Legal Professional Practice



Legal Professional Practice

Explain why the courts and other disciplinary bodies consider the operation of trust accounts to be one of the most 'scared' obligations imposed upon lawyers.

Appearances and Representation

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 ('QCAT Act'). The members of the Tribunal met to consider the written submissions of the parties on 30 January 2013.

Reasons for Decision

During the proceeding here the parties signed and filed a Statement of Agreed Facts and, also, signified to the Tribunal that they wished to have the matter dealt with on the papers. They filed and exchanged submissions. Save for the disagreement about the amount still outstanding to Mr. Baxter's former clients, all facts and matters are agreed and Mr. Baxter does not dispute the Commissioner's contention that he must be removed from the local roll, and pay the Commissioner's costs fixed at $2,000.00. For the reasons which follow, the Tribunal accepts that those orders are necessary, and appropriate.

Mr. Baxter is 53. He practiced in Townsville, apparently successfully, for almost three decades. He was a partner in an old and respected law firm. He developed a gambling problem and began, in 2009, to embark upon a series of transactions with client's funds, held and received on trust for a variety of purposes.

Towards the end he was shuffling client's funds around in an effort to conceal the misappropriations from clients, and his partners. Finally, on 19 July 2011 he told his partners what had happened. The results have of course been very serious for his clients, himself and his family, and his partners.

He has cooperated fully with the Commissioner in these proceedings and immediately admitted all allegations in the original discipline application. As noted earlier, the proceedings have moved efficiently because of his cooperation. The Agreed Statement of Facts signed on his behalf and his written submissions to the Tribunal are, also, frank and forthright and he accepts that he cannot remain on the roll and must not practice again.

The LPA contains, in respect of complaints against and the disciplining of legal practitioners, two 'key concepts'. They are unsatisfactory professional conduct (s 418) and professional misconduct (s 419). The former includes conduct by a lawyer, occurring in connection with the practice of law, that falls short of the standard of competence and diligence which can reasonably be expected. The more serious offending, professional misconduct, is defined to include conduct occurring in connection with the practice of law which justifies a finding that the practitioner is not a fit and proper person to engage in legal practice.

Lawyer's Ethical Obligations

The ethical importance of the creation and maintenance of the client trust account is rooted in the general principle that a lawyer who holds the funds or property of a client or third person in trust, even if for a brief time or intermittently, has the duty as a fiduciary to safeguard and segregate those assets ...