Victorian Legal Services Commissioner v Burrows (Legal Practice) [2024] VCAT 481

(a) on or about 15 June 2018, knowingly created, or directed an Australian legal practitioner under her supervision to create, a false document, being a loan agreement bearing the date 26 October 2017; and

(b) on 15 June 2018, knowingly directed an Australian legal practitioner under her supervision to send an email to the State Revenue Office containing false and misleading information accompanied by a false document, being a loan agreement bearing the date 26 October 2017,

with the intention of misleading the State Revenue Office and, in doing so, acting dishonestly, which is conduct of a lawyer occurring in connection with the practice of law that would justify a finding that the Respondent was not a fit and proper person to engage in legal practice and constitutes professional misconduct, within the meaning of section 297(1)(b) of the Legal Profession Uniform Law (Victoria).

1. In letters dated 12 May 2022 and 13 July 2022, the Respondent recklessly provided false and misleading information to the Applicant in response to requests for information made pursuant to section 371(1) of the Legal Profession Uniform Law (Victoria), by letters dated 5 April 2022 and 30 June 2022 respectively, which is conduct of a lawyer occurring in connection with the practice of law that would justify a finding that the Respondent was not a fit and proper person to engage in legal practice and constitutes professional misconduct, within the meaning of section 297(1) of the Legal Profession Uniform Law (Victoria).

1. The Respondent breached rule 7.1 of the Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 by failing to provide her client with advice, or any adequate advice, on or around 11 October 2017, as to:

(a) the eligibility requirements that her client was required to meet to obtain a stamp duty concession or exemption from the SRO; and

(b) the risk that her client would not obtain a stamp duty concession or exemption, which is conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer and constitutes unsatisfactory professional conduct, within the meaning of section 296 of the Legal Profession Uniform Law (Victoria).

1. The Respondent acted for both vendor and purchaser in respect of the sale of property and lender and borrower in respect of a loan agreement, but failed, on or around 27 July 2017, to:

(a) advise each of them as to the potential for a conflict of the duties to act in the best interests of each of them; and

(b) obtain the informed consent to act for each of them contrary to Rule 11.3.2 of the Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015, which is conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer and constitutes unsatisfactory professional conduct, within the meaning of section 296 of the Legal Profession Uniform Law (Victoria).

1. Leave is granted for the Applicant to amend the application in accordance with the Further Amended Application, dated 8 May 2024.
2. Pursuant to sections 299(1)(b) and 302(1) of the Legal Profession Uniform Law (Vic), the Respondent is reprimanded.
3. Pursuant to section 302(1)(h) of the Legal Profession Uniform Law (Vic), the Respondent's Australian practising certificate is cancelled from 29 May 2024.
4. Pursuant to section 302(1)(i) of the Legal Profession Uniform Law (Vic) an Australian practising certificate not be granted to the Respondent before the end of two years from the date the Respondent's practising certificate is cancelled.
5. Pursuant to sections 299(1)(e)(i) and 302(1)(a) of the Legal Profession Uniform Law (Vic), the Respondent is to complete two (2) extra continuing professional development ('CPD') points in the field of Ethics and Professional Responsibility and one (1) extra CPD point in the field of Substantive Law (namely, conflicts of interest), in addition to any mandatory professional development requirements, in the twelve months immediately preceding any application for a practising certificate following the two year period referred to in order 4.
6. The request for compensation by Ms Angela Cuskrin under section 307 of the Legal Profession Uniform Law (Vic) is adjourned to a date to be fixed.
7. Pursuant to section 303(1) of the Legal Profession Uniform Law (Vic), the Respondent pay the Applicant's costs of these proceedings fixed in the sum of $20,000.

Mr D Bruno of Counsel instructed by Ms K Anderton, solicitor, Victorian Legal Services Commissioner.

Dr M Sharpe of Counsel instructed by Ms C Dew, solicitor, Moray & Agnew Lawyers, and in person.

1. This is a disciplinary application by the Victorian Legal Services Commissioner ('the applicant' or 'the VLSC') against Ms Kristy Burrows, a solicitor ('Ms Burrows' or 'the respondent'). The VLSC has brought six charges under section 300 of Schedule 1 of the Legal Profession Uniform Law Application Act 2014 (Vic), also known as the Legal Profession Uniform Law (Victoria) ('the Uniform Law'). The charges, in summary, allege that Ms Burrows knowingly created or directed a junior lawyer under her supervision to create a false document, knowingly directed a junior lawyer under her supervision to send false and misleading information and a false document to the State Revenue Office ('the SRO'), recklessly provided false and misleading information to the VLSC, failed to provide advice or adequate advice to a client regarding stamp duty exemptions and concessions available for first home buyers and acted for both parties in a sale of real estate transaction and a related loan agreement, without advising the parties about the conflict and obtaining their informed consent.
2. Ms Burrows has admitted the conduct described in the four charges. Two further charges have been withdrawn.
3. The parties made joint submissions to the Tribunal as to the findings of fact, the characterisation of the conduct and the appropriate determination. Upon consideration of the evidence and the oral and written submissions of the parties, the Tribunal has decided to accept this agreed position. The Tribunal will therefore make the determination as jointly proposed by the parties.

1. On 30 June 2023, the VLSC filed an application for orders against the respondent in respect of six charges ('the application').
2. On 28 March 2024, the parties filed a joint Tribunal Book ('the Tribunal Book') containing the evidence on which they proposed to rely. The Tribunal Book included a Statement of Agreed Facts, Findings and Determinations ('the SAFFD'), and written submissions from each party.
3. This matter came on for hearing before me on 8 May 2024. The Tribunal granted leave for the Applicant to amend the application in accordance with the further amended application, dated 8 May 2024 ('the FA Application'). On the day of the hearing, Ms Burrows' lawyers and the complainant, Ms Angela Cuskrin, engaged in discussions regarding Ms Cuskrin's request for compensation pursuant to section 307 of the Uniform Law. It was indicated to the Tribunal that this matter had been resolved by agreement and the Tribunal adjourned this aspect of the proceeding to allow the parties to execute the agreement.
4. The parties relied upon the contents of the Tribunal Book and the documents attached to the application. Ms Burrows did not give evidence.
5. The parties made oral submissions. The Tribunal reserved its decision.
6. The following are my reasons.

