[3]

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT - where the respondent has engaged in unsatisfactory professional conduct and/or professional misconduct - where the Legal Services Commissioner seeks disciplinary orders against the respondent pursuant to s 456(2) of the Legal Professional Act 2007 (Qld) - where the Commissioner seeks an order recommending the name of the respondent be removed from the local roll - where the respondent seeks orders imposing a pecuniary penalty and conditions on his practising certificate - whether the respondent is a fit and proper person to remain on the local roll - whether the respondent's name should be removed from the local roll

Legal Services Commissioner v Pennisi [2025] QCAT 432 | Case summary | Zoe

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Legal Services Commissioner v Pennisi [2025] QCAT 432

[2025] QCAT 432

Queensland Civil and Administrative Tribunal|2025-11-10

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General information, not legal advice.

At a glance

Source facts

Court

Queensland Civil and Administrative Tribunal

Decision date

2025-11-10

Source

Original judgment source is linked above.

Judgment (259 paragraphs)

[1]

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT - TRUST MONEY - where the Legal Services Commissioner filed a discipline application alleging the respondent disbursed money held on trust in contravention of a court order - where the respondent initially sought to have the discipline application dismissed because he believed he had authority to disburse the trust money - where the respondent now accepts he disbursed money in contravention of a court order and s 249(2) of the Legal Professional Act 2007 (Qld) - where the Commissioner submits the conduct amounts to professional misconduct - where the respondent submits the conduct amounts to unsatisfactory professional conduct in the circumstances of the disbursements - whether the respondent's conduct amounts to professional misconduct or unsatisfactory professional conduct

[2]

PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT - IMPROPER DEALINGS - where the respondent sent a letter to the wife of his client - where the client was subject to a domestic violence order preventing him from communicating with the wife - where the letter was long, contained emotionally manipulative and coercive language - where the respondent knew the letter may amount to a breach of the domestic violence order - where the Legal Services Commissioner alleges that by sending the letter the respondent acted unprofessionally and compromised his integrity and independence - where the Commissioner and respondent agree the conduct amounts to professional misconduct - whether the Tribunal is satisfied the conduct amounts to professional misconduct.

[43]

[14] The significance of giving parties liberty to apply is well known to lawyers. In such an order, the relevant court retains the ability to make further orders or directions related to a matter, even after an initial order or judgment has been made. It allows parties to return to court for clarification, adjustments, or further directions concerning the implementation of the original order, without needing to start entirely new proceedings.
[15] Interposing here, there can be no doubt about the meaning and intent of Judge Egan's orders. Effectively, the husband had a charge on the net proceeds of the sale of the Fir St Property to pay the costs mentioned. The costs were to be met from the wife's share of the proceeds of the sale. Further, the net amount once received into the trust account, intending to be the trust account of V Pennisi & Associates, was to be held pending further order of the Court. As will be seen, there was no such further order.
[16] Returning to the narrative. On 18 July 2018, Judge Egan made further orders in response to an application and its amended version filed by the husband. Mr Pennisi appeared for the wife. Judge Egan dismissed the applications and, so far as relevant, ordered the husband to pay the wife's costs of and incidental to those applications. In contradistinction to his Honour's earlier costs order in favour of the husband, Judge Egan did not order the costs to be paid out of the proceeds of the Fir St Property. The applications said nothing of the orders made of 9 February 2018 or 29 May 2018. The applications are described in the 'List of orders for file' from the Court's portal as 'Dismissed' at a 'Directions Hearing'.[8] Those costs were assessed at $4,589.[9]
[17] On 6 September 2018, his Honour Judge Middleton of the Federal Circuit and Family Court dismissed an application filed by the wife on 3 May 2018. The order has no apparent relevance at this juncture, but, as discussed in [61], it is necessary to return to it.
[18] On 4 December 2018, the Fir St Property sale was settled on a contract price of $500,000, some $70,000 less than assumed in Judge Baumann's orders. As well, there were very significant reductions from the proceeds. It transpired the net proceeds of the sale totalled $250,458.38 and that was paid into the trust account of V Pennisi & Associates ('the trust account'). Thus, the net proceeds were nearly one half of the assumption underlying his Honour's analysis. There are three disbursements worthy of comment:

[44]

(a) $60,000 was paid to Rosen Lawyers' trust account. It is common ground that the amount refers to a debt claimed by the husband's daughter against the husband. Judge Baumann mentioned a 'purported Deed of Compromise' that the husband had entered into with the daughter asserting a debt of $100,000. The husband's counsel 'did not press for the debt to be included in the marital pool of assets and liabilities'. There is no mention in the judgment that the daughter had a caveatable interest in the Fir St Property or that any such amount needed to be brought into account in determining the cash available for distribution to the parties. It is not known to the Tribunal how a claimed monetary debt to the husband resulted in a caveatable interest in jointly owned real estate.

