1. The respondent having pleaded guilty to a charge of professional misconduct pursuant to section 4.4.4(a) of the Legal Profession Act 2004 in that he contravened rule 30.1.1 of the Professional Conduct and Practice Rules 2005 by engaging in conduct in the course of practice which was dishonest, he is found guilty as charged (Charge 1).
2. Charge 2 is withdrawn with leave of the Tribunal.
3. The respondent is reprimanded.
4. By 24 October 2014 the respondent is to pay a fine of $25,000 to the Legal Services Board.
5. No later than 31 December 2014 the respondent is to attend and satisfactorily complete a course in legal ethics in addition to training processes to satisfy CPD requirements. Such course to be approved by the applicant and the respondent is to provide to the applicant evidence of completion.
6. The respondent is to pay to the applicant its costs of these proceedings on County Court Scale, failing agreement to be assessed by the Costs Court.

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

1. The respondent was admitted to practice as a barrister and solicitor of the Supreme Court of Victoria on 7 April 1993.
2. At all material times, the respondent:

(a) held a practising certificate entitling him to practise as a principal;

(b) was the principal and proprietor "Lewis O'Brien & Associates", a law firm, practising in Kew, Victoria; and

(c) practised under the name "Lewis O'Brien & Associates" ("Lewis O'Brien & Associates").

1. At all relevant times, Jo-Anne George and her husband, Stephen George ("the Georges"), were the registered proprietors of a residential property located at 3 Blake Street, Berwick ("the Property").
2. On 19 January 2007, the Georges entered into an option agreement over the Property ("the Option Agreement") with Bass Valley Constructions Pty Ltd ("BVC") as trustee for The Siacci JV Trust. On the same day, the Georges entered into irrevocable powers of attorney ("the POAs") in favour of David Siacci ("Siacci") in respect of the Property, which provided amongst other things, that Siacci could transfer the Property to himself or a nominee.
3. The Option Agreement provided that BVC could purchase the Property or extend or assign the Option Agreement before 5pm on 19 January 2012.
4. Relying on the Option Agreement, BVC lodged a caveat against the Property on 23 September 2010.
5. BVC did not exercise any of the options available to it under the Option Agreement by the deadline of 5pm on 19 January 2012.
6. From about December 2011, the respondent was acting for BVC and/or Siacci in relation to the sale of the Property. In 2012, he also acted for Ryan Shaune (who was Siacci's son-in-law) in relation to the sale of the Property.
7. The POAs were based on a similar document the respondent had prepared for Siacci in a different transaction. The Option Agreement was prepared by Lewis O'Brien & Associates.
8. The Option Agreement expired on 19 January 2012 (and had not been extended at or before that time).
9. As a result, the POAs ceased to have effect after 19 January 2012.
10. Accordingly, the respondent did not have any authority to act for the Georges in any capacity after 19 January 2012
11. On about 19 January 2012, the respondent prepared a contract of sale in respect of the Property which provided that the Georges were the vendors and Wilfrid Hirudayaraj and Pansy Maxim (collectively, "H&M") were the purchasers. H&M signed the contract on 19 January 2012, and on 20 January 2012 Siacci signed purportedly on behalf of the Georges as attorney.
12. On 20 January 2012, the Georges lodged an application pursuant to section 89A of the Transfer of Land Act 1958 seeking to remove BVC's caveat on the Property.
13. On 25 January 2012, the respondent received from the real-estate agent marketing the Property, a copy of a letter dated 24 January 2012 from the Georges, which stated that the Option Agreement had expired on 19 January 2012 (without being extended) and that they had lodged an application to remove BVC's caveat on the Property.
14. On about 24 January 2012, the respondent received a Notice from the Registrar of Titles dated 24 January 2012 addressed to BVC at the Practitioner's premises which stated that the Georges have lodged an application to remove BVC's caveat on the Property, and that the caveat will lapse on 24 February 2012 unless BVC takes action to contest the Georges' application.
15. Stephen George spoke to the respondent on the telephone on 2 or 3 February 2012 and told him that they had lodged an application to remove BVC's caveat on the Property.
16. Before 10 February 2012, the respondent knew or believed that the Option Agreement had expired and that Siacci could no longer act pursuant to the POAs.
17. On 10 February 2012, the respondent sent a fax to the mortgagee (Royal Guardian Mortgage Corporation) of the Property in which he stated

"We advise that we act on behalf of Stephen and Jo-anne George in relation to the sale of their above property, settlement of which is due to take place on 17th February 2012.

