In or about November to 6 December 2013, in and about Brunswick, Victoria, the Respondent engaged in professional misconduct within the meaning of s 4.4.4(a) of the Act in that the Respondent, contrary to rule 10.1.2 of the PCPR, upon receipt of instructions from his client to draw a Will appointing the Respondent as executor, failed to inform his client in writing before the Will was signed of the inclusion in the Will of a provision entitling the Respondent or his firm to charge legal costs in relation to the administration of the estate, he is found guilty as charged.

1. The respondent having pleaded guilty to a charge of unsatisfactory professional misconduct as follows:

On the 6th of December 2013, in and about Brunswick, Victoria, the Respondent engaged in unsatisfactory professional conduct within the meaning of s 4.4.4(a) of the Act in that the Respondent, contrary to rule 10.2.1 of the PCPR, upon receiving instructions to draw a Will under which the Respondent was to receive (or might receive) a substantial benefit, failed immediately to decline to act on those instructions, he is found guilty as charged.

1. The respondent is reprimanded in relation to each charge.
2. The respondent is to pay an aggregate fine of $5,000.00 to the Legal Services Board by 1 March 2017.
3. The respondent is to pay to the applicant his costs of the proceeding agreed between the parties and fixed by the Tribunal at $15,000.00 by 1 March 2017.

1. The Respondent is an Australian lawyer, having been admitted to the legal profession in Victorian on 1 November 1979.
2. At all material times the Respondent was:

(a) an Australian legal practitioner within the meaning of section 1.2.3(a) of the Legal Profession Act 2004 (Act); and

(b) a sole practitioner carrying on practice at 387-389 Sydney Road, Brunswick, Victoria under the name De Marchi & Associates.

1. The Professional conduct and Practice Rules 2005 (PCPR) are binding on the Respondent as "legal professional rules" within the meaning of the Act.
2. On or about 15 November 2013, Ms Lidia Toffolon (Ms Toffolon / client) attended the Respondent's office by appointment, and advised the Respondent that she wanted him to prepare a new Will (the Will) and power of attorney (medical) (POAM) for her.
3. In the course of consultation with the Respondent, Ms Toffolon informed the respondent of the intended beneficiaries of her estate (namely, two friends, two charities and her doctor).
4. Ms Toffolon consulted with the Respondent on occasions subsequent to 15 November 2013.
5. On around 27 November 2013, Ms Toffolon attended the Respondent's office by appointment. On that date, the POAM was signed by Ms Toffolon and witnessed by the Respondent and a solicitor employed by him, Mr Vladmir Vinokurov. Ms Toffolon;s doctor and her friend were the attorneys nominated by the POAM.
6. Ms Toffolon also provided the Responsible Authority with instructions to appoint himself (the Respondent) and her doctor as executors and trustees of her Will and estate. The Respondent's office prepared a draft of Ms Toffolon's Will. The Respondent is unable to say how many drafts were prepared.
7. Ms Toffolon attended the Respondent's office on 6 December 2013 and spoke to the Respondent in his office, in relation to her Will.
8. On that date, Ms Toffolon gave the Respondent instructions to appoint himself a beneficiary of her estate.
9. After the Respondent received these instructions, he asked Mr Vinokurov, who was typing up the Will for him, to include provision in the Will for him (the Respondent) to be a beneficiary.
10. In the course of doing so, Mr Vinokurov alerted the Respondent to Rule 10 of the PCPR.
11. The Respondent then asked Mr Vinokurov to remove the name and address of the Respondent's firm from the cover page of the Will, and to print the Will. Mr Vinokurov did so.
12. The Will so drawn:

1. appointed the Respondent an executor and trustee of Ms Toffolon's estate (clause 2); 2. provided one-fifth of the residuary estate was to be given to the Respondent (cl 2(c)(v)) or, in the event of his pre-deceasing Ms Toffolon, his children (cl 4);

1. directed that the Respondent take the ashes of Ms Toffolon and her daughter to Trieste, [Italy] to be scattered (cl 6); and