(b) $14,938 was paid to V Pennisi and Associates. This is not to criticise the amount of the fee charged but to note that Mr Pennisi must have been aware that a fee of that size was never anticipated by Judge Baumann. That amount is well above the typical legal fees of a straightforward conveyance of a residence when acting for the vendor, perhaps ten times a typical fee. The wife swore an affidavit in proceedings before the Federal and Family Court that 'great difficulty and costs was experienced in the sale of the home' and that her solicitor, presumably Mr Pennisi, 'negotiated a release of the caveat [lodged by the husband's] daughter at a reduced amount' of the existing debt.[10] Judge Baumann was not aware of that caveat.

(c) $158,372 was paid to the ANZ Bank reflecting presumably the home mortgage and ANZ Business Credit facility expressly dealt with by Judge Baumann. Judge Baumann knew of the existence of the existing mortgage (which he assumed at $70,000) and the existence of the Business Credit facility. His orders were framed to have the mortgage brought into account in determining the net amount available to share between the parties and left it to the husband to meet the Business Credit facility. The total debts were a total of $149,453 at the time of judgment. Whether that increase in indebtedness was due to the husband increasing the mortgage, as Mr Pennisi asserts in his response to the discipline application,[11] or the effluxion of time and increase of interest owed, or for some other reason, is not dealt with by evidence and not known by this Tribunal.

[45]

[19] Several observations should be made. Firstly, the asset pool in fact available was substantially less than the $775,006 that Judge Baumann adopted. The parties had approximately $250,000 less, more than a 30 per cent reduction. Secondly, the depletions were in some cases anticipated but in some plainly not, most obviously the debt of $60,000. Thirdly, there is a real question over whether the legal fees that were owed to Mr Pennisi for work involved in negotiating with a third party's lawyer about a claimed charge on the Fir St Property, which was unknown to Judge Baumann, fell within his Honour's intent when he ordered that the gross proceeds be 'appropriated' by 'legal costs' associated with the sale of the Fir St Property (see [9] above).
[20] Mr Pennisi is not charged in respect of any of his decisions which resulted in the substantial reduction in the net proceeds received into the trust account. However, these unexpected diminutions seem to have impacted on Mr Pennisi's decisions as a trustee, for which he is charged. The husband has not provided any sworn evidence and so the Tribunal does not know what, if any, instructions he provided that led to the substantial alteration to the amount received into the trust account. It seems a reasonable inference that the husband did not agree to what transpired. As will be seen, he has complained bitterly about the end result and about his perception of the way Mr Pennisi dealt with him. What is certain, is that Mr Pennisi at no time took instructions from the husband. Mr Pennisi was of course aware of the acrimony between the husband and wife and the long history of litigation that preceded.
[21] The relevance to the issue here is that any competent solicitor, acting as trustee, should have been seriously concerned about their position. Each of these considerations ought to have caused a competent practitioner to consider seeking clarification from the Court as to how the judgment and orders in place be affected. And a competent practitioner aware of the orders made would appreciate that such clarification could easily be sought under the liberty to apply provision.

[69]

