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Chief Registrar v Tuituku [2023] FJILSC 5 (23 January 2023)

IN THE INDEPENDENT LEGAL SERVICES COMMISSION
AT SUVA

ILSC No. 001 of 2021



BETWEEN: CHIEF REGISTRAR

APPLICANT


AND: ULAMILA FA TUITUKU


RESPONDENT



Counsel: Mr. S. Ali for the Chief Registrar

Mr. J. Rabuku for the Respondent


Date of Hearing: 27th-29th July 2022
Written submissions: 22nd September 2022
Date of Ruling : 23rd January 2023


JUDGMENT


Introduction

  1. On 16th December, 2020, an Application was filed by the Chief Registrar setting out one allegation of Professional Misconduct Conduct against the Respondent as follows:

COUNT 1

Professional misconduct: Contrary to Section 82 (1) (a) of the Legal Practitioners Act 2009.

PARTICULARS

ULAMILA FA TUITUKU a Legal Practitioner being the principal practitioner of LAW SOLUTIONS, on the 5th day of June, 2020 borrowed money in the sum of $300.00 from her client namely JINCHO XU and therefore conducted herself in a manner which breached Rule 1.6 of the Rules of Professional Conduct and Practice and is an act of professional misconduct.


  1. This application was first mentioned on the 25th January, 2021 on which day the Respondent was granted time to endeavor to settle the matter however, as it did not materialise, the matter was taken up for hearing on the 27th July, 2022. Upon explaining the allegation and the Respondent not accepting liability, the inquiry proceeded. The complainant, Jincho Xu was called on behalf of the Applicant and the Respondent gave evidence on her behalf and the inquiry was concluded with the evidence of these two witnesses. Written submissions on behalf of Respondent was tendered on 22nd September, 2022 and the matter was fixed for judgment/determination. Upon the consideration of evidence exhibits and the written submission, I pronounce my judgment/determination.
  2. The following documents were marked and produced as exhibits during the course of this inquiry;

What Professional misconduct contrary to Section 82 (1) (a)?

  1. The allegation preferred against the Respondent is that of Professional misconduct contrary to Section 82 (1) (a) of the Legal Practitioners Act. “Professional Misconduct” is not defined in an exclusive form in a single section but in an inclusive definition is found in a descriptive form in sections 82 (1)(a), 83(1) and 83(2) of in Part 9, Division 1, of the LPA as follows;

“Professional misconduct

82.—(1) For the purposes of this Decree, 'professional misconduct' includes

(a) unsatisfactory professional conduct of a legal practitioner, a law firm or an employee or agent of a legal practitioner or law firm, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence;

(b) ...............”

and,

“83.—(1) Without limiting sections 81 and 82, the following conduct is capable of being "unsatisfactory professional conduct" or "professional misconduct" for the purposes of this Decree:

(a) conduct consisting of a contravention of ..... the rules of professional conduct and practice.

(b) .......”


and,


“83.—(2) 'professional misconduct' includes malpractice, and ‘unsatisfactory professional conduct’ includes unprofessional practice or conduct.”


  1. Section 82 of the LPA defines 'professional misconduct' inter alia to include;

(a) unsatisfactory professional conduct of a legal practitioner, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; or

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

  1. Further, 'Professional misconduct' includes malpractice, whilst 'unsatisfactory professional conduct' includes unprofessional practice or conduct. [vide section 83(2) of the LPA]. However, malpractice and unprofessional practice or conduct are not defined.
  2. Conduct capable of constituting professional misconduct inter alia also include the contravention of the provisions of the LPA, the regulations and rules made thereunder, or the Rules of Professional Conduct; (vide section 83 of the LPA).
  3. In Chief Registrar V. Adish Kumar Narayan [ILSC No. 009 / 2013] (25th September 2013), the scope of sections 81-83 was considered and it was expounded thus;

“30. The practitioner submits that section 83 which lists 8 examples of conduct which could be seen to be 'unsatisfactory professional conduct' or "professional misconduct' cannot apply to him because in June 2000 he was merely acting for a mortgagee trying to enforce his security. That being the case, he submits then the conduct has to fall back on the s 82 definitions ('competence and diligence" or 'not being a fit and proper person') which he argues are two limbs that do not apply to his conduct either. Therefore, he concludes, there is no offence made out against him.