Please arrange for a Discharge of Mortgage to be prepared in anticipation of settlement and forward to us any discharge authority documents which require signing prior to settlement.

1. At the time the respondent sent his fax to Royal Guardian claiming to be acting for the Georges he was reckless as to the fact that he did not have the Georges' authority to act for them pursuant to the POAs.
2. On 13 February 2012, there was a telephone conversation between someone at Lewis O'Brien & Associates and a representative of Royal Guardian in which the latter indicated that Royal Guardian will not give a discharge of the mortgage because Lewis O'Brien & Associates had not obtained the Georges' authority to discharge the mortgage.
3. On 15 February 2012, Royal Guardian sent a fax to Lewis O'Brien & Associates in which it stated:

"Please note that in order to accept a Power of Attorney and proceed with the Power of Attorney to discharge to mortgage, we require the attached form to be completed and signed by the borrowers.

Alternatively, please have the borrowers complete the discharge authority form attached."

1. Later on 15 February 2012, the respondent sent an email to Siacci in which he stated:

"Royal Guardian are making this very hard - refer to attached facsimile.

I could work on trying to force the Georges to sign".

1. Professional misconduct pursuant to section 4.4.4(a) of the Legal Profession Act 2004 by way of contravention of rule 30.1.1 of the Professional Conduct and Practice Rules 2005.

1. Alternatively to charge 1, professional misconduct within the meaning of section 4.4.3(1) of the Act namely misconduct at common law.
2. The respondent having pleaded guilty to charge 1 he is found guilty as charged.
3. Charge 2 has been withdrawn and for the sake of completeness, leave is granted to the applicant to withdraw charge 2.
4. The conduct which has given rise to the charge is that on 10 February 2012 the respondent sent by way of fax a communication to the mortgagee over the property 3 Blake Street, Berwick, stating that he acted for Mr & Mrs George and requesting the preparation of a discharge of mortgage. The substance of the charge is that the Legal Services Commissioner alleges that Mr O'Brien had no authority to act on behalf of Mr & Mrs George. This is conceded by way of the plea. The framework within which the charge is brought is that it is constituted by way of a breach of rule 30.1.1 of the Professional Conduct and Practice Rules 2005. That is:

A practitioner must not engage in conduct whether in the course of practice or otherwise which is dishonest.

1. The question is whether the actions of the respondent constitute dishonesty and the Tribunal is satisfied that in being reckless it is possible to characterise his actions as dishonest. The Tribunal has been referred to the case of Fidock v Legal Profession Complaints Committee [2013] WASCA 108. At paragraph [94] of that case, His Honour CJ Martin states as follows:

The observations of Lord Herschell in Derry v Peek were adopted in Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 [113], and in Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262 [2] by Gummow, Hayne and Heydon JJ. In Banditt [2] their Honours said that to sustain an action in deceit, it must be shown that the false representation was made (1) knowingly, (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. But (3) is but an instance of (2), because one who makes a statement under the circumstances in (3) can have no real belief in the truth of what he or she states.

1. Mr O'Brien was acting for the purported Attorney in relation to the transaction or possible transaction and it may be that in making the communication to the mortgagee he was under the impression that in receiving instructions from an attorney he was acting on behalf of the principals, however there were intervening circumstances which give rise to the unlikelihood of that. The actions of Mr O'Brien appear to me to be reckless and sufficiently so to bring them within the purview of dishonest in the sense that he had no basis for believing that the statements he was making were true. A prudent legal practitioner would have, at the very least, made clear enquiries as to the true situation before embarking upon the course of action which Mr O'Brien embarked upon. From that point of view even though Mr O'Brien has pleaded guilty, the Tribunal is satisfied that it is appropriate that this charge be framed as it has been and is found proved.

