Law Society of NSW v Berger (No. 1) [2017] NSWCATOD 137

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Law Society of NSW v Berger (No. 1) [2017] NSWCATOD 137 Hearing dates: 31 October 2016, 22 & 23 February 2017, 28, 29 & 30 June 2017 (1st stage) Date of orders: 21 September 2017 Decision date: 21 September 2017 Jurisdiction: Occupational Division Before: Hon G Mullane ADCJ, Principal Member M Riordan, Senior Member E Hayes, General Member Decision: (1) The Respondent is guilty of professional misconduct.

(2) The proceedings are adjourned to 22 November 2017 for a further 1 day for the Stage 2 hearing.

(3) The Applicant must file and serve any further material to be relied upon on or before 2 October 2017.

(4) The Respondent must file and serve any further material to be relied upon on or before 23 October 2017. Catchwords: Legal Practitioner – Disciplinary Proceedings – allegations of failures to make costs disclosures to clients, breaching disclosure undertakings given to Legal Services Commissioner, purporting to act as attorney when donor of power is deceased, purporting to act as executor when no grant of probate, failing to comply with Court order, breaches of sections 254, 255 & 259 of Legal Profession Act 2004, causing deficiencies in trust account, overcharging and misappropriation. Legislation Cited: Legal Profession Act 1987; Legal Profession Act 2004; Legal Profession Regulation 2005; Probate and Administration Act 1898; Cases Cited: O'Connor v Fitti [2000] NSW FC 540; Garbutt v Edwards [2006] 1All ER 553; Kumar v Legal Services Commissioner [2015] NSWCA 161; Brereton v Legal Services Commissioner [2010] VSC 378; Legal Services Commissioner v Brereton [2011] VSCA 241; Legal Practitioners Conduct Board v Jones [2010] SASFC 51; R v Lawrence [1997] 1 VR 459; Council of the Law Society of NSW v Nicholls [2012] NSWADT 222; Council of the Law Society of NSW v Ross [2013]NSWADT 106; Council of the Law Society of NSW v Greenstein [2015] NSWCATOD 122; Council of the Law Society of NSW v Coombes [2015] NSWCATOD 108; Law Society of NSW v Shehadie [2016] NSWCATOD 46; Galea v Galea (1990) NSWLR 263; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Texts Cited: Nil Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Victor Berger (Respondent) Representation: Counsel: B Tronson (Applicant) D A Lloyd with M Kalyk (Respondent)