Course of the investigation and the proceeding

1. The VLSC commenced its investigation in November 2018. It engaged in correspondence with Mr Connor, his employee solicitor, Mr Steven Sartori and the Firm's law clerk, Ms Amanda O'Dwyer, as well as with Mr Frajsman. This correspondence continued until 13 February 2022, (including a 'Murray' letter[5] of 30 November 2021).[6] On 22 May 2022 the VLSC advised Mr Connor it would bring this application.
2. This proceeding was commenced by the VLSC on 27 May 2022. An Amended Application for Order was filed and served, dated 14 June 2022 (with Charge 4 from the first version deleted). Following various adjournments, it was not until 1 June 2023 that the first directions hearing was conducted. Mr Connor made applications for various documents to be provided and issued summonses to witnesses for documents. These matters took some time to resolve.
3. Mr Connor also brought an application under s 134 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) against two persons to whom summonses to produce documents had been issued, alleging non-compliance. This required determination by a presidential member of VCAT. On 20 June 2024 Deputy President Judge English ordered that some additional documents be provided by Mr Frajsman.
4. On 31 July 2024 the matter was listed for a three day hearing on 6 May 2025. After it was set down, a number of interlocutory applications were made by Mr Connor, relating to matters including the composition of the Tribunal, and the mode of provision of evidence. These were dealt with by Tribunal orders. In particular, on 27 February 2025, the Tribunal declined Mr Connor's application that it request the Registrar of Probates to require Mr Frajsman to file an administration account for the estate of the Client's father.
5. The hearing ran for three days. Oral evidence was given by the following witnesses for the VLSC: Ms Laura Keenan (VLSC solicitor), Mr Sartori, Ms O'Dwyer and Mr Colonna (expert costs consultant). Oral evidence was given by the following witnesses called by Mr Connor: the Client, Mr Frajsman, and the two barristers briefed by the Firm, Ms Gregoriou and Mr McCoy. Mr Connor did not provide a witness statement and did not give evidence.
6. I am satisfied that all the witnesses gave their evidence honestly, and to the best of their recollection.
7. After the hearing, written final submissions were filed and served by both parties.

The Firm and the roles played by Mr Connor, Mr Sartori and Ms O'Dwyer

1. The Firm was located in Wangaratta, where Mr Connor generally worked from Monday to Wednesday. He generally worked in Melbourne on Thursdays and Fridays. He was the sole principal.
2. At the time relevant to this matter, there was one other lawyer at the firm, a junior solicitor, Mr Steven Sartori (admitted to practice in May 2017). He had some prior experience, in that he had worked as a law clerk with the Firm for two years prior to admission, and had also previously served as a police officer.
3. Nevertheless, as at the time he was delegated the conduct of this file, on 3 February 2018, Mr Sartori was an inexperienced solicitor, subject to formal supervision. He said he found this particularly matter challenging, having not had much experience of testator's family maintenance matters, and he did not take any significant steps without consulting his principal, Mr Connor.
4. However, Mr Sartori ultimately had a relatively confined role in this matter, given the delay in obtaining Probate, and in receiving relevant material from the Client.
5. In fact, the employee at the Firm who had the greatest involvement in the Client's matter was Ms Amanda O'Dwyer, a law clerk. It was she who attended the two conferences with counsel, communicated with the Client on a regular basis and commonly initiated steps taken on the matter.
6. Ms O'Dwyer was the only employee based in Melbourne. The work she carried out (under Mr Connor's supervision) included briefing counsel, managing the trust account and carrying out legal research. She had been working in that role since 2010. It appears she had come to the Firm as a mature recruit from another field, and by 2018 had built up a body of experience and competence in carrying out her role. It was Ms O'Dwyer who provided the most detailed evidence of what occurred during the retainer.

1. The course of the retainer, and the investigation, is set out in extensive detail in the Amended Application for Order, which is attached as an Annexure to this decision. In summary, the sequence of events was as follows.
2. The Client approached the Firm on 8 January 2018, following the death of her father on 16 December 2017. She told Mr Connor she had been promised that he would leave his home in suburban Melbourne to her. She was disappointed to find that his latest will, of 4 September 2017, did not provide for this.
3. On 15 January 2018, Mr Connor wrote to Mr Frajsman requesting a copy of the latest will, plus any previous wills in his possession.[7] The next day, Mr Frajsman sent Mr Connor copies of three versions of the will: the latest, dated 4 September 2017, an earlier will dated 24 August 2017, and an undated handwritten will. So Mr Frajsman would have known that the Client was considering her position in relation to the will.
4. On 25 January 2018, the Firm sent a brief to Ms Grigoriou of counsel. While the terms of the brief with regard to payment are not determinative of the issues in this case, they are set out below as background, concerning the financial arrangements for the retainer. They are illustrative of the financial risks the Firm took on under the retainer. The brief stated:

This is an ordinary brief in the sense that the applicant has instructed us that counsel's fees are to be paid - win, lose or draw. However, the applicant may be interested in engaging counsel on a "no win/no fee" basis if counsel sees fit to offer such an arrangement.

For our part, we have agreed to act "no win/no fee" on the applicant's matters.

...

It is instructing solicitors' modus operandi to instruct Counsel early so that instructing solicitors can make an early decision on whether or not to continue to conduct this matter on a "no win/no fee" basis.

1. Mr Connor, Mr Sartori and Ms O'Dwyer all indicated that this was a standard paragraph included in all briefs to counsel. Mr Connor said this was to reassure counsel that they would be paid. However, it is not consistent with the Firm's standard no win no fee cost agreement, which was utilised for the Client's retainer. That provides that if the client loses, they do not pay the Firm's legal fees, nor any disbursements.
2. Accordingly, the effect of the arrangements here appears to have been that the Client was not required to pay counsel's fees in the event of a loss. However, the Firm would be liable to pay counsel's fees (unless of course a 'no win no fee' agreement was subsequently entered into with counsel as well).
3. Returning to the narrative of events, Ms O'Dwyer indicated that after the first conference with Ms Grigoriou on 1 February 2018, the intention was to gather further information, and to issue proceedings. Ms Grigoriou had little recollection of this conference. But Ms O'Dwyer's file note stated that Ms Grigoriou advised that the Client's claim for a constructive trust was 'not great' but that a claim under Pt 4 of the Administration and Probate Act 1958 (Vic) had merit.[8]
4. On 3 February 2018, Mr Connor sent the Client an email stating that the matter had been delegated to Mr Sartori and Ms Grigoriou had said she had a 'solid claim'.[9] (In her evidence, Ms O'Dwyer said that expression was Mr Connor's, not hers or Ms Grigoriou's.) The Client was to gather evidence to support her claim.
5. On 9 February 2018 the Firm wrote to the Client, enclosing its conditional costs agreement.[10] The letter contained the following statements:
   • 'Now that our barrister, Ms Georgina Grigoriou, has agreed to take on your claim, we are writing to confirm that Constable Connor will finance the matter.'
   • 'In relation to your claim for a greater share of the estate, a "win" will occur if we achieve a better result than what you are already entitled to under you late fathers Will'[sic].
6. The costs agreement contained clauses which stated, relevantly:
   • 'WHAT IS A WIN?

A win (also known as a 'Successful Outcome' under the Uniform Law) may occur in a variety of ways. > > In this Agreement, a win occurs:

• when you obtain an order to be paid a lump sum or obtain an order to receive property from a deceased estate, whether by court action or settlement or otherwise;
• when there is a settlement or resolution of the matter in accordance with your instructions whether or not money is payable to you or on your behalf;'
• ...
• That the Firm would charge on the basis of 6-minute time units.
• That the costs estimate in the event the retainer did not involve the issue of any court proceedings or any mediation was: professional Charges of $10,000, and disbursements of $5,000, a total of $15,000 (all inclusive of GST).
• 'IF YOU LOSE OR WITHDRAW YOUR INSTRUCTONS':

You do not have to pay our professional fees or disbursements unless and until you win. If you lose a litigation matter that goes to trial, you may (most likely will) be ordered to pay the costs of the other side. These costs, depending on the jurisdiction, could amount to $100,000 or more in your matter. If this occurs, Constable Connor will be responsible for payment of these costs. > > This is what we mean by "no risk".

NOTE: We will charge our full professional fees and disbursements if you withdraw your instructions before completion of your matter for any reason up to the date you notify us in writing of the termination of the retainer.

If we receive money on your behalf, we will deposit the money into our trust account. Should we receive money into our trust account on your behalf, you authorize us to withdraw from that money any sums owing for our legal costs and disbursements. You further authorize us to give you written notice prior to withdrawing the money from our trust account by sending you an account.

In view of the 'no win/no fee/no risk' arrangement contained in this Conditional Costs Agreement, you agree to:

• Provide full and honest instructions relevant to your matter and provide details of any material change in your circumstances that might impact on your matter while we continue to act for you.

1. The Client signed the costs agreement on 15 February 2018.
2. After a long delay, Probate was obtained on 2 July 2018. There was apparently little activity during this period.
3. Ms O'Dwyer spoke to Ms Grigoriou briefly about the matter on 30 July 2018, when they crossed paths in the vicinity of barristers' chambers. She ascertained that Ms Grigoriou was then unavailable and the Firm ultimately briefed Mr Jonathan McCoy of counsel. A conference with him was conducted on 25 September 2018 attended by the Client and Ms O'Dwyer.[11]
4. In the meantime, on 10 August 2018, Mr Sartori received a call from Mr Frajsman stating that the settlement of the sale of the deceased's house was due on 24 August 2018, and that distribution to the beneficiaries would then follow.
5. The evidence of both Ms O'Dwyer and Ms Grigoriou was to the effect that over the seven months since the first conference, little evidence of any significant value had been obtained from the Client, in terms of the extent of works done on her father's house in reliance on his verbal promise that she would receive the house. Her chances of success seemed less than had been initially hoped. Also, while 1,600 pages of material had been obtained, apparently comprising the deceased's medical records, nothing had been found on which an argument of lack of testamentary capacity could be based.[12] Although Ms Grigoriou had drafted an originating motion on 1 February 2018, she said completion of this precedent was the work of five minutes. She had left blanks relating to the extent of the assets, given Probate had not been granted. She said, in effect, that the fact that the originating motion was not completed, indicated that the point of satisfaction that there was a sufficiently strong case to justify issuing, had not been reached.
6. With regard to the payment of the $60,000 death benefit to the Client, it appears that the first time the Firm received any information about this was on 17 August 2018, when Mr Frajsman wrote, advising that 'We have forwarded a claim to TAL regarding the deceased's life insurance policy'.[13]
7. Then, on 10 September 2018, Mr Frajsman telephoned Ms O'Dwyer advising that he had received an envelope marked 'private and confidential' addressed to the Client.[14] As a courtesy, Mr Frajsman did not open the letter, but sent it, unopened, to the Firm's Wangaratta office that day. The enclosed cheque for $60,000 was banked into the Firm's trust account on 11 September 2018.
8. The reason why TAL sent this money by way of cheque addressed to the Client, as opposed to the deceased's estate, is not known definitively. It appears likely she was the declared beneficiary under the policy, or alternatively, that she was sent the money as her father's next of kin.
9. Mr Frajsman surmised that the letter contained the $60,000 death benefit, as he had made an application for the benefit to be released, following Probate being obtained on 2 July 2018. He asked for confirmation this was the case. The Firm provided that confirmation, but not until seven weeks later, on 30 October 2018.
10. In his witness statement, Mr Sartori said that when he read the 10 September 2018 letter from Mr Frajsman, he thought that the TAL cheque should perhaps be sent directly to the Client. In his oral evidence, he said he thought the $60,000 comprised 'transit' monies to be sent on to the Client.
11. But he had a limited understanding of trust accounting obligations at that time, and sought instructions from Mr Connor, who told him to place it into trust.
12. Mr McCoy's advice of 25 September 2018, following the conference that day, was to the effect that the Client's potential claim in estoppel was without merit.[15] Nor would it be in her interests to pursue a claim under Part 4 of the Administration and Probate Act 1958. He also advised, in light of clause 4 of the will, that the Firm seek clarification from the executors as to whether the $60,000 superannuation benefit was properly paid to the Client, or whether it in fact formed part of the estate. It was only at this point, that the Client became aware that this payment had been received.
13. As noted above, this advice led to the Firm advising the Client that it could no longer act for her on a 'no win no fee' basis,[16] and on 10 October 2018 she advised she had decided to drop the matter.
14. The Firm did not investigate the proper status of the $60,000 as advised by Mr McCoy.
15. On 22 October 2018, the Firm wrote to the Client that a 'win' had been achieved. The Client sent a reply that day, disagreeing.
16. On 30 October 2018, the Firm sent a bill and took its fees of $22,002.81 out of the $60,000 trust monies it held on the Client's behalf.
17. Following the Client's complaint to the VLSC on 9 November 2018, Mr Frajsman provided documents and responses to questions from the VLSC, on 11 December 2018. He said that he had surmised that TAL had deemed the Client, to be the sole recipient of the death benefit, as she was the deceased's only child. Hence, he said, the $60,000 did not form part of the estate. He said he and his co-executor had 'no qualms with the proceeds of the TAL policy being distributed directly to [the Complainant], as it did not form part of the estate'.[17]
18. Also on 11 December 2018, the VLSC asked Mr Connor to remit the balance of trust funds ($37,997.19) to the Client, which he then did.
19. Mr Frajsman arranged for the Client to be sent payments pursuant to her 50% entitlement from the estate: $35,000 on 21 November 2018, and $365,000 on 10 January 2019.
20. In the course of correspondence with the VLSC, on 17 December 2018, Mr Connor said that 'the client was in breach of the costs agreement because she blatantly lied to us'.[18] In a letter of 7 January 2019, Mr Connor said 'the client lied to us, necessitating a second barrister conference'.[19]
21. The VLSC sought advice from a costs consultant, Mr Colonna. He provided a report dated 6 June 2019.
22. First, this expressed the view that no 'win' had been achieved, and so no costs were payable.
23. Second, Mr Colonna concluded that the costs agreement was void under s 178(1)(b) of the Uniform Law. This was due to the Firm's failure to provide any updates to the costs estimate of $15,000 originally provided.
24. Third, Mr Colonna costed the file at $11,971.20. This was on the default criterion provided for under the Uniform Law of 'fair and reasonable' costs, on the basis of the information he had at the time. (This figure was later superseded by the revised costs calculation of $13,920.50 done by Mr Colonna on 14 March 2023, as part of his expert report prepared for the purpose of this case, after he had received the Firm's time recording entries- see below.)
25. As noted, the VLSC continued to conduct inquiries, in particular continuing correspondence with Mr Connor, during the period to 27 May 2022, when it commenced this disciplinary proceeding at VCAT.
26. Also, on 26 May 2022, the VLSC also determined the separate 'consumer' aspect of the complaint.[20] It determined that a 'win' was not achieved, and so the Firm had not been entitled to take the $22,002.81 out of trust. It was not entitled to receive any fees under the 'no win no fee' costs agreement. It determined that Mr Connor must repay the Client that amount within 45 days.[21] The Client confirmed in her evidence that no such payment had been made. Mr Connor indicated during the interlocutory phase that he had no financial resources of any substance and had applied for an old age pension.