1. Mr O'Brien has been in practice since 7 April 1993 when he was admitted and he has for a considerable time practiced under the name Lewis O'Brien & Associates as a sole practitioner. He has no previous record of having committed any professional misconduct or unsatisfactory conduct. I am satisfied from the material placed before me that Mr O'Brien has otherwise been a practitioner with an unblemished record and I have no reason to believe that since the events which have given rise to this charge, that his conduct has been other than correct and proper. He is married with four children. He conducts what may be seen as quite a busy practice. I deduce that from the fees that have been stated as being his professional fees and I have before me several character references which attest to Mr O'Brien's good character.
2. It has been submitted on behalf of Mr O'Brien that this constitutes an aberration in what has otherwise been a proper professional career and I accept that as being the situation. In terms of the plea of guilty, it was submitted on behalf of Mr O'Brien that he has pleaded guilty at an early stage and should receive the benefit of that. I do not agree with that. The plea of guilty was not proffered at an early stage and only came about today as a result of some negotiations. However, that is in the overall scheme of things a relatively minor consideration.
3. The objectives which need to be taken into account are personal deterrence, general deterrence, protection of the public and protection of the reputation of the legal profession. In terms of personal deterrence, having regard to Mr O'Brien's good record of practice up until this particular occasion, I consider this to be a relatively minor consideration. I have nothing before me which would suggest that there will be any repetition of this or any other untoward behaviour on Mr O'Brien's part. Similarly in terms of the protection of the public there are two considerations: One is Mr O'Brien's future behaviour and I think I have already addressed that. The other is behaviour by other members of the profession. These come together to be considerations in relation to protection of the public. The behaviour of the profession as a whole is then seen in the light of general deterrence and this is a more significant consideration in relation to this matter as is the consideration of the protection of the reputation of the legal profession.
4. As was submitted, there is a great importance placed upon legal practitioners acting truthfully. That might be seen in the light of both deliberate untruth or reckless untruth but the requirement nevertheless comes back to that of acting truthfully. In this particular instance I am satisfied that Mr O'Brien did not act truthfully but I am also satisfied that this was a reckless incident which has given rise to this. The message needs to be sent to the other members of the profession that there is a need, not only to act truthfully but positively so, to be satisfied of the truth before making statements and that brings us back to the decision to which I referred before and that is, where a statement which is made in circumstances where the maker of the statement can have no real belief in the truth then it is a reckless or careless dishonesty.
5. The Commissioner has submitted that a three month suspension of Mr O'Brien's practising certificate is the appropriate disposition. Counsel on behalf of Mr O'Brien has submitted that a reprimand and a fine is sufficient. I have to say that this matter stands on the cusp of the question of whether Mr O'Brien's practising certificate should be suspended. The purpose of any disposition of this nature is not punishment although it does have a punitive effect, I am satisfied that it is possible to send a strong message to the profession disapproving of such behaviour and in doing so to reassure the public of its right to be protected and to ensure that the reputation of the legal profession is maintained. I find that it is not necessary to impose a term of suspension, however the matter is of sufficiently grave nature to warrant a substantial fine. In addition, I consider it appropriate to order that Mr O'Brien undergo a course in legal ethics in addition to the normal requirements of compulsory professional development and that that be a course that is approved by the Commissioner and that evidence of successful completion be given to the Commissioner.
6. The order of the Tribunal is that the respondent is reprimanded. He is ordered to pay a fine of $25,000 to the Legal Services Board by 24 October 2014. He is to attend and satisfactorily complete a course in legal ethics in addition to training to satisfy CPD requirements. Such course to be approved by the applicant and the respondent is to provide to the applicant evidence of completion. Such course to be completed no later than 31 December 2014.
7. The respondent is to pay to the applicant its costs of these proceedings on County Court Scale, failing agreement to be assessed by the Costs Court.