31. These submissions again ignore the very wide terms of sections 81, 82 and 83. Section 82 plainly provides that professional misconduct includes the conduct stated thereon which assume that other conduct might will be misconduct if the Commission finds it to be so. Section 83 with its 8 examples of misconduct (subsections (a) to (h)) specifically says that they do not limit the definitions in s.82. All three sections provide very wide parameters within which the Commission could find any particular conduct to be either unsatisfactory professional conduct or to be professional misconduct. Such conduct need not be confined to competence, fitness to practise, nor to any of the examples set out in section 83”.


  1. In Chief Registrar V. Adish Kumar Narayan ILSC No. 009/2013 (2nd October 2014) the scope of sections 82 and 83 were farther expanded and where it was held that that the statutory definition of professional misconduct does not exclude the common law definition thus;

“9. As a preliminary point the Practitioner by his Counsel argues that that the mischief complained of does not come within the purview of either section 82 or 83 of the Decree. In effect he submits that the particulars of the complaint against him do not state any offence.

(10) This argument was dealt with in some detail by the Commission in a ruling on the practitioner's Application for Stay, (Ruling 009 of 2013 dated 25 September 2013) in which it was held that the examples of misconduct listed in section 83 of the Decree are not exhaustive and in any event any conduct undertaken by the Practitioner need not necessarily be confined to competence or fitness to practice but it may include any conduct that the Commission might find to be professionally blameworthy, dishonourable or unethical.

In the case of Law Society of N.S.W. v Marando [2013]NSWADT267, it was said:

"However it is well settled that the statutory definition of professional misconduct does not exclude the common law definition emerging from the oft-cited case of Allison v Gen Council of Medical Education and Registration [1894] 1KB 750; that is "conduct which would reasonably be regarded as disgraceful or dishonorable by professional [colleagues] of good repute and competency".”


  1. In Complaints Committee No 1 of the Auckland District Law Society v C [2008] NZHC 2284; [2008] 3 NZLR 105 (HC) it was said;

“[33] ... While intentional wrongdoing by a practitioner may well be sufficient to constitute professional misconduct, it is not a necessary ingredient of such conduct ... [A] range of conduct may amount to professional misconduct, from actual dishonesty through to serious negligence of a type that evidences an indifference to and an abuse of the privileges which accompany registration as a legal practitioner.”


  1. Thus, in the light of the aforesaid statutory provisions and the judicial dicta, 'professional misconduct' will include any unsatisfactory professional conduct including unprofessional practice or conduct, which amounts to a substantial failure to reach or maintain a reasonable standard of competence and diligence; and it also includes malpractice as well. All these sections provide very wide parameters within which the Commission could find any particular conduct to be either unsatisfactory professional conduct or to be professional misconduct. Such conduct need not be confined to competence, fitness to practise, nor to any of the examples set out in section 83 and in any event alleged conduct undertaken by the Practitioner need not necessarily be confined to competence or fitness to practice but it may include any conduct that the Commission might find to be professionally blameworthy, dishonourable or unethical.
  2. The allegation is based on the breach of Rule 1.6 of the Rules of Professional Conduct and Practice and the said rule is as follows;

“1.6 A practitioner shall not borrow from nor provide security to a client, nor be in any way involved in the borrowing from or provision of security to a client by any spouse, parent, child or sibling of the practitioner, or any company or other entity in which the practitioner or any such family member has any beneficial interest. For the purposes of this rule, “client” shall mean any person (save any person advised by another practitioner independently instructed in respect of that transaction) between whom and a practitioner (or any partner or employer of a practitioner) any relationship of solicitor and client exists.

