The Tribunal finds that Joseph Rose has engaged in the following conduct:

1. Professional misconduct within the meaning of s 297(1)(a) and (b) of the Legal Profession Uniform Law (Victoria)[2] (Uniform Law) in that Mr Rose was reckless as to the lawfulness of his client's instructions and as to the lawfulness of carrying out his client's instructions, by making the payments to [the builder] (Payments):

(a) on instructions provided by the executor that the Payments were in accordance with the deceased's wishes to extend the loan agreement as expressed in letters dated 1 June 2015 and 12 July 2015; > > (b) with knowledge or reason to suspect that no formal written agreement had been entered into in relation to a renewed or extended loan agreement; > > (c) despite holding concerns that the Payments may not be lawful and without conducting inquiries to establish the lawfulness of the Payments; and > > (d) without providing advice to the executor as to the lawfulness of the Payment.

1. Professional misconduct within the meaning of s 297(1)(b) of the Uniform Law in that Mr Rose acted in knowing contravention of Court orders by purporting to act (and assert rights) on behalf of the executor of the Estate, in correspondence dated 7 December 2016 and 8 December 2016, when he was aware of the fact that the orders had been made [removing the executor].

1. Professional misconduct within the meaning of s 297(1)(a) and (b) of the Uniform Law in that the payment Mr Rose's law practice caused to be made on 15 March 2017 (of $4,474.83 from the trust money held on behalf of the Estate to Rose Lawyers for "Invoice #12896") was unauthorised by the Estate.

1. Unsatisfactory professional conduct within the meaning of ss 296 and 298(a) and (b) of the Uniform Law, in that, by failing to issue an invoice to the administrator in respect of the payment (of costs), Mr Rose contravened:

(a) rule 42 of the Legal Profession Uniform General Rules; and

1. Unsatisfactory professional conduct within the meaning of s 296 of the Uniform Law, in that, by failing to provide the documents, papers or information held on behalf of [the removed executor] as executor of the Estate in his possession, power or control to the administrator within 7 days as required by the Orders or within a reasonable time, Mr Rose failed to act competently, diligently and as promptly as reasonably possible.

1. Professional misconduct within the meaning of s 297(1)(a) of the Uniform Law in that that, by informing the applicant (the Commissioner) that, having reviewed his file, he 'knew of the Order[s] on the 17th December 2016', Mr Rose was reckless as to whether that information was false or misleading.

The Tribunal records and accepts the undertaking given by the respondent to the Tribunal today and the Commissioner on 12 April 2023, that from 1 May 2023 he will not apply for, or hold, a certificate to practise as an Australian legal practitioner in any Australian jurisdiction

With the parties' agreement, and being satisfied that a global penalty is appropriate, under s 302 of the Uniform Law the Tribunal orders as follows:

1. The respondent is reprimanded.
2. The respondent is directed to surrender his practising certificate on 30 April 2023, and, in accordance with the undertaking given to the Commissioner and to the Tribunal, may not thereafter apply for, or hold, a certificate to practice as an Australian legal practitioner in any Australian jurisdiction.
3. The respondent is fined the agreed sum of $5,000.00.
4. The respondent is to pay the Commissioner's costs of and incidental to the proceeding fixed in the sum of $12,000.00.

1. Mr Joseph Rose was admitted to legal practice in 1973. At the relevant times he operated a law practice, Rose Lawyers, as principal, holding a principal practising certificate authorising him to receive trust money. He sold that practice in 2019, and now operates a law practice trading as Joseph Rose Law. He is also a Notary Public.
2. In this proceeding Mr Rose has pleaded guilty to five charges that relate to his conduct in 2016 and 2017 in relation to a deceased estate; and one charge of recklessly providing false or misleading information to the Commissioner in the course of her investigation - about when he knew that a Supreme Court order in November 2016 had removed the executor who had engaged him.
3. They are serious charges. My decision is about whether I am satisfied that the charges are proved; how the conduct should be characterised; and what should be the penalty.
4. Mr Rose has cooperated with these proceedings, made admissions early in the investigation (which commenced in 2017), and agreed to the outcome. He has, in my view, shown insight and remorse, and deeply regrets that a long career in the law, which includes undoubted service to the profession and to specialist legal education, has been marred by a serious lapse at the end.
5. I made orders and gave oral reasons at the hearing. The following is a summary of my reasons with background added, which I publish principally in the interests of general deterrence, so that those practitioners who act in estate matters and hold estate funds in trust may know that they will be held to high standards and face serious outcomes if they breach that trust, including by facilitating a breach of trust by representatives of the estate.