[38] Mr Pennisi's submissions are not merely misconceived but display a level of profound misunderstanding, ignorance of proper practises, and disregard for the judgments and orders of the Court.
[39] The first three propositions in [37] above, (a)-(c), are wrong either in fact or in law. The fourth proposition, (d), is accurate save that the orders made on 18 July 2018 have no impact on the conduct raised in the discipline application. The fifth proposition, (e), regarding Mr Pennisi's views as to who had entitlements is irrelevant, at least to the submitted justification for his conduct, but must be examined more closely. The sixth proposition, (f), does not have the effect claimed, that is, that the dismissal of proceedings supports Mr Pennisi's claims in the fifth proposition, and so is irrelevant.
[40] The first proposition is simply wrong. The wife had no authority, let alone sole authority, to deal with the net proceeds. No argument was advanced by Mr Pennisi to support the bald assertion. The plain effect of the order of Judge Egan of 29 May 2018 is that the monies received into the trust account could not be distributed without an order of the Court. The very order which authorised the monies to be paid into the trust account were made subject to that qualification.[22] Hence, absent an order of the Court authorising disbursement, neither party had authority to deal with the monies in the trust account. As can be seen from the wife's email of 13 September 2018, Mr Pennisi was made aware of the difficulty that Judge Egan's order presented in relation to the wife accessing the proceeds of any sale.
[41] Further, even assuming Judge Egan's order was overlooked, it was self-evident that the monies held in the trust account were for the benefit of both the husband and the wife. When a jointly owned asset is sold and the proceeds placed into trust, the monies so held are held on behalf of both, absent an order or agreement altering that position. That is axiomatic. Here the orders made preserved the husband's entitlement. As mentioned above, Judge Baumann's orders divided the monies from the sale between the two parties. He plainly drew a distinction between the allotting of the proceeds of sale and the division of other property, a distinction identified in the wife's email of 13 September 2018 to Mr Pennisi. Judge Baumann's orders required that $176,248 of the sale proceeds from the Fir St Property be paid to the husband, that is approximately 35.25% of the expected net proceeds. To any lawyer the monies were plainly jointly held even absent the orders of the Court. Incidentally, the effect of Judge Baumann's order was to put the husband in funds from the sale of the Fir St Property and so be available to deal with the debts assigned to his responsibility, an effect ignored by Mr Pennisi.
[42] As to the second proposition, s 249 of the Act does not place a responsibility on Mr Pennisi to pay trust money received from the sale of the Fir St Property to the persons entitled to receive same. The proposition ignores s 249(2). Section 249(2) expressly requires that any disbursement is subject to an order of a court of competent jurisdiction. Judge Egan's orders certainly meet that description and required two restraints: firstly, the costs awarded to the husband, $14,388, be paid from the wife's share of the net proceeds of the sale of the Fir St Property; and secondly, before any disbursement there be a further order of the Court dealing with the disbursement of any proceeds. No lawyer, let alone one of 45 years' experience (as Mr Pennisi then stood), could not but have understood the meaning of these orders. Again, there was no argument advanced to support Mr Pennisi's bald assertion.
[43] No authority is cited to support the third proposition. A solicitor is not entitled to go behind a court order and determine what the rights of parties ought to be and so determine their entitlements. However, this is precisely what Mr Pennisi did by disbursing the trust monies contrary to multiple Court orders. Again, Mr Pennisi ought to have known perfectly well that he was not entitled to do so. This is the fundamental error here.
[44] The three orders mentioned in the fourth proposition subsequent to Judge Baumann's decision have been already detailed. None of the orders have anything to say of any disbursement being permitted from the trust account. Counsel's submissions that the multiplicity of orders is said to be a cause of Mr Pennisi's unsatisfactory professional conduct, as counsel now submits we should characterise Mr Pennisi's conduct, as the orders did not speak to one another, and may have been more clearly spoken. It is of considerable concern that nothing in the terms of the orders or the context should have caused a rational competent practitioner some confusion. At the time of the order of 18 July, when Judge Egan last dealt with the matter, and Mr Pennisi appeared, there were no monies in trust and, at that stage of course, it was not known what amount would eventually be available to be disbursed. Why then the order should have caused any misunderstanding is inexplicable. Judge Egan there dismissed two applications filed on 4 June and 13 July 2018, but nothing is said of authorising disbursements from trust or setting aside his own order that the husband be entitled to his costs from the wife's share.
[45] The fifth proposition again assumes, without citation of authority or argument, that a solicitor is entitled to work out for himself the amount his client might be entitled to - in the very different financial situation dealt with by Judge Baumann - and thereby not consider the Court orders and the express provisions of the Act. To say the proposition is to reject it. Yet Mr Pennisi held that view. Again, his analysis lies at the heart of his conduct and again we will examine it.
[46] The sixth proposition calls on Judge Lapthorn's order made years later on 7 October 2022, to somehow justify Mr Pennisi's conduct. Counsel for Mr Pennisi did not advance the proposition and, of course, he could not. Judge Lapthorn was not asked to examine the appropriateness of Mr Pennisi's disbursements. To the contrary, when his Honour dealt with the issue directly in the contempt proceedings he held, as indeed was obvious, that the Court orders had been ignored.
[47] The order of 7 October 2022 was made by consent and by its terms dismissed 'all outstanding applications'. As mentioned, the husband had brought a claim for damages for conspiracy against Mr Pennisi and the wife. Counsel submits that by then the arithmetic shows, depending on which items are included or excluded, a $6,000 payment one way or a $4,000 payment roughly the other way, and so too small to justify further litigation. These arguments are to revisit the notion that Mr Pennisi was entitled to decide what entitlements the wife should receive.
[48] It is not known whether the notion of the amount in dispute be de minimis, as counsel submits, reflects the husband's thinking and decision to consent to the dismissals, or indeed reflects what the Court would have arrived at. The husband's submissions filed in this application and dated October 2024 makes it plain that he remains outraged by Mr Pennisi's conduct. For present purposes what can be said about the dismissal of the conspiracy proceedings on 7 October 2022, is that no reference was made in the orders that the disbursements that were made in December 2018, January 2019 and March 2019 and contrary to the existing Court orders were thereby authorised. There was also no curial examination of the proposition. Even if Mr Pennisi's claim be accurate, that is, the Court seized with the issues would have taken the same course or authorised those same disbursements as he decided unilaterally to undertake - that would be no excuse for his conduct. But that much is not shown.