1. directed that the Respondent or the firm of which he is a partner or which carried on his practice) be employed by the trustee/s as the solicitor in all things required to carry out the provisions of the Will.
2. After the Will had been printed, the Respondent contacted the office of another legal practitioner, Carl Soccio of Soccio & Associates, and made an appointment for Ms Toffolon to speak to Mr Soccio.
3. The Respondent then accompanied Ms Toffolon to the office of Soccio & Associates at 260 Albert Street, Brunswick, to meet with Mr Soccio. Mr Soccio was provided with a copy of the Will, the relevant provisions of which are referred to in paragraph 14 above.
4. The Respondent was unable to inform Mr Soccio personally of the reason for Ms Toffolon's attendance.
5. Mr Soccio read out the Will to Ms Toffolon and asked if she understood it. Ms Toffolon said that she did. In correspondent with the Applicant and Respondent, Mr Soccio said that, during the conference, he had gone over the Willl in detail and outlined Rule 10 of the PCPR.
6. Ms Toffolon signed the Will. Her signature was witnessed by Mr Soccio and his assistant.
7. The Respondent then walked Ms Toffolon back to his office. He informed her that Mr Soccio might send her a bill for witnessing the Will. The Respondent had earlier informed Ms Toffolon that there would be no charge for his (the Respondent's) services.
8. On around 10 December 2013, Mr Soccio sent an invoice to Ms Toffolon care of the Respondent. The Respondent paid this invoice by cheque sent to Mr Soccio under cover of a letter dated 19 December 2013. The Respondent did not inform Ms Toffolon of the invoice or seek reimbursement from her for the sum paid, until August 2014.
9. The Respondent:
   1. between receiving instructions in November 2013 and the date the Will was signed, failed to provide Ms Toffolon with any written advice as to the inclusion in the Will of the direction as to the completion of legal work for the estate, set out at paragraph 14.d above; and
   2. upon receiving instructions on 6 December 2013 to include himself as a beneficiary of Ms Toffolon's estate, did not immediately decline to act on those instructions, as et out in paragraph 11 and following above.
10. In around May 2014, Ms Toffolon sought advice from Ms Louise Clayton of Ryan Carlisle Thomas, in relation to estate matters.
11. By letter dated 16 May 2014, Ms Clayton informed the Respondent of her appointment as Ms Toffolon's solicitor and requested the Respondent provide her office with the original Will and any other deeds held by the Respondent. The Respondent received that letter on around 20 May 2014.
12. The Respondent was unable to contact Ms Toffolon in the period prior to receipt of the 16 May 2014 letter. The Respondent subsequently attempted to contact Ms Toffolon, and wrote to the attorneys nominated in her POAM expressing concern about her welfare, and asking whether theyhad been in contact with her.
13. On or about 22 July 2014, the Applicant received a complaint (dated 18 July 2014) from Ms Clayton, on behalf of herself and Ms Toffolon (Complaint).
14. Following an investigation, the Applicant wrote to the Respondent to advise him of the decision that had been made in respect of the complaint.
15. On 6 June 2015, the Applicant issued this proceeding.
16. On the first day of hearing (16 November 2016), before evidence was called, the matter resolved on the basis the Respondent would plead guilty to charges 2 and 4, amended as below, and that the alternative charges (charge 1 and 3) would be withdrawn.
17. The amendments to charges 2 and 4 are as follows:

1. In or about November to 6 December 2013, in and about Brunswick, Victoria, the Respondent engaged in professional misconduct within the meaning of s 4.4.4(a) of the Act in that the Respondent, contrary to rule 10.1.2 of the PCPR, upon receipt of instructions from his client to draw a Will appointing the Respondent as executor, failed to inform his client in writing before the Will was signed of the inclusion in the Will of a provision entitling the Respondent or his firm to charge legal costs in relation to the administration of the estate.

1. On the 6th of December 2013, in and about Brunswick, Victoria, the Respondent engaged in unsatisfactory professional conduct within the meaning of s 4.4.4(a) of the Act in that the Respondent, contrary to rule 10.2.1 of the PCPR, upon receiving instructions to draw a Will under which the Respondent was to receive (or might receive) a substantial benefit, failed immediately to decline to act on those instructions.

1. Mr De Marchi was admitted to the legal profession in Victoria on 1 March 1979. Prior to the present proceeding he has no record of any disciplinary action being taken against him in the Tribunal or any of its predecessors. He practises as a sole practitioner.
2. Mr De Marchi migrated to Australia from Italy with his parents in 1955. In 1964, he joined the Australian Army and during 1966-67, he served in Vietnam as a member of the Special Air Services Regiment. In 1970 he was commissioned into the Citizen Military Forces (now the Australian Army Reserve).
3. Mr De Marchi's military background led him to focus his practice on veterans affairs. In addition, he was chairman of a working party that established the Sir Edward Dunlop Medical Research Foundation. He was chairman of the Foundation from 1994 to 2010. Mr De Marchi is co-author of a book for school children on the life of Sir Edward Dunlop. The forward to the book was written by General Sir Peter Cosgrove (now Sir Peter Cosgrove, Governor General of Australia).
4. Amongst the references tendered on behalf of Mr De Marchi is one from Fred Cullen OAM, the president of the Ivanhoe Sub-Branch of the RSL.
5. Mr Cullen makes reference to Mr De Marchi having been co-opted by Bruce Ruxton to serve on the RSL's State Executive, which office he held for 16 years. Mr Cullen also refers to the work done by Mr De Marchi in relation to veterans' entitlements and associated welfare matters. Mr De Marchi was also elected as Vice President and assistant welfare officer at Ivanhoe RSL. Additionally, Mr De Marchi is a member of another charitable organisation, the order of St John of Jerusalem Knights Hospitaller.
6. I am satisfied that Mr De Marchi has given significant service to the community and that he should receive credit for this.

1. I am further satisfied that the conduct giving rise to the charges is an isolated incident in what is otherwise a blameless record and that personal deterrence is not a significant factor. General deterrence protection of the public and protection of the reputation of the legal profession are satisfied by the disposition to be ordered, as mitigated by Mr De Marchi's service to the community. Without such mitigation , the disposition would have been more severe.