1. The following provisions of the Uniform Law are applicable here.

(1) Each principal of a law practice is responsible for ensuring that reasonable steps are taken to ensure that - > > > (a) all legal practitioner associates of the law practice comply with their obligations under this Law and the Uniform Rules and their other professional obligations; and > > > > (b) the legal services provided by the law practice are provided in accordance with this Law, the Uniform Rules and other professional obligations. > > (2) A failure to uphold that responsibility is capable of constituting unsatisfactory professional conduct or professional misconduct.

(1) If a law practice contravenes, whether by act or omission, any provision of this Law or the Uniform Rules imposing an obligation on the law practice, a principal of the law practice is taken to have contravened the same provision, if - > > > (a) the principal knowingly authorised or permitted the contravention; or > > > > (b) the principal was in, or ought reasonably to have been in, a position to influence the conduct of the law practice in relation to its contravention of the provision and failed to take reasonable steps to prevent the contravention by the law practice. > > (2) A contravention by a principal arising under subsection (1) is capable of constituting unsatisfactory professional conduct or professional misconduct by the principal. > > (3) Neither subsection (1) nor (2) affects any liability of the law practice or any other person for the contravention.

Note

Section 470 deals with contraventions by partnerships and other unincorporated bodies.

(1) A law practice must deal with trust money in accordance with this Law and the Uniform Rules and not otherwise.

Civil penalty: 50 penalty units.

(2) Trust money held by a law practice may be dealt with only by the law practice or an associate of the law practice.

1. Holding, disbursing and accounting for trust money in general trust account

(1) Except as otherwise provided in this Part, a law practice must -

(a) hold trust money deposited in the law practice's general trust account exclusively for the person on whose behalf it is received; and

(b) disburse the trust money only in accordance with a direction given by the person.

Civil penalty: 50 penalty units.

(2) Subsection (1) applies subject to an order of a court of competent jurisdiction or as authorised by law.

(2) A law practice may do any of the following, in relation to trust money held in the practice's general trust account or controlled money account -

(b) withdraw money for payment to the law practice's account for legal costs owing to the practice if the relevant procedures or requirements specified in the Uniform Rules for the purposes of this Division are complied with;

(1) A law practice must, in charging legal costs, charge costs that are no more than fair and reasonable in all the circumstances and that in particular are -

(a) proportionately and reasonably incurred; and

(b) proportionate and reasonable in amount.

1. Disclosure obligations of law practice regarding clients

(1) Main disclosure requirement

A law practice -

(a) must, when or as soon as practicable after instructions are initially given in a matter, provide the client with information disclosing the basis on which legal costs will be calculated in the matter and an estimate of the total legal costs; and

(b) must, when or as soon as practicable after there is any significant change to anything previously disclosed under this subsection, provide the client with information disclosing the change, including information about any significant change to the legal costs that will be payable by the client -

together with the information referred to in subsection (2).

(1) If a law practice contravenes the disclosure obligations of this Part -

(a) the costs agreement concerned (if any) is void; and

...

(d) the contravention is capable of constituting unsatisfactory professional conduct or professional misconduct on the part of any principal of the law practice or any legal practitioner associate or foreign lawyer associate involved in the contravention.

For the purposes of this Law, 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) For the purposes of this Law, 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

1. Conduct capable of constituting unsatisfactory professional conduct or professional misconduct

Without limitation, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct -

(a) conduct consisting of a contravention of this Law, whether or not -

(i) the contravention is an offence or punishable by way of a pecuniary penalty order; or

(ii) the person has been convicted of an offence in relation to the contravention; or

(iii) a pecuniary penalty order has been made against the person under Part 9.7 in relation to the contravention;

(b) conduct consisting of a contravention of the Uniform Rules;

1. The VLSC bears the onus of proof. Many of the factual matters underlying the charges brought here are apparent from the documents and not in dispute. To the extent it has been necessary to make determinations as to factual matters, the civil standard applies, in the manner described in Briginshaw v Briginshaw.[22] That is, where I have found an allegation, or a component of an allegation proved, this is on the basis that I have reached a comfortable level of satisfaction, on the balance of probabilities, consistent with the seriousness of the allegations and reflecting the serious consequences of such finding.
2. I now turn to a consideration of the charges brought by the VLSC.

Charge 1 - Application of trust funds without authority

Professional misconduct within the meaning of s 297(1)(a) of the Uniform Law and/or s 298(a) and/or s 298(b) of the Uniform Law in that the Respondent applied trust funds to pay legal costs and disbursements on 30 October 2018 without first obtaining the Complainant's[23] authority and contrary to her objection in contravention of:

(a) r 42 of the Legal Profession Uniform General Rules 2015;

(b) s 135 of the Uniform Law;

(c) s 138 of the Uniform Law; and/or

(d) s 144(2)(b) of the Uniform Law.

1. The effect of rule 42 of the Legal Profession Uniform General Rules 2015 (General Rules) is that before taking monies from trust account funds it held on behalf of the Client for payment of a bill, the Firm was, in effect, required to give the Client seven days notice to allow her to object to it doing so. It did not do that.
2. Rule 42 is supported by the other provisions of the Uniform Law referred to in charge 1, namely ss 135, 138 and 144(2)(b).
3. In a letter of 10 December 2018[24] to the VLSC, Mr Connor, in effect, admitted this contravention. He said:

First, it is obvious that there has been a contravention of Rule 42 in this matter. As a result, I have instituted a fail-safe procedure in the office to make sure that such a contravention does not occur in the future.

Second, apart from the Rule 42 breach, which I take seriously and admit to as the person with the ultimate responsibility, it appears to me that this is a contractual dispute rather than an ethical matter.

1. At the outset of the hearing, asked as to his position on charge 1, Mr Connor said that while he accepted Rule 42 had been contravened, it had not been proved that he was legally responsible for that contravention.
2. In his submissions, Mr Connor accepted it was likely that he had instructed Mr Sartori to bill the Client. But he said there was no evidence or suggestion that he had instructed Mr Sartori 'to breach the contract with the client (TB 124),[25] much less ethical restrictions, in relation to the Application of the Funds in Trust without authority.'
3. Mr Connor's submission went on to note that the contract with the Client for the provision of legal services was not with him, but with Constable Connor & Co Pty Ltd.
4. He then referred to s 35 of the Uniform Law (quoted above) which makes 'principals' liable for contraventions of the Uniform Law in specified circumstances. He noted that a principal is defined in s 6(1) as a person 'validly appointed' as a director of a company through which an incorporated law practice is conducted.
5. Mr Connor argued that the VLSC has produced no evidence that he was 'validly appointed' as a director of the company at any time. He described this as 'the Section 35 defence' (which he relies on for Charges 1, 2 and 3).
6. The VLSC responded to this argument as follows (at [103]-[108] of its submissions):

The Respondent's attempt to invoke section 35 of the Uniform Law as a shield against liability represents a fundamental misunderstanding of both the law and the facts. This defence is not only legally baseless but also demonstrates a troubling lack of professional accountability.

The Respondent was a principal of the Law Practice

The Respondent's claim that there is no evidence he was a "validly appointed" director is contradicted by overwhelming documentary evidence. Throughout the relevant period, the Respondent consistently held himself out as Director and Principal of the Law Practice. Multiple letters spanning the relevant period describe him as "Director" of the Law Practice,[26] his own correspondence describes him as the "Principal" of the Law Practice in the letterhead,[27] and the Notification of Rights document specifically states that he is the responsible principal for this bill.[28]

The operational structure of the Law Practice makes the Respondent's denial of responsibility even more untenable. The Law Practice was a two-lawyer firm where the Respondent was the sole principal and sole experienced practitioner. The only other lawyer was Mr Sartori, a newly admitted graduate who had commenced practice in May 2017.

As set out in paragraphs 30 - 32 above, Mr Sartori was prohibited from working without supervision and had no authority [to] receive trust money. The Respondent was the only other lawyer at the firm and therefore the only person capable of providing such supervision. And finally, Mr Sartori's evidence demonstrates the Respondent had - and exercised - effective control over all decisions of substance in the matter.

Section 35 contraventions

Contrary to the Respondent's argument, section 35 of the Uniform Law actually supports rather than precludes his liability. Section 35 provides that if a law practice contravenes any provision of the Uniform Law or Rules, a principal is taken to have contravened the same provision if:

1. the principal knowingly authorised or permitted the contravention (section 35(1)(a)); or
2. the principal was in, or ought reasonably to have been in, a position to influence the conduct of the law practice in relation to the contravention and failed to take reasonable steps to prevent the contravention (section 35(1)(b)).

Both limbs of section 35 are satisfied in relation to charges 1, 2 and 3. The evidence establishes that the Respondent knowingly authorised the relevant conduct - often directing such conduct despite concerns held by Mr Sartori. In addition, the Respondent was unquestionably in a position to influence the conduct of the Law Practice, as the sole principal and director, and the only experienced practitioner at the Law Practice, who supervised all work of Mr Sartori.