[70]

[49] To assay an understanding of Mr Pennisi's approach, and effectively his claim that even if unauthorised, as he now concedes, he arrived at a fair result, it is necessary to set out his reasoning. As mentioned above it was Mr Pennisi's decision to put his own interpretation on Judge Baumann's judgment that lies at the heart of his conduct. In his affidavit sworn on 29 August 2024, Mr Pennisi sets out his reasoning:
1. The application of Judge Bauman's [sic] said order to disbursement entitlement of proceeds of sale provided that [the wife] receive 69.75% of such proceeds, namely $275,797.00.
2. The application of Judge Egan's orders of 8 February 2018 and 29 May 2018 provided that [the wife] pay [the husband] $14,338.00.
3. The application of Judge Egan's order of 18 July 2018 provided that [the husband] pay [the wife] $4,589.00.
4. Accordingly, [the husband] was not entitled to receive any monies from Trust monies received from the proceeds of sale of the property. In fact, there was insufficient monies to pay [the wife's] entitlements by a shortfall of $31,048.00.[23]
[50] There are several criticisms that can be made of this analysis. One is the apparent unfairness to the husband. It is worth observing at the outset that it was the husband, not the wife, who achieved the better result at the trial. He was to receive the major share of the net assets, fixed at 55 per cent. Further, he had the advantage of an order from Judge Egan that he was to receive costs of the trial agreed to be $14,338 from the wife's share of the net proceeds of the sale of Fir St Property, not from the pool of assets. The Fir St Property was easily the most significant asset held jointly. As mentioned, in his analysis of the husband's entitlements, Judge Baumann found that the husband was to receive $176,248 from the proceeds of the sale of Fir St Property (about 35 per cent of the then assumed expected net proceeds). The effect, as we said, was to place him in funds. To arrive at a conclusion that it is the wife who should receive the entire net proceeds of the sale -contrary to Judge Baumann's plain intent - should have caused any practitioner pause in that his thinking might have gone astray, but apparently that did not occur to Mr Pennisi.
[51] The essential criticism, however, is the adoption of assumptions that are not set out in Judge Baumann's orders. To show that Mr Pennisi did so it is necessary to follow the thinking that is behind the allegations in paragraph 11 of his affidavit quoted above.
[52] Judge Baumann did not order that the wife was to receive 69.75 per cent of 'such proceeds of sale'. His Honour made no mention of 69.75 per cent of the proceeds of anything. Nor were the proceeds of sale reflected by the sum of $275,797. To understand where that sum is derived, it is necessary to go to the affidavit of the wife in the contempt proceedings. She swore, presumably with the advice of Mr Pennisi, that the net amount available at settlement was $395,409. That amount was arrived at by adding to the amount received into the trust account of $250,458.38, the $60,000 paid out to the husband's daughter, and $84,950 paid out to the ANZ Bank regarding a business loan. Mr Pennisi then added the $25,000 that was ordered to be paid to the wife, and described by the judge as 'partial property settlement', to the $323,752 Judge Baumann assumed would be paid to the wife from the sale of the Fir St Property. That total was $348,752. He then divided that total by the net proceeds of sale that Judge Baumann assumed of $500,000 and converted it into a percentage ($348,752/$500,000 = 69.75%). That percentage was then applied to $395,409 resulting in $275,797 as being the wife's entitlement. But neither the percentage, nor the net amount available, nor the amounts to be deducted against the husband, reflect anything that Judge Baumann had determined.
[53] To demonstrate the unfairness of Mr Pennisi's approach, is to apply his approach but from the husband's perspective: one takes the 'partial property settlement' the husband was to receive ($25,000), add his share of the assumed sale proceeds ($176,248), and add the costs that Judge Egan had ordered from the wife's share of the sale proceeds ($14,388). The husband was therefore to receive $215,636 divided by the net proceeds of sale that Judge Baumann assumed ($215,636/$500,000) which equals 43.1 per cent. That percentage applied to $395,409 in fact available results in a payment from the trust account to the husband of $170,528.
[54] In interpreting Judge Baumann's order, Mr Pennisi determined - without any direction from the Court - what amounts should be brought into account in reducing the husband's entitlement from the proceeds of sale. We note that the wife did not have an order entitling her to have her costs deducted from the husband's share of the proceeds of sale and that Judge Baumann had:

[99]

[79] Counsel for Mr Pennisi submits that Daubney J dealt collectively with the conduct and so provides no guidance on this particular issue. We disagree. His Honour did deal specifically with the characterisation of this charge and indeed his duty commanded that his Honour do so. Further, the point of distinction the counsel submits is for the worse, not the better. That is, the family law proceedings in Kurschinsky had not reached resolution whereas the proceedings here had resolved. Hence, in Kurschinsky there was 'no basis whatsoever to transfer the money'.[42] To assert that there was no resolution in Kurschinsky, but here there was a decision by Judge Baumann which Mr Pennisi did not follow, somehow justifies his misconduct being looked on in a more benign light, is baffling.
[80] As the Commissioner submits the conduct the subject of charge 5 in Kurschinsky related to a breach of s 249 of the Act, exactly the charge Mr Pennisi faces. The charges involving dishonesty were the subject of separate charges and separately dealt with by Daubney J. Here there is the aggravating circumstance, and an extremely aggravating one, that Mr Pennisi contravened two Court orders.
[81] Conradie involved six unauthorised disbursements from the solicitor's trust account totalling $10,000. The disbursements were made over a period of more than a year. Most involved small if not trifling amounts. The total amount was refunded by the solicitor. The solicitor claimed, to a psychiatrist, that the monies expended by him were expended 'legitimately', although the Tribunal could not conclude whether that was so or not.[43] The focus of the hearing was on the solicitor's mental state, which provided some explanation for his conduct. Nonetheless, there was a finding of professional misconduct.[44]
[82] It is not irrelevant that the monies disbursed by Mr Pennisi were much more substantial than in Conradie. Mr Pennisi made three transfers totalling $250,438 over approximately three months. Counsel for Mr Pennisi submits that in Conradie there was a pattern of behaviour which was not so here. The Hon. Judicial Member P Lyons KC did not mention that aspect as significant in his judgment in Conradie. Counsel submits that there was a single and explained incident here. That is not so. There were three payments at three different times and each involving a failure to obey different orders, including that Mr Pennisi:

