Self-help solicitor struck off

Rolled-up bundle of complaints against solicitor from the NSW northern rivers ... Harassment of former female client with 30 plus phone calls and text messages ... Forging JP's signature ... Breaching the sanctity of the solicitor-client relationship ... Other sins 

Bustling Ballina: now one solicitor short

BALLINA solicitor Mark Flynn has been struck from the jam-roll by the NSW ADT. 

The poor wretch faced a cocktail of complaints, including: 

harassing a former client with more than 30 phone calls and text messages over a six hour period; 

attempting to get an elderly nursing home resident to sign documents without consulting her lawyer; 

forging the signature of a justice of the peace; 

charging for disbursements, when he shouldn't; and

not fulfilling undertakings to the Law Society. 

The whole thing was brought on by pills and liquor which led to a delicate mental condition. 

In all the Law Society made five applications against the solicitor containing 16 separate allegations of professional misconduct or unsatisfactory professional conduct.

What is evident is the extent to which opprobrium attaches to failure to make payments to other lawyers, going directly to another lawyer's client, and not sending letters to the Law Society. 

Most other things pale in comparison, although Flynn did indulge in some other alarming activities. 

Harassment

On 3 March 3, 2009, Ms Beckers, a family law client, terminated her retainer with the solicitor and instructed another law shop. 

Flynn then invited her to dinner that evening and suggested that she "wear something sexy". 

He followed this up with over 20 text and voice messages to her between 4.45pm and 11.26pm that evening. 

She did not respond. 

Next morning she noticed there were a further 12 missed calls from him.

At first, Flynn denied this complaint, suggesting that he was only trying to arrange an orderly hand-over of her files. 

By April 2010 he admitted each of the three allegations and the supporting particulars. He said: 

"This conduct is admitted and I am extremely embarrassed about it. It arose in circumstances where I was consuming excessive alcohol and labouring in respect of my mental illness. I assure the tribunal that it will not be repeated." 

Less than a week later Flynn was admitted to the Currumbin Clinic. 

No excuse, said the flint-hearted people on the tribunal. This sort of carry-on amounted to professional misconduct. 

Forged Justice of the Peace signature

Flynn was charged with two driving offences, including doing a u-turn at the traffic lights while his licence was suspended. 

He then pleaded guilty, but forged the signature of a Justice of the Peace, Margaret Williamson, as a witness to his signature on a written notice of pleading. 

Flynn acknowledged this was an awful thing to do, but said the substance of the statutory declaration was correct and not misleading. 

He was simply too embarrassed to have the fact he was pleading guilty known to others. 

The ADT did not smile kindly on this infarction describing it as a … 

"conscious act of fraud ... intended to misrepresent his position to the court [which] clearly amounts to professional misconduct."  

Undermining solicitor-client relationship

Another complaint against Flynn was that he breached the security of another solicitor's turf and communicated with a client that wasn't his. 

Margaret Weston lived in a nursing home in Port Stephens when her husband died. 

Acting on instructions, Mrs Weston's solicitor refused to provide a copy of her husband's will and a copy of the power of attorney to the solicitor of one of her daughters, Leona. 

Leona instructed Flynn, who then visited Mrs Weston on October 11, 2006 with his own mother in tow and attempted to procure Mrs Weston's signature on an authority that stated she had not instructed her solicitors to withhold the will, and authorising release of the power of attorney. 

Flynn also gave Leona a letter for Mrs Weston to sign addressed to the Guardianship Tribunal claiming she did not believe her other daughter Julie and solicitor Scott Lewis had her interests at heart. 

The Law Society claimed Flynn was aware Mrs Weston had legal representation, but sought to have her sign an authority that would benefit his client, and attempted to undermine the solicitor/client relationship by the letter to the Guardianship Tribunal.

The ADT said he was "probably motivated by a sense of injustice" but it was "wholly misconceived". 

The solicitor's conduct constituted a form of "self help", which was not appropriate. The panel found the letter to the Guardianship Tribunal undermined the existing solicitor/client relationship between Mrs Weston and Mr Lewis, in breach of the Rule 31 of the Solicitors Rules. 

Trust Accounting

There was also trust account issues, including breach of an undertaking to deposit funds, producing a false trust account record and misleading a client. 

Flynn took over a personal injury claim on behalf of a Mr Fowler from his former solicitor Mr Priestley, and gave a written undertaking that he would not release any funds to Fowler unless he retained enough in trust to cover Priestley's costs, and to pay Priestley within seven days. 

Settlement of $122,518 was received on April 15, 2004, but Flynn paid $10,000 to Fowler and sent the balance to himself for costs, emptying the trust account. 

On June 8, Flynn wrote to Priestley saying there were insufficient funds in the trust account to pay him. When pressed on his original undertaking, Flynn produced a document described as a "copy of trust account ledger" which claimed retention of $88,880 on April 15. 

This was false, as no money was paid into the trust account until June 24.

Flynn said his accounts department had overlooked the undertaking, and that the document sent to Priestley didn't form part of the trust records. 

"Oversight" was not a sufficient excuse for the panel, which rejected his argument that the document showing $88,880 in trust was not a re-statement of the actual record. 

Failure to pay a solicitor within seven days, as promised, was professional misconduct. 

Unsatisfactory professional conduct

There were a few other things that amounted to unsatisfactory professional conduct. 

Flynn had attempted to charge the estate of the late Pauline Magarry for items not permitted by Workers Compensation legislation, including medical report fees and internal office disbursements. 

He then failed to transfer the file to the solicitor for the estate. 

Plus, on another occasion, he had failed to provide a client with a written costs disclosure. 

Small fry stuff, compared with forging signatures and harassing female clients. 

Outcome

Once again we can only marvel at the speedy way the system handles complaints going back, in some cases, a decade. 

Here, the unfortunate lawyer, who clearly was off the rails for ages, and hooked on the demon drink, was given earlier chances at redemption, but to no avail. 

Flynn claimed that his medical condition, including alcoholism, suggested he was unfit to resume his practice as a sole practitioner only in the short term. 

The ADT panel thought otherwise and considered that Flynn was "probably permanently unfit to practice" because he "lacked insight into the inappropriateness of his conduct" with respect to misleading trust account recording, and approaching Mrs Weston. 

Flynn had already been reprimanded and fined for a number of acts of professional misconduct in 2002. 

Many of the same mitigating circumstances, including stress, anxiety, and alcohol dependence, had been wheeled out in that case, which indicated it had not provided a sufficient "wake up call" as Flynn then claimed. 

The seriousness of the "deliberate deceit" of falsifying a JP's signature also the tribunal to think he was unfit to practise. 

That unfitness was "probably permanent" because the panel could not say when, if ever, Flynn would be fit to resume soliciting.

His name was ordered off the jam-roll and that he pay the Law Society's costs. 

Reporter Paul Karp

See: Council of the Law Society of NSW v Flynn  [2013] NSWADT 70