1. The testator[5] died in December 2015 at age 94. She left a simple will and a small estate.
2. The inventory of assets and liabilities filed with the probate application discloses total assets of $353,647.80 and no liabilities.
3. After payment of debts, expenses, and duties, she left the residue of her estate to her three sons in equal shares, appointing one of her sons as sole executor.
4. The principal asset listed was a personal debt owed by the executor and his wife to the testator in the sum of $250,000.00 plus shares and monies in bank accounts.
5. In February 2016, shortly after appointing Mr Rose to act for the estate, the executor repaid that debt, by a payment into Mr Rose's trust account of $250,000.00. There is evidence that the loan was to mature at around that time.
6. Probate was granted in June 2016.
7. In August and September 2016, on the instructions of the executor, Mr Rose made three payments out of trust, totalling $244,000. They were payments to a builder, due to the builder from the executor and his wife in respect of a house being built for them.
8. The executor asserted that he was exercising an option given by his mother, for the money to be lent to him and his wife again (after repayment), and the loan term to be extended at their discretion for up to four years. No formal loan agreement to that effect had been entered into. An option was referred to in typed letters dated June 2015 apparently signed by the testator but not witnessed. The other beneficiaries were not informed about the proposed payments.
9. There are obvious issues arising from such payments being made. Mr Rose had concerns at the time that the payments may not be lawful. At the hearing he said he had come under strong pressure from the executor (who was under financial pressure), which he should have, but did not withstand. He was also dealing with health issues at the time.
10. Charge 1 is that in making the payments Mr Rose acted recklessly, in that he acted:
    • with knowledge or reason to suspect that no formal written agreement had been entered into renewing or extending the loan (and with misgivings recorded in a file note at the time);
    • despite holding concerns that the payments may not be lawful, and the executor was conflicted;
    • without conducting inquiries to establish the lawfulness of the payments; and
    • without providing advice on the lawfulness of the payments.
11. On 30 November 2016, the Supreme Court made orders on the application of the other beneficiaries, removing the executor as executor of the will and trustee of the estate, and appointing Ms Suzanne Lyttleton as sole administrator and trustee of the estate (the Court orders).
12. The Court orders included that the former executor deliver up estate documents and the grant of probate to Ms Lyttleton, within seven days.
13. It followed from the Court orders that Mr Rose no longer had authority to act, or purport to act, on behalf of the estate.
14. By at least 2 December 2016, Mr Rose had become aware that the orders had been made.
15. On 7 and 8 December 2016, despite the terms of the Court orders, Mr Rose wrote to two banks that had advised the former executor (in January and February 2016 respectively) that they held monies in accounts in the deceased's name. This correspondence is the subject of Charge 2.
16. In his letters to the banks, Mr Rose advised that he was the solicitor acting for the executor of the estate and enclosed certified copies of the death certificate and grant of probate; an authority to release assets; and certified identification. He asked the banks to close the accounts and forward the funds to him. There is no suggestion that the funds were misused.
17. Charge 3 was in the alternative to Charge 2 and was withdrawn.
18. Charge 4 is against the following background.
19. In January 2017, Mr Rose sent a cheque to Ms Lyttleton for $32,257.10 which he described as the 'funds remaining in [his] trust account'. There was in fact a further sum of $4,474.83 remaining in his account, withheld to pay his costs. The former executor had in the past authorised him to withhold trust funds to pay legal costs.
20. Mr Rose then generated and issued an invoice to the former executor for legal fees in that amount (January invoice).
21. In February 2017, Mr Rose was sent a written direction on behalf of Ms Lyttleton, that funds held on behalf of the estate were not to be applied for any purpose 'whatsoever' including Rose Lawyers' costs.
22. On 15 March 2017, Rose Lawyers caused $4,474.83 to be paid from the trust money held on behalf of the estate to the law practice, in payment of the January invoice, thereby failing to follow a written direction to deal with trust money in contravention of the Uniform Law. This is the subject of charge 4.
23. On 27 April 2017, Mr Rose reversed the payment and paid the monies to Ms Lyttleton's trust account for the estate.
24. Charge 5 was in the alternative to charge 4 and was withdrawn.
25. The law practice also failed to issue an invoice to Ms Lyttleton in contravention of the Uniform Law and the Legal Profession Uniform General Rules.[6] This is the subject of charge 6.
26. There was a significant delay in providing the estate documents and the grant of probate to the administrator. This is the subject of charge 7.
27. In September 2017, after receiving a complaint, the Commissioner commenced an investigation. The investigation concluded in late 2021.
28. Charge 8 is that Mr Rose recklessly provided false and misleading information to the Commissioner. In January 2018, the Commissioner asked Mr Rose to confirm when and in what circumstances he became aware of the Court Orders dated 30 November 2016. He replied that having reviewed his file, he 'knew of the Order on 17 December 2016'.[7] This statement is the subject of charge 8.
29. Further documents he provided in 2019 (an email dated 2 December 2016 to the staff member who had acted in the proceedings for the executor)[8] showed that he was aware of the orders by at least 2 December 2016.

