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Melbourne lawyer to face tribunal for alleged trust account misconduct
A Melbourne solicitor who allegedly held trust money without authorisation and created a false invoice for his fees has failed to convince a tribunal to throw out the disciplinary charges.
Naomi Neilson
Joseph Guss will appear before the Victorian Civil and Administrative Tribunal (VCAT) to face eight misconduct charges after senior member Jonathan Smithers dismissed his application to have the proceedings permanently stayed, summarily dismissed, or struck out.
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The first two of the eight charges related to a complaint made during 2017 by a former client who retained Mr Guss to assist in the sale of a Bacchus Marsh property at the end of 2016.
The Victorian Legal Services Commissioner (VLSC) alleged that in the course of this, Mr Guss received trust monies when he was not authorised to do so. The funds were from the early release of a deposit for the property paid by the purchaser.
In the course of its investigation, VLSC submitted it became aware Mr Guss was allegedly engaged in mortgage financing with a company controlled by his “life partner”.
Under the Legal Profession Uniform Act, a law practice is prohibited from managing an investment scheme or engaging in mortgage financing as part of their law practice, including acting as an intermediary, arranging loans, or dealing with loan payments.
The next five charges related to a separate client who retained Mr Guss to assist in a default motion for unpaid management fees.
VLSC alleged Mr Guss received $1,000 in trust monies when he was not authorised to do so, failed to carry out work he was retained to do, failed to return the $1,000 for two years, and falsely created an invoice for his fees that had been backdated over four years.
The commissioner also alleged Mr Guss failed to comply with a statutory information request and, separately, falsely confirmed he provided an invoice to the client in a statutory declaration.
In the final charge, VLSC alleged Mr Guss breached Professional Conduct and Practice Rules 2005 by acting for his client despite being required to give evidence material to the determination of a contested issue before the court.
This concerned a period between 2013 and 2015 in which Mr Guss acted for his son in litigation to challenge the validity of a will and secure payment of monies from a deceased estate.
The 2015 decision was critical of Mr Guss for acting “when there was a conflict of interest” and for breaching his overarching obligations.
The VCAT proceedings were scheduled to begin on 5 December.