By issuing the bill to [the Client] and deducting the funds from trust on the very same day, the Respondent denied [the Client] the opportunity to consent to the application of funds in trust to pay legal costs and disbursements. This conduct becomes even more concerning when considered against the backdrop that [the Client] had expressly objected to being given a bill at all some 8 days prior to the Respondent's actions on 30 October 2018.

1. The VLSC's arguments are clearly correct. As the sole principal and only experienced practitioner, Mr Connor was in control of the actions of the Firm. Under s 35, he bore responsibility for the application of trust funds to pay legal costs and disbursements on 30 October 2018.
2. Further, the evidence confirms that the driving force behind the Firm's conduct in relation to the invoice and the taking of the money from trust to pay it, was Mr Connor. In addition to what he said in his witness statement, Mr Sartori said in oral evidence that the actions he took were on Mr Connor's instructions. He said it was Mr Connor's firm, he was the junior employee. Once he had made his mind up, Mr Connor was difficult to argue with.
3. I find Charge 1 proved.
4. With regard to the characterisation of this conduct, Mr Connor made no submission. The VLSC argued:

The Commissioner respectfully draws the Tribunal's attention to several factors that demonstrate the gravity of this breach:

1. The rules governing lawyers' treatment of trust funds are of paramount importance to the profession, which is reflected in the significant penalties that attach to their contravention.
2. [The Client] had engaged the Law Practice on a 'no win, no fee' basis, creating clear expectations about the circumstances in which fees would be payable.
3. Such conditional costs agreements are a tool to enable lawyers to represent persons in the community who otherwise cannot pay for legal representation, and it is therefore important that such agreements are respected and strictly adhered to.
4. The receipt by the Law Practice of the $60,000 TAL payment was a peripheral event, arising by pure happenstance rather than through any work or advocacy from the Respondent or the Law Practice.
5. Indeed, Mr McCoy expressed doubt as to whether the cheque should have been received, and deposited into trust, at all. He advised the Respondent to take further action and make enquiries with RF Legal to clarify whether they were of the view that the TAL payment should be paid to [the Client] or dealt with in accordance with the will. The Respondent appears to have disregarded this advice, choosing instead to keep the money in trust and then use it to pay the Law Practice's fees.
6. [The Client] had expressly objected to the Law Practice charging a fee for its work on the reasonable basis that a 'win' had not been achieved under the terms of their agreement.
7. Despite this clear objection, the Law Practice proceeded to issue a bill and simultaneously apply trust funds on the very same day, effectively disregarding the [the Client]'s expressed position.

When viewed in totality, the Commissioner submits that the evidence suggests the Respondent opportunistically formed the view that, because the engagement had ended and because there happened to be funds in trust, the Law Practice should find a way (however tenuous) to charge for its work.

The Commissioner respectfully contends that conduct of this nature warrants serious censure. While the Respondent has maintained in correspondence with the Commissioner that a 'win' was achieved and the Law Practice was therefore entitled to payment, he has notably offered no explanation whatsoever as to why the legal costs were deducted on the same day the bill was issued, without [the Client's] approval and despite her express objection.

1. Some of these contentions depend on the outcome of the analysis concerning Charge 5, dealt with below. I have found Charge 5 proved, and so the contentions based on issuing a bill when no 'win' had been achieved are validly made.
2. I am satisfied that, for the reasons set out in the VLSC's contentions above, the taking of trust monies for fees in this instance is so serious as to amount to professional misconduct. One of the defining attributes of a solicitor is that they can be trusted to deal with monies which they hold on 'trust' for clients in a completely scrupulous manner. [29] Here, aside from breaching Rule 42, and ss 135, 138 and 144(2)(b) of the Uniform Law, Mr Connor has taken the funds from trust with unseemly haste, in circumstances where there was a disagreement with the Client as to whether fees were payable to the Firm at all.
3. This is a finding under s 298(b) in relation to the breach of Rule 42, and under s 298(a) in relation to the breach of ss 135, 138 and 144(2)(b) of the Uniform Law. The VLSC's submissions made no reference to s 297(1)(a), so I make no finding in relation to that provision.

Unsatisfactory professional conduct within the meaning of ss 178(1)(d), 296 and/or 298 of the Uniform Law in that the Respondent failed in or about February 2018, and/or at any time thereafter, to provide the Complainant with a written update about there being a significant change to her legal fees, contrary to s 174(1)(b) of the Uniform Law.

1. As described above, in the costs agreement of 15 February 2018, the Client was given an estimate of $15,000 (comprising $10,000 in professional charges and $5,000 in disbursements) for the conduct of the matter in the event it did not involve the issue of any court proceedings or any mediation.
2. Section 174(1)(b) of the Uniform Law imposes an obligation on the Firm that it must, when or as soon as practicable after there is any significant change to anything previously disclosed, provide the Client with information disclosing the change. That is, here, the Firm was required to keep the Client informed as to any increases to the estimate it had given of $15,000.
3. In practical terms, this required that the Client be given notice when the Firm became aware that the costs and disbursements to the extent of $15,000 would be likely to be exceeded prior to the issuing of any court proceedings or mediation.
4. It was accepted that the Client had not been given any costs update, prior to being sent the bill for $22,002.81 on 30 October 2018 (and there had been no issuing of any court proceedings or mediation).
5. The total amount of $22,002.81 billed to the Client on 30 October 2018 comprised $19,346.25 in fees for the Firm, plus $2,656.56 in disbursements. These disbursements comprised $2,410 for fees of Ms Grigoriou and Mr McCoy, and $246.56 for probate and property searches. (All figures are inclusive of GST.)
6. In his evidence, Mr Sartori took responsibility for the failure to provide an updated costs estimate to the Client. In particular, he did not advise her when the estimate of $15,000 had been exceeded.
7. Mr Sartori also indicated, in response to questioning, that there was no specific system in place at the Firm for alerting the solicitors as to when the work in progress was nearing the estimate given.
8. As the VLSC said, the Client had been left entirely uninformed about the true extent of the mounting costs. It also submitted, correctly, (at [124]) that the fact that the costs agreement was on a 'no win no fee' basis did not diminish the Firm's 'fundamental obligation to provide costs updates as and when it became apparent that the estimates contained in the costs agreement were likely to be exceeded, or were in fact exceeded'.
9. In his submissions, Mr Connor pointed to Mr Sartori's acceptance of responsibility for this, and said the 'Section 35 Defence' also applies to this charge.
10. I find Charge 2 proved.
11. For the reasons set out above, the 'Section 35 Defence' does not avail Mr Connor.
12. Again, it was Mr Connor's responsibility as principal to establish systems to enable clients to receive updates about the costs incurred on their matters. The evidence indicates he did not do this. I am prepared to accept that Mr Sartori's evidence indicates he accepts some responsibility for not keeping the Client updated has some mitigatory effect, as far as Mr Connor is concerned.[30]
13. This is an allegation of unsatisfactory professional conduct, not professional misconduct. I am satisfied that Mr Connor's omission to ensure that the Client was kept updated as to the costs of the matter, particularly when they had ballooned out to significantly exceed the estimate given, falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.
14. This is a finding under s 298(a) in relation to the breach of s 174(1)(b) of the Uniform Law. The VLSC's submissions made no reference to s 296, so I make no finding in relation to that provision.

Professional misconduct within the meaning of s 297(1)(a) of the Uniform Law in that the Respondent charged legal costs far in excess of the fair and reasonable legal costs for the matter.

1. There are three aspects to charge 3. First, the VLSC says that no 'win' had been achieved, and therefore under the terms of the costs agreement, the Firm was not entitled to charge the Client any costs or disbursements at all.
2. Second, it is alleged that the costs agreement is void under s 178(1)(a) of the Uniform Law, as the result of the failure to provide a costs update.
3. Third, it is alleged that in any event, the legal fees charged were grossly in excess of what is fair and reasonable, that being the fundamental criterion under s 172 of the Uniform Law.
4. I have found below in favour of the VLSC's argument on the first of these issues - a win was not achieved. Therefore, no fees were payable.
5. From this it follows that the levying of a bill for $22,001.81 did constitute gross overcharging.
6. For completeness, however, I record that I find in favour of the VLSC in relation to the second and third aspects as well.
7. Mr Connor relied on two matters in relation to Charge 3. First, the 'Section 35 Defence'. Again, for the reasons stated above, I reject the argument that others bear responsibility for the bills sent by the Firm.
8. Second, Mr Connor submitted that for a charge of gross overcharging to be made out, there needs to be clear evidence of an intention to charge grossly excessive fees for the time spent. He suggested that was not the case, in light of the reduction apparently allowed by Mr Sartori from the amounts on the Firm's time recording system.
9. Mr Connor said that the GST inclusive figure of $19,346.25 referred to above represented $17,587.50 excluding GST, which was a discount on the pre-GST amount of $19,167.50 shown on the time recording system. He noted Mr Colonna's evidence that the hourly rates charged were fair and reasonable. He noted that there is no evidence or suggestion that the Firm, Mr Sartori or Ms O'Dwyer, concocted false time entries.
10. In these circumstances, Mr Connor's submitted that there was no intention to charge grossly excessive fees for the time spent.
11. However, it is not necessary to prove an intention to charge grossly excessive fees in order to make out Charge 3. Rather, it is sufficient if grossly excessive fees are in fact charged, whether deliberately or otherwise.
12. Mr Colonna reviewed the Firm's file and made an assessment of what would amount to fair and reasonable costs. This was the correct approach, given that as a result of the Firm's failure to provide updated costs disclosure (as found under charge 2) the costs agreement was void, and so costs were to be assessed on a fair and reasonable basis under s 172 of the Uniform Law.
13. Mr Colonna's assessment of the fair and reasonable costs for the work done on the file (for which $22,830.50 was charged) was $13,920.50. This was calculated on a time costed basis and included GST, but not disbursements. Mr Colonna said the total disbursements of $2,656.56 were fair and reasonable.
14. The main bases on which Mr Colonna determined that the fees charged by the firm exceeded fair and reasonable fees were:
    • Fees had been charged for administrative matters such as the creation of a new file and internal communications which would be 'taxed off' on a formal assessment of solicitor/client costs.
    • In a number of instances there was no file note to support the entry for an attendance for which time was recorded.
    • In a number of instances the amount of time recorded was excessive for the task undertaken, such as a brief email to the Client.
    • Concerning a conference with counsel, the file note did not stipulate the duration of the conference. A reduction made so that the amount charged accords with counsel's statement as to the duration of the conference (being two and a half hours).
    • Some entries reflected duplicated work. For example, perusal by two fee earners of the draft originating motion prepared by counsel, with only the fee for the senior solicitor being allowed.
    • Time spent by a new solicitor (presumably Mr Sartori) 'getting up to speed' with the matter is not a fair and reasonable charge.
    • Several entries were duplicates of other entries for the same task.
15. There was no evidence led to challenge the expert evidence of Mr Colonna. I accept his evidence.
16. In summary, I find that the Firm charged legal costs far in excess of the fair and reasonable legal costs for the matter, and Mr Connor bears responsibility for this. Costs should have been zero. But even if costs were properly billable, they were excessive.
17. I am satisfied this constitutes professional misconduct within the meaning of s 297(1)(a) of the Uniform Law.[31] That is, I am satisfied it comprises conduct 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 further, that it involves a substantial failure to reach or maintain a reasonable standard of competence and diligence.

Charge 5- Issuing a bill when a 'win' had not been achieved under the conditional costs agreement

Professional misconduct within the meaning of s 297(1)(a) of the Uniform Law in that the Respondent issued a bill on 30 October 2018 when a 'win' had not been achieved under the conditional costs agreement.