This rule does not apply where the client is—

  1. Thus, on a plain reading of Rule 1.6 it is clear and unambiguous that the said Rule prohibits a practitioner from,

a). directly borrowing from nor providing security to a client, or

b). indirectly be in any way getting involved in the borrowing from or provision of security to a client, by;

  1. any spouse, parent, child or sibling of the practitioner, or
  2. any company or other entity in which the practitioner or any such family member has any beneficial interest.

In this rule, “client” shall mean any person between whom and a practitioner any relationship of solicitor and client exists.


The standard of proof

  1. As set out in the Hong Kong case of A Solicitor v Law Society of H.K. [2008]2HKLRD and endorsed in Chief Registrar V Adish Kumar Narayan, ILS NO. 009 of 2013 (2nd October 2014) and adopted by this Commission in Haroon Ali Shah [007 of 2011] evidentiary test in professional disciplinary matters will is as follows;

"The test is not proof beyond reasonable doubt, but a varying standard of the civil standard referred to at times as the preponderance of probabilities. The more serious an act or omission alleged the more improbable it must be regarded and in proportion to the improbability the evidence will need to be more compelling". (emphasis added)


Summary of Evidence

  1. The allegation is that the respondent practitioner has obtained a loan of $300 from the client Mr. Jinchao Xu. According to the evidence of Mr. Jinchao Xu the Complainant, he had met and known the respondent practitioner Ms. Fa since 2015. He had come into contact with her when he leased out a property. It was a Real Estate Agent who introduced the Respondent to the Complainant Mr. Jinchao and she had attended to his legal matters since then. In 2020, he had obtained her services in respect of an agreement to sell his Yacht the fee agreed was $200 for the agreement.
  2. On 5th of July 2020, the Friday of the week of which he engaged her services for the said matter, the Respondent Ms. Fa had called him and requested for a loan of $300 (cash). The Complainant had been reluctant to give this money but as she promised to repay and return the said loan within the immediate week following, he had agreed and a staff of the Respondent was sent by her to Mr. Jinchao’s office and sum of $300 was collected. Upon requesting a receipt have been provided to the Complainant (vide- exhibit AE 1). The following week the Complainant has called and requested for the repayment when the Respondent has informed that she cannot repay the said amount as she had provided extra legal services. As she was not returning the money the Complainant had immediately on 2nd July, 2020 made a complaint to the Legal Practitioners Unit (LPU) of the Chief Registrar’s Office.
  3. The invoice number 36/20 was marked as exhibit AE3. After refusing to repay Ms. Fa has sent a further invoice number 38/20 which had been handed over to the Complainant after the 12th July, 2020 was marked as exhibit AE4. She was not his family but her cousin was working for the Complainant and Ms. Fa used to visit her cousin and also meet up with the Complainant.
  4. In cross examination he admitted that he arrived in Fiji in 2008 as an employee in a Fishing Company, which he quit in 2015 and started his own business. He had acquired citizenship subsequently and since 2015 all his legal matters had been attended to by Ms. Fa.
  5. On the 2nd June, 2020 he admits meeting Ms. Fa on the transfer of his boat and he had met her with the prospective buyer who were Indian National and another Chinese National. He had met Ms. Fa at 29 Pender Street and held the discussion there. It was suggested she quoted $500 which Xu denies and his position is that the sum agreed was $200. He also says that she requested for $300 from other party. It was suggested that the $200 was for the Nolle Street property matter which Mr. Xu denied and said it was inclusive for the boat agreement.
  6. It is common ground that Mr. Xu had moored a boat at the Yacht Club and had to pay mooring charges and he had also entered into an agreement to sell the boat. The Yacht Club had issued a bill of cost through Prasad Lawyers for a sum of $2,500. It had been negotiated and brought down to $1,000. Ms. Fa had been retained and she had negotiated this matter. Thereafter, the boat has been released to the new owners. the Complainant says that Ms. Fa was paid by the buyers as well and he is not aware as to the exact amount. He had admitted that the purpose of complaining to LPU was because he wanted Ms. Fa to return the $300 taken as a loan.