[101]

[83] The facts here are, in our judgment, far more serious than in Conradie.
[84] Counsel for Mr Pennisi submits that the facts in Reeve came close to the facts here, where the Tribunal, DG Thomas J presiding, held that the solicitor had been guilty of unsatisfactory professional conduct. The relevant charge was the same, namely - disbursing trust monies contrary to s 249 of the Act. The amount involved in Reeve was $2,337.50 and concerned payment of building work. The purchaser required a contribution from the vendor for building work needed as a condition of settlement. The contribution was paid into trust. The solicitor paid out the monies in trust after settlement but before such work was attended to. The vendor complained. The solicitor's understanding of the basis on which the monies were held on trust came from reports to him of arrangements reached through conversations between agents and not the vendor's solicitor. He thought that after settlement the purchaser was entitled to the monies and paid out the monies held in trust. He contested the charge brought against him. The solicitor pointed out that upon settlement of the transaction the vendor had no interest at all in whether the work was to be performed. Further, plainly the purchaser could, if she wished, sell the property on without attending to the building work and, absent an express agreement which did not exist, retain the monies. The solicitor was of the view that the vendor sought to impose a condition on the purchase monies paid after the power to impose such a condition had passed. Significantly, there was no written agreement for him to check to determine the terms on which the monies were held on trust, or indeed any other means. Many practitioners would consider that absent a clear express agreement the purchaser's position was unassailable. The point however is that a purchaser's rights to the monies is not the same issue as the authority of a trustee to deal with monies in trust.
[85] Justice DG Thomas found that the terms of the trust did not permit payment out at that time. His Honour's reasoning, so far as relevant, is set out at [69]. His Honour considered that the solicitor's conduct fell short of the standard required but not in a substantial or consistent way.[45] In summary, the solicitor failed to understand the terms on which monies were held due to the confused conversations relayed to him by third parties. There was a single event, the conduct explicable, and involved a very modest amount of monies. The facts in Reeve are far from the facts here. What the decision in Reeve demonstrates is the strictness of a solicitor's duty when holding monies on trust.

[113]

[97] Mr Pennisi says that he was retained by the client two days before the Letter was sent. He does not speak of any earlier contact. He was engaged on an urgent basis. What circumstance necessitated the urgency is not explained. Nor is there anything in the letter to suggest any urgency. The arrangement between them, he says, was entered into contrary to his usual practice. His usual practice is to require clients to deposit monies in trust prior to starting work. Here, Mr Pennisi agreed that he proceed without payment until the work was done - 'the letter was complete' - and without any money in trust. No explanation is offered as to why. He says that the client supplied a draft and wanted Mr Pennisi to settle it and send it. The draft is now not available. Mr Pennisi's affidavit reads:
1. [The client] and I met throughout the Saturday and Sunday and discussed the draft letter.
2. We disagreed as to the proposed contents of the letter. Within those two days, there were times where I threatened to cease acting for [the client]. However, [the client] always managed to convince me not to do so.
3. The letter was changed to some extent from the original draft. However, there were some aspects that remained in the letter which I now acknowledge are inappropriate and would have been offensive to [the aggrieved].
4. I understood that [the client] knew [the aggrieved] well. I was informed that she would be receptive to the letter and would not find it offensive. I was too trusting in this regard.
5. The letter includes the statement "it is my own decision as a lawyer to write and send this letter to you". Amongst others, I regret the inclusion of this.[51]
[98] What matters that were the subject of any disagreement, what aspects of the Letter caused him to threaten to cease to act, what changes to the initial draft were made, and what work was done, are not disclosed. As well, what aspects he now finds offensive to the aggrieved, but formerly he did not, are not identified. Nor did Mr Pennisi explain which statements he regretted, other than the one mentioned in paragraph 83 of his affidavit; nor did he explain why he singled out this statement that he regretted including in the Letter. What seems evident is that the inclusion of the statement he regrets was of great importance to the client, and his refusal to do so may have been sufficient to deny his fee.
[99] What is known is that Mr Pennisi charged the client $6,490.00 (including GST) for settling the Letter, which included 13 hours of work and 20 phone calls. It is also known that on the day the Letter was sent to the aggrieved, Mr Pennisi handed to the client a letter in these terms:

