ACT Civil and Administrative Tribunal (ACAT) senior member Professor Tony Foley said Wearne’s behaviour was “certainly conduct on a global basis that amounts to professional misconduct”.

Wearne’s client was in and out of custody during the retainer, and ACAT found they developed “an overly familiar relationship”, with the client appointing her enduring power of attorney and making a bequest to her in his will. Wearne said she was unaware of the will.

“All these things were matters an experienced lawyer, as the respondent was, needed to be cautious and cognisant of.

“Allowing for these circumstances, the client’s requests for assistance were likely to be high, and the respondent needed to balance this with her entitlement to ensure her proper costs were paid for all the work she was required to do,” Foley said.

Wearne went so far as to accept instructions to hold his permanent disablement benefit from the Construction and Buildings Union Superannuation Fund in the sum of $92,000.

ACAT said Wearne acted “essentially as his banker” by paying bills and making purchases on the client’s behalf.

From December 2019 to June 2020, Wearne issued two invoices in the sums of $13,162 and $7,915. The client terminated his retainer with Wearne and lodged a complaint in July 2020.

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In evidence, Wearne said she had a pattern of making an oral request for payment at the time the invoices were raised and withdrawing the money with instructions. She conceded she never sought or obtained any confirmation instructions in writing.

Foley said the pattern “raises some serious credit issues and doubt that there was compliance with regulation”.

“This is not what she disclosed to the applicant at the onset, and this goes directly to her credibility. It is also not what she disclosed in her affidavit … nor in her response, amended response, or further amended response,” Foley said.

The client was not called to give evidence, but ACAT said having found “serious reservations” with Wearne’s evidence, it could not consider the client’s evidence “could have assisted us other than marginally in deciding whether to accept her evidence”.

A hearing for penalty will be listed for a later date.

The case is Council of the Law Society of the ACT v Necia Gai Wearne (Occupational Discipline) [2024] ACAT 58 (23 August 2024).