Respondent’s evidence

  1. The applicant concluded their evidence with this witness. Upon which the Respondent practitioner Ms. Ulemila Fa Tuituku testified. She had been in active practice for 30 years and her office had been at Pender Street since 2003. He had known the complainant Jinchao Xu whom she refers to as Jeffery. She had first come into contact with him due to a property transaction and introduced by a Real Estate Agent. She herself had been occupying the property leased out by the complainant and she had moved out. Ever since that they have been having a cordial relationship which Ms. Fa further describes as a ‘love-hate relationship’ and she stated further they used to visit each other on a very regular basis and she provided legal advice as and when he requested for, mostly free of charge. The continued connection had been primarily due to her cousin been employed there.
  2. Ms. Fa says that Jeffery (Xu) was never a client of Law Solutions her law firm and she explained the procedure of engaging a client at her law firm. She further elaborated that Mr. Xu was just a friend and that she had no files for Jaffery at her office, nor any letter of engagement and no retainer as at the day she obtained money. As for the sequence of events connected to this transaction, she says that on Tuesday the 2nd July, Jefferey had come to her office in the afternoon and requested that she sort out and attend to two matters. Firstly, the withdrawal of an offer for 41 Nolle Street and secondly the sale and purchase agreement of the boat. She had quoted $500 however, Mr. Xu had refused and said he had no money and has only $200. Ms. Fa’s position is that the first item will normally cost to about $600 to $800 and her charges per hour is around $500. She however has agreed to attend to these matters for $200. She had drafted the sale and purchase agreement and given a draft on the 2nd July. With the handing over of the draft and paying $200 the professional engagement between her and Xu she said ended there.
  3. On the 3rd June she was informed that Mr. Xu was waiting outside and when she checked he had wanted an invoice for the $200 he paid; the same have been provided. Invoice 036/20 was issued. Then on Friday around 3pm Jeffery had come with two others and wanted to see the agreement; despite it been during curfew (COVID), she had come to the office and made available the agreement to the two persons who came with the Complainant. They have signed the same and left.
  4. Then she says that Jeffery inquired from her if he knew anyone at the Suva Yacht Club. She had asked for $300 which he had refused but has given later. However, Mr. Xu had requested for a paper (receipt) which she had then prepared and sent to his office through her clerk. She admits that there was an undertaking to repay the $300 (vide exhibit AE 1). This transaction she says was between friends and she had obtained $300 on Friday.
  5. On the immediate Saturday 6th of July when she was at her house at Samabula Jeffery had wanted her to urgently help him with the Yacht Club to give access to the buyers of the boat. There had been an arrears of mooring fees for 12 months which the Yacht Club was demanding an upfront payment. She had contacted Mr. Devendra Prasad the Solicitor and also spoken to the Commander at the Yacht Club and sorted out the matter. Around 10.30AM she had met Jeffery and told him that she will bill him for these services that would include calls taken to the commander, emails sent and letters prepared.
  6. The following Monday or Tuesday Mr. Xu had come with a bill of costs from Devendra Prasd Lawyers demanding the payment of $2,600 which Ms. Fa had negotiated and had it reduced to $1000. Then she had invoiced him for these services in a sum $872 by invoice number 038/20 (exhibit AE3). She had dispatched this invoice through her manager to Jeffery but Jeffery had not accepted the same. However he had called her the following day and alleged her that she had not done any work and that she had not returned $300. She had informed him that Jeffery has not paid $800 as he fees. With this conversation she says that their relationship had fallen flat and a complaint had been made to the LPU against her.
  7. Ms. Fa finally said that she feels strongly about this matter and she feels that it is a witch hunt and that she had been a practitioner for 30 years and she is saddened by these events. She also said that the LPU is not a debt collecting agent.

