The Tribunal finds the respondent, Mr Nicholas Logan, guilty of two charges of professional misconduct within the meaning of the Legal Profession Act 2004 (the Act) and one charge of unsatisfactory professional conduct within the meaning of the Act.

1. The respondent is reprimanded.
2. The respondent is to pay a fine of $5000 payable to the Legal Services Board within 120 days of the date of this order.
3. The respondent is to pay the applicant's costs fixed in the sum of $15,000 within 120 days of the date of this order.

1. The respondent, Mr Logan is the sole legal practitioner director of Nick Logan (Essendon) Pty Ltd trading as Nick Logan & Co, Solicitors (the law practice).
2. As a result of discussions between the parties before the hearing, Mr Logan has pleaded guilty to three amended charges brought by the Commissioner under an amended application for orders. Three further charges of misconduct at common law, which were in the original application for orders, are withdrawn.
3. The parties made a joint submission on penalty, namely that Mr Logan be reprimanded, fined $5,000 and ordered to pay the Commissioner's costs fixed in the sum of $15,000.
4. Each of the three charges relate to payments Mr Logan made out of his trust account without notice to a third party, Avoca Factors Pty Ltd (Avoca).
5. The charges involve three client matters, for clients Coban, Unver and Tan. In each case, the law practice acted for the client in undertaking recovery action in respect of a motor vehicle accident; the other driver had admitted fault; the law practice received into its trust account monies paid by the other party's insurer in settlement of the claim; and made payments out of trust on instructions.
6. In each case, the law practice by letter signed by a law clerk requested that Avoca factor the cost of repairs to a specified amount pending finalisation of the claim, noting that the defaulting driver's insurer had admitted liability, and asking Avoca to direct deposit funds to the repairer. Each letter included the statement:

We have noted your interest on file and will remit funds to you in due course.

1. In a complaint to the Commissioner in June 2012, Mr Graeme Holt, who is the director of Avoca, alleged that the law practice had failed to pay monies owing to Avoca and that advances in respect of the repairs to the motor vehicles of Coban, Unver and Tan were not repaid, or were not repaid in full.
2. The charges arise from the terms of the law practice's letters to Avoca, in particular the statement quoted above which was agreed to constitute a form of assurance, the fact that in each case Avoca advanced funds, and the later conduct of making payments out of the settlement proceeds held in trust without giving notice to Avoca.
3. Mr Logan pleads guilty to one charge of professional misconduct in respect of the Coban matter, one charge of professional misconduct in respect of the Unver matter and one charge of unsatisfactory professional conduct in respect of the Tan matter.
4. The charge in respect of the Tan matter is unsatisfactory professional conduct rather than professional misconduct because Mr Logan was not aware that the repair costs had been factored and understood on the basis of a conversation with the repairer that they had not been factored. The allegation is that he ought to have known of the advance.
5. The parties handed up a statement of 'agreed facts', which was in an unusual and rather unsatisfactory form. It starts with the statement:

the agreed facts under the parties' compromise are that it is no part of the charges pleaded to, that:

and then sets out a series of statements, which I summarise below.

1. I understand from counsel's remarks that it was a closely negotiated document and there are civil proceedings in the background. While it can be important in some cases to clarify the limits of the charges, it would have been of more assistance to set out facts agreed to be the basis of the charges.
2. Nevertheless I record that the parties have agreed that it is no part of the charges pleaded to that:
   • Mr Logan acted dishonestly;
   • Mr Logan or the law practice breached any trust accounting requirements of the Act or associated regulations or committed or assisted in the commission of any other breach of trust;[1]
   • A letter dated 2 June 2009 gave rise to a legally enforceable obligation to guarantee any person's repayment of any advance made by Avoca;
   • A security document was received by the law practice;
   • Statements in each of the requests that 'we will remit funds to you in due course' did or did not give rise to a legally enforceable obligation;
   • Avoca was 'on-factoring' factoring provided by Nick Logan Finance to Coban, Unver and Tan or the repairer or that Avoca was otherwise lending to Nick Logan Finance, Nick Logan & Co or to Mr Logan;
   • There was any assignment of any future proceeds of Coban's, Unver's or Tan's claims against at fault drivers, or of the causes of action against those drivers.
3. The amended application for orders sets out in detail each of the letters, the monies received into trust in respect of each matter, and the payments made out of trust and to whom. The relevant allegation in the Coban and Unver matters is that despite Mr Logan knowing of the factoring request and the advance of funds by Avoca to the repairer, Mr Logan caused or allowed the payments out of trust to occur and gave no notice to Avoca of his intention to make the payments. In the Tan matter, the allegation is that he ought to have known that funds had been advanced.
4. There is a dispute, which I do not have to resolve, about the amount still outstanding to Avoca. Apparently the amount is either $21,700 (Mr Logan's view) or $27,000 (Avoca's view) depending on how subsequent payments should have been allocated.
5. As articulated by counsel for the Commissioner, for the purposes of the disciplinary matter, $37,449 was not repaid to Avoca out of the settlement funds for the three matters at the time the law practice made the payments out of trust.
6. As appears from the agreed statement of facts, it is not part of the Commissioner's case that Mr Logan himself or his law practice had the obligation to repay the money, nor was it any part of the commissioner's case that the quoted statement in the letters gave rise to any legally enforceable obligation. Nor are these proceedings concerned with resolving any civil claims arising out of the payments. Rather, the offending conduct is that Mr Logan, who is a solicitor, gave a form of assurance to a third party and then made payments without notice to that third party.