1. Ms Burrows was admitted to legal practice on 14 February 2006. On 1 September 2015, she commenced her own practice, Yarra Ranges Lawyers.
2. On about 27 July 2017, Ms Burrows received instructions from Mrs Rich and her daughter, Ms Cuskrin, to act for each of them in a real estate transaction. The engagement involved Ms Burrows drafting the documents for the sale of the property by Mrs Rich to Ms Cuskrin, drafting a related loan agreement between Mrs Rich and Ms Cuskrin and to undertake the subsequent conveyance of the property from Mrs Rich to Ms Cuskrin.
3. On 18 October 2017, Mrs Rich and Ms Cuskrin signed and executed a loan agreement drafted by or at the direction of Ms Burrows ('the 18 October Loan Agreement'). The 18 October Loan Agreement, included a term that the loan amount was $300,000.00. There was no term of the 18 October Loan Agreement requiring the loan to be repaid in instalments.
4. On 18 November 2017, Mrs Rich and Ms Cuskrin signed and executed a contract of sale for the subject property drafted by or at the direction of Ms Burrows. The contract purchase price was $600,000.00.
5. On about 16 December 2017, the SRO informed Ms Burrows that since the proposed sale was a related party transaction, Ms Cuskrin would need to supply proof of payment of the purchase price for the first home buyer concession/exemption to be granted in relation to the stamp duty on the purchase.
6. On 10 January 2018, Ms Burrows advised Ms Cuskrin by email that because she was a first home buyer and purchasing from a related party, the SRO required proof of payment of the purchase price, her lender had refused to extend the loan to cover the stamp duty and that Ms Cuskrin would need to pay the full amount of the stamp duty and seek a refund after settlement from the SRO.
7. On 15 January 2018, Ms Cuskrin paid the stamp duty. On 29 January 2018, the settlement of the sale of the subject property took place.
8. On about 27 March 2018, Ms Burrows submitted Ms Cuskrin's application for a stamp duty refund to the SRO.
9. At 10:43am on 15 June 2018, the SRO emailed Ms Burrows to advise that the stamp duty refund application had been denied. The stated reason was that the property's market value was $600,000, and the SRO had only been provided with proof of payment of the amount of $291,462, obtained by bank loan. The loan agreement between Mrs Rich and Ms Cuskrin could not be considered as part of the consideration for the purchase, as it did not include a repayment schedule for the loan.
10. At 1.08 pm on 15 June 2018, Ms T,[1] a junior solicitor under the supervision of Ms Burrows sent an email to the SRO, which stated that subsequent to the 18 October 2017 Loan Agreement, the lender had required that the loan agreement make reference to repayments and subsequently a later loan agreement was signed by the parties. The email attached a loan agreement purportedly dated 26 October 2017 ('the 26 October Loan Agreement').
11. Ms Burrows subsequently lodged an objection to the SRO decision to reject the stamp duty refund application.
12. On 17 September 2018, the SRO sought bank statements of Mrs Rich and Ms Cuskrin to indicate that monthly repayment had been made in accordance with the 26 October 2017 Loan Agreement.
13. On 3 October 2018, the SRO wrote to Ms Burrows to advise that the Commissioner of the SRO had disallowed the objection. The reason for the SRO's disallowance was that the $300,000.00 purportedly loaned under the 26 October Loan Agreement, could not be regarded as consideration for the transfer as Ms Cuskrin had not made any repayments on the loan prior to 26 September 2018 and Mrs Rich had not registered a mortgage or caveat over the property in accordance with the 26 October Loan Agreement. The SRO did not consider Ms Cuskrin a bona fide purchaser of the subject property for adequate consideration and therefore she was not eligible for the first home buyer stamp duty exemption or the principal place of residence concession.
14. On about 9 November 2018, Ms Cuskrin made a complaint to the VLSC regarding the advice she received from Ms Burrows about eligibility for a stamp duty concession and also about the creation of the 26 October Loan Agreement without Ms Cuskrin's instructions.
15. On 12 May 2022, in response to a request for information from Ms Burrows, her solicitors by letter to the VLSC ('the 12 May 2022 letter'), stated that Ms Burrows recalled discussing with an officer of the bank lender as to any requirements the lender had with the terms of the loan between Mrs Rich and Ms Cuskrin. However, Ms Burrows could not recall the details of the conversation. The letter also stated that Ms Burrows believed that any direction given to Ms T in relation to the email of 15 June 2018 to the SRO would have had regard to her conversation with the bank officer.
16. On 13 July 2022, in response to a request for information from Ms Burrows, her solicitors by letter to the VLSC ('the 13 July 2022 letter') stated that Ms Burrows would not have directed Ms T to make false assertions to the SRO and Ms Burrows does not specifically recall instructing Ms T to make the statement in the email, that the lender required the loan agreement to include reference to repayments and a subsequent loan agreement was signed. The 13 July 2022 letter also stated that Ms Burrows usual practice was to review draft correspondence prepared by Ms T and that any direction to Ms T would have had regard to Ms Burrows' conversation with the bank officer.

