The practitioners are father and son and were in partnership at the time. The complainant and her husband were clients of the firm and instructed Richard Moore to assist with purchasing a property. The property was for the husband’s parents, but they could not obtain a mortgage so the husband, his parents and the complainant all became joint owners. Later, Robert Moore accepted the husband’s instructions to transfer the property to a trust in which the complainant was neither a settlor, a trustee nor a beneficiary. Despite noting the complainant would likely need independent advice, the issue was never addressed further. The transaction was completed without Robert Moore speaking directly with the complainant or advising her to obtain independent advice.

In terms of liability, Richard Moore admitted a charge of negligence or incompetence of such a degree as to reflect on fitness to practise or bring the profession into disrepute. The Tribunal found he failed to recognise the potential for conflict between the parties when the property was initially acquired noting “joint ownership carries its own potential for downstream outcomes that called for individualised advice”. In addition, the Tribunal found Richard Moore failed to inform the complainant that she should obtain independent advice when he became aware of her husband’s intention to separate her out totally from the family dealing and that he failed to recognise a conflict of interest had arisen. The Tribunal found the conduct combined with the loss of position suffered by the complainant amounted to negligence or incompetence.

The Tribunal determined Robert Moore’s errors were of greater magnitude given he had carriage of the matter when the property was transferred to the trust, noting his admission of misconduct days before the hearing appeared “inevitable” in the circumstances. The Tribunal found Robert Moore dealt with the alienating transaction solely on the complainant’s husband’s instruction and failed to advise the complainant of the need to seek independent advice.  The Tribunal accepted Robert Moore did not act deliberately to deprive the complainant of her legal interest in the property, but what he did had that effect and amounted to serious recklessness and was therefore misconduct.

The Tribunal commended Richard Moore’s clear disciplinary history in his 55 years in practice noting he no longer practises law and had admitted the charge at the appropriate level. In respect of Robert Moore, the Tribunal noted the conduct sat at a level where a modest period of suspension could be considered but found suspension was not necessary in light of his efforts to address his shortcomings and implement positive change at the firm. The Tribunal was critical of the practitioners’ initial response to the charge and found the practitioners were both aware of the need to ensure independent advice for the complainant but failed to do so. The Tribunal censured both practitioners and fined them each $10,000. The Tribunal also ordered Richard Moore to pay emotional harm compensation to the complainant of $10,000 and Robert Moore to pay emotional harm compensation of $12,500. In addition, each respondent was ordered to pay a contribution of $5,000 to the complainant’s legal costs in relation to the charges and provide a written apology. The Tribunal ordered Robert Moore to attend two specified training courses that address managing conflicts of interest within a 12-month period. In addition, the practitioners were ordered to pay costs.