Solicitor fails client, misleads Commissioner
November 4, 2016
A northern suburbs solicitor has been found guilty of two charges of professional misconduct after he failed to inform his client of a settlement offer before its deadline.
The Victorian Civil and Administrative Tribunal heard Mr Barry Waters, of Waters & Co Lawyers, had taken over a family law litigation matter from one of his employees who had gone on maternity leave. During Mr Waters’ handling of the matter, the opposing side made a Calderbank offer to settle property issues prior to a highly contested Family Court proceeding. Mr Waters failed communicate the offer to his client before its expiry.
The Victorian Legal Services Commissioner told VCAT that when asked for an explanation of his failure to pass on the offer, Mr Waters responded in writing stating that he had informed his client of the offer via both telephone and in email before the expiry date.
The Commissioner told VCAT that following further investigation, Mr Waters acknowledged he had erred in his previous response, and admitted that he had in fact not communicated the offer to his client.
VCAT found that Mr Waters’ failure to communicate the Calderbank offer had denied his client of the opportunity to accept the offer while it was still open, and deprived his client of the ability to understand the legal consequences of not accepting the offer.
In its deliberations, VCAT made special note of the importance of practitioners responding accurately to requests for information from the Commissioner:
‘Any occasion where false or misleading information of any substance is provided to the regulator is likely to be a serious breach of a practitioner’s professional responsibilities.’
‘… it is essential that practitioners respond with scrupulous accuracy to requests from [the Commissioner] for information in the light of complaints received from clients. This is underlined by the knowledge that breaches of this requirement will attract strong penalties.’
VCAT found Mr Waters guilty of two charges of professional misconduct; one charge related to his failure to communicate the Calderbank offer, and a second charge related to the false and/or misleading information he initially provided to the Commissioner.
VCAT noted Mr Waters’ previous unblemished practice record and that the health problems he was suffering at the time of the offending did appear to contribute to his initial error.
Mr Waters was fined $9,000 and ordered to pay the Commissioner’s costs of $11,000.
For further information download the VCAT decision.