Mr Rose's admissions and the proposed findings

1. To his credit, Mr Rose has made admissions that reflect an understanding that what he did was wrong, and is unacceptable conduct for a solicitor.
2. As is well-established, a negotiated agreement by the parties as to proposed findings and penalty orders in disciplinary proceedings is not binding on the Tribunal and the Tribunal must decide for itself the characterisation of the conduct found and any penalty imposed. Weight will nevertheless be given to a jointly proposed outcome, particularly where the respondent is independently represented by experienced counsel.[9]
3. In this case, Mr Rose was not represented and told me he had not sought independent advice, principally because he was 'mortified' by the proceedings; and due to health issues and other factors 'just wanted the proceedings to be over'.
4. He confirmed, when asked, that he agreed with the facts (and I was satisfied they were proved on the evidence), but he also said that he had accepted the outcome on the basis and understanding that the matter would be concluded 'today'. He spoke about health issues at the time of the events the subject of the charges, which continue, and made it necessary to conclude the proceedings as quickly and with the least stress possible.
5. In the circumstances, the agreed proposed outcome as to characterisation and penalty, although relevant, had less weight than it might otherwise have had, and it was important to be independently satisfied as to the appropriate characterisation of the conduct and the penalty. This was so particularly as Mr Rose had agreed to findings of 'misconduct at common law' in respect of three of the charges, charges 2, 4, and 8.
6. The issue with the pleading of misconduct at common law in those charges was raised by me and discussed at the hearing and I say more about it below. I was not persuaded the proposed findings were appropriate and instead found that the conduct was properly characterised as 'statutory' professional misconduct, namely:
   • Charge 2: professional misconduct as defined in s 297(1)(b);
   • Charge 4: professional misconduct as defined in s 297(1)(a) and (b); and
   • Charge 8: professional misconduct as defined in s 297(1)(a).

1. Conversely, although the parties had agreed that Charge 1 be characterised as unsatisfactory professional conduct within the meaning of s 296 of the Uniform Law,[10] I considered the conduct to be more serious that would be reflected by that finding.
2. The conduct represented by charge 1 involved the payment out of trust of a sum representing the majority of the estate's assets, for the personal benefit of the executor, when there were serious questions about the lawfulness of doing so; Mr Rose himself had misgivings about the payments; and the other two beneficiaries were not advised of the payments or any asserted basis for them. I found that it was appropriately characterised as professional misconduct within the meaning of s 297(1)(a) and (b) of the Uniform Law. Both parties agreed to that finding.
3. I was otherwise satisfied that Charges 6 and 7 were appropriately characterised as unsatisfactory professional conduct as pleaded.
4. I turn briefly to the issue I raised at the hearing about the pleading of some of the charges.

(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

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

(2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.

1. Charges 2, 4 and 8 in the Amended Application for Order were framed in a way that appeared to conflate 'misconduct at common law' with statutory misconduct under s 297(1)(b) of the Uniform Law:

Misconduct at common law, within the inclusive definition of professional misconduct at section 297(1) of the Uniform Law, being conduct occurring in connection with the practice of law and which, taken with regard to any other relevant matters, justifies a finding that Mr Rose is not a fit and proper person to engage in legal practice.

