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Boar, Re [2019] VULCDC 7 (25 November 2019)

Disciplinary Committee Hearing 19 November 2019

LC Disciplinary Committee:

G Andree Wiltens, Chair

S. Shah, Member

D. Russet, Member

K, Solomon, Member

F. Williams Reur, Secretary

Date of Decision: 25 November 2019

Complaint by Law Council re: Mr George Boar

1. Introduction
   

1. The Law Council became aware of the fact there was a criminal prosecution against Mr Boar, for the offence of misappropriation contrary to section 125(b) of the Penal Code, and referred the case to the Disciplinary Committee.
   
2. The criminal prosecution and this Disciplinary hearing are not duplication, as it is understood that the Public Prosecutor has agreed to nolle prosequi the criminal charges, effectively a complete acquittal. The Committee has no knowledge or understanding as to this outcome, agreed to by the Public Prosecutor. There is in any event no risk of double jeopardy to Mr Boar.
   
   2. Background
      
3. In 2008, Mr Boar agreed to act for some 15 staff members of the Cooperative Department who alleged they had been underpaid their entitlements by the State. The outcome of the case was that the staff members were awarded additional entitlements over what had been paid. Those funds were to be distributed equally to each of the members of staff, and were accordingly paid by the State to Mr Boar’s Trust Account.
   
4. Mr Boar agreed that the following payments were made to his Trust Account by the State:
   
   • - On 28 October 2008, VT 1.2 million as part payment of Mr Boar’s legal fees;
   • - On 19 June 2009, VT 3,905,660 towards the staff entitlements;
     
   • - On 23 December 2009, VT 1.5 million as the balance Mr Boar’s of legal fees. Mr Boar had written to the State on 16 September 2009 advising his legal fees came to VT 4 million, less the VT 1.2 million already received. However he was prepared to accept the sum of VT 1.5 million in full and final settlement; and
     
   • - In December 2009, VT 1.5 million towards the staff entitlements.
     
5. Mr Boar agreed the total amount he received from the State on behalf of his clients was VT 5,405,660. That equates to approximately VT 360,000 for each of the 15 staff.
   
   6. Mr Boar’s criminal prosecution is based on his failure to account to his clients for the funds received on their behalf. In May 2019, the Supreme Court was advised that the case was “resolved”. The resolution reached was that providing Mr Boar paid VT 1.2 million by way of VT 300,000 instalments each on or before 15 June, 15 August, 15 October and 15 December 2019, the prosecution would enter a nolle prosequi on all his criminal charges.
      
   7. Mr Boar subsequently made those payments, and has already paid the final instalment. He does not understand why the nolle prosequi has not already been filed.
      
   100. The Complaint
        
8. As the Committee attempted to explain to Mr Boar, and which he seemed reluctant to grasp, the complaint alleges blatant dishonesty on his part – in that he retained client funds without legal excuse for a period of almost ten years.
   
   4. Discussion
      
9. Mr Boar explained that his instructions came from two of the four of his 15 clients who resided in Vila. The remainder resided and worked in other outlying islands. Mr Boar expressed difficulty in getting clear instructions. This was exacerbated by squabbling within the group about allocation of the funds. He maintained that he had held onto the funds to protect himself from subsequent allegations of misconduct.
   
10. Mr Boar did not have his file or his Trust Account records with him. He stated that he had reported to his clients as to the total funds received on their behalf, but did not produce a copy of that letter. He explained his records had been destroyed by Cyclone Pam. However, he confirmed as correct the figures referred to in the criminal case as to the payments received on behalf of his clients, and in respect of his legal fees.
    
11. Mr Boar called as a witness Mr Joseph Alick, one of his instructors from Vila. Mr Alick, a supervisor in the Business Development section, did not corroborate many of Mr Boar’s positions. The Committee points to two examples:
    • - Mr Boar told the Committee that he had agreed to take on the case and only charge fees if successful in the Claim. However Mr Alick advised that he and all the others had paid Mr Boar cash up front prior to the Claim being lodged. He also stated that there had been no agreement that Mr Boar would charge legal fees only if successful.
      
    • - Mr Boar told the Committee that the funds received were to be equally shared, which is what he had attempted to do. Mr Alick agreed that out of the initial VT 1.5 million received from the State, 10 staff members had each received VT 150,000; and that he had personally further received the sums of VT 300,000 and VT 60,000. There can have been no equal distribution if those numbers were correct. Mr Boar was unable to explain this satisfactorily.
      
12. Importantly, Mr Alick contradicted Mr Boar’s position regarding his difficulty in getting instructions as to how the funds should be distributed. Mr Alick advised that Mr Boar had been given the individual bank account details for all 15 clients – something Mr Boar accepted as correct when challenged. This was not something he had volunteered earlier in the hearing when explaining his defence to the complaint. We will refer further to this point later in this decision.
    