1. For the reasons set out below, I find that a 'win' had not been achieved under the conditional costs agreement. And I find that in claiming that a 'win' had been achieved, Mr Connor engaged in professional misconduct.
2. The primary basis for this finding is that nothing the Firm did brought about the payment being made to the Client.
3. However, I also find that procuring payment of the $60,000 to the Client was outside the scope of the retainer. Further, it is dubious whether it actually achieved a financial benefit to the Client's interests in any event.
4. In relation to this question of whether a 'win' had not been achieved, the sequence of relevant events is as follows:
   • On 10 October 2018 the Client sent an email seeking confirmation that she would not be required to pay any fees for work done to that point.[32]
   • On 22 October 2018, there was an email exchange in which Mr Sartori advised her that Mr Connor had instructed him that receipt of the monies from TAL counted as a win under the costs agreement. She responded, disagreeing. She said her share of the estate had not increased at all. She said if the superannuation was left to her as next of kin and she was named then she didn't see how that formed part of the estate.[33]
   • On 30 October 2018, the Firm sent a bill to the Client for $22,002.81, under cover of a letter which relevantly stated, 'Our presence obviously caused the estate-solicitors not to object to the TAL decision, despite the powerful wording in the Will' and took that money from trust.[34]
   • On 26 November 2018 Mr Sartori provided a two page response to an inquiry by the VLSC, contending that receipt of the funds from TAL did constitute a 'win' under the costs agreement.[35]
   • On 10 December 2018, Mr Connor wrote to the VLSC contending that RF Legal knew that 'we were vigorously acting for [the Client] and I am not surprised they did not contest the decision by TAL on the basis of the deceased's wishes reflected in Clause 4 of the Will. That looks like a 'win' to me.'[36]
5. The VLSC submitted that no 'win' had been achieved by the Firm, and so it was not entitled to charge any fees under the 'no win no fee' costs agreement. The sum of $22,002.81 had been wrongly taken out of trust.
6. The VLSC submitted that the Firm did nothing to bring about the payment of the $60,000 superannuation payment direct to the Client. Rather, it said the evidence showed that this happened as a result of action by Mr Frajsman, uninfluenced by anything the Firm did.
7. In summary (at [137]) the VLSC said:

When viewed in totality, the evidence demonstrates opportunistic conduct by the Respondent. The Respondent appears to have recognised that funds were sitting in trust following the fortuitous receipt of the TAL payment. He then appears to have decided that - rather than taking Mr McCoy's advice to clarify with RF Legal how the TAL cheque should be dealt with - he would use those funds to secure payment of his legal costs. This involved the Respondent subverting the agreed definition of a 'win' to justify billing for work that should have remained unpaid under the costs agreement. The Respondent effectively ignored the contractual protections that [the Client] had relied upon when engaging his services.

1. As part of its investigation, the VLSC made inquiries of Mr Frajsman as to the circumstances in which the $60,000 TAL payment was conveyed to the client care of the firm.
2. In a letter dated 11 December 2018, Mr Frajsman replied as follows:[37]

We note that on 10 September 2018, we had forwarded Constable Connor a letter addressed to [the Client], marked Private & Confidential. We did not open this letter out of courtesy, although we had requested Constable Connor to disclose the contents to us. We had deduced that this related to a payment of $60,000, as TAL had indicated to us. This was confirmed by Constable Connor in an email that they had sent to our office on 30 October 2018.

We surmise that TAL had deemed [the Client] to be the sole recipient, as she was the only child and dependent. Hence, this amount does not form part of the estate, which differs from the inventory of assets and liabilities that we had provided to the Supreme Court, as part of our application for Probate. Along with my co-executory, Gary Gibson, we were not privy to all of the information pertaining to this policy until the Grant of Probate enabled us to make further inquiries with TAL. Therefore, we have no qualms with the proceeds from the TAL policy being distributed directly to [the Client], as it did not form part of the estate.

1. The VLSC submitted, correctly, that this was reiterated by Mr Frajsman in his oral evidence to the Tribunal. It referred to his statements in evidence[38] that:

(a) he did not challenge the TAL money being paid to [the Client] because it did not form part of the estate;

(b) he has no memory of the Law Practice contacting him to advocate for him not to challenge the TAL money being paid to [the Client]; and

(c) to his knowledge, the Law Practice did not do anything to secure the TAL money being paid to [the Client].

1. Mr Connor, on the other hand, contended that Mr Frajsman 'elected not to investigate, much less challenge, the payment of the TAL monies to the Client because the client had retained Constable Connor to act for her.' His submission went on to say:[39]

It is submitted that the crucial evidence of Mr Frajsman (AM 74-83) is relevant in full as it provides the sequence of events and explanations for his actions as solicitor/ executor.

It also appears to emphatically endorse the Respondent's view to provide a clear understanding of how a win was achieved, particularly at AM 82-83.

1. In his evidence, Mr Frajsman explained how the will came to include reference at clause 4 to the TAL superannuation benefit: the father was asset rich but cash poor, and suggested the TAL money could be used to pay for funeral and other expenses (with the balance going to his granddaughter). Mr Frajsman had included clause 4 in the will on the basis of those instructions. But he had not seen the TAL policy at the time of drafting the will. because the father did not have it, and was living in a nursing home (and indeed, after his death, the policy could not be located).
2. Once a letter addressed to the Client had arrived from TAL, he had surmised that TAL had provided a cheque for $60,000 addressed to the Client because she was legally entitled to those funds under the policy (as either a dependent, or as his next of kin). That is why he sent the unopened envelope to the Firm. Mr Frajsman indicated, in effect, that on a 'pragmatic' basis he did not regard it as worthwhile to incur legal costs (which would reduce the corpus of the estate) on interrogating the issue of whether clause 4 could have any operation in practice. He indicated in his evidence that by that point, he was sufficiently satisfied that the TAL money did not in fact form part of the estate.
3. In the light of these matters, I do not accept Mr Connor's submission that Mr Frajsman's evidence supports his contention that Mr Frajsman had elected not to challenge the payment of the TAL monies to the Client because she had retained the Firm to act for her.
4. Further, had clause 4 of the will in fact had operative effect, the ultimate financial position of the Client and her daughter on the one hand, as compared to the sister on the other, would not have been significantly different. Given the fact that investigating this issue would have incurred legal expenses which would simply have reduced the corpus of the estate, this reinforces the 'pragmatic' considerations referred to by Mr Frajsman.
5. The VLSC also relied on the expert report of Mr Colonna in relation to the question of whether a 'win' had been achieved. At [91]-[92] of its submissions, the VLSC said:

Further, Mr Colonna formed the view that the Law Practice had not achieved a 'win' for the following reasons:

1. the payment from TAL was not necessarily a matter to which the costs agreement related, but rather was a "peripheral" issue and the Law Practice's involvement was "merely administrative";[40]
2. the acceptance of the TAL payment was not pursuant to [the Client's] instructions, and the obtaining of the TAL payment was not achieved by the Law Practice;[41] and
3. it is not clear that the TAL payment was a better result than what [the Client] was entitled to under the will.[42]

1. Mr Colonna's oral evidence was consistent with this. As the VLSC's submission said at [92]:

During the course of oral evidence, Mr Colonna clarified that not every positive thing that happens during the course of legal proceedings can be considered a 'win', and that it was necessary to determine the boundaries by first looking at the scope of the agreement the firm has with a particular client. He considered that in [the Client]'s case, the scope of the agreement she had with the Law Practice was limited to a promissory estoppel and/or a Part 4 application in relation to her father's will. He stated that [the Client] provided no instructions for the Law Practice to do anything with TAL and that there was no evidence the Law Practice did any work at all to obtain the TAL payment on behalf of [the Client].[43] He concluded that the TAL payment was "peripheral" to the work the Law Practice was engaged to do for [the Client], that their involvement in receiving those moneys was "purely administrative" and that they were not entitled to call the arrival of the cheque a 'win'.[44]

1. I agree with Mr Colonna's expert evidence. Mr Connor led no expert evidence to the contrary.
2. In terms of the contractual agreement between the Firm and the Client, I note that the description of a 'win' in neither the costs agreement nor the covering letter covers the situation here. Neither of the two dot points in the costs agreement which describe a 'win' (quoted at [37] above) are applicable here. The first refers to when the Client obtains an 'order' and the second to where 'there is a settlement or resolution'. Neither of those things occurred.
3. Additionally, there is the covering letter of 9 February 2018 to the conditional costs agreement.[45] This indicated that the matter to which the costs agreement related was '[the Client's] claim for a greater share of the estate'. While I cannot definitively say that the TAL finds were not part of the estate, all the evidence points towards that conclusion. It appears that was the view of TAL, of Mr Frajsman, Mr Sartori and Mr Connor himself.
4. Mr Sartori did not think [the Client] was required to pay any fees to the Law Practice.[46] He gave oral evidence that his reason for this belief was that:

I didn't think we had achieved a win for her in that matter, and under the provisions of the original costs agreement, it was clear we had to achieve a win.[47]

1. Mr McCoy did not express a firm view, but advised on 25 September 2018 that the Firm 'seek clarification from the executors as to whether they form the view that the superannuation benefit should be paid to the client or dealt with in accordance with the will'.[48] The Firm did not do this. It is clear from the above that had that been done, the response from Mr Frajsman and his co-executor would have been that they did not regard those funds as part of the estate.
2. The Firm's letter of 30 October 2018[49] expressed the following view:

The TAL Life Policy funds were paid to you, and the law in Victoria is that a Will does not deal with life insurance funds unless those funds are left to (or paid to) the estate.

1. Although this was signed by Mr Sartori, it was drafted on Mr Connor's instructions and settled by Mr Connor.[50]
2. In summary, the determinative consideration under Charge 5 is that the receipt of the TAL payment by the Client occurred without any action being taken by the Firm to bring this about.
3. But in addition to that, the pursuit of this payment was beyond the terms of the retainer.
4. Consequently, I find that there had not been a 'successful outcome' under s 181 of the National Law, and so the Firm was not entitled to charge any fees or disbursements under the conditional costs agreement.
5. Charge 5 is proved. The bill of 30 October 2018 was issued in circumstances where a 'win' had not been achieved.
6. I find this constitutes professional misconduct within the meaning of s 297(1)(a) of the Uniform Law. That is, it is unsatisfactory professional conduct involving a substantial failure to reach or maintain a reasonable standard of competence and diligence.
7. In this regard, I accept the VLSC submission (at [136]) that this conduct amounted to 'a substantial failure' for the following reasons:
   1. Legal services are expensive and consumers, particularly vulnerable or disadvantaged consumers, often do not have the means to access legal services. The use of 'no win, no fee' costs agreements is an important tool to aid access to justice.
   2. However, the inappropriate use of 'no win, no fee' costs agreements and, in particular, the charging of legal costs when a 'win' has not been achieved, fundamentally undermines that aim and prejudices those the system is designed to protect.
   3. The Uniform Law recognises the importance, and gravity, of conditional costs agreements and imposes special requirements and protections where a conditional costs agreement is to be used.
   4. The Respondent's contention as to why a 'win' was achieved was well outside the definition contained in the costs agreement, demonstrating a concerning disregard for the contractual terms agreed with his client.
8. In all the circumstances, Mr Connor's conduct is properly described as opportunistic. The basis on which it was claimed there was a 'win' was contrived. The bill was issued on Mr Connor's instructions, he being the sole principal, contrary to the inclination of his much less experienced subordinate, Mr Sartori, who was obliged to do what Mr Connor told him to do. The money was then taken from trust with unseemly haste.

Charge 6- Dishonesty in dealings with the Applicant

Professional misconduct within the meaning of ss 297(1)(a) and/or 298(b) of the Uniform Law in that the Respondent represented to the Applicant that:

(a) "the [Complainant] was in breach of the costs agreement because she blatantly lied to us"; and

(b) "[t]he [Complainant] lied to us, necessitating a second barrister conference",

when, in fact, the Complainant had not told any relevant lie and the second barrister conference was caused by unrelated matters, contrary to rule 43 of the Conduct Rules.

Subject only to his or her duty to the client, a solicitor must be timely, open and frank in his or her dealings with a regulatory authority.

1. The statements at (a) and (b) of Charge 6 were made by Mr Connor in letters to the VLSC dated respectively 17 December 2018 and 7 January 2019.
2. It appears the claim that the Client lied to the Firm may have initially been intended as providing a justification for charging her with legal fees, given that the costs agreement required her to provide full and honest instructions. This was not however, pursued as part of Mr Connor's defence to Charge 5.
3. In its submissions at [146], the VLSC described this allegation by Mr Connor as irrelevant. It also said it appeared to be nothing more than an attempt by the Respondent to deflect responsibility onto her in some unclear way.
4. The communications between the VLSC and Mr Connor or the Firm which are relevant to this charge is as follows:
   • The Firm's letter to the VLSC of 26 November 2018.[51] This stated that 'it appeared that the Client had misrepresented her position to Counsel [Ms Grigoriou] and us'. Later, after contending that the receipt of the TAL funds constituted a 'win', the letter said:

'Alternatively, by our client significantly inflating her position to the first Counsel, Constable Connor & Co were not able to make an accurate assessment of the case, and that client was in breach of the costs agreement as she maintained her position and did not provide evidence of her claims until long after she entered into the costs agreement.'