1. Against that background and on the basis of the matters set out in the amended application for orders and the agreed statement of facts, I found Mr Logan guilty of the following three charges:

Mr Logan is guilty of professional misconduct within the meaning of the Act, in that he caused the law practice to make the Coban repairer payments in circumstances where:

(a) the Coban request was made; and

(b) the Coban advance was made

Mr Logan is guilty of professional misconduct within the meaning of the Act, in that he caused or allowed the law practice to make the Unver repairer payments in circumstances where:

(a) the Unver request was made; and

(b) the Unver advance was made

Mr Logan is guilty of unsatisfactory professional conduct within the meaning of the Act, in that he caused or allowed the law practice to make the Tan repairer payments in circumstances where:

(a) the Tan request was made; and

(b) the Tan advance was made

1. Those findings were made at the hearing. I then heard submissions in support of the jointly proposed orders by way of determination, also referred to as penalty or disposition.

1. If the Tribunal finds a practitioner guilty of unsatisfactory professional conduct or professional misconduct, s.4.4.16 of the Act provides that the Tribunal may make any orders it thinks fit including the orders specified in ss. 4.4.17, 4.4.18 and 4.4.19.
2. The available orders include reprimand; a fine of up to $50,000; additional professional education; conditions of supervision inspection or reporting; an order that the practitioner's practising certificate be suspended or cancelled; and an order recommending to the Supreme Court that the practitioner's name be removed from the roll.
3. As jointly submitted, a global penalty is appropriate in this case.
4. In formulating the appropriate orders, the focus will be on protection of the public and maintenance of professional standards in the eyes of the public (protection of the reputation of the profession).
5. The Tribunal takes into account a range of factors including the nature and seriousness of the conduct, which is relevant to general deterrence, evidence of any past disciplinary history and other matters relevant to specific deterrence, and any mitigating factors.
6. The Tribunal will also take into account orders made in comparable cases which may provide a useful guide to proportionality and assist in ensuring parity, although the relevant factors will rarely be identical in any two cases.
7. Where, as here, two parties both represented by counsel have made a joint submission as to penalty, the Tribunal will certainly take that submission into account - it is clearly a significant consideration. Ultimately, however, the question of the appropriate penalty in a particular case must be a matter for the Tribunal, which has the responsibility of satisfying itself as to what, in all the circumstances, are the orders which best serve the protective objectives of disciplinary proceedings.
8. Mr Logan is 42 years of age, having been admitted to practice in December 2002. After admission, he worked as an employee in general and commercial practices in Keilor, Geelong and William Street. He began to specialise in motor-vehicle property damage claims in 2005 and became a principal at EC Legal in 2007 before commencing his current law practice, Nick Logan & Co.
9. Mr Logan is entitled to credit for his plea of guilty to the substantially reduced and reformulated allegations in the amended application for orders.
10. He has been subject to four disciplinary findings by the Tribunal,[2] one of which is on appeal to the Supreme Court. All postdate the latest of the conduct in this case - April 2011.
11. In the period October 2010 to May 2014, Mr Logan was reprimanded by the Commissioner, under s.4.4.13(3)(b) of the Act, on seven occasions. Under that section of the Act, where, after an investigation, the Commissioner is satisfied that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of unsatisfactory professional conduct, the Commissioner may, with the consent of the practitioner, reprimand or caution that practitioner.[3]
12. All but one of those reprimands postdate the last of the payments in this case.
13. Contrary to the submission by Counsel for Mr Logan, information about previous regulatory action is relevant information when the Tribunal is making an assessment of the need for specific deterrence, and will usually be admitted. It is important not to elevate the status of those matters - they are not disciplinary findings, and they have less weight than Tribunal or Court decisions. But the fact that there have been complaints which, after investigation, have resulted in regulatory action, may indicate that something has been amiss in the practitioner's life or practice and will usually assist the Tribunal in its consideration of the appropriate orders.
14. In this case, the orders proposed by the parties represent an appropriate penalty. Specific and general deterrence will be served by the publication of findings of professional misconduct and the imposition of a reprimand and fine together with an order for costs.
15. This is not a case involving dishonest conduct or breach of any trust or trust accounting obligations, nor is it a case of a solicitor giving and then breaching an undertaking.
16. As framed by counsel for the Commissioner, Mr Logan, who is a legal practitioner, gave a form of assurance to a third party financier - that the third party's interest was noted on file and funds would be remitted in due course, but when the time came to make payments out of trust, Mr Logan did so without notice to that third party. Legal practitioners should always take care when giving assurances to third parties, who are entitled to give additional weight to the word of a lawyer.
17. A fine of $5000 is not a trivial amount. As submitted by counsel for Mr Logan, a fine in that amount has been imposed in cases involving more serious conduct.[4] I agree that it is not too low in this case.

[1] The three withdrawn charges of misconduct at common law were based on allegations that Mr Logan had knowingly assisted in a breach of trust.

[2] Legal Services Commissioner v Logan VCAT 8 April 2014; Legal Services Commissioner v Logan (Legal Practice) [2014] VCAT 345; Victorian Legal Services Commissioner v Logan (Legal Practice) [2016] VCAT 544; and Victorian Legal Services Commissioner v Logan (Legal Practice [2016 VCAT 1193 (currently under appeal).

[3] Where the Commissioner is satisfied that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of professional misconduct, the Commissioner must make an application to the Tribunal for orders: s4.4.13(2).

[4] Cases referred to in Counsel's written submissions included Legal Services Commissioner v Turner [2007] VCAT 1986, Legal Services Commissioner v Shulsinger [2010] VCAT 1497, Legal Services Commissioner v Faigen [2011] VCAT 1726, and Legal Services Commissioner v Jackson [2012] VCAT 372.