Legal Services Commissioner v Morgan (Legal Practice) [2009] VCAT 2080

1. 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 1.2 of the Professional Conduct and Practice Rules 2005 by failing to use his best endeavours to complete legal work as soon as reasonably possible (Charge 1).
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 39.1 of the Professional Conduct and Practice Rules 2005 by failing to communicate effectively and promptly with his client (Charge 2).
3. Charge 3 (that the respondent's conduct involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence) is dismissed.
4. The respondent is to pay a fine of $2,500.00 to the Legal Services Board by 31 December 2009.
5. The respondent is to pay to the Legal Services Commissioner by 31 December 2009 her costs of this application, fixed by the Tribunal at $3,350.00.

CHARGES BROUGHT BY THE LEGAL SERVICES COMMISSIONER:

1. Mr. Morgan is a legal practitioner. Three charges of professional misconduct have been brought against Mr. Morgan by the Legal Services Commissioner. The charges arise out of a complaint lodged with the Commissioner by Mr. Robert Grieve, a former client of Mr. Morgan.
2. The first charge is that Mr. Morgan did not complete legal work for Mr. Grieve as soon as reasonably possible. The second charge is that Mr. Morgan failed to communicate effectively and promptly with Mr. Grieve. The third charge is that Mr. Morgan engaged in conduct that involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence.
3. Evidence was given by Mr. Grieve. No evidence was given by Mr. Morgan, or by anyone else on his behalf.

1. Mr. Grieve gave evidence that his father died on 15 January 2006. He said that he engaged Mr. Morgan early in February 2006 to act in relation to the administration of his father's estate. Mr. Grieve said that Probate was granted in May 2006. Mr. Morgan then made two distributions in the estate, on 14 June 2006 and 28 November 2006.
2. Mr. Grieve said that he received a letter from Mr. Morgan dated 30 November 2006. The letter informed Mr. Grieve that Mr. Morgan had received $111,988.87 from AMP, being the proceeds of two life insurance policies, and that Mr. Morgan would retain the proceeds pending finalisation of the income tax commitments of the estate.
3. Mr. Grieve said that he then received three emails from Mr. Morgan, dated 19, 21 & 22 December 2006 respectively. The first email attached a copy of the letter whereby AMP sent the $111,988.87 to Mr. Morgan. The second email sought the dates of birth of the three executors, required by the estate's accountant. The third email sought proof of identity for the three executors, required in order to sell shares belonging to the estate.
4. Mr. Grieve said that he had no further communication from Mr. Morgan until he terminated the services of Mr. Morgan on 28 August 2007. Mr. Grieve said that between 22 December 2006 and 25 June 2007 he telephoned the office of Mr. Morgan several times and left messages, but received no response. He said that he lodged a complaint with the Legal Services Commissioner on 25 June 2007 because Mr. Morgan did not respond to his messages, and because Mr. Morgan continued to hold about $215,000.00 on behalf of the estate.
5. Mr. Grieve said that he sent a letter to Mr. Morgan on 28 August 2007 terminating his instructions to Mr. Morgan. The letter asked Mr. Morgan to provide a cheque for the monies held on behalf of the estate, and to make his file available for collection. Mr. Grieve said that his sister, one of the executors, collected a cheque for $215,981.92 from Mr. Morgan's office on 11 September 2006, and collected the file from Mr. Morgan's office on 17 September 2007.
6. Mr. Grieve said that the executors finalised the administration of the estate, with the assistance of the estate's accountant. He said that one consequence of delay on the part of Mr. Morgan in finalising the estate was that it was necessary to lodge a tax return for the year ended 30 June 2008.
7. In cross-examination, Mr. Grieve acknowledged that he received a written apology from Mr. Morgan, which was forwarded to him by the Legal Services Commissioner. He also acknowledged that the trust monies were placed in an interest bearing account by Mr. Morgan, and that delay on the part of Mr. Morgan did not cause any financial loss to the estate, other than the cost of the tax return for 2008.
8. Although it was not part of the evidence of Mr. Grieve, I will add that on 14 November 2007 Mr. Morgan wrote a letter to the Legal Services Commissioner in which he stated that "I am unable to satisfactorily explain why I was unable to finalise this matter (which was not difficult and should have been able to have been attended to in a prompt manner) when requested".

1. Mr. Morgan 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 1.2 of the Professional Conduct and Practice Rules 2005.
2. Rule 1.2 is short and to the point, namely "A practitioner must, in the course of engaging in legal practice, use the practitioner's best endeavours to complete legal work as soon as reasonably possible".
3. I find that Mr. Morgan did not use his best endeavours to finalise the administration of the estate from 22 December 2006 until his instructions were terminated on 28 August 2007. No explanation for the delay has been provided by Mr. Morgan, save for his letter to the Legal Services Commissioner saying that he had no explanation, and none is apparent from the evidence of Mr. Grieve. I find that Mr. Morgan contravened rule 1.2.
4. Contravention of a rule is capable of constituting unsatisfactory professional conduct or professional misconduct: s.4.4.4(a) Legal Profession Act 2004. 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.
5. A delay of eight months in the finalisation of a deceased estate, with no explanation of the delay, is such a serious contravention of the rule as to amount to professional misconduct. I find charge 1 proved.