• Mr Connor's letter to the VLSC of 17 December 2018,[52] which included the statement: 'We also allege that the client was in breach of the costs agreement because she blatantly lied to us'.
• Mr Connor's letter to the VLSC of 7 January 2019,[53] which included the statement that, 'The client lied to us, necessitating a second barrister conference'.
• Mr Connor's email to the VLSC of 13 July 2020[54] (in response to the VLSC's request to say how it was that the client had lied) reiterating his contention that '...the client had lied to us because she could not back up her allegations which, if true, counsel had advised would amount to a promissory estoppel claim'. (This response included an email chain with responses by Mr Sartori and Ms O'Dwyer on this matter, referred to below).

1. Mr Sartori was clear in his communications at the time, in his witness statement and in his oral evidence, that he did not understand how the Client had allegedly lied to the Firm. As noted, his understanding was that the Client would not be required to pay any fees on this file.
2. During the VLSC's investigation, Mr Connor asked both Mr Sartori and Ms O'Dwyer about how it was that the Client had lied. Mr Sartori's email of 13 July 2020 to Mr Connor in response, stated:[55]

I cannot recall what the client's lie was which caused the costs agreement to become void. I can recall discussing it with you and you were certain that she had, but I have no record on the file or in notes.

1. In his oral evidence, Mr Sartori said Mr Connor told him very emphatically, on a number of occasions, that the Client had lied. However, Mr Sartori confirmed that he was never himself aware of anything which could be construed as a lie.
2. Similarly, Ms O'Dwyer stated that she did not believe that the client had lied to the Firm. She said in her witness statement that in response to Mr Connor's request, she had looked through the file to try to find where the client had lied. She said (at [34]) she felt Mr Connor was asking her to look for something that wasn't there.[56]
3. During the hearing itself, Ms O'Dwyer was questioned about this matter by Mr Connor. She confirmed that the Client had told her that she and her husband had invested a lot of money in the father's home and personally renovated it at their own expense and had been promised the house by her father. However, it took a long time to obtain evidence from the Client to attempt to support this claim. In the end the evidence was not sufficient. The effect of Ms O'Dwyer's evidence was that while the money invested was a lot in the Client's mind, it was not a substantial sum in the context of the circumstances of the estate overall. And it was not able to be proved. But the client did not lie.
4. At one point, in answering a question about this by Mr Connor, Ms O'Dwyer responded directly and firmly to him, saying: 'I don't think she lied, Peter'.
5. The Client's own evidence was consistent with this. Although she baulked at saying she had renovated 'extensively', she said she and her husband had spent a lot of their own money renovating her father's home.
6. The Client said the reason she entered into the process with the Firm was to see if she could have an earlier original version of the will, which was more favourable to her, given effect. She was clearly unfamiliar with legal matters. The effect of the evidence from the Client and other sources was simply that she was unhappy with the terms of the will and wished to explore the chances of improving her position. She conveyed some of the things that concerned her, but in general, she responded to the process undertaken by the Firm honestly, and as best she could.
7. Mr Connor asked the Client whether she had disclosed an 'enormous rift' with her father. Her response to this was that she could not recall what was said to the Firm. It was not a secret. She did not seek to hide this from Mr Connor or from Ms O'Dwyer. She also said that she had reconciled with her father before he died.
8. Neither the evidence elicited from the Client, nor from any other source, went anywhere near satisfying me that the Client lied in her communications with the Firm.
9. In his final submissions, Mr Connor sought to suggest, invoking authority relating to 'estrangement', that the Client had deliberately withheld information about her rift with her father. The evidence falls well short of satisfying me that there is any proper basis to conclude the Client was dishonest in this regard. The same applies to the question of the extent of the funds spent on renovation works to the Client's father's house.
10. As stated above, I am satisfied that each of these witnesses gave their evidence honestly, and to the best of their recollection.
11. At [140]-[145] of its submissions, the VLSC said:

The baseless nature of the Respondent's representations to the Commissioner is demonstrated by four key facts.

First, the Respondent was never able to specify what this purported lie was during the investigation, even when directly questioned in writing by the Commissioner. Indeed, he repeatedly instructed Ms O'Dwyer to search the file for evidence of the lie without explaining what she should be looking for. Ms O'Dwyer gave evidence that she felt she was being asked to find something that did not exist.

Second, no other person at the firm ever believed that [the Client] had lied. This includes Ms O'Dwyer who was present at both client conferences with [the Client] and who gave evidence that she does not believe [the Client] ever lied. It also includes Mr Sartori, who had carriage of the matter, but whose evidence is that he "was never sure of what the Respondent believed this misrepresentation to be".

This is contrary to the Respondent's attempts to implicate Mr Sartori in these unfounded allegations, falsely suggesting on two occasions that Mr Sartori agreed with his assessment that [the Client] had lied.

Third, there is no evidence whatsoever that [the Client] lied - no conference notes, letters, emails, or other documentation supports the allegation.

Fourth, the Respondent extensively cross-examined [the Client] about her supposed lie (suggesting at times that she had lied about having an "enormous rift" with her father before his death, and at other times that she had lied about investing a lot of money into her father's house). [The Client] clearly and repeatedly refuted his claims without making any concessions. In response to a direct question as to whether she had lied at any time to the Law Practice or to any barrister, she responded "Absolutely not. I find that offensive".

1. Mr Connor said in his submissions that he admitted he formed the view that the client had lied by exaggerating the time and money spent by herself and her husband on the deceased's home, and that that issue (along with the issue of estrangement) led to the need for the second barrister conference.
2. Mr Connor submitted that whether his view was reasonable is not the issue. The issue is whether he deliberately lied to the VLSC about his view. He said there was no evidence to that effect.
3. I disagree with this submission. I do not accept that in the scenario where a practitioner holds a view that their client has lied to them, which is not supportable in light of the evidence, but nevertheless persists in asserting to the regulator that the client has so lied, this can never comprise a breach of Rule 43.
4. Here, the nature of Mr Connor's conduct is illustrated by the fact that, in July 2019, having asserted to the regulator on several occasions over the prior seven months that the client had 'lied' and 'blatantly lied' to the Firm, he needed to ask his employees what the nature of the lie was. Neither was able to identify any such lie.
5. Despite this, Mr Connor has persisted, to the end of the hearing, in maintaining his position that the Client had lied to the Firm.
6. I note this is in circumstances where Ms O'Dwyer had had more extensive communications with the Client than Mr Connor, in particular, having attended both conferences with counsel.
7. Despite the heading 'Dishonesty in dealings with the Applicant', Charge 6 alleges a breach of Rule 43 of the Conduct Rules. That is, relevantly here, a breach of his duty to be open and frank in his dealings with the VLSC. The VLSC's submissions did not include a contention that Mr Connor was dishonest in this regard.
8. In all the circumstances, I am satisfied that Mr Connor's conduct in making the allegation on 17 December 2018 and 7 January 2019 that the Client had lied, given there was no proper basis on which to make this allegation, did comprise a breach of his duty under Rule 43 to be open and frank with the VLSC. This serious allegation was made, and repeated, without the regulator being provided with any basis on which to understand how it was that the Client had supposedly been dishonest.
9. Having found that there was no lie (this being the matter covered by part (a) of Charge 6), obviously, the second barrister conference could not then have been necessitated by a lie (the matter covered by part (b) of Charge 6).
10. I find Charge 6 proved. Mr Connor breached Rule 43.
11. A breach of the Conduct Rules is a matter which may constitute either professional misconduct or unsatisfactory professional conduct under s 298(b) of the Uniform Law.
12. The actual effect of the making of this allegation by Mr Connor is perhaps limited to its impacts on the investigation and on the Client.
13. Nevertheless, the allegation was made in florid terms, and recklessly so, in the circumstances.
14. In terms of characterisation, the VLSC submitted as follows at [148]:

It is submitted that the breach by the Respondent was sufficiently serious to warrant a finding of professional misconduct. The Respondent repeatedly asserted that [the Client] had lied, even describing the alleged lie as 'blatant'. An assertion by a lawyer that their client has lied should not be made lightly. In the Respondent's case, that assertion is all the more concerning in circumstances where it should have been clear to the Respondent that he could not maintain the representations in the face of all of those factors listed at paragraphs 141 - 145 above.

1. I agree. Despite the limited impact of the conduct the subject of Charge 6, I find it amounts to professional misconduct.
2. This is a finding under s 298(b) of the Uniform Law in relation to the breach of Rule 43. The VLSC's submissions made no reference to s 297(1)(a), so I make no finding in relation to that provision.

1. I have found all five charges pursued against Mr Connor by the VLSC proved. The next stage is for the Tribunal to make determinations as to the penalties which should be imposed.

The Applicant applies to the Victorian Civil and Administrative Tribunal (Tribunal) pursuant to s 300 of the Legal Profession Uniform Law (Victoria) (Uniform Law) for orders under Div 3 of Part 5.4 in respect of the Respondent.

The Applicant makes this application based on the following allegations of fact -

1. The Respondent (Mr Connor) was admitted to practice in Victoria on 1 March 1977.

1. Since 1 July 2015 Mr Connor has been an Australian legal practitioner within the meaning of section 6 of the Uniform Law.

1. At all relevant times, Mr Connor has held a practising certificate as Principal with trust account authority.

1. At all relevant times Mr Connor was a Legal Director of Constable Connor & Co Pty Ltd, an incorporated legal practice, trading as "Constable Connor Lawyers" (Law Practice).

1. At all relevant times Mr Connor operated the Law Practice as Principal Lawyer and supervised the work of junior solicitors and clerks, including Steven Sartori and Amanda O'Dwyer. At all relevant times Mr Sartori held a practising certificate subject to a supervision condition and without authority to receive trust money.

1. The application arises from a complaint made by [name redacted] (the Complainant) on 9 November 2018.

1. Between 8 January 2018 and 2 or 10 October 2018 the Law Practice acted for the Complainant in relation to a potential claim upon her late father's estate.

1. On 8 January 2018 the Complainant lodged an inquiry with searchplus.com.au seeking advice about contesting her late father's will.

Annexure 2 is an email from searchplus.com.au to Mr Connor dated 8 January 2018.

1. Mr Connor spoke to the Complainant by telephone that same day. The Complainant told Mr Connor the terms of her late father's will: 50% to her, 25% to her aunt and 25% to her daughter. She told Mr Connor that, before his death, her late father had promised her his home.

Annexure 3 is a file note of a telephone call between Mr Connor and the Complainant dated 8 January 2018.

1. Mr Connor then sent the Complainant an email asking her to send a copy of the will and stating that he would "have my staff set up the barrister appointment".

Annexure 4 is the email from Mr Connor to the Complainant dated 8 January 2018.

1. Between 8 and 12 January 2018 staff of the Law Practice and the Complainant corresponded in relation to obtaining a copy of the will. Mr Connor also conducted a search to determine if probate was granted in respect of the estate of the Complainant's late mother and sought to determine when her late father came to be registered as sole proprietor of his home.

1. On or about 11 January 2018 the Complainant provided a copy of the will.

Annexure 5 is an email exchange between the Complainant and Mr Connor dated 12 January 2018.

1. On 15 January 2018 Mr Connor wrote to RF Legal, the solicitors for the executors of the estate of the Complainant's father, and requested a copy of the latest will.

Annexure 6 is a letter from the Law Practice to RF Legal dated 15 January 2018.

1. Also on 15 January 2018 Amanda O'Dwyer, a clerk at the Law Practice, arranged a conference with Georgina Grigoriou, a barrister, for 1 February 2018.

1. The Law Practice also wrote to the Complainant, advising her of the date of the conference, and requesting instructions to enable Ms Grigoriou to advise about prospects.