[131]

a. at page 2:

",...[the client] is transparent about his desire to reconcile with you."

b. at page 2:

"I also ask you to take a step back, and ask yourself the honest question, what is [the client] trying to achieve with spending all his time, efforts, if it's not to reconcile with you as well as giving [the child] the best possible outcome in having a family together."

c. at page 5:

"[The client] sees and considers that a future with [the child] and you is worth every second, sweat of his heart and soul, as it's a dream future that'll be a lifelong shame to give up on...

d. at page 5:

"[The client] is more in love with you today than when you were a 24 year old.

e. at page 6:

" ...[the client] has realised and experience just how excruciatingly painful and paralysing it is to break or separate true love."

f. at page 6:

"[the client] more than anyone else is ready to grow old together with you.

g. at page 6:

"When you came back to Australia in early 2018, you, [the client] and [the child] spent time together as a new family, you went to Rocks riverside parks together, went swimming at the beach together at Caloundra, Bribe island, Gold Coast.

You and [the client] also did easy simple things like cleaning the Oxley house and moving items to the recycling centre as well as going shopping together like Garden city, Ikea and Rocklea markets.

h. at page 7:

"...what remains constant is [the client's] ending love for you has not changed. Instead of going to look for another partner, [the client's] faithful love for you has not weakened...

i. at page 7:

"[The client] is honest about his desires to reconcile with you.

j. at page 8:

"[The client] has the heart to listen and be the best husband he can be to you...

k. at page 9:

"... as [the client] loves you, [the client] cares about your opinion more than anyone else, and dream of you coming back to him, so why would he want to use anything you say against you, that would go against what [the client] desires which is for you to freely desire to come back to him."

l. at page 9:

"Please remember [the client] desires to reconcile, so the last thing he wants is to upset you so why would he do anything that might upset you."

m. at page 10:

"[The client's] mother also wishes you and [the client] to reconcile for [the child's] sake, so she is happy to join in the time with you, [the child] and [the client] just like in 2018 where the 4 of you went to places like a Bribie Island to have a swim, Jindalee DFO, Southbank and Kangaroo point together and had a great time. The location can be anywhere of your choice, like Teralba park where you and [the client] enjoyed picnics there together in 2018 and had lovely walks around near the soccer fields."

n. at page 12:

"[The client's] mum, sister, and dad all still continues to think positively of you and also hope that one day you and [the client] can get back together again."[60]

[132]

[116] Mr Pennisi's counsel urges that no findings be made about these disputed facts. Counsel submits that Mr Pennisi's acceptance of the charge means that no further enquiry is required. Mr Pennisi disputes that these many statements have the effect contended for, that is, that the Letter is replete with statements that were likely to breach the terms of the protection order. To contend that we are to ignore the effect of these statements is to not examine the facts and not determine how serious the departure from the standards expected has occurred. If there was one such statement in a few words of a phrase in a 13-page letter the case would be very different. The disputed facts, if shown, demonstrate that the conduct in question is of a far more serious nature.
[117] Counsel made no submission why these statements could have any other but that effect contended for. How could he? Every example is precisely within the condition proscribed by the protection order. Every example falls within a 'form of emotionally manipulative, coercive, or abusive language, talk of past/relationship'.
[118] The Commissioner submits that the Letter 'must be considered in its entirety as it is impossible to quantify its impact or the severity of the Respondent's conduct by extracting discrete passages'. That is so. The entire Letter has no other discernible purpose other than to manipulate or coerce the aggrieved, and at times discuss the past of the aggrieved and the client and talk of their relationship for that evident purpose.
[119] Counsel submits that the Tribunal would err in treating the facts here as if the charge was that the Letter that Mr Pennisi had sent in fact breached the terms of the protection order. He is not charged with that. He is charged with a communication that was likely to breach the terms of the protection order. To go so far is to impermissibly go outside the charge and the limitations of the Tribunal's jurisdiction, which is to hear and determine the allegations in the discipline application, and no more than that. So the submission goes, supported by citing Legal Services Commissioner v Madden.[61]
[120] In our view the decision in Madden has no relevance to this issue. Madden concerns the jurisdiction of the Tribunal to determine an allegation not made against the practitioner in relation to the complaint against the legal practitioner, in that case an allegation of dishonesty. Here the allegations in question are directly made by the Commissioner.
[121] Section 453 of the Act provides that:

[152]