The Practitioner’s Case

  1. In the written submissions of the practitioner she has taken up the following positions:

As regards (1) and (2) above the said submissions are based on the interpretation of “professional misconduct” and the interpretation of rule 1.6. I have considered and dealt with the interpretation of “professional misconduct” at paragraphs 4- 11 above. According to which “professional misconduct” is defined inclusively as considered in the two decisions of Chief Registrar V. Adish Kumar Narayan (supra) as discussed above and thus this submission is misconceived. As for (2) above the submission based on beneficial interest is based on the interpretation of rule 1.6. I have considered this at paragraph 13 above. Accordingly the word “beneficial interest” in Rule 1.6 does not qualify the word “client” in the said rule. The said term “beneficial interest” qualifies the last limb namely “any company or other entity”, which according to the breakdown of the said rule at paragraph 13 above, is unambiguous and clear as such. Submission number 2 is misconceived. The submission number 3 as to the existence or non-existence of the solicitor and client relationship I will now proceed to consider it.


  1. On the consideration of the totality of the evidence of both the complainant and the practitioner following the facts and circumstances are common ground.
    1. The Respondent was a legal practitioner;
    2. The Respondent and the complainant were known to each other from around 2015 and the complainant first met her in relation to a lease of a property through a Real Estate Agent namely Andrew.
    1. Since then, the Respondent did attend to legal matters and provided legal advice to the complainant as and when he sought her advise/services.
    1. Until 2020 their relationship was cordial apart from the Respondent attending to legal matters they have been in friendly terms visiting and associating each other as friends.
    2. On 3rd June, 2020 the Respondent had attended to the legal matter in respect of the withdrawal of the offer to purchase a property at Knolly Street and Deed of agreement for the sale of MV Boardroom for which the Respondent had charged $200 as her fees.
    3. The Respondent has borrowed a sum of $300 from the complainant on the 5th June, 2020 and issued a receipt of acknowledgement promising to repay the same on or before 12th June. 2020 (Exhibit AE1).
    4. The Respondent has provided the services in relation to the release of MV Boardroom, corresponding with the Royal Suva Yacht Club, discussions with Mr. Spencer, email correspondence in this respect, discussion with Mr. Prasad for the reduction of the legal fees.
    5. The Respondent has invoiced a sum of $872 by invoice dated 7th June, 2020 and number 038/20.
    6. It is also admits borrowing $300 as a loan which was to be paid back and that it was not repaid on the 12th June, 2020 but when preparing the invoice it was deducted from the invoice for the weekend work. (vide-the Respondents letter dated 20.08.2020 marked AE6).

Was there solicitor and client relationship as on the 5th of July 2022?