13. Mr Alick’s evidence before the Committee posed another difficulty for Mr Boar. In 2017, despite the missing records, Mr Boar prepared a Deed of Settlement which he and Mr Alick (on behalf of the 14 other clients) had signed. The Deed purports to record the funds received into the firm’s accounts as follows:
    
    • - 17 December 2008 VT 1,280,000
      
    • - 28 December 2009 VT 1,500,000
      
    • - 22 June 2009 VT 3,905,660.
      
14. The Deed goes on to record that solicitor client costs of VT 3,090,909 was deducted, leaving a balance available for distribution of VT 3,594,751. An earlier explanation term in the Deed explains that the solicitor client costs were to pay Mr Boar’s legal fees. The Committee noted the difference between this and Mr Boar’s letter to the State advising his total fees but accepting the total of VT 2.7 million as full and final settlement. Why Mr Boar’s clients were being told something very different in 2017 remains unexplained by Mr Boar.
    
15. The Deed continues to record what is described as “Total Amount Release To Co-operative Department Staff” as follows:
    
    • - December 2009 VT 1,500,000
      
    • - December 2012 VT 170,000 (paid to Client Representative for 4 Staff)
      
    • - December 2012 VT 817,751 (Plus 10% interest to 11 Staff at VT 60,000 p/p)
      
    • - 10 May 2017 VT 300,000.
      
16. The remaining balance owed is accordingly stated to be VT 964,751. The Committee considers this sum to be incorrect, and that the figure should be VT 807,000. The Deed concludes that Mr Boar and Mr Alick agree that Mr Boar will release that remaining amount to the 15 staff members. It also records the difficulties Mr Boar has had with his clients instructing other counsel and sought assurances as to whom to pay.
    
17. The Deed of Settlement also reveals incorrect accounting for the amounts paid by the State, as agreed by Mr Boar to the Committee. Mr Boar stated to the Committee that, the VT 170,000 the Deed records as having been paid, went to Mr Alick. Mr Alick flatly denied this. Mr Alick accepted he had received VT 60,000 as his share of the VT 817,751, but he did not receive any interest on top of that sum despite what has been recorded. Mr Alick confirmed the final VT 300,000 payment was paid directly to him.
    
18. On every level the Deed, it is incorrect. The State has paid Mr Boar’s legal fees. As well he has received some VT 150,000 from his clients before taking the case on. Given that the State paid a total of VT 8,105,660, as accepted by Mr Boar, to have taken VT 2.7 million from the State as his fees and then charged his clients a further VT 3,090,909 indicates to the Committee that there was no proper accounting to his clients.
    
19. It further follows, that the proportion of remaining funds (less than 40%) should have been paid to his clients forthwith – either by direct transfers to their accounts or by 15 individual cheques. Mr Boar stated that these two solutions had not occurred to him at the time. The Committee does not accept that as explanation. Whatever the squabbling that Mr Boar refers to, he had the means to equally distribute the funds to his clients and to keep accurate records of this so that there could be no comeback against him. Mr Boar’s excuses for not paying out the funds received are not acceptable.
    

5. Considerations
   

20. The Committee is required to consider whether his conduct was: (i) professional misconduct, or (ii) unsatisfactory professional conduct; the latter being less serious than the former.
    
21. An Australian Law Reform Commission paper dealing with “Disciplinary Structures and Court Imposed Sanctions” of 14 November 2010 sets out what each standard includes.
    
22. That paper suggested that: “unsatisfactory professional conduct” includes: Conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonable competent Australian legal practitioner; and conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
    
23. The paper went on to suggest that: “unsatisfactory professional conduct” includes: Conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonable competent Australian legal practitioner.
    
24. The Committee is content to accept those definitions as applying to legal practitioners in Vanuatu, and to look at Mr Boar’s conduct having those principles in mind.
    
25. The Committee also took into account the various legal pronouncements largely following the same principles in Allinson v General Council of Medical Education and Registration [1894] UKLawRpKQB 36; [1894] 1 QB 750; Re: A Solicitor [1975] 1 QB 475; and Re Hodgekiss (1962) 62 SR (NSW) 340; and A Barrister and Solicitor: In re [1999] FJ Law Rp 11.
    
26. The Committee considered that as well as the dishonesty involved in the complaint, Sections 43, 55, 66 and 67 of the Rules of Etiquette and Conduct of Legal Practitioners [Cap 119] were also particularly apposite to Mr Boar’s case. Section 43 deals with the requirements of disclosure and communication of information to clients. Section 55 requires the practitioner to render a final account to his client within a reasonable time which sets out the work undertaken. Section 66 requires the lawyer’s practice to be administered in a manner that (i) ensures duties to the Court and clients are adhered to, and (ii) preserves the reputation of the profession. Section 67 prohibits misleading or deceptive conduct.
    
