Chin wag … Solicitor falls foul of just about every vice in the book … Rudeness, overcharging, over servicing, false allegations, trust account diddles … Stipes recommend strike-off for solicitor who misled magistrate and told security guard "to go back to where he came from" ... Peta Smith reports from ringside
THE Bureau de Spank in WA has found solicitor Ni Kok Chin guilty of professional misconduct for a string of offences between 2004 to 2006.
Chin had a conflict of interest when, in 2005, he acted for his son in the purchase of "Century Lunch Bar," while also acting for the vendor.
To complicate matters, Chin also financed the purchase. Representing the vendor, the purchaser, and acting as the financer, created a situation where his personal, financial and professional interests were significantly "untenable".
When litigation was commenced against his son in relation to the sale, Chin made a proposal that solicitor Timothy Thies could claim costs in relation to work that Thies did not perform, at the expense of the defendant in the case.
The stipes said:
"We find that the practitioner's offer to Mr Thies was improper. It is a proposal which a practitioner of good repute and competence would regard as disgraceful and dishonourable and constitutes, in our view, a substantial failure to reach or maintain a reasonable standard of competence and diligence."
In early 2005, Chin represented Dr Chan in relation to the payment of strata levies that were claimed to be owing by Bellcourt Strata Management.
Chin had various communications with Bellcourt's solicitor, Katherine Whitehead of Godfrey Virtue. He sent a bizarre letter to Whitehead, alleging predatory and threatening conduct towards his client. He also wanted damages:
"Take Notice that the damages and compensation claimable and due to Dr Chan are in the region of $88,000. These damages are due from either Godfrey Virtue, Thomson Paris and Joan A. Bellary who either as individuals or are collectively responsible for the tortious act committed upon our client."
Chin later sent an apology letter, but conceded that he did so only because of his principal solicitor's insistence and he still believed the allegations to be true.
The tribunal found that there was no evidence that could justify a reasonably competent practitioner making the allegations.
Failure to treat fellow practitioners with courtesy also arose in another instance, when Chin alleged that solicitor David Taylor had used "underhand tactics" in relation to the filing of a writ in the Supreme Court.
Again there was no evidence for the allegation.
"These allegations were recklessly made and the practitioner's conduct, as such, involves a substantial failure to reach or maintain a reasonable standard of competence and diligence."
The findings of professional misconduct against the hapless Chin were piling up.
In mid-2004, a Ms Mathias instructed Chin to prepare a will and trust deed, and to assist with an insurance claim.
In relation to the will, there was a finding of gross over-servicing, notably an ...
"Eleven page closely typed document, dealing with a host of issues relating to wills, which were totally unrelated to the client."
In addition, the draft will sought to permit the testator to alter its terms merely by signing a memorandum that did not meet the requirements of a valid codicil.
Chin also altered the written costs agreement after it was signed by Mathias, with the evidence of an expert document examiner concluding that a different pen had been used to sneak into the agreement: "Extra 5 hours at $175 for written legal advice."
The tribunal intoned:
"The seriousness of the insertion of additional provisions into a costs agreement without the client's consent cannot be overemphasised. Such conduct is at the top end of professional misconduct."
On and on it went. Fees that were "grossly excessive"; language that was "intemperate and offensive"; more conflicts of interest; making allegations of improper conduct without a proper basis; and the daddy of them all - writing directly to the associate of Justice Lindy Jenkins to ask HH to reconsider her findings.
He explained to the tribunal that he did this to "promote judicial activism".
The bureau thought this …
"manifests a complete failure to understand the ethics and workings of the Australian legal system. Even the most ardent proponent of judicial activism would baulk at the idea of a judge being able to furnish advice of whatever kind to one of the parties to the litigation."
Needless to say this was all topped-off by five instances of not adequately maintaining a trust account and failing to deposit trust monies.
Penalty is to be dealt with on the papers.
* * *
ANOTHER Perth shocker, solicitor Megan Maree in de Braekt, looks likely to be prised off the jam roll after a finding in March that she was guilty of professional misconduct.
On May 25 the Bureau de Spank recommended to the Supremes that her ticket be torn-up. She's also up for $51,291 in costs.
In de Braekt misled the Magistrate's Court in 2009 when claiming she had not received disclosure of evidence from the police.
In fact, the Bureau accepted the police had provided her with photoboards that enabled a witness to make an identification.
Ms in de Braekt sent numerous emails to the police involved, including touching flourishes, such as:
"Do you want me to have to explain your ridiculous approach to the court? ... What a load of absolute rubbish! ... I look forward to cross-examining you sometime in the future, in a trial."
The stipes though this was "grossly offensive and discourteous", amounting to professional misconduct.
The practitioner also was found to have been discourteous and offensive towards Magistrate Woods during the course of a hearing in 2009, persistently interrupting the beak and not complying with the court's orders.
On another occasion she refused to let court security inspect her bag. She referred to the security officer, Mr Kanapathy, as a "Singaporean prick" and told him to "go back to your own country, we don't need people like you here".
"[This was an] extraordinary display of discourtesy and abusive behaviour [compromising] not only the good standing of the legal profession, but also the important relationship between the legal profession and security staff in courts and tribunals."
In a faintly tragic twist Ms in de Braekt's website sought to encourage potential clients by insisting, "Don't go to trial without me."
Maybe this is why she insisted on appearing for herself before the tribunal.
From Peta Smith