1. In the circumstances where serious allegations are made against a party including falsifying a document or fraud, the Briginshaw standard applies to the state of satisfaction required in making adverse findings regarding these allegations. In Briginshaw v Briginshaw (1938) CLR 336 at 362, Dixon J discussed the principle as follows:

The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

1. The principle goes to the clarity and quality of the evidence and would require excluding or giving little weight to hearsay evidence, conclusions of fact and opinion without basis, as they are inexact proofs, indefinite testimony and/or indirect inferences. The evidence of the allegations is considered in light of this principle.

1. Section 300 of the Uniform Law, relevantly, provides that the VLSC may commence disciplinary proceedings against a practitioner in the Tribunal if the VLSC was of the opinion that (a) the alleged conduct may amount to unsatisfactory professional conduct that would be more appropriately dealt with by the Tribunal; or (b) the alleged conduct may amount to professional misconduct.
2. Sections 299 and 302 of the Uniform Law, relevantly, provides for the orders that the Tribunal can make in disciplinary proceedings. The orders include, placing a condition on the lawyer's practising certificate, that the lawyer's practising certificate be suspended for a specified period or cancelled, that a practising certificate not be granted to a lawyer for a specified period or that a compensation order be made.
3. Section 303 of the Uniform Law requires that if the Tribunal finds a lawyer guilty of unsatisfactory professional conduct or professional misconduct, it must make an order for the lawyer to pay costs, unless the Tribunal is satisfied that exceptional circumstances exist.
4. Section 296 of the Uniform Law provides that unsatisfactory professional conduct includes:

Conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.

1. Section 297 of the Uniform Law provides that professional misconduct includes:

(a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.

1. The Tribunal will consider the conduct alleged under each charge and the particulars to that charge.

Charge 1 - The false document and the email to the SRO

1. Charge 1 in the further amended application for orders, is as follows:

The Respondent:

(a) on or about 15 June 2018, knowingly created, or directed an Australian legal practitioner under her supervision to create a false document, being the 26 October Loan Agreement; and

(b) on 15 June 2018, knowingly directed an Australian legal practitioner under her supervision to send an email to the SRO containing false and misleading information accompanied by a false document, being the 26 October Loan Agreement,

with the intention of misleading the SRO and, in doing so, acting dishonestly, which is conduct of a lawyer occurring in connection with the practice of law that would, if established, justify a finding that the Respondent is not a fit and proper person to engage in legal practice and constitutes professional misconduct, within the meaning of section 297(1)(b) of the Uniform Law.

1. The particulars of paragraph (a) of Charge 1 of the FA Application are at [37(a)], [38], [39], [41] [43] and [45] of the allegations of fact in the FA Application. The particulars of paragraph (b) of the charge are at [35], [36], [37(b)], [37(c)], [38] to [40], [42], [44] and [45] of the allegations of fact in the FA Application.
2. In the SAFFD, Ms Burrows indicates that she pleads guilty to Charge 1. The Tribunal notes in particular, the admissions of Ms Burrows in the SAFFD at [39] to [43] as follows:

1. The terms of the 26 October Loan Agreement differed materially from the 18 October Loan Agreement in that it required Ms Cuskrin to make repayments to Mrs Rich by way of monthly instalments of $3,125. 2. Neither Ms Cuskrin or Mrs Rich provided the Respondent or the Law Practice with instructions to create the 26 October Loan Agreement or send the SRO Email with the 26 October Loan Agreement attached. 3. The 26 October Loan Agreement was created by the Respondent by:

(a) amending the electronic version of the 18 October Loan Agreement; > > (b) printing the amended version of the 18 October Loan Agreement; > > (c) replacing the unsigned pages of the printed amended version of the loan agreement with the signed pages from the 18 October Loan Agreement; and > > (d) writing the date '26 October 2017' by hand on the front page of the printed amended loan agreement.

41. The 26 October Loan Agreement was a false document.

1. The SRO Email contained false and misleading information because, contrary to what was conveyed in the email:

(a) the 26 October Loan Agreement was created on or around 15 June 2018, which was after settlement occurred on 29 January 2018 (when the CBA's involvement ceased); and

(b) the 26 October Loan Agreement was not created because of any concerns raised by the CBA about the 18 October Loan Agreement.

43. The Respondent engaged in the conduct referred above to:

(a) mislead the SRO into the belief that the 26 October Loan Agreement was a genuine loan agreement which replaced the 18 October Loan Agreement, to address the reasons the SRO rejected the stamp duty refund application; and

(b) induce the SRO into making a different decision, namely that Ms Cuskrin be provided with a refund of the stamp duty that she had previously paid to the SRO.

