Ethics and Professional Responsibility Task 1, Activity 2 Taylor and Merchant common facts INDEX Common facts... 2 Letter from Law & Co... 4 Email from Sonal Singh... 5 Email from Taylor Merdec... 6 EPR T1 A2 Taylor and Merchant common facts Vic 2016_10_20 Page 1 of 6
Common facts Common facts Sonal Singh is a lawyer employed by Just and Fare Solicitors who act for Alice Tay the applicant in a de facto relationships property dispute in the Federal Circuit Court. Taylor Merdec is a lawyer employed by Law & Co who acts for the respondent, Hugh Merchant, the other party to the dispute. The dispute has been settled and consent orders made by the Court. The relevant orders are: 1. Within 28 days of the date of these orders the respondent pay the following creditors in the amounts stated being debts jointly incurred by the parties prior to separation. Liquor Land $1,200.00 Fashion House $1,350.00 Farmers Furnishings $8,000.00 A & K Smash Repairs $6,000.00 $16,550.00 2. Contemporaneously with order 1 herein, the applicant do all acts and things and execute all documents, including a transfer, necessary to transfer to the respondent the whole of her right title and interest in the property situate at and known as 1/1 Seaside Avenue, Seaside being the whole of the land comprised in Certificate of Title Volume 77777 Folio 77. Since then Singh has had Tay sign a transfer of her interest in the Seaside Avenue to Merchant and is ready to hand it over on confirmation Merchant has paid the debts referred to in order 1. 28 days after the consent orders were made Singh spoke by telephone with Merdec advising she had the signed transfer and enquiring when the matter could be finalised. Merdec explained that his client had informed him that he did not have the money to pay the debts. Merchant told Merdec that he had approached his bank to obtain a loan to pay out the jointly incurred debts offering the Seaside Avenue unit as security. He said the bank knew of the court proceedings and would not make the advance unless Tay was prepared to be jointly responsible for repayment or until Merchant became the sole owner of the unit. After discussion it was agreed that the signed transfer would be handed over to Merdec to enable his client to borrow against the security of the unit on condition that an undertaking was given that the joint accounts would be paid and evidence of payment in the form of payment receipts provided within 28 days. The following day the signed transfer was given to Merdec and Singh received a letter from Law & Co in the form set out below. A month later the joint accounts remain unpaid. Singh then wrote to Law & Co pointing this out and requiring an urgent reply. A little later there is an exchange of emails between Singh and Merdec copies of which are set out below. EPR T1 A2 Taylor and Merchant common facts Vic 2016_10_20 Page 2 of 6
Questions 1. Has Merdec given an undertaking personally binding on him? 2. Assuming the undertaking is personally binding on him but he does not pay the debts listed in order 1 so as to obtain payment receipts, will he be guilty of professional misconduct or unsatisfactory professional conduct as those terms are defined in the Legal Profession Uniform Law. 3. Would Singh s email be regarded as offensive, discourteous or otherwise in breach of the Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015? 4. Is Singh s reference in the email to making a complaint to the Law Institute of Victoria accurate? To whom should complaints be made? 5. If there was a formal complaint in relation to Merdec s conduct couldn t Merdec just ignore it? 6. What does the reference to seeking relief against [Merdec] in the Supreme Court in relation to the undertaking mean? 7. If a lawyer holding a practising certificate becomes bankrupt does the lawyer have to notify anyone of the bankruptcy? Will that lawyer be able to continue practising? EPR T1 A2 Taylor and Merchant common facts Vic 2016_10_20 Page 3 of 6
Letter from Law & Co (2 weeks ago) 20xx Just & Fare Solicitors DX 555 MELBOURNE BY HAND Our ref: Taylor Merdec (M131/20xx) Your ref: Sonal Singh (TAY103356) Merchant ats Tay Federal Circuit Court No 777 of 20xx Dear Sirs We refer to the above matter and the Consent Orders approved by the Court on [4 weeks ago]. In consideration of your client settling this matter today, we hereby undertake on behalf of our client to provide evidence of payment of the jointly incurred debts listed in Order 1 of the Consent Orders within 28 days, in the form of payment receipts. Yours faithfully Taylor Merdec Law & Co EPR T1 A2 Taylor and Merchant common facts Vic 2016_10_20 Page 4 of 6
Email from Sonal Singh EMAIL From : Sonal Singh [mailto:ssingh@octopusnet.com] To : Taylor Merdec Subject : Tay v Merchant Sent : Today I refer to my letter of [1 week ago] that you appear to have chosen to ignore. My instructions are that the Seaside Avenue unit has been sold and that your client has left the country. My client handed over the transfer signed by her in good faith on your promise to ensure the jointly incurred debts would be paid. It seems your client, consistently with his behavior throughout this dispute, has sought to evade his legal and moral responsibilities. Unless you produce evidence of payment of the joint debts to us within 7 days we can only conclude that you and your client have conspired to cause loss to our client. Further, we will make a formal complaint to the Law Institute of Victoria that you have breached a personal undertaking. We will also consider whether to seek relief against you in the Supreme Court in relation to the undertaking. EPR T1 A2 Taylor and Merchant common facts Vic 2016_10_20 Page 5 of 6
Email from Taylor Merdec EMAIL From To Subject Sent : Taylor Merdec [mailto:taymer@octopusnet.com] : Sonal Singh : Merchant ats Tay : Today I refer to your email sent a few minutes ago. I did not ignore your letter. I was seeking to obtain instructions. I gave no personal undertaking. The undertaking was that of my client. Your allegation that I have conspired with my client to cause loss to your client is baseless and unprofessional and I intend to make a formal complaint against you for making that allegation. EPR T1 A2 Taylor and Merchant common facts Vic 2016_10_20 Page 6 of 6