Annexure 7 is a letter from the Law Practice to the Complainant dated 15 January 2018.

1. On 17 January 2018, Mr Connor received a letter from RF Legal enclosing the last three wills of the deceased.

Annexure 8 is a letter from RF Legal to the Law Practice dated 16 January 2018 but marked as received on 17 January 2018.

1. The letter from RF Legal confirmed that the will supplied by the Complainant on or about 11 January 2018 was the latest will. The will provided, inter alia:

I DIRECT the Trustee of my fund with TAL to distribute the proceeds of my benefit to the Trustees of my estate to pay all funeral and testamentary expenses and all taxes and duties charged on my estate or occasioned with my death. I THEN GIVE the remainder of my benefit with TAL to my Trustees to hold on trust for my newborn granddaughter and/or any other grandchild in equal parts until they attain the age of twenty-five (25) years.

1. The same day, 17 January 2018, Mr Connor instructed Ms O'Dwyer to prepare a brief to Ms Grigoriou.

Annexure 9 is a letter from the Law Practice to Ms O'Dwyer dated 17 January 2018.

1. On 18 January 2018, Mr Connor told the Complainant that the Law Practice would act for her on a "no win/no fee" basis only if counsel advised that her claim had merit. In particular, Mr Connor told the Complainant that:

If Georgina Grigoriou [sic] advises, after the conference on February 1, that you have no case, I will be paying her barrister's fees and you will owe me $nil. If she says you have a case worth pursuing, I will be offering you a "no win/no fee/no risk" costs agreement for your approval.

There is no money obligation unless you approve and sign a costs agreement.

Happy to discuss further but I suggest we wait until Georgina has assessed your potential claim.

If she does not like your claim, we are wasting our breath because I will be declining to act further for you.

Annexure 10 is an email from Mr Connor to the Complainant dated 18 January 2018.

1. On 22 January 2018 the Complainant returned by email to Ms O'Dwyer the documents attached to the Law Practice's 15 January 2018 email which had been completed to record her instructions.

Annexure 11 is an email from the Complainant to Ms O'Dwyer dated 22 January 2018.

1. On 25 January 2018 the Law Practice sent a brief to Ms Grigoriou. In relation to fees, the memorandum to counsel stated that:

This is an ordinary brief in the sense that the applicant has instructed us that counsel's fees are to be paid - win, lose or draw. However, the applicant may be interested in engaging counsel on a "no win/no fee" basis if counsel sees fit to offer such an arrangement.

For our part, we have agreed to act "no win/no fee" on the applicant's matters.

It is instructing solicitors' modus operandi to instruct Counsel early so that instructing solicitors can make an early decision on whether or not to continue to conduct this matter on a "no win/no fee" basis.

Annexure 12 is a brief backsheet and memorandum to counsel dated 25 January 2018.

1. There is no evidence on the file that the Complainant had instructed the Law Practice that Ms Grigoriou's fees were to be paid "win, lose or draw". Further, and in any event, there was no written costs agreement at that stage.

1. On 1 February 2018 Ms O'Dwyer and the Complainant met with Ms Grigoriou.

1. Ms O'Dwyer's file note of the conference records that Ms Grigoriou advised that the Complainant's claim for a constructive trust was "not great" but that a claim under Pt 4 of the Administration and Probate Act 1958 (Vic) had merit. The file note also records that, at the conference, the Complainant mentioned her late father held a life insurance policy worth $60,000.

Annexure 13 is Ms O'Dwyer's handwritten notes of the conference on 1 February 2018.

1. Later on 1 February 2018 Ms Grigoriou sent a draft originating motion to the Law Practice.

Annexure 14 is an email from Ms Grigoriou to Ms O'Dwyer dated 1 February 2018.

1. On 2 February 2018 the Complainant sent an email to Ms O'Dwyer raising a number of concerns and new matters.

Annexure 15 is an email from the Complainant to Ms O'Dwyer dated 2 February 2018.

1. On 3 February 2018 Mr Connor spoke to the Complainant by telephone. In addition to discussing her email, Mr Connor told the Complainant that he would delegate her matter to a junior lawyer at the Law Practice, Steven Sartori. Mr Connor then sent an email to Mr Sartori.

Annexure 16 is an email from Mr Connor to Mr Sartori dated 3 February 2018.

1. Later on 3 February 2018 Mr Connor sent an email to the Complainant repeating that he had delegated the matter to Mr Sartori. Mr Connor referred to the fact that "Georgina Grigoriou, your barrister, has confirmed you have a solid claim".

Annexure 17 is an email from Mr Connor to the Complainant dated 3 February 2018.

1. On 5 February 2018 Ms O'Dwyer sent an email to Mr Sartori attaching the draft originating motion prepared by Ms Grigoriou.

Annexure 18 is an email from Ms O'Dwyer to Mr Sartori dated 5 February 2018.

1. On 9 February 2018 the Law Practice wrote to the Complainant, noting that "Ms Georgina Grigoriou, has agreed to take on your claim" and enclosing the "standard Constable Connor 'no win/no fee/no risk' costs agreement". In the body of the letter, the Law Practice stated that: "[i]n relation to your claim for a greater share of the estate, a "win" will occur if we achieve a better result than what you are already entitled to under you [sic] late father's will."

1. The costs agreement provided the following estimates of legal fees:

(a) Not involving the Issue of any Court Proceedings or any Mediation

(b) Involving the Issue of any Court Proceedings but assuming settlement at a Mediation:

(c) Involving the Issue of any Court Proceedings, a Mediation and assuming a 3 day trial:

1. The costs agreement also contained provisions about when a "win" was defined to occur, the most relevant provision being the following:

Subject to you entering into the Conditional Costs Agreement, we will charge you professional fees ONLY IF YOU WIN. ...

A win (also known as a "Successful Outcome" under the Uniform Law) may occur in a variety of ways.

• when you obtain an order to be paid a lump sum or obtain an order to receive property from a deceased estate, whether by court action or settlement or otherwise;
• when there is a settlement or resolution of the matter in accordance with your instructions whether or not money is payable to you or on your behalf; or
• if an offer of settlement is made which we recommend ... that you accept.

NOTE: We will charge our full professional fees and disbursements if you withdraw your instructions before completion of your matter for any reason up to the date you notify us in writing of the termination of the retainer.

• You will receive a final account which will include all our costs and all disbursements;
• You must pay our costs up to the date we cease to act for you; and

You may end our engagement by written notice at any time. If so, then all legal costs incurred up to the date of termination will be charged. ...

Annexure 19 is a letter from the Law Practice to the Complainant dated 9 February 2018.

1. On 15 February 2018 the Complainant signed and returned the costs agreement.

Annexure 20 is the signed costs agreement dated 15 February 2018.

1. The Law Practice did not provide the Complainant with any further updates regarding her costs after this date.

1. Between February and June 2018, the Complainant and Law Practice engaged in minimal further communication in which the Complainant provided the Law Practice instructions regarding her matter.

1. In June 2018 Ms Grigoriou issued an invoice for $1,750. The Law Practice instructed her to retain the brief.

Annexure 21 is an email from Ms Grigoriou to Ms O'Dwyer dated 19 June 2018 and tax invoice dated 19 June 2018.

1. On 2 July 2018 probate was granted. The Law Practice subsequently obtained from RF Legal a USB stick containing relevant documents. On 17 July 2018 the Law Practice sent the USB stick to a clerk at Green's List, in advance of a conference with counsel, but with specific instructions not to deliver the USB stick to counsel.[57]

Annexure 22 is a letter from the Law Practice to Green's List dated 17 July 2018.

1. Also on 17 July 2018 the Law Practice engaged Probate Services Pty Ltd to conduct a search of the Supreme Court file and obtain various probate documents. On 27 July 2018 the Law Practice sent a copy of those documents to the Complainant.

1. On 28 July 2018 the Complainant, who was overseas, provided her comments on the documents.

Annexure 23 is an email from the Complainant to Ms O'Dwyer dated 28 July 2018.

1. On 30 July 2018 Ms O'Dwyer sent an email to Mr Sartori. She stated that:

I spoke to Georgina Grigoriou on Friday, she is heading o/s in a couple of weeks and doesn't want to look at anything until September, when she returns.

Georgina does not recall this matter at all, she has requested we forward her a new memorandum with the supporting documents.

It appears that our client gets 50%. How much more does she want? Her daughter gets 25%. Georgina said well she's not going to get much more!

We need to review the first memorandum, not sure if we had the correct Will at the time. I'll double check.

Annexure 24 is an email from Ms O'Dwyer to Mr Sartori dated 30 July 2018.

1. The original brief to Ms Grigoriou did contain the correct will (see reference on page 2 of Annexure 13 to "1. Will dated 4 September 2017"). RF Legal had provided the Law Practice with a copy of the deceased's will on 18 January 2018 (see Annexure 8).

1. Mr Sartori sent a response to Ms O'Dwyer less than an hour later. He asked "[i]s Georgina going to be able to prepare the necessary documents or do we have to brief somebody else?" Mr Sartori was apparently unaware that Ms Grigoriou had already drafted an originating motion on 1 February 2018 (Annexure 14) and issued an invoice for that work (Annexure 21), despite Ms O'Dwyer sending him the draft on 5 February 2018 (Annexure 18).

Annexure 25 is an email from Mr Sartori to Ms O'Dwyer dated 30 July 2018.

1. On 10 August 2018, RF Legal telephoned the Law Practice to advise that the sale of the Complainant's father's house would settle on 24 August 2018 and, thereafter, they would "work out distro". The Law Practice's note of that conversation also recorded that RF Legal said "$to come in then."

Annexure 26 is Mr Sartori's handwritten notes of the telephone call on 10 August 2018.

1. On 17 August 2018, after over two weeks of inactivity, Ms O'Dwyer sent an email to Mr Sartori seeking an update on the matter and restating that Ms Grigoriou was on leave from late August to early October 2018.

Annexure 27 is an email from Ms O'Dwyer to Mr Sartori dated 17 August 2018.

1. Also on 17 August 2018 RF Legal sent a letter to the Law Practice which confirmed that settlement on the sale of the Complainant's father's house would occur on 24 August 2018. Their letter also adverted to the fact that: "[w]e have forwarded a claim to TAL Life Limited regarding the deceased's life insurance policy".

Annexure 28 is a letter from RF Legal to the Law Practice dated 17 August 2018.

1. Correspondence between RF Legal and TAL indicates that a claim was made on 13 August 2018. On 23 August 2018 TAL advised that the claim was approved and payment would be made forthwith.

Annexure 29 is an email from TAL to RF Legal dated 23 August 2018.

1. On 4 September 2018 TAL wrote to "[the Complainant] c/- RF Legal". The letter was marked private and confidential. RF Legal subsequently sent the TAL letter, unopened, to the Law Practice on 10 September 2018, noting that they would appreciate if the contents of the letter were disclosed to the writer in his role as co-executor.

Annexure 30 is a letter from TAL addressed to "[the Complainant] " dated 4 September 2018 and a covering letter from RF Legal to the Law Practice dated 10 September 2018.

1. A file note in RF Legal's file discloses that, on 10 September 2018, someone at RF Legal spoke to Ms O'Dwyer. The file note records that:

Amanda asked what we wanted to know. I said that we would appreciate if they could disclose the contents. I deduced it would be a cheque for death benefit for LS, as TAL would have deemed LS to be a dependent.

Annexure 31 is a typed file note of a telephone conversation between RF Legal and Ms O'Dwyer on 10 September 2018.

1. TAL's letter contained a cheque to the Complainant in the amount of $60,000.

1. On 11 September 2018 the Law Practice deposited the cheque into its trust account in respect of the Complainant's matter. It would appear the deposit was authorised by Mr Sartori.

Annexure 32 is a "Trust Receipt Requisition" dated 11 September 2018.

1. There is no evidence on the file that the Law Practice told the Complainant that it had received $60,000 on her account or sought (or received) an instruction as to how to deal with the money. Despite RF Legal's request, the Law Practice did not advise RF Legal what was in the envelope until 30 October 2018 or provide a trust account receipt. It appears that the Complainant did not learn of the existence of the $60,000 until shortly before, or at, the conference with Mr McCoy, referred to below.