  1. Was there solicitor and client relationship as on the 5th of July 2022? This is the issue for determination. The issue in dispute is the dateand point at which on which the services in respect of invoice 038/20 was rendered. According to the Respondent her practitioner client relationship with complainant has ended on the 2nd July with the receipt of $200 paid in respect of the same. Further, in the course of her evidence and the suggestions made to the complainant was on the basis that there was not existing client-solicitor relationship on the 5th July when she borrowed the money. She also in evidence did take up the position that it was on Saturday 6th July that she was retained and her services in respect of negotiations with the Yacht Club for the release of the vessel was obtained. This becomes the paramount and the determining factor as far as this charge is concern. Therefore, I will now consider this fact.
  2. It is common ground and admitted by both parties that the complainant did obtain the services of the Respondent in respect of the release of the boat from the Yacht Club and the connected matters. The complainant in his evidence did state that he met the Respondent with another Chinese and an Indian National in respect of finalizing the agreement on the sale of the boat. This meeting is admitted by the Respondent. However, according to the complainant he is not sure of the exact date he so met the Respondent. In evidence he said that he cannot remember if it was the 5th or the 7th. The Respondent in evidence did admit that the complainant came to her office on Friday (the 5th) around 3pm with two others and wanted to see the agreement and he was in their office till 4pm. Thus, the fact of the Respondent attending to the legal matters of the complainant as on Friday is in evidence.
  3. Further there to the fact that the Respondent was so attending to legal matters as a practitioner has come in as evidence through documentary evidence as follows. The Respondent has provided an explanation to the Chief Registrar by her letter dated 7th July, 2020 (Exhibit AE5) with annexes. According to which she admits that from Friday the 5th June, 2020 that she was trying to sort out the issue of non-payment of the mooring fees. She had annexed emails sent to Diven Prasad. These are annexed to AS5 according to which on the 5th of June. She had been acting on behalf of the complainant. In the said emails she specifically informs in her email sent at 6.11.53pm as follows.
  4. The letter dated 5th June, 2020 address to the Commodore of the Royal Suva Yacht Club annexed to AE5 clearly states as follows:
  5. The aforesaid correspondence is admitted. The matter the Respondent has attended to is in relation to the sale and release of MV Boardroom had been invoiced by invoice number 0038/20 dated 7th June, 2020 (Exhibit AE3). The said invoice contains 8 items in respect of which the said invoice had been made out for. That is for the services rendered to the complainant by the practitioner acting as the solicitor qua Practitioner. This documentary evidence clearly establish that the Respondent has been acting in her professional capacity on behalf of the complainant who is referred to as the “client”. This is a clear admission that the Respondent had a solicitor and client relationship when she was so acting.
  6. Apart from this the practitioner admits therein that she was engaged in respect of this matter from Friday the 5th June, 2020. According to the email she had been attending to this matter even at 6.11 and 6.49pm. She also has forwarded a letter dated the 5th June, 2020. Therefore, without doubt the Respondent has been acting as the Solicitor of the complainant on the 5th, June, 2020. In evidence the Respondent admits that the complainant came with two others around 3pm.
  7. That being so the complainant clearly states that the respondent did request and accept $300 on Friday. Correspondingly the respondent admits that the complainant came in the afternoon and inquired if the respondent knew anybody at the Yacht Club to which she had answered in the affirmative. Then at this moment she had told the complainant to give her $300. He had refused but had subsequently given her $300 but demanded a receipt. The respondent has accordingly given the receipt marked AE1acknowledging the sum and agreeing to pay back the same on or before the 12th June. When the aforesaid evidence is considered in sequence the respondent practitioner has demanded and obtained or borrowed $300 from the complainant and this has happened late in the evening. She had sent the receipt through her office staff to the complainant’s office. This further proved that the receipt had been delivered to the complainant after the complainant has left the office that day.
  8. Accordingly, the evidence clearly proves on a balance of probability that the respondent practitioner has borrowed the sum of $300 from the complainant who was the client at that point. No doubt that due to the long standing dealings between them the relationship between the respondent and her client the complainant was a very close friendship which had been extending for over 4 years. The respondent had been in and out of the complainant’s office as one of her relation was also employed by the complainant. As described by the respondent herself they have had a love and hate relationship meaning visiting each other’s houses and even almost daily. It even had included giving advice to the complainant as and when he had demanded.
  9. In the normal course of human conduct when 2 persons are interacting even as client and practitioner for such interaction continues for considerable period of time it is not unusual to build a friendship and develop a familiarity of a close nature. Even so this does not in anyway become a reason or an excuse for a practitioner to violate the norms and standards of conduct she is required to conform. In the circumstances of this incident the complainant had not been willing to part with and give $300 to the practitioner for the asking. After reluctantly parting with $300 he has demanded a written receipt and acknowledgment. The respondent has provided the same which clearly specifies the intended date of repayment too. Is this the natural and normal conduct between persons with such familiarity and a close friendship as claimed by the Respondent? To my mind it certainly is not. Thus it is apparent that the complainant had given this money to the respondent not due to friendship but due to some cohesive circumstances. According to the evidence before this commission by this point of time the issue of the sale of the Complainant’s vessel and the connected matters with the Yacht Club for which he has obtained the services of the respondent the solicitor and client relationship was live and subsisting. Accordingly, I am satisfied on a balance of probability that the borrowing of money by the Respondent had taken place when the client-solicitor relationship between the complainant and the respondent was live and existing.
  10. The borrowing of money by the Respondent directly from her client the Complainant, certainly constitutes a clear breach of Rule 1.6. Even if there be no such prohibition the Respondent’s conduct clearly amounts to and can be reasonably regarded as disgraceful or dishonourable when objectively viewed by her professional colleagues of good repute and competency.
  11. Between a client and solicitor there is a fiduciary relationship. As such borrowing money from a client conflicts with the interests of the client. Further, the Respondent on the 5th has obtained $300 and in acknowledgment issued the receipt dated 5th June, 2020 (Exhibit AE1). The said receipt is as follows:

