David John Russell [1993] NSWLST 20

The Legal Services Tribunal of New South Wales

CITATION : David John Russell [1993] NSWLST 20 PARTIES : David John Russell FILE NUMBER(S) : of 1993 CORAM: Ms A Plotke (Presiding Member) - Mr I. Ferguson - Mr A Martin CATCHWORDS: :- Findings of wilful breach of s.41 of the Legal Practitioners Act 1898 and s.61 of the Legal Profession Act 1987 - Solicitor found to have preferred the interests of one beneficiary to those of other beneficiaries - Although professional misconduct made out question as to appropriate penalty considered by Tribunal. LEGISLATION CITED: Legal Practitioners' Act 1898 Legal Profession Act 1987 CASES CITED: DATES OF HEARING: 11 October 1993 DATE OF JUDGMENT: 12/21/1993 LEGAL REPRESENTATIVES: Mr I. Wales (instructed by Mr F. Smith) appeared for the Law Society of New South Wales. Mr J. Turnbull (instructed by Messrs Pope & Spinks) appeared for the Solicitor.

JUDGMENT:

This complaint was made under Section 135 of the Legal Profession Act 1987 ("the Act") by the Law Society of New South Wales ("the Society") against David John Russell ("the Solicitor") and comprised the allegations that the Solicitor wilfully breached Section 61 of the Act, Section 41 of the Legal Practitioner's Act 1898 ("the prior Act"), misappropriated monies and preferred the interests of one beneficiary in a deceased's estate to those of others. The Society sought such orders as to the Tribunal seemed fit and an order against the Solicitor for costs.

The particulars of the allegations in the complaint all related to the one matter, namely, the Estate of the Late Walter G. Wilkinson ("the deceased"). The Solicitor acted for Eve Tod, David Greenhalgh and Terry Ryan, the Executors of the Will and Codicil of the deceased. Probate was granted to them on 19 November 1986. The allegations against the Solicitor were that in wilful breach of Section 61 of the Act, the Solicitor paid to himself without the authority of the Executors, the sum of $4,000 out of monies held by him in trust for the Executors and that in wilful breach of Section 41 of the prior Act he, also without the authority of the Executors, paid to himself amounts of $880 on 17 December 1986, and $549 on 21 June 1987 out of monies held by him in trust for the Executors.