1. Counsel for the Commissioner submitted that the wording of the charges was based on the decision of the New South Wales Court of Appeal in Council of the New South Wales Bar Association v EFA (a pseudonym)[11] (EFA). In that case, the Court of Appeal upheld the decision of the New South Wales tribunal (NCAT), that the conduct in that case[12] was unsatisfactory professional conduct and not misconduct at common law as contended by the Council.
2. Whether or not the decision in EFA represents the law in Victoria,[13] it does not go so far as to redefine 'misconduct at common law' in the way used in the pleading of the relevant charges. If anything, the Court of Appeal discouraged the use of that expression if it is intended as denoting an independent and different category of professional misconduct rendering the practitioner 'not a fit and proper person' to remain on the roll of legal practitioners.[14]
3. Precision in the pleading of a charge is important, particularly where a respondent is not independently represented, and a negotiated settlement is undertaken.
4. For the sake of completeness, I make some observations about 'misconduct at common law' as that phrase has been used in legal professional disciplinary cases in Victoria.
5. A finding of 'misconduct at common law' has by long standing practice in Victoria and elsewhere, referred to 'conduct which would be reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency', referring to the English Court of Appeal's decision in Allinson v General Council of Medical Education and Registration[15] (Allinson).
6. Although the word 'dishonourable' has fallen out of everyday usage, the expression 'disgraceful or dishonourable' nevertheless has meaning as denoting disgraceful professional conduct that has the potential to dishonour the profession. In Tribunal cases, it represents the most serious finding that can be made about a legal practitioner; and if found may give rise to consideration of whether a practitioner should remain on the roll, depending on the circumstances.
7. Conduct found to be misconduct at common law may also render the practitioner 'not a fit and proper person' to engage in the practice of law but the latter expression also encompasses notions of incompetence or lack of the knowledge to discharge professional obligations. They overlap but are not identical.
8. Misconduct at common law has, also by long practice, been regarded as within the inclusive definition of 'professional misconduct' in s 297 of the Uniform Law, and the equivalent section in predecessor Acts. Under s 297 'professional misconduct' includes the conduct set out in s 297 (1)(a) and (b) (statutory professional misconduct), but does not thereby exclude misconduct at common law.
9. The Court of Appeal's decision in EFA at [122]-[160] contains an overview of the use of the 'Allinson test' in legal profession disciplinary cases in New South Wales, where the issue has been the practitioner's fitness to remain on the roll, but cautions against the test being treated as a separate category of professional misconduct in New South Wales. At [157]:

That is not to say that the Allinson formulation is irrelevant; as can be seen from the cases discussed above, it has been treated as a useful test in the determination of the fitness of a legal practitioner to remain on the roll. It does not, however, as the Council would have it, create or constitute a category of professional misconduct independent of, and different from, that class of conduct contemplated as rendering the legal practitioner "not a fit and proper person" to remain on the roll of legal practitioners. [emphasis added]

1. As submitted on behalf of the Commissioner, the Court of Appeal also observed that there is a difference between finding that conduct comes within s 197(1)(b) of the Uniform Law and a finding that the practitioner is not in fact a fit and proper person to remain on the roll. As the Court noted, at [164]:

[C]onduct that would justify a finding of unfitness is not necessarily conduct that must result in such a finding: there is a range of conduct that would justify, but not necessarily result in, such a finding; there is a range of conduct with respect to which reasonable minds might differ on whether it did, in fact, demonstrate unfitness. Section 297(1)(b) is concerned with the capacity of the conduct to constitute unfitness.

1. While I was satisfied that Mr Rose's conduct under the relevant charges constituted statutory misconduct under either or both of ss 297(1)(a) and (1)(b), I did not consider that it met the more serious test of misconduct at common law, as that expression has been used, and it did not lead to a conclusion of actual unfitness to engage in legal practice or remain on the roll.
2. I turn now to penalty.

