By Paul Gregoire and Ugur Nedim
In May 2014, a client referred to as ‘Ms N’ instructed Sydney lawyer Mr Tien Ngoc Do to act on her behalf for the purchase of an interest in a property, the balance of which she already owned. No purchase price had been set at the time.
Ms N paid Tien Ngoc Do & Co $1,000 for professional costs and $1,980 in disbursements. Mr Do informed his client three months later that he had negotiated a selling price of $40,000. However, no such agreement had in fact been reached.
Between August 2014 and February 2015, Ms N paid the lawyer seven $2,000 instalments to be held in trust for the payment of the property.
On 5 March 2015, Ms N engaged another lawyer to act on her behalf on this matter. Her new lawyer tried to negotiate the return of $16,980 with Mr Do. But Mr Do prevaricated to such an extent that the new solicitor contacted the Law Society of NSW about his behaviour.
Mr Do gave Ms N a cheque made out for $15,980 on 17 April. An investigation by the NSW Law Society found the cheque was actually purchased by a third party from a cheque account made out in their name.
This suggested that Mr Do had failed to place his client’s money into a trust account, as required by the law. The situation led to speculation that Mr Do didn’t even operate a trust account.
A long list of transgressions
Between March and May 2015, the NSW Law Society received numerous complaints about Mr Do’s conduct. The regulatory body subsequently filed an application to the NSW Civil and Administrative Tribunal (NCAT) alleging the lawyer acted in a manner that constituted professional misconduct with eight clients
Other examples of the lawyer’s unprofessional conduct included having money relating to the sale of a client’s property paid into his personal bank account, failing to register the transfer of a title, and failing to correctly issue receipts in regard to money received from clients.
Evidence at the hearing
Mr Do’s case was heard in the NCAT on 24 August this year. The lawyer didn’t participate in the proceedings in any way. This meant the NSW Law Society had to arrange for all the evidentiary material to be supplied to the tribunal.
James Sofiak of the Law Society’s Trusts Accounts Department was tasked with investigating the complaints. The report he prepared comprised Mr Do’s files, banking records and affidavits from the eight clients.
The tribunal panel was made up of Principal Member Francis Marks, Senior Member Michelle Sindler and General Member Bruce Thomson. They applied the Briginshaw standard when weighing up the evidence.
The Briginshaw standard requires a higher degree of satisfaction than the normal civil onus of proof.
This standard is employed by courts when dealing with more serious civil matters, such as allegations of fraud or misfeasance.
Disregarding of regulations
In relation to Mr Do’s dealings with Ms N, the NCAT members were “comfortably satisfied” that the money paid to him was not deposited into a trust account, and that the funds were misappropriated and applied in a manner inconsistent with regulations.
For this matter and others, Mr Do was found to be in breach of section 254 of the Legal Profession Act 2004, which requires legal professionals to deposit client money into a trust account unless (a) it has a written direction by an appropriate person to deal with it otherwise than by depositing it in the account, or (b) the money is controlled money, or (c) the money is transit money, or (d) the money is the subject of a power given to the practice or an associate of the practice to deal with the money for or on behalf of another person.
The maximum penalty for failing to follow this requirement is a fine of $11,000.
The case against Mr Do was filed after the Legal Profession Act was repealed and replaced by the Legal Profession Uniform Law on 1 July 2015. However, the new legislation provides that a complaint made before its commencement should be dealt with in accordance with the earlier legislation.
Mr Do was also found to have breached regulation 61 of the Legal Profession Regulation 2005, which requires that if a solicitor receives a client’s money, a receipt must be issued containing the required particulars, including the law practice and client details, as well as the purpose of the payment.
The Legal Profession Regulation was also repealed in July 2015. It was replaced by the Legal Profession Uniform Regulations 2015. The same transitional provisions apply, so that the older regulation is applicable where a complaint was filed before its repeal
Insolent unprofessional conduct
The three member NCAT panel found that it was clear from the evidence set out in Mr Sofiak’s report that Mr Do had “contumeliously and egregiously disregarded fundamental obligations and responsibilities” that apply to all NSW solicitors.
The proven evidence against Mr Do showed that he had acted dishonestly on many occasions and he’d consistently breached the regulatory regime, which is established in NSW to govern the conduct of solicitors.
“We cannot comprehend that any solicitor admitted to the practice of law would fail to understand that he or she is compelled to pay all moneys received from clients to be applied in connection with a transaction the subject of instructions into a trust account,” the NCAT members stated.
They found Mr Do had clearly failed to abide by this basic principle, and moreover had even used some of the money for his own purposes. The lawyer was also found to have failed to keep trust account records and issue receipts, and carried out client tasks in a tardy manner.
Struck off the roll
Taking into matters into account, the NCAT members remarked that Mr Do’s conduct constituted “one of the worst examples” of unprofessional conduct. It then formally pronounced him guilty of professional misconduct.
Section 497 of the Legal Profession Act outlines that professional misconduct is substantial or consistent failure to maintain “a reasonable standard of competence or diligence,” which renders a lawyer “not a fit and proper person to engage in legal practice.”
On 5 September this year, the NCAT ordered that Mr Do’s name be removed from the NSW roll of lawyers, meaning he can no longer practice law in this state. He was also ordered to pay the Law Society’s legal costs.