“I, ULAIMILA FA-TUITUKU of Suva in Fiji, Principal acknowledge receiving the sum of $300 (Three Hundred Dollars) and ALSO HEREBY ACKNOWLEDGING to pay back the said monies on or before the 12th June, 2020”.

I think that borrowing by legal practitioner any sum of money subject to an express written undertaking to repay on a specific date and not so repaying and honouring the said written undertaking specially made to a client is disgraceful and dishonourable. This is further compounded by the attempt to have it set off against an invoice for fees which the Respondent claims to be due from a client as admitted in letter dated 02nd July, 2020 marked AE2 as follows: “I enclose herewith for your perusal the invoices that were given to the Complainant. I do not owe the Complainant any money at all. As the matter of fact he owes me money on my invoice. However, to avoid unnecessary dramas we can do a switch wherein he pays my invoice and I pay his $300”. However, in her letter dated 20th August, 2020 marked AE6 the Respondent takes a different stand and states that: “So when asking your Complainant to lend me $300 that Friday afternoon, I was not borrowing money from a random stranger. It was done as a loan which was to be paid back. However, when preparing his invoice for the weekend work, the $300 was deducted from his invoice. He knew I was going to do that so”.(emphasis added).


  1. Professor Webb in his text “Ethics, Professional Responsibility and the Lawyer” at page 219 the says:

“Entering into a relationship of debtor or creditor with a client is problematic as it is often inconsistent with the fiduciary obligations the lawyer owes. The lawyer may be in need of finance and the client may be prepared to act as lender. However, for the lawyer to borrow money directly from clients is difficult. It places the interests of the lawyer in quite opposed positions. To take a loan from a client is likely to be misconduct ...”


Thus, the Respondent has attempts to have the $300 set off against an invoice for fees which the Respondent claims to be due from a client which conduct is unethical I find to be professionally blameworthy and dishonourable that amounts to Professional Misconduct.


  1. The Respondent attempts to trivialize and downplay this act of borrowing from a client, thus in conclusion it is opportune to note the following observations in this regard;

“...in considering whether a solicitor has been guilty of professional misconduct in a dealing with a client, and in considering the gravity of that misconduct, the fact that the client , in the ultimate event, suffers no loss is of little, if any, relevance. If the acts or omissions of a solicitor constitute professional misconduct, they do so at the time when they occur.” (Law Society of NSW v Moulton (1981) 2NSWLR 736 at 739F to 740B)

and;

“ It is no answer to the charge of professional misconduct in relation to transactions with his client’s money that the solicitor did not appreciate that what he was doing constituted misconduct.” (Law Society of NSW v Moulton (1981) 2NSWLR 736 at 740 D to E)


Conclusion

  1. In the aforesaid circumstances this Commission is satisfied on a balance of probabilities that that the Respondent has acted in breach of rule 1.6 of the Rules of Professional Conduct and Practice, by borrowing from Jinchao Xu when a relationship of solicitor and client existed, and that her conduct amounts to "professional misconduct" within the meaning of section 82(1)(a) of the Legal Practitioners Act 2009.Thus I find that the allegation of professional misconduct as levelled against the Respondent is proved. I find the Respondent liable for the said allegation of professional misconduct as preferred.
  2. The allegation of Professional Misconduct is proved.

Dated the 23rd day of January, 2023.


Justice Gihan Kulatunga
Commissioner

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