Paul Herbert Kennedy [1996] NSWLST 20

The Legal Services Tribunal of New South Wales

CITATION : Paul Herbert Kennedy [1996] NSWLST 20 PARTIES : Paul Herbert Kennedy FILE NUMBER(S) : of 1995 CORAM: Mr A. Martin (Presiding Member) - Ms J. Greenwood - Dr P.O. Miller A.M. CATCHWORDS: :- breach of his fiduciary duty to the client Professional Misconduct - Clause 27 of the Legal Profession Regulation 1987 - LEGISLATION CITED: Legal Profession Act 1987 Allinson v General Council of Medical Education and Registration (1894) 1 QB 750 ; CASES CITED: Re The Law Society v Bannister (LPDR No 4 of 1993); Law Society of NSW v Harvey (1976) 2 NSW LR 154 ; Tyrrell v Bank of London (1862) 10 HLC 26 DATES OF HEARING: 26 February 1996. 13, 14, 15 August 1996. DATE OF JUDGMENT: 12/09/1996 LEGAL REPRESENTATIVES: Mr Wales appeared for the Law Society. Mr Gye for the solicitor.

JUDGMENT:

Alleged loans made to the Solicitor or to companies (of which the Solicitor was a director and a shareholder) by clients of the Solicitor.

Solicitor admitted failure to comply with the Borrowing Guidelines in one matter. Tribunal found professional misconduct and the Solicitor in breach of his fiduciary duty to the client in failing to advise her to obtain independent legal advice. Tribunal found that the Solicitor failed to ensure that a client obtained independent legal advice as required by Clause 27 of the Legal Profession Regulation 1987 which failure amounted to professional misconduct.

Tribunal found failure to comply with Clause 27 in a further matter, but the Tribunal dismissed the complaint on the particular facts of the relationship between the Solicitor and the other party and found that one advance was not, on the facts, a loan.