Thornburgh, Re [2019] VULCDC 6 (24 September 2019)

LAW COUNCIL CONSEIL DE LOI

DISCIPLINARY COMMITTEE

PMB 9048, PORT VILA, PMB 9048, PORT VILA,
REPUBLIC OF VANUATU REPUBLIQUE DE VANUATU
Telephone: [phone] Telephone: [phone]
Fax: [phone] Fax: [phone]
_____________________________________________________________________

MR DANE WILLIAM THORNBURGH

The Disciplinary Committee has received a total of 7 complaints regarding the conduct of Mr Thornburgh:

1. Ms S. Mahuk complained on 26 January 2017. The complaint was based on two aspects of 6 conveyancing transactions and of a different nature in respect of an estate file. In relation to the conveyancing matters, the complaint was that client funds received to pay stamp duty and registration fees were improperly used for Mr Thornburgh’s personal purposes without the consent of the clients; and further, that stamping and registration was unduly delayed, thereby exposing clients to unnecessary risks. It was further alleged that explanations provided to the clients were false. In relation to the estate file, the allegation was that Mr Thornburgh had received funds for distribution, which he did not properly account for.
   
2. Mr G. Craig complained on 16 March 2017. His complaint was considered by the Committee to not reveal a prima facie case of misconduct, and it was accordingly dismissed.
   
3. Mr F. Morse complained on 17 May 2017. He complained of the unexplained delay in the completion of his conveyancing transaction and evasive explanations for that delay. He instructed Mr Thornburgh to hand over his file to another lawyer, but that instruction was ignored. He was concerned his funds had been improperly handled.
   
4. Mr S. Beren complained on 20 August 2017. He complained of criminal conduct by Mr Thornburgh. The Committee has not considered the complaint, as it understands the matter to be the subject of a criminal trial later in 2019 – the Committee does not wish to prejudice that hearing in any way. Depending on the outcome of the criminal prosecution, it is unlikely the Committee will be called upon to deliberate on this complaint.
   
5. Mrs L. Coutts complained on 20 April 2018. She too complained of Mr Thornburgh not promptly using funds provided to achieve stamping and registration of her legal interest in a conveyancing transaction, and that when explanations were sought no proper response eventuated.
   
6. Mr P. Mortimer complained on 20 March 2019. He complained that Mr Thornburgh had received an insurance payout in relation to an accident, but had retained the funds despite promising to pay it to Mr Mortimer within a certain time, and subsequently by way of time payments. Mr Mortimer was looking to the Committee to force Mr Thornburgh to pay the balance of the funds owing to the proper recipient.
   
7. Mr and Mrs B Fanning complained on 20 June 2019. Mr Thornburgh acted for them in the purchase of 5 properties. They paid him various amounts in the course of the transaction, and ended up having paid over A$79,000 in excess of what was required to complete the transaction. The complaint centres on the lack of accounting by Mr Thornburgh, the lack of registration of the titles in the Fanning’s name, and despite numerous requests including from their new solicitor, Mr Thornburgh simply providing unsatisfactory responses over a 2 year period.
   

The Committee has regarded the Mahuk complaint as the more pressing matter, and dealt with that complaint before considering any of the others against Mr Thornburgh.

The Committee produced a written decision as a result of our consideration of the Mahuk complaint on 18 February 2019.

Mr Thornburgh then sought and obtained an immediate stay of that decision pending the outcome of his appeal against the sanction imposed, as well as an order as to non-publication of the decision.
Mr Thornburgh’s appeal was scheduled to be heard on 16 September 2019. Instead of the matter being argued and decided, Mr Thornburgh proposed an alternative, namely that he would voluntarily cease the practice of law in Vanuatu, subject to certain proviso’s dealing with obligations to existing clients.

The proposal was attractive to the DC – it would ensure protection of unsuspecting members of the public. The DC accordingly determined, if it could also get Mr Thornburgh to address the 4 other, as yet unconsidered complaints, against him, that it could look at his proposal favourably.

Accordingly, on 17 September 2019 Counsel acting for the Committee consented to Mr Thornburgh’s appeal being granted and the orders made by the Committee were set aside. Mr Thornburgh signed a Deed which set out:

- from the date of execution of this Deed Mr Thornburgh is to not accept a retainer in respect of any new legal instructions;

- within 48 hours of the signing of this Deed Mr Thornburgh agrees to provide a letter of apology on his firm’s letterhead in terms of Annexure A hereto, to his former clients Lydia Coutts and Dr Forbes Morse;

- within 28 days of the signing of this Deed Mr Thornburgh will provide to the Committee in respect of his former clients Billy and Margaret Fanning, a report which includes: invoices for legal fees in taxable form, an accounting for monies as claimed by Mr Thornburgh and monies as owing to Mr and Mrs Fanning, if any (with any such amount to be paid to Mr and Mrs fanning within 7 days hereafter) and hand over his original files to Garry Blake, Partner of Ridgway Blake Lawyers;

- within 7 days of the signing of this Deed Mr Thornburgh is to pay the balance of any monies owing to or at the direction of Pierre Mortimer;

- Mr Thornburgh shall immediately cease and desist from advertising that he provides legal services in the Republic of Vanuatu; and

- Mr Thornburgh voluntarily agrees to cease practise in the Republic of Vanuatu on or before 29 November 2019 and will only recommence practise in the Republic of Vanuatu in the event he successfully applies for re-admission as a legal practitioner.

G. A. Andrée Wiltens

Chair