1. On the basis of the admissions in the SAFFD and the documents contained in the Tribunal Book and attached to the application, the Tribunal is comfortably satisfied that Ms Burrows has engaged in the conduct alleged in Charge 1 of the FA Application for orders. The conduct proven for Charge 1 is that on about 15 June 2018, Ms Burrows knowingly created, or directed a junior lawyer under her supervision, to create a false loan agreement and also on 15 June 2018, Ms Burrows knowingly directed a junior lawyer under her supervision to send an email to the SRO containing false and misleading information and attaching the false loan agreement.
2. In relation to characterisation of the proven conduct under Charge 1, the VLSC submitted that in this case there were a number of matters to be considered in assessing the seriousness of the conduct, being:
   1. Charge 1 involves the dishonest creation of the 26 October Loan Agreement on about 15 June 2018. This document was a false document. Charge 1 also involves the dishonest use of the 26 October Loan Agreement by directing Ms T to send the SRO email on 15 June 2018, which contained false and misleading information and attached the false 26 October Loan Agreement;
   2. Ms Burrows admits that she engaged in the conduct under Charge 1, with the intention of misleading the SRO into the belief that the 26 October Loan Agreement was a genuine loan agreement. The email of 15 June 2018 sought to convey that the 26 October Loan Agreement was genuine and existed at the time of lodging the refund application, when it was dishonestly created on 15 June 2018;
   3. The conduct was intended to obtain a benefit for Ms Burrows' client to which the client was not entitled. The conduct was to mask an error in the advice given by Ms Burrows;
   4. Ms Burrows' conduct is extremely serious and represents a shocking departure from the professional obligations of legal practitioners. A failure to act with complete candour, honesty and integrity 'strikes at the very core of the profession and of the standing of the profession in the eyes of the public';[2]
   5. Misleading others in the course of practice undermines the foundations of trust that the community must have in legal practitioners; and
   6. The conduct under Charge 1 breaches Ms Burrows' obligation under the Legal Profession Law Australian Solicitors' Conduct Rules 2015 ('the Conduct Rules') to act honestly in the course of legal practice,[3] not to engage in conduct which demonstrates that the solicitor is not a fit and proper person to practise law and which is likely to a material degree to be prejudicial to, or diminish the public confidence in the administration of justice or bring the profession into disrepute.[4]
3. Counsel for Ms Burrows submitted that the relevant features of the conduct included:
   1. The nature of the conduct is serious;
   2. The false document was created to mask an error in the advice given. Ms Burrows understood that the client was seeking the stamp duty exemption and there was an intention for the loan from mother to daughter to include monthly loan repayments. Ms Burrows believed she was acting within the scope of her instructions. She now acknowledges she should not have tried to hide her mistake; and
   3. Ms Burrows did not receive any personal financial benefit from the conduct. She sought to act in the best interests of the client in seeking to obtain the stamp duty concession. When the application for exemption was rejected by the SRO, Ms Burrows ought to have not sought to avoid embarrassment or the client's anger, by informing the client immediately of the rejection instead of engaging in dishonest conduct.
4. The Tribunal considers the proven conduct to be serious, particularly in the circumstances where Ms Burrows deliberately created, or caused to be created, a false document, which involved the creation of additional contract terms and the transfer of clients' signatures from the legitimate loan agreement to the false one. Ms Burrows also had included on the document a false date of signing of 26 October 2017, which backdated the document to prior to the purchase of the subject property by Ms Coskrin. Ms Burrows was seeking to mislead the SRO into making a refund of stamp duty to Ms Cuskrin, to which Ms Cuskrin was not entitled.
5. The conduct was in breach of Ms Burrows' obligations as a lawyer under the Conduct Rules, including the obligation to act honestly in the course of legal practice and not to engage in conduct which demonstrates that the solicitor was not a fit and proper person to practise law and which is likely to a material degree to bring the profession into disrepute.
6. The Tribunal is comfortably satisfied that the proven conduct under Charge 1 is conduct that involves a substantial failure to maintain a reasonable standard of competence and diligence and is conduct that would justify a finding that Ms Burrows was not a fit and proper person to engage in legal practice. The Tribunal is comfortably satisfied that the proven conduct under Charge 1, constitutes professional misconduct, within the meaning of section 297(1)(b) of the Uniform Law.

Charge 4 - providing false and misleading information to the VLSC

In letters dated 12 May 2022 and 13 July 2022 the Respondent recklessly provided false and misleading information to the Applicant in response to requests for information made pursuant to section 371(1) of the Uniform Law, by letters dated 5 April 2022 and 30 June 2022 respectively, which is conduct of a lawyer occurring in connection with the practice of law that would, if established, justify a finding that the Respondent is not a fit and proper person to engage in legal practice and constitutes professional misconduct, within the meaning of section 297(1) of the Uniform Law.

1. The particulars of the charges are at [58] to [61], and [62] to [65] of the allegations of fact in the FA Application.
2. In the SAFFD, Ms Burrows indicates that she pleads guilty to Charge 4. The Tribunal notes in particular, the admissions of Ms Burrows in the SAFFD that the letters dated 12 May 2022 and 13 July 2022, from her solicitors to the VLSC, each contained false and misleading statements. The SAFFD states that these were false and misleading statements, as there was no evidence of any conversation between the lender and Ms Burrows as to the lender's requirements for Mrs Rich's loan to Ms Cuskrin, the direction Ms Burrows gave to Ms T was dishonest and Ms Burrows was reckless as to the truth of the matters asserted in the letter.[5]
3. Section 371 of the Uniform Law relevantly provides that a lawyer served with a notice to provide written information to an investigator must comply with the notice.
4. As Ms Burrows has admitted that the 26 October Loan Agreement was created on 15 June 2018 to dishonestly mislead the SRO into granting the stamp duty concession, the statements in the 12 May 2022 letter and 13 July 2022 letter, that the 26 October loan agreement was created in response to concerns by the bank lender, were false. The statements in the letter that any direction she gave Ms T about the email to the SRO on 15 June 2018 was with regard to Ms Burrows conversation with the lender, was also dishonest as the 26 October Loan Agreement was created on 15 June 2018 to mislead the SRO and was not due to any concerns of the bank lender.
5. On the basis of the SAFFD, the documents contained in the Tribunal Book and the documents attached to the application, the Tribunal is comfortably satisfied that Ms Burrows has engaged in the conduct alleged in Charge 4 of the further amended application for orders. The Tribunal finds that the conduct proven for Charge 4 is that Ms Burrows recklessly provided false and misleading information to the VLSC in response to requests for information under section 371 of the Uniform Law.
6. In relation to the characterisation of the proven conduct under Charge 4, the VLSC submitted that:
   1. The statements made by Ms Burrows in the letters dated 12 May 2022 and 13 July 2022 were false and misleading. Ms Burrows ought to have properly and fully explained her role in the statements made in the SRO email of 15 June 2018 when she responded to the VLSC's requests for information;
   2. The VLSC accepts that Ms Burrows was reckless when responding to the VLSC's request for information some years after the conduct in Charge 1. Recklessness encompasses making a statement not caring whether it be true of false; without an honest belief as to its truth; or an indifference to, or disregard of, whether the statement was true or false;
   3. The conduct under Charge 4 calls into question Ms Burrows' fitness to practice law. Ms Burrows failed in her duty of candour in the letters of 12 May 2022 and 13 July 2022. The conduct occurred whilst Ms Burrows was under legal compulsion to respond to two statutory requests for information;
   4. Ms Burrows engaged in the conduct on 12 May 2022 and then repeated the conduct two months later on 13 July 2022; and
   5. Ms Burrows' conduct relates to fitness to practice as it raises concerns as to whether she is able to meet the inherent requirements of practice, which include the ability to perform the day-to-day tasks associated with providing legal services, such as cooperating with the VLSC and the obligation to obey the law.
7. Counsel for Ms Burrows submitted that the relevant features of the conduct included:
   1. The conduct was serious;
   2. The false and misleading information was recklessly provided to the VLSC in circumstances where a significant period had elapsed between Ms Burrows' dealings with the bank lender and when the VLSC made the request for information and further that Ms Burrows had not kept file notes of all her dealing with the bank lender; and
   3. Ms Burrows provided the false information recklessly, however she did not deliberately provide false information to the VLSC.
8. The Tribunal considers the proven conduct to be serious, particularly in the circumstances where Ms Burrow recklessly provided false and misleading information to the regulator in response to a statutory notice to provide information. The conduct occurred on two occasions over a period of two months.
9. The Tribunal is comfortably satisfied that the proven conduct under Charge 4 is conduct that involves a substantial failure to maintain a reasonable standard of competence and diligence and is conduct that would justify a finding that Ms Burrows was not a fit and proper person to engage in legal practice. The Tribunal is comfortably satisfied that the proven conduct under Charge 4 constitutes professional misconduct within the meaning of section 297(1)(b) of the Uniform Law.