[138] Mr Pennisi's disciplinary history is not edifying. In 2002, he faced six charges of professional misconduct, five of which concerned trust account matters and the sixth a failure to maintain reasonable standards of competence and diligence. On each charge he was found to have been guilty of professional misconduct. He was fined $10,000, directed to complete the next trust accounts module, and required to periodically report to the Queensland Law Society for the following three years. He was suspended from practice for a period of 12 months, but that suspension was not to become operative unless he defaulted in the performance of terms of the orders. He did not default.
[139] In 2007, Mr Pennisi faced three charges arising from the operation of his trust account. The breaches were seen as minor and primarily the fault of others. A finding of unsatisfactory professional conduct was made. He was publicly reprimanded and ordered to pay a $1,500 fine.
[140] In 2017, Mr Pennisi faced three charges: acting contrary to instructions, failing to act with competence and diligence, and failing to provide documents on request. The Tribunal found that his conduct amounted to unsatisfactory professional conduct, he was publicly reprimanded and ordered to pay a fine of $1,000.
[141] In 2023, Mr Pennisi faced two charges, one of which was dismissed. The other involved undue delay in advising executors of certain matters and so delaying the finalisation of an estate by six years. He was publicly reprimanded and ordered to pay a fine of $5,000.
[142] In his affidavit in the proceedings involving the Letter, Mr Pennisi swears that he had been the respondent in three disciplinary matters and received fines in each. He overlooked one proceeding. He did recognise that he had made errors, and went on to say that the conduct was 'quite different to this current matter'.[79] That is true so far as the Letter issue is concerned, but nonetheless relevant in a more general sense. However, some of these previous proceedings are potentially very much relevant to the trust account issue and we will look at those more closely.
[143] The six charges in 2002 were determined by the Solicitors Complaints Tribunal.[80] In their reasons the Tribunal referred to Mr Pennisi having been warned of similar conduct in 1995:

[159]

[150] We turn then to the issue of sanction in respect of the trust account issue. The Commissioner submits that the proper sanction is to make an order recommending that Mr Pennisi's name be removed from the local roll.
[151] Mr Pennisi submits that he be subjected to a public reprimand and that a pecuniary penalty of $10,000 be imposed. His counsel submits that Mr Pennisi is no longer a partner of a law firm or has any authority to operate a trust account. Mr Pennisi is willing to undertake to cease to practise by 30 June 2027 and accept the imposition of appropriate supervision conditions for the intervening period.
[152] We do not accept those latter submissions. We proceed on the common submission that Mr Pennisi believed that he was entitled to disburse the monies as he did, such a belief can only be explained by an ongoing level of incompetence and ignorance that is unacceptable. The misconduct in question shows a very serious level of incompetence. See the analysis at [38] - [45] above.
[153] We are entitled, and indeed required, to bring into account post conduct behaviour. Practitioners usually point out rehabilitative conduct after the misconduct charged to give the Tribunal some confidence that some alternative to the recommendation of removal of the practitioner's name from the roll will be effective to protect the public and the standing of the profession. What has transpired has been to the opposite effect. Here, what has occurred provides not the slightest confidence that Mr Pennisi has learnt, or can learn, from his errors.
[154] The chronology set out above at [37] is to show that Mr Pennisi's thinking and understanding were not only in 2018 and early 2019 when he determined to disburse monies from trust but that he persisted in this thinking and understanding after time for reflection and the opportunity for close study of the various judgments and orders. Such reflection and consideration was, of course, required from the outset and before disbursing monies from the trust account, but Mr Pennisi's thinking continued despite the judgment of Judge Lapthorn in the contempt proceedings in 2022 and his Honour's trenchant criticism of the disbursements contrary to the orders of the Court, after receipt of discipline application from the Commissioner in November 2023 detailing his misconduct, after receipt of her submissions in November 2024, and when making his response in December 2024. He apparently held these views until two months or so ago.
[155] To persist in the face of these matters on legal propositions that were completely untenable provides strong ground for a finding of Mr Pennisi's unsuitability.[85] Justice DG Thomas in Legal Services Commissioner v Jensen stated:

[162]

[156] It seems Mr Pennisi could not see why he was criticised until he received advice from others more familiar with their duties as a trustee and more knowledgeable as to the effect of such orders imposed by the Court. Counsel offered no submissions on how this continued understanding up and until the eve of the hearing could be consistent with Mr Pennisi's fitness to remain on the roll.
[157] As well we must bring into account his conduct regarding the Letter issue. Mr Pennisi has admittedly been guilty of professional misconduct again. And there are some common features. In both cases the effect of his conduct was to bring about a result quite contrary to the intended effect of orders made involving or against his client. In each case he maintained initially that he had acted properly. He demonstrated no significant insight into the gravity of his misconduct in either case. And he seemed unconcerned with the effect of his actions on the person affected by his misdeeds in each case, or at least until advised by solicitors retained to protect his position.
[158] We have detailed his personal antecedents. There is nothing in his personal life that could justify or explain his misconduct. We are aware that Mr Pennisi was undergoing chemotherapy in November 2018, and the first of the payments was on 7 December 2018. Mr Pennisi does not assert that his understanding of his decisions was affected. To the contrary Mr Pennisi made two further payments from the trust account months later and maintained that his conduct was appropriate years later. As well, his disciplinary history does not inspire confidence.
[159] While not advanced by either party we have considered and rejected the sanction of a suspension for a period. In A-G & Minister for Justice Qld v Priddle,[88] in dismissing an Attorney-General appeal seeking that the practitioner be struck off the roll rather than be suspended as the Tribunal had determined, McMurdo P (Williams JA and Mackenzie J agreeing), held the Tribunal was entitled to conclude in all the circumstances that suspension was the appropriate penalty. Her Honour noted that:

