Censured lawyer “does not believe in” file notes

by Miklos Bolza01 Apr 2016
An unnamed lawyer has been censured and fined $1,500 for acting when there was a conflict of interest with the judge “astounded” at his poor record-keeping.
A lawyers standards committee commenced an own-motion investigation into the matter after a District Court Judge wrote to them asking for their consideration.
The series of events leading up to the case began when the lawyer facilitated a payment of $50,000 from his former client Mr H to both Mr E and Ms F who used it as a deposit for residential property.
When Mr H later passed away, the lawyer became executor of his estate and a minor beneficiary.
The lawyer also acted for Mr E and Ms F in the property purchase and for a bank on the mortgage given to purchase the property.
Finally, he acted for Mr H by lodging a caveat against the property after Mr E and Ms F failed to repay the $50,000 when requested.
The main focus during proceedings was whether the $50,000 was a gift or a loan. The judge was also critical of the lawyer’s failure to maintain adequate records relevant to the matter at hand.
“There are obvious conflicts of interest which, when combined with the lack of file notes, suggest his evidence should be the subject of careful scrutiny,” the judge said.
This incredulity at the lawyer’s practices continued in the final judgment.
“What is his explanation for the absence of any file notes?” the judge asked. “[The lawyer] says ‘he does not believe in them’ and that ‘they can be easily concocted after the event’. I am astounded by his evidence on this point and his self-justification for his practice.”
Speaking to the committee, the lawyer said that files notes were not needed to recall matters and that there were other, stronger forms of evidence available.
When making a finding of unsatisfactory conduct, the committee said it found the lawyer’s standard of record keeping “inadequate and he had not maintained proper professional standards in this regard”.
“[The committee] found that, had [the lawyer] kept notes in this matter, then Court proceedings may have been unlikely to have occurred. It was also satisfied that contemporaneous records would have greatly assisted the Court in the proceedings.”
In addition to the censure and fine, the lawyer was also asked to receive professional advice, make his practice open for inspection, and pay an extra $1,000 in costs.