Charge 5 - failure to give advice or adequate advice

The Respondent breached rule 7.1 of the Conduct Rules by failing to provide her client with advice, or any adequate advice, on or around 11 October 2017, as to (a) the eligibility requirements that her client was required to meet to obtain a stamp duty concession or exemption from the SRO and (b) the risk that her client would not obtain a stamp duty concession or exemption, which is conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer and constitutes unsatisfactory professional conduct, within the meaning of section 296 of the Uniform Law.

1. The particulars of the Charge 5 are at [6], [7], [9], [10] and [20] to [27] of the allegations of fact in the FA Application.
2. In the SAFFD, Ms Burrows indicated that she pleads guilty to Charge 5. The Tribunal notes in particular, the admissions of Ms Burrows in the SAFFD that Ms Burrows provided the draft 18 October Loan Agreement to Ms Cuskrin on about 16 October 2017. Ms Burrows admitted that she did not provide Ms Cuskrin advice or any adequate advice as to the eligibility requirements which Ms Cuskrin needed to satisfy to obtain a stamp duty concession and/or exemption from the SRO and any risk that Ms Cuskrin would not obtain a stamp duty concession or exemption.
3. The Conduct Rules at r 7.1 provides that:

A solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter, consistent with the terms of the engagement.

1. On the basis of the SAFFD and the documents contained in the Tribunal Book and attached to the application, the Tribunal is comfortably satisfied that Ms Burrows has engaged in the conduct alleged in Charge 5 of the further amended application for orders. The conduct was that Ms Burrows did not provide Ms Cuskrin with advice or any adequate advice as to the eligibility requirements which Ms Cuskrin needed to satisfy to obtain a stamp duty concession and/or exemption from the SRO and any risk that Ms Cuskrin would not obtain a stamp duty concession or exemption.
2. In relation to characterisation of the proven conduct under Charge 5, the VLSC submitted that:
   1. The only advice Ms Burrows gave Ms Cuskrin about the stamp duty exemption or concession, was in the letter dated 11 October 2017, which was insufficient and did not cover the relevant topics;
   2. Ms Cuskrin was entitled to receive advice on each of the matters referred to in Charge 5 at an early stage and certainly well before the transaction; and
   3. The provision of such advice would have enabled Ms Cuskrin to determine whether she wished to proceed with the transaction, having considered the risks of not obtaining a stamp duty refund.
3. The Tribunal considers the proven conduct to be serious. The conduct involved the failure to provide Ms Cuskrin with advice or adequate advice regarding a stamp duty exemption or concession, which was only available to first home buyers and therefore would only be available for one purchase by Ms Cuskrin, being the occasion when she purchased her first home. The amount of the potential stamp duty relief was in the tens of thousands of dollars. If she was adequately advised of the eligibility requirements and the risks of not obtaining the stamp duty relief, Ms Cuskrin may have decided not to proceed with the transaction, delay the transaction or restructure the financing of the transaction.
4. The Tribunal is comfortably satisfied that Ms Burrows' conduct falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. The Tribunal is therefore comfortably satisfied that the conduct under Charge 5 was unsatisfactory professional conduct as defined in section 296 of the Uniform Law.

Charge 6 - Acting for two parties in a transaction

The Respondent acted for both vendor and purchaser in respect of the sale of property and lender and borrower in respect of a loan agreement but failed, on or around 27 July 2017, to (a) advise each of them as to the potential for a conflict of the duties to act in the best interests of each them and (b) obtain the informed consent to act from each of them contrary to Rule 11.3.2 of the Conduct Rules, which is conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer and constitutes unsatisfactory professional conduct, within the meaning of section 296 of the Uniform Law.