1. The Law Practice proceeded to brief another barrister, Brett Harding, in August 2018. The Law Practice wrote to the Complainant to advise her of a conference, which was planned for 4 September 2018, on 23 August 2018.

Annexure 33 is a letter from the Law Practice to the Complainant dated 23 August 2018.

1. On 26 August 2018 the Complainant queried why she was to meet with a different barrister.

Annexure 34 is an email from the Complainant to Ms O'Dwyer dated 26 August 2018.

1. Ms O'Dwyer replied to the Complainant, and advised that Mr Sartori had requested they meet with another barrister, "to discuss the specific part of your claim", as Ms Grigoriou was on leave.

Annexure 35 is an email from Ms O'Dwyer to the Complainant dated 27 August 2018.

1. On 13 September 2018 the Complainant was advised that her barrister had been changed again, to Jonathan McCoy, who she was to meet on 25 September 2018.

Annexure 36 is a letter from the Law Practice to the Complainant dated 13 September 2018.

1. The brief to Mr McCoy included the same statement about fees as the brief to Ms Grigoriou, i.e. "the applicant has instructed us that counsel's fees are to be paid - win, lose or draw. However, the applicant may be interested in engaging counsel on a "no win/no fee" basis if counsel sees fit to offer such an arrangement".

Annexure 37 is a brief backsheet and memorandum to counsel dated 21 September 2018.

1. There is no evidence that the Complainant instructed the Law Practice to pay Mr McCoy's fees on that basis.

1. The conference proceeded on the planned date. Ms O'Dwyer took notes and, after the conference, sent an email to Mr Sartori summarising Mr McCoy's advice. Mr McCoy also sent an email setting out his views.

Annexure 38 is Ms O'Dwyer's handwritten notes of the conference on 25 September 2018, an email from Ms O'Dwyer to Mr Sartori dated 25 September 2018 and an email from Mr McCoy to Mr Sartori dated 25 September 2018.

1. In both her notes and her email, Ms O'Dwyer recorded that Mr McCoy's advice was that the promissory estoppel and family provision claims did not have merit. Mr McCoy's email confirmed that position.

1. As for the funds received from TAL, Mr McCoy's advice was that:

I noted that the will directs the superannuation benefit to be paid to the executors and trustees to be held by them on trust for the deceased's grandchildren. However, the benefit has been paid to your office on behalf of the client. I suggest you seek clarification from the executors as to whether they form the view that the superannuation benefit should be paid to the client or dealt with in accordance with the will.

1. In her handwritten notes, Ms O'Dwyer wrote that:

? J wants clarity with o's on what they are intending 2 do with SA cheque $60 -> her child

3. Jonathan would like us to write to the estate solicitors for the following:-

a. Get clarity on what they're intending to do with the $60K Superannuation cheque. Under clause 4. of the Will superannuation money is to be held on trust for the grandchildren and to pay funeral, testamentary expenses etc.

1. The Law Practice subsequently wrote to the Complainant on 2 October 2018, stating that "Mr McCoy has advised that there are limited prospects for success for claims of estoppel or further maintenance from your late father's estate. On that basis, we are unable to act for you 'no win/no fee'".

Annexure 39 is a letter from the Law Practice to the Complainant dated 2 October 2018.

1. The Complainant subsequently wrote to Mr Sartori on 10 October 2018, stating "I do not wish to further pursue the matter, based on Mr McCoy's advice", and seeking confirmation that she was not required to pay any fees for the work done thus far.

Annexure 40 is an email from the Complainant to Mr Sartori dated 10 October 2018.

1. On the same day, the Law Practice prepared a draft account to be sent to the Complainant.

Annexure 41 is a memorandum from "RDB" to Mr Sartori dated 10 October 2018.

1. On 22 October 2018, Mr Sartori sent the Complainant an email, noting he had been instructed by Mr Connor that the life insurance funds counted as a win under the costs agreement and that an invoice would be sent to the Complainant shortly. The Complainant subsequently took issue with this characterisation. She recalled that:

The superannuation funds were discussed at the meeting with the barrister and he instructed they should be returned to the executor as the barrister believed they had been sent in error and actually formed part of the estate.

I therefore do not believe they are a 'win'. I have received nothing. My share of the estate has not increased from 50% which was what Peter said would constitute a 'won'.

Annexure 42 is an email exchange between the Complainant and Mr Sartori dated 22 October 2018.

1. On 30 October 2018 the Law Practice issued a bill to the Complainant for the amount of $22,002.81.

1. In its covering letter, the Law Practice stated that:

I advise that the notes from the Barrister's Conference and Counsel's advice do not support your interpretation of the advice given to you by Counsel.

I have discussed your concerns further with Peter Connor and his position is outlined below.

The TAL Life Policy funds were paid to you, and the law in Victoria is that a Will does not deal with life insurance funds unless those funds are left to (or paid to) the estate. The funds we have received from TAL for you count as $60,000.00 more than you would have received under the Will. This means that there is a "win" under the costs agreement that you signed. I have enclosed a copy of the TAL letter for your records. Our presence obviously caused the estate-solicitors not to object to the TAL decision, despite the powerful wording of the Will.

Annexure 43 is a letter from the Law Practice to the Complainant dated 30 October 2018, a trust account statement and a tax invoice (lump sum) dated 30 October 2018.

1. That same day, the Law Practice transferred the sum of $22,002.81 from its trust account to its office account. The Law Practice then drew a cheque upon its office account for $2,410 payable to Green's List Clerking Services Pty Ltd in respect of Ms Grigoriou's and Mr McCoy's fees.

Annexure 44 is an "Office Cheque Requisition" form dated 30 October 2018 and a Journal Request form dated 30 October 2018.

1. Also on 30 October 2018 the Law Practice belatedly wrote to RF Legal to advise what was contained in the envelope from TAL marked "private and confidential".

Annexure 45 is a letter from the Law Practice to RF Legal dated 30 October 2018.

1. As noted above, on 9 November 2018, the Complainant made a complaint. The complaint contained both a consumer and a disciplinary matter.

1. On 12 November 2018 the Applicant notified Mr Sartori of the complaint and invited him to respond.

Annexure 46 is an email from the Applicant to Mr Sartori dated 12 November 2018, with the annexures omitted.

1. During November 2018 the Applicant and Mr Sartori corresponded in relation to the complaint and a potential mediation of the complaint. By letter dated "26 March 2018", but sent on 26 November and received on 27 November 2018, Mr Sartori alleged that "it appeared that [the Complainant] had misrepresented her position to Counsel and us". In relation to the deposit of the $60,000 into the Law Practice's trust account, the decision to terminate the engagement, the issuing of the Bill and the Law Practice's position that a 'win' had been achieved, in each case, Mr Sartori explained that he sought Mr Connor's approval and acted in accordance with his instructions.

Annexure 47 is a letter from the Law Practice to the Applicant dated "26 March 2018", but received on 26 November 2018.

1. On 4 December 2018 the Applicant sent an email to Mr Sartori stating that mediation had been assessed as unsuitable and asking several questions:

1. Given the cost agreement was terminated by the law practice on 2 October 2018, what authority did you have to deposit the clients cheque from TAL into the trust account?

2. The client received a cheque from TAL on the basis that she was the deceased's next of Kin. Please explain on what basis this is a "win" and what your law practice did in order to achieve the "win" on behalf of the Complainant?

3. Please confirm the balance of funds held in trust and provide a copy of the trust ledger.

Annexure 48 is an email from the Applicant to Mr Sartori dated 4 December 2018.

1. On 10 December 2018 Mr Connor provided a response to the Applicant's 4 December 2018 email. Mr Connor contended that:

There is no evidence on the file that the cheque from TAL was paid "on the basis that ([the Complainant]) was the deceased's next for kin." I am enclosing a copy of the deceased's last will dated 4 September 2017. I direct your attention to Clause 4. Steve Sartori had been in correspondence with the Estate's solicitors since April 2018. They knew we were vigorously acting for [the Complainant] and I am not surprised that they did not contest the decision by TAL on the basis of the deceased's wishes reflected in Clause 4 of the Will. That looks like a "win" to me.

Mr Connor also conceded that it was "obvious that there has been a contravention of Rule 42 in this matter."

Annexure 49 is a letter from the Law Practice to the Applicant dated 10 December 2018.

1. On 11 December 2018 RF Legal provided the Applicant with copies of documents relating to the $60,000 paid by TAL.

Annexure 50 is a letter from RF Legal to the Applicant dated 11 December 2018.

1. In addition to providing documents, RF Legal addressed the $60,000 paid by TAL to the Complainant:

We note that on 10 September 2018, we had forwarded Constable Connor a letter addressed to [the Complainant], marked Private & Confidential. We did not open this letter out of courtesy, although we had requested Constable Connor to disclose the contents to us. We had deduced that this related to a payment of $60,000, as TAL had indicated to us. This was confirmed by Constable Connor in an email that they had sent to our office on 30 October 2018.

We surmise that TAL had deemed [the Complainant] to be the sole recipient, as she was the only child and dependent. Hence, this amount does not form part of the estate, which differs from the inventory of assets and liabilities that we had provided to the Supreme Court, as part of our application for Probate. Along with my co-executory, Gary Gibson, we were not privy to all of the information pertaining to this policy until the Grant of Probate enabled us to make further inquiries with TAL. Therefore, we have no qualms with the proceeds from the TAL policy being distributed directly to [the Complainant], as it did not form part of the estate.

1. On 11 December 2018 the Applicant requested that the Law Practice remit the balance of the funds it held in trust, being $37,997.19, to the Complainant. The Applicant also requested that the Law Practice transfer the $22,002.81 deducted on account of the bill back to its trust account.

Annexure 51 is an email from the Applicant to Mr Connor dated 11 December 2018.

1. On 12 December 2018 the Law Practice remitted $37,997.19 to the Complainant. However, as for the balance of $22,002.81, on 12 December 2018 Mr Connor advised the Applicant that there were insufficient funds in the Law Practice's office account to return those funds to its trust account.

Annexure 52 is a letter from the Law Practice to the Applicant dated 12 December 2018.

1. On 12 December 2018 the Applicant sent a request for further information to Mr Sartori. In particular, the Applicant sought responses to the following questions:

1. What did your Law Practice do to secure the funds paid by TAL to [the Complainant]?

2. If TAL confirm that [the Complainant] has received the funds from them as she was the deceased's next of kin, on what basis can the Law Practice maintain its claim that it secured a "win" when the funds were always coming to her?

3. What steps did you take to secure instructions from [the Complainant] to refund the balance of funds held in trust, please provide evidence of same.

4. Why were funds deducted from the trust account on 30 October 2018 for your invoice 8194 dated 30 October 2018 without having been provided to [the Complainant]?

5. Why [sic] the invoice dated 30 October 2018 significantly exceed the estimate despite legal proceedings having not been commenced?

Annexure 53 is a letter from the Applicant to Mr Sartori dated 12 December 2018.

1. On 17 December 2018 Mr Connor provided a response to the Applicant's 12 December 2018 letter. Mr Connor requested that all future correspondence be directed to him. Further, Mr Connor stated that he and Mr Sartori "allege[d] that the client was in breach of the costs agreement because she blatantly lied to us."

Annexure 54 is a letter from Mr Connor to the Applicant dated 17 December 2018.

1. On 7 January 2019 Mr Connor provided a further response to the Applicant's 12 December 2018 letter. He enclosed with his letter, inter alia:

(a) an itemised bill;

(b) a combined trust and office account ledger; and

(c) a time recording ledger.

Annexure 55 is a letter from Mr Connor to the Applicant dated 7 January 2019, an itemised bill, a combined trust and office account ledger and a time recording ledger.

1. In the body of his letter, Mr Connor alleged that "[t]he client lied to us, necessitating a second barrister conference_. ... As a result of the client's lies (which constitute a breach of her contract with my Practice), this matter never got within shouting distance of a Mediation._"

1. On 14 May 2019 the Applicant appointed a costs assessor to provide advice as to whether the conditional costs agreement complied with the Uniform Law and to perform a costs review to determine the fair and reasonable value of the work performed by the Law Practice.

