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Solicitor found guilty of dishonest misappropriation of funds
A NSW lawyer has been found guilty of professional misconduct and unsatisfactory professional misconduct due to the dishonest misappropriation of funds and failure to supply and maintain trust records.
Naomi Neilson
The NSW Civil and Administrative Tribunal found Chona Davidson had transferred monies meant for filing fees between her personal account and trust accounts in what is noted as a “deliberate misuse of funds”. She often allowed her account to be overdrawn.
“The solicitor’s misconception of what is trust money, and the solicitor’s actions in the handling of trust money based upon that misconception, is so fundamental that it has demonstrated a significant level of ignorance of elementary obligations of a solicitor who takes money on trust from clients,” the tribunal noted in court documents.
The most serious allegations against the solicitor concerns the misappropriation of the trust funds. Ms Davidson’s submissions sought to persuade the tribunal the use of the trust funds was a “misapplication” or “non-dishonest misapplication”.
On 10 September 2015, Ms Davidson received $1,430 for the Daniel matter, credited to her personal account. The amount included a $430 court filing fee. It was alleged that Ms Davidson did not deposit the $430, and that by 16 September, the balance was used to make payments that did not include the filing fee.
“We find her conduct in that regard was objectively dishonest according to standards of ordinary and decent people,” the tribunal wrote.
“The solicitor may not have intended to deprive the client permanently of the benefit of the funds received, and the fact that the filing fee was paid later does not detract from the findings we have made or our conclusion.”
It is further alleged that Ms Davidson attempted to conceal the misappropriation of the $430 by submitting false account entries provided to the trust account investigators.
In the following month, Ms Davidson received $10,000 for the visa application of a client. This amount included $6,685 for the applications filing fee to be paid to the Department of Immigration and Border Protection (DIBP). It was credited to the solicitor’s personal account but was not transferred to the trust account.
The amount was eventually paid to the DIBP in January 2016. During this period, Ms Davidson’s personal account fell below $6,685 and was overdrawn.
In another instance, $1,500 was credited to the solicitor’s personal account for another visa application. The amount was paid into her personal account and was used for payments other than the client’s filing fee.
“Because we are of the opinion that the use of the ordinary standards of reasonable and honest people, we are of the opinion that the conduct cannot be described merely as unsatisfactory professional misconduct, but must be categorised as professional misconduct,” the tribunal concluded.
These proceedings are stood over to be listed for directions and setting down of the proceedings for a hearing to determine disciplinary orders.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