1. The particulars of the charges are at paragraphs [6] and [8] of the allegations of fact in the FA Application.
2. In the SAFFD, Ms Burrows indicated that she pleads guilty to Charge 6. The Tribunal notes in particular the admissions of Ms Burrows in the SAFFD, including that she was engaged to act on behalf of Mrs Rich and Ms Cuskrin in relation to drafting the documents for the sale of the property by Mrs Rich to Ms Cuskrin, for a related loan agreement between Mrs Rich and Ms Cuskrin and to undertake the subsequent conveyance of the property from Mrs Rich to Ms Cuskrin. At [8] of the SAFFD, Ms Burrows admits:

Despite acting for each of them, at all material times the Respondent failed to:

(a) provide Mrs Rich and Ms Cuskrin with advice as to the potential for a conflict of the duties to act in the best interests of each of them during the retainer; and

(b) obtain the informed consent of Mrs Rich and Ms Cuskrin to act for each of them, contrary to Rule 11.3.2 of the Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 (Conduct Rules).

1. The Conduct Rules at r 11, relevantly, provide:

11.1 A solicitor and a law practice must avoid conflicts between the duties owed to two or more current clients.

11.2 Duty of loyalty If a solicitor or a law practice seeks to act for two or more clients in the same or related matters where the clients' interests are adverse and there is a conflict or potential conflict of the duties to act in the best interests of each client, the solicitor or law practice must not act, except where permitted by Rules 11.3 and 11.4.

11.3 Where a solicitor or law practice seeks to act in the circumstances specified in Rule 11.2, the solicitor or law practice may, subject always to each solicitor discharging their duty to act in the best interests of their client, only act if each client -

11.3.1 is aware that the solicitor or law practice is also acting for another client, and

11.3.2 has given informed consent to the solicitor or law practice so acting.

1. In acting for two clients involved in a transaction, and in this case, two transactions, being the loan agreement and the sale of real estate, Ms Burrows was in a position of potential conflict of duties to act in the best interest of each client. A conflict to act in the best interest of two clients can arise when acting for the lender and borrower in a loan agreement and for a purchaser and vendor in a sale of real estate.
2. To be able to act for both parties in the two transactions, Ms Burrows was required to obtain the informed consent of each client. To obtain informed consent, Ms Burrows should have explained to each client, the nature of the potential conflicts and the consequences of such a conflict arising. Ms Burrows did not explain the nature and consequences of the potential conflict or obtain the informed consent to act for both parties in the circumstances of the potential conflict.
3. On the basis of the SAFFD, the documents contained in the Tribunal Book and attached to the application, the Tribunal is comfortably satisfied that Ms Burrows has engaged in the conduct alleged in Charge 6 of the FA Application for orders. The Tribunal finds that the conduct proven for Charge 6 is that Ms Burrows acted for both vendor and purchaser in respect of the sale of property and for both lender and borrower in respect of a loan agreement but failed to advise each of them as to the potential for a conflict of the duties to act in the best interests of each them and to obtain informed consent to act from each of them.
4. In relation to characterisation of the proven conduct under Charge 6, VLSC submitted that:
   1. Each client was entitled to receive advice as to the potential conflict of the duties to act in the best interests of each of them in relation to the transaction;
   2. They were also entitled to decide whether they wished to provide informed consent for Ms Burrows to act for each of them;
   3. Neither client was aware of the potential conflict. Neither were provided with the information or advice necessary to enable them to provide informed consent. Nor were they aware that Ms Burrows was obliged to obtain their informed consent; and
   4. In relation to the conduct described under Charge 6, Ms Burrows conduct in connection with the practice of law falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.
5. The Tribunal considers the proven conduct to be serious. The conduct involved Ms Burrows contravening a fundamental principle of legal practice, being that she acted for two clients in a potential conflict situation. The conduct also contravened the Conduct Rules.
6. The Tribunal is comfortably satisfied that Ms Burrows' conduct under Charge 6, falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. The Tribunal is therefore comfortably satisfied that the conduct under Charge 6 was unsatisfactory professional conduct as defined in section 296 of the Uniform Law.

1. The parties jointly sought the imposition of a reprimand, the cancellation of Ms Burrows' practising certificate, an order that Ms Burrows not be granted a practising certificate before the end of two years after her practising certificate is cancelled and for conditions to be imposed on Ms Burrows' practising certificate requiring her to undertake further continuing professional development. The parties also seek an order that Ms Burrows pay the VLSC's legal costs fixed in the amount of $20,000.
2. The principles which the Tribunal should apply when the parties propose an agreed penalty in disciplinary proceedings are as follows:
   1. The Tribunal's role is to decide the appropriate characterisation of the conduct and the penalties to be imposed. An agreement by the parties does not displace the Tribunal's duty;
   2. It is appropriate for parties to make agreed penalty submissions and there is a public policy benefit for such submissions to be accepted where appropriate;
   3. It is desirable for the Tribunal to adopt the agreed penalty submission where it is an appropriate outcome.[6]
3. The parties have proposed a global determination for all of the proven charges. Generally, global penalties should be avoided in legal disciplinary proceedings, but may be utilised where the charges are 'inextricably interwoven'.[7]
4. In Williams, the Tribunal referred to the earlier decision of Stirling v Legal Services Commissioner,[8] noting that preferring individual penalties:

... allows for a sentence on one count to stand where a conviction for another count is quashed. Secondly, it is easier to assess whether a penalty is manifestly excessive or inadequate when each sentence is clearly pronounced on each count. Thirdly, by sentencing for separate offences, the court makes it clear to the public what the penalty for each offence is, thus assisting in the process of general deterrence. Finally, as in this case, adherence to this rule prevents conduct from one charge being used as an aggravating factor in assessing the penalty for another charge.

1. In Williams at [145], the Tribunal found that a global penalty may be appropriate:

... where the charged conduct is constituted by a course of behaviour as opposed to a set of separate events. In these circumstances where the facts of the case are so inextricably interwoven as to make it difficult to meet a clear standard of prescription, a global penalty may be applied.