[176]

[176] As the Commissioner contends Mr Pennisi's conduct here is not really comparable to the conduct that is the subject of any decisions that have gone before. There have been many decisions concerning correspondence directed at others that amounted to professional misconduct or unsatisfactory professional conduct. Cases include Legal Services Commissioner v Winning,[105] Legal Services Commissioner v Cooper,[106] and Legal Services Commissioner v Orchard.[107] Legal Services Commissioner v SYG[108] is a more serious case but still does not approach the circumstances here. There the practitioner sent seven letters to various persons, including senior government officials. Those letters included emotional language, unsubstantiated personal opinion, went beyond legitimate advocacy, and were primarily designed to embarrass or frustrate other persons. The letters, as is here, included lack of judgment in the allegations made and the unprofessional language and tone used. The practitioner's conduct was found to constitute professional misconduct.
[177] Legal Services Commissioner v Kirin[109] involved similar correspondence but in the domestic violence proceedings and directed to the solicitor acting for the client, not to the client herself. Legal Services Commissioner v PRF[110] too involved correspondence in the domestic violence proceedings. The respondent is alleged to have failed to maintain reasonable standards of competence and diligence by disclosing material to 20 recipients, contrary to s 159 of the DFVP Act and s 121(1) of the Family Law Act 1975 (Cth). There were significant mitigating circumstances not present here. Both cases resulted in a finding of unsatisfactory professional conduct.
[178] The distinguishing feature here is that the Letter was sent despite the plain terms of a Court order prohibiting communication of this type to this person.
[179] As to Mr Pennisi's explanation for his behaviour we have difficulty accepting any truth to it. Mr Pennisi's claim to have found the client 'charismatic, charming, and persuasive' sits very uncomfortably with his actions. So does his claim that his good judgment was overcome by financial stress, very little of which was in fact disclosed. While so impressed by the charm of the client, and so overcome by financial stress, Mr Pennisi handed to the client a letter demanding an indemnity on the same day as the sending of the Letter, and we repeat, in these terms:

[180]

[183] None of our observations are conclusive. Whether author or merely forwarder, Mr Pennisi is responsible for both the contents of the Letter and for sending it to the aggrieved. At any point along that spectrum, Mr Pennisi's conduct was dishonourable and disgraceful. He has brought shame on the profession.
[184] Incidentally, Mr Pennisi's remark mentioned immediately above in [181(c)], and previously at [97], demonstrates that he yet fails to understand his position. He had no right to send a letter on behalf of the client to the aggrieved unless he acted in the course of the proceedings involving the protection order, typically to advise of an intention to seek a variation of the order, or if he communicated through 'an agreed communication platform namely "Talking Parents'" on any permitted subject as limited in the prohibition order. Mr Pennisi disclaimed holding any instruction to seek to vary the prohibition order and he did not so communicate through the agreed platform, nor did he avoid any prohibited topic.[111]
[185] We agree with the Commissioner's submission that Mr Pennisi's culpability was not in any way mitigated by the matters raised in his affidavit. His letter demanding indemnity to the client and his initial response to the complaint to the Commissioner causes us to treat with some scepticism the impact of the matters referred to in his affidavits. It is trite to observe that most in our community, and in our profession, cope with marital problems, financial pressures and ill health, yet behave ethically and competently, behaviour that should be second nature to a member of an honourable profession.
[186] We have mentioned above at [157] the common features of this case and that involving the trust account issue.
[187] Counsel submits that the various measures Mr Pennisi has put in place to restrict his ability to practise independently, set out in his affidavit of 15 July 2025, provide ample protection for the public particularly as Mr Pennisi proposes to retire on or before 30 June 2027. As the decision in Shand demonstrates_,_ where the practitioner had no intention of again practising, a willingness to restrict one's practice as Mr Pennisi has undertaken does not address the wider and important factors of protection and general deterrence.
[188] His conduct in respect of this charge marks Mr Pennisi as one failing to have the personal integrity necessary to discharge the duties of a legal practitioner. To permit his name to remain on the roll would be to endorse him as a fit person to be on the roll. That would mislead the public.
[189] General as well as personal deterrence is also relevant. We share the aggrieved's astonishment that an experienced practitioner would write such a letter. But we know that at least two other practitioners have sent such letters. Whether they were charmed by a charismatic client, as Mr Pennisi's counsel submits, into grossly unethical conduct, or by more prosaic influences we cannot say. In either case, the public are entitled to protection more generally from practitioners so minded.
[190] We recommend that his name be removed from the local roll.

Legal Services Commissioner v Pennisi [2025] QCAT 432

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