27. The Committee took on board the test to be applied when deciding dishonesty in disciplinary proceedings as postulated in Law Society v Bultitude [2004] EWCA Civ 1853 as being a 2-step test involving:
    
    • - Did the solicitor act dishonestly by the ordinary standards of reasonable and honest people, and if so
      
    • - Was he aware that by those standards he was acting dishonestly?
      
28. The Committee finds the complaint made out. We are unanimous that his conduct was dishonest as well as breaching the Rules of Etiquette. We do not accept the explanations put forward in attempted explanation for the conduct complained of.
    

6. Sanction
   

29. Mr Boar was given the opportunity to address the Committee as to the appropriate sanction if the complaint was found to be established. He responded that a warning would be sufficient. It was suggested to him that the complaint, if established, involved alleged dishonesty and thus a warning would not be a sufficient sanction. Mr Boar responded that if he were to be suspended after 15 years without blemish of practise, that he and three members of staff would lose their livelihoods with disastrous consequences flowing on from that.
    
30. In Hart v Auckland Standards Committee 1 of the New Zealand Law Society [2013] NZHC 83; [2013] 3 NZLR 103, dealing with the principles applicable to the consideration of the appropriate sanction following a finding of misconduct, the Court applied with approval the principles set out in Devine v New Zealand Law Society [2012] NZLR 481 which include:
    

“Wilful and calculated dishonesty normally justifies striking off”

31. That is consistent with the approach taken in England and Wales. In Bultitude it was stated:
    

“I accept of course that he is not shown to have intended permanently to deprive his clients of their funds. The proof of dishonesty in this context is not dependent upon proving that intention....Mr Bultitude signed a cheque for 50,000 [pounds] transferring his clients’ funds and thus, it must be inferred, without knowing or caring whether his firm was entitled to be paid those funds. That, to my mind, satisfies both legs of the Twinsectra test....it must have been clear to him what had been done to clear the credit balances but he di nothing to backtrack. As the Tribunal found, he was guilty of conscious impropriety amounting to dishonestly endorsing what had been done.”

32. Mr Bultitude was suspended from practice initially. The Law Society appealed. In the course of that hearing, the Court was advised that there was only one known instance of dishonesty in connection with client funds that had not resulted in a striking off.
    
33. In New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177, a two-year suspension of a barrister who had engaged in a scheme of charging “extortionate and grossly excessive” fees was overturned. The High Court ordered that he be disbarred, notwithstanding his youth and his lack of understanding, stating that “his failure to understand the error of his ways of itself demonstrates his unfitness”.
    
34. In Mellifont v The Queensland Law Society Inc [1981] Qd R 17, the Court cited with approval statements of the New South Wales Court of Appeal that a disciplinary tribunal must not impose a suspension unless confident that, at the end of the suspension, the practitioner would be fit to practise. It would be unlikely that the tribunal could often be confident of this if the practitioner before it was presently unfit. The tribunal would need to be sure that a transformation of character would occur before the suspension ended. The Court went on to say that, given the deceit, dishonesty and dishonour of Mellifont’s conduct, a fine was not appropriate and nor was a suspension, given that the court could not be satisfied that Mellifont would be fit to practise at the end of any period of suspension. The court ordered that he be struck from the roll.
    
35. The Committee duly took Mr Boar’s submissions as to sanction into account. However we considered the plight that visited Mr Evatt was instructional. It was felt that the Committee’s main function when considering complaints is to balance the all-important factor of protecting members of the public from dishonest practices with the personal consequences flowing to the practitioner and his staff. There is further an obvious need to maintain the reputation of the legal profession in Vanuatu. We were concerned that the main aspect of the case highlighted dishonesty; but other aspects of Mr Boar’s misconduct were also significant. We consider the clients received very poor legal service at the hands of Mr Boar.
    
36. The Committee considered the position of Mr Boar was similar to that of Mr Evatt and Mr Mellifont in terms of seriousness.
    
37. Given that dishonesty was at the forefront of Mr Boar’s misconduct, the only proportionate response must be that Mr Boar be struck off.
    

7. Result
   

38. The Committee determined unanimously that Mr Boar should be struck from the Roll of Practising Lawyers forthwith. The Secretary is to advise the Law Council, the Chief Justice, the Solicitor General and the Chief Registrar of the Supreme Court of this outcome.
    
39. Mr Boar has 15 days from the date this decision is made known to him to appeal this decision.
    

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G.A. Andrée Wiltens

DC Chair