1. In the present case, I find that the proven conduct is constituted by a course of behaviour in relation to Ms Burrows knowingly creating, or directing a junior lawyer under her supervision to create, a false document, knowingly directing a junior lawyer under her supervision to send false and misleading information and a false document to the SRO, recklessly providing false and misleading information to the VLSC, failing to provide advice or adequate advice to clients regarding stamp duty exemptions and concessions for first home buyers and acting for both parties in the sale of real estate and a related loan agreement without advising parties about the conflict and obtaining their informed consent. The Tribunal is satisfied that the facts of the case are interwoven to the extent that a global determination should be applied.
2. The principles to be applied by the Tribunal in considering the appropriate determination are set out in Victorian Legal Services Commissioner v Rose [2023] VCAT 409 at [59]- [61], as follows:
   1. ...The primary aim of any sanction is to protect the public and the professional standards and the reputation of the profession. The focus of the Tribunal is therefore protective and not punitive. However, specific deterrence and general deterrence, which serve to protect the public, depend upon sanctions having a punitive effect.
   2. With that protective focus in mind, the Tribunal considers a range of factors in determining penalty including the nature and seriousness of the conduct, any plea of guilty, the relative importance in the case of specific deterrence and general deterrence, past disciplinary history, evidence of character, and other mitigating factors such as medical or psychological evidence.
   3. Penalties imposed in other cases may be a useful guide to proportionality, and parity is important, but every case necessarily involves a different combination of factors. Each case is different.
3. The Tribunal will consider each relevant factor.

1. The conduct proven under Charge 1 is that Ms Burrows deliberately created a false document, which involved the creation of additional contract terms and the transfer of clients signatures from the legitimate loan agreement to the false one. Ms Burrows also included on the document a false date of signing of 26 October 2017, which backdated the document to prior to the purchase of the subject property by Ms Coskrin. Ms Burrows was seeking to mislead the SRO into making a refund of stamp duty to Ms Cuskrin, to which Ms Cuskrin was not entitled.
2. The conduct under Charge 1 was in breach of Ms Burrows' obligations as a lawyer under the Conduct Rules, including the obligation to act honestly in the course of legal practice and not to engage in conduct which demonstrates that the solicitor is not a fit and proper person to practise law, and which is likely to a material degree to bring the profession into disrepute.
3. The conduct proven under Charge 4 involved Ms Burrows, over a period of two months, recklessly providing false and misleading information to the regulator in response to a statutory notice to provide information.
4. The conduct proven under Charge 5 involved the failure to provide Ms Cuskrin with advice or adequate advice regarding a stamp duty exemption or concession which was only available to first home buyers and therefore would only be available once to Ms Cuskrin, when she purchased her first home. The amount of the potential stamp duty relief was in the tens of thousands of dollars. If given adequate advice, Ms Cuskrin may have decided not to proceed with the transaction, delay the transaction or restructure the financing of the transaction.
5. The conduct proven under Charge 6, involved Ms Burrows contravening a fundamental principle of legal practice, being to act for two clients in a potential conflict situation. The conduct contravened the Conduct Rules.
6. As discussed above, the Tribunal considers Ms Burrows's proven conduct to be of a serious nature and the proven matters under Charges 1 and 4 are particularly serious.

1. In relation to general deterrence, the VLSC submitted:
   1. General deterrence is a primary consideration in this case, particularly in relation to Charges 1 and 4;
   2. There is a need to signal to others in the profession that adverse consequences will follow conduct, such as Ms Burrows' conduct, to deter others from the same conduct, in the interests of maintaining standards and public confidence in the profession; and
   3. A clear message must be sent to the profession that it should not engage in such dishonest conduct nor to deal with the VLSC in the manner that Ms Burrows did.
2. On behalf of Ms Burrows, it was admitted that there is need for general deterrence in this case.
3. The Tribunal finds there is a need for general deterrence to be part of the determination consideration to deter other practitioners from engaging in such serious improper conduct, including the creation of a false document, sending a misleading email to induce a government entity to provide a financial advantage to a client, which the client was not entitled to receive and to act in a conflict situation without obtaining the informed consent of the clients.

