A Canberra lawyer is on trial in the ACT Supreme Court this week, accused of dishonestly obtaining $30,000 from a client’s mother at the same time as he was receiving funds from the Legal Aid Commission for the same case.
The prosecution alleges that in 2009, lawyer Stephen Stubbs, 63, represented Canberra man Alexander Duffy under a grant of legal aid for a charge of conspiracy to murder.
It is alleged that, despite being paid by the Commission for the case, Mr Stubbs requested funds from Mr Duffy’s mother for the same work.
Mrs Duffy is said to have deposited funds totalling $30,000 into Mr Stubbs’ personal bank account over the course of a year. She says the lawyer did not provide invoices for any of the work undertaken.
The Legal Aid Commission
Legal Aid Commissions in states and territories across the country employ in-house solicitors to undertake legal work for those who cannot afford to pay for private lawyers.
Strict ‘means’ and ‘merits’ tests are applied when determining whether a person is eligible for legal aid, and all Commissions are currently stretched to the limit when it comes to funding and resources.
Legal Aid also assigns work to private lawyers, who are paid by the Commission to conduct cases – albeit well below commercial rates.
In all jurisdictions, it is an offence for a private lawyer to dishonestly obtain private funds for a case they have accepted under a grant of legal aid – except for any ‘contribution’ requested by the Commission.
Section 41(1) of the Legal Aid Commission Act 1979 (NSW) says that ‘a private practitioner is not entitled to charge or recover from a legally assisted person any amount:
- by way of costs in respect of work assigned by the Commission to the private legal practitioner on behalf of that person, or
- by way of disbursements incurred on behalf of that person in connection with that work,
except with the approval of the Commission’.
A lawyer who accepts private funds whilst undertaking a matter under a grant of legal aid is guilty of an offence.
Fraud and disciplinary proceedings
Lawyers who engage in such misconduct may also be charged with fraud under section 192E of the Crimes Act (1900), which makes it an offence to dishonestly by any deception obtain property belonging to another, or obtain any financial advantage or cause a financial disadvantage to another. The maximum penalty is 10 years imprisonment.
To be found guilty of fraud, the prosecution must prove beyond reasonable doubt that the defendant:
- By deception, acted dishonestly, and
- These actions created a financial advantage over another person’s property, or caused them to suffer a financial disadvantage, and
- The actions were intentional or reckless.
Lawyers can additionally face disciplinary proceedings by the Law Society of NSW for ‘professional misconduct’, which can lead to removal from the roll of legal practitioners – also known as being ‘struck off’.
Back to Mr Stubbs…
Mr Stubbs’ criminal defence barrister, Theresa Warwick, asked the jury to “start from a position of innocence” and carefully scrutinise the evidence presented in the case.
She foreshadowed evidence that the Commission had granted several ‘extensions’ (approvals for work to be undertaken) in respect of Mr Duffy’s cases – including two approvals for an alleged assault in the city centre – alluding to a submission that her client did not act dishonestly when receiving private funds for working on the conspiracy to murder case.
The Supreme Court trial continues.