14 August 2013.
   • After that, Mr Mingos be restricted to practising as an employee only until 28 February 2015 (a period of 18 months).
   • Mr Mingos be required to obtain an additional five CPD points for the current and following CPD years.
2. Given that the parties have agreed on proposed orders, it is necessary for me to consider whether or not that agreed disposition is within the permissible range in accordance with Legal Services Commissioner v Brott[1] and other authorities. There are a number of factors to be taken into account: First, the plea which has saved expense in the conduct of a contested hearing. Next, Mr Mingos' offences were of omission, delay and failure to communicate. They did not involve dishonesty.
3. Third, there is Mr Mingos' psychological or psychiatric health which is to be taken into account in accordance with the decisions in Quinn v Law Institute of Victoria[2], R v Verdins[3] and other authorities. Mr Shaw referred to the recent Court of Appeal decision in Burgess v Legal Services Commissioner[4] which found that uncontroverted or uncontested medical evidence of such a condition is to be taken into account in determining the appropriate sanction. In that case when that factor was given due weight in the practitioner's favour it was not appropriate to prevent him from practising for any period, rather he was required to practise as an employee for, in that case, 21 months. That would sufficiently serve the paramount goal of protection of the public.
4. In this case, the parties agreed that a suspension for one month is appropriate. This is on the basis that contrary to the situation in Burgess, there is in fact a contest as to the medical evidence. In addition to medical reports obtained by Mr Mingos, the LSC had obtained its own medical report. Mr Mingos has suffered from depression and anxiety but there is not agreement as to whether, or, the extent to which, this has caused the conduct the subject of this proceeding.
5. In these circumstances, the parties have reached an agreement that Mr Mingos should be suspended from all practice for a period of one month. I am satisfied that a suspension for one month is appropriate and within the permissible range here, in the circumstances described above. I am similarly satisfied in relation to the other sanctions agreed between the parties.
6. These determinations serve the ends of specific and general deterrence. And most importantly the protection of the public is served in this case by Mr Mingos being limited to practising after that one month as an employee only until 28 February 2015. That comprises a further significant financial constraint on Mr Mingos in addition to the substantial costs he has already incurred through the conduct of the receivership proceeding and these disciplinary proceedings, as well as of course, having lost his practice. The requirement that Mr Mingos obtain an addition five CPD points for each of the next two years is also appropriate as he seeks to re-establish himself afresh as an effectively operating solicitor and seeks to put aside the problems of procrastination, avoidance and leaving things in the too hard basket which have led him to his present situation, and caused significant inconvenience for his clients.
7. Finally, there being no exceptional circumstances under s 46 D of the Victorian Civil and Administrative Tribunal Act 1998, Mr Mingos is required to pay the LSC's costs. These are fixed at $12,500 to be paid in monthly instalments from 16 September 2013.
8. Accordingly, orders are made in the terms agreed.

[1] [2008] VCAT 1998 at [57].

[2] [2007] VSCA 122 at [36].

[3] [2007] VSCA 102 and [2007] VSCA 102; (2007) 16 VR 269.

[4] (2013) VSCA 142.