Annexure 56 is a letter from the Applicant to the costs assessor dated 14 May 2019.

1. On 6 June 2019 the costs assessor provided a report.

Annexure 57 is a costs review outcome report dated 6 June 2019.

1. The costs assessor considered that the costs agreement was void because the Law Practice had failed to provide a single estimate of total costs payable by the Complainant and the Law Practice had failed to provide updated costs disclosure when the estimate of $15,000 (inclusive of disbursements and GST) was exceeded.

1. Further, the cost assessor formed the view that the Law Practice had not achieved a 'win' for the following reasons:

(a) the payment from TAL was not necessarily a matter to which the costs agreement related, but rather was a peripheral issue and the Law Practice's involvement was merely administrative;

(b) the acceptance of the TAL payment was not pursuant to the Complainant's instructions, and the obtaining of the TAL payment was not achieved by the Law Practice; and

(c) it is not clear that the TAL payment was a better result than what the Complainant was entitled to under the will.

1. As a result, the costs assessor determined that the Law Practice was not entitled to charge any amount for costs and disbursements.

1. In the alternative, if the Law Practice was entitled to charge for costs and disbursements, the costs assessor calculated the fair and reasonable costs as $11,971.20 (plus disbursements).

1. On 13 May 2020 the Applicant wrote to Mr Connor to inform him of the outcome of the costs review and the commencement of a disciplinary investigation. The matters the subject of the disciplinary investigation included:

1. You applied trust funds to your office account without authority from your client;

2. You issued a bill which exceeded your estimate without any update in cost disclosure;

3. You issued a bill which grossly overcharged your client;

4. You issued a bill in circumstances where your conditional cost agreement had been terminated and where you had not achieved a 'win' pursuant to the conditional cost agreement; and

5. You have not been honest at times in your communications with your client and with this Office.

Annexure 58 is a letter from the Applicant to the Law Practice dated 13 May 2020.

1. On 13 and 14 May 2020 the Applicant and Mr Connor exchanged emails in relation to the investigation.

Annexure 59 is a bundle of emails passing between the Applicant and Mr Connor on 13 and 14 May 2020.

1. In his 13 May 2020 email, Mr Connor stated that:

I have patiently explained to you guys (many times) that this matter of [Complainant's name]was conducted by my then employee, Steven Sartori, who now conducts his own practice in Wangaratta.

Please do not tell me that I bear the ultimate responsibility as Steven's employer at the time. I know this.

1. On 23 June 2020 Mr Connor provided a response to the Applicant's 13 May 2020 letter.

Annexure 60 is a letter from the Law Practice to the Applicant dated 23 June 2020.

1. With respect of the matters under investigation, Mr Connor's responses were:

The authority to deduct funds is contained in the signed costs agreement.

The authority to issue a bill which exceeded an estimate is also contained in the signed costs agreement.

The notion that the costs agreement had been terminated at any relevant time will be contested in Court.

Steve Sartori is grossly offended at the allegation that we have "not been honest at times" in our communications with the client and the LSBC. Further and better particulars are required. With respect, these sorts of allegations should not be thrown around alleging that there is no evidence from the file to support the evidence before your eyes - Steve Sartori's evidence is that the client lied to us and he is adamant that Counsel's advice was as stated.

1. On 24 June 2020 the Applicant requested that Mr Connor respond to the following specific questions:

A. How did [the Complainant] 'lie' to you, as you have previously submitted she has done;

B. How did the involvement and/or actions of the Law Practice have any impact on [the Complainant's] receipt of the TAL payment;

C. Whether Mr Sartori's letter of 30 October 2018 was written at your direction and/or with your authority and/or with your knowledge.

Annexure 61 is an email exchange between the Applicant and Mr Connor dated 24 June 2020.

1. On 13 July 2020 Mr Connor sent two emails to the Applicant, which contained responses from Mr Sartori and Ms O'Dwyer.

Annexure 62 is a set of two emails from Mr Connor to the Applicant dated 13 July 2020.

1. In relation to the Complainant's alleged 'lie', Mr Sartori's email stated that:

I cannot recall what the client's lie was which caused the costs agreement to become void. I can recall discussing it with you and that you were certain that she had, but I have no record on the file or in notes.

1. On 31 August 2021 the Applicant requested certain information from Ms O'Dwyer.

Annexure 63 is a letter from the Applicant to Ms O'Dwyer dated 31 August 2021.

1. On 1 September 2021 Ms O'Dwyer provided a response to the Applicant.

Annexure 64 is an email from Ms O'Dwyer to the Applicant dated 1 September 2021.

1. On 30 November 2021 the Applicant notified Mr Connor in accordance with the principles expressed by the Supreme Court of New South Wales Court of Appeal in Murray v Legal Services Commissioner and Anor [1999] NSWCA 70; [1999] 46 NSWLR 224, that the investigation of the complaint was close to being finalised, and to offer Mr Connor an opportunity to provide further written submissions or material that he would like to be taken into consideration before the Applicant made a decision as to whether his conduct amounted to unsatisfactory professional conduct or professional misconduct (the Murray letter).

Annexure 65 is the Murray letter, without attachments.

1. On 13 February 2022 Mr Connor sent a response to the Applicant. Mr Connor requested that he be permitted to inspect the hard copy file in the Applicant's possession.

Annexure 66 is a letter from the Law Practice to the Applicant dated 13 February 2022.

1. On 2 March 2022 the Applicant provided access to the hard copy file by way of an electronic download link.

Annexure 67 is a letter from the Applicant to Mr Connor dated 2 March 2022.

1. On 4 March 2022 Mr Connor accessed and downloaded portions of the electronic copy of the Law Practice's file.

1. The Applicant has not received any further correspondence from Mr Connor.

1. On 26 May 2022, by way of letter, the Applicant notified Mr Connor of her decision to make this application (Annexure 68 is a copy of this letter). The Applicant also notified the Respondent of her decision with respect to the consumer matter (Annexure 69 is a copy of the Determination made pursuant to section 290(2)(e) of the Uniform Law).

The Applicant initiates this proceeding against the Respondent in the Tribunal as, following an investigation, the Applicant is of the opinion that the alleged conduct may amount to professional misconduct under the Uniform Law, and/or may amount to unsatisfactory professional conduct under the Uniform Law that would be more appropriately dealt with by the Tribunal. Pursuant to s 300 of the Uniform Law, the Applicant makes this application to the Tribunal for determination of the following orders, charges and for consequential orders pursuant to ss 302 and 303 of the Uniform Law.

CHARGE 1 - Application of trust funds without authority

Professional misconduct within the meaning of s 297(1)(a) of the Uniform Law and/or s 298(a) and/or s 298(b) of the Uniform Law in that the Respondent applied trust funds to pay legal costs and disbursements on 30 October 2018 without first obtaining the Complainant's authority and contrary to her objection in contravention of:

(a) r 42 of the Legal Profession Uniform General Rules 2015;

Unsatisfactory professional conduct within the meaning of ss 178(1)(d), 296 and/or 298 of the Uniform Law in that the Respondent failed in or about February 2018, and/or at any time thereafter, to provide the Complainant with a written update about there being a significant change to her legal fees, contrary to s 174(1)(b) of the Uniform Law.

Professional misconduct within the meaning of s 297(1)(a) of the Uniform Law in that the Respondent charged legal costs far in excess of the fair and reasonable legal costs for the matter.

Paragraphs 68 and 84 - 89 and Report by John Colonna dated 14 March 2023

CHARGE 4 - Issuing a bill when a 'win' had not been achieved under the conditional costs agreement

Misconduct at common law, within the inclusive definition of professional misconduct in s 297(1) of the Uniform Law, for engaging in conduct which would reasonably be regarded by lawyers of good repute and competency as disgraceful and dishonourable, in that the Respondent issued a bill on 30 October 2018 when a 'win' had not been achieved under the conditional cost agreement.

CHARGE 5 - Issuing a bill when a 'win' had not been achieved under the conditional costs agreement

In the alternative to Charge 4, pProfessional misconduct within the meaning of s 297(1)(a) of the Uniform Law in that the Respondent issued a bill on 30 October 2018 when a 'win' had not been achieved under the conditional costs agreement.

CHARGE 6 - Dishonesty in dealings with the Applicant

Professional misconduct within the meaning of ss 297(1)(a) and/or 298(b) of the Uniform Law in that the Respondent represented to the Applicant that:

(a) "the [Complainant] was in breach of the costs agreement because she blatantly lied to us"; and

(b) "[t]he [Complainant] lied to us, necessitating a second barrister conference",

when, in fact, the Complainant had not told any relevant lie and the second barrister conference was caused by unrelated matters, contrary to rule 43 of the Conduct Rules.

NOW TAKE NOTICE that pursuant to section 300 of the Uniform Law, an application is made for orders under sections 302 and 303 of the Uniform Law. Pursuant to Division 3 of Part 5.4 of the Uniform Law, the charges as contained in this Application for Order will be heard and determined by the Tribunal at a time and place appointed in writing by the Tribunal.

[1] The Uniform Law is given effect in Victoria by the Legal Profession Uniform Law Application Act 2014 (Vic) ('Application Act').

[2] This payment was referred to at times as a life insurance policy and at other times as a superannuation payment. However nothing turns on this.

[5] That is, a letter sent in accordance with the principles set out in the Supreme Court of New South Wales Court of Appeal decision in Murray v Legal Services Commissioner and Anor [1999] NSWCA 70; [1999] 46 NSWLR 224.

[11] The brief to Mr McCoy contained the same incorrect statement to the effect that the client had instructed that counsel's fees were to be paid, 'win, lose or draw'.

[22] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. See further Medical Board of Australia v Alkazali [2017] VCAT 39. And see ie Medical Board of Australia v Lagrange [2021] WASAT 161 at [24]; Medical Board of Australia v McCarthy [2020] WASAT 12.

[23] The 'Complainant' is referred to as the 'Client' throughout this decision.

[25] Page 124 of the TB, referred to by Mr Connor here, is the fourth page of the Disclosure Statement given to the Client in February 2018.

[26] TB 61, 63, 80, 111, 130, 145, 148, 158, 163, 170, 176, 179, 214, 219 and 222.

[29] See Re a Practitioner [1982] 30 SASR 27 at 29 - 31. See also, for example, Victorian Legal Services Commissioner v Koltay [2016] VCAT 1374.

[30] I note, however, that of the total fees recorded, Mr Sartori's component only amounted to $1,160, compared to Mr Connor ($8,300) and Ms O'Dwyer ($9,542.50) - TB 255.

[31] I note the charge was not brought under s 298(d), which relates to charging more than a fair and reasonable amount for legal costs in connection with the practice of law.

[38] Referring to Mr Frajsman's oral evidence: on the 8 May 2025 recording at (a) 1:01:36 to 1:02:20 and 1:22:00 to 1:22:15, (b) 1:23:58 to 1:24:30 and (c) 1:24:30 to 1:25:23.

[39] Mr Connor's submission of 19 June 2025 (not paginated, nor paragraph numbered) dealing with Charge 5. The bracketed 'AM' references are to the informal transcript prepared by Mr Connor's daughter of the hearing. Although this is not an official transcript, and is incomplete, and in a different form to an official transcript, Mr Connor was permitted to use it as an aide memoire for his submissions. It has not been relied on by the Tribunal. Where appropriate, in this decision, I refer to the audio recording of the hearing.

[43] Mr Colonna's oral evidence, 7 May 2025 recording at 1:13:39 to 1:15:55.

[44] Mr Colonna's oral evidence, 7 May 2025 recording at 1:15:55 to 1:17:09.

[46] Sartori Statement, at [34], TB 392.

[47] Sartori oral evidence, 6 May 2025 recording at 2:15:00.

[50] Sartori Statement, at [40], TB 392.

[51] TB 176. This was mistakenly dated 26 March 2018. While it was signed by Mr Sartori, and he said he drafted it, it was clear (as with all communications concerning the Client's file), that he was seeking to express Mr Connor's position on this issue. Mr Connor approved this letter before it was sent.

[57] It appears the explanation for this is that the firm used the DX facilities of Green's List as a post box for receipt of material sent between Melbourne and Wangaratta.