1. Mr. Morgan 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 39.1 of the Professional Conduct and Practice Rules 2005.
2. Rule 39.1 also is short and to the point, namely "A practitioner, in the course of engaging in legal practice, must communicate effectively and promptly with clients of the practitioner".
3. I accept the evidence of Mr. Grieve that he had no communication from Mr. Morgan from 22 December 2006 until 28 August 2007. I also accept his evidence that he telephoned the office of Mr. Morgan on several occasions during that period and left messages, but received no response. A failure to communicate for eight months, in circumstances of unexplained delay, clearly establishes that Mr. Morgan did not communicate effectively and promptly with Mr. Grieve. I find that Mr. Morgan contravened rule 39.1.
4. As I have mentioned, whether a contravention of the rules amounts to unsatisfactory professional conduct or professional misconduct depends upon the seriousness of the conduct. A failure to communicate with Mr. Grieve from 22 December 2006 until 28 August 2007, in circumstances where Mr. Grieve was trying to ascertain what was happening with the administration of the estate, was such a serious contravention of the rule as to amount to professional misconduct. I find charge 2 proved.

1. Mr. Morgan is charged with professional misconduct within the meaning of s.4.4.3(1)(a) of the Legal Profession Act 2004, which provides that "professional misconduct includes ... unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence".
2. The conduct that is alleged to amount to a "substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence" is the same conduct that is the subject matter of charges 1 and 2.
3. Charge 3 is not put as an alternative charge to the previous charges. However, it must be treated as an alternative charge in order to avoid duplicity. Having found Mr. Morgan guilty of charges 1 and 2, which charges relate to the same conduct that is the subject matter of charge 3, charge 3 must be dismissed.

1. Ms Anderson of counsel appeared for the Commissioner. She brought to my attention many findings of misconduct and unsatisfactory conduct made by this Tribunal in respect of Mr. Morgan in recent years.
2. On 1 November 2007, Mr. Morgan was found guilty of unsatisfactory professional conduct in respect of conduct that occurred in 2007: Legal Services Commissioner v Morgan [2007] VCAT 2117.
3. On 7 May 2008, Mr. Morgan was found guilty of three counts of professional misconduct in respect of conduct that occurred in 2007: Legal Services Commissioner v Morgan [2008] VCAT 841.
4. On 3 February 2009, Mr. Morgan was found guilty of five counts of professional misconduct in respect of conduct that occurred in 2007 and 2008: Legal Services Commissioner v Morgan [2009] VCAT 100.
5. Ms Anderson submitted that the practising certificate held by Mr. Morgan should be cancelled for nine months, from 1 October 2009 to 30 June 2010. She contended that cancellation of Mr. Morgan's practising certificate was required in order to protect the public; as a specific deterrence to Mr. Morgan in respect of such conduct; and as a general deterrence to other legal practitioners who might conduct themselves in such a manner. Ms Anderson also submitted that Mr. Morgan should be required to pay a fine and the costs of the proceedings.
6. Mr. Cotton of counsel appeared for Mr. Morgan. Mr. Cotton informed me that Mr. Morgan has been in practice since 1983, and that he is a sole practitioner. Mr. Cotton also informed me that Mr. Morgan is married with two children aged 20 and 18 years, and that his family is dependent upon his income.
7. Mr. Cotton provided detailed information about serious family problems encountered by Mr. Morgan since 2006, and of problems in his practice, which led to Mr. Morgan being diagnosed with depression.
8. I was informed by Mr. Cotton that Mr. Morgan had a "good record" prior to the recent findings of misconduct and unsatisfactory conduct. He said that Mr. Morgan is remorseful. He submitted that the conduct of Mr. Morgan, although inappropriate, was not dishonest.
9. The findings of professional misconduct is this matter relate to the conduct of Mr. Morgan from the end of 2006 to the middle of 2007. The findings of professional misconduct and unsatisfactory professional conduct in the previous matters related to the conduct of Mr. Morgan in 2007 and 2008.
10. The fact that Mr. Morgan had a good record from 1983 to 2005, and the fact that he has been found guilty of many disciplinary offences in respect of his conduct from 2006 to 2008, indicates that problems since 2006 within his family and within his practice, leading to depression, have contributed to his inappropriate conduct since 2006.
11. On the other hand, clients of a legal practitioner are entitled to expect that their work will be done promptly, and that they will be able to communicate with their practitioner when it is necessary to do so. I accept the submission that the conduct of Mr. Morgan in this matter did not involve dishonesty.
12. The unacceptable conduct in this matter tended to predate the unacceptable conduct in the matters previously dealt with by the Tribunal. In those circumstances, I do not intend to cancel the practising certificate held by Mr. Morgan. However, any unacceptable conduct on the part of Mr. Morgan in the future is likely to lead to the loss of his right to practise.
13. Mr. Morgan is to pay a fine of $2,500 to the Legal Services Board. He also is to pay the costs of the Commissioner, fixed by the Tribunal at $3,350.00.