1. The principles in relation to penalty orders in legal profession disciplinary cases are well-established.[16] The primary aim of any sanction is to protect the public and the professional standards and reputation of the profession. The focus of the Tribunal is therefore protective and not punitive. However, specific deterrence and general deterrence, which serve to protect the public, depend upon sanctions having a punitive effect.
2. With that protective focus in mind, the Tribunal considers a range of factors in determining penalty including the nature and seriousness of the conduct, any plea of guilty, the relative importance in the case of specific deterrence and general deterrence, past disciplinary history, evidence of character, and other mitigating factors such as medical or psychological evidence.
3. Penalties imposed in other cases may be a useful guide to proportionality, and parity is important, but every case necessarily involves a different combination of factors. Each case is different.
4. Global penalties may be ordered where the charges are 'inextricably interwoven' for example a course of behaviour in relation to one matter.[17] I agreed with the parties that a global penalty was appropriate in this case. I also agreed that the proposed orders were appropriate save for one variation: I incorporated an undertaking Mr Rose gave into the orders, as an express direction.
5. There were mitigating factors which reduced the relevance of specific deterrence in this case including Mr Rose's health at the time,[18] his plea and early cooperation, evident insight and remorse, relatively uneventful disciplinary findings,[19] and a record of professional involvement and voluntary service.
6. Mr Rose recognised that what went wrong here included that he had bowed to strong pressure coming from the executor, which he should have withstood, and did not act on his misgivings about the appropriateness of the payments. Although in correspondence he had given the impression of seeking to lay blame on staff of the law practice who had the carriage of the Supreme Court litigation, at the hearing he acknowledged absolute responsibility for the conduct after the Court made orders removing the executor who had engaged him.
7. There was also, in this case, significant delay between the commencement of the investigation in 2017 and the Commissioner's application to the Tribunal in 2022. I accept that the investigation and these proceedings have taken their own toll.
8. General deterrence is important here. Those who are entrusted with estate funds should know that serious sanctions will follow breach of that trust. Breach of court orders is also a very serious matter for lawyers as officers of the court, as is a failure by a practitioner to ensure that answers provided to the Commissioner in an investigation are truthful and complete.
9. Mr Rose plans to retire soon. The negotiated agreement included that he surrenders his practising certificate on 30 April 2023. Of itself, this might not seem to be a serious enough penalty for someone who planned to retire anyway. However, in combination with an order that, in accordance with the undertaking he has given to the Commissioner and the Tribunal, he may not apply for or hold a practising certificate again, it becomes more than an order facilitating voluntary retirement and comes closer to permanent disqualification. He will also no longer be able to act as a notary public because of the loss of his practising certificate.
10. If others who are not close to retirement engage in similar conduct, they should know that suspension or cancellation of their practising certificate will come under consideration. In different circumstances, without significant mitigating factors, a recommendation to strike the practitioner from the roll may be appropriate.
11. As agreed, Mr Rose will, in addition, be reprimanded (which is a serious professional rebuke), will pay an agreed fine, and will pay the Commissioner's costs, agreed at $12,000.00.

[1] Amended with leave and by agreement at the hearing.

[2] The Schedule to the Legal Profession Uniform Law (Victoria) Application Act 2014 (Vic).

[3] Charges 3, 5 and 9 were alternative charges and were withdrawn.

[4] From the agreed statement of facts and undisputed documents filed.

[5] Because there were guardianship proceedings in respect of the testator while she was alive and litigation concerning the executor's conduct and other matters after she died, I have not identified her, the executor appointed under the will (and later removed), or the other beneficiaries. My findings are also confined to findings about Mr Rose's conduct.

[6] A contravention of rule 42 of the Legal Profession Uniform General Rule and s 144(2)(b) of the Uniform Law.

[8] Annex p 37. 'You have never discussed with me why this order was made without my knowledge/participation. I have asked several times.'

[9] Victorian Legal Services Commissioner v Hyatt [2018] VCAT 1498 and Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 326 ALR 476, referred to in Victorian Legal Services Commissioner v OAG [2021] VCAT 549, [38].

[10] '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'.

[11] 106 NSWLR 283; [2021] NSWCA 339.

[13] I note that EFA was referred to in submissions noted in Victorian Legal Services Commissioner v Sandbach [2022] VCAT 1477 at [23] fn 9, as the reason why the Commissioner withdrew a charge of misconduct at common law in that case.

[15] [1894] UKLawRpKQB 36; [1894] 1 QB 750 at 760-761, 763 and 766.

[16] Summary from Victorian Legal Services Commissioner v OAG (Corrected) [2021] VCAT 549. See generally Victorian Legal Services Commissioner v Williams [2022] VCAT 806 (Williams).

[18] Evidenced in contemporaneous correspondence.

[19] He had only one Tribunal finding against him, in 2007, in respect of a minor matter for which the Tribunal determined no sanction was required. He had a number of findings by the Commissioner in his history, none of which matters were referred to the Tribunal, although they indicate, as submitted on behalf of the Commissioner, some conduct of concern in recent years.