The NSW Civil and Administrative Tribunal (NCAT) handed down the finding and the reprimand to Hermansah Elina, alongside a further order for the sole practitioner to undertake, complete and pass a practice management course. Failing to pass the course could mean suspension of his practising certificate until he does.
Mr Elina submitted to NCAT that he conducts his own daily office administration and bookkeeping without the financial means to hire help. He conceded that he does not have an adequate understanding of the concept of trust money and his various trust account obligations in relation to client money, particularly concerning four clients.
“In admitting this misconduct, including the serious breaches relating to trust monies and trust accounts, the solicitor has acknowledged that his conduct was inappropriate and misguided,” NCAT found in a recent judgment.
“We are comfortably satisfied that the solicitor’s conduct amounts to a serious and substantial failure to meet reasonable standards of competence and diligence, and therefore clearly falls within the statutory definitions of professional misconduct.”
In relation to the first client – known to the court only as Client A – Mr Elina directed him to pay $7,500 into the office account. In a conversation with a trust account inspector, Mr Elina conceded he should have asked the client to deposit the amount into the trust account, but still did not transfer the deposit into the correct account.
In December 2017, Client B was directed to deposit $30,000 into the office account and an invoice was provided shortly afterwards, despite Mr Elina alerting the client that the funds should have been paid into the trust account.
Client C paid $29,500 into the firm’s office account and, other than noting that it was paid into the wrong account, the trust account inspector also informed Mr Elina that the client had overpaid by almost $324. Despite being made aware of this, Mr Elina held the money in the office account for another 187 consecutive days.
Mr Elina owed the last client $2,767 in overpayment and had made an offer to make the repayments to her. However, rather than acting on this efficiently, the solicitor retained the funds and did not pay Client D back until almost a month later.
NCAT found the “serious nature” of these breaches rendered Mr Elina’s conduct a substantial failure to reach or maintain the requisite standards of competence and diligence. This included making false declarations to the professional regulator as well as multiple breaches of legislative provisions in his dealings with trust money.
“In conceding that his conduct amounted to professional misconduct, the solicitor has acknowledged the seriousness and gravity of the conduct and he has also acknowledged that the conduct was of such a nature as to warrant the orders. The solicitor has also recognised that his failure to adhere to fundamental ethical standards amounted to professional misconduct,” NCAT noted.
The entire judgment can be found on AustLII: Council of the Law Society of New South Wales v Elina [2021] NSWCATOD 98 (20 July 2021).