1. In deciding the need for specific deterrence in making the appropriate determination, issues such as insight and remorse are relevant.
2. The Board submitted relevantly to specific deterrence that:
   1. Ms Burrows entered a plea of guilty at the earliest opportunity in these proceedings, being at the compulsory conference. A guilty plea is an indication of remorse;
   2. While the Tribunal may regard Ms Burrows guilty plea as indicating significant remorse, it is contended that she requires time away from practice in order to further develop her remorse and insight into the wrongfulness of her conduct;
   3. Ms Burrows failed to correct the record with the SRO after she directed that the SRO be supplied with the false 26 October Loan Agreement and the misleading email of 15 June 2018. Instead, she lodged an objection with the SRO and failed to inform the SRO that the document was false;
   4. Ms Burrows failed to correct the record with the SRO, when her firm supplied bank statements to the SRO, which sought to prove that Mrs Rich and Ms Cuskrin had complied with the terms of the false 28 October Loan Agreement;
   5. During the investigation, Ms Burrows failed to accept that the conduct described in Charges 1 and 4, constituted professional misconduct;
   6. She also failed to accept during the investigation that her conduct under Charge 1 was dishonest and that she intended to mislead the SRO by her conduct. Ms Burrows sought to minimise the conduct by stating that she had made an amendment to the loan agreement between her clients and had failed to obtain their signatures;
   7. Ms Burrows also failed, during the investigation, to accept that the conduct described in Charges 5 and 6 constituted unsatisfactory professional conduct, but did accept that her failure to obtain her clients' informed consent and failing to give adequate advice about stamp duty concessions was lacking; and
   8. Time away from practice is required so that Ms Burrows can reflect on her conduct and develop full, meaningful and lasting insight.
3. Counsel for Ms Burrows, in summary, made the following submissions on issues relevant to specific deterrence:
   1. Ms Burrows entered a plea of guilty at the earliest available opportunity, this shows insight into her conduct and is a saving of public resources;
   2. She full cooperated with the VLSC, which demonstrates insight and contrition;
   3. There is no greater deterrence for a practitioner, who was born, raised and worked in the Yarra Ranges, to suffer a loss of esteem in the local community. Ms Burrows is well-known in the community and her stepping out of legal practice, will not go unnoticed. The determination of the Tribunal keeping Ms Burrows out of practice will become well known;
   4. Ms Burrows has demonstrated insight by changing the nature of her practice. She has provided a schedule of continuing professional development that she has attended, to increase her understanding of ethical and substantive law relevant to the conduct described in the charges;
   5. She has been in legal practice for approximately 18 years. Since 2015, Ms Burrows has been the director of Yarra Ranges Lawyers. She was born and raised in the area and her family has lived in the area for generations;
   6. Ms Burrows has a long history of service to the community and community groups. She is highly respected in the community, as indicated by the references provided to the Tribunal. The references are not just relevant to the conduct and her character but also demonstrate that the conduct was an aberration; and
   7. The Tribunal should be confident that she will not undertake this type of conduct again.
4. The Tribunal finds that Ms Burrows has developed some insight and remorse for her proven conduct. However, it appears that this insight and remorse has taken time to develop, as indicated by her failure to accept the nature and seriousness of the conduct until this proceeding was commenced. The Tribunal is satisfied that there is a need for the determination to take into account specific deterrence.

EVIDENCE OF CHARACTER AND PAST DISCIPLINARY HISTORY

1. The VLSC conceded that there had been no previous disciplinary proceedings against Ms Burrows in the Tribunal. Ms Burrows provided four character references to the Tribunal.
2. The references are somewhat glowing as to her character, professional standards and work within the community, including volunteer work. This material is in her favour.

1. Ms Burrows admitted the conduct in the Statement of Agreed Facts, Findings and Determinations. She sought to plead guilty at the earliest stage of these proceedings. Ms Burrows failed to accept the nature and seriousness of the conduct until this proceeding was commenced.

1. The delay in disciplinary proceedings being commenced and finalised has been recognised as a matter to be taken into account in determining an appropriate outcome. A delay may be a mitigating factor and is considered in the light of the rehabilitation of the person in the period and the fairness of such a delay on the person.
2. The VLSC conceded that if Ms Burrows had been more forthcoming the length of the investigation would have only been slightly reduced and that during this period of delay Ms Burrows has developed some insight and remorse. For Ms Burrows, it was submitted that there was a human element to the delay, including the uncertainty weighing on Ms Burrows of waiting for an outcome. The Tribunal considers that it should take into account that Ms Burrows had disciplinary matters hanging over her for a period of over four and a half years prior to this proceeding being commenced.

1. The VLSC referred the Tribunal to a number of decided cases of dishonesty by practitioners, including the creation and use of false documents. It was said that there was no decided case on all fours with the present matter. It was submitted that the cases consistently show that the penalty imposed involves an exclusion from practice and for a significant period, depending on the nature of the conduct. The Tribunal found these decisions useful in understanding the range of determinations in dishonesty matters and particularly circumstances where false documents are created and used.

1. The Tribunal has taken into account the above matters and, particularly due to the need for specific and general deterrence in this case, it considers it is appropriate to impose a reprimand on Ms Burrows, to cancel Ms Burrows' practising certificate, prohibit her from obtaining a practising certificate for a period and impose conditions on her practising certificate when she returns to practice.
2. The Tribunal has concluded that a period away from practice of two years in this matter is appropriate to indicate the serious nature of the conduct and to signal to Ms Burrows and other practitioners the need for honesty in the practice of law and candour with the regulator. The Tribunal will therefore order that Ms Burrows not be granted a practising certificate before the end of two years from the date her practising certificate is cancelled.
3. The parties have agreed that Ms Burrows' practising certificate should be cancelled from 29 May 2024, to allow for the orderly hand over of Ms Burrows practice to another practitioner.
4. I consider that the proposed conditions to be imposed on Ms Burrows' practising certificate when she returns to practice, are appropriate.
5. Pursuant to section 303 of the Uniform Law, I must make an order for costs against the respondent if I find her guilty of professional misconduct unless there are exceptional circumstances. No exceptional circumstances were raised by the respondent and the respondent has agreed to the proposed order that she pay the Commissioner's costs fixed at $20,000.00.

1. The Tribunal has therefore decided that the appropriate determination in this matter is to reprimand Ms Burrows, cancel Ms Burrows' practising certificate from 29 May 2024, order that Ms Burrows not be granted a practising certificate before the end of two years from the date her practising certificate is cancelled and to impose conditions on Ms Burrows' practising certificate as proposed by the parties. The Tribunal will also make an order that Ms Burrows pay the legal costs of the VLSC fixed in the amount of $20,000.

[1] The Tribunal has decided not to name Ms T.

[2] Legal Practitioners Conduct Board v Boylen [2003] SASC 241.

[5] SAFFD at [63]-[64], TB 14 & SAFFD at [66]-[67], TB 15.

[6] See Victorian Legal Services Commissioner v Hyatt [2018] VCAT 1498 at [24]- [25] and Commonwealth v Director Fair Work Building Industry Inspectorate [2015] HCA 46 (2015) 258 CLR 482 at [46]- [58].

[7] See Victorian Legal Services Commissioner v Williams (Legal Practice) [2022] VCAT 806 (15 July 2022), Quigley J President of VCAT ('Williams') at [144].

[8] [2013] VSCA 374.